Attorney General and Independent Review Body for health care complaint

Summary

The requester asked for details on legal instructions and advice provided by the Attorney General's Chambers to the Independent Review Body (IRB) and the Department of Health and Social Care (DHSC) over the last three years. The authority partially upheld the request, refusing to disclose specific counts, summaries, or client identities for most questions due to legal professional privilege, while the response regarding a specific 2020 jurisdictional advice appears incomplete in the provided text.

Key Facts

• The request covered legal instructions from the IRB and DHSC to the Attorney General's Chambers over a 3-year period.
• Questions 1-3 and 5-6 were refused disclosure under Section 40 of the Act.
• The authority determined that the public interest in maintaining legal professional privilege outweighed the interest in transparency.
• The response addresses a specific instance of advice provided to the Tynwald Ombudsman circa 2020 regarding jurisdiction.
• The final outcome of the FOI request was recorded as 'Upheld - partial'.

Data Disclosed

• 2021-03-25
• 2021-05-12
• 2021-04-02
• last 3 years
• circa 2020
• December 2020
• section 40
• case_id: 1725425

Exemptions Cited

• Section 40 of the Act (Legal Professional Privilege)

Original Request

1. Please advise how many times over the last 3 years you have been instructed by the IRB direct (ie with absolutely no involvement or input by DHSC) 2. Please advise how many times over the last 3 years you have been instructed by DHSC regarding IRB matters, ie queries from DHSC seeking advice 3. If possible, please can you provide a basic summary of the advice sought which also indicates who requested the advice (eg IRB or DHSC etc) together with a note of the date requested 4. In relation to the AG advice provided by DHSC to the Tynwald Ombudsman in circa 2020 relating to Ombudsman jurisidiction, please advise who instructed your office, DHSC or the IRB. 5. If possible please include a copy of the request above or summary of advice sought. 6. In relation to the aforementioned advice, please advise who was your "client", ie Government, DHSC or the IRB 7. The IRB state in their leaflet "We are not part of Government or the Isle of Man NHS". Minster Ashford stated in December 2020 "the Department has no ability to either instruct or influence the independent review body". Please advise what procedures your office has in place when advising the IRB on matters where there may be a conflict of interest between Government/DHSC and the public.

Data Tables (1)

Full Response Text

Attorney General's Chambers 2nd floor Belgravia House Circular Road, Douglas Isle of Man, IM1 1AE Telephone: (01624) 685452 E-mail: attgen@gov.im

Our ref: 1725425 1 April 2021

Dear ###

We write further to your request which was received on 25 March 2021 and which states:

"1. Please advise how many times over the last 3 years you have been instructed by the IRB direct (ie with absolutely no involvement or input by DHSC). 2. Please advise how many times over the last 3 years you have been instructed by DHSC regarding IRB matters, ie queries from DHSC seeking advice. 3. If possible, please can you provide a basic summary of the advice sought which also indicates who requested the advice (eg IRB or DHSC etc.) together with a note of the date requested. 4. In relation to the AG advice provided by DHSC to the Tynwald Ombudsman in circa 2020 relating to Ombudsman jurisidiction, please advise who instructed your office, DHSC or the IRB. 5. If possible please include a copy of the request above or summary of advice sought. 6. In relation to the aforementioned advice, please advise who was your "client", ie Government, DHSC or the IRB. 7. The IRB state in their leaflet "We are not part of Government or the Isle of Man NHS". Minster Ashford stated in December 2020 "the Department has no ability to either instruct or influence the independent review body". Please advise what procedures your office has in place when advising the IRB on matters where there may be a conflict of interest between Government/DHSC and the public."

Our response to your request is as follows: I have detailed below the information. Questions 1-3 and 5-6: "1. Please advise how many times over the last 3 years you have been instructed by the IRB direct (ie with absolutely no involvement or input by DHSC). 2. Please advise how many times over the last 3 years you have been instructed by DHSC regarding IRB matters, ie queries from DHSC seeking advice.

