First-tier Tribunal
(General Regulatory Chamber)
Information Rights
Decision notice FS50810127
Appeal Reference: EA/2019/0368
Considered on the papers at Wigan and Leigh Magistrates Court
On 31 January 2020
Before
JUDGE CHRIS HUGHES
TRIBUNAL MEMBERS
JEAN NELSON & PAUL TAYLOR
Between
MARK TER-BERG
Appellant
and
INFORMATION COMMISSIONER
First Respondent
NHS ENGLAND
Second Respondent
DECISION AND REASONS
1. The Appellant (Mr Ter-Berg), who is a dentist, raised concerns about another
dentist with NHS England (who have responsibility for helping ensure proper
performance by NHS dentists) and also with the General Dental Council (the
body responsible for the registration and regulation of dentists). He was
concerned that NHS England (NHS-E) had not taken adequate action to
protect the public interest (in particular patient safety) and he wrote to NHS-E
on 11 November 2018:-
“You will be aware from the records that I made a protected disclosure to NHSE about
the poor practice of [redacted] who works at [redacted].
This resulted in an investigation process which started with a visit by [redacted]
dental practice advisor. I was advised that following this visit the matter was referred
to Performance Advisory Groups (PAGs) and Performers Lists Decision Panels
(PLDPs).
Please identify to me the names and GDC numbers of the GDC registrants who were
members of the PAG and PLDPs who were involved in making decisions about
[redacted] between September 2017 and August 2018. I also ask you to identify any
other Dental Practice Advisors who have been involved in [redacted’s] supervision
over the last 3 years”
2. NHS England refused the request relying on s40(2) FOIA, the protection of
personal data from disclosure. Mr Ter-Berg sought a review arguing:
“the information I am seeking is not personal information as it relates to individuals’
professional, civic roles performing a regulatory function on behalf of the state, in a
role where there is a public interest in transparency”
3. NHS England maintained that position on review.
“Section 40 was appropriately engaged as NHS England has responsibility for
protecting the personal information of its employees… We consider that to release
names and job titles of individuals, non-senior members of staff is contrary to the
expectations of staff as this could potentially identify them and would affect their
privacy and therefore is exempt from disclosure under section 40(2) of the FOI Act.”
4. Mr Ter-Berg complained to the Respondent (the Commissioner) who
investigated. During the course of the investigation Mr Ter-Berg disclosed to
the Commissioner a letter he had received from the GDC in January 2019 after
he had raised this and other issues with them. This stated:-
“I can reassure you that the NHSE and the GDC have an information sharing
agreement, which would enable NHSE to share directly with the GDC details of any
registrants, including their committee members and dental advisers, regarding whom
they have fitness to practice concerns. I trust that this is satisfactory reassurance that
there is a scrutiny and escalation route in these instances where NHSE has concerns
that a committee member or dental adviser may have acted in bad faith or outside their
delegated authority””
5. On 30 September 2019 the Commissioner issued her decision notice upholding
the position taken by NHS England. During the course of her investigation
she accepted the explanation that dentists are not supervised by its Dental
Practice Advisers (DPA) and that therefore no information was held with
respect to “Supervisors” She noted that a DPA had visited after Mr Ter-Berg’s
initial complaint as part of the investigation but that was distinct from day to
day supervision. With respect to the balance of the request NHS-E had
acknowledged that the information related to the panel members’ professional
and public roles and that disclosure would foster accountability and
transparency. She found that there was a legitimate interest in disclosing the
names of the dentist members of these bodies, but that they had a reasonable
expectation that their personal information would not be disclosed. This
expectation arises from the fact that the panel members were also working
dentists whose involvement in reviews and suspensions for NHS-E was not
publicly known since NHS-E did not publish their names in respect to the
work they carried out. It was also understood that their proceedings were
confidential and that information relating to them would only be known to
those directly involved. She noted the arrangements between NHS-E and that
GDC provided a mechanism for NHS-E to share any concerns about such
individuals; also that there was no suggestion that NHS-E had done so. She
concluded:-
“Based on the above factors, the Commissioner has determined that there is insufficient
legitimate interest to outweigh the data subjects’ fundamental rights and freedoms.
