NHS risk register: Ministers lose Freedom of Information appeal

NHS logo The risk register was compiled ahead of the introduction of the Health and Social Care Bill

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Ministers have been ordered to publish a risk assessment of the NHS shake-up under Freedom of Information laws.

The Department of Health had appealed against an FOI ruling that the transition risk register, requested by Labour MP John Healey, be published.

But it lost, despite civil servants' warnings that to publish confidential advice could have a "chilling effect".

Mr Healey said the ruling gave "strong legal support to a full and open debate" about NHS plans for England.

"The judgement backs the public's right to know about the risks the government is taking with its NHS plans," he said - accusing the government of having "dragged out" the process for 15 months.

Section 35 defence

The government still has the option of a further appeal to the "upper tribunal".

Meanwhile the controversial Health and Social Care Bill, which introduces an overhaul of the way the NHS is run in England, is in the final stages of its passage through Parliament.

The government had used the "section 35" defence under the Freedom of Information Act, which exempts information used in policy formulation and development from having to be released.

But it must be weighed against the balance of public interest - and in an earlier ruling the information commissioner had said in this case, that was "very strong".

'Insidious' effect

A two-day hearing in central London this week heard evidence from Labour MP and former shadow health secretary Mr Healey, Una O'Brien - the top civil servant at the Department of Health - and Lord O'Donnell, who until recently was the UK's top civil servant before retiring as cabinet secretary.

WHAT ARE RISK REGISTERS?

  • List of risks associated with a policy or programme
  • Includes estimates of the likelihood of it occurring and its potential impact via the RAG (red, amber green) traffic light system
  • Also sets out proposed action to deal with risk
  • Usually seen by officials rather than ministers

Ms O'Brien told the tribunal that civil servants, who compile the risk register, needed a "safe space" to be able to advise ministers on controversial policies in "frank" language.

She argued that publishing the information would ultimately have an "insidious" effect as people would hold back in what they were prepared to write down.

'No real evidence'

Lord O'Donnell argued that the document itself was unbalanced - focusing more on the negatives than positive outcomes - and predicted the way they would be compiled in future would change, if they were published.

Start Quote

Once we have been able to examine the judgement we will work with colleagues across government and decide next steps”

End Quote Department of Health spokesman

But the Information Commissioner's QC told the tribunal that there was "no real evidence" that previous FOI rulings on internal government documents had had a similar effect.

And he said this case was exceptional - because of the scale of changes being made, the controversy around them and the inherent risks in the nature of the reforms.

A spokesman for the Information Commissioner's office welcomed the tribunal's ruling and said they would "consider the full details of the tribunal's decision once it has been made available".

And it was welcomed by the Royal College of Nursing - which is among medical professionals' groups calling for the Health and Social Care Bill to be withdrawn.

Crossbench peer Lord Owen said Lib Dem peers should not now "go along with any attempt by the coalition government to continue with the third reading of this bill" in the Lords, until they have had time to consider the risk register.

The government's appeal against the broader "strategic risk register" requested by Evening Standard journalist Nicholas Cecil - was upheld by the committee.

The government has accused Labour of "rank opportunism" - because shadow health secretary Andy Burnham blocked the publication of a strategic risk register. But Mr Burnham argues there are "crucial differences" between the two documents.

A Department of Health spokesman said: "We are still awaiting the detailed reasoning behind this decision.

"Once we have been able to examine the judgement we will work with colleagues across government and decide next steps."

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