Our Freedom of Information Request and subsequent Appeals

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There is a real dearth of information about the likely impact of restricting the access vulnerable migrants have to NHS primary care services. Given this, we believe it is unacceptable that the 275 submissions to the Department of Health enquiry Proposals to exclude overseas visitors from eligibility to free NHS primary medical services: A consultation are still not in the public domain more than three years after the consultation closed. We are attempting challenging their decision in two ways.

Firstly, we are in the process of contacting individuals who made submissions to the consultation to request their submissions. Submissions we have received can be found here.

Secondly, we are requesting the departmant release the submissions using the Freedom of Information Act. Our latest appeal, to the Information Commissioner, was sent on the 10th January. You can download it from the box, top right. Dr Adam Sandell kindly handled this appeal on our behalf. The document is identical to that submitted to the commissioner but his contact details have been removed from the top of the letter. If you would like to get in touch with Dr Sandell, please email us on access@medsin.org.

Earlier correspondence with the department, referred to in our appeal to the Information Commissioner, can be read below.

Correspondence with the Department of Health

On the 13th September 2007, we posted a Freedom of Information request to the Department of Health requesting the following...

"information concerning the Department of Health Consultation, Proposals to Exclude Overseas Visitors from Eligibility to Free NHS Primary Medical Services, which closed on 13 August 2004. Specifically, I am requesting two things.

1 Complete copies of all the submissions to this consultation.

2 A complete list of all the organisations and individuals who made submissions to the consultation."

On the 2nd October 2007, we received the following response...

Thank you for your letter of 13 September requesting under the Freedom of Information (FOI) Act 2000, a list of all organisations and individuals who responded to the Department of Health 2004 Consultation, Proposals to Exclude Overseas Visitors from Eligibility to Free NHS Primary Medical Services and copies of their submissions.

The list of respondents is attached.

I am sorry to advise you that the Department of Health is unable to disclose individual submissions in detail at this stage. The Department considers that this information is exempt from disclosure under section 35(1)(a) of the FOI Act. Section 35(1)(a) provides that information is exempt if it relates to the formulation or development of Government policy.

Section 35 is a 'qualified' exemption and we are therefore required to consider whether the public interest in disclosing the information outweighs the public interest in applying the exemption.

The purpose of the exemption at section 35 of the FOI Act is to protect the internal deliberative process as it relates to policy making. In other words, the exemption is intended to ensure that the possibility of public exposure does not deter from full, candid and proper deliberation of policy formulation and development, including the exploration of all options, the keeping of detailed records and the taking of difficult decisions. Premature disclosure of information protected under section 35 could prejudice good working relationships, the neutrality of civil servants and, ultimately, the quality of Government.

I can inform you, however, that the majority of responses to the Consultation showed strong support for clarifying the rules. Beyond that, the responses were divided. There was much support for tighter rules and much support for a more inclusive and public health-driven approach. There was particular support for allowing failed asylum seekers (and dependants) to have access to primary medical services, taking account of their almost invariably poor economic position and their reasons for being in this country.

We acknowledge that the existing rules regarding eligibility for primary medical services are unclear and leave much to the individual discretion of GPs and practices. That is why we undertook the consultation in 2004. The responses received highlighted a range of difficult and sensitive issues.

These and other issues are now being considered as part of the joint Department of Health and Home Office review of the rules governing access to the NHS by foreign nationals which was announced in the 7 March Home Office publication, Enforcing the rules: A new strategy to ensure and enforce compliance with our immigration laws.

The review is due to be completed shortly and will then be followed by a public consultation as part of the wider migration strategy. Any changes resulting from the review and consultation are intended to be in place by September 2008 and will be clearly communicated to the NHS.

I hope this is helpful. If you are unhappy with the way the Department of Health has handled your request you may ask for an internal review. You should write to the Section Head of the Freedom of Information group at the Department of Health, quoting the reference number above:

Freedom of Information Unit Department of Health Room 334b Skipton House 80 London Road SE1 6LH Email: FreedomofInformation@dh.gsi.gov.uk

If you are not content with the outcome of your complaint, you may apply directly to the Information Commissioner’s Office (ICO) for a decision. Generally, the ICO cannot make a decision unless you have exhausted the complaints procedure provided by the Department. The ICO can be contacted at:

Information Commissioner’s Office Wycliffe House Water Lane Wilmslow Cheshire SK9 5AF

Yours sincerely,

The Excel spreadsheet with the list of people and organisations who submitted responses to the consultation can be downloaded from this webpage.

On the 15th November 2007, we requested an internal Department of Health review of the decision not to release the submissions...

Dear Sir,

Re: Freedom of Information Request DE00000238979

I would like to appeal the Department of Health's decision not to release the submissions made to their 2004 consultation 'Proposals to Exclude Overseas Visitors from Eligibility to Free NHS Primary Medical Services'. In an email on 2 October 2007 (copied below), Stephen Fay of the department's Customer Service Centre cites an exemption under section 35(1)(a) of the Freedom of Information Act. I contest this on the following grounds...

