Whether the Hospital has complied with the requirements of section 10 of the FOI Act in relation to various applications for statements of reasons

8 March 2024

Background

The Hospital and St Vincent's Private Hospital (SVPH) are part of the St Vincent's Healthcare Group. SVPH is not an FOI body.

By way of general background to this review, the applicant's father (Mr Y) was primarily a patient of SVPH. However, the applicant says that his father's condition was reviewed in a number of Hospital-based multi-disciplinary team (MDT) meetings, which included consultants/personnel from SVPH, and that Mr Y also had lab testing and scans done in the Hospital whilst an SVPH patient. The applicant says that his father also once attended the Hospital's A&E. I understand that the applicant has complained on behalf of his father about Mr Y's medical treatment and also raised concerns with the Hospital and SVPH about a particular consultant who works in both locations.

Parts 1, 4 and 7-12 of the applicant's 17-part correspondence with the Hospital of 27 March 2023 comprised applications under section 10 of the FOI Act for statements of reasons concerning Mr Y's treatment. I am not describing part 4 and 7 because, as outlined below, they do not form part of the review. The other section 10 applications can be summarised as follows:

• Part 1 seeks a statement of reasons as to why the Hospital decided not to investigate Mr Y's care in the Hospital, particularly the actions of the MDT.
• Part 8 seeks a statement of reasons as to why it was decided that a particular individual on the MDT should remain in that role, having regard to issues raised by the applicant about the individual's capability and performance.
• Part 9 seeks a statement of reasons as to why it was decided not to state the MDT's 'follow up' recommendation in a letter from the MDT lead to the primary consultant.
• Part 10 seeks a statement of reasons as to why it was decided to not include a certain negative test result in a particular 2020 MDT proforma/MDT template.
• Part 11 seeks a statement of reasons as to why the MDT decided not to inform Mr Y and his family of various matters that, essentially, concern an individual's performance in caring for Mr Y in SVPH.
• Part 12 seeks a statement of reasons as to why the Hospital decided to review its Melanoma MDT Standard Operating Procedures (SOPs) every three years, rather than annually in line with the National Cancer Control Programme (NCCP) SOP.

The remaining parts of the correspondence of 27 March 2023 sought access to various records. Case No. OIC-139024-S7T0X6 will consider part of the Hospital's decision on those requests.

The Hospital's decision of 27 April 2023 provided information relevant to parts 1, 4, 7, and 9-12. It refused part 8 on the basis that the relevant matter was not an act for which a statement of reasons is required.

In relevant part, the applicant's email of 27 April 2023 sought an internal review of the Hospital's decision on parts 1 and 7-12. The Hospital's internal review decision of 22 May 2023 provided additional details relevant to parts 1, 7 and 9-12, and affirmed its refusal of part 8.

The relevant parts of the applicant's correspondence to this Office of 31 May 2023 sought a review of the Hospital's decision on parts 1 and 8-12.

I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had hard regard to the above correspondence, to correspondence between this Office and the Hospital and the applicant and to the provisions of the FOI Act.

Scope of Review

The scope of this review is confined to whether the Hospital's decisions on parts 1 and 8-12 of the applicant's correspondence of 27 March 2023 is in accordance with section 10 of the FOI Act. The review does not extend to records that the applicant says the Hospital should now provide in support of its position.

Preliminary Matters

As the applicant knows, this Office has no role in relation to SVPH. Neither have we any remit to investigate complaints, to adjudicate on how FOI bodies (or their staff) perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.  As such, we cannot examine or take a view on whether acts or decisions taken by a public body for which statements of reasons are sought were appropriate.

Analysis and Findings

Section 10 in general

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.

Taking section 10 as a whole, this Office considers that the word "act" in the section must be interpreted as the exercise (or refusal to exercise) of a power or function which may result in the conferring or withholding of a benefit. In addition, the reasons for the act must have a bearing on the outcome of whether a person receives or does not receive a benefit or suffers a loss or a penalty or other disadvantage. In other words, if the same outcome would result regardless of the reasons for the act in question then section 10 does not apply to that act.

There are many acts or decisions taken by FOI bodies where section 10 has no relevance. The Oireachtas could not have intended that FOI bodies should be required, on demand, to provide a written statement of reasons and findings on any material issues of fact made for the purposes of every single action of the body. There will be many instances where a number of secondary actions/decision are taken in the course of making a substantive decision which affects a person and where that person has a material interest in a matter affected by that substantive decision or to which it relates. However, section 10 does not entitle a person affected by the substantive decision to a statement of reasons in respect of each and every action which was taken in arriving at that decision. Furthermore, the provision does not require an FOI body to justify the substantive decision concerned.

