Dear Parliamentary and Health Service Ombudsman,

This information request relates to DN FS50823461:

https://ico.org.uk/media/action-weve-tak...

The following extract is from paragraph 40:

'This means that the advice and identity of the clinical advisors may be shared with the person who makes the complaint and the organisation that the complaint is about. The complainant may receive the names and advice of clinical advisors in the draft report, which would later be anonymised in the final report.'

1. Please provide the number of times the identity of the clinical advisor was shared with (a) the person making the complaint and (b) the organisation about which the complaint was made in respect of the 50 most recently completed final reports. Please also provide the dates the final reports were completed.

The following extract is from paragraph 39:

"Its current policy is that the clinical advisors will remain anonymous to safeguard their objectivity and privacy so that they are not exposed to public pressure and harassment."

2. In respect of the 50 final reports referred to part 1 of my request, please provide the number of times your records reveal that clinical advisors were exposed to either (a) public pressure or (b) harassment. Additionally, please provide brief details of the unwelcome intrusion identified in each case.

Yours faithfully,

D Moore

Dear Parliamentary and Health Service Ombudsman,

CLARIFICATION:

Where I wrote: 'in respect of the 50 most recently completed final reports' I meant final reports involving the advice of a clinician.

Yours faithfully,

D. Moore

informationrights@ombudsman.org.uk, Parliamentary and Health Service Ombudsman

Thank you for contacting the Parliamentary and Health Service Ombudsman’s (PHSO) Freedom of Information and Data Protection Team. This is to confirm we have received your request.
If you have made a request for information under the Freedom of Information Act 2000 or Environment Information Regulations 2004, we will respond to your request within 20 working days in accordance with the statutory time frames set out in both Acts.
If you have made a request for personal information held by the PHSO, your request will be processed as a Subject Access Request under the provisions of the Data Protection Act 2018 and will be responded to within one calendar month in accordance with the statutory time frame set out in the Act.
We may contact you before this time if we require further clarification or if we need to extend the time required to complete your request.
For Subject Access Requests, we will send any personal information via secure email, unless you instruct us differently. To access the information on the email we send, you will need to sign up to our secure email service. Details can be found on our website using the link below:
www.ombudsman.org.uk/about-us/being-open...
If you require us to post your personal information to you instead you will need to inform us of this and confirm your current address as soon as possible.

InformationRights, Parliamentary and Health Service Ombudsman

3 Atodiad

Dear D Moore

 

RE: Your information request: R0000816

                            

I write in response to your email dated 4 August 2019 regarding your
request for information to the Parliamentary and Health Service Ombudsman
(PHSO) which has been handled under the Freedom of Information Act 2000.

 

Your request has been considered vexatious under Section 14(1) of the
Freedom of Information Act 2000. Section 14 (1) states: ‘Section 1(1) does
not oblige a public authority to comply with a request for information if
the request is vexatious’.

 

We consider that your request is burdensome with a level of unjustified
disruption. To respond to this request is considered to be disruptive,
burdensome and the PHSO would have to expend a disproportionate effort to
meet the request which engages section 14(1) whereby we cannot reasonably
be expected to comply.

 

If you believe we have made an error in the way I have processed your
information request, it is open to you to request an internal review.  You
can do this by writing to us by post or by email to
[1][Parliamentary and Health Service Ombudsman request email]. You will need to specify that the
nature of the issue is and we can consider the matter further. Beyond
that, it is open to you to complain to the Information Commissioner’s
Office ([2]www.ico.org.uk).

 

Yours sincerely

 

Freedom of Information/Data Protection Team

Parliamentary and Health Service Ombudsman

W: [3]www.ombudsman.org.uk

 

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Gadawodd J Roberts anodiad ()

D Moore,

You might be interested in this decision:

http://www.bailii.org/uk/cases/UKFTT/GRC...

Judge Snelson goes to town on s14. It's a majority decision on 'the vexatious requests point' (the view of the minority is also included). It starts in paragraph 44, but things kick off in paragraph 47.

Paragraphs 29 to 31 contain a lot of useful material too.

Paragraph 53 includes:

'To return to the words of Arden LJ in the Dransfield case, the “high standard” which that provision sets has not been met and the ground for depriving Dr King of her “constitutional right” has not been established.'

PHSO is attempting to deprive you of your "constitutional right".

Dear Parliamentary and Health Service Ombudsman,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Parliamentary and Health Service Ombudsman's handling of my FOI request 'Clinical advisors - exposed to public pressure and harrassment?'.

