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Dear Ryan Jarvis, 

NHS England has assessed your communication as a request under the Freedom
of Information (FOI) Act 2000. Your request is being dealt with under the
terms of the FOI Act and will be answered within twenty working days. Your
reference number is FOI-2401-2066025.

For further information regarding the FOI Act, please refer to the website
of the [1]Information Commissioner’s Office (ICO). For further information
regarding NHS England, and the information we publish, please visit [2]our
website.

If you have any queries about this request or wish to contact us again,
please email [3][NHS England request email] and the message will be
forwarded appropriately. Please remember to quote the above reference
number in any future communications.

Yours sincerely,

Freedom of Information

NHS England
PO Box 16738
REDDITCH
B97 9PT

Tel: 0300 311 22 33
Email: [4][NHS England request email] 

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Dear Ryan Jarvis ,

We are writing with regard to your Freedom of Information (FOI) request
dated 31/01/2024.

Please accept our apologies for the delay in responding to your request.
NHS England is not in a position to respond to your request at this time.
We are still in the process of assessing your request and will provide you
with a full response as soon as possible.

We apologise for any inconvenience this may cause. Please be aware that
you have the right to apply directly to the Information Commissioner for a
decision. The Information Commissioner’s Office (ICO) can be contacted at:

The Information Commissioner’s Office

Wycliffe House

Water Lane

Wilmslow

Cheshire

SK95AF

Telephone:0303 123 1113

Email:[1][email address]

Website:[2]www.ico.gov.uk

Please do not reply to this email. This message has been sent from a
central mailbox. To communicate with NHS England regarding Freedom of
Information (FOI) requests, enquiries or complaints we ask these are sent
directly to NHS England’s customer contact centre. This is to ensure all
communications are progressed correctly. Their postal address, telephone
number and email details are as follows: PO Box 16738, Redditch, B97 9PT;
0300 3 11 2233, [3][NHS England request email].

Yours sincerely,

Freedom of Information

Corporate Communications Team

Transformation and Corporate Operations Directorate

NHS England

PO Box 16738

REDDITCH

B979PT

Tel:0300 311 22 33

Email:[4][NHS England request email]

‘Health and high quality care for all,now and for future generations’

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​​​​Dear Ryan Jarvis,

We refer to your email of 31/01/2024 in which you requested information
under the FOI Act from NHS England.
 
Your request

You made the following request:

“Under the Freedom of Information Act 2000, I am writing to request
information regarding the Countess of Chester NHS Foundation Trust,

specifically concerning the enforcement undertakings referred to in the
document titled "Enforcement Undertakings - Countess of Chester NHS
Foundation Trust - July 2022."

1. Detailed Reasons for Enforcement Undertakings: I request a
comprehensive explanation of the reasons leading to the enforcement
undertakings, particularly focusing on the issues related to quality of
care, performance, and governance.

2. Documentation and Evidence: Please provide all relevant documents,
reports, and evidence that were considered in the process of deciding upon
these enforcement undertakings.

3. Compliance and Review: I am particularly interested in understanding
whether NHS England has conducted a review of the Trust to assess its
compliance with the enforcement undertakings. If such a review has been
conducted, kindly provide the findings, reports, or any relevant
documentation related to this review.

4. Future Monitoring and Assessment Plans: Information about any future
plans or strategies NHS England has in place to monitor the Trust's
compliance with the enforcement undertakings and to assess its ongoing
performance.

5. Communication Between NHS England and Countess of Chester NHS
Foundation Trust: Copies of any correspondence, including emails and
letters, between NHS England and the Countess of Chester NHS Foundation
Trust regarding the enforcement undertakings between the dates 1st August
2023 and 1st January 2024.

6. Impact Assessment: Any impact assessments or evaluations conducted
regarding the potential effects of these enforcement undertakings on
patient care and Trust operations.”

NHS England may hold information relevant to your request.  However, we
are unable to begin processing your request without further clarification.

Under Section 1(3) of the FOI Act, an authority is not obliged to comply
with an FOI request when it reasonably requires further information in
order to identify and locate the information requested.

As such, we would be grateful if you could clarify:

•  We do not understand what is meant by the request for an ‘impact
assessment’ in this context, could you please confirm your meaning. 

Please be assured we are keen to assist with your enquiry. However, we
cannot guarantee that Section 12 or any other exemptions under the FOI act
will not apply to any further information requested.

Please send your clarified request to [1][NHS England request email] quoting
your reference number as it appears in the subject bar.

Yours sincerely,

Freedom of Information

NHS England
PO Box 16738
REDDITCH
B97 9PT

Tel: 0300 311 22 33
Email: [2][NHS England request email]

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Dear Ryan Jarvis,

Thank you for your recent email regarding Freedom of Information request
reference FOI - 2403-2084616. Please accept our apologies for the delay in
responding to your request.