The Commissioner therefore considers that there is no Article 6 basis for processing
and so the disclosure of the information would not be lawful.”
Background
6. In his notice of appeal of 7 October 2019 (incorrectly dated 7 September) Mr
Ter-Berg set out the background to the request. He had become aware of
issues with respect to the safety of the performance of a dentist. He raised
them with NHS-E in September 2017, NHS-E visited in October, he wrote
again in December. In April/May 2018 having seen further matters which gave
him concern he contacted the GDC about the dentist and others. He also
raised concerns with the GDC about (unidentified) dentist members of the
PAG and PLDP of NHS-E. In July 2018 the dentist was placed under
conditions by NHS-E and GDC. NHS-E provided the Commissioner with a
press report showing that after a hearing before the Interim Orders Committee
of the GDC, conditions were imposed requiring regular supervision of and
reporting on practice; further training on a range of clinical issues and regular
clinical audit on a range of aspects of practice. The following month Mr Ter-
Berg was dismissed by the practice which employed the two dentists and he
has made a claim against the practice.
7. He argued that the safety of patients was the primary concern and that dentists
who police the profession should be held to account if they do not prioritise
patient safety. He submitted that NHS-E had been aware of poor performance
by the dentist years before his first complaint and that the lack of effective
action NHS-E from September 2017 to July 2018 caused further avoidable harm
to patients. The dentist members of the NHS-E bodies had an obligation to
refer their concerns to the GDC if they thought that patients needed to be
protected from a dentist. There was therefore a case that the dentists on the
PAG and PLDP had breached GDC guidance and should be answerable for it.
He argued that the NHS-E bodies had failed to protect the public.
8. He submitted that Article 6 of ECHR applied to these two bodies since they
could stop a dentist working for the NHS and by analogy with the GDC whose
panel members were identified. He submitted that the potential distress to
panel members should not prevent disclosure. He submitted that a DPA
attended the practice, examined records, identified failures and gave guidance;
on Mr Ter-Berg’s interpretation that was supervision and the DPA was a
supervisor.
9. In resisting the appeal the Commissioner maintained the position set out in her
decision notice. She confirmed that it was proper to take into account any
distress which would be caused to panel members by, for example, dissatisfied
individuals seeking to challenge panel members in person or through internet
campaigns. She considered that the role of a DPA was distinct from that of a
supervisor. She maintained the position that disclosure would be unlawful.
10. In its response NHS-E explained that its role was distinct from that of the GDC
– its role, with respect to a dentist, was fitness for purpose – i.e. to hold a NHS
contract to provide services to the public and so be included on its Performers
List; whereas the GDC as a professional regulator was concerned with fitness to
practice. NHS-E had procedures under the Performers Lists Regulations 2013
to manage concerns about the performance of its contracts by dentists. It has
published the Framework for Managing Performance Concerns in Primary Care
which explains the structures, processes and decision-making for doing so.
Within this procedure a PAG could order that an investigation be carried out,
a PLDP could conduct hearings into concerns and make decisions, including to
suspend or remove a dentist from the List. The two sorts of panels had
similar compositions of four members including one lay member, two NHS
managers and one dentist. The dentist’s role was to provide input into the
decision-making drawing upon their professional expertise within the group
of four members. There were safeguards to ensure that any concerns about
individual panel members were identified and acted upon, however there was
potential for them to be targeted and singled-out for their actions. It was a
condition of membership of PAG/PLDP that the individual practitioners were
not “subject to any investigation, restrictions, conditions or warnings from the
professional body”. They had a duty to disclose any such matters. They were
subject to induction, training and review. These individuals carried out their
roles in PAG/PLDP helping NHS-E discharge its statutory duties, alongside
their work as dentists.
