Referrals for refusal to treat patients for lack of PPE

The request was partially successful.

Dear Health and Care Professions Council,

I am writing to request the following information under the Freedom of Information Act.

1. The number of referrals, since March 2020, that you received in relation to the professionals you regulate, that included refusal to treat patients for the lack of personal protection equipments (PPEs) as part of the reason(s) referrals are being made.
2 (a). If the answer to (1) is not zero, the category of the person making the referral(s) (members of public, other professionals in their personal capacity, responsible officers on behalf of healthcare organisations, or the professionals themselves).
2 (b). If the referral was made by responsible officers, the name of the healthcare organisation that the referral(s) was made on behalf of.
3. Of the referrals identified in (1), the number of referrals that involved patients suspected of COVID-19 or known to be postive for SARS-CoV-2.

Yours faithfully,
A. Ying

FOI, Health and Care Professions Council

Dear A. Ying

 

Thank you for your email of 13 August 2020, in which you ask for
information regarding fitness to practise referrals for refusal to treat
patients for lack of PPE.

 

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

 

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

 

The reference number for your request is FR06794.

 

Kind regards

 

Freedom of Information

 

Health and Care Professions Council

Park House, 184 - 186 Kennington Park Road

London SE11 4BU

[1]www.hcpc-uk.org

 

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

Our Ref. FR06794

 

 

Dear A. Ying

 

Thank you for your email of 13 August 2020, in which you ask for
information regarding fitness to practise referrals for refusal to treat
patients for lack of PPE.

 

Your request has been handled under the Freedom of Information Act 2000
(FOIA).

 

Please find below our response to your questions in the order you have
asked them.

 

 1. The number of referrals, since March 2020, that you received in
relation to the professionals you regulate, that included refusal to
treat patients for the lack of personal protection equipments (PPEs)
as part of the reason(s) referrals are being made.

 

Two fitness to practise concerns have been received.

 

2 (a). If the answer to (1) is not zero, the category of the person making
the referral(s) (members of public, other professionals in their personal
capacity, responsible officers on behalf of healthcare organisations, or
the professionals themselves).

2 (b). If the referral was made by responsible officers, the name of the
healthcare organisation that the referral(s) was made on behalf of.

3. Of the referrals identified in (1), the number of referrals that
involved patients suspected of COVID-19 or known to be postive for
SARS-CoV-2.

 

We are unable to provide you with an answer to questions 2 and 3. This is
because we consider that the information is exempt from disclosure. The
exemptions we rely on for this non-disclosure are Sections 30(2)(a)(iii),
Section 40 and Section 41 of the FOIA. If we were not withholding the
information under Section 30(2)(a)(iii) of the FOIA, Section 31(1)(g) of
the Act would apply.

 

I have set out below the exemptions cited in more detail to assist you to
understand our position on disclosure.

 

Section 30

 

Section 30(2)(a)(iii) applies to information held by a public authority
relating to its confidential statutory investigations into ascertaining a
person’s fitness or competence in relation to their profession.

 

The information you request is part of an investigation by the HCPC to
ascertain whether a registrant’s fitness to practise is impaired.
Maintaining the confidentiality of the information provided is essential
in order to enable the HCPC to correctly assess a registrant’s fitness to
practise and protect the public. To disclose this information would cause
a negative effect on the HCPC’s relationships with complainants and
witnesses involved in our fitness to practise cases. This would lead to
involved parties being less willing to assist us in our investigations.

 

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 Article 5(1) of the
GDPR, in particular principle (a) that personal data should be processed
lawfully, fairly and in a transparent manner. The complainants and
registrants in these cases would not reasonably expect that we would
further disclose their details for non-regulatory purposes. If the HCPC
were to do so it would be unfair processing and 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, details of the concerns that were
provided to the HCPC 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 Section
41, which are absolute exemptions, but must be considered in relation to
Sections 30 and 31.

 

In this case, the public interest factors in favour of disclosure are that
the disclosure would promote transparency in the concerns received about
HCPC registrants. Confidentiality during the investigative process is
often an important part of attaining that objective. Correspondence
relating to our fitness to practise process is confidential.

 

We publish information relating to fitness to practise hearings in line
with our [1]FTP Publication Policy. Should the concerns be referred to a
Conduct and Competence Committee and they determine to impose a sanction,
all details will be displayed on our website.

 

Taking these arguments into 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.

 

Internal review

 

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

 

Governance Department

Health and Care Professions Council

Park House

184 - 186 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

SK9 5AF

 

Telephone: 0303 123 1113

Email: [3][email address]

 

There is no charge for making an appeal.

 

Kind regards

 

Freedom of Information

 

Health and Care Professions Council

Park House, 184 - 186 Kennington Park Road

London SE11 4BU

[4]www.hcpc-uk.org

 

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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Dear Health and Care Professions Council,

Your ref.: FR06794

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 'Referrals for refusal to treat patients for lack of PPE'.

