Room 317 Richmond House
79
Whitehall
London SW1A 2NL
Telephone: 020 7210 5000
Direct Line: 020 7210 5028
Email: [email address]
18
August
2009
Dear Ms Bennett
FREEDOM OF INFORMATION ACT (FOIA): REQUEST FOR INFORMATION ON
THE “THREE INQUIRIES”: AYLING; KERR-HASLAM AND NEALE ENQUIRIES:
CASE REF: 421417
Thank you for your further email dated 13 June requesting further information
concerning the Ayling, Kerr-Haslam and Neale Inquiries. I am sorry for the delay in
responding to your follow up request, which we have handled as a request for an
internal review.
Ms Ling Woo originally wrote on your behalf on 18 May about three inquiries as
follows:
“ I would be grateful if you could answer the following:
1.Why the 3 Inquiries were set up under section 2 of the NHS Act
1977 rather than section 84 of the NHS Act 1977? As you will be
aware, Inquiries constituted under s2 do not have powers of
compulsion, but can write to ask that the Secretary of State use
his power to compel witnesses etc.
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2. Was the reason to limit the scope of the Inquiries to local NHS
procedures (and thus prevent examination of other agencies such as
the GMC)?
3.If so, why did the DH want to limit the scope of the 3 Inquiries
in this way?
4. Why did the Secretary of State create the 3 Inquiries to share a
Secretariat, legal team and budget (thus pooling resources), yet
fail to take the opportunity to create a benchmark for Health
Inquiries?
5. Why did the Secretary of State decide not to use the 3 Inquiries
to create a benchmark by which to assess patient complaints
overall?
6. Why was the Secretary of State not interested in whether
information from the 3 Inquiries was connected either within or
across organisations?
7. Why were the Inquiries not tasked with assessing culpability?
8. If Inquiries are to be seen as thorough or robust, how can they
be if they do not determine what happened in each alleged incident?”
The Department of Health responded as follows:
“I am afraid that Mr or Ms Woo does not say what the three inquiries are. Without
this information I am afraid that the Department of Health is unable to comment.”
You wrote again to the Department of Health on 19 May as follows:
“Lord Darzi of Denham (Parliamentary Under-Secretary, Department of
Health; Labour) | Hansard source stated:
'The NHS Redress Act 2006 is a piece of framework legislation that will need to be
enacted through secondary legislation. The department has continually believed that
putting in place the appropriate secondary legislation for this piece of work will
require considerable stakeholder involvement to discuss the detail around the
working of any scheme. This would mean that any
legislation could not be implemented any earlier than at least 2010.
The department considers it is currently more important to embed
the general principles of wider redress across the National Health
Service—those of apologies and explanations, a spirit of openness,
a culture of learning from mistakes and robust investigation—rather
than focusing on financial redress only for those cases:
which are of low monetary value (currently envisaged to be under £20,000);which
satisfy set principles in tort law; and where financial compensation would be
appropriate.
The significant and important area of work around complaints reform
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is currently underway and will be implemented in April 2009. It will lay the general
foundations of redress, in its wider sense, across health and social care by:
putting the patient or service user at the heart of any complaints
process and ensuring that it will be easier and simpler for people
wishing to make a complaint;moving to a more open, accessible,
flexible and sensitive approach to responding to complaints; ensuring robust and
appropriate investigation; emphasising the benefits of responding to complaints
properly to help improve services; and learning from mistakes.
Once these principles are embedded across health and social care organisations,
applying redress measures more specifically to any particular scheme or initiative
(such as in the area of clinical negligence) can be considered further.'
Is there any intention by the Department of Health (or the wider government) to
extend the "general principles of wider redress" to criminal cases committed by
health professionals against patients? Examples of such cases would include
Shipman, Clifford Ayling, William Kerr, Michael Haslam, Peter Green, Beverly Allitt,
Paul Cobb etc.
Is it intended that the Redress Scheme would include vicarious liability for such
(criminal) "wrongs" and thus provide compensation in the same way as it will for
clinical negligence cases?
I would appreciate your considered response to these questions.”
