Fitness to practice investigations - 'no case to answer'

D. Moore made this Freedom of Information request to Health and Care Professions Council

This request has been closed to new correspondence. Contact us if you think it should be reopened.

The request was refused by Health and Care Professions Council.

Dear Health and Care Professions Council,

This request relates to fitness to practice investigations.

1. Please provide details of your 10 most recent 'Investigating Committee' meetings concerning alleged wrongdoing on the part of healthcare professionals where it was found that they had 'no case to answer'. By 'details' I mean information equivalent to what you were required to release in the Armitage case, presided over by the Hon Mr Justice Lane ( EA/2016/0313 ):

http://informationrights.decisions.tribu...

2. Please state how many 'Investigating Committee' meetings there were in the business year 2016/17 concerning alleged wrongdoing by healthcare professionals.
Please state how many times the finding was:

i. 'a case to answer' and
ii. 2. 'no case to answer'.

Yours faithfully,

D Moore

FOI, Health and Care Professions Council

Dear D Moore

 

Thank you for your email of 23 November 2017, in which you ask for details
of the 10 most recent Investigating Committee Panel hearings where it was
held there was no case to answer.

 

We are treating this as a request under the Freedom of Information Act
2000.

 

We will deal with your request as promptly as possible and, at the latest,
within 20 working days as required by the FOIA. If you have any queries
about your request please do contact us using this email address, or the
address below.

 

The reference number for your request is FR05402.

 

Yours sincerely

 

Freedom of Information Team

 

Health and Care Professions Council

Park House, 184 Kennington Park Road

London SE11 4BU

[1]www.hcpc-uk.org

 

To sign up to our e-newsletter, please email [2][email address]

 

Please consider the environment before printing this email

 

Correspondence is welcome in English or Welsh / Gallwch ohebu yn Gymraeg
neu Saesneg.

 

 

 

 

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FOI, Health and Care Professions Council

Dear D Moore,

 

Thank you for your recent information request regarding the HCPC’s
Investigating Committee Panel (ICP) process. Your request has been handled
under the Freedom of Information Act (FOIA) (2000).

 

I will respond to your requests in order.

 

1 – I am unable to provide you with the decision notices of the
investigating committee as this hearing is held in private and information
regarding investigations remains confidential at this stage. The exemption
we rely on under FOIA for this non disclosure are sections 31, 40 and 41.

 

The tribunal decision you have referred to is specific to the
circumstances of the requestor and a highly publicised FTP matter. Details
of the case were reported in press due to a parallel employment tribunal
hearing. For this reason the Judge did not consider that the matter could
be considered confidential for the purposes of the information request
response.

 

I have provided more information on the exemptions cited below.

 

Section 31

 

Section 31(1)(g) applies where 'information which is not exempt
information by virtue of section 30 is exempt information if its
disclosure under [FOIA] would, or would be likely to, prejudice... the
exercise by any public authority of its functions for any of the purposes
specified in subsection (2)', which include 'ascertaining  whether any
person is responsible for any conduct which is improper'.

 

Section 40

 

This exemption applies to personal data of which you are the subject, or
which relates to a third party. Disclosure of this information would
breach the principles of data protection set out in Schedule 1 to the DPA,
in particular the first principle that personal data should be processed
fairly and lawfully. The third parties involved in this data would not
reasonably expect that we would further disclose their submissions to our
investigation. If the HCPC were to do so it would be unfair processing,
this would not be lawful.

 

Section 41

 

This exemption applies to information provided by a third party, the
disclosure of which would constitute a breach of confidence actionable by
that or any other person. In this case, the information provided by to the
HCPC about the fitness to practise cases were provided in confidence.

Public Interest Test

 

The public interest test must be applied in relation to certain exemptions
under the

FOIA. The test requires that the public interest in maintaining the
exemption (refusing to disclose the information) should be weighed against
the public interest in disclosing the information. The public interest
test does not apply to the exemptions in section 40 and 41, which are
absolute exemptions, but must be considered in relation to section 31.

 

In this case, the statutory objective of the HCPC is to protect the public
and maintaining confidentiality during the investigative process is often
an important part of attaining that objective. Correspondence relating to
our fitness to practise process is confidential. This means that
registrants and other correspondents, such as employers, are able to
provide a full and frank submissions.

