Proposals to avoid public misconduct hearings for nurses and midwives are part of a “pattern of moves to limit the public’s right to know about NHS safety problems”, says the Campaign for Freedom of Information.
The Campaign says that a new proposal by the Nursing and Midwifery Council (NMC) to do away with most public fitness to practise hearings echoes government proposals to keep evidence about safety incidents secret.
Under the NMC proposals, where a nurse or midwife admits to having made an error, the matter will be dealt with in private without the public hearing that now takes place . Reasons for any decision will be published, but there will apparently be no published transcript. “The risk is that failings at a hospital – or by the NMC itself – will be obscured, undermining public confidence in the NHS” the Campaign says.
The same philosophy underpins Department of Health proposals for a new body to investigate significant NHS safety incidents . The Health Service Safety Investigation Body would report on its investigations but be prohibited from revealing unpublished information in response to freedom of information (FOI) requests. The Department says this would allow staff to speak freely to investigators without fear of being unfairly blamed. But the Campaign’s director Maurice Frankel said: “the secrecy would not be limited to information provided by staff involved in safety incidents. It would apply to any information from any source obtained during an investigation, including information from the NHS trust itself, independent experts or a drug or medical device manufacturer. Even test results on equipment or anonymised accounts of previous incidents would be kept secret indefinitely.”
Only limited disclosures would be allowed, for example, to the police, regulatory bodies or other NHS bodies. Journalists or campaign groups would have to persuade the High Court to order disclosure of information which is currently available under FOI.
The Campaign says “the NMC proposals reflect the same disturbing philosophy: that patient safety is best served by addressing problems in private.”
 The new NMC strategy is set out in a draft consultation paper to be discussed by the NMC board on 28 March 2018
 ‘Draft Health Service Safety Investigations Bill’ published by the Department of Health in September 2017
The Campaign has responded to the Cabinet Office’s consultation on a draft revised code of practice under section 45 of the Freedom of Information Act. The revised code would replace the current one that was issued in November 2004, shortly before the Act came fully into force.
Although the draft revised code is said to provide guidance on ‘best practice’ under the Act we think it needs to go significantly further to justify that description. As it stands the proposed code:
- does not fully reflect changes in the interpretation of the Act resulting from Upper Tribunal and court decisions
- describes as ‘best practice’ some measures which are required under the Act, implying that these statutory requirements are optional
- fails to properly explain the advice that should be provided when requests exceed the cost limit and how the Act’s provisions on vexatious requests should operate
- is weaker in key respects that the 2004 version of the code it is intended to replace, omitting numerous helpful passages from it. The effect is to limit rather than extend the spread of good practice.
In the Campaign’s view the new code should be substantially improved before it is introduced.
By Elisa.rolle (Own work) [CC BY-SA 3.0 (https://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons
The Freedom of Information Act (FOIA) operates too slowly to contribute to the Brexit debate, according to the Campaign for Freedom ofInformation.
The Campaign’s director, Maurice Frankel, has submitted a witness statement to the High Court supporting an attempt to use the common law and Article 10 of the ECHR instead of FOIA to obtain government studies on Brexit. The statement says the FOI process is too slow to obtain them in time to inform public debate before the Brexit deadline. The UK is due to leave the EU at the end of March 2019.
A draft Bill set out in today’s Queen’s Speech will lead to an unnecessary layer of secrecy about investigations into patient deaths and injuries, says the Campaign for Freedom of Information.
The draft Patient Safety Bill will put the work of the newly formed Healthcare Safety Investigation Branch (HSIB), which investigates selected NHS safety incidents, on a statutory basis. The HSIB will be required to publish reports of its investigations, but will be prohibited by law from revealing any other information obtained during its investigations. FOI requests for such information will automatically be refused.
The Campaign has joined ARTICLE 19 and the Access to Information Programme (Bulgaria) in a joint intervention in a European Court of Human Rights (ECtHR) case involving GCHQ. GCHQ, like other security bodies, is not covered by the UK FOI Act. Information which public authorities hold about, or which has been supplied by, security bodies is protected by an absolute exemption.
