FOI-02138

##Request

I would like to formally request the details of the Doctor that issued the review of my Vacine Damage claim, I need this to check it is actually a doctor that carried out the review, not a semi trained individual, but also should I find comments to be unprofessional standards of a medical nature, report to the Governing Body.

I request this in line with the Freedom of Information Request and the Data Protection Act, should this not be done or not within a reasonable time frame I will need to forward this to the Data Commissioner, I know you will want to help in this issue as I'm sure everyone has done everything to the highest standard so have nothing to hide

##Response

All medical assessors are General Medical Council (GMC) registered doctors with a license to practise and at least five years’ experience.

We have considered this request under the Freedom of Information Act 2000 and we are issuing a refusal notice under section 17 of the FOIA.

We can confirm that we do hold the requested information, but this information is exempt under section 40(2) of the FOIA (personal information).

Section 40(2) is an absolute, prejudice-based exemption and therefore is exempt if disclosure would contravene any of the data protection principles. In order for disclosure to comply with the lawfulness, fairness, and transparency principle, we either need the consent of the data subject(s) or there must be a legitimate interest in disclosure. In addition, the disclosure must be necessary to meet the legitimate interest and finally, the disclosure must not cause unwarranted harm.

As we do not have the consent of the data subject, the NHSBSA is therefore required to conduct a balancing exercise between legitimate interest of the applicant in disclosure against the rights and freedoms of the data subject.

The NHSBSA acknowledges that you have a legitimate interest in disclosure of the information in order to provide the full picture of the requested data held by the NHSBSA; however, we have concluded that disclosure of the requested information would cause unwarranted harm and therefore, section 40(2) is engaged.

The expectation of the medical assessors is that they will remain anonymous and will therefore not be subject to contact or pressure from claimants or campaigning groups. Given the certainty that the personal details of the medical assessor will identify them there is a reasonable expectation that this information will not be disclosed under FOI. Disclosing this information would be unfair and as such this would breach the UK GDPR first data protection principle.

With regards to the Vaccine Damage Payment Scheme (VDPS) there have been concerns for the health and safety of medical assessors and staff administering the scheme. Disclosure of the personal details of the medical assessor is likely to result in considerable distress to them.

Publishing this response

Please note that this information will be published on our Freedom of Information disclosure log at:

https://opendata.nhsbsa.net/dataset/foi-02138

##Internal Review

My decision

I have carefully and objectively reviewed the way in which your original request was processed. I find that the steps taken were not in line with the NHSBSA’s procedures at the time of your request. 

This is because when your request for information was received it should have been handled under the FOIA as your email meets the requirements of a valid request under the legislation. I also note that your email on 6 August 2024 was clear that you wanted to request this information under the FOIA. On behalf of the NHSBSA I am sorry that this error occurred and for any confusion caused when we advised that it did not need to be handled under the FOIA. The NHSBSA takes the commitment to information rights very seriously and acknowledges that this should not have happened. Appropriate feedback has been provided and a review of the process has taken place to prevent any similar recurrence. 

I have noted that when your request for information was reviewed again by the IG team it was logged as received on the date of your initial request to the VDPS team and the timeframe for reply was 3 September 2024 which is 20 working days from that date. I hope this provides reassurance that the response was issued in accordance with the timeframes set out in the FOIA. 

Additionally, I have noted your comment that you were advised that the requested information would be provided to you. I have reviewed our response issued on 7 August 2024 and can see that you were advised that a response would be provided from the VDPS team and gave no indication of whether the requested information would be provided. 

I have also reviewed whether the decisions issued to you were correct. I appreciate that the following may not be the result that you were hoping for, but I am satisfied that our response issued to you on 30 August 2024 meets the requirements of the FOIA. Therefore, I uphold the decision which was issued to you. 

Names and GMC numbers

I can confirm that we do hold the requested information however, we consider the name and General Medical Council (GMC) number to be personal data under section 3(2) of the Data Protection Act 2018. Disclosure of the medical assessor’s name or GMC number would result in the identification of the medical assessor when entered into the GMC public register.  

As the requested information would allow a medical assessor to be identified, I consider this information is exempt under section 40(2) and 40(3A)(a) of the FOIA (personal information). This is because it would breach the first data protection principle as: 

a)	it is not fair to disclose medical assessors’ personal details to the world and is likely to cause damage or distress.
b)	these details are not of sufficient interest to the public to warrant an intrusion into the privacy of the medical assessor.

For disclosure to comply with the lawfulness, fairness, and transparency principle, we either need the consent of the medical assessor or there must be a legitimate interest in disclosure. In addition, the disclosure must be necessary to meet that interest and finally, the disclosure must not cause unwarranted harm.
In this case we do not have the consent of the medical assessor to disclose their personal information. This means that the NHSBSA is therefore required to conduct a balancing exercise between the legitimate interest in disclosing the information against the rights and freedoms of the medical assessor.
Having reviewed the information you have provided I acknowledge that you have a legitimate interest in disclosure of the information. 
However, I agree with the previous decision that disclosure of the requested information would cause unwarranted harm. 
Whilst I acknowledge your comments on this, disclosure under FOIA is to the world and therefore the NHSBSA has to consider the overall impact of the disclosure and its duty of care. 
The expectation of the medical assessors is that they will remain anonymous and will therefore not be subject to contact or pressure from claimants or campaigning groups.
Given the certainty that the name and/or GMC number will identify the medical assessor there is a reasonable expectation that this information would not be disclosed under the FOIA. Disclosing this information would be unfair and as such this would breach the UK General Data Protection Regulation first data protection principle.
Please see the following link to view the section 40 exemption in full - https://www.legislation.gov.uk/ukpga/2000/36/section/40 

Qualifications and experience

I have established that the NHSBSA does not hold this information. This is because the medical qualifications and experience of the medical assessors are the responsibility of the third-party medical assessment supplier, Crawford and Company. 

I hope however, that the following information provides reassurance on this point. All claims are assessed by the independent medical assessment company with a consistent approach. 
Each case is considered on its own merits, by an experienced independent medical assessor.
The contract with our supplier does not require them to tell us details of the qualifications of the medical assessors or their experience. The contract does require that all assessments carried out are undertaken by suitably qualified and experienced Registered Medical Practitioners. 
This includes being registered on the UK GMC with a licence to practice and meet or exceed the following requirements:

•	They are a Registered Medical Practitioner with at least 5 years post graduate experience and
•	They have experience of the performance of the medical and/or disability assessment, addressing questions of causation and impact in the context of legislative or policy requirements to assist the decision maker. 

Next steps

If you are not content with the handling of your internal review, you have the right to complain directly to the Information Commissioner’s Office (ICO). Complaints to the ICO should be made within six weeks of the date of this letter. You can make a complaint through their website www.ico.org.uk/foicomplaints. Alternatively, they can be contacted at the following postal address: 

Information Commissioner's Office, 
Wycliffe House, 
Water Lane, 
Wilmslow, 
Cheshire, 
SK9 5AF.


Tags: Vaccine Damage Payment Scheme
Organization: Freedom of Information Disclosure Log