The Department of Health responded on 16 June as follows:
“The intention of the NHS Redress Act is to improve the system for handling and
responding to clinical negligence claims by providing for the establishment of a
scheme to enable settlement, without the need to commence court proceedings, of
certain claims which arise in connection with hospital services. Under this Act, a
scheme may only apply to cases involving tort, which is in law a civil wrong arising
from an act or failure to act for which an action for personal injury or property
damages may be brought.
It would not be for the Department of Health to introduce mechanisms through either
legislation or otherwise for a compensatory/redress scheme for deliberate criminal
acts which would be subject to criminal court proceedings.”
You responded on the same date as follows:
“Thank you for answering my initial questions on the NHS Redress
Scheme. I trust that you will, in time, answer my additional
questions on the same matter.”
You wrote subsequently on 5 June to provide some clarification as follows:
“This is a poor excuse for not responding to an FOI Request. I am of course referring
to the Ayling Inquiry, the Kerr-Haslam Inquiry and the Richard Neale Inquiry which
were known by parliament and referred to in the Inquiries' Report themselves as 'The
3 Inquiries' because (as I said in my request) they shared a legal team, budget,
secretariat, Terms of Reference etc. From that
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information, it is difficult to understand how you could fail to identify the Inquiries in
question. I trust you are not attempting to use my response today as "clarification" to
extend the FOI (hard) time limit for another 20 working days?
It is totally unacceptable that you have taken this length of time to pettily ask which
Inquiries I am referring to and I shall therefore seek an internal review if you do not
respond to my initial request within the statutory time limit.”
The Department of Health responded on 12 June as follows:
“I am sorry that you feel my colleague’s reply of 5 June did not address your original
concerns and also that it was not as timely as you would have referred. The
Department replies to all correspondence as quickly as possible and aims to answer
all letters and emails within 20 working days. However, the Customer Service Centre
receives a great deal of correspondence and it is not always possible for officials to
respond to communications as quickly as they would hope. Please let me assure
you that the Department treats correspondence from the public as a priority. Every
effort is made to ensure that response times are kept to a minimum.
Firstly, I would like to advise you that the Department is dealing with your email as a
general enquiry to the Department of Health, rather than as a request made under
the Freedom of Information (FOI) Act, although you have cited it when writing to us.
This is because the FOI Act gives a right to obtain recorded information such as
archived documents, reports, communications and statistics. It does not extend to
such sources of information as officials’ memories, reasons for a Government
decision, or requests for the Department’s opinion regarding the state of the law,
unless these are to be found in actual pre-existing documents.
With regard to the issues raised in your original email of 18 May, Section 2 of the
NHS Act 1977 was believed to be t he most appropriate way of obtaining compliance
with the Inquiry team. There is a long standing discussion on whether compulsion
helps or hinders a private, inquisitorial inquiry, with no clear conclusion either way. I
can also confirm that Section 2 was not used in order to limit the scope of the
Inquiries to local NHS procedures.
With regard to your issue over the pooling of resources, the three Inquiries did not
share a secretariat or legal team, although some members of it were common to all
three Inquiries. It is not clear what you mean exactly when you refer to creating ‘a
benchmark for Health Inquiries’, but whatever that does mean, I can assure you that
this was not its purpose. Each of the Inquiries reported themes common to each
other, and each dealt appropriately with the handling of complaints within the terms
of reference that each was set.
The Department is also not aware that the former Secretary of State was not
interested in whether the information from the three Inquiries was connected within or
across organisations, as you suggest.
Turning to your concerns about assessing culpability, the Inquiries were tasked with
investigating the responses to incidents, concerns and complaints, and how they
were handled by the NHS. Culpability was described for those failures in all three
reports.
Finally, the Inquiries were tasked with examining the responses of the NHS, and not
the original incidents themselves. They approached that task both thoroughly and
robustly. “
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You wrote again to the Department of Health on 13 June as follows:
“I would appreciate the Department treating this as an FOI request because all of the
information I seek should be in published form, such as the Inquiry Reports
themselves, press releases, appointment documents etc. I would also appreciate
someone who has actual knowledge of the 3 Inquiries addressing my questions,
because you have failed to answer my questions correctly.
