Independence of the Independent Review Body for health complaints Part 1

Summary

The requester asked the Department of Health and Social Care to classify the Independent Review Body (IRB) as a public body and provide correspondence regarding its independence from the Tynwald Ombudsman. The authority responded that the requested information is not held.

Key Facts

• The Department of Health and Social Care (DHSC) stated it does not hold the information requested.
• Minister Ashford previously advised Tynwald that DHSC cannot instruct or influence the IRB.
• The IRB claims in its public leaflet that it is not part of the Government or the Isle of Man NHS.
• The current DHSC CEO advised the Tynwald Ombudsman that the IRB falls outside its jurisdiction.
• Previous DHSC CEOs had advised that the IRB did fall within the Tynwald Ombudsman's remit.

Data Disclosed

• 2020-12-17
• 2021-01-27
• 2021-01-18
• 2020-12-15
• 2004
• 1606781

Original Request

Minister Ashford advised Tynwald on 15th December 2020 that DHSC do not have the ability to either instruct nor influence the Independent Review Body ('IRB'). The Minister also indicated that IRB had total independence from DHSC other than the financial commitment by DHSC to fund the IRB. The IRB go further in their leaflet to the public: 'We are not part of Government or the Isle of Man NHS. ' Question 1: The UK provides assistance but I have been unable to locate similar on the Island to find out what type of public body DHSC have set up. Assistance on analysing types of public body can be found at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/519571/Classification-of-Public_Bodies-Guidance-for-Departments.pdf In accordance with the above, please can DHSC advise how they classify the IRB as a public body? Question 2: The current DHSC CEO has advised the Tynwald Ombudsman that the IRB are independent of DHSC and therefore fall outside the jurisdiction of the Tynwald Ombudsman. This is despite two earlier DHSC CEO's advising that the IRB do fall within the Tynwald Ombudsman remit. Please can you forward copies of the correspondence and minutes relating to current DHSC CEO's decision to advise the Tynwald Ombudsman that the IRB are exempt from investigations regarding maladministration? Please can the DHSC CEO and the Acting DHSC CEO predecessor also provide copies of the correspondence they had with the IRB on this matter? Question 3: The DHSC have stated the IRB are independent of DHSC. The IRB have gone further to advise they are not part of the Isle of Man Government. To a member of the public this is slightly confusing based on the following facts. Appointment of IRB members is by the Council of Ministers - the IRB have no control over who is appointed to their body, neither has the public. Funding and budget is provided by DHSC who could therefore hamper any potential evolution of the IRB. IRB Annual reports, by statute are to DHSC, not Tynwald or the public. Independent Medical advice to the IRB is provided by the Isle of Man Government Director of Public Health. Legal advice to the IRB is provided by the Attorney General who is the legal advisor to the Isle of Man Government and Departments (not the public). The IRB provide training and education to DHSC but not the public. In fact the IRB will not meet the public and all correspondence must be in writing by email or letter to a PO Box Number. The IRB do not have a telephone number or public office. Policy for the IRB appears to be driven by the DHSC CEO and not the IRB. There does not appear to have been any public statement made by the IRB for many years. In fact successive IRB Governors have not changed the IRB modus operandi since inception in 2004. DHSC are invited to IRB meetings when helpful and relevant. IRB meetings are closed to the public and I am unable to locate a single instance of any member of the public being invited to an IRB meeting. The IRB have no statutory clout whatsoever. DHSC do not have to follow the recommendations made by the IRB. The IRB are exempt from Freedom of Information requests so the only annual IRB reports are to DHSC. The IRB are unqualified, lay citizens. They are not professional Ombudsman. Professionals in the private sector are regulated by the professional bodies and the Government. However the DHSC CEO has made a decision that the IRB should not be investigated by a professional qualified regulator, the Tynwald Ombudsman. Please can the DHSC CEO therefore provide the reports/correspondence/documents which support her comments of IRB independence from DHSC in light of the above? Clarification sought: for Question 2 and received, please see response.

