Hlth148 Correspondence with Hywel Dda LHB (Saesneg yn unig)

4 May 2012

Dear ,

Thank you for your e-mail of 20 February asking for:

• copies of all the correspondence between the Minister for Health and Social Services and her officials and/or her officials with the Hywel Dda Local Health Board, regarding the allocation of £80 million between 2011/12 and 2014/15, including agreement reached between the Welsh Government and Hywel Dda, including details of any conditions attached to the use of the money

My colleague Julie Hanley wrote to you on 22 February to explain that she was handling your request and would respond to you no later than 19 March. Having exceeded this deadline, Chris Dawson wrote to you on 21 March to explain that officials have been drawing together information for this request and considering whether any exemptions applied. I had hoped to respond to you no later than the 2 April but unfortunately due to the sensitivity of the request it has taken some time to consider the information. I apologise that you have not received a holding reply in the meantime and that it has taken this long for you to receive a final response.

I can confirm the Welsh Government holds the information requested but after due consideration, the Welsh Government consider that some of this information is exempt from release under Section 36(2) of the FOI Act. This states:

36 Prejudice to Effective Conduct of Public Affairs

(2) Information to which this section applies is exempt information if, in the reasonable opinion of a qualified person, disclosure of the information under this Act—
(a) would, or would be likely to, prejudice—
(iii) the work of the Cabinet of the Welsh Government.
(b) would, or would be likely to, inhibit—
(i) the free and frank provision of advice, or
(ii) the free and frank exchange of views for the purposes of deliberation, or
(c) would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs.

I attach copies of the correspondence we are disclosing as an annex to this letter.

Section 36 is a public interest tested exemption. This means that in order to engage it, it must be shown that the public interest in withholding information is greater than the public interest in releasing it. Before I can consider the public interest test however, the Welsh Government’s Code of Practice on Access to Information first obliges me to consider the ‘substantial harm’ test. In order to satisfy this, it has to be shown that substantial harm would occur to the principle the exemption is seeking to protect if the information were released.

Under the Welsh Government’s Code of Practice on Access to Information, before I consider the statutory public interest tests I must first consider the ‘substantial harm’ test. To satisfy this, I have to show the harm that would occur to the matters the exemptions are seeking to protect would be substantial.

Substantial Harm Test

It is considered that the disclosure of the requested information would be likely to seriously inhibit the future channels of communication between the DHSSC DG/Chief Executive NHS Wales and his Executive Director Team and the NHS’ senior managers. In turn, this would substantially, adversely impact upon the ability of the Chief Executive NHS Wales and his team to undertake their roles effectively.

Although the allocation of the additional £80 million to Hywel Dda has been agreed, the wider information in a number of documents remains live. Disclosing this information whilst these issues are being worked through could affect the frankness and candour with which senior Welsh Government officials and senior LHB officers discuss these issues. This in turn would undermine the comprehensiveness of the advice provided to Ministers, and would be detrimental to the quality of decision making in relation to the financial position of Hywel Dda Health Board.

Similarly, the Health Board would be inhibited from providing full and detailed financial proposals, and the Chief Executive of the NHS would be inhibited from commenting upon such proposals and challenging them where necessary. If the Chief Executive of the NHS and his Executive Directors Team is unable to discuss issues candidly with Health Board Chief Executives and their management teams  when required, this would severely limit their collective ability to raise and discuss sensitive complex issues in the future, having an adverse effect on collaborative and integrated working.

The relationship between the Chief Executive NHS Wales and the Chief Executives of the NHS organisations in Wales and their respective management teams is one based on trust. That trust needs to be maintained if this relationship is to operate effectively. It is considered that disclosure of this information would cause substantial harm to the relationship between the Chief Executive NHS Wales and the Chief Executives of the individual NHS organisations, and their respective teams. Each party needs to be assured that there can be a free and frank discussion of any problems. This allows for a clear understanding of the situation and a coherent analysis of how any issues can be resolved. If this trust is damaged then discussions will not be as open and there will be a detrimental impact on the quality of all subsequent discussions.

With the substantial harm test satisfied I am now able to consider the public interest test.

Public Interest arguments in favour of release

We acknowledge there are public interest arguments in favour of openness. In relation to correspondence between the Welsh Government and Hywel Dda, such openness might in this instance enable a wider appreciation of the relationship between the Chief Executive NHS Wales and his Executive Director Team and the Health Board. It is perfectly legitimate for a member of the public or an Assembly Member to ask questions about the financial support given by the Welsh Government to Health Boards, and to ask for information about any conditions that might be attached to the granting of such support. The ability to ask such questions is essential if the National Assembly for Wales is to hold the Welsh Government to account effectively for the exercise of its functions.  

Public Interest arguments in favour of withholding

Section 36(2)(b)(i) would, or would be likely to, inhibit the free and frank provision of advice

The Director General (DG) of the DHSSC is also the Chief Executive of NHS Wales. The relationship between DHSSC and the NHS in Wales is uniquely close when compared to the relationship with other public bodies such as local authorities. NHS Wales works in a collaborative and integrated way: All ten Health Boards and NHS Trust Chief Executives meet monthly with the Chief Executive of NHS Wales and with members of his Executive Directors Team (EDT) and all are in regular dialogue between those meetings as required. The relationship between the DG and his senior officials, and NHS Chief Executives and their senior managers is particularly unique within public services in Wales and the UK, and is a close day-to-day working relationship based on trust.  