1 In his email, Mr Fay kindly explains that section 35(1)(a) of the Freedom of Information Act "is intended to ensure that the possibility of public exposure does not deter from full, candid and proper deliberation of policy formulation and development, including the exploration of all options, the keeping of detailed records and the taking of difficult decisions." However, the original consultation document contained the following text...

"Your response will be used to inform the further development of this proposed policy and therefore responses, including the name and address of respondents, may be made public unless confidentiality is specifically requested. In accordance with the freedom of information legislation, individual responses will be made available to anyone who asks for them, unless one of the exceptions in the legislation applies, for example the information was provided in confidence, or its disclosure would prejudice third parties."

Thus, those responding to the consultation expected their submissions to be made public. Those who wished to respond in confidence will have notified the department. Those that did not do this could have done, had confidentiality been required for them to engage fully in debate and policy formulation. If people did not request confidentiality, it seems unlikely that concerns with their submissions being made public limited their ability to respond in a candid way to the consultation document. We therefore request all submissions from those individuals and organisations not requesting confidentiality - presumably the vast majority.

2 The Department of Health and Home Office are currently undertaking a joint review of access to NHS services by 'overseas visitors'. This review was announced in the Home Office document 'Enforcing the Rules' (March 2007). The consultation 'Proposals to Exclude Overseas Visitors from Eligibility to Free NHS Primary Medical Services' considered the same issues. I understand there will be another consultation on the same issue in the New Year, following the publication of the joint Department of Health and Home Office review. Therefore submissions to this new consultation rather than the 2004 consultation are likely to form the basis for future policy formulation. Furthermore, the submissions we are requesting are now three years old. Thus the submissions we are requesting are likely to play a lesser role in the formulation or development of government policy. This weakens the argument that it is in the public interest to apply the section 35(1)(a) exemption to allow "candid and proper deliberation of policy formulation and development".

3 The Department of Health and the Home Office are currently undertaking a review of access to NHS services by 'overseas visitors'. They have stated in the past their intention to align the regulations governing charging for primary care with those governing charging for secondary care (for example, in 'Proposals to Exclude Overseas Visitors from Eligibility to Free NHS Primary Medical Services' (2004)). If this occurred, a large population including undocumented migrants, failed asylum seekers awaiting deportation and failed asylum seekers receiving Section IV support from the National Asylum Support Service would lose the right to freely access many NHS primary care services.

The withdrawal of access to primary care from a large population of migrants living in the UK will have a significant impact upon not only the health of those denied care but also upon Accident and Emergency departments and charities who will find themselves dealing with the health needs of this population. There will be also be implications for public health. A summary of the many concerns about these proposals can be found at http://www.medact.org/content/refugees/Briefing%20V1%20agreed.pdf.

It is important to realise that very little is known about the likely impact of limiting access to primary care:

  • Only one Primary Care Trust (Newham) has undertaken a health impact assessment of the proposals. This assessment raised significant concerns about the proposals (see http://www.lho.org.uk/Download/Public/11948/1/IHU%20Entitlement%20Report%2006.pdf).

  • We don't know how many people in the UK fall into the groups that would be most affected by the proposed changes to primary care (see the minutes of the Health Select Committee meeting on 10 February 2005, particularly Melanie Johnson's response to question 210, available from http://www.publications.parliament.uk/pa/cm200405/cmselect/cmhealth/252/5021008.htm).

  • We also do not know how many people have already been refused secondary care and what has happened to this group. Freedom of Information requests we have made reveal that neither University College London Hospitals NHS Trust nor the United Bristol Healthcare NHS Trust monitor mortality in the population who were excluded from freely accessing many NHS hospital services when Department of Health, Statutory Instrument 2004 No614 came into force in April 2004.

  • Perhaps more importantly, it is not clear how alternative care will be provided for those who may be excluded from most NHS secondary and primary care services.

Two hundred and seventy five people and organisations submitted evidence to the consultation 'Proposals to Exclude Overseas Visitors from Eligibility to Free NHS Primary Medical Services'. This group included tens of doctors and other healthcare professionals who would be directly affected by any change in charging regulations. Their submissions thus form a hugely valuable source information that, if released, would allow healthcare providers, charities and policy makers to plan for the future. With the Government's response (http://www.publications.parliament.uk/pa/jt200607/jtselect/jtrights/134/134.pdf) to 'The Treatment of Asylum Seekers' (2007), a report by the Joint Committee on Human Rights, suggesting that implementation of the proposals made in the Department of Health and Home Office review might occur as early as September 2008, there is an urgent need for more information on these issues. There is thus an overwhelming public interest in disclosing this information now.

I would be grateful if you could acknowledge receipt of this email and I look forward to hearing from you in due course.

