Case Number: 160451

Whether the Hospital was justified in refusing the applicant's request for a statement of reasons under section 10 of the FOI Act relating to various decisions made in relation to his treatment

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The applicant was a patient in the Hospital who sought access to medical treatment by a named doctor in the UK (Dr X) through the Treatment Abroad Scheme. He was notified by the Hospital that this was not possible as Dr X no longer worked for the National Health Service (NHS) in the UK. On 8 July 2016, the applicant requested access to "documentation and/or information" relating to the following:

The reason(s) behind Mr. Hannon's (a consultant in the Hospital) decision to refer the applicant to London for surgery.
The reason(s) behind Mr. Hannon's decision not to look for another doctor in London after he found out that Dr X no longer works for the NHS.
The reason(s) behind Mr. Hannon's decision to discharge the applicant without putting a care plan in place.

On 8 August 2016, as the Hospital had not replied to his request, the applicant sought an internal review on the basis of a deemed refusal. The Hospital issued a decision on 31 August 2016, refusing his request on the basis of section 15(1)(g) of the FOI Act, as it considered that his request (submitted with two other related requests - Case Nos. 160417 and 160450 refer) formed part of a pattern of manifestly unreasonable requests.

The applicant applied to this Office for a review of that decision on 3 October 2016.

In conducting this review I have had regard to correspondence between the applicant and the Hospital in relation to his request and to correspondence between this Office and both the applicant and the Hospital on the matter.

Preliminary Matters

It is relevant to note, as a preliminary matter, that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. Neither does this Office's remit extend to examining the appropriateness or otherwise of the particular act(s) or decision(s) for which statements of reasons are sought. If the applicant is dissatisfied with the Hospital's response to his complaint concerning his care, he may wish to contact the Office of the Ombudsman on that matter.

Scope of Review

This review is solely concerned with whether the Hospital was justified in its decision to refuse the applicant's request for statements of reasons as set out above on the basis that it formed part of a pattern of manifestly unreasonable requests.

Analysis and Findings

The Hospital refused the applicant's request on the basis of section 15(1)(g) of the FOI Act, on the grounds that this request formed part of a pattern of manifestly unreasonable requests.

A request may be refused under section 15(1)(g) where the public body considers that the request is frivolous or vexatious or forms part of a pattern of manifestly unreasonable requests from the same requester.

This Office considers that a request may be regarded as frivolous or vexatious where it has either been made in bad faith or forms part of a pattern of conduct that amounts to an abuse of process or an abuse of the right of access. The Commissioner has previously set out a number of non-exhaustive factors considered to be relevant in assessing whether a request may be categorised as frivolous or vexatious, which may overlap with whether a request forms part of a pattern of manifestly unreasonable requests. The factors include:

the number of requests made - are they considered excessive by reasonable standards?
the nature and scope of the requests - are they excessively broad and varied in scope or unusually detailed?
the purpose of the requests, e.g. have they been made for their "nuisance value"; are they made without reasonable or legitimate grounds; and/or are they intended to accomplish some objective unrelated to the access process?
the intent of the requester - is the requester's aim to harass the public body?

In its internal review decision, the Hospital stated that the records requested by the applicant either did not exist or were being sought because he was "dissatisfied with clinical decisions" made in relation to his care and subsequent discharge. It also stated that the applicant's requests were "designed to disrupt" the work of the hospital and to "intimidate staff".

In response to queries from Ms Sandra Murdiff of this Office, the Hospital stated that it refused the applicant's request in this case on the basis that it was frivolous, vexatious or forms part of a pattern of manifestly unreasonable requests. It also contended that he was provided with reasons, both verbally and in writing, for the above decisions. In essence, it appears to be of the view that the applicant had submitted his request despite knowing why the Hospital had acted like it did.

The Commissioner is of the view that the refusal of requests under section 15(1)(g) is not something which should be undertaken lightly. In this case, I am aware of three requests made by the applicant, all of which relate in some way to his care in or his discharge from the Hospital. On the face of it, three requests would not necessarily be excessive. Furthermore, his request in this case does not appear to be excessively broad or unusually detailed. However, I do accept that the submission of repeated requests arising from an incident can place an administrative burden on the Hospital's resources.

I note that Ms Murdiff asked the Hospital to supply details of the information relied upon by it in coming to the decision to refuse his request under section 15(1)(g) of the Act. The Hospital almost exclusively relied on its argument that the applicant already knew the reasons for the acts or decisions of the Hospital identified in his request.

Despite stating that his requests formed a pattern of behaviour which he "had shown in the past" of "dissatisfaction with clinical decision(s) followed by numerous requests and complaints made to the Hospital", it has not provided any evidence to this Office this is the case.

It is important to note that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 12 shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the Hospital to satisfy this Office that its decision to refuse the applicant's request was justified.