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.

The act for which a statement of reasons is sought must affect a person particularly, albeit not necessarily exclusively. Where the act of an FOI body affects a wide class of people (i.e. a class of significant size having regard to all the circumstances) and applies equally to all members of the class, an applicant who is a member of that class does not have a material interest in a matter affected by the act for the purposes of the FOI Act.

Part 1

The parties' arguments

The Hospital says that the MDT does not treat patients but instead makes recommendations to treating clinicians. It says that it has no role in reviewing the care of SVPH patients and that it has no access to SVPH patient information, care plans, etc. It says that all complaints relating to such matters are automatically re-directed to SVPH.

The Hospital says that on receipt of Mr X's complaint about Mr Y's care, it started a review under the complaints framework, by looking at the patient record to identify the main stakeholders to whom the complaint could be appropriately directed. It says that when it identified that Mr Y was under SVPH's care, it took no further steps to investigate the complaint. It says that it considered SVPH best positioned to address all aspects of the complaint because the MDT fed into Mr Y's overall SVPH care plan, and thus it provided the applicant with the SVPH Quality and Patient Safety Manager's contact details.

In his correspondence with this Office, including his response to my view that the Hospital's statement meets the requirements of section 10, the applicant says that the Hospital was responsible for part of his father's care. He outlines why he feels that certain persons on the MDT, and the MDT generally, were negligent. He says that the Hospital should have investigated the MDT's functioning. He says also that an MDT treatment plan is not just a recommendation and that the National Cancer Strategy describes MDTs as a cornerstone of modern cancer care. He emphasises that the primary SVPH consultant formed part of the MDT and is also employed by the Hospital.

The applicant says that the Hospital's decisions give two conflicting versions of events i.e. that he was told that no investigation had been carried out and also that an investigation had been started and was stopped when it was realised that his father was a SVPH patient. He says that the Hospital has not performed its duties as per the Incident Management Framework. He says that, in the circumstances, he should be provided with the pathway decision rationale as to why no investigation was carried out and/or the paperwork that should have been completed in the initial investigation.

Analysis

While I appreciate why the applicant feels that the Hospital should have examined his complaint, this Office has no remit to examine the Hospital's refusal to do so (or any refusal to examine other matters). In my view the details given to him by the Hospital, as set out above, are sufficiently clear to understand why it did not progress the matter. I also note the applicant's position that the Hospital should provide specific details in support of its decision not to examine his complaint. However, a statement under section 10 is not required to contain a detailed clarification of all issues that an applicant identifies as relevant to a particular act or decision.

I find that the details provided by the Hospital in relation to part 1 are sufficient for the purposes of a statement given under section 10 of the FOI Act.

Parts 8-11

The parties' arguments

In relation to part 8, the Hospital's position is that the continued inclusion of an individual on the MDT is not a matter for which a statement of reasons may be required. The applicant says that the Hospital accepts that he has a material interest for the purposes of the statement sought at part 12, i.e. on the basis that the MDT provides recommendations to primary clinicians to enable their decision making. He says that he must have a similar material interest for the purposes of part 8. He describes why he believes that the individual's continued inclusion on the MDT, and the MDT generally, deeply affected his father and his family and says that he should be given the requested explanation.

In relation to part 9, the Hospital has informed the applicant that a particular entry on the MDT Data Collection Tool indicates that a patient is for general follow-up by their primary consultant. It has also told him that the MDT does not normally advise a consultant to follow-up, and that its correspondence does not include what is standard practice. The applicant contends that the MDT should have informed the treating consultant of important details such as recommended follow up and he wants an explanation as to why the NCCP SOP was not followed.

In relation to part 10, the Hospital has explained to the applicant that the testing at issue was not carried out until 2022. I also provided him with clarifications I obtained from the Hospital regarding the layout of particular test results. The applicant says that he appreciates the details I provided. He also comments on the care given to his father by an individual in SVPH and the Hospital's refusal to investigate aspects of his care. 

In relation to part 11, the Hospital initially informed the applicant that the MDT's role does not extend to deciding on care plans, providing treatment, or communicating such matters to patients or their families, which it says are matters for the treating consultant. However, during this review the Hospital has revised its position. It now contends that it is not required to give the statement sought at part 11, because the applicant is ultimately seeking a statement about Mr Y's treatment in SVPH. The applicant says that he wants to know why it was decided not to inform him of the relevant matters, and that SVPH and/or the Hospital had a responsibility to inform the family of the details concerned.