Firstly, the Ayling Inquiry was granted powers of compulsion under s84 of the NHS
Act, it says so in the Inquiry Report and also in the Select Committee on
Administration's (into budgets for recent notable Inquiries) minutes of evidence.
Secondly, you state 'With regard to your issue over the pooling of resources, the
three Inquiries did not share a secretariat or legal team, although some members of it
were common to all three Inquiries.' How can you say this when each of the Inquiry
Reports state that they had the same Secretariat, Solicitor, Deputy Solicitor and
Commissioning Manager for Experts? In fact, it would
be fairer to merely point out that they employed their own Counsel. Have you actually
read any of the Inquiry Reports?!!! If you had, then you would realise that you have
made an error.
Can I bring to your attention s.1.13 on page 9 of the Ayling Inquiry Report which
reads: 'Pauline Fox was appointed as Secretary to the 3 Inquiries and in October
2001 she established a secretariat to serve THOSE Inquiries. She left the 3 Inquiries
in December 2002 to take up another appointment. Colin Phillips was appointed to
replace Pauline Fox and he took up post in March 2003. John Miller was appointed
Assistant Secretary to the Inquiry. Michael Fitzgerald was appointed Solicitor to the 3
Inquiries; subsequently he was assisted by Duncan Henderson who was appointed
Deputy Solicitor to the 3 Inquiries... Dr Ruth Chadwick was appointed as
Commissioning Manager (Experts) to the 3 Inquiries.'
On page 2 of the Foreword, The Kerr-Haslam Inquiry Report reads: 'The Secretariat
was led by Colin Phillips, supported by his team of John Miller, Kypros Menicou
[etc.]..Dr Ruth Chadwick ensured that the team of Experts..Michael Fitzgerald and
Duncan Henderson got through a huge amount of work that sadly has become the lot
of solicitors to Inquiries.'
The Neale Inquiry Report reads:
'Michael Fitzgerald and Duncan Henderson conducted a fair but deeply penetrating
investigation of the evidence...The Secretariat Team was also of the highest calibre.
Led initially by Pauline Fox ably supported by Deputy Secretary Kypros Menicou, the
Secretariat was well established when I was appointed in September 2002. Kypros
then led the Secretariat during difficult months and ensured the smooth running of
the oral hearings, which took place between early summer and September 2003. I
was fortunate to have Colin Philips appointed as replacement Secretary...The Inquiry
was also assisted by Dr Ruth Chadwick'
Thirdly, when I talk of "culpability", I mean of the criminal culpability (i.e. guilty verdict)
of the Defendants, Ayling, Kerr and Haslam.
I haven't bothered to respond to the rest of your so-called response to my request
because it is patently clear that you do not have the necessary knowledge of the
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subject matter required to answer my questions. I would therefore appreciate you
passing on my request to a more knowledgeable colleague.”
The Department of Health’s Complaints Manager, David Burke subsequently wrote to
you as follows:
“Thank you for your further email of 13 June asking for information about the Ayling,
Kerr-Haslam and Richard Neale inquiries. Your email was passed to me as the
Complaints Manager for the Department and I am sorry for the delay in replying to
you.
I have asked the Department’s Freedom of Information (FOI) team to consider your
request within the terms of the FOI Act, as you have asked. They will be doing this
over the next few weeks and we will then contact you again. The time taken to
consider your request has exceeded the 20 work days stipulated by the FOI Act and I
am also sorry that this is the case.
As Martin Gatty’s email explained, the Department’s FOI team and Customer Service
Centre decided not to consider your original questions under the FOI Act. This was
because they felt that your questions were mainly asking for opinions and viewpoints,
rather than for specific records.
However, you have made clear in your more recent email that you would like the
Department to consider your request under the FOI Act because you would like to
see any recorded information that relates to your questions.
I realise you may be disappointed by the length of time that this process has taken,
but I hope you will be satisfied with this outcome. I will be monitoring the progress of
the investigation into your request, and if you have any questions in the meantime
you can email me at [email address]: please mark any such email for the
attention of the Complaints Manager.”
