Decision
Mr. X and The Medical Council
From Office of the Information Commissioner (OIC)
Case number: OIC-150189-L9H5R3
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-150189-L9H5R3
Published on
Whether the Medical Council was justified in refusing access to information from the minutes of its meetings that related to legal (or other) opinions on a specified change to its guidelines
3 July 2025
In a request dated 14 March 2024, the applicant sought access to copies of the minutes of full Medical Council meetings from 2020 to the date of his request. Following further engagement between the Medical Council and the applicant, he subsequently refined the scope of his request, seeking in particular any information from the minutes that related to the Medical Council’s Ethics Committee, as well as “any legal or other opinion relating to change from 'doctors should' to 'doctors must' in the latest edition of the [Medical Council’s] guidelines”. For context, the ninth (and most recent) edition of the Guide to Professional Conduct & Ethics for Registered Medical Practitioners (“the Ethics Guidelines”) was published by the Medical Council in November 2023, and came into force on 1 January 2024. The Ethics Guidelines contain various recommended steps for medical practitioners (“doctors should”) as well as steps that the Medical Council considers to be mandatory (“doctors must”).
In a decision dated 16 April 2024, the Medical Council part-granted the applicant’s request, releasing 11 records in part that related to the first part of his request (regarding information in the minutes relating to the Ethics Committee), with information that it considered outside the scope of the request redacted. The Medical Council also released a further two records in full that related to the first part of the FOI request. The Medical Council refused access in full to the three records that it identified as falling within the second part of the applicant’s request (relating to any legal or other opinion on the relevant change to its guidelines), citing sections 31(1)(a) and 29(1) of the FOI Act as grounds for its decision.
On 10 May 2024, the applicant sought an internal review of the Medical Council’s decision. In its internal review decision of 21 June 2024, the Medical Council affirmed its original decision. In correspondence received in this Office on 28 June 2024, the applicant applied for a review of the Medical Council’s decision.
In the course of this review, the Medical Council indicated that, during the process of preparing its submissions to this Office, it had carried out a further search for records concerning the legal advice it received on the issue which is the subject-matter of the relevant part of the FOI request (ie. relating to the change in wording in the latest edition of the Ethics Guidelines from “should” to “must”). The Medical Council stated that this search identified a number of emails relating to the proposed legal review of and/or instructions to counsel which mention (directly or indirectly) the subject matter concerned . The Medical Council stated that it had considered this additional material for release and had concluded that, like the records originally identified, it was also exempt from release under sections 31(1)(a) and 29(1) of the FOI Act.
In addition, the Medical Council indicated that, although in its first-instance decision it had identified two records (of three total) which captured the relevant legal opinion, on review it had identified other versions of these records which were created in the course of the relevant legal review, as well as other internal documents which refer to the legal advice received. As such, the Council indicated that it had also considered this additional material for release and had concluded that it was also exempt from release under sections 31(1)(a) and 29(1).
Furthermore, it should be noted that, in the course of conducting this review, I examined the material contained in records identified as relevant to the first part of the applicant’s request that the Medical Council considered to fall outside scope. With one exception, I have accepted the Medical Council’s position that it was outside the scope of the request. This exception was the material redacted from item 7.1 of the minutes of Meeting No. 23 of 2020 (which forms part of record 2, described in more detail below). I subsequently requested clarification from the Medical Council as to the basis on which it considered that this part of the record was outside the scope of the applicant’s request. In response, the Medical Council indicated that this material had been withheld from release in error, and subsequently confirmed that same had been released to the applicant in full. Accordingly, this section of record 2 no longer falls to be considered as part of this review. Moreover, the records that fall within part 1 of the applicant’s request as a whole require no further examination as part of this review, as they have either been released to the applicant or are outside the scope of his FOI request.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by the Medical Council, the applicant’s comments in his application for review, and to the correspondence exchanged between the parties in the course of the applicant’s FOI request. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
In advance of the substantive analysis of the issues that arise in this case, there are a number of preliminary points that I wish to make. Firstly, I note that, in the course of his correspondence with the Medical Council during its processing of his FOI request, the applicant made clear his reasons for seeking the information at issue. Section 13(4) of the FOI Act provides that, subject to the legislation, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the FOI Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request.
Secondly, the applicant has made clear in his application to this Office his dissatisfaction with the consultation process undertaken by the Medical Council in the course of its revision of the Ethics Guidelines. I wish to note that his Office has no role in the investigation of complaints regarding the manner in which public bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by public bodies. The role of this Office is confined to a consideration of the decision taken by the Medical Council on the applicant’s FOI request.
