Released 2 June 2023
Request:
Please confirm whether The Trust have had any independent Royal College Reports carried out from 2018 to present day?
If so please provide :
The number of reports undertaken and the dates
The area / areas where the report was carried out.
If the reports concern a specific clinician the speciality of the clinician
Please provide a copy of the report.
Information disclosed:
The Trust holds one report relevant to your request which is related to an invited service review into Brighton and Sussex University Hospitals NHS Trust’s Neurosurgery service at the Royal Sussex County Hospital, Brighton carried out by the Royal College of Surgeons (RCS). The review was requested on 15 July 2019 with the review visit occurring on 14 and 15 October 2019 and the final report issued by the RCS on 20 December 2019. The purpose of the invited service review was to seek advice and exchange views for the purpose of ensuring the safety and quality of the service and the consideration of service proposals. The review report relevant to your request contains extensive information that is considered exempt from disclosure under the Freedom of Information Act. The attached report has therefore been appropriately redacted in line with these relevant exemptions and we have provided an explanation about this action below.
It is important to note that University Hospitals Sussex NHS Foundation Trust was formed on 1 April 2021, with the merger of Brighton and Sussex University Hospitals NHS Trust and Western Sussex Hospitals NHS Foundation Trust. Although the report into the legacy Neurosurgery service is over three years old, the findings and recommendations from the report are currently being used by the new Trust to support the delivery of a corporate improvement plan that will address the issues raised during this review. This work was delayed due to the exceptional operational pressures experienced by the Trust since the merger over the last few years. A report which will outline the delivery of the corporate improvement plan will be submitted to the Trust Board in due course.
University Hospitals Sussex NHS Foundation Trust has decided to withhold some of the information contained in this report on the basis that it falls within section 36(2) of the FOI Act [prejudice to the effective conduct of public affairs] and that the public interest in maintaining the exemption outweighs the public interest in disclosure. This decision is supported by the Trust’s Qualified Person, Dr George Findlay (Chief Executive Officer), who is of the opinion that the disclosure of this information would likely inhibit the free and frank provision of advice and/or free and frank exchange of views for the purposes of deliberation [section 36(2)(b)(i) and (ii)], and that disclosure would otherwise likely prejudice the effective conduct of public affairs [section 36(2)(c)].
Section 36 of the FOIA provides that, “Information to which this section applies is exempt information if, in the reasonable opinion of a qualified person, disclosure of the information under this Act – (2)(b) would, or would be likely to, inhibit –
i. the free and frank provision of advice, or
ii. the free and frank exchange of views for the purposes of deliberation,
or (2)(c) would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs.”
The rationale for the application of section 36(2)(b) is as follows:
University Hospitals Sussex NHS Foundation Trust must be able to hold free and frank discussions about its services and about confidential and sensitive matters, without concern that the detail of those discussions or that advice will be prematurely disclosed. The fundamental purpose of undertaking an Invited Service Review is to facilitate the free and frank exchange of views for the purposes of deliberation, which enables the Trust to shape and implement proposals in order to improve its services. The review report by the RCS contains analysis which reflects candid discussions between staff within the Trust and the reviewers. To be effective, invited service reviews rely on a relationship of trust and confidence between the Trust and the staff concerned. Full disclosure of this report would, therefore, likely undermine this trust and inhibit the free flow of views and information that would consequently have a detrimental impact on service development and improvement.
During the review, staff were interviewed and opinions shared which forms a substantial amount of information contained in the report. This information was exchanged with the clear expectation that these discussions would remain confidential. Due to the small number of staff involved, staff could be identified by their views which would then be known by other staff, making working relationships more strained and complicated. Disclosure in this case could well exacerbate some of the problems that led to the review being commissioned in the first place. For these reasons we believe that disclosure poses a significant risk of having a chilling effect on the willingness of staff that participated in the review and the wider team from continuing to assist the Trust, and from participating in future discussions relevant to the issues involved.
