law

Published: 05/09/2002, Volume II2, No. 5812 Page 20

The public and patients will be entitled to greater access to health information under the Freedom of Information Act. Dilys Jones and Christine Miles explain what the NHS must do to comply with the new regulations

The Freedom of Information Act was passed on 30 November 2000 and has considerable implications for most of the public sector, including the NHS.

The lord chancellor's first report on the implementation of the act, published in November last year, says it is 'challenged with the task of reversing the working premise that everything is secret unless otherwise stated, to a position where everything is public unless it falls into specified accepted cases'.

1Under the act, individuals will have the right to be told whether information exists and the right to receive the information - ideally in the manner requested, for example a copy or summary - or the applicant may ask to inspect the record.

The act will be fully enforced by January 2005. Some of the provisions are already in place - for example, there is already a data protection commissioner, now becoming known as the information commissioner.

The two main responsibilities public authorities have under the act are to produce a 'publication scheme' and to deal with individual requests for information.

Publication schemes

NHS bodies must have their publication schemes ready for approval by the information commissioner between 1 June 2003 and 31 August 2003. The NHS schemes will be active from October 2003.

NHS bodies include trusts, GPs, pharmacists, strategic health authorities and non-departmental bodies such as the Commission for Health Improvement. The publication scheme must set out the types of information an authority publishes, the form in which it is published and whether a charge will be made.

Once the publication scheme is live, members of the public can request information. Systems need to be in place for dealing with this. Publication schemes also need to be maintained. The more information that is published via the scheme, the less work there will be in responding to the requests for information from individuals.

A starting point for public authorities is to think about what they already publish and what else could be of public interest. The information commissioner has indicated it might include minutes of regular meetings, reports commissioned by the authority, terms of reference, and so on.

2There is considerable work required in setting up a publication scheme, so preparation is required to audit information already held and ensure a robust system of records management is in place. A project team needs to be established, with a freedom-of-information champion at board level.

Individual rights of access

The individual right of access to information will come into force across all public authorities in January 2005. There is already a code of practice relating to openness in the NHS. At the moment, individuals can access personal data held on computer and in some paper files under the Data Protection Act 1998. As far as public authorities are concerned, the Freedom of Information Act will extend this right to allow access to all types of information held, whether personal or non-personal. This may include information about third parties.

An NHS body will have to consider the Data Protection Act 1998 before releasing personal information. But a trust, for example, may need to consider disclosing information about waiting lists, plus geographical differences.

The right to access information held by public authorities is not restricted; anyone, anywhere in the world, can apply. The media have used similar legislation in other countries to access information, and will no doubt do so in England and Wales.

Codes of practice

Two codes of practice are being produced under the act. These offer guidance to authorities on responding to requests for information and associated matters, and records management.

Exemptions

There are 23 sections in the act that deal with exemptions. Some are purely technical, referring one to another access right.These include health and safety and prejudice to effective conduct of public affairs.The information commissioner has the duty to enforce the act and non-compliance may result in a fine or even two years' imprisonment for contempt of court.However, this legislation offers itself as a vehicle within which it is possible to develop greater openness - and the NHS is a long way along this road in respect of websites, CHI reviews and other information that is published routinely.

REFERENCES

1Lord Chancellor's Department. Freedom of Information: annual report on proposals for bringing fully into force those provisions of the Freedom of Information Act 2000 which are not yet fully in force. The Stationery Office, November 2001.

2Freedom of Information Act 2000.

General Information: an overview.www. information commissioner. gov. uk

Dr Dilys Jones is a specialist in organisational and personal development; Christine Miles is chief executive, Royal Orthopaedic Hospital trust, Birmingham.