Freedom of Information Act 2000 section 41(1)

beaujolais-nouveau

NHS Somerset have cited section 41 (1) of the 2000 Act as a reason for them not to release to me all of their internal review case file on my mother, in response to my FOI request. (I have already pointed out to them that, by not having an independent clinical adviser present at the review, they were in breach of their own Operational Policy.)

Section 41 says,

41 Information provided in confidence

(1) Information is exempt information if—


(a) it was obtained by the public authority from any other person (including another public authority), and


(b) the disclosure of the information to the public (otherwise than under this Act) by the public authority holding it would constitute a breach of confidence actionable by that or any other person.


(2) The duty to confirm or deny does not arise if, or to the extent that, the confirmation or denial that would have to be given to comply with section 1(1)(a) would (apart from this Act) constitute an actionable breach of confidence.

Could I ask: have they interpreted this section as intended? I mean, on the face of it, this section would allow everyone - including, say, local councils - never to release anything because they had "obtained it from any other person/public authority".

Thanks.

RAS

No

They are saying that since the information relates to your mother it is confidential.

beaujolais-nouveau

RAS wrote: »

No

They are saying that since the information relates to your mother it is confidential.

You are looking at section 41 (2). I wasn't more explicit because I didn't know I should be but the PCT is citing only section 41 (1) (a and b). Not section 41 (2).

KeithP

beaujolais-nouveau wrote: »

You are looking at section 41 (2). I wasn't more explicit because I didn't know I should be but the PCT is citing only section 41 (1) (a and b). Not section 41 (2).

Doesn't section 41 (1) (b) say something very similar?

I would not be very happy if anyone could use the freedom of information legislation to obtain health or medical records about me.

That "would constitute a breach of confidence actionable by me", wouldn't it?

beaujolais-nouveau

KeithP wrote: »

Doesn't section 41 (1) (b) say something very similar?

I would not be very happy if anyone could use the freedom of information legislation to obtain health or medical records about me.

That "would constitute a breach of confidence actionable by me", wouldn't it?

Sorry, to have given more context would have taken a long time. My mother (before she deteriorated to the point at which she is today) wanted to recover the money spent on nursing home fees because she believed (rightly, I think) she was entitled to fully-funded NHS continuing health care. I am trying to do this on her behalf. Other PCTs treat applications by next-of-kin for health records on a case by case basis, they don't cite this piece of legislation.