Whether the HSE was justified in refusing access, under sections 30(1)(a) and 37(1) of the FOI Act, to a 2015 report on orthodontic services

13 July 2023

Background

It is relevant to note at the outset that the record at issue in this case was previously the subject of a review by this Office, involving the same parties. In December 2016, we affirmed a decision of the HSE to refuse the applicant-�s request for access to a 2015 report by two UK professors following an investigation into claims that children had been "damaged" in the Irish public orthodontic services (Case160219).

The decision noted that it is standard practice that professional indemnity insurance is provided to protect external reviewers from personal liability in the course of their work. During the review, the HSE had explained that as a condition of cover, the insurers require the HSE to seek and receive approval from its legal advisors regarding the content of any written report or correspondence prior to its release to any third party. It said it had had received legal advice to the effect that the necessary insurance indemnity in respect of any proceedings arising from the findings would not apply unless legal approval had been given for the process used. It said approval was not forthcoming in respect of the specific report sought because of possible procedural deficiencies in the process at the time.

The HSE added that because of the difficulties outlined, the report was not ready for release. It said claims that children had been "damaged" in the public orthodontic services were still being examined in accordance with its normal "look back" procedures and that this review was being overseen by a multi-disciplinary team with the benefit of the external orthodontic expertise. It said it intended to publish the details as soon as the examination was concluded and to include the input of the external orthodontists, possibly in redacted form.

This Office accepted that if a report was released in circumstances where the HSE could not meet the conditions of professional indemnity cover, external professionals would be less willing to act as external reviewers, which could prejudice the effectiveness of future investigations or inquiries. We also found that, given the legal advice that the findings were unreliable at that time, release would be likely to negatively impact on further investigation of the complaint by exacerbating the tensions that already existed between the various parties. We found that the release of the record at that time would result in a risk of prejudice to the effectiveness of the review which the HSE had advised was ongoing. We found the report to be exempt from release under section 30(1)(a) of the FOI Act.

On 7 June 2021, the applicant submitted a further request to the HSE for access to the 2015 report. In a decision dated 28 July 2021, the HSE refused access to the report under sections 30(1)(a), (b) and (c), and section 37(1) and (7) of the FOI Act. On 18 August 2021, the applicant sought an internal review of the HSE-�s decision in which he contended that the decision maker didn-�t give any reasons why the records would fall to be exempt under section 30, or what harm might arise should the report be released. He included detailed submissions outlining his views in respect of each of the exemptions claimed by the HSE and why he believed the report should be released.

On 5 October 2022, the HSE affirmed its refusal of the request, under sections 30(1)(a) and (b) and 37(1) and (7). It said the version of the report commissioned by the HSE in 2015 -�continues to be deemed not ready for publication-�. It also stated that a lookback exercise had been undertaken by the HSE in respect of the period of concern, which was ongoing at the time of the internal review. On 5 January 2022, the applicant applied to this Office for a review of the HSE-�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 HSE as outlined above and to the correspondence between this Office and both parties 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 Review

The record at issue comprises a report and 19 pages of supplementary documentation (the report). My review is concerned solely with whether the HSE was justified in refusing to release the report under sections 30(1)(a), 30(1)(b), 37(1), and 37(7) of the FOI Act.

Preliminary Matters                                                                         

Before I address the substantive issues arising in this case, it is important to note that while I am required by section 22(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 25(3) that I take all reasonable precautions to prevent disclosure of information contained in an exempt record during the course of a review.

Analysis and Findings

Section 30(1)(a)

Section 30(1)(a) of the Act provides for the refusal of a request if the FOI body considers that access to the record sought could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof.

Section 30(1)(a) envisages two potential types of "prejudice" or harm. The decision maker must hold the view that the release of the record could reasonably be expected to prejudice the "effectiveness" of the tests, examinations, investigations, inquiries or audits, or prejudice the "procedures or methods employed for the conduct thereof-�.

Where an FOI body relies on this provision, it should identify the potential harm in relation to the relevant function specified in paragraph (a) that might arise from disclosure. Having identified that harm, it should consider the reasonableness of any expectation that the harm will occur. The FOI body should explain how and why, in its opinion, release of the record(s) could reasonably be expected to give rise to the harm envisaged. A claim for exemption under section 30(1)(a) must be made on its merits, in light of the contents of each particular record concerned and the relevant facts and circumstances of the case. Where a record is exempt under either section 30(1), the public interest test at section 30(2) must be considered.

