In response to our legal campaign, the UK’s Information Commissioner has just issued a ground-breaking decision against the Department of Health & Social Care: they have to disclose secret pandemic surge documents on NHS population triage and adult social care.
For over 12 months, the UK Government has done everything possible to avoid disclosure of these two briefing papers. The NHS triage document deals with what will happen if a major pandemic overwhelms NHS resources – basically, who will be allowed to die?
The surge document on adult social care deals with what happens to social care during a pandemic surge, and is highly sensitive given that NHS England’s chief executive Simon Stevens ordered NHS Trusts to urgently discharge patients to social care and that this decision may have contributed to the deaths of thousands of care home residents.
The Information Commissioner has issued a balanced but robust decision, acknowledging the Department of Health’s arguments made under section 36 of the Freedom of Information Act, but laying out powerful reasons why both clinicians and the public have a right to see the two secret documents:
It’s now twelve months since we requested “a specific report focusing on NHS population triage” in our legal submissions for judicial review. It’s been six months since I made Freedom of Information requests for the surge planning documents to both NHS England and the Department of Health and Social Care.
NHS England is headed by Simon Stevens – he keeps a very low public profile but has far more executive power than the Health Secretary, and is relatively unaccountable.
Simon Stevens was head of global expansion for the USA’s largest health insurance company before taking over the NHS. Some wondered why he took the job. Recently, he brokered a deal which has kept the UK’s private healthcare sector afloat during COVID-19.
NHS England decided to simply refuse to respond to my FOI request. On 2nd March 2021, the ICO found that NHS England had breached section 10(1) of the Freedom of Information Act by failing to respond to my request. Essentially, Mr Stevens’s organisation had behaved like it was above the law.'The ICO found that NHS England had breached section 10(1) of the Freedom of Information Act by refusing to respond to my request. Essentially, Simon Stevens's organisation had behaved like it was above the law.' Click To Tweet
By contrast, Matt Hancock’s Department of Health and Social Care responded to my FOI request for the pandemic surge documents, but relied on section 36 of the FOI Act to withhold disclosure. In March 2021, my lawyers, Leigh Day Solicitors, submitted arguments against Mr Hancock’s decision:
In a carefully weighed decision, the ICO has now ordered the Department of Health and Social Care to disclose the documents. The Information Commissioner has accepted that section 36 of the Freedom of Information Act is engaged, but has decided that the balance of the public interest favours disclosure.
It’s clear to myself and many of my senior NHS colleagues that there’s a clinical imperative for authoritative pandemic triage guidance, but the Nuffield Council of Bioethics has said there’s also an ethical imperative, and experts like Dr Kathy Liddell at the University of Cambridge have laid out the legal risks to healthcare professionals in the absence of authoritative guidance.
By refusing to provide a population triage protocol, both the Department of Health and NHS England have arguably transferred blame – and legal liability – from politicians and corporate executives to NHS healthcare workers who had already risked their lives on the front line.
Mr Hancock and Mr Stevens have also failed to clearly define the rights of NHS patients and care home residents during a pandemic. That has to be unacceptable.
It’s time now for our nation to open up a public debate about how best to prepare together for a world of future risks.
The Department of Health and Social Care now has 28 days to appeal the ICO’s decision. If they do, we’re ready to ask for Matt Hancock to be cross-examined as a witness in the Information Tribunal. Somehow, I doubt that Simon Stevens will be anywhere to be seen. 'It's time now for our nation to open up a public debate about how best to prepare together for a world of future risks.' Click To Tweet