Decision
The appeal is dismissed.
REASONS
Background and Request
- This appeal is brought under section 57 of the Freedom of Information Act 2000 (FOIA) against the Commissioner's Decision Notice dated 1 August 2023 (the DN) with reference IC-240139-R8Q9 which is a matter of public record.
- The Tribunal conducted a hearing by CVP and considered an Open Bundle of 128 pages (A1 to D121) and heard a submission from Mr Harrison. The Commissioner was not represented and the Tribunal found no injustice in proceeding in the absence of representation.
- Tribunal took into account all the evidence before it and made findings on the balance of probabilities.
- The full details of the background to this appeal, Mr Harrison's Request for information and the Commissioner's decision are set out in the DN.
- On 26 January 2023 Mr Harrison made a FOIA Request in the following terms:
"Number of Serious incidents patients deceased in Emergency Ambulances due to Transfer-Delay Failure. In Oct 2017-March 2018, April 2018-Sept 2018. October 2018-March 2019 please. That would be the StEITS [sic] reporting portal from the South East Coast Ambulance Service NHS Foundation trust."
- On 15 February 2023 NHS England, the public authority, responded and denied holding the requested information.
- In the email dated 15 February 2023 NHS England stated that NHS England is not the same as "the NHS in England." The information sought may be held by individual provider Trusts. As such Mr Harrison might wish to redirect his enquiry to South East Coast Ambulance Service NHS Foundation Trust directly.
- The public authority upheld its position on review. In the email dated 8 June 2023 (C93 and C94) NHS England stated that it did not hold the information Mr Harrison had requested. The Transfer of Strategic Executive Information System (StEIS) does not hold a location of death field so NHS England is unable to determine where a patient has deceased in order to confirm if it happened while in an emergency ambulance. Similarly, StEIS does not hold records of transfer delay failures so is unable to determine where transfer delays have caused a patient's death. As Mr Harrison had asked details of the StEIS reporting portal NHS England explained that access to StEIS could not be given to non-members of staff because the portal contained confidential patient information.
- NHS England acknowledged the duty to assist and advise and suggested to Mr Harrison where the information might be found and suggested he contact the South East Coast Ambulance Service NHS Foundation Trust direct.
- Mr Harrison contacted the Commissioner on 22 June 2023 to complain about the way his Request had been handled.
- Mr Harrison lodged a Notice of Appeal on 23 August 2023.
The Decision Notice
- The Commissioner stated in the DN that where there is a dispute over the amount of information held by a public authority, the Commissioner is only required to determine whether it is more likely than not that the public authority has identified the information it holds.
- The Commissioner stated that the public authority had explained that, whilst it may hold data that shows the number of serious incidents that have taken place at a particular Trust, it does not hold the granular information that would show where an individual incident took place or what caused it. Without this granular information, it would be unable to isolate the specific data Mr Harrison has asked for. The public authority has explained that such granular information would be held at individual Trust level. The StEIS portal does not include the level of detail the Mr Harrison is seeking.
- Mr Harrison's argument is that the public authority is "the NHS in England" and as such, must hold all information held by any part of the NHS in England.
- On the balance of probabilities the Commissioner supports the public authority's position.
- The "NHS" is not, as is often incorrectly assumed, a single entity. It is a constellation of Integrated Care Boards, Provider Trusts and private companies working together to deliver an overarching national service. As a matter of law, these bodies are all separate organisations for the purposes of FOIA. Just because information is held by an NHS body, it does not mean that it will be available and be held by the public authority.
- The Commissioner considers that the public authority has also explained what data is collected in the StEIS portal and why it would not meet the terms of Mr Harrison's Request.
- The Commissioner recognises that serious incidents are, by definition, serious. However it is not his role to determine what data should be collected or which organisation(s) ought to be responsible for collecting and retaining it. His role is to determine whether, on the balance of probabilities, the public authority holds the requested information. The Commissioner is aware that the complainant has already made a similar request to the relevant Trust and it may well be that that request is more productive.
- On the balance of probabilities, the Commissioner is satisfied that this information is not held by the public authority.
Legal Framework
- Section 1 of FOIA confers a general right of access to information held by public authorities. A person is entitled to be informed whether the public authority holds information of the description specified in the Request (section 1(1)(a)) and, if so, to have that information communicated (section 1(1)(b)).
- Public authorities may want to directly consult third parties in these circumstances
particularly if, for example, there are contractual obligations which require consultation before information is released. In other circumstances it may be good practice to consult third parties, for example, where a public authority proposes to disclose information relating to third parties, or information which is likely to affect their business or private interests.