Finally, I wish to note that section 25(3) of the FOI Act requires me to take all reasonable precautions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. This means that the extent to which I can describe the contents of some of the records at issue in this case is somewhat limited.
This review is solely concerned with whether the Medical Council was justified, under sections 31(1)(a) and 29(1) of the FOI Act, in withholding access to the records sought by the applicant that relate to any legal or other opinion on the specified change to its guidelines. It should also be noted that the Medical Council advanced arguments to the effect that certain material contained in these records are outside the scope of this review, and I examine this issue in more detail below.
For the avoidance of any doubt, the records that fall within the first part of the applicant’s request (relating to information from minutes of Medical Council meetings that related to its Ethics Committee) are not within the scope of this review, for the reasons outlined above.
In the schedule of records that issued to the requester along with its original decision, the Medical Council initially identified 16 records relevant to the request. In the schedule, the Medical Council identified these by page number (for example, the first record on the schedule is listed as comprising pages 1-20). For the purposes of this review, I will refer to each record by the numerical order in which each appears on the schedule (ie. record 1, record 2, etc). Moreover, in circumstances where additional records were subsequently identified, I will refer to the initial batch of records as “Category 1” records. As noted above, the Medical Council released Category 1, records 1 to 11 the applicant, with material redacted that I accept is outside the scope of the request, and which accordingly requires no further consideration. In addition, Category 1, records 12 to 14 were released in full by the Medical Council. The records that were fully withheld by the Medical Council in its decision, and which fall to be considered in this review, are Category 1, records 14 to 16. These are as follows:
• Category 1, record 14 is a legal opinion provided to the Medical Council in relation to the Ethics Guidelines
• Category 1, record 15 is a memo in tabular form setting out a list of issues arising from what the Medical Council described as a “legal proof” of a draft version of the Ethics Guidelines
• Category 1, record 16 is a draft version of the Ethics Guidelines, dated 28 July 2023, which features numerous comments and suggested edits. These include comments either suggesting that legal advice be sought or providing same.
In addition, as outlined above, in the course of preparing its submissions to this Office, the Medical Council identified a number of additional records that it also argued are exempt from release under section 31(1)(a). I will refer to these in this review as “Category 2” records. These additional records, numbering 16 in total, are as follows:
• Category 2, records 1 to 10 comprise various draft versions of the Ethics Guidelines, dating from 24 July to 5 September 2023, with numerous comments and suggested edits appended, including comments either suggesting that legal advice be sought, or providing same
• Category 2, record 11 is an internal Medical Council memo dated 5 September 2023 created by its Ethics Committee, in relation to the draft Ethical Guidelines, with four appendices (I, II, III and IIIa)
• Category 2, record 12 is a draft version of the above memo
• Category 2, record 13 is an email dated 24 July 2023 from the Medical Council’s Head of Performance, Professional Conduct and Ethics to its in-house solicitor
• Category 2, record 14 is an email dated 28 July 2023 from the Medical Council’s in-house solicitor to its external legal adviser
• Category 2, record 15 is an email dated 17 August 2023 from the Medical Council’s external legal adviser to its in-house solicitor
• Category 16 is an email dated 17 August 2023 from its in-house solicitor to its Head of Performance, Professional Conduct and Ethics.
As section 31(1)(a) provides for the mandatory refusal of records (ie. where the exemption applies, the FOI body must refuse to release the records), I consider it appropriate to examine its applicability to the relevant records at the outset.
Section 31(1)(a) provides that an FOI body shall refuse access to a record that would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP). LPP provides for the confidentiality of two types of communication:
• confidential communications made between a client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege) and
• confidential communications made between a client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).
The concept of "once privileged, always privileged" applies where privilege is based on legal advice privilege, but not where it is based on litigation privilege. Thus, unless otherwise lost or waived, legal advice privilege lasts indefinitely. For advice privilege to apply, the communication must be made between a client and his/her professional legal adviser in a situation where the legal adviser is acting in a professional capacity. Furthermore, this Office is of the view that privilege attaches to records that form part of a continuum of correspondence that results from the original request for advice.
In its submissions on section 31(1)(a), the Medical Council first of all specified that legal advice privilege was the relevant type of LPP for the purposes of the records at issue. Having examined the records, I concur that legal advice privilege is the appropriate type of LPP to be considered in this case.
