Decision
Mr V and the Medical Council (the Council)
From Office of the Information Commissioner (OIC)
Case number: 120172
Published on
From Office of the Information Commissioner (OIC)
Case number: 120172
Published on
Whether the Council was justified in refusing to provide the applicant with a statement of reasons, concerning the Council's handling of a complaint made by the applicant regarding a named doctor (Dr Y), as sought by him under section 18 of the FOI Act
16 April 2014
On 9 March 2012, the applicant sought a statement of reasons, under section 18 of the FOI Act, for the following:
1. Why the Council had not requested Dr Y to explain his "change of version" as to when the applicant had been offered admission and treatment i.e. "from the substantiated truth 'ASAP when a bed became available' ... to the false unsubstantiated 'immediate' ...";
2. Why the Council did not request Dr Y to produce "the letter to [the applicant's] GP" that Dr Y said stated the applicant had been offered, and had declined, "immediate" treatment;
3. Why the Council "accepted without question" Dr Y's description of what was offered to the applicant when he saw him on 1 April 2010, and "that 'immediate and declined' was in [Dr Y's] letter to [the applicant's] GP when it clearly was not";
4. Why the Council "accepted without question" Dr Y's claim that the applicant had refused treatment;
5. Why the Council's minutes do not mention the "true and only substantiated offer of treatment 'ASAP' when the false unsubstantiated and false (sic) claim 'immediate'/'refused' is clearly in said minutes";
6. Why the minutes do not say that Dr Y "was being untruthful and contradicting himself";
7. Why the minutes do not refer to "documentary evidence", lodged by the applicant, concerning a particular phone call; and
8. Why the Council ruled that there was not sufficient cause to take further action in relation to the applicant's complaint.
The Council did not issue a decision on the section 18 application within the statutory timeframe, thus effectively refusing the application. On 13 April 2012, the applicant sought an internal review of the Council's effective decision. On 16 May 2012, the Council issued its internal review decision, which, referring to a letter from the Council dated 2 May 2012, contended that section 18" has been fulfilled regarding the decision to dismiss your complaint", and said that the applicant had "been provided with the reasons for the [Preliminary Proceedings Committee (PPC)] decision and all documentation on file". The Council's letter of 2 May 2012 told the applicant that it had been necessary for the matters raised in his section 18 application to be dealt with by the Council's Professional Standards Section and referred the applicant to that Section's response. The response, a letter dated 1 May 2012, said that as "all matters concerning [the applicant's] Freedom of Information request is being and have been responded to", it would comment only on the PPC and the Medical Council's consideration of his complaint. The letter then went to state that the PPC had considered his complaint in the light of various legal definitions (also set out in the letter), and that the Medical Council had decided no further action was to be taken, having considered the PPC's opinion. On 6 July 2012, the applicant sought a review by this Office of the Council's decision on his section 18 application.
In carrying out my review, I have had regard to correspondence between the Council and the applicant as set out above; to details of various contacts between this Office and the Council; and to details of various contacts between this Office and the applicant, particularly an email sent to him by Ms Anne Lyons, Investigator, on 27 February 2014, and the applicant's reply of 11 March 2014. I have had regard also to the provisions of the FOI Act.
The scope of this review is concerned with whether the Council has justified its decision on the applicant's section 18 application.
Section 18(1) of the FOI Act provides that a person is entitled to a statement of reasons for an act of a public body where that person is affected by that act and has a material interest in a matter affected by the act, or to which it relates. Section 18(1)(a) requires a statement to specify the reasons for the act for which the statement has been sought, whilst section 18(1)(b) requires it to set out any findings on any material issues of fact made for the purposes of the act concerned.
In considering whether a person is entitled to a statement of reasons for an act of a public body, a key factor is whether the act has the consequence or effect of conferring on the person a benefit (or withholding a benefit from them). I accept that the Council's decision not to proceed with the applicant's complaint (to which I will refer in the remainder of this decision as "the substantive decision") is an act that had the consequence of withholding from the applicant a benefit (namely the further examination of his complaint). Thus, I accept that the applicant is entitled to a statement of reasons for that substantive decision, as sought by him at part 8 of his application.
It appears to have been the Council's contention that the requirements of section 18 had been met via details in records provided to the applicant under FOI and to information provided to him in the course of examination of his complaint. However, regardless of how much the applicant knows about the basis for the substantive decision, the Council is still obliged to provide him with a statement of reasons for that decision under section 18 of the FOI Act. I am pleased to note that the Council is willing to provide the applicant with a statement of reasons accordingly. However, I must nonetheless annul this aspect of its original decision so that the applicant may avail of his rights of internal review, and ultimate appeal to this Office, in respect of the content of that statement.
As for the content, it should be intelligible and adequate, having regard to the particular circumstances of the case, and should be sufficiently clear to enable the applicant to understand without due difficulty why the Council arrived at its decision. While the statement must also meet the requirements of sections 18(1)(a) and (b) of the FOI Act, it does not necessarily have to contain a detailed clarification of all issues identified by the applicant as relevant to the Council's decision, however.
On the matter of whether the applicant is entitled to a statement of reasons for the actions set out at parts 1 to 7 of his request, this Office has previously explained that section 18 does not apply to every action of a public body and that the Oireachtas could not have intended that public bodies should be required, on demand, to provide a written statement of reasons and findings on any material issues of fact made for the purposes of every single action of the public body and its officials. Taking section 18 as a whole, this Office considers that the word "act" in the section must be interpreted as the exercise (or refusal to exercise) of a power or function which may result in the conferring or withholding of a benefit. In addition, the reasons for the act must have a bearing on the outcome of whether a person receives or does not receive a benefit or suffers a loss or a penalty or other disadvantage. In other words, if the same outcome would result regardless of the reasons for the act in question then section 18 does not apply to that act.
In his email of 11 March 2014 to this Office, the applicant has identified what he considers to be benefits withheld from him as a result of the various "acts" for which he seeks reasons. However, it seems to me that, in essence, the applicant is attempting to use section 18 to challenge the procedure adopted by the Council in arriving at its decision that no further action would be taken on his complaint. As I have already explained, the benefit withheld in this case stemmed from that decision, for which the applicant is entitled to a statement of reasons. Section 18 does not, in my view, require the Council to provide a statement of reasons for each and every part of the process it followed in arriving at that decision. Furthermore, I do not accept that section 18 requires a public body to provide a statement of reasons for not taking alternative courses of action in respect of a particular act, nor has this Office a role in examining the administrative processes of public bodies. If the applicant considers that the Council did not adhere to fair procedure in arriving at its decision, it is not a matter for this Office to examine that allegation, nor does section 18 require a public body to justify any particular act. For the purposes of section 18, it is sufficient for the Council to adequately explain why it decided that no further action would be taken on the applicant's complaint. Accordingly, I find that the Council is not required to provide a statement of reasons for the matters set out at parts 1 to 7 of the applicant's section 18 application.
Having carried out a review under section 34(2) of the FOI Act, I hereby annul the Council's decision in so far it concerns part 8 of the section 18 application, and direct that it issue a statement of reasons to the applicant that fulfils the requirements of sections 18(1)(a) and (b) of the FOI Act. I affirm its refusal to provide the applicant with a statement of reasons in respect of all other aspects of the application.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.
Stephen Rafferty
Senior Investigator