Request
Continuing Care
Please send me
copies of all correspondence between the SHA and its solicitors
(and/or other legal counsel) relating to advice concerning the
Leicestershire, Rutland and Northamptonshire
Continuing Care policy and its need for review following the issue
of guidance by the Department of Health - Action following the
Grogan Judgement, in March 2006.
Continuing Care
Please send me
copies of the former Trent SHA's Continuing Health
and Social Care Policy that came into force on June 30 2006 and the
previous version, together with any correspondence between the
Trent SHA and its solicitors (and/or other counsel) regarding the
DoH Guidance - Action following the Grogan Judgement, issued in
March 2006.
Our Response
Thank you for
your e-mails requesting:
(i) the
Continuing Care Policies of the former Trent and
Leicestershire,
Northamptonshire and Rutland Strategic Health
Authorities
(ii) copies
of correspondence between those Authorities and their solicitors
relating to
advice about the need for review following the issue of guidance by
the
Department of Health following the Grogan Judgement in
March 2006.
For ease of
reference I will deal with your request by reference to the former
individual Health Authorities separately.
The
former Trent Strategic Health Authority (SHA).
As you will be
aware this SHA no longer exists. However, the Continuing Care
Policy which was being applied by the former Trent SHA before the
Grogan review is attached as is the policy which was put into place
to implement the findings of the review. I have also attached a
note highlighting the changes which were made following the
review.
With reference to
your request for copies of email correspondence between the former
Trent SHA and its legal advisers, I can confirm that while NHS East
Midlands holds information relative to your request that
information is being withheld under the Freedom of Information Act
2000 (FOIA) since we consider the exemption available to us under
S.42 of the FOIA is engaged.
Section 42 sets
out an exemption from the right to see information which is
protected by Legal Professional Privilege (LLP). The
exemption is qualified, meaning that it is subject to a public
interest test. It covers communications between Lawyers and
their clients, for the purpose of obtaining legal advice and
maintains the confidential environment necessary to ensure openness
between lawyer and client and safeguard access to informed,
realistic and frank legal advice. We have studied the
emails concerned and are confident that they are covered by the
exemption.
There is an
important public interest in the proper administration of justice.
In that context, the weight which has been given to the public
interest in the confidentiality of this relationship is very
considerable. Whilst we appreciate that the general public interest
inherent in this exemption will always be strong, safeguarding
openness in all communications between client and Lawyer to ensure
full and frank legal advice is fundamental to the administration of
justice. The Trent Policy which was revised following legal
advice obtained from Eversheds is still be used in reviewing
Continuing Care cases considered by the Retrospective Panel and the
Independent Panel Review.
We feel that
disclosure of this legal advice following your request would be to
the prejudice of the ability of NHS East Midlands to seek and be
given proper legal advice which would affect the wider community we
serve. We are also aware that in other similar cases the
Information Commissioner has found that the confidential nature of
such relationships underpins our legal system and that if that
aspect of Legal and Professional Privilege is to be broken the
reasons for doing so must be compelling. (Bellamy v the Information
Commissioner EA2005/0023 4TH April 2006). It is for
these reasons that we consider that the Section 42 exemption is
engaged in this case and that the public interest in withholding
the legal advice outweighs the public interest in
disclosure.
The
former Leicester, Northamptonshire and Rutland
SHA.
This SHA also no
longer exists. While we have been able to locate the LNR Continuing
Care Policy which applied before the Grogan review and the revised
policy which was put in place following it and these are attached,
the email correspondence between LNR and its legal advisers which
you refer to has been archived and we are advised that the time
taken to locate it would exceed the 18 hour limit set in the
Freedom of Information Act 2000. We therefore consider that
the exemption under S.12 of the Act is engaged. This is not a
qualified exemption and we therefore do not have to consider the
application of the public interest test.
I do hope that
this information is of use to you. If you are dissatisfied
with the way in which we have dealt with your request you can ask
us to review our decision in this case by writing to:-
Mr Kevin
Orford
Deputy Chief
Executive and Director of Finance
NHS East
Midlands
Octavia
House
Interchange
Business Park
Bostock's
Lane
Sandiacre
Nottingham
NG10
5QG
If at the
conclusion of any review you remain dissatisfied you may complain
to the Information Commissioner who can be contacted
at:-
The Office of the
Information Commissioner
Wycliffe
House
Water
Lane
Wilmslow
Cheshire
SK9
5AF