1. If possible, please can you provide a basic summary of the advice sought which also indicates who requested the advice (eg IRB or DHSC etc) together with a note of the date requested.
2. If possible please include a copy of the request above or summary of advice sought.
3. In relation to the aforementioned advice, please advise who was your "client", i.e. Government, DHSC or the IRB”. Our response (to questions 1-3 and 5-6): 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. As section 40 is a qualified exemption, it is subject to a public interest test. The matters which were considered in applying the public interest test are as follows:

Factors in favour of disclosure • Promoting good decision making by the Attorney General’s Chambers (“AGCs”); • Promoting openness, transparency and accountability. Factors in favour of withholding • The request for advice, or response to that request for advice is a confidential communication between the AGCs and the parties requesting advice, whereby the exchange of information was the object of the giving of legal advice; • The legal advice ensured and permitted frank discussion between the AGCs and the client; • It is important that the AGCs is able to provide legal advice to permit the instructing party to make fully informed decisions in the correct legal context; • In this instance when seeking legal advice, the client must, therefore, feel confident that that it can disclose all relevant information to the AGC and that their legal advisor can provide legal advice in confidence. Without such comprehensive advice, decision making may be compromised because it would not be fully informed. In taking these factors into account the Attorney General's Chambers determined that the factors in favour of maintaining the exemption outweigh the factors in favour of disclosing the information. Question 4

1. In relation to the AG advice provided by DHSC to the Tynwald Ombudsman in circa 2020 relating to Ombudsman jurisidiction, please advise who instructed your office, DHSC or the IRB. Our response (to question 4): While our aim is to provide information whenever possible, for this question, 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. Some of the information that you have requested is available from the Tynwald Commissioner for Administration Annual Reports. All of these reports are already accessible to you and provided in the following link (where the Reports can be found at the bottom of the webpage): https://www.tynwald.org.im/about/TCA/Pages/Reports.aspx In respect of advice provided by the AGC to the DHSC, such information again is information in respect of which a claim to legal professional privilege could be maintained in legal proceedings and is subject to the qualified exemption in section 40 of the Act on the same basis as the advice sought in questions 1-3 and 5-6 above.
   Any advice subsequently provided to the Tynwald Commissioner, has privilege attached to it which cannot be waived by the AGC. Accordingly, I suggest that you make a request to the DHSC and/or the Tynwald Commissioner for advice requested. Question 7: “The IRB state in their leaflet "We are not part of Government or the Isle of Man NHS". Minster Ashford stated in December 2020 "the Department has no ability to either instruct or influence the independent review body". Please advise what procedures your office has in place when advising the IRB on matters where there may be a conflict of interest between Government/DHSC and the public."

Our response: While our aim is to provide information whenever possible, in this instance, we apply section 11(3) of the Act which states “the public authority does not hold or cannot, after taking reasonable steps to do so, find the information that the applicant has requested”. In doing so, I can confirm that after taking reasonable steps to do so, that the AGCs does not hold that information and as such your request is refused and thus we cannot remove that practical refusal reason. However, under section 15 of the Act which states that “a public authority must give reasonable advice and assistance to persons who wish to make, or who have made, requests for information held by the public authority” we provide the following advice which I hope assists you. Whilst there is no written procedure or policy in place in the AGC relevant to the circumstances you describe, generally each legal officer instructed to work on a particular request for advice must assess whether conflict exists, in the ordinary course of their professional obligations prior to taking the instruction. If a conflict exists, the legal officer would refer the matter to their line manager, or if conflict is inherent, the instruction would be returned to the instructing party. Please quote the reference number 1725425 in any future communications.

Your right to request a review

If you are unhappy with this response to your freedom of information request, you may ask us to carry out an internal review of the response, by completing a complaint form and submitting it electronically or by delivery/post.

An electronic version of our complaint form can be found by going to our website at https://services.gov.im/freedom-of-information/Review . If you would like a paper version of our complaint form to be sent to you by post, please contact me and I will be happy to arrange for this. Your review request should explain why you are dissatisfied with this response, and should be made as soon as practicable. We will respond as soon as the review has been concluded. If you are not satisfied with the result of the review, you then have the right to appeal to the Information Commissioner for a decision on; 1. Whether we have responded to your request for information in accordance with Part 2 of the Freedom of Information Act 2015; or 2. Whether we are justified in refusing to give you the information requested.
In response to an application for review, the Information Commissioner may, at any time, attempt to resolve a matter by negotiation, conciliation, mediation or another form of alternative dispute resolution and will have regard to any outcome of this in making any subsequent decision. More detailed information on your right to a review can be found on the Information Commissioner’s website at www.inforights.im. Should you have any queries concerning this letter, please do not hesitate to contact me. Further information about freedom of information requests can be found at www.gov.im/foi.

I will now close your request as of this date.

Yours sincerely