NHS authorities complain FoI Act leads to financial 'burden', 'misleading' public and 'reputational damage'

Public authorities in the NHS have called for fees and reduced time limits to relieve the “burden” of the Freedom of Information Act.

Press Gazette revealed yesterday how local councils and universities have called for weakening of the act in submissions to the Independent Commission on Freedom of Information.

Today, Press Gazette has read through several submissions from health organisations, showing:

  • One NHS trust complained that journalists' requests can cause "reputational damage which the Trust has to use resource and time to dispel"
  • This body also said the FoI Act  "limits our ability to build trust with general members of the public"
  • Another recommended the time limit for working on FoIs be reduced from 18 hours to two hours – and that "consideration" time be included in the limit
  • Other NHS organisations called for redaction time to be included
  • A clinical commissioning group suggested journalists "could be required to reveal their identity and purpose" when making requests
  • One trust said there should be FoI fees – and said: "Media and business should always pay more than members of the public"
  • The same organisation said public bodies should be able to reject requests from "obvious 'characters'"

But several media submissions to the commission, which has published a selection of the more than 3,000 responses it received, demonstrated the importance of  FoI in holding the health service to account.

Associated Newspapers told how Daily Mail journalists used the act to “expose how hospitals were being paid millions to put patients on the Liverpool Care Pathway, a system of care for the dying”.

The submission said:

The Liverpool Care Pathway, first cleared for use in all hospitals in 2004, was – until the Mail’s campaign on the issue – the method used across the country to guide the care of patients judged to be dying. It involved the withdrawal of life-saving treatment and its replacement by measures to control pain and make the patient comfortable.

The Mail started a campaign on the issue after a whistleblowing surgeon raised concerns about the pathway. Members of the public later came forward to make allegations that it had been used in some cases on patients who were not imminently dying and, in others, without patients’ families being told.

The Mail's reporters could not understand why patients were being put on this pathway without the consent of – or even consultation with – their families. So they asked whether hospitals had a financial incentive to put patients on the pathway.

The Department of Health told a Mail reporter: ‘There is currently no central Department of Health fund or tariff to support use of the Liverpool Care Pathway.’

However, following a FOI request, it emerged that NHS hospitals had been paid tens of millions of pounds to adopt the controversial Liverpool Care Pathway on their wards. They had been encouraged to introduce the method in payments earmarked for ‘quality and innovation’. Among 20 hospitals which have given information under FOI, £4.5 million had been paid in return for the use of the Pathway.

After the Mail put this story on its front page, an independent review was launched of the Liverpool Care Pathway. The review recommended abolition of the pathway, and that incentive payments for staff who put patients on end-of-life treatment plans should be banned, describing them as "totally unacceptable". The pathway has now been scrapped.

Pulse magazine told the commission: “We strongly believe that the burden on public authorities is far outweighed by the public’s right to know and that the current safeguards around costs are more than adequate.

“Any kind of charge would be an assault on the media and the public’s ability to scrutinise public bodies.

“We strongly believe that charges for FoI requests would be a significant blow to genuine public interest journalism.

“We carry out numerous wide-ranging FoI requests that have scrutinised public bodies in the public interest.

“This year, we revealed that GPs were being offered incentives to reduce the number of urgent cancer referrals they made. We only found this out through FoI requests to the 210 clinical commissioning groups (CCGs) – such information was not available in public documents. It yielded 12 examples of such incentive schemes – schemes we would have missed were it not for free FOI request .

“Similarly, we revealed that CCGs had reduced the funding given to child mental health services. FoIs to all CCGs were the only way to build up a national picture that revealed there was a trend of funding being cut.

“We also showed that the state was spending more money of putting services out to competition.

“If there was a charge of even £10, such investigations would be impossible for a small media outlet like us.”

Meanwhile, the group Action against Medical Accidents also defended FoI and described the commission's inquiry as "ill-founded".

It said: "As part of AvMA’s patient safety work, AvMA has undertaken research where FoI requests have been fundamental to the investigation.

"Making FOI requests is not something that we do lightly but can be an essential tool for identifying issues which may directly impact on patients and their families and the quality of the care they receive.

"It is AvMA’s experience that when we have made FOI requests, it is not uncommon for the public authority to fail to provide the information requested. The reasons given are either that the information is not held in the form requested or that it would be too costly to retrieve. So even in the absence of specific exemptions, public authorities are already able to exercise what is in effect a veto."

The Birth Trauma Association also spoke of the importance of FoI.

It said: “As we know, relevant information is often deliberately kept out of the public domain to enable public bodies like the NHS to spin their version of events.

“If we don’t have access to the relevant information it makes it more difficult to challenge public bodies.

“This means public bodies are subject to less scrutiny and in turn less accountable to the public who fund their existence through their taxes.

“For there to be proper and effective democracy there needs to be equality of arms so that all parties have access to the same relevant material as public bodies.”

