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Freedom of information in health care is proving more vital than for any other service paid for by taxpayers, writes Mark Watts. Ordinary members of the public are demanding answers from the NHS and their local health authorities.
The department of health, based in Richmond House in Whitehall, right, and all health authorities are among the public bodies subject to the freedom of information act (FOIA).
This includes everything from hospitals to other health-care providers, including GP and dental surgeries, as well as primary care trusts and strategic health authorities.
Officials at health public bodies report that the most common FOIA requests are for information relating to clinical performance, such as the success rates of consultants. Many of these are thought to come from worried patients or relatives hoping to check the track-record of their doctors.
And this “people power” has put pressure on health authorities to release more details about doctors’ performance.
People are also using FOIA to seek information related to complaints about poor health care.
At the FOIA Centre, we are finding that people want more information about an array of health issues, such as ward closures and MRSA, while companies seek more details about publicly tendered contracts before making bids.
Information on health matters has also been un-covered from public bodies other than health authorities, for example environmental health departments of councils or the regulator for old people’s homes.
However, several exemptions under FOIA can prevent people from obtaining the information they want. Most of these exemptions are not absolute, meaning that public bodies must weigh up the public interest that favours disclosure against withholding information.
For example, the department of health was asked for correspondence since 2003 between the health secretary and Prince Charles. Communications between ministers and the royal family are exempt from disclosure under FOIA, and so this was refused.
Another request to provide reasons or background for Alan Milburn’s resignation as health secretary also failed. The department, rather curiously, replied: “Information not held.”
However, a lot of information on health has been disclosed under FOIA. For example, we learn that 1,023 abortions were carried out during one year in England and Wales on girls aged 14, and 148 for those even younger.
In an attempt to cut teenage pregnancies, 750 girls aged 14 or under during a single year in England were given contraceptive injections on the NHS, which prevent conception for up to 12 weeks, and another 150 girls were given implants that make them infertile for up to three years, while the “morning-after” pill was given to 7,920 girls aged 14 or under.
On another issue, the department of health released a survey conducted by England’s 28 strategic health authorities showing that an estimated eight million adults are classed as “obese”, more than one in five of the adult population.
The highest proportion of obese adults was in the strategic health authority area of County Durham and Tees Valley – more than one in four. The lowest was in Avon, Gloucestershire and Wiltshire, where the proportion was just over 17%.
We also found out that 750 clinical and medical staff in British hospitals have been formally disciplined for offences involving alcohol or drugs at work over the past decade.
Health public bodies have released the death rates for patients of cardiac surgeons in the UK.
However, some experts say that patient death rates may be misleading because such data does not distinguish between doctors who are incompetent and those who are tackling more difficult cases.
Figures showing patient death rates for every surgeon in Scotland were forced out after a ruling by the Scottish information commissioner, Kevin Dunion.
However, Scotland's chief medical officer, Dr Harry Burns, said: “The figures are pretty meaningless unless you know much more about the individual cases taken on by each surgeon.”
“Many of those surgeons with the highest mortality rates are the heroes of the health service... They are the last hope of very sick patients. Some of our best, most experienced surgeons take on the very hardest cases.”
An array of environmental health reports on restaurants and other places serving food around the country have been made public, revealing sometimes shocking hygiene standards.
In addition, past breaches of health regulations have been revealed at even some of Britain’s best known restaurants, including Gordon Ramsay’s Petrus as well as his restaurant in Claridges Hotel in Mayfair, celebrity favourites The Ivy and Nobu, together with the Cinnamon Club in Westminster, which is favoured by politicians.
Many FOIA requests to health authorities relate to financial information and contracted-out services. A lot of these undoubtedly come from companies bidding for contracts.
Responses to FOIA requests showed, for ex-ample, that hospital and primary care trusts had run up an estimated £1 billion debt collectively.
Thanks to FOIA, the acting chairman of one financially troubled hospital foundation trust was discovered to be receiving £60,000 for six months’ work last year.
Peter Garland earned the sum while chairman of Bradford teaching hospitals NHS foundation trust. This compared with an average of £20,000 for chairing trusts, a role that typically requires three-and-a-half days’ work a week.
FOIA and other open-access laws
Anyone can make a request for material under FOIA or, as appropriate, the environmental information regulations by writing to the relevant public body. The only requirements to be included in such requests are that the requestor and a contact address in the UK is identified.
However, we find that people ask us at the FOIA Centre to make and pursue all types of open-access requests for them because they have been given the “run around” when they tried to do it themselves.