I firmly believe you have misapplied the test of vexatiousness to my request. You do not seem to have considered the reasoning of Arden LJ (reported at [2015] 1 WLR 5316):

http://www.bailii.org/uk/cases/UKUT/AAC/...

Paragraph 72 states:

'Before I leave this appeal I note that the UT held that the purpose of section 14 was "to protect the resources (in the broadest sense of that word) of the authority from being squandered on disproportionate use of FOIA" (UT, Dransfield, Judgment, para. 10). For my own part, I WOULD WISH TO QUALIFY THAT AIM AS ONE ONLY TO BE REALISED IF THE HIGH STANDARD SET BY VEXATIOUSNESS IS SATISIFIED. This is one of the respects in which the public interest and the individual rights conferred by FOIA have, as Lord Sumption indicated in Kennedy (para. 2 above), been carefully calibrated.'

(I have used upper case to add emphasis)

I would also draw your attention to paragraph 53 of King v IC (EA/2018/0209):

http://www.bailii.org/uk/cases/UKFTT/GRC...

'53. We have considered all the circumstances of the case, mindful of the need for a holistic approach. Stepping back and reviewing the overall picture, we are satisfied that the Trust has not made out its case that the surviving requests were vexatious. Accordingly, we consider that the Commissioner was wrong to find thats14(1) was correctly applied. To return to the words of Arden LJ in the Dransfield case, the “high standard” which that provision sets has not been met and the ground for depriving Dr King of her “CONSTITUTIONAL RIGHT” has not been established.'
(emphasis added)

Of all public authorities, I would have thought the PHSO one of the most attune to the significance of depriving individuals of their constitutional rights.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/c...

Yours faithfully,

D. Moore

informationrights@ombudsman.org.uk, Parliamentary and Health Service Ombudsman

Thank you for contacting the Parliamentary and Health Service Ombudsman’s (PHSO) Freedom of Information and Data Protection Team. This is to confirm we have received your request.
If you have made a request for information under the Freedom of Information Act 2000 or Environment Information Regulations 2004, we will respond to your request within 20 working days in accordance with the statutory time frames set out in both Acts.
If you have made a request for personal information held by the PHSO, your request will be processed as a Subject Access Request under the provisions of the Data Protection Act 2018 and will be responded to within one calendar month in accordance with the statutory time frame set out in the Act.
We may contact you before this time if we require further clarification or if we need to extend the time required to complete your request.
For Subject Access Requests, we will send any personal information via secure email, unless you instruct us differently. To access the information on the email we send, you will need to sign up to our secure email service. Details can be found on our website using the link below:
www.ombudsman.org.uk/about-us/being-open...
If you require us to post your personal information to you instead you will need to inform us of this and confirm your current address as soon as possible.

Gadawodd J Roberts anodiad ()

D Moore,

You might be interested in this recent UT decision ( EA/2017/0105):

"7.14 Public authorities should avoid using section 14 for burdensome requests unnecessarily. On this basis they should always consider whether section 12 applies in the first instance. For example, if a public authority considers that locating and extracting the information in scope would exceed the cost limit, section 12 is likely to be most appropriate. However, if, for the reasons set out in paragraphs 7.12 to 7.13 above, section 12 cannot apply they should consider refusing the request using section 14(1)."

https://assets.publishing.service.gov.uk...

Dear Parliamentary and Health Service Ombudsman,

If I receive no satisfactory response soon to my request - "Clinical advisors - exposed to public pressure and harassment?" - I'll have no option but to contact the ICO.

Yours faithfully,

D. Moore

Gadawodd D. Moore anodiad ()

ICO contacted:

"Further to our correspondence of 29 November 2019, your complaint has been accepted as eligible for further consideration and will be allocated to a case officer as soon as possible."

Gadawodd D. Moore anodiad ()

ICO latest:

"...I will write to the public authority and ask it to revisit your request. It may wish to reverse or amend its position. If it does, it will contact you again directly about this.

In any event, it must provide us with its full and final arguments in support of its position. Once I receive its arguments, I will consider its reply before either contacting you to discuss the matter further or preparing a decision notice."

Gadawodd J Roberts anodiad ()

At the PACAC annual PHSO scrutiny hearing on 18 March 2020 Rob Behrens said:

“Sir Liam [Donaldson] said that after we had had consultation with regulators it would be appropriate for us to give serious consideration to naming the clinical advisers that we use in specific cases. If we did that it would make a fundamental change to the perception of transparency that the organisation currently holds. The issue, though, is sensitive because some of our clinical advisors fear as a result of experience if their names were published they would be trolled by some irresponsible complainants who would use their dissatisfaction with the handling to report them to the professional body.”

