Wellington House
23 August 2018
133-155 Waterloo Road
London SE1 8UG
T: 020 3747 0000
Dr Colin Iain Campbell
E: xxxx.xxxxxxxxx@xxx.xxx
By email
W: improvement.nhs.uk
xxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxxxxx.xxx
Dear Dr Campbell,
Request under the Freedom of Information Act 2000 (the “FOI Act”)
I refer to your email of
2 August 2018 in which you requested an internal review of NHS
Improvement’s decision of 17 July 2018 in relation to your original request under the FOI Act
of 19 June 2018 as follows:
“I am writing to request an internal review of NHS Improvement's handling of my FOI request
'Copies of letters and emails'.
We wish an internal review with respect to the information referred to here:
"We consider that the commercial interests of Brookson Direct would be likely to be
prejudiced if we disclose their paper titled “managed services in the NHS” (pages 9 to 12 of
the information annexed"
Many thanks for your response much of which has been extremely helpful.
I note you have attempted to claim a Section 43 exemption. Whilst I note you have not
specified which part of section 43 you are claiming an exemption under, which is a
requirement, from the written text we suspect this to be Section 43 (1) 'Trade Secrets',
although you may be attempting to argue Section 43 (2).
Both of these are subject to a public interest test and we wish you to consider the following
public interest representations and, should you still refuse to disclose the information please
provide your full reasoning:
PUBLIC INTEREST TEST REPRESENTATIONS, REGARDING INAPPLICABILITY OF FOIA
SECTION 43(1) & SECTION 43(2) EXEMPTIONS:
The numerous NHS trusts may be contracting with a non CQC regulated healthcare/medical
services provider for the provision of medical/healthcare services to save VAT. Something
which appears Martin Innes, whom we understand from industry talk may be leaving your
employment to work with the direct engagement firm you have named, may have knowledge
of and not have prevented.
NHS Improvement is the operational name for the organisation that brings together Monitor, NHS Trust Development Authority,
Patient Safety, the National Reporting and Learning System, the Advancing Change team and the Intensive Support Teams.
As per our understanding, it may be a criminal offence to provide Healthcare/Medical services,
as they are set out under Schedule 1 of the Health and Social Care Act 2008, if not CQC
regulated and, as such, the public interest in disclosure is overwhelming if a lot of NHS
Improvement regulated NHS trusts are contracting with a medical service provider which is
not CQC registered (the provider in question supplies you with locum health workers through
an umbrella which apparently claims to 'wholly employ' thousands of health workers).
You can confirm lack of CQC registration on the CQC's website: www.cqc.org.uk - select 'all
services'
Once you have verified the provider is unregulated, if you are still unsure on the public interest
front could you please call the CQC and verify if they need registration due to the nature of
their supply or if they do not need registration as they are supplying workers as an agency
might.
You can call the CQC on this number to do so: 03000616161 (also available on their website
under 'contact us')
Once this public interest basis for review has been confirmed at your side you are free to
consider whether to claim an exemption but please provide justification for your answer with
reference to the above public interest representations should you choose not to disclose the
contract (this is a requirement of claiming such an exemption under the act).”
You later clarified this in an email of 6 August 2018, which said:
“
A small clarification: 'should you choose not to disclose the contract' in the preceding email
should read should you choose not to disclose the redacted information.”
Decision
I have decided to uphold the original decision to withhold the information within the document
entitled “Managed services in the NHS” (pages 9-12 in the Annex originally disclosed), which
is the subject of this internal review. However, I am withholding the information under section
41 of the FOI Act rather than section 43(2) as previously relied on. I have detailed my reasons
below.
Section 41
Section 41(1) provides that information is exempt if:
“(a) it was obtained by the public authority from any other person (including another public
authority) and
(b) the disclosure of the information to the public (otherwise than under this Act) by the public
authority holding it would constitute a breach of confidence actionable by that or any other
person.”
The test in section 41(1)(a) is met as the information was obtained by NHS Improvement from
a third party, in this case Brookson Direct.
NHS Improvement is the operational name for the organisation that brings together Monitor, NHS Trust Development Authority,
Patient Safety, the National Reporting and Learning System, the Advancing Change team and the Intensive Support Teams.
The test in section 41(1)(b) is met if it is demonstrated that disclosure would amount to an
actionable breach of confidence. This means:
(i)
the information must have the necessary quality of confidence about it;
(ii)
the information must have been imparted in circumstances giving rise to an obligation
of confidence;
(iii)
disclosure must amount to an unauthorised use of the information to the detriment of
the confider.
NHS Improvement considers that disclosure of the withheld information would amount to an
actionable breach of confidence.
The information in question was provided to NHS Improvement in confidence and we consider
that third parties should be able to share information with NHS Improvement in the expectation
that this will be kept confidential. NHS Improvement considers that it is crucial for trust to be
maintained by third parties which impart information in such circumstances, and that
disclosure of information which is imparted in confidence may inhibit the full and frank
disclosure to NHS Improvement of relevant information. In this instance, the information
provided was in draft form and did not represent final views; if it were disclosed, it would not
only amount to an unauthorised use of the information by NHS Improvement but would
detriment Brookson Direct by revealing confidential information which remained a work in
progress.
For this reason, I consider that section 41 applies and as it is an absolute exemption, the
application of the public interest test under section 2(2) of the FOI Act is not required.
However, in considering whether, in an action for breach of confidence, a confidence should
be upheld, a court will have regard to whether the public interest lies in favour of disclosure. I
have therefore considered the public interest in disclosing this information but consider that,
in the present circumstances, it does not favour disclosure of the information withheld. Where
a duty of confidence exists, there is a strong public interest in favour of maintaining that
confidence. The public (as well as the trusts that we regulate, and stakeholders) would lose
confidence in NHS Improvement as a regulator if information provided to it in confidence was
disclosed. We also consider that the information we have already released to you would
satisfy any public interest concern.
Review rights
If you are not content with the outcome of the internal review, you have the right to apply
directly to the Information Commissioner for a decision. The Information Commissioner can
be contacted at: Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire, SK9 5AF.
Please note that this letter will shortly be published on our website. This is because information
disclosed in accordance with the FOI Act is disclosed to the public at large. We will, of course,
remove your personal information (e.g. your name and contact details) from the version of the
letter published on our website to protect your personal information from general disclosure.
NHS Improvement is the operational name for the organisation that brings together Monitor, NHS Trust Development Authority,
Patient Safety, the National Reporting and Learning System, the Advancing Change team and the Intensive Support Teams.
Yours sincerely,
Dominic Raymont
Deputy Director of Agency Intelligence
NHS Improvement
NHS Improvement is the operational name for the organisation that brings together Monitor, NHS Trust Development Authority,
Patient Safety, the National Reporting and Learning System, the Advancing Change team and the Intensive Support Teams.