The HSE-�s submissions

In its submissions of 6 April 2022 to this Office, the HSE said it sought and received legal advice in February 2016 in relation to any legal issues that might arise on the publication of the report. It said this legal advice identified the need to ensure that the constitutional requirements of natural justice and fair procedures were complied with, particularly where individuals are criticised in reports. It said it was identified that individuals should be provided with an opportunity to respond to any criticism and to make submissions and they are also entitled to sight of relevant documents. It said this legal advice also suggested a need to seek further legal advice as to the contents of the report and the scope of the terms of reference. It said it was not known whether the report had been legally proofed and it was noted at that time that from a preliminary review of the report, there was no reference to the application of fair procedures up to that point.

The HSE added that it wrote to the Review Team on a number of occasions seeking confirmation of the procedures/approach used during the course of its review to ensure that fair procedures and natural justice were afforded to all parties. It said that in the event that such a process did not occur, it would like to discuss the possibility of re-engaging the services of the Review Team for the production of a report in compliance with the constitutional requirements of natural justice and fair procedures. It said that following searches conducted, it appears that it wrote to the Review Team most recently on 28 March 2017 but that no response was received.

The HSE argued that if the report was to be released to the world at large without having established that the Review Team afforded fair procedures and natural justice to all parties and that the Review Team sought to have the report legally proofed so that any avoidable legal risk be minimised, there is a risk of exposure to litigation such as defamation actions or challenges by way of judicial review proceedings to the processes and findings of the Review Team. It said insurance issues also arise, if litigation were initiated by individuals referred to in the report, in circumstances where it had not been possible to establish that the Review Team ever sought or had an indemnity from the HSE for their work. It said it has not been possible to establish if an explicit assurance of confidence was given to the participants. It said, however, that if an assurance of confidence was given, then the release of information given in confidence in the course of this particular review would likely prejudice the procedures or methods employed for the conduct of such reviews and investigations in the future.

The HSE added that the legal advice of February 2016 notes that there is a lengthy history of review reports being challenged in circumstances where fair procedures have not been applied both in Ireland and the United Kingdom. It said that in the absence of a response from the Review Team, the status of the Report and the legal risk to the HSE presented by releasing the report which has not been legally reviewed, continues to exist now, as it did in February 2016 and would not appear to be capable of remediation at this stage.

The HSE went on to explain that a National Primary Care Incident Oversight Team was established in October 2015 following receipt of the report. It said this Oversight team commenced the management of the incident in accordance with the HSE Safety Incident Management Policy (2014) and HSE Look-Back Review Process (2015). It said that in the interests of patient safety, the parameters of the HSE-�s Lookback Review were more wide ranging than the initial review. It said undertaking the full lookback required proved complex and despite much effort, planning and resources, the Primary Care Oversight Team was unable to complete the full record retrieval and audit phase of the required Look-back process.

The HSE added that a Serious Incident Management Team (SIMT) was commissioned by the National Director of Community Operations in 2019 to ensure that the incident management process that commenced in 2015 was completed and concluded through to patient recall stage if it was the case that any orthodontic patient was considered to have been potentially harmed. It said that since receipt of the report, the HSE has audited over 7,500 patient files available from that period. It said that due to the scale of the audit and the requirements for specialist staff and resources the timeline has been protracted. It said that while it is regrettable that this work has taken so long to progress, its priority at all times has been for a robust audit on which to base any further action required. It said the audit and clinical review of relevant patient files from the period have been completed and that the final draft of the Report was under review with a view to publication in the near future. It argued that the release of the 2015 report which has not been validated as legally vetted to the world at large at this time has the potential to disrupt the proper conclusion of the Report of the Lookback Review. It again added that the legal issues identified and which gave rise to legal risk for the HSE had it proceeded to publication of the report in 2015/2016 continue to exist, and would not appear to be capable of remediation at this stage.

The applicant-�s submissions

In his submissions, the applicant said it was his understanding that the HSE intended to review the report and to publish it. He said this was confirmed in answers to several parliamentary questions as he outlined in his submission accompanying his application for internal review. He said the intention to publish the report was also made clear to the authors of the Report when they were engaged. He said that at that point, they were told that there would be full and open access and that the report was therefore prepared with publication in mind. He said the authors of the report have confirmed to him that they have written to the HSE annually asking for it to be published and are frustrated at the lack if publication since it was completed, and he enclosed a copy of a letter he had received from the authors of the report.

The applicant added that it appears that despite previous assurances, the HSE has now decided not to voluntarily publish the Report. In support of that position, he referred to a briefing dated 30 October 2020 and letter dated 3 November 2021 from the HSE to the Oireachtas Joint Committee on Health.

The applicant argued that the HSE-�s reliance on section 30 is entirely unreasoned and amounts to bald assertions. He referred to the judgment of the Supreme Court inMinister for Health v Information Commissioner[2020] IESC 57 (the eNet judgment), noting that any refusal by a decision maker must be fully reasoned and sufficiently coherent, fact specific and logically connected to the document or records such that the justification is sufficient.

