Whether the Medical Council was justified in refusing, under section 35(1)(a) of the Act, the applicant’s request for access to a letter that a doctor submitted to its Preliminary Proceedings Committee in response to a complaint she had made against him

16 September 2020

Background

Under the Medical Practitioner’s Act 2007 the Medical Council is responsible for examining complaints in relation to doctors. All complaints are initially handled by its Preliminary Proceedings Committee (PPC). It is the role of the PPC to investigate a complaint, decide whether it warrants further action, and provide recommendations to the Medical Council.

On 23 July 2019, the applicant sought access to a letter from her General Practitioner (GP) to the PPC. The letter in question was the GP’s response to the PPC concerning a complaint the applicant made about him to the Medical Council in May 2019.

In its decision of 19 August 2019, the Medical Council refused the request under section 35(1)(a) of the Act. The applicant sought an internal review of that decision, following which the medical Council affirmed the decision to refuse her request under section 35(1)(a). On 16 June 2020, the applicant sought a review by this Office of the Medical Council’s decision. 

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the correspondence between the applicant and the Medical Council as set out above and to the correspondence between this Office and both the applicant and the Medical Council on the matter. I have also had regard to the contents of the record at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

This review is concerned solely with whether the Medical Council was justified in refusing, under section 35(1)(a) of the Act, the applicant’s request for access to the letter that was submitted to the PPC by the GP against whom she had made a complaint.

Analysis and Findings

Section 35(1)(a) of the Act provides for the mandatory refusal of a request where the record concerned contains information given to an FOI body in confidence and on the understanding that it would be treated by it as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and where the body considers that disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is important to the body that such further similar information should continue to be given to the body.

In simple terms, the provision serves to protect certain confidential information given to an FOI body.  In order for section 35(1)(a) to apply, the FOI body must show that :

• the information was given to an FOI body in confidence,
• the information was given on the understanding that it would be treated by the FOI body as confidential,
• disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons, and
• it is of importance to the body that such further similar information should continue to be given to the body.

In its submission to this Office, the Medical Council said that a doctor’s participation in its complaints process is considered private and confidential and that a doctor is not obligated to participate. It said it considers all correspondence with doctors to be “in confidence” and that it takes great care to protect such information during its investigation process.

It noted in this case that the GP in question clearly stated that the information included in his response was confidential and he specifically requested that the information would not be shared with the applicant. It noted that this request was made out of concern for the applicant and for her mental well-being.

The Medical Council added that once it has been determined that there was no prima facie evidence against a doctor, it is standard practice of the Medical Council to neither confirm nor deny a complaint was made against a doctor as releasing a response would confirm a complaint was made and investigated.

The Medical Council further added that should doctors choose not to engage with it, the organisation would be hindered from performing its statutory functions effectively. It said it investigates every complaint made and it argued that should its confidence in candid feedback be undermined, it would dramatically reduce the effectiveness of the Medical Council to make informed decisions during its complaints process and thus hinder the standards in regulation for doctors that provide healthcare to the citizens of Ireland.

I note that in its internal review decision, the Medical Council indicated that complainants may be provided with access to the doctor’s response and other material in relation to the investigation where directed by the PPC and on a case by case basis but that there was no such direction given by the PPC in this case. Having regard to the nature and contents of the record at issue, I am satisfied that it contains information given to the Medical Council in confidence. I accept that, in this instance, the applicant’s GP furnished his comments to the PPC in confidence and that both the GP and the Council understood that the information would be treated as confidential. In the circumstances, I am satisfied that the first two requirements of section 35(1)(a) have been met.

I am also satisfied that the Medical Council was justified in forming the view that the disclosure of the record would be likely to prejudice the giving to the Medical Council of further similar information from the same person or other persons. Doctors are not obligated to participate in the Medial Council’s complaints process. As such, I accept that the disclosure of information that doctors understood to have been given to the Medical Council in confidence in response to a complaint would be likely to adversely affect the level of candour with which they might engage with the Medical Council in future investigations, with the result that they would be likely to withhold certain important information when responding to complaints, if at all.

Finally, I am satisfied that it is important to the Medical Council that it should continue to receive similar information to that at issue in this case in the future, given its statutory functions relating to the examination of complaints against doctors. I accept the Medical Council’s argument that in order to properly fulfil its investigative function, full and candid reports from doctors in response to complaints made against them should continue to be made available to it.  I find that the fourth requirement for section 35(1)(a) to apply has been met in this instance.

I find, therefore, that section 35(1)(a) applies to the record at issue in this case. However, that is not the end of the matter. Section 35(3) provides that section 35(1)(a) does not apply where the body considers that the public interest would, on balance, be better served by granting than by refusing the request.

In relation to the issue of the public interest, it is important to have regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26. It is noted that a public interest ("a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.

In her application for review, the applicant noted that when she made a complaint to the Medical Council in relation to her GP he was provided with a copy of the complaint in order to allow him to address the issues she had raised therein. She argued that she should be equally afforded an opportunity to have sight of her GP’s response in relation to her complaint.

In its submission to this Office the Medical Council stated that it has a duty to the public to ensure that doctors are keeping the highest professional standards possible in relation to providing care. It argued that if information such as is contained in the record at issue was to be released to the wider public, without full understanding of how the complaints process works or the details behind an actual complaint, this could undermine the processes of the Medical Council and public trust in it as a regulatory body. It argued that this could impair its ability to fulfil its statutory functions. 

Section 11(3) of the FOI Act requires FOI bodies to have regard to, among other things, the need to achieve greater openness in their activities and to strengthen their accountability and improve the quality of their decision-making. I accept that there is a public interest in disclosing information that enhances the transparency and accountability of the Medical Council in relation to the manner in which it investigates complaints. On this point, it seems to me that that the public interest in the enhancement of the transparency and accountability of the Medical Council is served to some extent by the fact that complainants are informed of the outcome of their complaints.

On the other hand, section 35(1)(a) itself reflects the public interest in the proper preservation of confidences. I am also of the view that there is a strong public interest in ensuring that the Medical Council can conduct effective investigations and in ensuring that it can meet its responsibilities to the public of ensuring that doctors are keeping the highest professional standards possible in relation to providing care. As I have outlined above, I accept that the release of the record at issue in this particular case would be likely to prejudice the flow of important confidential information to the Medical Council in the future and that this would, in turn, prejudice the effectiveness of the Medical Council’s investigation of complaints.  

Accordingly, I find that the public interest would not be better served by the release the record at issue. I find, therefore, that the Medical Council was justified in refusing access to the relevant record under section 35 of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm the Medical Council’s decision to refuse access to the record concerned, under section 35(1)(a) of the FOI 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.

 

Stephen Rafferty

Senior Investigator