He stressed he was looking at the matter with great care.

But look at what he means by 'trolling': it's reporting a clinical advisor to their professional body. If the clinical advisor has done her job well she has nothing to fear.

Gadawodd D. Moore anodiad ()

I was contacted by the ICO about this in early April. Because of the Covid-19 crisis it was suggested:

"In the meantime you may wish to reconsider your complaint and decide not to pursue it further. If this is the case please let us know and your case will be closed."

I did not take them up on their suggestion.

Gadawodd D. Moore anodiad ()

Notified of new IC reference number.

Gadawodd D. Moore anodiad ()

I have received the DN - vexatious request S14.

I will post a link to the DN when it becomes available on the ICO website.

I have been labelled an 'active annotator'.

Appeal sent to the FTT.

Gadawodd M Boyce anodiad ()

And what is wrong with being an 'active anotator'?

We are supposed to live in a liberal democracy where citizens can scrutinise, and yes criticise where necessary, the Government and its quangos.

When you label such 'active anotators' as vexatious then you slip inexorably towards a dictatorship.

Gadawodd D. Moore anodiad ()

M Boyce,

I forgot to mention that it was the PHSO who described me as an 'active annotator'.

But:

'The Commissioner agrees with PHSO that dealing with a large number of requests that have very limited, if any, wider public interest and no clear purpose other than to burden staff would be demoralising and distressing for those staff. The evidence suggests to the Commissioner that the complainant’s intention, at this point, is to disrupt PHSO and generally cause a nuisance.'

And:

'To very regularly submit requests to the same public authority for approximately three years (at the time of the request) is, the Commissioner considers, unusual.'

In my request for an internal review above (3/9/19) I provided the wrong link to the observations of Arden LJ. Here is the correct link (and the correct paragraph is 68):

https://www.bailii.org/ew/cases/EWCA/Civ...

Gadawodd J Roberts anodiad ()

D Moore,

You might be interested in this decision notice concerning section 14 and the Ministry of Defence dated 15 September 2020:

https://ico.org.uk/media/action-weve-tak...

IC-47061-F3Z6

Gadawodd D. Moore anodiad ()

Gadawodd J Roberts anodiad ()

Complainants have been asking for the names of clinical advisers for years. From a 2014 PHSO report:

"4.4 There has, however, been a noticeable change in tone of some of the requests for information we have received about our clinical advisers. Not only have more people specifically asked for the name and contact details of our clinical advisers than is usual but they have made it clear in doing so that they want this information so that they can challenge our decision with the clinical adviser directly.

4.5 Having discussed this with X I understand that CSA's audit of decision letters has highlighted in some cases that letters may have over emphasised the role the clinical adviser played in the decision taken on the case. I also understand the CSA will be taking steps to address this issue."

(page 12 of document reader)

https://www.whatdotheyknow.com/request/2...

Given that the clinical advisers had not seen the evidence it would not have been difficult to over emphasise their role. Currently, the PHSO is running a pilot where the clinical advisers do get to see the evidence, though few details have been provided:

https://www.whatdotheyknow.com/request/o...

Gadawodd D. Moore anodiad ()

The ICO has written to the F-tT requesting that the appeal be heard together with another appeal of mine:

"The Commissioner has now been notified of the above two appeals.

The first appeal (EA/2020/0256) concerns the Appellant’s request to the Parliamentary and Health Service Ombudsman (“PHSO”) of 16 March 2019. The Commissioner’s decision notice was issued on 21 August 2020 in which she upheld the PHSO’s claim of section 14. In accordance with the Registrar’s Directions of 26 August 2020, the Commissioner’s Response is due on 19 October.

The second appeal (EA/2020/0277) concerns the Appellant’s request of 4 August 2019 to the PHSO. The Commissioner’s decision notice was issued on 29 September 2020 in which she upheld the PHSO’s claim of section 14. The Commissioner’s Response is currently due on 29 October.

As the two appeals concern the same Appellant making requests to the same public authority who refused both requests under section 14 which was upheld by the Commissioner; the Commissioner considers that it would be appropriate for these two cases to be consolidated. As such, the Commissioner invites the Tribunal to exercise its case management powers under rule 5(3)(b) of its Rules to consolidate the above appeals.

Further, the Commissioner considers it would be a proportionate use of her limited resources to prepare one Response replying to both appeals particularly given the very minimal delay between the deadlines for the two Responses. Accordingly, the Commissioner seeks an extension until 30 October (as 29 October is a non-working day for the writer) by which to serve a Response to both appeals."