FoI Act 'limits our ability to build trust'

The Royal Marsden NHS Foundation Trust told the commission it is "is firmly committed to the principles of openness and transparency as it is these principles which help hold the organisation to account to the community it serves".

But, after consulting with "senior management to gather their views on the effect of the FOIA", its submission said the "legislation is being used, or abused as some may say".

The Royal Marsden said: "It is clear that the demand on staff time and resource is growing in terms of responding to FoI requests but also, there is a growing sense of frustration amongst staff because the majority of FoI requests are from journalists seeking information for an article (which gives rise to other concerns that are noted later in this response) but also individuals wanting information for commercial purposes."

It added: "A key concern with regard to the FOIA is that the legislation limits our ability to build trust with general members of the public because our organisation can only provide that information which is being requested.

"In other words, if a journalist requests X, Y and Z for an article but the Trust is unaware of this and does not provide the relevant context and this is subsequently released into the public domain then this can in effect mislead the public and cause unfounded concerns on the part of the community, as well as reputational damage which the Trust has to use resource and time to dispel."

Reducing the 'burden'

Gateshead Health NHS Foundation Trust has called for the appropriate time limit to be reduced from 18 hours to two hours. The trust also suggested that time spent on "consideration of exemptions" should be included in the statutory cost limit.

Its submission said: "We strongly believe that the existing statutory cost limit (i.e. £450 or 18 hours per request for the wider public sector bodies) is too high.

"It is blatantly disproportionate to require staff on a regular basis to put aside the performance of their core duties (which in the Trust’s case are related to the provision of healthcare services) and spend up to 18 hours on responding to each FOI request."

The trust, which received 554 FoI requests in 2014/15, said: "There is a general public interest in the transparency and accountability of public sector bodies, and information released under the Freedom of Information Act is deemed to be disclosed to the world at large. However, very often (if not usually) FOI requests serve private rather than public interests (including on occasions the commercial interests of non-UK and non-EU companies).

"Public interests only ever come to play when the requested information falls under one of the statutory exemptions. They are not taken into account when non-exempt information is requested even where it is apparent that there is no wider public interest in spending £450 on complying with a particular request."

The General Medical CouncilKing’s College Hospital NHS Foundation TrustSurrey Downs Clinical Commissioning Group and South Warwickshire NHS Foundation Trust were among those bodies to suggest redaction time should be included in the cost limit on FoI.

King's College, which claimed the act costs £300,000 a year to comply with, suggested the time limit on FoIs should be at least halved from 18 hours. And Surrey Downs said it should be reduced to six hours.

'The Act is used to general stories about the NHS'

Surrey Downs Clinical Commissioning Group, under the headline 'Media' in its submission, also said: "It may be in the public interest for the originating organisation to be disclosed.

"Over time this might encourage media organisations to improve the efficiency of their interaction with public bodies.

"In many instances, the Act is used to generate stories about the NHS which are taken out of context, sensationalised and published without obtaining a balanced view.

"Perhaps journalists could be required to reveal their identity and purpose, allowing those affected a specific period of time in which to give a response?"

South Warwickshire NHS Foundation Trust said the "burden" of FoI is "not justified by the public interest in the public's right to know where it relates to spurious requests or those from private/commercial businesses, wishing to use the information for their own private benefit".

Its submission said: "This flagrant misuse of public money for private/commercial enterprise/benefit cannot be justified.

"This misuse could be controlled by the introduction of a justification by the requester as to why it is in the public interest for the public authority to disclose the information, if held.

"So too, all requests should be accompanied by an initial fee, solely to cover the process of searching and retrieving documents. The amount should be set based on research previously undertaken and should be tailored to who is requesting the information.

"The media and business should always pay more than members of the public."

It added: "In order to further control this there would need to be some means of ensuring that requests are genuine and are from those requesters who are what they appear to be.

"For example, public authorities should be allowed the discretion to reject requests from obvious ‘characters’."

University Hospitals Bristol NHS Foundation Trust said: "Given the overwhelming and increasing number of requests in the sector and the time taken to respond to such requests, in light of the financial pressures being faced by NHS providers, UH Bristol considers it would be sensible to re-focus FOIA activity more clearly, by redefining and providing further clarity on the definition of ‘matters of the public interest’ and to streamline the process for responding to legitimate requests, and addressing the significant challenges facing the sector with regard to requests for commercial purposes…

"As is but with an exemption in relation to requests for commercial purposes. Two questions need to be assessed for the NHS context, 1) will this provide a potential patient benefit?; and 2) Is this a topic that is important to address for the public interest (rather than for the business purposes of a private company."

Its submission added: "There are concerns that the number of requests growing rapidly to the point of being overwhelming and the level of resource that was necessary to give over to these requests, including administrative time, but also front-line clinical time.

"Incorrect and misleading conclusions can often be drawn from FoI requests which had a negative reputational impact on the NHS, particularly involving requests from the media."

Picture: Shutterstock

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