The case has been brought by Privacy International and follows a recent decision of the Grand Chamber of the ECtHR that Article 10 of the European Convention on Human Rights provides a right to information from public authorities. The right applies to information requested by someone acting in a ‘social watchdog’ role seeking to contribute to public debate on a matter of public interest. The joint intervention argues that the UK’s blanket ban on any FOI disclosure of any kind about the security services in all circumstances is disproportionate and so breaches Article 10. It includes an analysis by the Campaign of the position of security services under the FOI laws of 44 Council of Europe states (paragraphs 41-58).
New proposals by the Law Commission to reform the 1989 Official Secrets Act (OSA) could lead to the imprisonment of civil servants and journalists for disclosing information that would be available to anyone asking for it under the Freedom of Information Act, say the Campaign for Freedom of Information (CFOI) and ARTICLE 19.
The Law Commission is proposing to make it easier to secure convictions under the 1989 OSA by weakening the test for proving an offence. But the proposed weaker test would catch information that would have to be disclosed under the Freedom of Information (FOI) Act, say the CFOI and ARTICLE 19.
In a joint response to the Law Commission proposals, ARTICLE 19 and the CFOI are concerned that:
- Whistleblowers and journalists could be convicted for revealing information about defence, international relations or law enforcement that is unlikely to cause harm
- Leaking information that anyone could obtain by making an FOI request could be an offence
- It would not be a defence to show that the information had already lawfully been made public under the FOI Act or otherwise – unless the information had also been ‘widely disseminated’
- Someone revealing danger to the public, abuse of power or serious misconduct would not be able to argue that they acted in the public interest
- Maximum prison sentences on conviction, currently 2 years, would be increased.
Photo by Dương Trần Quốc
When: Monday 22nd May 2017
Where: Free Word Centre, 60 Farringdon Road, London EC1R 3GA
Time: Registration 9:45 am, course 10 am – 5:00 pm
Do you want to learn how to use the Freedom of Information Act? Are you already using the Act, but want to know more about how key provisions are being interpreted?
Making a FOI request is straightforward but making an effective request can be more difficult. Requests that ask for too much information can be refused – and some information may be exempt. But a well thought-out request can have a powerful impact, revealing that a policy isn’t working, an authority isn’t doing its job or generating key information for your research.
This practical course is designed to help campaigners, researchers, journalists and others make the most of the Act and the parallel Environmental Information Regulations. It explains the legislation, shows how to draft clear and effective requests, describes how to challenge unjustified refusals and highlights critical decisions of the Information Commissioner and Tribunal. The course’s interactive sessions will encourage you to work out how best to apply the Act in a variety of situations. The course is aimed at both beginners and those who are already using the Act but want to do so more effectively.
A new legal block on the disclosure of information about NHS safety investigations will fuel public suspicion of cover-ups and protect poor quality inquiries from scrutiny, says the Campaign for Freedom of Information.
The Department of Health has proposed new arrangements for investigating serious hospital safety incidents. The aim is to encourage staff to speak frankly to investigators about mistakes they may have made without fear of being victimised. As a result, only the investigation report could be published. A new legal prohibition on disclosure would prevent the actual evidence obtained by investigators from being released under the Freedom of Information (FOI) Act. A hospital would not be able to release it voluntarily even if it wanted to and Parliament would not be able to obtain it either.
The Campaign took part in an event on 8th December 2016 to celebrate the 250th anniversary of the world’s first ever freedom of information law, adopted in 1766 by Sweden and Finland which at the time were one country. The event was hosted by ARTICLE 19, the Embassy of Sweden, the Embassy of Finland and the Information Law and Policy Centre at the Institute of Advanced Legal Studies.
The evening session provided the first opportunity for many people to hear from the new Information Commissioner, Elizabeth Denham, on her priorities for Freedom of Information.
In a landmark decision, the Grand Chamber of the European Court of Human Rights has ruled in the case of Magyar Helsinki Bizottság v. Hungary that there is a right to information from public authorities under Article 10 of the European Convention on Human Rights. The UK’s Supreme Court had previously found that the Strasbourg court’s case law had not established this – but the new decision clearly does so.