16 December 2021
Our ref: IR1-3287283464
Dr S Ali
By email only to: request-773247-
xxxxxxxx@xxxxxxxxxxxxxx.xxx
Dear Dr Ali
Information request review
Further to your email of 30 November raising a number of concerns about our
response of 29 November 2021 provided to you under the Freedom of Information
Act 2000 (FOIA). I am now in a position to respond to you.
Chronology
The chronology of this request is somewhat lengthy and I have summarised this
below:
Your original request sent on 10 July 2021 asked the fol owing:
‘Please can you provide legal opinions, reasonings or internal investigations in
relation to the MPTS publishing prior to a hearing untested al egations ….’
My col eague Matthew McCoig-Lees responded to your request on 11 November
2021 informing you that he ‘asked the relevant departments and they have not
been able to locate anything which could be reasonably described as ‘legal
opinions, reasonings or internal investigations’ to explain the underlying rational of
publishing al egation information in our website notices.’ He went on to inform
you:
‘We also hold operational guidance about how and what to include in website
notices and information about specific instances where we chose not to
publish website notices or provided them in a nonstandard way. Final y, as
you can see in the guidance, we have a discretionary power to publish or
disclose any information about a doctor where we believe it to be in the
public interest, which is the power under which we publish website
notices. We have taken legal advice about what we can and should publish
under Section 35B(2) of the Medical Act 1983 but not in relation to the
specific practice of publishing website notices.’
And:
‘I would conclude by stating that, in part based on the advice we have
received in relation to publishing other information under Section 35B(2)
of the Medical Act 1983, the rational of publishing information about
al egations prior to a hearing is that it is a justifiable interference
with the legal rights of individuals which is necessary and proportionate
to meet our statutory objectives.’
In your emailed response of the same date you state as fol ows:
‘In relation to CONTENT, you also confirm the GMC and or MPTS have taken legal
advice about what you can and should publish under Section 35B(2) of the Medical
Act 1983 - which underpins this and other publishing content. A copy of this would
be appreciated to satisfy this FOI request.’
This email was considered to be a new request on the basis that Mr McCoig-Lees
had made clear that this legal advice did not fal within the scope of your original
request and was set up accordingly (our ref: IR1-3268180841). Mr McCoig-Lees
responded on 29 November 2021 providing some clarification from his perspective
and confirmed that the legal advice you specifical y requested in your email of 11
November 2021 was subject to the exemption at S42 of the FOIA on the basis that
it attracted legal professional privilege.
In your email response received on 30 November 2021 you comment on the
administrative process fol owed in relation to your request, put forward arguments
that the FOIA exemption is not applicable and go on to ask for the identity of the
legal adviser.
My review
I have careful y reviewed the ful chain of emails in relation to this matter.
Your initial email of 10 July 2021 asked for
legal opinions, reasonings or internal
investigations relating to the MPTS publishing al egations about doctors prior to a
hearing. Hearings are listed in date order identifying the doctor and the al egations
that the doctor is facing. Here’s a link to the relevant section of the MPTS website:
https://www.mpts-uk.org/hearings-and-decisions/medical-practitioners-
tribunals?page=1#hearingsTabLink
In Mr McCoig-Lees’ response of 11 November 2021 he informed you that we do not
hold any information that fal within the parameters of your request. He expanded
on this response by informing that we do have legal advice on the publication and
disclosure requirements of Section 35B(2) of the Medical Act 1983:
(2) The General Council may, if they consider it to be in the public interest to do
so, publish, or disclose to any person, information - (a) which relates to a particular
practitioner’s fitness to practise, whether the matter to which the information
relates arose before or after his registration, or arose in the United Kingdom or
elsewhere; or
(b) of a particular description related to fitness to practise in relation to every
practitioner, or to every practitioner of a particular description.
He made clear that this didn’t touch specifical y on the practice of publishing
website notices focussing instead on the publication of information post-hearing.
In your follow-up email of 11 November 2021 you asked for a copy of this legal
advice. This was subsequently refused by Mr McCoig-Lees.
Firstly I am satisfied that we do not hold information which fal s within the scope of
your original request.
Further, I have reviewed the legal advice referred to by Mr McCoig-Lees and having
done so I am satisfied that it is subject to the legal advice element of the legal
professional privilege exemption at S42(1) of the FOIA. I can confirm that the
advice was provided by external Counsel to the GMC and therefore I am entirely
content that the required adviser/client relationship existed.
As you may be aware this is a ‘qualified exemption’. That is to say it is subject to a
public interest test. It is my view that the public interest fal s in favour of
withholding the legal advice. There is an in-built strong public interest in
maintaining the exemption in respect of legal advice given the relationship between
a legal adviser and their client. I do not consider that the arguments for the public
disclosure of the ful advice on this issue are sufficient to outweigh the public
interest in maintaining the exemption. I also recognise, as has been made clear,
that the legal advice does not specifical y relate to the original question you posed.
You go on to ask for the identity of the legal adviser. I have assumed that you
mean the author of the legal advice as opposed to the individual who made the
decision to apply the FOIA exemption. Should you mean the latter I can confirm
that the decision was taken by Mr McCoig-Lees. If you were seeking the identity of
the author of the legal advice it is my view that this information would be subject
to the FOIA exemption as fol ows:
Section 40(2), by virtue of section 40(3A)(a)
- This exemption applies where the
information is the personal data of a third party and where releasing the
information would breach any of the principles relating to the processing of
personal data listed at Article 5 of the General Data Protection Regulation (GDPR).
In this instance disclosure would breach the first principle, which requires the
processing of information to be lawful, fair and transparent. I do not believe that
any of the legal bases for processing listed at Article 6 of the GDPR are met and
therefore giving you the information would be unlawful.
Further action
Should you continue to be dissatisfied with our response you do as you are aware,
have a further right of complaint to the Information Commissioner’s Office. Their
contact details are as fol ows:
Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF
Tel. no: 0330 414 6649
Email:
xxxxxxxxxxx@xxx.xxx.xx
We wil not engage further with you in respect of this particular request unless or
until the Information Commissioner’s Office orders us to do so.
Yours sincerely
Julian Graves
Information Access Manager
Tel. no: 0161 923 6351
Email:
xxxxxx.xxxxxx@xxxxxx.xxx
Document Outline