As I explained in my email of 3 August to you, the information contained within the
Department of Health’s responses to you specifically relating to the “Three Inquiries”
(Ayling, Kerr-Haslam & Neale Inquiries) had been provided on the basis of the
corporate memory of a key senior policy official leading the work of the Inquiries at
the time.
To re-iterate what I had explained in my note to you of 3 August. You will appreciate
that requests under the Freedom of Information Act provide applicants with the right
to available officially recorded information and not official’s corporate memories.
Nevertheless, we wanted to provide you with a helpful response at that time. That is
why we dealt with your correspondence originally as a general complaint. We have
honoured your request to deal with your further correspondence as a Freedom of
Information request under the provisions of the Freedom of Information Act on the
basis that there may be officially recorded information available to address the further
points you have made.
We have now investigated whether there are official records that may help with your
request on some of the following topic areas you cite, e.g. 1. the setting up of the
Inquiries; 2. their Terms of Reference & scope; 3. shared Secretariat arrangements;
4. possible “benchmarking” to assess patient complaints overall; 5. advice received
by the Secretary of State at that time related either within or across organisations; 6.
assessment of culpability; and 7. the robustness of the Inquiries. However, our policy
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team’s files were not set up in such a way to easily identify, extract & prepare
documentation for release that would address your specific points.
We have considered and interrogated the wide range of official file records kept on
the Ayling, Kerr-Haslam & Neale Inquiries, which would assist in providing responses
to your questions.
We have considered the range of recorded information we would have to allocate a
dedicated resource to identify, extract and, where appropriate, prepare (redact) such
official information to address your request. Unfortunately, we are unable to provide
you with the information you request as this would breach the prohibitive costs limits
under the Section 12 exemption of the Freedom of Information Act.
In practical terms, the cost of complying with your request will exceed the appropriate
limit because it will take more than three and a half working days (the equivalent of
the £600 cost limit) to identify and extract material that can be released under the
Freedom of Information Act. Unfortunately, it is not possible to advise how much the
cost of meeting your request will exceed the limit as we would only be able to provide
an estimate costs by fully evaluating all the relevant files that fall within scope of your
request (s). A significant number of these are physical files, which are not available
electronically. As you may appreciate, the use of this exemption is perfectly
legitimate for the Department of Health in this specific instance. However, we can
confirm that there are potentially 505 physical files plus 139 electronic files within
scope of your request (s). I have viewed a small sample of the documents concerned
and estimate it would take an average of 5 minutes to read and prepare any relevant
document (s), reckoning an average of 2 pages per document and estimated
processing time of three minutes per page, giving a total effort required of just over
28 hours to process this part of the request. Each document would need to be
redacted to remove the personal details of junior staff, and may need to be redacted
in respect of other material.
Unfortunately, this exceeds the appropriate limit of £600 provided in the Freedom of
Information and Data Protection (appropriate limit and fees) regulations 2004.
I am sorry to respond at this late stage with what will, I acknowledge, will be a
disappointing reply. However, we would be more than pleased to re-consider any
further request you may wish to submit, which you may be able to narrow-down
accordingly to bring any such request outside of the Section 12 exemption on
prohibitive costs.
If you are dissatisfied with the handling of your request, you have the right to ask for
an internal review. Internal review requests should be submitted within two months of
the date of receipt of the response to your original letter and should be addressed to:
Head of the Freedom of Information Team
Department of Health
Room 317
Richmond House
79 Whitehall,
London
SW1A 2NS
Email: [email address]
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If you are not content with the outcome your complaint, you may apply directly to the
Information Commissioner’s Office (ICO) for a decision. Generally, the ICO cannot
make a decision unless you have exhausted the complaints procedure provided by
the Department. The ICO can be contacted at:
Information Commissioner’s Office,
Wycliffe House,
Water Lane,
Wilmslow,
Cheshire, SK9 5AF
Yours sincerely
TONY DOOLE
Senior Casework Manager, Freedom of Information Team
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