Data Tables (1)

Full Response Text

Interim Chief Executive: Kathryn Magson Freedom of Information Team Crookall House Demesne Road Douglas Isle of Man IM1 3QA

(01624) 642621 dhsc@foi.gov.im Website: www.gov.im/dhsc

Our ref: 1606781 18th January 2021

Dear ###

We write further to your request which was received on the 17th December 2020 and states:

“Minister Ashford advised Tynwald on 15th December 2020 that DHSC do not have the ability to either instruct nor influence the Independent Review Body ('IRB'). The Minister also indicated that IRB had total independence from DHSC other than the financial commitment by DHSC to fund the IRB. The IRB go further in their leaflet to the public: 'We are not part of Government or the Isle of Man NHS. ' Question 1: The UK provides assistance but I have been unable to locate similar on the Island to find out what type of public body DHSC have set up. Assistance on analysing types of public body can be found at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachm ent_data/file/519571/Classification-of-Public_Bodies-Guidance-for-Departments.pdf
In accordance with the above, please can DHSC advise how they classify the IRB as a public body? Question 2: The current DHSC CEO has advised the Tynwald Ombudsman that the IRB are independent of DHSC and therefore fall outside the jurisdiction of the Tynwald Ombudsman. This is despite two earlier DHSC CEO's advising that the IRB do fall within the Tynwald Ombudsman remit. Please can you forward copies of the correspondence and minutes relating to current DHSC CEO's decision to advise the Tynwald Ombudsman that the IRB are exempt from investigations regarding maladministration?

Please can the DHSC CEO and the Acting DHSC CEO predecessor also provide copies of the correspondence they had with the IRB on this matter? Question 3: The DHSC have stated the IRB are independent of DHSC. The IRB have gone further to advise they are not part of the Isle of Man Government. To a member of the public this is slightly confusing based on the following facts. Appointment of IRB members is by the Council of Ministers - the IRB have no control over who is appointed to their body, neither has the public. Funding and budget is provided by DHSC who could therefore hamper any potential evolution of the IRB. IRB Annual reports, by statute are to DHSC, not Tynwald or the public. Independent Medical advice to the IRB is provided by the Isle of Man Government Director of Public Health. Legal advice to the IRB is provided by the Attorney General who is the legal advisor to the Isle of Man Government and Departments (not the public). The IRB provide training and education to DHSC but not the public. In fact the IRB will not meet the public and all correspondence must be in writing by email or letter to a PO Box Number. The IRB do not have a telephone number or public office. Policy for the IRB appears to be driven by the DHSC CEO and not the IRB. There does not appear to have been any public statement made by the IRB for many years. In fact successive IRB Governors have not changed the IRB modus operandi since inception in 2004. DHSC are invited to IRB meetings when helpful and relevant. IRB meetings are closed to the public and I am unable to locate a single instance of any member of the public being invited to an IRB meeting. The IRB have no statutory clout whatsoever. DHSC do not have to follow the recommendations made by the IRB. The IRB are exempt from Freedom of Information requests so the only annual IRB reports are to DHSC. The IRB are unqualified, lay citizens. They are not professional Ombudsman. Professionals in the private sector are regulated by the professional bodies and the Government. However the DHSC CEO has made a decision that the IRB should not be investigated by a professional qualified regulator, the Tynwald Ombudsman. Please can the DHSC CEO therefore provide the reports/ correspondence /documents which support her comments of IRB independence from DHSC in light of the above?”. Clarification sought: Question 2: Please can the DHSC CEO and the Acting DHSC CEO predecessor also provide copies of the correspondence they had with the IRB on this matter? Please can you confirm what “matter” you are referring to?