 

If the HCPC reneged on commitments of confidentiality and disclosed case
correspondence under FOI and DPA provisions registrants and witnesses
would no longer be assured that information would be remain confidential.
This would clearly jeopardise the HCPC's ability to perform its statutory
functions.

 

In favour of disclosure is the principle of transparency which the HCPC
strongly supports and aims to promote where possible. You will note that
details of our fitness to practise cases are listed on our website, and in
addition final hearings are generally open to the public. Taking these
arguments info consideration we have concluded that in respect of the
information which has been withheld, the public interest in maintaining
the exemptions outweighs the public interest in making the disclosure.

 

2 – This information is available within the fitness to practise annual
report, page 20.

 

[1]http://www.hcpc-uk.org/assets/documents/...

 

Internal review

 

If you are unhappy with the way your request for information has been
handled, you can request a review by writing to:

 

Secretariat Department

Health and Care Professions Council

Park House

184 Kennington Park Road

London

SE11 4BU

 

Email: [2][email address]

 

If you remain dissatisfied with the handling of your request or complaint,
you have the right to appeal to the Information Commissioner at:

 

The Information Commissioner’s Office

Wycliffe House

Water Lane

Wilmslow

Cheshire

SK0 5AF

 

Telephone: 0303 123 1113 Website: [3]www.ico.org.uk

 

There is no charge for making an appeal.

 

Yours sincerely

 

Maxine Pryce

Information Governance Officer

 

Health and Care Professions Council

Park House, 184 Kennington Park Road

London SE11 4BU

[4]www.hcpc-uk.org

 

To sign up to our e-newsletter, please email [5][email address]

 

Please consider the environment before printing this email

 

Correspondence is welcome in English or Welsh / Gallwch ohebu yn Gymraeg
neu Saesneg.

 

 

 

Information classification and handling: “Confidential” – data should
always be kept locked in a secure location. Multiple layers of protection
such as a secure building, access control, and locked offices within a
building are adequate protection. Electronic transmission of Confidential
data with Personally Identifiable Information (PII) must be secured via
encryption or secured form of transport. The data is for the addressee
only; disclosure, transmission or dissemination of Confidential data must
be authorized by the HCPC information owner.

The material transmitted in this email is intended only for the person or
legal entity to whom it is addressed and may contain confidential and
privileged information. It may not be used or disclosed except for the
purpose for which it has been sent. If you are not the addressee or have
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email.

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References

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2. mailto:[email address]
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5. mailto:[email address]

Dear Health and Care Professions Council,

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

I am writing to request an internal review of Health and Care Professions Council's handling of my FOI request 'Fitness to practice investigations - ;no case to answer'.

I disagree with your analysis of the Judge's decision. Where in his decision does he refer to an employment tribunal hearing? He does refer to the press in paragraph 35, but not in a way that supports your refusal of my request. He writes:

"The fact that P’s case may return to the public eye, in late 2017, is due to the fact that the second respondent failed to give the relevant reasons at the appropriate time."

He again refers to the press in paragraph 36, and again in a way that does not support your refusal:

"Furthermore and in any event, any discomfort that P might experience is, we consider, heavily outweighed by the strong public interest (WHICH IS IN NO WAY DEPENDENT UPON THE AMOUNT OF PRESS COVERAGE OF THE DEATHS OF MR MPONGWANA) in ensuring that complainants (and persons in the position of the appellant who were directly affected by the conduct that is being investigated) are provided with appropriate reasons why a decision has been taken that a registered person has no case to answer." (capitalisation added)

Consider paragraph 34:

"34 Applying that approach, we do not consider that the expectation of P, AND OTHERS IN P's POSITION, involves a belief that any reasons given to the complainant for the panel’s decision would be given in strict confidence, so that it could be assumed those reasons would not be any further disseminated. " (capitalisation added)

And 35:

P’s reasonable expectation would, on the contrary, have been that the reasons why no case to answer was found, and why the interim order accordingly fell away, would have been communicated to any complainant (without restriction on its dissemination).

The decision is of much wider significance than you make out.

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

Yours faithfully,

D. Moore

FOI, Health and Care Professions Council

Dear D. Moore

 

Thank you for your email of 15 January 2018, the contents of which have
been noted.

 

As you are unhappy with our response to your request for information of 23
November 2017, your request has been escalated for an internal review and
as such has now been passed to The Director of Council and Committee
Services.

 

We aim to respond to your internal review as soon as possible. The
reference number for your request is FR05469.