Following sight of a summary of the HSE-�s submissions, the applicant made further submissions on the matter on 8 November 2022. He noted that the HSE had published the HSE published a Report of the -�Look-Back Review into Orthodontic Services -� Dublin Mid-Leinster, 1999-2002-� in April 2022. He said it was clear from that published report that the report completed in 2015 gave rise to further actions of the HSE which have culminated in the publication of a Look Back report in April 2022. He argued that as the report sought was completed in 2015, this part of the investigation (essentially scoping) was neither ongoing nor subject to further review. He argued that if that was the case, the HSE would have had to wait for the 2015 report to be completed before initiating the next steps based on its recommendations, but this next step has now been completed in reliance on the 2015 report-�s recommendations. He argued that it is inconsistent for the HSE to have published a more detailed report which followed from the 2015 report and at the same time continue to refuse to publish the 2015 report which was used to scope the subsequent report, particularly where the basis for the refusal, in part, depends on an allegation that the 2015 report has yet to be legally reviewed.

The applicant further argued that the HSE has had plenty of time to complete its legal review and in fact has done so, given that it has moved on to the next stage. He argued that the HSE hasn-�t said whether the alleged prejudice is to the effectiveness of tests, examinations, investigations, inquiries or audits or whether it is prejudice to the procedures or methods employed for the conduct thereof. He argued that section 30(1)(a) does not apply to concluded activities and he argued that by definition, an investigation that has concluded cannot be prejudiced.

In respect of the HSE-�s argument concerning fair procedures, the applicant cited a lack of evidence in respect of this being an issue, and that the gist of the HSE-�s statement is essentially if it is an issue it may result in legal action. He argued that it is clear from the lookback review and previous PQs on the matter that the 2015 report made no findings on patient harm, and that the it only recommended an investigation take place.

He said that in the seven years since the report was completed, the HSE has apparently not made any attempt to establish whether fair procedures were followed, despite being continually requested by the report authors to publish the report. He further argued that even if there was a risk of litigation arising from publication of the report, this is not a harm as encompassed by section 30.

My Analysis

It seems to me that the HSE has identified a number of potential harms that could arise as a result of the release of the report sought, as follows:

i. The risk of exposure to litigation, such as defamation actions or challenges by way of judicial review proceedings to the processes and findings of the Review Team, if the report was to be released without having established that the Review Team afforded fair procedures and natural justice to all parties and that the Review Team sought to have the report legally proofed so that any avoidable legal risk be minimised,

ii. Insurance issues also arise, if litigation were initiated by individuals referred to in the report, in circumstances where it had not been possible to establish that the Review Team ever sought or had an indemnity from the HSE for their work,

iii. While it has not been possible to establish if an explicit assurance of confidence was given to the participants, if such an assurance was given then the release of information given in confidence in the course of the review would likely prejudice the procedures or methods employed for the conduct of such reviews and investigations in the future, and

iv. Release of the report which has not been validated as legally vetted to the world at large at this time has the potential to disrupt the proper conclusion of the Report of the Lookback Review.

On the matter of the HSE-�s concerns that the publication of the report might give rise to litigation, it seems to me that this, of itself, is not a harm that section 30(1)(a) serves to protect. I do, however, accept that if the HSE was to release a report without having established that the review team had afforded fair procedures and natural justice to all parties referenced in the report, it is reasonable to expect that the effectiveness of future such reviews could be prejudiced. I am satisfied that a future review team-�s ability to secure full and frank cooperation from potential participants could reasonably be expected to prejudice the effectiveness of its review if concerns arose that procedural fairness and natural justice principles might not be adhered to.

I note the applicant-�s comments concerning the apparent lack of evidence in respect of procedural fairness being an issue in this case. Having regard to the contents of the report and the supplementary information annexed with it, I accept that such issues could well arise. I must say it is somewhat surprising that the HSE has not been able to establish if the review team had afforded fair procedures and natural justice to all parties referenced in the report in this case in circumstances where the authors of the report appear to have been calling for its publication. However, I note that there is no reference to the application of fair procedures in the report itself. Moreover, I have no reason to doubt the HSE-�s assertion that it wrote to the Review Team on a number of occasions seeking confirmation of the procedures/approach used during the course of its review to ensure that fair procedures and natural justice were afforded to all parties and that it has not, to date, received a response, notwithstanding the applicant-�s unsubstantiated claim that in the seven years since the report was completed, the HSE  had -�apparently not made any attempt to establish whether fair procedures were followed, despite being continually requested by the report authors to publish the report-�.

In relation to the second harm identified, namely the insurance issue, while the HSE did not go into detail on this point in it submissions, the applicant will be familiar with the substantive argument from our previous review. As I have outlined in the Background section above, in case 160219 we accepted that if a report was released in circumstances where the HSE could not meet the conditions of professional indemnity cover, external professionals would be less willing to act as external reviewers, which could reasonably be expected to prejudice the effectiveness of future investigations or inquiries. I also note the HSE-�s assertion that it had not been possible to establish that the Review Team in question ever sought or had an indemnity from the HSE for their work.