Open-access provisions, their exemptions, and their interpretation are complex matters to anyone thinking of using them for the first time (or, indeed, the thousandth time). Compliance with these provisions in the UK is regulated by the information commissioner. In addition, Scotland has its own information commissioner.
Besides FOIA, people can obtain information held about them, including health records, by writing to the body that holds it and asking for it under the data protection act. Health records can include doctors’ notes, as well as information about diagnosis and treatment.
Under the law, such data should be supplied with-in 40 working days. This act, like FOIA, is regulated by the information commissioner, formerly known as the data protection registrar, who deals with some complaints about failure to comply.
However, unlike FOIA, requestors can find them-selves having to take legal action at a county court to try to force compliance with the data protection act.
In some circumstances, the health records of late relatives and friends can be obtained by requesting them under the access to health records act. You would probably have such rights if you are the immediate next of kin or have power of attorney.
People can also obtain medical reports on themselves by a clinician, such as a GP, for insurance or employment purposes, under the access to medical reports act.
In each case, requests should be clearly set out in writing to the relevant body, citing the act that applies.
The relevant body can ask for clarification of the request or, in the case of personal information, proof of entitlement to it. The organisation concerned can refuse to comply with the request until any clarification or proof of entitlement required is supplied.
Under FOIA, a public body can refuse to supply information for any one of several exemptions, but it can be asked to carry out a review of any such refusal.
If the refusal is upheld, a complaint can be made to the information commissioner for the UK or, if appropriate, the Scottish information commissioner.
Rulings by the information commissioner can be appealed to the information tribunal, whose decisions can be further challenged in the courts.
For more information about FOIA and other open-access laws, contact us at the FOIA Centre. We offer up to 50% discounts on our rates for individuals seeking information in a non-commercial connection. The following two cases illustrate how FOIA can be used in relation to health matters.
Retired teacher Jan Gearon-Simm was worried about hygiene standards at a hospital where her husband, Sam, caught MRSA after a hip operation.
Thanks to FOIA, she obtained a copy of the cleaning timetable and found that the contract cleaners had not been carrying out basic duties that were supposed to be part of the contract.
Sam, 68, a retired chartered surveyor from Brent-wood, Essex, contracted MRSA at Basildon hospital. After he was moved to an isolation room, 64-year-old Jan kept her own log of the cleaning there.
Her log showed that the cleaning carried out in the isolation room failed to live up to the contractual commitments of the private cleaning company.
She said: “I just wanted to find out whether the cleaners knew what they should be doing.”
The hospital initially refused to send her the information, she said, claiming wrongly that disclosure would breach the data protection act.
“It was cleaned seven times in 21 days, and that was only when I complained.” According to the timetable, it should have been cleaned every day.
“There did not seem to be any kind of system. I would have thought that cleaning would be something that was routine.”
“What they were supposed to be doing was noth-ing like what was being done.”
The hospital said that it was grateful to Jan for bringing the problem to its attention and said that cleanliness was a high priority.
Obtaining the information through FOIA “took a hell of a lot of effort,” she said. “It’s brilliant, but you’ve still got to keep on at them.”
Pensioner Eileen Furbank uncovered evidence of abuse and neglect at the old people’s home where her mother lived until just before her death.
Through FOIA, she obtained documents from the former regulator of care homes, the national care standards commission, showing a catalogue of complaints against the Eastmoor nursing home in Ilkley, West Yorkshire by relatives of residents and whistle-blowing members of staff. The home has since closed down.
Eileen, 73, of Addingham, near Bradford, said that she had discovered her 93-year-old mother, Frances Hales, had a rotting pressure sore on her back while staying at the home. She arranged for her to go to hospital, where she died five days later.
Eileen said: “She was only there half an hour when they phoned me about resuscitation. That tells you how ill she was.”
She wanted to know why the home had failed to tell her about the pressure sore and to send her mother to hospital.
We are currently researching an article that will focus specifically on FOIA disclosures about old people’s homes. Please contact us if you have any information on this subject or if you would like us to help you use FOIA to investigate specific homes.
Eileen’s quest for information was initially bogged down as the authorities gave her the run around. “I was fobbed off from the hospital right from the beginning,” she said. “‘She was 93, forget about it, go home,’ and I just wouldn’t give up.”
She said that public bodies “bank on” people finding FOIA too difficult to use.
According to the documents, there were com-plaints that residents were subjected to violence, malnourishment, and that one developed a large pressure sore on the same part of her back as Eileen’s mother.
“The more you dig, the more dirt you find,” she said. “There were three more cases after my mother’s case and then it closed down.”
Another version of this article first appeared in the Daily Express.
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