Whilst we take our statutory duties in respect of Freedom of Information
(FOI) seriously, we ask for your understanding that we have been unable to
respond to your request within the statutory timescale at this time. We
recognise that there is no provision within the FOI Act to extend the
timeframe for a response, and understand that this delay may be
frustrating. 

We are unable to comment on your FOI request, as it still being processed.
We would like to apologise for any inconvenience that this may cause and
will, in all cases, aim to provide you with a response as soon as
possible.

NHS England will be happy to conduct an Internal Review into the delay
associated with your request (plus any elements of the content of the
response as directed by you) once a response has been provided. Meanwhile,
you are entitled to [1]apply directly to the Information Commissioner's
Office (ICO) for a decision.

If you have any queries about this request or wish to contact us again,
please email [2][NHS England request email] and the message will be
forwarded appropriately. Please remember to quote the above reference
number in any future communications.

Yours sincerely, 

Freedom of Information

NHS England
PO Box 16738
REDDITCH
B97 9PT

Tel: 0300 311 22 33
Email: [3][NHS England request email] 

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Dear Ryan Jarvis,

Thank you for your request dated 17 Match 2024, and for your further
clarification received on 17 March 2024, in which you requested
information under the Freedom of Information Act 2000 (‘FOI Act’) from NHS
England. We apologise for the delay in responding to your request.

This request and your subsequent clarification has been considered by NHS
England under references: FOI-2401-2066025 and FOI-2403-2084616.
 
Your request

Your original request was as follows:

“Under the Freedom of Information Act 2000, I am writing to request
information regarding the Countess of Chester NHS Foundation Trust,
specifically concerning the enforcement undertakings referred to in the
document titled "Enforcement Undertakings - Countess of Chester NHS
Foundation Trust - July 2022."

1. Detailed Reasons for Enforcement Undertakings: I request a
comprehensive explanation of the reasons leading to the enforcement
undertakings, particularly focusing on the issues related to quality of
care, performance, and governance.

2. Documentation and Evidence: Please provide all relevant documents,
reports, and evidence that were considered in the process of deciding upon
these enforcement undertakings.

3. Compliance and Review: I am particularly interested in understanding
whether NHS England has conducted a review of the Trust to assess its
compliance with the enforcement undertakings. If such a review has been
conducted, kindly provide the findings, reports, or any relevant
documentation related to this review.

4. Future Monitoring and Assessment Plans: Information about any future
plans or strategies NHS England has in place to monitor the Trust's
compliance with the enforcement undertakings and to assess its ongoing
performance.

5. Communication Between NHS England and Countess of Chester NHS
Foundation Trust: Copies of any correspondence, including emails and
letters, between NHS England and the Countess of Chester NHS Foundation
Trust regarding the enforcement undertakings between the dates 1st August
2023 and 1st January 2024.

6. Impact Assessment: Any impact assessments or evaluations conducted
regarding the potential effects of these enforcement undertakings on
patient care and Trust operations.”
In relation to point 6 of your request set out above, you clarified as
follows:

“In response to your request for clarification regarding the term 'impact
assessment', I am seeking information on any evaluations or studies that
have been conducted to understand the consequences of the enforcement
undertakings on both patient care and the overall operations within the
Trust. This includes, but is not limited to, assessments of how these
undertakings have affected the quality of care provided to patients, any
changes in operational efficiency or effectiveness, and any impacts on
staff workload or morale. The objective of this request is to understand
the broader implications of the enforcement actions on the functioning of
the Trust and its service delivery to patients.

I hope this clarification helps in processing my request. I am keen to
understand the specifics of the enforcement undertakings and appreciate
your assistance in this matter. Please let me know if further information
is needed to facilitate the processing of my request.”

Decision

We have considered the six points of your request and taken those requests
together where the information and the same considerations around
disclosure under the FOI Act are principally the same.

1. Detailed Reasons for Enforcement Undertakings: I request a
comprehensive explanation of the reasons leading to the enforcement
undertakings, particularly focusing on the issues related to quality of
care, performance, and governance.
Enforcement Undertakings given by the Countess of Chester NHS Foundation
Trust (‘the Trust’) in June 2022 and accepted by NHS Improvement in July
2022 are publicly available and the background and reasons for action are
set out in those undertakings, as set out here:
[1]Countess-of-Chester-NHS-FT-Enforcement-Undertakings-July-2022.pdf
(england.nhs.uk).

NHS England considers that section 21(1) of the FOI Act is engaged given
this information is reasonably accessible to you. The full text of section
21 is available [2]here.

In light of the background to the undertakings explained in the document,
it may also be of assistance for you to consider:
 

• Information made available publicly by the Trust in relation to its
annual performance and governance:
[3]https://www.coch.nhs.uk/corporate-inform...
• Information published by the CQC in relation to quality and
performance, including inspection reports:
[4]https://www.cqc.org.uk/provider/RJR/repo...