The Trust must be allowed the safe space to conduct rigorous and candid reviews of its services, seek advice and deliberate openly and honestly about how to move forward without the risk of premature disclosure. There must be a safe space in circumstances such as this, which staff feel able to raise concerns and discuss issues which could benefit their work. While staff have an understanding of the FOIA, there is still an expectation that this type of free and frank discussion will remain confidential. If some of the information contained in the report was disclosed, staff may be reluctant to participate so freely, frankly and honestly. All levels of staff in the department concerned and staff more generally, are likely to be affected by disclosure in this case which would likely have a significant chilling effect on the willingness of staff to participate in such reviews in the future. Although specific, personal identifying information can be redacted from the report under section 40(2) exemption [personal information], due to the small number of staff involved in the review the general themes and views outlined in the report could still be attributed to these staff. If staff were less willing to participate in reviews of this nature on the basis that their personal views might become known to their colleagues or the general public, this would likely undermine the ability of the Trust to effectively review its performance and implement changes to improve its services.
The rationale for the application of section 36(2)(c) is as follows:
Further to the views outlined above, the Trust’s Qualified Person is also of the opinion that disclosure of the redacted information would otherwise prejudice the effective conduct of public affairs. The Trust is in the process of further considering the report and a safe space is necessary in which to reflect on its findings, debate live issues, develop ideas and make decisions about how to address the issues raised. Disclosure of the report in full would likely prejudice the ability of the Trust to discuss and debate internally the issues it faces, the recommendations put forward and the options available to it. At the time of this request, the issues involved in the review remain live and the Trust is still considering the recommendations made and what actions to take. The information that staff provided remains relevant to the status of the service at this time and the issues are still fresh and ongoing for the staff involved. Since this was an invited review and not a regulatory investigation, the willingness of staff to continue to participate and cooperate in this process is essential. Full disclosure would be likely to discourage the staff that participated in the review and those in the wider department, from continuing to assist the Trust. This would likely hinder the Trust’s ability to develop its corporate improvement plan and implement the changes that are required. Disclosure at this stage would be premature and therefore likely to prejudice the outcome of the review process.
The issues involved in the review include sensitive matters and disclosure could cause those involved distress and upset. The Trust relies on its relationship with its staff to enable free and frank communication, and has a duty to safeguard and promote positive relationships between the staff involved in such reviews and across the wider Trust. Full disclosure would likely lead to greater speculation, external comment, media attention and/or pressure from other interested parties adding prejudice to the review process. Disclosure and subsequent use of this information by others without understanding the context in which it was written, is likely to lead to sensationalised or misunderstood reporting about the service in question, which may undermine public confidence in the service and the staff that support it. The Trust requires a safe space to develop and promote its corporate improvement plan which will address the issues raised without getting unduly side-tracked with public enquiries and media attention. Disclosure at this stage would likely to prejudice the Trust’s ability to carry out its public affairs effectively and implement the necessary actions that are required to improve patient care. This would likely undermine its willingness to invite external organisations to conduct service reviews in the future.
The Public Interest Test: Section 36 is a prejudice based and qualified exemption so the Trust must apply a ‘public interest test’ and a ‘prejudice test’ to decide whether, in the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.
The Trust recognises the public interest in accountability and transparency in respect of the decisions and actions it takes. Disclosure may further public understanding and public debate surrounding the issues identified by the review, what has been recommended and why, and the improvements that are required. The Trust fully appreciates the public interest in the spending of public funds and ensuring the best use of public resources. Additionally, we acknowledge the public interest in bringing to light information affecting public health and safety.
There is clearly strong public interest in ensuring the quality and safety of the Trust’s services, in demonstrating our accountability for these services and how well they are performing. We also understand how issues around quality and safety might impact on an individual basis and on the public more generally. However, this public interest is met in a variety of ways, such as through a range of internal and external quality assessment and assurance processes and CQC inspections which are formally reported. Whilst invited service review reports may also serve this purpose, it is our view that the forthcoming report that will outline the Trust’s corporate improvement plan which will address the issues raised by this review and will be made available via the Trust Board, is the more appropriate means by which to communicate this information to the public in these circumstances. Invited service reviews protect patient safety by supporting staff to speak up safely, which leads to robust conclusions and recommendations that are then followed up by the Trust to ensure important issues and concerns are accepted and being addressed.
