Freedom of Information Act 2000 (FOIA) Decision notice

Reference: FS50603230 Freedom of Information Act 2000 (FOIA) Decision notice Date: 23 February 2016 Public Authority: Address: Luton Clinical Com...
Author: Britton Hunter
20 downloads 0 Views 37KB Size
Reference: FS50603230

Freedom of Information Act 2000 (FOIA) Decision notice

Date:

23 February 2016

Public Authority: Address:

Luton Clinical Commissioning Group The Lodge 4 George Street West Luton LU1 2BJ

Decision (including any steps ordered) 1.

The complainant requested information on possible financial links between pharmaceutical companies and NHS officials involved in making decisions on which drugs CCGs should use. Luton Clinical Commissioning Group (Luton CCG) confirmed that they did not hold any further information. The complainant considered that more information must be held by Luton CCG.

2.

The Commissioner’s decision is that Luton CCG does not hold any further information in this case. The Commissioner does not require Luton CCG to take any steps.

Request and response 3.

On 10 August 2015 the complainant requested the following information: ‘I am seeking details of financial links between pharmaceutical/medical device companies and doctors/officials involved in providing advice/making decisions on which drugs CCGs should use/prescribe. This includes the practice of doctors/officials taking part in paid "advisory board" meetings for such firms. I note that the NHS standards of business conduct state that “work with another organisation which might be in a position to supply 1

Reference: FS50603230

goods/services” to the NHS could conflict with an employee’s NHS work and should be declared. I also note that while many CCGs publish conflict of interests registers, the public registers generally do not cover officials responsible for medicines management and pharmacy, or senior pharmaceutical advisors. I would be grateful if you could fill in the attached template for any such officials, or equivalent, as well as other members of your CCG's governing body and its prescribing committees. As you will see from the attached template I am requesting details of: a) payments from pharmaceutical/medical device companies (please name the companies and include payment amounts), and the nature of any work b) gifts/hospitality/trips funded by such firms (including names of the companies and value of benefit where available please) Please include any interests from the last financial year (2014/2015), where the benefit came from a pharmaceutical or medical device company.’ 4.

On 18 September 2015 Luton CCG responded and stated that ‘Luton CCG discloses everything that is disclosed to Luton CCG. All disclosures are contained within LCCG registers for hospitality and conflicts of interest. This information is already published; freely and publicly available on Luton CCG website. Please find below links to the COI Policy and Registers of Interests & Register of Gifts and Hospitality.Link to COI Policy https://www.lutonccg.nhs.uk/page/?id=3828 Link to Registers of Interests & Register of Gifts and Hospitality https://www.lutonccg.nhs.uk/page/?id=3880 Last updated 31st July 2015.’

5.

On 25 September 2015, the complainant queried the answer provided and requested an internal review: ‘However given the rules on declaring conflicts of interest I am surprised that the CCG only holds the limited amount of information contained in your online registers. 2

Reference: FS50603230

Specifically the registers state that (6 names redacted) on the medicines optimisation team all carry out consultancy work for pharmaceutical companies. But very little detail is included about this work, and no detail of the money they have been paid by pharmaceutical firms. As you will appreciate there is a great deal of public interest in establishing what funds medicines management staff are receiving from companies who are attempting to promote their products to CCGs. Can you confirm that this additional detail has not been recorded anywhere, including in emails, by the CCG?’ 6.

On 20 October 2015 Luton CCG upheld its position at the internal review. It stated that ‘The only information held by LCCG is available on our internet on the link …previously provided.’

7.

Luton CCG also stated that ‘We are unable to disclose the information requested’ and cited section 40 of FOIA: ‘we would not disclose personal data associated to individual officers’.

8.

The complainant sought further clarification from the public authority as the response was contradictory: was any further information held and if so, whether it was withheld under section 40 of FOIA. Luton CCG referred the complainant to the Commissioner if he was unhappy with the response.

Scope of the case 9.

On 28 October 2015 the complainant contacted the Commissioner as he considered that it is not clear if further information exists and if so, whether it would be personal data or not. He argued that ‘Surely the point of a conflict of interests register would be to allow scrutiny of any potential cases where an individual's official work has the potential to be influenced by private interests. In this case such scrutiny is not possible without, at the very least, the disclosure of the companies and the nature of the outside work. The size of any payments and value of hospitality would obviously assist such scrutiny so that the public can be in a position to assess whether such payments and hospitality appear proportionate to the work being carried out.’