2. Documentation and Evidence: Please provide all relevant documents,
reports, and evidence that were considered in the process of deciding upon
these enforcement undertakings.
3. Compliance and Review: I am particularly interested in understanding
whether NHS England has conducted a review of the Trust to assess its
compliance with the enforcement undertakings. If such a review has been
conducted, kindly provide the findings, reports, or any relevant
documentation related to this review
4. Future Monitoring and Assessment Plans: Information about any future
plans or strategies NHS England has in place to monitor the Trust's
compliance with the enforcement undertakings and to assess its ongoing
performance review
The relevant decision in relation to accepting undertakings from the Trust
was taken by NHS England’s North West Regional Support Group (‘RSG’).
Similarly, decisions relating to monitoring the Trust’s compliance with
those undertakings would be taken, or overseen by, the RSG.
NHS England holds decision-making papers which were considered by the RSG
in April and June 2022 in relation to NHS England accepting undertakings
from the Trust. It also holds papers for a meeting of the RSG in November
2023 prepared for the RSG’s consideration of the Trust’s progress against
NHS England’s oversight arrangements.
NHS England considers that these documents are to be exempt from
disclosure because the following exemptions contained within the FOI Act
apply:
Section 31(1)(g) – NHS England’s regulatory functions
NHS England considers that disclosure of the papers in question would be
likely to prejudice NHS England’s functions, relating to oversight and
regulation of NHS Foundation Trusts and other NHS bodies.
NHS England’s core regulatory functions are described in section
[5]13SB(2) and (3) of the National Health Service Act 2006 as amended by
the Health and Care Act 2022 (‘the 2006 Act’). In particular, NHS England
has functions under Part 3 of the Health and Social Care Act 2012 in
relation to NHS Trusts and Foundation Trusts. Under Chapter 3, NHS England
determines and publishes the conditions which NHS Trusts and Foundation
Trusts must comply with, known as the NHS Provider Licence. Where NHS
England is satisfied that the licence holder has failed to comply with a
condition of the Provider Licence, it may take enforcement action
(including to accept undertakings from the licensee). NHS England’s role
in the oversight of NHS bodies is described further in the [6]NHS
Oversight Framework and in the [7]NHS Enforcement Guidance.
These functions are exercised for purposes set out in section 31(2) of the
FOI Act, including for the purposes of ascertaining whether circumstances
would justify regulatory action (section 31(2)(c)). You can find out more
about section 31 by reading its full text, [8]here.
In order to exercise its regulatory and performance oversight functions
described above, NHS England depends on the free and frank provision of
information from NHS bodies in a timely manner and appropriate form,
without fear of this being shared more widely and entering into the public
domain. NHS England also relies on this information being presented fully
and frankly to its RSGs in order that fully informed decisions around the
appropriateness of enforcement action can be taken.
We consider that disclosure of decision-making papers of the RSG, and
information contained with them obtained from the Trust, would be likely
to have a detrimental impact on the quality of NHS England’s
decision-making processes in the future if details, or any analysis
derived from those details, was published to the public at large.
Section 31 is a qualified exemption and therefore subject to the public
interest test.
We consider that there is an inherent public interest in openness and
transparency and the promotion of accountability of public authorities.
There is public interest in understanding, and promoting transparency in
relation to, the exercise of NHS England’s functions and the functions of
the NHS bodies which NHS England oversees.
However, there is also an important public interest in maintaining and
protecting the flow of relevant information from NHS bodies to NHS
England, that comes from a space for free, open and proactive dialogue.
There is public interest in the purpose of NHS England’s regulatory
functions and particularly in its role in ensuring that these NHS bodies
are able to account for public funds allocated to them, and that their
functions are carried our efficiently and effectively and deliver value
for money for the public.
We have concluded that there is a greater public interest in maintaining
the exemption and withholding this information. We also take into account
that the public interest in understanding events at the Trust will be met
by the ongoing Thirlwall Inquiry (see below).
Section 31(1) – the Thirlwall Inquiry
NHS England considers that section 31 FOI Act is also engaged in respect
of this request in light of the statutory public inquiry that is currently
underway into the events involving Lucy Letby, the Thirlwall Inquiry. More
information about the Thirlwall Inquiry, including its Terms of Reference
are available [9]here.
NHS England’s view is that disclosure would be likely to prejudice the
Thirlwall Inquiry since it may interfere in the Chair’s ability to conduct
the inquiry fairly and in line with due process (including with the
Protocols that have subsequently been published by the Inquiry around
handling of documents; redaction and restriction orders) and thus impact
on the overall effectiveness of the Inquiry.
We are satisfied that the published terms of reference for the Inquiry,
and the annexed non-exhaustive questions that accompany the [10]Inquiry’s
Terms of Reference, provide a reasonable basis to consider that the
Inquiry will examine issues relating to regulation, governance and
leadership. The questions set out in the Annex to the Terms of Reference
provide further guidance about the Inquiry’s likely focus, in particular
through a focused consideration of whether previous recommendations to
address culture and governance issues made by previous inquiries into the
NHS have been implemented into wider NHS practice and to what effect.
Both the Trust and NHS England are designated core participants in the
Thirlwall Inquiry. As such both will be providing evidence to the Inquiry
and, as core participants, each organisation will also be afforded the
ability to participate in the Inquiry, including through suggesting lines
of questioning to be pursued by Counsel to the Inquiry and by having their
recognised legal representative apply to the Chair to ask questions of a
witness. Both are legally represented, as noted in the Inquiry’s published
[11]Table of Core Participant determinations.
5. Communication Between NHS England and Countess of Chester NHS
Foundation Trust: Copies of any correspondence, including emails and
letters, between NHS England and the Countess of Chester NHS Foundation
Trust regarding the enforcement undertakings between the dates 1st August
2023 and 1st January 2024 review
NHS England does not hold any letters or emails regarding the enforcement
undertakings within this period.
 
