Whether the HSE was justified in refusing the applicant access to policy documents relating to Practice Support Payments to General Practitioners under section 15 (1)(a) on the grounds that the records sought do not exist

13 January 2020

Background

In a request dated 12 November 2018 the applicant sought access to

1. All HSE records relating to a Practice Support deduction from the applicant-™s June 2017 PCRS Capitation Payment
2. All records relating to a registered letter dated 5th July 2017 sent by the applicant to a specified HSE staff member
3. All records relating to the Practice Support Payments to the applicant from 1st January 2016 to the date of his request
4. All HSE policy documents relating to Practice Support Payments to General Practitioners from 2010 to date

On 6 December 2018 the HSE issued a decision in which it stated it had decided to grant the request. On 7 January 2019 the applicant, through his representative, sought an internal review of that decision on the grounds that no internal records relating to decisions made had been released and no policy documents had been released.

The HSE issued its internal review decision on 28 January 2019 in which it varied its original decision and released 11 further records relating to Parts 1-3 of the applicant-™s request. It stated no further records existed in relation to Part 4, apart from the relevant statutory instruments and general practitioner circulars in respect of practice support payments that already released.

On 20 June 2019 the applicant sought a review by this Office of the HSE-™s decision in relation to Part 4 of his request.

By email of 27 August 2019, Ms Hannon of this Office wrote to the applicant with details of the HSE-™s explanation of its reasons for deciding that no other relevant records exist. She informed the applicant of her view that the HSE was justified in refusing access to any additional relevant records and she invited the applicant to make a further submission on the matter.

As submissions have now been received, I have decided to bring this case to a close by way of a formal, binding decision. In conducting the review, I have had regard to the correspondence between the applicant and the HSE as set out above and to the communications between this Office and both the HSE and the applicant on the matter.

Scope of the Review

This review is concerned solely with whether the HSE was justified in refusing the applicant access to policy documents relating to Practice Support Payments to General Practitioners from 2010 to date under section 15 (1)(a) on the grounds that the records sought do not exist.

Preliminary Matter

It is important to note that this Office has no role in examining the appropriateness, or otherwise, of the administrative actions of public bodies, nor is it the role of this Office to comment on how an FOI body performs its functions generally.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record sought does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. The role of this Office in cases such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his decision and I must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

In his application for review, the applicant stated that he received no policy documents relating to practice support payments to GPs, for example, how such payments are calculated and why the HSE has set 40 hours as the maximum hours when the relevant circular does not have such a cap.

In submissions to this Office, the HSE provided details of the searches conducted to locate the records sought by the applicant and of its record management practices. As this Office has already provided the applicant with those details, I do not propose to repeat them in full here.

In summary, the HSE stated that the Statutory Instruments released to the applicant represented the underpinning legislation that the HSE relied upon to implement its payment practice. It said that the Statutory Instruments have not been transposed into a policy document to communicate the details of same as it is not HSE policy to do so. It said it is HSE policy to communicate such details to relevant primary care contractors via the means of circulars, which it had released to the applicant.

Regarding the issues raised by the applicant in his application for review, it referred to an agreed contract with Registered Medical Practitioners.  It said that pursuant to the GMS contracts, contracted GPs are obliged to make their practice available for consultations for a total of 40 hours per week. It said it refers to this as -˜normal contracted hours-™. It said this agreement between the medical practitioner and the HSE relies upon the agreement which exists between the Minister and the Irish Medical Organisation regarding arrangements for the provision of services to be entered into under sections 26 and 58 of the Health Act, 1970.  It also stated that the subsidy amount that the HSE pay in respect of practice support nurses is set out by the Financial Emergency Means in the Public Interest Act 2009 and in alignment with SI No 277 of 2013 which was released to the applicant.

During the course of the review, the HSE finalised a report of its investigation of complaints made by the applicant. In the report, the HSE stated that practice support payments are calculated using a complex and efficient algorithm. In a subsequent submission to this Office, the applicant again raised issues regarding the maximum hours of 40 hours set by the HSE arguing that none of the Statutory Instruments refer to a cap of 40 hours on the maximum subsidy payable to GP-™s for the employment of nurses or secretarial staff. He also argued that the details of the algorithm should have been released.

On foot of this submission, the Investigator sought further information from the HSE regarding how the practice support payments are calculated using what it referred to as a complex and efficient algorithm.

In response, the HSE said the Department of Health Circular 5/89 first introduced a contribution towards Practice Support payments and it sets down the basis for the subsidy payment on which subsequent circulars were built. It said the Practice Support payments are subsidies to GMS contract holders towards the cost of employing support staff, namely, practice nurses, secretaries and practice managers. It said the subsidy rate applies to full-time staff, i.e. working 40 hours or more per week, and is applied pro rata for shorter durations. The rates of these payments are calculated based on average weighted panel. The maximum payment rates apply where a GP has a panel size of 1,200 patients or more -“ the smallest panel size being 100 with payments increasing in bands of 100.

It outlined that where the qualifying conditions are met, doctors who wish to be paid a subsidy towards the cost of practice staff complete a Form PSN/1 and attach a copy of the employment contract and, in the case of a practice nurse, a current certificate of registration with the Nursing & Midwifery Board of Ireland. It said PSN/1 forms are completed by GPs for new/existing employees.  These forms along with a copy of signed contracts and all required supporting documentation are sent to the relevant Community Healthcare Organisation (CHO) for approval. Once approved, the CHO office returns copies of approved forms and supporting documentation to the GP.  The HSE receives approved part 2 of the PSN/1 form which is processed onto the Claims and Payments system.

It said in December each year a circular and 2 PSN/1P forms are included with detailed payment listing to which the HSE request a copy of P35, P35L and P60.  From January going forward GPs complete these forms in respect of all employees who received a subsidy during the previous year in order to facilitate a reimbursement to the GP during the current year.

The HSE explained that for the most part, the checking of eligibility and the verification of payments is done manually. As outlined above, once the HSE receive the approved form from the CHO, the data is entered by the HSE into its Claims & Payments system. It said the payments go through automatically every month and these are reconciled at the end of the year.  It said where the figures do not reconcile at the end of the year, manual calculations are undertaken and the GP is written to in order to ascertain if any changes had occurred that were not notified to the HSE that might affect the figures. It added that an independent review had been undertaken which made no finding of any system errors in the reconciliation process.

The HSE said there is no one policy document on practice support payments as the subsidy was introduced as part of contract negotiations and underpinned by way of Statutory Instruments. It said the Claims & Payments system is a computer programme so obviously there are algorithms underlying how it works, just as there would be for any payroll system. However, it argued an algorithm cannot be considered a policy document and consequently it is not within the scope of the applicant-™s request.

The applicant-™s request was for all HSE policy documents relating to Practice Support Payments to General Practitioners from 2010 to date. The FOI Act provides for a right of access to records held by a public body. If the record sought does not exist that is the end of the matter, regardless of whether the requester considers that further records ought to exist.

It appears that the applicant expected to be provided with a copy of a HSE policy document containing information relating to the method of calculation of his practice support payments. The HSE-™s position is that no such policy document exists and that the algorithms underpinning its Claims and Payments system is not a policy document.  I accept the HSE-™s explanation on this point.

In light of the explanation given by the HSE as to why it does not hold policy documents relating to the Practice Support Payments to General Practitioners, I am satisfied that it was justified in refusing access to further relevant records under section 15 (1)(a) on the grounds that such records do not exist.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE to refuse the applicant access to records of policy documents relating to Practice Support Payments to General Practitioners under section 15 (1)(a) on the grounds that the records sought do not exist.

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.

Stephen Rafferty

Senior Investigator