 

Yours sincerely

 

Freedom of Information

 

Health and Care Professions Council

Park House, 184 Kennington Park Road

London SE11 4BU

[1]www.hcpc-uk.org

 

To sign up to our e-newsletter, please email [2][email address]

 

Please consider the environment before printing this email

 

Correspondence is welcome in English or Welsh / Gallwch ohebu yn Gymraeg
neu Saesneg.

 

 

 

 

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FOI, Health and Care Professions Council

Dear D Moore,

 

You asked the HCPC to review our decision not to release information to
you in response to the following request which you made under the Freedom
of Information Act 2000 (FOIA):

 

1.   Please provide details of your 10 most recent 'Investigating
Committee' meetings concerning alleged wrongdoing on the part of
healthcare professionals where it was found that they had 'no case to
answer'.  By 'details' I mean information equivalent to what you were
required to release in the Armitage case, presided over by the Hon Mr
Justice Lane ( EA/2016/0313 )

 

Having reviewed the original decision, we have decided to uphold it on the
following basis.

 

The decision of the First Tier Tribunal (FTT) in case EA/2016/0313 relates
to the relationship between FOIA and the Data Protection Act 1998 (DPA),
and the balance which must be struck by public authorities when requested
to disclose under FOIA information which includes personal data.

 

As paragraph 22 of the FTT’s decision acknowledges, the HCPC agreed that
the appellant in that case had a legitimate interest under paragraph 6(1)
of Schedule 2 to the DPA which met the first stage of the test identified
by the Upper Tribunal (Administrative Appeals Chamber) in Information
Commissioner v CF and Another [2015] UKUT 449 (AAC).  As the FTT’s
decision makes clear (at paragraph 20), unless a legitimate interest is
identified under the first stage of that test, there is no need to proceed
further and consider whether a disclosure which includes personal data
should be made under FOIA.

 

In your request for review, you suggested that “The [FTT’s] decision is of
much wider significance than you [i.e. HCPC] make out” and included the
following extract from paragraph 36 of the FTT’s decision with added
capitalisation:

 

"Furthermore and in any event, any discomfort that P might experience is,
we consider, heavily outweighed by the strong public interest (WHICH IS IN
NO WAY DEPENDENT UPON THE AMOUNT OF PRESS COVERAGE OF THE DEATHS OF MR
MPONGWANA) in ensuring that complainants (and persons in the position of
the appellant who were directly affected by the conduct that is being
investigated) are provided with appropriate reasons why a decision has
been taken that a registered person has no case to answer."

 

Having conducted this review, we consider that the more salient statement
in paragraph 36 (emphasis added) is that the public interest is “in
ensuring that complainants (and persons in the position of the appellant
who were directly affected by the conduct that is being investigated) are
provided with appropriate reasons why a decision has been taken that a
registered person has no case to answer."

 

As you have not provided any information to indicate that you are the
complainant or a person directly affected by the conduct under
investigation in any of the 10 cases to which your request relates, the
original decision is upheld.

 

Review of response

 

Should you wish, you may request that the Information Commissioner reviews
this response. Please contact-

 

Information Commissioner's Office

Wycliffe House

Water Lane

Wilmslow

Cheshire

SK9 5AF

 

[1][email address]

 

There is no charge for making an appeal,

 

Regards,

 

Claire Amor
Governance Manager

The Health and Care Professions Council
Park House, 184 Kennington Park Road, London SE11 4BU
[2]www.hcpc-uk.org

Follow us on [3]Facebook, [4]Linkedin, [5]Twitter and [6]YouTube.
Sign up to the [7]HCPC e-newsletter

Please consider the environment before printing this email

Correspondence is welcome in English or Welsh / Gallwch ohebu yn Gymraeg
neu Saesneg.

 

Information classification and handling: “Confidential” – data should
always be kept locked in a secure location. Multiple layers of protection
such as a secure building, access control, and locked offices within a
building are adequate protection. Electronic transmission of Confidential
data with Personally Identifiable Information (PII) must be secured via
encryption or secured form of transport. The data is for the addressee
only; disclosure, transmission or dissemination of Confidential data must
be authorized by the HCPC information owner.

The material transmitted in this email is intended only for the person or
legal entity to whom it is addressed and may contain confidential and
privileged information. It may not be used or disclosed except for the
purpose for which it has been sent. If you are not the addressee or have
received this email in error please notify the sender and do not read,
print, re-transmit, store or act in reliance on the material in this
email.

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