The correspondence being requested was sent between the Welsh Government and the Hywel Dda Health Board in order to advise, and offer support regarding the allocation of £80 million of funding. The advice provided in this correspondence was expressed in free and frank terms. If the correspondence were released into the public domain at this point we consider there to be a significant and real risk that the Welsh Government and the Hywel Dda Local Health Board would be inhibited from providing such a free and frank exchange of advice in the future. This in turn would be considered to have a detrimental effect on the operation of the Health Boards and NHS Trusts across the whole of Wales.

Further, the issues raised in the correspondence are still live. Disclosing this information whilst the issues are still being worked through, would be likely to affect the frankness and candour with which the Chief Executive of NHS Wales and the Chief Executive of Hywel Dda Health Board would continue to contribute to that decision making process, inhibiting the free flow of information. This would undermine the comprehensiveness of the advice provided and would therefore be detrimental to the quality of the decision making process. It is important for both Ministers and senior managers to fully understand the issues surrounding Hywel Dda Health Board and test these before the information is made public.  

Section 36(2)(b)(ii) would, or would be likely to inhibit the free and frank exchange of views for the purpose of deliberation

If there is a particular issue affecting an individual Health Board or NHS Trust, the Minister or the Chief Executive of NHS Wales will discuss that particular issue with the Chief Executive of the Health Board in question and seek their views on any steps they are taking to address the problem. If the correspondence in question were to be released, we consider there to be a significant and real risk that the Minister and the Chief Executive of NHS Wales would be inhibited in expressing their views in such free and frank terms during the course of any future exchanges. It is also considered likely that disclosure would have a similar inhibitory effect on the ability of the Chief Executives of Health Boards and NHS Trusts to express themselves in a free and frank manner in the course of any communications they send in response.

Disclosure would also be likely to inhibit the free and frank exchange of views for the purpose of deliberation between senior officials within NHS Wales. For example, the prospect of disclosure would be likely to result in officials being less candid about any failings because of the risk of public criticism.  It is important to preserve the confidentiality of discussions between the Minister, the Chief Executive of NHS Wales and the Chief Executives of all Health Boards and Trusts.  It is also in the interest of good government that there is a free and frank exchange between senior managers about possible failings in specific areas for which those mangers have responsibility. Discussions between the Minister, the Chief Executive of NHS Wales and the Chief Executive of Hywel Dda Health Board need to take place without fear that they would be subjected to public criticism during the deliberative process. Disclosure at this point in time, and the subsequent media attention would be likely to undermine the ability of management to effectively handle the issues under discussion.

Section 36(2)(c) would otherwise prejudice, or would be likely to otherwise prejudice, the effective conduct of public affairs

The information requested contains detailed financial projections from the Health Board and describes possible changes in relation to the closure of beds, reduction in staff numbers, and the reconfiguration of services, which might deliver savings required by the Health Board. It also includes the views of the Welsh Government which, in a number of instances challenge the position of the Hywel Dda Health Board and information presented to Cabinet to inform their decisions on the future funding not only of Hywel Dda but the NHS as a whole. It is therefore essential that Welsh Government officials and the Health Board are able to exchange information and proposals about funding in free and frank terms if a full understanding of the issues and risks is to be achieved by all parties, and an optimum solution identified which allows the Health Board to continue to provide effective/affordable services to its patients.

Where targets for financial delivery in any part of the NHS become a cause for concern, managers need to understand the reasons underlying that.  If the information were to be released in the public domain, it is likely to generate controversy. This is considered to be particularly harmful in circumstances where the issues are still live, as it could draw attention and resources away from dealing with the financial issues and reduce the ability of senior managers in Hywel Dda Health Board to work through the issues with Welsh Government officials in a calm, considered manner.

There is a confidence that open discussion can be continued between the Welsh Government and the Health Boards. If this confidence were to be damaged then it would inhibit the progress of work jointly being carried out by both organisations. Each needs to be assured that their views on current and contentious issues will remain confidential as sensitive work continues to evolve. It is considered that the disclosure of this information would damage the open relationship between the two in discussing the future of Hywel Dda. Discussions between the DHSSC and the other Health Boards on financial matters will also continue and disclosure at this stage would damage the quality of that work as well, setting a precedent that future discussions, even at a preliminary stage, would not remain confidential.

Assessment of Public Interest

We have weighed the competing public interest arguments and have concluded that the public interest in avoiding substantial harm to the matters protected by the exemptions cited outweighs the public interest in the disclosure of this information.  

If you believe that I have not followed the relevant laws, or you are unhappy with this response, you may request an internal review by writing to:

Joanna Jordan
Director
Department for Health, Social Services and Children
Cathays Park
Cardiff
CF10 3NQ

When dealing with any concerns, we will follow the principles set out in the Welsh Government’s Code of Practice on Complaints which is available on the Internet at www.wales.gov.uk or by post.

You also have the right to complain to the Information Commissioner. Normally, however, you should provide us with an opportunity to undertake an internal review before you complain to the Information Commissioner.  The Information Commissioner can be contacted at:

Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF
Tel: 01625 545 745
Fax: 01625 524 510
Email: casework@ico.gsi.gov.uk

Also, if you think that there has been maladministration in dealing with your request then you may make a complaint to the Public Services Ombudsman for Wales who can be contacted at:
Public Services Ombudsman for Wales
Ffordd yr Hen Gae
Pencoed
Bridgend
CF35 5LJ

Yours sincerely,

Department for Health, Social Services and Children
Welsh Government