Yours sincerely,

On 31st December 2007, our appeal was turned down...

Dear Mr Yates,

OUTCOME OF A REQUEST UNDER FREEDOM OF INFORMATION [FOI] ACT 2000 FOR INTERNAL REVIEW

Thank you for your email of 15 November seeking a review of the Department’s decision to withhold part of the information requested by you under the Freedom of Information Act (FOIA).

Your original request (our ref: DE238979) was:

“ I would like to make a request, under the Freedom of Information Act 2000, for information concerning the Department of Health Consultation, Proposals to Exclude Overseas Visitors from Eligibility to Free NHS Primary Medical Services, which closed on 13 August 2004. Specifically, I am requesting two things.

1 Complete copies of all the submissions to this consultation.

2 A complete list of all the organisations and individuals who made submissions to the consultation. “

The Department replied to you on 2 October to inform you that it was withholding the information you had requested in part 1, which it considered was exempt from disclosure under section 35(1)(a) of the FOI Act. You were provided with the list you asked for in part 2.

In your request for an internal review you referred to the text in the original consultation document which states that:

“Your response will be used to inform the further development of this proposed policy and therefore responses, including the name and address of respondents, may be made public unless confidentiality is specifically requested. In accordance with the freedom of information legislation, individual responses will be made available to anyone who asks for them, unless one of the exceptions in the legislation applies, for example the information was provided in confidence, or its disclosure would prejudice third parties."

The text stated that in accordance with the freedom of information legislation, individual responses will be made available to anyone who asks for them, unless one of the exemptions in the legislation applies. As explained in the Department’s reply to you on 2 October, section 35(1)(a) applies to the responses submitted to the consultation.

The responses to the 2004 consultation, Proposals to Exclude Overseas Visitors from Eligibility to Free NHS Primary Medical Services were both extensive and inconclusive. They highlighted a range of difficult and sensitive issues.

As a result, all these issues are now being considered as part of the joint Department of Health and Home Office review of the rules governing access to the NHS by foreign nationals. The review was announced on 7 March in the Home Office publication, Enforcing the Rules: A new strategy to ensure and enforce compliance with our immigration laws.

The review is due to be completed shortly and will then be followed by a full public consultation. The responses to the 2004 consultation are being considered as part of this review, we will publish the responses to the 2004 consultation when the Review of Access to the NHS by foreign nationals goes out to public consultation in Spring 2008.

The aims of the review in relation to primary medical services are to establish clear rules which are, wherever possible, consistent with the rules relating to secondary care. Any new rules will take into account the key preventative and public health role of NHS primary medical care as well as international law and humanitarian principles.

The review will look at a range of issues regarding immigration and asylum particularly the eligibility of failed asylum seekers and their children. An equality impact assessment will also be carried out as part of this review process, in relation to both primary medical services and secondary care.

We have considered all the relevant issues and documents in this case and have concluded that the original request was handled systematically and appropriately.

It is our view that the Act was correctly applied, and the reasons for the decision were appropriate to the circumstances of the case. Section 35(1)(a) relates to the formulation or development of government policy. However, this exemption is a qualified exemption and the Department is required to assess as objectively as possible whether the balance of public interest favours disclosing or withholding this information.

The decision on the public interest is based on the following:

Factors in favour of disclosure:

The Department recognises that there is a general public interest in the transparency of the processes leading up to a decision being made.

Disclosure of information could result in the public being better informed about this subject and thus better placed to engage in debate on the issues associated with Proposals to Exclude Overseas Visitors from Eligibility to Free NHS Primary Medical Services.

Factors in favour of non-disclosure:

The purpose of the exemption at section 35 of the FOI Act is to protect the internal deliberative process as it relates to policy making. Premature disclosure of information protected under section 35 could prejudice good working relationships, the neutrality of civil servants and, ultimately, the quality of Government.

Information need not be released if release would inhibit the free and frank provision of advice or the free and frank exchange of views for the purposes of deliberation, or would otherwise prejudice the effective conduct of public affairs.

Ministers and Government officials need to be able to engage in free and frank discussion of all the policy options, to expose their merits and demerits and their possible implications as appropriate.  Their candour in doing so will be affected by their assessment of whether the content of such discussion will be disclosed in the near future.

Premature reporting of information may deter civil servants and experts from providing comprehensive advice in the future.

Premature release of this information may result in misinterpretation.

The review is now complete. The Department is satisfied that section 35 of the FOI Act was correctly applied to your original request.

If you are not content with the outcome of the internal review, you have the right to apply directly to the Information Commissioner for a decision. The Information Commissioner can be contacted at:

Information Commissioner’s Office Wycliffe House Water Lane Wilmslow Cheshire SK9 5AF

Yours sincerely,

Our appeal to the Information Commissioner was submitted on 10th January. It can be downloaded from the box at the top of this page.

Last updated on Saturday 12 January 2008 at 12:23.