Freedom of Information Act risks – flawed clinical judgement, discrimination and education refusal

The Freedom of Information Act 2000 affords patients, litigants and the scientific community several routes to highlight policy, reveal shortcomings and to enforce lawful clinical and administrative decision-making. It must be noted that the low and/or prejudicial standards of communication and record keeping that are often normalised in this professional field (link) can be revealed and placed on the public record, whether in the form of individual medical records or aggregated statistics.

Freedom of information requests have already been used to determine/find:

• practice and trust level data to force the contextualisation and cessation of unlawfully normalised discrimination, including requesting whether a body has procured access to specific and ignored policy documents, education/training/CPD consumption versus specific resources, etc.
• installed clinical-management software names and versions e.g. EMIS or equivalents, submodule versions, and the availability of specific database fields that relate to vaccine-eligibility and/or cost-reclaim accounting (thereby documenting the software evidence trail of the existence of 1) “neurological condition”/”disease of the nervous system” database fields and/or 2) other related database fields, which record individual eligibility for vaccination and/or for vaccine financial accounting purposes)
  
  • forcing practices to document preexisting and sufficient implementation in software of existing policy
  • framed within the above statutory and policy requirements on lawful clinical judgement, it thus becomes an enforceable statutory requirement that frontline organisations publicly self-document the inaccuracy of any habitualised mistruths regarding their ability to allocate ME/CFS patients
  • although most immediately applicable to vaccination, this specific approach can also result in practices being forced to self-document more than just enforceable policy, but to contextualise contra-scientific belief systems/lack of education and patient communications within wider claims of discrimination and unlawful clinical or administrative judgement
• the unusually low scientific quality of high profile research, by forcing the release of a publicly funded dataset (a failed defence at the cost of several hundred thousand pounds of legal fees to a public body)
• the baselessness of claims of threats, used to evade independent re-examination of scientific scrutiny, probity and discipline

The risk must also be managed that practitioners or administrators will incorrectly assert that public health and/or commissioning authorities must be consulted, frequently resulting in obfuscation, delay/lack of response. Given the clarity of policy and that these authorities are also subject to the same elevated risk of unlawful clinical judgement, this merely introduces a risk that authorities responses are either unlawful in themselves or merely encourage unlawful frontline practice and liability accumulation – a known phenomenon of “passing the buck” (link).

Freedom of information law also introduces an additional and ME/CFS-specific risk of public statutory warning and censure – the aforementioned practical misbelief that standards, policy and law apply less when involving ME/CFS or other post-viral disease. This often habitual organisational complacency has been known to result in breaches of statutory requirements under the Freedom of Information Act e.g. missed statutory deadlines, unlawful refusals to provide information, etc, Statutory powers held by the Information Commissioner’s Office do not cater for self-referential justification and result in statutory action if insisted upon.

It should also be noted that organisational claims that freedom of information requests are vexatious also risk substantiating current or additional incidents of statutory discrimination. Moreover, the elevated risk profile of unlawful clinical judgement can also increase the public interest argument when requiring statutory release of information in excess of what might normally be required.

A complete risk management response to these risks must account for both 1) the obligation to procure non-deficient education that directly addresses the elevated likelihood of malpractice in this field, 2) the obligation to detail records and respond to communication sufficiently relative to that elevated likelihood and 3) the obligation to not engage in abuses of power or authority.

This includes maintaining detailed and auditable records of educational activities and associated communications to address both live discrimination and the unavoidable enforceability of valid freedom of information requests (where the definition of validity can be interpreted in favour of lay members of the public).