As the applicant knows, it is my view that the Hospital is not require to provide him with any of the above statements. It seems to me that parts 8-11 largely concern the actions of the MDT. I note the applicant's position that Mr Y's primary SVPH consultant formed part of the MDT and is also employed by the Hospital. However, it seems to me that the MDT's role of making recommendations is one that is limited in nature. It is also the case that Mr Y's treatment decisions were made by his SVPH primary consultant. Therefore, it seems to me that the MDT's actions generally are not of a sort that confer or withhold benefits. Furthermore, it seems to me that the individual matters the subject of parts 8-11 are subsidiary elements of Mr Y's overall care and treatment which do not, of themselves, comprise acts or decisions that confer or withhold a benefit.

The applicant disagrees with my views and says that he is entitled to the statements sought. He says in relation to part 8 that the individual has admitted various matters. He says that the Hospital's failure to investigate the individual's actions, and the individual's continued inclusion on the MDT, impacted on his father's care, and also withheld from his family the benefit of knowing that the MDT is properly managed and is fit for purpose generally. He argues in relation to part 9 that provision of the relevant details by the MDT to the primary consultant should be seen as a means of ensuring adequate patient care. He says that the MDT's failure to include those details in its correspondence impacted on his father's care and on his family. He argues similarly in relation to part 11 i.e. that because the MDT did not notify Mr Y and his family of the particular details, they were unable to challenge explanations later given about Mr Y's care. While unclear if the applicant wishes for my decision to include part 10, his comments reflect his dissatisfaction with both SVPH and the Hospital.

I appreciate the importance to the applicant of understanding all aspects of his father's care. However, section 10 of the FOI Act is not a means of requiring the Hospital to account for the quality of his father's treatment in SVPH or to justify its treatment of the applicant's complaints. In particular, section 10 does not require the Hospital to account for the MDT's management, performance or functioning, which, as set out earlier, is what I consider to be the overall purpose of parts 8-11. I also remain of the view that the matters the subject of parts 8-11 are subsidiary elements of Mr Y's overall care and treatment (which was ultimately decided on by SVPH) and that they do not comprise acts or decisions that confer or withhold a benefit as envisaged by section 10 of the FOI Act. I find that the applicant is not entitled to the statements sought at parts 8-11.

In the circumstances, it is not necessary for me to comment on the adequacy of the statements provided by the Hospital further to parts 9-11. However, for completeness, I am satisfied that they meet the requirements of section 10 of the FOI Act in any event. They sufficiently explain why the MDT letter and pro-forma (parts 9 and 10) did not include the information the applicant says should have been included, and why the MDT did not take the steps the applicant says it should have taken (part 11).

Part 12

In relation to part 12, the Hospital has informed the applicant that the timeframe adopted is in keeping with its internal documents management practices and external accreditation frameworks. The applicant's position is that this is not in keeping with the NCCP SOP and he is entitled to the statement sought.

The applicant is aware of my view that he does not have a material interest in a matter affected by the act referred to at part 12, as provided for at section 10(5) of the FOI Act. I explained that, if the Hospital's three yearly revision of SOPs withheld a benefit from Mr Y, it also withheld such a benefit from all other patients with similar conditions, if not also from persons in general.

The applicant believes that if the SOPs had been reviewed yearly, the MDT's working practice would have better incorporated newer drugs and their requirements. He outlines how his father's treatment might have been better if the MDT had taken certain steps, and says that he and his family were deprived of a very specific benefit. He says that justification should be given for the gap between the treatment given to his father by the St Vincent's Healthcare Group and the treatment he should have given.

I again acknowledge the importance to the applicant of the information he is seeking about the Hospital's practices. However, section 10 of the FOI Act does not require the Hospital to give the kind of information or justification being sought. In any event, I remain of the view that the Hospital's approach to revising the MDT SOPs affects, and applies equally to, all members of a wide class of people i.e. other patients with similar conditions and/or whose cases are reviewed by the MDT, if not also persons in general. I find that the applicant does not have a material interest in a matter affected by the act referred to at part 12, and that he is not entitled to the statement sought.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Hospital's decision, as follows:

• I affirm its decision in relation to part 1 of the request, on the basis that the details provided are adequate for the purposes of section 10 of the FOI Act.
• I affirm its refusal to provide the statement sought at part 8, on the basis that the matter for which the statement is sought is not an act for the purposes of section 10, such that the applicant is not entitled to the statement sought.
• I annul its decision on parts 9-11 on the basis that the matters for which those statements are sought are not acts for the purposes of section 10, such that the applicant is not entitled to the statements sought.
• I annul its decision on part 12 on the basis that the applicant does not have a material interest in a matter affected by the act for which the statement is sought, such that he is not entitled to the statement 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.

Anne Lyons
Investigator