Clarification received: Thank you for your email regarding question 2 "Please can the DHSC CEO and the Acting DHSC CEO predecessor also provide copies of the correspondence they had with the IRB on this matter?" This matter is quite confusing; I have pasted a copy of the Tynwald Ombudsman July 2020 below which details same. (1) DHSC CEO and (2) Acting DHSC CEO agreed that the IRB fell within the Tynwald Ombudsman jurisdiction (3) Acting DHSC CEO and (4) DHSC CEO advised the Tynwald Ombudsman that that the IRB fell outside the jurisdiction I would like to see the correspondence of (3) and (4) above with the IRB. It might be Angela Murray and Kathryn Magson respectively but there have been a number of people employed in the roles so I could be wrong as to the parties involved. Our Response: Question 1: The UK provides assistance but I have been unable to locate similar on the Island to find out what type of public body DHSC have set up. Assistance on analysing types of public body can be found at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachm ent_data/file/519571/Classification-of-Public_Bodies-Guidance-for-Departments.pdf
In accordance with the above, please can DHSC advise how they classify the IRB as a public body? The Freedom of Information Act 2015 (the ‘Act’) gives persons resident in the Isle of Man a legally enforceable right to obtain access to information held by the public authorities specified in Schedule 1 to FOIA, advice is not information held, however within the spirit of Freedom of Information, the IRB is a statutory body. While our aim is to provide information whenever possible, under section 20 of the Act, we are not required to provide information in response to a request if it is already reasonably accessible to you, whether free of charge or on payment of a fee. The legislation applicable to the IRB, namely; The National Health Service (Complaints) regulations 2004 is available at: https://www.tynwald.org.im/links/tls/SD/2004/2004-SD-0216.pdf
The ‘relevant function’ of the IRB is set out in Regulation 2 of the National Health Service (Independent Review Body) Regulations 2004, available at: https://www.tynwald.org.im/links/tls/SD/2004/2004-SD-0679.pdf

There is also further reference to the IRB within the National Health Service Act 2001, available at: http://www.legislation.gov.im/cms/images/LEGISLATION/PRINCIPAL/2001/2001- 0014/NationalHealthServiceAct2001_5.pdf Question 2: The current DHSC CEO has advised the Tynwald Ombudsman that the IRB are independent of DHSC and therefore fall outside the jurisdiction of the Tynwald Ombudsman. This is despite two earlier DHSC CEO's advising that the IRB do fall within the Tynwald Ombudsman remit. Please can you forward copies of the correspondence and minutes relating to current DHSC CEO's decision to advise the Tynwald Ombudsman that the IRB are exempt from investigations regarding maladministration? Please can the DHSC CEO and the Acting DHSC CEO predecessor also provide copies of the correspondence they had with the IRB on this matter? Clarification sought: Question 2: Please can the DHSC CEO and the Acting DHSC CEO predecessor also provide copies of the correspondence they had with the IRB on this matter? Please can you confirm what “matter” you are referring to? Clarification received: Thank you for your email regarding question 2 "Please can the DHSC CEO and the Acting DHSC CEO predecessor also provide copies of the correspondence they had with the IRB on this matter?" This matter is quite confusing; I have pasted a copy of the Tynwald Ombudsman July 2020 below which details same. (1) DHSC CEO and (2) Acting DHSC CEO agreed that the IRB fell within the Tynwald Ombudsman jurisdiction (3) Acting DHSC CEO and (4) DHSC CEO advised the Tynwald Ombudsman that that the IRB fell outside the jurisdiction I would like to see the correspondence of (3) and (4) above with the IRB. It might be Angela Murray and Kathryn Magson respectively but there have been a number of people employed in the roles so I could be wrong as to the parties involved.