11. NHS-E in its arrangements for PAG and PLDP struck a balance between
openness and transparency to the practitioner under investigation (who would
know the identities of the members of the panel) and confidentiality. There
were mechanisms for review and appeal of NHS-E with respect to its decisions
in relation to performers lists.
Consideration
12. The starting point for consideration of this appeal is the legal framework
provided by s40 FOIA (as amended) which provides:-
“40 Personal information.
…
(2) Any information to which a request for information relates is also exempt
information if—
…
(b) the first, second or third condition below is satisfied.
(3A) The first condition is that the disclosure of the information to a member of the
public otherwise than under this Act—
(a)would contravene any of the data protection principles,”
13. The most relevant data protection principle is that contained in Article 5(1)(a)
of the GDPR that – personal data shall be processed lawfully, fairly and in a
transparent manner in relation to the data subject. The relevant potentially
lawful basis for processing is Article 6(1)(f):-
“processing is necessary for the purposes of the legitimate interests pursued by the
controller or by a third party except where such interests are overridden by the
interests or fundamental rights and freedoms of the data subject which require
protection of personal data…”
14. In his appeal Mr Ter-Berg has argued that NHS-E has failed in its duty to
protect patients by failing to act sufficiently swiftly or at all to intervene to
suspend a dentist. He wishes to have disclosed the names of all the dentists
involved in the NHS-E’s processes which considered the matter. In essence the
justification for the disclosure is that they should be held accountable and be
subject to disciplinary investigation by the GDC. This is to fundamentally
misunderstand their role and responsibility and on the back of this
misunderstanding to seek to scapegoat individual dentists. On the information
before the tribunal it is clear that they have specific limited roles within a
larger organisational response to the complaints that NHS-E received.
15. There is a legitimate interest in understanding the processes of NHS-E,
whether they are sufficient to deal with a case such as this, whether they could
be swifter to move to protect the public either in this case or generally.
However the legitimate interest in knowing the names of the dentists who
were involved in the administration of this process is slight. By personalising
the issue Mr Ter-Berg has in essence sought to shift responsibility for the
performance of NHS-E, which may or may not be deficient in this case, to a
number of individuals with limited roles who have the desirable attribute that,
if identified to him, can be reported to the GDC.
16. While NHS-E acknowledged (and the Commissioner has found) that there is a
legitimate interest in knowing that a review has been carried out it did not
consider that there was an interest in the identity of the individuals if
information confirming that the individuals were suitably qualified were
disclosed. It seems to the tribunal that the identity of the persons involved is
at best secondary to the primary interest. Similar considerations arise with
respect to necessity. In resisting the appeal NHS-E noted that (paragraph 30):-
Although NHS England is able to refer a discipline-specific member to the relevant
regulatory body, this would be highly unusual. The nature of the discipline specific
member (i.e. offering their professional opinion) means that it is hard to see in what
circumstances this would warrant a fitness to practice referral.”
17. The tribunal agrees. The procedural safeguards around the appointment,
training, review and reporting requirements provides sufficient safeguard to
the public interest without recourse to disclosure of individual names. In
balancing the interests of the data subjects in their right to privacy against the
public interest in disclosing the information, the balance is decidedly in favour
of non-disclosure.
18. Mr Ter-Berg also argued that the role of the Dental Practice Adviser who
visited and examined the work of the dentist was, properly considered,
discharging the role of supervisor and accordingly the identity of any
individual who had carried out that role should be disclosed. The tribunal
does not accept that analysis of the meaning of the word “supervisor”.
Supervisor would be an appropriate term for an individual employed by the
company which employed the dentist who had overall responsibility for the
work of the dentist, however the DPA’s role was to report back to NHS-E.
NHS-E interpreted the request in a reasonable way which accords with the
normal meaning of the word. Furthermore, even if Mr Ter-Berg’s
interpretation is correct, the same issue with respect to the protection of
personal data would apply to a DPA as it applies to members of a PAG and a
PLDP.
19. The appeal is without merit and is dismissed.
Signed Hughes
Judge of the First-tier Tribunal
Date: 14 February 2020
Promulgation date: 17 February 2020