The Medical Council went on to argue that, while the withheld records are subject to legal advice privilege in their entirety, and thus exempt from release under section 31(1)(a), not all of the legal advice documented in the records relates to the specific subject matter of the applicant’s FOI request (ie. the change of wording in the Ethics Guidelines from a recommendation that a doctor “should” take certain actions to a statement that the doctor “must” do so). The Medical Council argued that, as such, these parts of the records would not be releasable in any event. I will return to this issue in due course.
In relation to Category 1, record 14, the Medical Council stated that the record comprises a legal opinion that it received from Senior Counsel, relating to how the Ethics Guidelines met the requirements of the Medical Practitioners Act 2007 (as amended) (“the 2007 Act”). The Medical Council submitted that it was clear that the record comprises legal advice, from a Senior Counsel on matters concerning legal interpretation and legal obligations, and it clearly meets the test for legal advice privilege such as to come within the scope of section 31(1)(a).
With regard to Category 1, record 15, the Medical Council stated that the record was prepared by its in-house solicitor and its-then Head of Performance, Professional Conduct and Ethics. The Medical Council stated that the record outlines the key points and rationale of the legal proofing exercise that members of its in-house legal team, in conjunction with external counsel, had undertaken in respect of the proposed revision to the Council’s Ethics Guidelines. As such, the Medical Council argued, it is a record of the Council’s internal and external legal advice and legal rationale in relation to certain revisions to the Ethics Guidelines. Furthermore, the Medical Council argued that the record is a document composed by a qualified lawyer, recording their own legal advice and rationale, and that of other legal professionals, and the dominant purpose of its creation was the recording of such legal advice and rationale.
In respect of Category 1, record 16, the Medical Council stated that the record is a working version of the Ethics Guidelines into which in-house and external legal advisers had inserted their commentary and advice on the legal issues arising in respect of various proposed revisions. The Medical Council advised that this record was authored collectively by its in-house solicitor, its then-Head of Performance, Professional Conduct and Ethics, and by external counsel who had been instructed to provide advice on the review of the Ethics Guidelines. The Medical Council stated that this record comprised the means by which the legal advice it had received in relation to any changes in wording from “should” to “must” was recorded (in other words, that no separate or discrete legal opinion existed relating to this matter). The Medical Council stated that the approach of the legal team concerned was to maintain one document, into which comments and suggested amendments were added (based on their legal views) over time. Specifically, it stated that the comments and amendments reflect the legal opinion and advice of its legal advisers, and that the amendments (appearing in tracked changes in the record) are reflections on, and/or the application of, such legal opinions and advice. Accordingly, the Medical Council argued, it is a record of the internal and external legal advice and legal rationale provided by its advisers in relation to certain revisions to the Ethics Guidelines. Further, the Medical Council argued that the dominant purpose for the creation of the record was to document such legal advice, opinions and rationale and the proposed amendments to the Ethics Guidelines which reflected same.
In relation to the 16 Category 2 records that the Medical Council identified in the course of this review, it argued, in relation to Category 2, records 1 to 10, that each is an earlier working version of the record that comprises Category 1, record 16, as described above. The Medical Council stated that, essentially, the same arguments that it had made in respect of Category 1, record 16 applied equally to Category 2, records 1 to 10.
With regard to Category 2, record 11, the Medical Council submitted that the record was written and circulated in order to accompany and explain the proposed update to the Ethics Guidelines, including the legal review exercise that was conducted with it external legal adviser. It outlined that appendices I and II (in part) contain summaries of the legal advice received on the proposed changes in wording from “should” to “must” for the new edition of the Ethics Guidelines and how that legal advice was to be applied in the new edition. As such, the Medical Council argued that the relevant parts of the record provide a confidential summary of the legal advice received, are therefore records of legal advice, and accordingly are legally privileged (the Medical Council also maintained that the remaining parts of this record are outside the scope of the request, and again I will address this issue further below).
In respect of Category 2, record 12, the Medical Council stated that this is a draft version of the record that comprised Category 2, record 11, and that the same arguments for exemption applied.
In relation to Category 2, records 13 to 16, the Medical Council advised that these comprised four emails that indirectly relate to the legal advice sought and/or received in respect of the issues of the change in wording from “should” to “must” in the Ethics Guidelines, and which directly refer to that issue. The Medical Council noted that none of the emails communicate the legal advice on the specific issue of the change in wording in the Ethics Guidelines from “should” to “must”; rather, they refer to the instructions for counsel to advise on this issue. Accordingly, the Medical Council stated that it reserved its position as to whether any of these emails fall within the scope of the request, and again this is a matter I address below. Aside from the question of scope, the Medical Council argued that each of the four email records were exchanged between its in-house and external legal advisers, and/or its then-Head of Head of Performance, Professional Conduct and Ethics, and that each contained instructions for legal advice on the proposed wording change in the Ethics Guidelines, and/or confidential communications to or from legal advisers, and/or confidential advice from legal advisers, and that each was exempt under section 31(1)(a) on those grounds. The Medical Council stated that, although these emails do not constitute of themselves the legal opinions concerning the relevant wording changes, they do refer to the changes being considered, and/or constitute instructions to counsel to advise on such changes, so as to bring them within the scope of section 31(1)(a).
In his application to this Office for a review of the Medical Council’s decision on his FOI request, the applicant copied us on correspondence he issued to the Medical Council. In this correspondence, he stated that it was of significant concern that the Medical Council did not appear to understand that the context and factors shaping ethical decisions should be open and transparent to the professionals to whom they apply. He argued that the legal opinions contained in the records do not relate to an individual or a case, and access to same may be illuminating in understanding the processes and approach to the changes in the latest edition of the Ethics Guidance, which he stated had caused unprecedented concern to doctors and their representative bodies across a wide spectrum of practitioners.
I have carefully considered the records in light of the submissions made by the Medical Council. I have also had regard to the comments of the applicant in the course of his correspondence with the Medical Council. I find as follows in relation to section 31(1)(a).
In relation to the Category 1 records first of all, as outlined above legal advice privilege protects communications (including records of communications) between a client (in this case, the Medical Council) and its legal advisers (in this case, the Medical Council’s in-house legal team and external legal counsel) which are made for the purpose of the giving or receiving of legal advice. On the basis of the contents of the records at issue, and of the arguments advanced by the Medical Council that I have outlined above, I fully accept that the three Category 1 records at issue fulfil these criteria. In particular, in my view it is entirely straightforward to accept that this is the case in respect of Category 1, record 14, which very clearly comprises a confidential memo to the Medical Council from external counsel in relation to the Ethics Guidelines, the sole purpose of which clearly appears to be the provision of legal advice. I am satisfied that, given the contents of the memo and the circumstances in which it was created, it very clearly falls within the scope of legal advice privilege.
In relation to Category 1, record 15, I wish to address at this point the arguments of the Medical Council, referenced above, to the effect that substantial parts of Category 1, record 15, are outside the scope of the FOI request, and do not fall to be released in response to same. I entirely agree with this proposition. Indeed, I take the view that the majority of this record is outside the scope of the request, as it is not concerned with the proposed change in wording to the Ethics Guidelines. In particular, I find that the only relevant parts of this record, for the purposes of the FOI request that underpins this review, are the sections at points 29.2 and 34.1. It follows that the record as a whole does not fall to be released, either because it is not within the scope of the FOI request or, in the case of the within-scope parts of the record that I have identified, because the material at issue benefits from legal advice privilege.
On the question of whether the within-scope material in Category 1, record 15 is exempt from release, I accept that the portions of the memo that relate to the proposed change in wording meet the criteria for legal advice privilege. Specifically, I accept that the record as a whole was prepared by the Medical Council’s legal advisers on a confidential basis for the purpose of giving legal advice on the question of the revised Ethics Guidelines. Furthermore, the relevant parts of the record very clearly, to my mind, set out the advice of the Medical Council’s advisers on the specific question of the change in wording from “should” to “must”, particularly by way of the observations recorded in the column headed “Rationale/Comment”. In addition, it seems to me to be beyond question that the relevant parts of the record make up part of a continuum of communications, originating from an initial request for legal advice on the broader question of the revision of the Ethics Guidelines, such as to bring it within the ambit of legal advice privilege. On these grounds, I am satisfied that the relevant parts of this record are legally privileged.
With regard to Category 1, record 16, I would first of all note that the same arguments regarding scope apply, in other words that substantial parts of the record do not fall within the scope of the applicant’s FOI request, as they do not relate to the proposed change to the wording of the Ethics Guidelines. To my mind, only a small portion of this record is relevant to the FOI request, specifically a number of comments appended to the draft.
As to whether these sections of the working draft of the Ethics Guidelines that comprise Category 1, record 16 are, in fact, exempt from release, I would first of all accept that the relevant comments either comprise legal advice provided by the Medical Council’s adviser in relation to the proposed changes in wording, or requests from the Medical Council for such advice. I would further accept that the comments that comprise either legal advice from the Medical Council’s legal advisers, or requests for same, were intended to be confidential. While a draft document, generally speaking, might not ordinarily be legally privileged as a matter of course (in circumstances where such documents are often circulated for the attention of – and receive input from – members of staff of a given organisation who are not legal advisers, and where such input may generally involve comments and observations that do not comprise legal advice or requests for same), in this specific case an examination of the record clearly shows that the vast majority of the comments are either provided by the Medical Council’s legal adviser (and seem to me to constitute legal advice), or are requests from the Medical Council for such advice. Again, I am also satisfied that the relevant parts of the record form a continuum of correspondence arising from the originating request for legal advice. In those circumstances, I am satisfied that the within-scope portions of the record comprise legal advice, or requests for same, so as to ensure they benefit from legal advice privilege.
On the basis of the above analysis, I am satisfied that Category 1, record 14, as well as the within-scope parts of Category 1, records 15 and 16, benefit from legal advice privilege. I find, accordingly, that this material is exempt from release under section 31(1)(a) of the FOI Act. For the avoidance of any doubt, aside from the within-scope parts of Category 1, records 15 and 16 that I have referred to above, the remainder of those records do not fall to be released, as they do not relate to the subject matter of the FOI request.
In relation to the Category 2 records, I find as follows. Firstly, in respect of Category 2, records 1 to 8, I am satisfied that – in circumstances where each of these records comprise earlier working versions of Category 1, record 16, which I have found to be exempt from release – the same arguments apply. In other words, substantial parts of each of the records are outside the scope of the FOI request, and (on the basis of the arguments outlined above), I am satisfied that the within-scope parts of the records benefit from legal advice privilege. For the avoidance of any doubt, Category 2, records 9 and 10 each contain no comments, and I consider that both these records are outside the scope of the applicant’s request in their entirety.
In relation to Category 2, records 11 and 12, I would first of all note that, again, substantial parts of these records are outside the scope of the applicant’s FOI request. I consider that the only parts of the records that fall within the scope of the request are points 29, 35, 37 and 39 of Appendix I, and the first point under heading 1.3 of Appendix II. On the question of whether this in-scope material benefits from legal advice privilege, I note the Medical Council’s arguments that the relevant parts of the records contain summaries of the legal advice received on the proposed changes in wording from “should” to “must” for the new edition of the Ethics Guidelines and how that legal advice was to be applied in the new edition. The Medical Council’s position is that these parts of the records comprise a confidential summary of the legal advice received, are therefore records of legal advice, and are legally privileged.
I find as follows in relation to these arguments. As outlined above, in order for a record to enjoy legal advice privilege, it must in the first place comprise communication made between a client and his/her professional legal adviser, where the latter is acting in a professional capacity. Category 2, records 11 and 12 do not seem to me to meet this requirement: the memo that comprises both records is from the Medical Council’s Professional Competence, Research and Ethics Directorate to the Medical Council itself.
This being said, as outlined previously, advice privilege may extend to communications that form part of a continuum of legal advice, emanating from the original request for same. I have considered the in-scope parts of the records and, on balance, am satisfied that they form part of such a continuum. This is the case in circumstances where the relevant portions of the record contain summaries of the legal advice received. I am satisfied that these parts of the records emanate from the original request for legal advice, and essentially replicate that advice for the benefit of the Medical Council. In those circumstances, I accept that Category 2, records 11 and 12 fall within the scope of section 31(1)(a) of the FOI Act.
In respect of Category 2, records 13 to 16, I take the view that each of these clearly comprises confidential communications between a client (the Medical Council) and its legal adviser, with the latter acting in a professional capacity, so as to confer legal privilege on the records. As is the case with several of the other records at issue in this case, it seems to me that significant sections of these records are likely to fall outside the scope of the request. However, some parts of the record do directly touch on the subject matter of the applicant’s request. In any case, the question of scope is moot as, given the circumstances in which they were created and their content, I am satisfied that each of the records is legally privileged in its entirety.
On the basis of the above analysis, I am satisfied that the records – or parts of records – at issue in this case are each exempt from release under section 31(1)(a) of the FOI Act. In those circumstances, I am not required to consider the Medical Council’s reliance on section 29(1) of the FOI Act in respect of the same material.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Medical Council. I find that it was justified under section 31(1)(a) of the FOI Act in refusing access to the records (or to the within-scope parts thereof).
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.
Neill Dougan
Investigator