10. The Commissioner will first consider whether section 1 of FOIA was applied correctly in this case.

3

Reference: FS50603230

Reasons for decision 11. Section 1 of the FOIA states that any person making a request for information to a public authority is entitled to be informed in writing by the public authority whether it holds information within the scope of the request, and if so, to have that information communicated to him. 12. Where there is some dispute between the amount of information identified by a public authority and the amount of information that a complainant believes may be held, the Commissioner, following the lead of a number of First-tier Tribunal decisions, applies the civil standard of the balance of probabilities. 13. In other words, in order to determine such complaints the Commissioner must decide whether on the balance of probabilities a public authority holds any information which falls within the scope of the request (or was held at the time of the request). 14. As is the practice in a case such as this, the Commissioner asked Luton CCG a number of questions to confirm if the information is held and if so, whether all the information within the scope of the request, had been disclosed. 15. In response to the Commissioner’s questions about the location of the information, Luton CCG confirmed that the only information held by Luton CCG was published in the register on their website. ‘No further information was provided by the individuals and held by the CCG.’ ‘The information was obtained through staff making declarations of potential conflicts of interest via an electronic (Microsoft Word) form.’ 16. Luton CCG provided the Commissioner with a copy of the form that staff have the responsibility to complete and keep up to date. The form states: 

 

This form is required to be completed in accordance with the CCG’s Constitution and Section 14O of The National Health Service Act 2006, the NHS (Procurement, Patient Choice and Competition) regulations 2013 and the Substantive guidance on the Procurement, Patient Choice and Competition Regulations. A declaration must be made of any interest likely to lead to a conflict or potential conflict as soon as the individual becomes aware of it, and within 28 days. Any individual – and in particular members and employees of the CCG and/or NHS England - must provide sufficient detail of the interest, and 4

Reference: FS50603230



the potential for conflict with the interests of the CCG and/or NHS England and the public for whom they commission services, to enable a lay person to understand the implications and why the interest needs to be registered. If there is any doubt as to whether or not a conflict of interest could arise, a declaration of the interest must be made. Interests that must be declared (whether such interests are those of the individual themselves, or of a family member, close friend or other acquaintance of the individual) include:

        

Roles and responsibilities held within member practices; Directorships, including non-executive directorships, held in private companies or PLCs; Ownership or part ownership of private companies, businesses or consultancies likely or possibly seeking to do business with the CCG and/or with NHS England; Financial interest (more than 1% equity) in a relevant provider organisation; Shareholdings (more than 5%) of companies in the field of health and social care; Positions of authority in an organisation (e.g. charity or voluntary organisation) in the field of health and social care; Any connection with a voluntary or other organisation (public or private) contracting for NHS services; Research funding/grants that may be received by the individual or any organisation in which they have an interest or role; Any other role or relationship which the public could perceive would impair or otherwise influence the individual’s judgement or actions in their role within the CCG.

17. Luton CCG explained that the complainant had been provided with a link to the published register of interests but this was a ‘follow-up enquiry seeking more detail that the CCG did and does not hold.’ 18. In addition to providing the published register Luton CCG made a search for any additional information within the scope of the request. It explained that a search had been made using the names of a pharmaceutical Company and two pharmaceutical products: ‘the CCG had carried out an electronic search of (redacted name)’s emails on any decision-making regarding drug/products Cosmocol and theical-D3...we were unable to find anything. We also asked (name redacted) and the line manager whether there was any information in any other source relating to this, of which there was not.’

5

Reference: FS50603230

‘The electronic searches had been undertaken at a server level, which would incorporate any files and e-mails for all CCG computers and laptops.’ 19. When asked if recorded information had been held but is no longer held, Luton CCG stated that the information requested was not held. ‘There is no statutory requirement for the CCG to hold information beyond what is declared by employees and recorded in the publicly available register of conflicts of interest.’ 20. Having considered the Trust’s responses to the Commissioner’s investigations, the Commissioner is satisfied that, on the balance of probabilities, the Trust does not hold any further recorded information within the scope of the request. 21. The Commissioner understands the reasons why the complainant considers further information may be held, but the Commissioner can only consider what is held. It is outside the Commissioner’s remit to determine if it should be held, and even if it should be, he cannot require a public authority to create the information under the FOIA. 22. As the Commissioner’s decision is that the information is not held, the Commissioner does not require the Trust to take any steps and the Commissioner will not go on to consider whether section 40 was correctly applied. Other Matters 23. The Commissioner notes that by the Trust applying section 40 ‘in principle regarding the fact that we would not disclose personal information’ to information that was not held led to a position where it was not clear to the complainant if any further information existed. 24. The Commissioner reminds the Trust that a clearer response might have avoided the need for the complainant to refer his case to the Commissioner.

6

Reference: FS50603230

Right of appeal 25. Either party has the right to appeal against this decision notice to the First-tier Tribunal (Information Rights). Information about the appeals process may be obtained from: First-tier Tribunal (Information Rights) GRC & GRP Tribunals, PO Box 9300, LEICESTER, LE1 8DJ Tel: 0300 1234504 Fax: 0870 739 5836 Email: [email protected] Website: http://www.justice.gov.uk/tribunals/general-regulatorychamber

26. If you wish to appeal against a decision notice, you can obtain information on how to appeal along with the relevant forms from the Information Tribunal website. 27. Any Notice of Appeal should be served on the Tribunal within 28 (calendar) days of the date on which this decision notice is sent.

Signed ……………………………………………… Pamela Clements Group Manager Information Commissioner’s Office Wycliffe House Water Lane Wilmslow Cheshire SK9 5AF

7

Suggest Documents