Please can you forward copies of the correspondence and minutes relating to current DHSC CEO's decision to advise the Tynwald Ombudsman that the IRB are exempt from investigations regarding maladministration? While our aim is to provide information whenever possible, in this instance the Department does not hold or cannot, after taking reasonable steps to do so, find the information that you have requested. Pursuant to s11(3)(a) of the Act, the Department does not hold or cannot, after taking reasonable steps to do so, find the information that the applicant has requested. Pursuant to s15 of the Act, to provide advice and assistance, the current Chief Executive Officer has not advised the Tynwald Ombudsman that the NHS IRB are exempt from investigations regarding maladministration. Please can the DHSC CEO and the Acting DHSC CEO predecessor also provide copies of the correspondence they had with the IRB on this matter? While our aim is to provide information whenever possible, in this instance the Department does not hold or cannot, after taking reasonable steps to do so, find the information that you have requested. Pursuant to s11(3)(a) of the Act, the Department does not hold or cannot, after taking reasonable steps to do so, find the information that the applicant has requested, Pursuant to s15 of the Act, to provide advice and assistance, there is no correspondence with the IRB regarding the matter referred in Question 2. Question 3: The DHSC have stated the IRB are independent of DHSC. The IRB have gone further to advise they are not part of the Isle of Man Government. To a member of the public this is slightly confusing based on the following facts. Appointment of IRB members is by the Council of Ministers - the IRB have no control over who is appointed to their body, neither has the public. Funding and budget is provided by DHSC who could therefore hamper any potential evolution of the IRB. IRB Annual reports, by statute are to DHSC, not Tynwald or the public. Independent Medical advice to the IRB is provided by the Isle of Man Government Director of Public Health. Legal advice to the IRB is provided by the Attorney General who is the legal advisor to the Isle of Man Government and Departments (not the public). The IRB provide training and education to DHSC but not the public. In fact the IRB will not meet the public and all correspondence must be in writing by email or letter to a PO Box Number. The IRB do not have a telephone number or public office. Policy for the IRB appears to be driven by the DHSC CEO and not the IRB. There does not appear to have been any public statement made by the IRB for many years. In fact successive IRB Governors have not changed the IRB modus operandi since inception in 2004. DHSC are invited to IRB meetings when helpful and relevant. IRB meetings are closed to the public and I am unable to locate a single instance of any member of the public being invited to an IRB meeting. The IRB have no statutory clout whatsoever. DHSC do not have to follow the

recommendations made by the IRB. The IRB are exempt from Freedom of Information requests so the only annual IRB reports are to DHSC. The IRB are unqualified, lay citizens. They are not professional Ombudsman. Professionals in the private sector are regulated by the professional bodies and the Government. However the DHSC CEO has made a decision that the IRB should not be investigated by a professional qualified regulator, the Tynwald Ombudsman. Please can the DHSC CEO therefore provide the reports /correspondence /documents which support her comments of IRB independence from DHSC in light of the above? While our aim is to provide information whenever possible, in this instance the information is exempt from disclosure under section 40 of the Act as it is information in respect of which a claim to Legal Professional Privilege could be maintained in legal proceedings. The information you have requested is exempt under section 40, Legal Professional Privilege, specifically legal advice privilege. Section 40 is a qualified exemption and subject to the public interest test (‘PIT’) detailed below: Favours in disclosing the requested information for disclosure: · Promoting openness and transparency · Transparency of Department decision making and knowing that decisions are taken in the correct legal context. Favours for non-disclosure: · It is important that the Department is able to seek legal advice so that it can make its decisions in the correct legal context. The legal adviser must be in possession of all material facts in order to provide sound advice. · The Department must, therefore, feel confident that it can disclose all relevant facts to its legal adviser. It should be able to do so without fearing that this information will be disclosed to the public (although it may have been discussed on a restricted and confidential basis with a third party without waiving privilege). · It is recognised that the concept of Legal Professional Privilege reflects the strong public interest in protecting the confidentiality of communications between lawyers and their clients (the Department) · Such confidentiality promotes respect for the rule of law by encouraging clients (the Department) to seek legal advice and allowing for full and frank exchanges between clients (the Department) and their lawyers. Conclusion: It has been necessary to weigh the factors favouring disclosure on a case by case basis against the strong public interest in protecting the Legal Professional Privilege
under section 40 of the Act which has been recognised by the UK courts and the UK Information Tribunal. Therefore in relation to Question 4, the public interest does not

outweigh the strong countervailing public interest in maintaining the confidentiality of legal advice. Please quote the reference number 1606781 in any future communications.

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