The Information Commissioner & HPC's FTP

You can go to www.informationtribunal.gov.uk and get copies of cases, I have one whose decision was promulgated on 14 March 2008. According to my dictionary of word origins, promulgate is linked to the idea 'to milk', that is to cause to emerge. This promulgation was set in motion by a series of events which culminated in a Freedom of Information (FOI) request by Ms Z who had referred a case to the HPC. The HPC refused to give the information which led to the Information Commissioner being called onto the scene. He then issued an Information notice requesting sight of the disputed information and the HPC appealed this notice under section 57(2) of the FOI Act.

Are you following all this?

I'm new to all this too, but little by little I intend to try to discover something about the particularity of the time we live in, the institutions we invent, the context in which bits of our lives get lived.

From the promulgated decision I learn things that I already knew: "The HPC is established under the Health Professions Order 2001 (the 2001 Order)" and subtle differences from things that I thought I knew: ... "It's main functions are set out at article 3(2) of the 2001 Order as "...to establish from time to time [my emphasis] standards of education, training, conduct, and performance for members of the relevant professions and to ensure the maintenance of those standards." The main objective in exercising its functions is "to safeguard the health and well being of persons using the services of registrants." This is written in The Order. But there is room for interpretation in practise and it is this that is in question at the Tribunal Service.

"The HPC's functions include the maintenance of a register of health professionals and a mechanism, called the Fitness to Practise process (the Process) whereby the conduct and performance of registrants may be investigated and called to account. An adverse adjudication on a registrant's fitness to practise may lead to, amongst other things, a registrant being removed from the register (such that they could not work in their chosen profession) or conditions being attached to the performance of their profession. Members of the public, employers etc, may make allegations to the HPC with regard to the fitness to practise of particular registrants. Such cases are investigated by the HPC and as a preliminary step in the Process a decision will be taken by a Panel of the Investigating Committee whether there is a case to answer. [If not, the Process ends. If so, a new Committee is called for a full hearing." (Quoted from the Tribunal's introduction.)

In the case in question the initial Committee decided there was no case, so Ms Z made her FOIA request to see on what basis this decision had been made. This was refused by the HPC on the grounds that certain exemptions applied, namely sections 30, 40, and 41... So Ms Z made an application under section 50 of the FOIA for a decision by the Information commissioner as to whether her request had been dealt with in accordance with law. After a lot of argy bargy the HPC filed a Notification of Appeal against the Information Commissioner's Information Notice and so triggered this appeal to tribunal.

It's quite Dickensian - we are in the field of law, very particular human relations, and, by the by, a professional practise.

The Tribunal heard evidence from Mr Jonathan Bracken from Bircham Dysen Bell, who were solicitors for the HPC. Mr Bracken had been involved in the setting up of the HPC and had advised on many of its processes, he had drafted most of its rules. He explained to the Tribunal that the HPC had 'moved away' from a punitive disciplinary scheme, and had put in its place the Fitness to Practise regime. It is a process in two stages. These stages were put into question at the Tribunal and Mr Bracken was revealed as lacking (he had to admit that some of his documents 'perhaps were not as well worded as might be') .

The next in the dock was Ms Kelly Johnson, the HPC's Director of Fitness to Practise. She was obliged to say that 'the practise and procedure guidance were living documents and in certain respects in need of revision'. In the course of her evidence she revealed that the information gained in the Process at the early stage could be shared with the competent authorities of the other European Union states, and in addition, circumstances could arise in which the HPC gave the police a registrant's information prior to a 'no case to answer' determination. Registrants are not warned of these possible disclosures.

To cut a long story short, the Tribunal concluded that 'registrants were unaware of the fact that HPC on occasion made disclosures in the public interest... The reality was that the 'aura' of confidence (as Counsel for the HPC had put it) attached to the information provided by registrants, was not as clear or as bright as contended." [my emphasis] Furthermore, the Tribunal added "this case came nowhere near the mark". Their decision in favour of the Information Commissioner had indeed been unanimous.