Having carefully reviewed the Hospital's decision and submission to this Office, I do not consider that there is sufficient evidence before me to support a view that the applicant's request should be classed as having been made for its nuisance value or intended to achieve some objective other than access. Accordingly, I do not consider that the Hospital has justified its decision to refuse the applicant's request on the basis of section 15(1)(g) of the Act. I find accordingly.

Section 10
Section 10 of the FOI Act provides that a person who is affected by an act of an FOI body, and has a material interest in a matter affected by the act or to which it relates, is entitled to a statement of reasons for the act as well as a statement of any findings on any material issues of fact made for the purposes of that act. Section 10(5) provides that a person has a material interest in a matter affected by an act of an FOI body or to which it relates:
"if the consequence or effect of the act may be to confer on or withhold from the person a benefit without also conferring it on or withholding it from persons in general or a class of persons which is of significant size having regard to all the circumstances and of which the person is a member."

"Benefit" is defined at section 10(13) of the Act as including:

"(a) any advantage to the person,
(b) in respect of an act of an FOI body done at the request of the person, any consequence or effect thereof relating the person, and
(c) the avoidance of a loss, liability, penalty, forfeiture, punishment or other disadvantage affecting the person."

This Office has previously set out its approach to, and interpretation of, the equivalent provision of the FOI Acts 1997 & 2003 (Section 18). While not identical, section 10 is quite similar to that equivalent provision. Insofar as it applies to this review, I am satisfied that the approach previously adopted remains relevant to my consideration of section 10 of the Act of 2014. In particular, it is important to note that the requirement on a FOI body to provide a statement of reasons for an act of the body does not require each and every member of staff who might have contributed in any way or had been involved in the decision making process to provide an account of his/her reasons for every action he/she carried out during the course of the body's decision making process. What section 10 requires is that the head provide a statement of reasons which adequately explains why the body acted as it did.

The applicant in this case requested documentation and/or information setting out the reasons relating to various decisions made by Mr Hannon. However, as explained above, the Hospital is not obliged to provide a statement of reasons for Mr Hannon's acts or decisions.

In relation to the Hospital's acts/decisions to a) refer the applicant to Dr X in London, b) not to look for another doctor when it transpired that Dr X was no longer available and c) to discharge the applicant without, as he saw it, putting a care plan in place, the Hospital has provided copies of correspondence to this Office from Mr Hannon (Consultant in the Hospital) to Dr X (dated 1 March 2016) and Professor Plunkett (Medical Director) to the applicant (dated 18 April 2016). It stated that the applicant had been provided with copies of both letters.

In essence, it argues that these letters set out the reasons behind the acts or decisions of the Hospital relevant to the applicant's request.

It appears that while the Hospital favoured a more conservative approach, it contacted Dr X on foot of the applicant's wishes. The letter of 18 April 2016 clearly states "[t]he reason Mr Hannon made a referral to the Treatment Abroad Scheme was that you indicated that your former surgeon Dr X had offered the possibility of surgery in the past". Mr Hannon's letter to Dr X essentially says the same thing. It seems that the applicant requested that he be assessed by Dr X as he was of the view that further surgery was required and that Dr X would provide said surgery.

Professor Plunkett's letter also states that it was the Hospital's belief "that no gastrointestinal surgeon in the NHS" would be prepared to offer the surgical procedure sought by the applicant. It seems clear to me that this was the reason no other doctor was sought.

In relation to the final part of the applicant's request, the Hospital contended that the applicant's care was reviewed and discussed at great length prior to 18 April 2016. The Hospital disputes the applicant's view that there was no care plan in place. In this regard, Professor Plunkett's letter refers to the fact that the applicant's condition had been stable for two months and that it was understood that his dietary needs would be provided for when he was discharged. It appears that the Hospital was of the view that the applicant's condition was no longer acute, he did not require in-patient treatment and that his care could be managed by his GP or on an out-patient basis. The letter also set out the steps which could be taken if his symptoms recurred. I am satisfied that there was a care plan in place. Therefore, it seems to me that there is no act or decision to be addressed in relation to the final part of the applicant's request.

This Office's view in relation to statements of reasons under section 10 of the Act is that provided the statement is adequate and clear, there is no requirement that it be in a particular form. Having carefully examined the contents of the letters of the 1 March and 18 April 2016, I am satisfied that they constitute an adequate statement of reasons for the Hospital's decisions as sought in the applicant's request.

Therefore, I find that the information provided to the applicant by the Hospital is adequate to meet its obligations under section 10 of the FOI Act.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the Hospital's decision. I find that it was not justified in refusing the applicant's request on the basis of section 15(1)(g) of the Act, however, I find that it had provided an adequate statement of reasons under section 10 of the Act.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator