‘Alice in Wonderland’ ruling from the ICO

Frank Field MP has been left frustrated by attempts to use FoI to uncover alleged fraud at his local hospital.

Veteran Labour MP Frank Field has attacked the Information Commissioner for an “Alice in Wonderland” decision into his attempts to gain access to reports about alleged fraud in his local hospital.

Mr Field was tipped off about a doctor at the Arrowe Park Hospital, in Merseyside, using NHS resources to treat his private patients. He contacted the hospital who admitted there had been some ‘mistakes’ but refused to give him any more details.

The MPs attempts to get any more details were rebuffed by Wirral University Teaching Hospital Trust and eventually the matter landed up on the Information Commissioner’s desk.

Mr Field implies he managed to speed the case ahead of others by “writing a personal note” to the Information Commissioner - but the decision did him no favours.

The Commissioner ruled the Trust should not have confirmed or denied it had such information as it was sensitive personal data covered by Section 40 of the Freedom of Information Act.

A bizarre ruling when looked at from Mr Field’s view as he knows the name of the doctor - he included it in the question - and he knows of the existence of such a report, and he was told by the Trust the doctor had confessed to some mistakes.

However, the Commissioner approaches the decision from the “applicant blind” viewpoint and because the identity of the doctor is not generally known to release it via a FoI request would be a breach of S.40.

Here is the Information Commissioner’s decision [link] and here are Mr Field’s thoughts on the matter:

Beating fraud against taxpayers is difficult. I have been trying to get a proper investigation since September 2007 into an alleged fraud in the NHS.  

A constituent reported to me that they thought their doctor was using the NHS for private patients. I wrote to Arrowe Park hospital in Wirral against whom the alleged fraud had taken place.

In the November I was able to meet the senior executives at the hospital.

I was told at this meeting that the doctor had confessed to errors, and had allowed nearly 100 blood tests for private patients to be sent to the laboratories at Arrowe Park hospital under the cover that they were NHS patients. I was told at the meeting that the doctor had repaid these costs.

I asked to see copies of any reports the hospital had undertaken into this alleged fraud.

I also asked whether the hospital would extend its enquiries into other areas - such as scans and x-rays - to see whether the same mistake of presenting private patients as NHS patients had similarly occurred.

On both fronts Wirral Hospital Trust refused my requests.

In January 2008 I asked for this information under the Freedom of Information Act. After some time the Trust refused this application.

In July 2008 I went to the Information Commissioner who as we all know has done a pretty good job in policing and making this Act effective. The Commissioner is clearly overworked.

Nothing happened for ages. I then wrote a personal note to the Commissioner and only then was a caseworker appointed to my case.

Almost a year later the Commissioner wrote to me refusing my request. The reasoning was straight Alice in Wonderland stuff.

My request was refused because if I laid hands on these secret reports I would have personal information about the doctor concerned.

As the inquiries were looking into alleged fraud, by a doctor whose name I knew as I had referred the doctor to the Trust, this ruling must make the FoI Act a non-starter when efforts are being made to track down fraud against a body which is deeply uncooperative in helping that enquiry.

But worse was to follow. With the refusal came a note about the rights of appeal.

I have appealed against the decision although, given the Alice in Wonderland logic that no personal information can be disclosed, I am not holding my breath.

Worse still, the appeal letter told me I might be liable for the whole cost of the appeal. I therefore raised this matter before parliament rose for the summer recess asking the government to investigate.

I understand why costs might be awarded against an individual who has a record of bringing bizarre FoI claims. But that surely shouldn’t apply to reasonable citizens who are probably making their first application.

And should it apply to members of parliament? I would have had no interest in pursuing this case other than that public funds are at stake.

Was one of the aims of the Act to gag and blindfold MPs attempting to root out alleged fraud?