You refused to disclose information requested under Sections 30(2)(a)(iii) (or alternatively Section 30(2)(a)(iii)), Section 40 and Section 41 of the FOIA. I respectfully disagree with the exertion of these exemptions.

First addressing the absolute exemptions, it is my view that the information I requested are not personal information. This is because identifying whether the complaint is member of public or another professional does not allow the complaint to be identified personally. Where a concern is raised by an employer, this action is made on behalf of the organization, and not in the individual capacity of the member of staff who physically complete the referral.

Further, I have reviewed the referral forms and cannot identify where the HSPC is placed under a legal responsibility of confidence. Section 41 of the FOIA also states that an information is exempt only if "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" (emphasis added). It is unclear how disclosure would give rise to an actionable claim.

Secondly, I believe that the public interest test would favour disclosure under the remaining basis of exemption. The availability of PPE is a huge area of concern for healthcare professionals and the public, prompting statement to be made by the NMC (https://www.nmc.org.uk/news/news-and-upd...) and ethical guidance to be drawn up by the BMA (https://www.bma.org.uk/advice-and-suppor...). Refusal of disclose the information I requested may in fact hinder your registrants and the public's trust in the HCPC's regulatory processes being fit-for-purpose under the COVID-19 pandemic, and therefore hinder the ability of HCPC to regulate.

Therefore, I believe the information requested should be disclosed under the FOIA.

Yours faithfully,
A. Ying

FOI, Health and Care Professions Council

Dear A. Ying

 

Thank you for your email of 3 September 2020, the contents of which has
been noted.

 

As you are unhappy with our response sent to you on 3 September 2020, your
request has been escalated for an internal review and as such has now been
passed to the Governance Manager.

 

We aim to respond to your internal review as soon as possible and at the
latest, within 20 working days of receiving it.

 

The reference number for your request is FR06815.

 

Kind regards

 

Freedom of Information

 

Health and Care Professions Council

Park House, 184 - 186 Kennington Park Road

London SE11 4BU

[1]www.hcpc-uk.org

 

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 A. Ying

 

I write in response to your request for a review of the HCPC’s response to
the freedom of information request you made.

 

Original request

 

Your request dated 13 August 2020 asked for information regarding fitness
to practise referrals that involved refusal to treat patients for lack of
personal protection equipment (PPE).

 

We released information for one of the four questions you asked. The
exemptions in sections 30, 31, 40 and 41 of the Freedom of Information Act
2000 (FOIA) were applied to the withheld information. In summary, the
exemptions to disclosure were based on information relating to the
confidential investigation stage of the HCPC’s fitness to practise
process, third party personal data and that the information was provided
in confidence.

 

Internal review

 

I have reviewed your request and the HCPC response and I am confirming
that the refusal to disclose this information is correct. The exemptions
we rely on for this non-disclosure are as set out in our original response
to you.

 

Sections 30 and 31

 

In respect of section 30(2)(a)(iii) of the FOIA we believe that disclosure
would be likely to prejudice the ongoing fitness to practise
investigations into the concerns raised.

 

Information which is not exempt information by virtue of section 30 is
exempt information under section 31(1)(g). We believe that disclosure of
the withheld information would be likely to prejudice our ability to carry
out the functions outlined in section 31(2)(b) and (c). For the HCPC to
function as an effective regulator and be able to ascertain whether a
person’s fitness to practise is impaired, it is essential for us to be
able to maintain an appropriate level of confidentiality when conducting
fitness to practise investigations.

 

We have further considered the public interest in the disclosure of this
information and it is our view that the public interest lies in the HCPC
being able to conduct its investigations without prejudice. Therefore, the
public interest in disclosure does not outweigh maintaining the exemption.

 

Section 40

 

In respect of section 40(2), whilst release of the withheld information
may not immediately reveal which individuals had raised these concerns,
due to the low number of concerns raised, there is a risk of individuals
being identified.

 

Section 41

 

In respect of section 41, the information that was provided to the HCPC
constitutes information of a confidential nature. Co-operation and candour
enable the HCPC to be able to identify and correctly assess a concern. If
the HCPC was to further disclose information in relation to confidential
correspondence it had received for non-regulatory reasons, this would
cause a negative effect on the HCPC’s relationships with those we rely on
the voluntary cooperation of. It is essential that third parties feel able
to raise concerns and are not dissuaded by the fear that their
confidential correspondence may be made publicly available. 

 

Furthermore, third parties would no longer be assured that the HCPC can
maintain confidentiality and so would be likely to be unwilling to provide
the HCPC with documentary evidence vital for our fitness to practise
investigations. For these reasons, we feel that the withheld information
is exempt from disclosure.

 

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.

 

Kind regards

 

Claire Amor
Head of Governance

The Health and Care Professions Council
Park House, 184 – 186 Kennington Park Road, London SE11 4BU
[2]www.hcpc-uk.org

 

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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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