6. Impact Assessment: Any impact assessments or evaluations conducted
regarding the potential effects of these enforcement undertakings on
patient care and Trust operations.
Thank you for your clarificatory email dated 17 March 2024, which is set
out above. NHS England does not hold any specific impact assessment
documents, evaluation or study regarding the effect of enforcement
undertakings on patients and NHS Trust operations.
We have, however, provided some additional information which we hope is of
assistance in understanding how NHS England exercises its enforcement
powers, and takes into account its duties and relevant considerations when
doing so:

• NHS England may accept undertakings where it has reasonable grounds to
suspect that the provider of the service has breached a condition of
its licence. The current version of the Provider Licence is available
here:
[12]https://www.england.nhs.uk/publication/n...

• As referred above, NHS England publishes guidance (‘Enforcement
Guidance’) on how it will assess whether enforcement action may be
necessary and, where NHS England believes that such action is
necessary, how it will select an appropriate and proportionate remedy.
The current version of the Enforcement Guidance (dated 19 June 2023)
is available here:
[13]https://www.england.nhs.uk/the-nhs-provi....

• NHS England published the NHS Oversight Framework which provides more
detail about how NHS England supports NHS Trusts and NHS Foundation
Trusts (and Integrated Care Boards) and the circumstances in which it
considers formal regulatory intervention might be needed. The current
version (dated June 2022) is available here:
[14]https://www.england.nhs.uk/publication/n...

Copyright

NHS England operates under the terms of the Open Government Licence (OGL).
Terms and conditions can be found on the following link:

[15]http://www.england.nhs.uk/terms-and-cond...

Review rights

If you consider that your request for information has not been properly
handled or if you are otherwise dissatisfied with the outcome of your
request, you may seek an internal review within NHS England of the issue
or the decision. A senior member of NHS England’s staff, who has not
previously been involved with your request, will undertake that review.

If you are dissatisfied with the outcome of any internal review, you may
complain to the Information Commissioner for a decision on whether your
request for information has been dealt with in accordance with the FOI
Act.

A request for an internal review should be submitted in writing to
[16][NHS England request email]

Yours sincerely,

Freedom of Information
NHS England

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Dear Ryan Jarvis

We write further to your email of 5 July 2024 in which you requested an
Internal Review of your Freedom of Information request reference

2403-2084616.

Please accept our sincere apologies for the delay in responding to your
request.
 
The FOI Management team have reviewed your request and have concluded that
the original response was accurate and appropriate. 

We have set out the reasons for this decision below:
 

• It was appropriate to rely on section 31 to withhold some of the
information you had requested
• The explanations provided outlining the prejudice and public interest
tests were cogent, reasoned and relevant to the subject matter
• It is incumbent on NHS England to consider the potential impact of
disclosure when making a decision on whether an exemption applies. It
is not necessary to limit this consideration to only the subject
matter of the FOI request. 

We are therefore satisfied that section 31 was appropriately engaged. 
 
We do note, however, that both your original FOI request and subsequent
Internal Review request were subject to significant delays in processing.
We apologise for this and for any inconvenience as a result. 

Review rights

We hope that this explains our handling of your FOI request. However, if
you are not content with our response, you have the right to apply
directly to the Information Commissioner for a decision. The Information
Commissioner’s Office (ICO) can be contacted at the following weblink:

[1]https://ico.org.uk/make-a-complaint/foi-...

Please do not reply to this email. This message has been sent from a
central mailbox. All correspondence should be sent to [2][NHS England
request email].

Yours sincerely

Freedom of Information
NHS England

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