In relation to the third harm identified, I note that the HSE has not been able to establish if an explicit assurance of confidence was given to the participants to the review in this case. Nevertheless, in the particular circumstances of the review and having regard to the contents of the report at issue, it seems reasonable to assume that at least some of the participants are likely to have participated on the basis of an understanding that their identities would not be disclosed and that in future such reviews, potential participants would be less like to participate in a frank and full manner without such an understanding, thereby prejudicing the effectiveness  of such reviews. Indeed, I note that the second part of the report, comprising supplementary documentation, is described in the report as -�confidential supplementary documentation-�.

Finally, in relation to the fourth harm identified, I note that the report following the lookback review has now been published and as such, I find that the release of the report cannot, at this stage, disrupt the proper conclusion of the Report of the Lookback Review

In conclusion, I am satisfied that the release of the report at issue could reasonably be expected to prejudice the effectiveness of future reviews in circumstances where the HSE has not been able to establish that the review team had afforded fair procedures and natural justice to all parties referenced in the report. I also accept that if the report was released in circumstances where the HSE could not confirm that it had met the conditions of professional indemnity cover, external professionals would be less willing to act as external reviewers which could reasonably be expected to prejudice the effectiveness of future investigations or inquiries. I also accept that in the absence of an assurance that their identities would not be disclosed, potential participants in future such reviews would be less like to participate in a frank and full manner, thereby prejudicing the effectiveness of such reviews. I find, therefore, that section 30(1)(a) applies.

The Public Interest

Section 30(2) provides that section 30(1)(a) does not apply where the FOI body consider that the public interest would, on balance, be better served by granting than by refusing to grant the request.

Among other things, the applicant argued that the public interest would be better served by the release of the report at issue. He argued that not releasing the report undermines public confidence in the Government, the HSE, the quality of care the State offers to Children and patients, and the proper and transparent functioning of bodies that are operated by taxpayers-� money

Noting the work that was undertaken in the lookback review since the report was prepared, he said it would appear a great deal of taxpayers-� money has been spent and continues to be spent, and he argued that the public have a right to know what this is all about, and where their money is going, and that taxpayers-� money is not being wasted

He added that it is in the public interest that any issues identified concerning any aspect of the health system are made known and that citizens are made aware of what steps the public body has been recommended to take to remedy any identified risks to their welfare and to be able to monitor and ensure that proper action is being undertaken.

The HSE argued that there is a public interest in protecting the efficacy and accuracy of investigations into the conduct of the HSE. It nevertheless acknowledged the significant public interest in examining the -�Statement of Concern-� that -�children had been damaged by the HSE Orthodontic Services-� during the period in question so that validated findings can be made and appropriate actions taken of foot of these findings. However, it said that public interest is being addressed and served by actions on the part of HSE since receipt of the report. It argued that in light of those subsequent actions towards serving the public interest, the release of the report sought will not advance that public interest any further. It argued that in the particular circumstances of this case, the public interest would, on balance, be better served by protecting the efficacy and accuracy of investigations into the conduct of the HSE.

I acknowledge that the applicant has identified a number of relevant public interest factors in favour of the release of the report in this case but these must, in my view, be balanced against the public interest served by section 30(1)(a). In the eNet judgment referenced above, the Supreme Court found that section 36(1), which is concerned with the protection of commercially sensitive information, recognises that there is a public interest in the protection of commercial sensitivity and this may be normally served by the operation of the exemption itself, which provides for the refusal of an FOI request. It seems to me that this approach applies equally to other exemptions that serve to avoid certain harms. Section 30(1)(a) reflects a public interest in protecting the effectiveness of reviews conducted by FOI bodies and the related review procedures used.

On the other hand, I accept that there is a significant public interest that any issues identified concerning any aspect of the health system are made known and that citizens are made aware of what steps the public body has been recommended to take to remedy any identified risks to their welfare and to be able to monitor and ensure that proper action is being undertaken. However, it seems to me that significant public interest has been served to a large extent by the actions taken by the HSE following receipt of the report at issue and following its publication of the lookback report. I am not satisfied that the release of the report sought would further serve that public interest to the extent that it would outweigh the public interest in protecting the effectiveness of reviews conducted by FOI bodies and the related review procedures used. I find, therefore, that the public interest would, on balance, be better served by refusing access to the report sought. I find that section 30(2) does not serve to disapply section 30(1)(a) in this case.

Having found section 30(1)(a) to apply, it is not necessary for me to consider the applicability of section 37(1) to the report.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE-�s decision to refuse access, under section 30(1)(a) of the Act, to the report sought.

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