- Part III of Schedule 1 to FOIA sets out that the NHS is a public authority.
Grounds of appeal
- Mr Harrison's grounds of appeal appear to be as follows:
a) He wants the StEIS reporting figures and the Commissioner has the power to get this information.
b) He never asked for the granular information.
c) The concealment of the StEIS reporting portal from the public is a criminal offence with up to 2 years imprisonment and an unlimited fine.
d) He has been given information from the StEIS database in the past and he has filed a copy of an email dated 21 March 2022 (A24 and A25) to prove this.
e) The Commissioner and NHS Parliamentary Commissioner will need to liaise with each other and begin an investigation into sending false and misleading information to the National Reporting and Learning System (NRLS) data site.
f) It is an offence for the ambulance service to alter, deface, block or conceal any record of a public authority preventing disclosure.
g) The document headed "How to understand and improve your patient safety incident reporting to the National Reporting and Learning System" (A26 to A34) shows that the information he seeks is kept.
h) The South East Coast Ambulance Service NHS Foundation Trust had 52 SI deaths from April 2018 to September 2018, 27 SI deaths from October 2017 to March 2018 and 16 SI deaths from October 2018 to March 2019. This is 95 deaths in emergency ambulances due to transfer delay or failure. All ambulance trusts have root cause analyst trained investigators and all SI deaths have to be reported within 2 working days.
i) Mr Harrison asked the tribunal to undertake its own investigation.
Grounds of opposition
- The Commissioner considered Mr Harrison's grounds of appeal and did not consider they disturbed his decision. The Commissioner submitted that the appeal contained no valid reasons for overturning the DN.
The Hearing
- At the hearing the explanation provided by NHS England in the email dated 8 June 2023 (C93 and 94) was put to Mr Harrison. Mr Harrison submitted that he did not accept that NHS England did not hold the information requested on the StEIS portal. It was explained to Mr Harrison that the StEIS does not record the location of the death i.e. whether the death occurred in an emergency ambulance or whether the transfer delay caused the death. It was explained to Mr Harrison that NHS England had explained that they held data about deaths but did not hold the information he was asking for. Mr Harrison stated that NHS England did hold the information about where deaths occurred because a SI death had to be reported and the NRLS recorded all SIs. He referred to the instructions which appear at page D108 namely that deaths and severe harms should be reported within two working days.
- NHS England explained that while it may hold data that shows the number of serious incidents that have taken place at a particular Trust it does not hold the information that would show where an individual incident took place or what caused it. Without this information, for example, if the death occurred in the ambulance or in the Hospital, it would be unable to isolate the specific data Mr Harrison asked for. NHS England explained that such granular information would be held at an individual Trust level and the StEIS portal does not include the level of detail Mr Harrison is seeking.
- Mr Harrison argued that all NHS Trusts investigate deaths in ambulances and, therefore, NHS England must hold the information he seeks. He referred to page D105 which showed the number of incidents reported to National Reporting and Learning System (NRLS). Mr Harrison referred to Figure 3 on page D106, recording the most frequently reported incident types and Figure 5 on page D107 referring to accurate reporting of degrees of harm.
Conclusions
- The Tribunal recognises that each case must be determined on its merits. Having considered the evidence the Tribunal found that the Commissioner carried out a comprehensive investigation into the complaint and the Tribunal accepted and endorsed the reasons provided for the findings in the DN.
- With respect to Mr Harrison he has misunderstood the reference to 'location' and had not appreciated this did not refer to a geographical location but was a reference to the physical location of the SI, i.e. in an ambulance or a hospital.
- With respect to Mr Harrison he misunderstood the statement that he could not be given access to the StEIS portal. There is a difference between him being provided with information from the portal as a non-member of staff and being given access to the portal to seek the information himself.
- With respect to Mr Harrison he misunderstood the obligation on NHS Trusts to provide information about safety incidents to NRLS to improve patient safety and the holding by NHS England of detailed information about each incident and where it happened.
- Mr Harrison is mistaken in his assertion that NHS England must hold all the information held by any part of the NHS in England. The explanation provided by the Commissioner at paragraph 10 sets out clearly why information held by an NHS body does not mean it will be held by NHS England.
- It is not the role of the Commissioner or the tribunal to undertake an investigation on behalf of Mr Harrison to determine what data should be collected or retained by NHS England.
- The Tribunal found on the balance of probabilities that NHS England does not hold the requested information and did not do so at the time of the Request in January 2023 and there is no error of law in the DN.
- Accordingly, the appeal is dismissed.
Signed: Judge J Findlay
Date: 3 March 2025
