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Jill Moorcroft
Freedom of Information Unit
Department of Health
Room 363C
Skipton House
London SE1 6LH
December 18, 2003
Dear Jill,
Open Government request
This is a request under the Code of Practice on Access to Government Information.
In a Parliamentary Question earlier this year Dr Evan Harris MP asked
how many consultants there are in each accident and emergency department in
England and Wales. The Minister of State, John Hutton MP, replied:
Information on the number of accident and emergency (A&E) consultants within
trusts which have an A&E department have been placed in the Library.
Where this figure is less than 10, there is a risk that individual doctors
could be identified. This is contrary to the Data Protection Act 1998. For
this reason, published data is rounded to the nearest 10 or where the figure
is less than five, the number is replaced by a star. [Written Answers, 8.4.03,
col. 234W]
The same answer was given to a separate request on the same day
for the number of coronary care consultants in each NHS trust and region. Similar
responses
have been given in response to previous PQs.1
I am now asking, under the open government code, for (i) the precise numbers
of consultants in each English A&E department (ii) the precise numbers
of consultants working in coronary care in each NHS trust and (iii) any guidance
provided to DOH staff replying to Parliamentary Questions, particularly any
which mentions the Data Protection Act (DPA).
The Campaign’s main interest in this issue is the tendency of authorities
to cite the DPA to justify withholding information about public officials acting
in a public capacity, where there is no risk to privacy and no breach of the
Act, and where secrecy may undermine public accountability. The suggestion that the number of consultants in a particular department cannot
be disclosed for data protection reasons seems absurd. Many people will probably
wonder whether it has some ulterior purpose, such as a desire to conceal understaffing.
I assume that this is not the intention, though it is likely to be the effect.
The withholding of precise staff numbers may well obscure key shortages, while
shielding the NHS from pressure to deal with them.
The actual figures placed in the House of Commons library in response to
this PQ illustrate how this might be happening. For many trusts, the number
of consultants
in coronary care over the last six years is represented by a row of six asterisks,
indicating that there were less than five in each year. There is no way of
knowing if the figure remained constant from year to year, or increased or
decreased within the relevant band. In certain cases the figure has changed
from “10” one year to an asterisk the next. But as the “10” could
represent any figure from 5 to 14, it is impossible to tell whether there has
been a modest change from, say, 5 consultants to 4 or a drastic collapse, from
14 to 1.
The rationale for withholding the actual figures rests on
two implausible assertions. The first is that disclosing the number of consultants,
where
small, would
allow the individuals to be identified. The second is that this would contravene
the DPA.
Suppose a department has, say, six doctors of whom one is a
consultant: how would the disclosure of these statistics lead to the consultant
being
identified?
Perhaps if a department has only a single doctor, and is also
revealed to have a single consultant, someone who already
knows the doctor’s
name would recognise that he or she was also the consultant. I cannot
believe that any
consultant would regard it as an invasion of their privacy. What
is astonishing is that, to prevent anyone reaching this innocuous conclusion,
the Department
is prepared to obscure detailed staffing figures for the whole NHS. Even if consultants’ name could be deduced, how would this breach the
Data Protection Act? The Act’s main requirement is that any disclosure
should be in accordance with the data protection principles. The most relevant
is probably the first, which requires that any processing or disclosure be
fair and lawful and satisfy at least one of the conditions in Schedule 2 of
the Act.
A disclosure might be unfair if an individual has been misled about the possibility
of it occurring, could not have appreciated that it was likely or would be
harmed by it. None of these applies here:
- The information relates to a doctor’s professional position
and not to his or her private or family life;
- To be publicly identified
as a consultant is a mark of distinction which carries no stigma;
- The names and qualifications of all doctors registered to practise
in the UK are publicly available from the General Medical Council’s
web site.2 The GMC will confirm on request whether a particular doctor holds
the specialist
registration required to be a consultant;
- The identity of consultants
is common knowledge within the trust and amongst the GPs who refer patients
to them;
- Most NHS trusts list the names of their consultants on their
own web sites;3
- The Department has been encouraging trusts to
publish this information for years. Its own guidance says: “Many
Trusts already publish information about their clinicians and other staff.
The publication
of booklets containing
details about clinicians and their responsibilities within the Trust,
including their speciality sessions and timetables, is recognised to be
good practice…contact
telephone numbers are important too”;4
- The Department itself
publishes the names of all consultants who receive pay awards for
clinical excellence;5
- The Department is proposing to publish specific
information about the clinical performance of identified doctors and consultants;
- The identity of a consultant mentioned in a patient’s health record
must be disclosed if the patient makes a subject access request
under the DPA.
I cannot therefore see how it could be “unfair” under the DPA
to name a hospital’s consultants. That anyone should think it necessary
to conceal the numbers of consultants on data protection grounds is incomprehensible.
The Act also requires that at least one of the conditions set out in
Schedule 2 should be satisfied. One relevant condition is in paragraph
5(b), which permits
disclosure where this is necessary for the exercise of an authority’s
statutory functions. A trust could not function effectively if the identities
of its consultants were secret. Indeed they are freely available within the
hospital, must be available to a patient under that consultant’s care
and are normally mentioned on any hospital appointment letter.
Paragraph 6(1) of the Schedule provides another basis for disclosure,
where this is in the legitimate interests of the applicant or the public
and is
not unwarranted because of any prejudice to the individual’s legitimate interests.
Patients are entitled to express a preference for a particular consultant when
discussing a referral with their GP. They can hardly do this if the names of
consultants are secret. The public are also entitled to know if a particular
department has too few consultants to function properly. It is hard to see
what possible harm to the consultant’s legitimate rights should be
set against these interests.
I am raising this at such length, and publishing this letter, because we
are so concerned at the inappropriate reliance on the DPA to justify the
unnecessary
withholding of information about those acting in a public capacity. If the
Department of Health, which is assumed to be an authority on confidentiality
issues, adopts the extreme position of refusing to say how many consultants
work in a hospital department, other authorities are likely to follow suit
and no statistic will be safe from censorship.
In this case, it may be that some stock answer, designed to protect the
identities of, say, small numbers of patients with distinctive health
conditions, is
being rigidly applied without reference to the actual circumstances of
the case.
This is damaging to the Department’s own interests, since any suggestion
that it adopts an unthinking approach to data protection will undermine
its credibility on the critical issue of patient confidentiality.
I therefore hope that the specific figures (and guidance) will be disclosed
and that the Department will review its approach to similar requests in future.
Yours sincerely,
Maurice Frankel
Director
Endnotes
- 28 Jan 2003, Col. 824W; 15 Mar 2002, Col. 1291W
- http://www.gmc-uk.org/register/default.htm
- See for example: http://www.moorfields.org.uk/AboutUs/Moorfields/Consultants;
http://www.addenbrookes.org.uk/serv/clin/oncol/oncol_consultants.html; http://www.whittington.nhs.uk/default.asp?c=249&t=1,151
- NHS Executive, Guidance on Implementation of the Code of Openness in the
NHS, 1995. Annex A. NHS Trusts, paragraph 3.6.
- http://www.doh.gov.uk/accea/index.htm
- Department of Health press release, 17/1/02 'Governmen Response to Bristol
Royal Infirmary Report', http://www.doh.gov.uk/bristolinquiryresponse/press0030.htm
- Data Protection (Subject Access Modification)(Health) Order 2000, Article
8.
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