The Registrar’s Directions of 26 August 2020 referred to above concerns an incomplete Notice of Appeal that I submitted on Saturday 22 August 2020. I realised my mistake immediately and resubmitted my Notice about 30 minutes later. I assume that because of Covid, wires got crossed which resulted in the Direction.

"Directions:

1. By email sent on 22 August 2020 at 16:12 (therefore received by the Tribunal on 24 August 2020), Mr Moore sent:

1.1 A notice of appeal form which is unsigned (i.e. there is not even an electronic signature) but records his name, his address and his email address and the details of the decision he seeks to appeal against;

1.2 Decision notice number IC-45212-W1F2.

2. It is a requirement of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 that an appellant, when lodging an appeal, states the grounds on which they rely to appeal the decision (see rule 22(2)(g)).

3. It appears that Mr Moore has not provided any grounds of appeal and, therefore, there is, at present, no reason to believe that the Information
Commissioner’s Office Decision Notice is wrong and should be substituted.

4.1 Mr Moore has until 21 September 2020 to provide to the Tribunal his grounds of appeal. If by the date he sends in his grounds he has the Information Commissioner’s Office contact email address, he must copy the grounds to the Information Commissioner’s Office; if he does not have the relevant address, the Tribunal will forward the grounds to the Information Commissioner’s Office on his behalf.

4.2 Failure to comply with paragraph 4.1 above may, pursuant to rule 8(1), lead to the striking out of Mr Moore’s appeal."

Other appeal:

https://www.whatdotheyknow.com/request/a...

Gadawodd D. Moore anodiad ()

"3. The following directions apply:

3.1 These appeals will be heard together;

3.2 If it is better for a party to provide one document dealing with both appeals, they may do so;

3.3 Each party must ensure that any document provided clearly shows whether it is about both appeals or only one of them (and if so, which one);

3.4 The Information Commissioner’s response for both appeals will be due by 30 October 2020."

Gadawodd J Roberts anodiad ()

A past request that may be of interest concerning Dr Howard Myers, a former dentistry adviser to the Parliamentary and Health Service Ombudsman.

" Dr Myers is no longer practicing after voluntarily giving up his registration with the General Dental Council (GDC) in 2012.

At the time, he was due to face 18 allegations of providing poor care at a GDC hearing, following a complaint lodged by Mr Jordan."

https://www.whatdotheyknow.com/request/d...

Gadawodd J Roberts anodiad ()

Tips for caseworkers when seeking clinical advice are on page 154 of the Service Model Policy and Guidance: main guidance Version 16.0:

https://www.ombudsman.org.uk/sites/defau...

'What Good looks like

...

Please AVOID the following (as they are too general and do not invite proper use of the Clinical Standard:

“Did the GP assess Miss B appropriately and carry out sufficient investigations, in line with good clinical care and treatment?“

Was the Trust’s decision not to conduct an X-ray representative of good clinical care and treatment?”

• Predetermination

Following a Judicial Review a number of changes were introduced relating to casework and clinical advice. One such change is to address the concerns relating to predetermination of the case. We ask you not to use phrases in your requests which suggest predetermination, such as ‘It seems to me that..’ or ‘My view of the evidence is that...’'

...

'The Review found that there was a risk of errors of fact, interpretation and omission because of the ‘relatively limited level of interaction between caseworkers and advisers’ and that there was variation in the caseworker’s understanding of clinical context and clinicians’ access to information.'

Gadawodd D. Moore anodiad ()

I have submitted my reply to the Commissioner's Response. For those unaware of the process, the appellant MAY reply to the Commissioner's Response within 14 days of receiving it.

Gadawodd J Roberts anodiad ()

PACAC 23 November 2020:

https://committees.parliament.uk/oralevi...

'Q36 Lloyd Russell-Moyle: I think you have touched on this slightly, but I will ask it. Has progress been made on the recommendation of using clinical advisers? Has that been delayed at all by Covid-19?

Rob Behrens: ... We have not been able to talk to regulators about the issue of naming clinical advisers. This is a very sensitive issue. Liam Donaldson understood that some clinical advisers were fearful that if we named them in the process they would be chased after by disaffected complainants in a way that might impact on their careers. We do not want to leave ourselves in a situation where we do the right thing but we have no clinical advisers to help us do it. We need to pilot that, or think about it and talk about it. We have not got round to that yet. It is a central part of improving trust in the organisation and I am not going to let it go.'