It is our view that to be effective, invited service reviews rely on a relationship of trust and confidence amongst those staff involved. The Trust considers that there is a strong public interest in respecting the confidences of those that participated in the review process and in preserving and promoting candour, reflection and freedom to speak up amongst staff. Although full disclosure of the report would provide transparency and further insight regarding the purpose of the review, we do not believe this outweighs the negative impact disclosure would likely have on future invited reviews and the willingness of staff to participate in them. Diminished cooperation by staff in this context would undermine the ability of the Trust to effectively review its performance and implement changes that would benefit patients and staff, which is firmly in the public interest. There is a public interest in safeguarding and promoting the relationships between all parties involved in these reviews, and ensuring that they remain willing to share free and frank views in the future, to help guarantee that such reviews remain fit for purpose and learning for the Trust is encouraged. It would not be in the wider interests of the public to prejudice this function.
Considering the timing of the request and the circumstances at this time, we believe the consequences of disclosure would add additional challenges for the Trust and this would not be in the public interest. Deliberations and planning which address the recommendations made in the review report remains ongoing. In order to decide on the steps and resolutions required to address the recommendations made, the Trust requires the safe space to obtain and consider free and frank internal advice and deliberate openly, candidly and honestly about how to move forward. This process needs to be rigorous so as to promote patient safety, the effective delivery of services, and to improve relationships between staff members. Disclosure of some of the information contained in the report at this time would be likely to prejudice this process. Those staff involved would be likely hindered or discouraged from discussing and considering the issues so openly and frankly, which would be further prejudiced by likely public enquiries and media attention. Disclosure at this time would also likely negatively impact the relationship the Trust has with staff involved in this process, thereby hindering its ability to implement the changes that are required. This would in turn compromise the Trust’s ability to assure the public that it is taking the necessary action to improve patient care. We believe such consequences would be challenging for the Trust and this would not be in the wider interests of the public. Rather it is in the best interests of the public to allow the Trust the safe space it requires to considers it options and implement the right solutions in order to address the issues identified. We believe there is compelling public interest in preserving the integrity of reviews of this nature and in giving the Trust the best opportunity to overcome the challenges it faces so that it may provide the highest quality of clinical care for its patients.
Taking into account all of these considerations, it is the view of the Trust that the public interest is best served by withholding some of the information contained in the report under section 36(2)(b) and (c) for the reasons explained above.
The Information Commissioner’s Office (ICO) has a duty to investigate complaints where it is believed that an authority has failed to respond correctly to a request for information. Previous investigations and subsequent decisions by the ICO have established that it is both reasonable and in the wider public interests for NHS organisations to withhold reports which detail the findings and outcomes of Invited Service Reviews under section 36(2)(b) of the FOIA. We have considered a number of these decisions and believe the application of section 36(2) exemption is appropriate in these circumstances and this view is supported by ICO Decision Notices, reference FS50839428 and FS50730159. We have provided links to these decision notices for your information below.
Microsoft Word – FS50839428 Decision Notice for website (ico.org.uk)
Freedom of Information Act 2000 (Section 50) (ico.org.uk)
The review report provided by the Royal College of Surgeons (RCS) also contains a significant amount of information that is considered personal data. This includes information that could identify patients, staff and individuals external to the Trust. Article 4(1) of UK General Data Protection Regulations (GDPR) defines personal data as meaning “any information relating to an identified or identifiable natural person (‘data subject’)”. The Trust therefore considers the disclosure of this information exempt under section 40(2) [personal information] exemption of the FOIA on the grounds that it amounts to personal data and the first condition under section 40(3)(a)(i) is satisfied, namely, that disclosure would be in breach of the first data principle as outlined in the UK GDPR and Data Protection Act 2018, which outlines the requirement that personal data is processed ‘fairly’. It is our view that disclosure in this case would be neither fair nor necessary and that those individuals to which this information relates, would have a reasonable expectation that such information would not be disclosed into the public domain in this way and that disclosure would likely cause undue distress and not be considered fair by the individuals involved. The application of section 40(2) exemption in these circumstances is considered ‘absolute’ and is not subject to further public interest considerations.
Although the Trust considered withholding the report in full for the reasons we have explained above, the passage of time since the review, public interest considerations and the previous disclosure of this redacted report which set a precedent, has meant that disclosure of the attached report is appropriate in these circumstances.