Response issued under the Freedom of Information Act 2000

Our Reference: CQC IAT 1516 0665

Date of Response: 18 December 2015
Information Requested:
Please can CQC advise since Regulation 5 Fit and Proper Person (FPPR)
came into force, how many FPPR referrals has CQC received about Board
members of Southern Health?
How many members of the Southern Health Board have been the subject of
FPPR referrals to date?
How many of these FPPR referrals has CQC put to the Trust Board and on
how many occasions has CQC required the Board to review the fitness of
the referred director(s)?
Has any investigation been undertaken into the fitness of directors as a
result of CQCs intervention, and if so, how many?
The Information Access team has now coordinated a response to your request
and we are unable to confirm what information that the Care Quality Commission
(CQC) holds in relation to this matter.
Exemptions
CQC considers that the exemptions at section 44 (2), 41 (2), 40(5) and 31 (3) are
engaged which means CQC will neither confirm nor deny holding information.
During the process of assessing whether a providers FPPR processes are
robust and a reasonable decision about a director has been made we will not
publically release the names of individual directors under consideration as part of
this process and we will take appropriate steps to prevent identification of
individuals.
This is listed on page 14 of published information for NHS providers (which sits
below the guidance) and is on the right, on the Reg 5 page:
www.cqc.org.uk/content/regulation-5-fit-and-proper-persons-directors
We will also keep the details which could identify an individual referrer
confidential in line with our code of practice handling confidential personal
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information:
www.cqc.org.uk/sites/default/files/documents/20121105_code_of_practice_on_c
pi.pdf
This position is taken as disclosure of information likely to identify individuals
would be likely to breach CQCs duty of confidentiality and open CQC and the
FPPR process to challenge.
Given the relatively small number of individuals likely to be on the board of a
provider organisation, CQC considers that disclosing whether or not a referral
has been received and/or is being considered in relation to any given
organisation carries a high risk of allowing an individual to be identified.
Section 44(2)
This states that:
The duty to confirm or deny does not arise if the confirmation or denial that
would have to be given to comply with section 1(1)(a) would (apart from this Act)
fall within any of paragraphs (a) to (c) of subsection (1).

Under section 44(1)(a) confirming whether or not CQC holds the requested
information would, if such information were held, be prohibited under enactment.
Where personal information has been obtained or received by CQC, in
circumstances requiring confidentiality disclosure may be a criminal offence
under section 76 of the Health and Social Care Act 2008.
Section 76 of the Health and Social Care Act 2008 states:
"Disclosure of confidential personal information
(1)This section applies to information which
(a)has been obtained by the Commission on terms or in circumstances
requiring it to be held in confidence, and
(b)relates to and identifies an individual.
(2)A person is guilty of an offence if the person knowingly or recklessly
discloses information to which this section applies during the lifetime of
the individual.
(3)A person guilty of an offence under this section is liable
(a)on summary conviction, to imprisonment for a term not exceeding 12
months, or to a fine not exceeding the statutory maximum, or to both;
(b)on conviction on indictment, to imprisonment for a term not exceeding
two years, or to a fine, or to both."
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Disclosure is only permitted within the scope of "Defences" provided by section

77 of the Health and Social Care Act 2008.
No defence is applicable in this case therefore we consider that disclosure of
confidential personal information within the documentation would be an offence.
We therefore consider section 44(2) of FOIA to be engaged. This is an absolute
exemption, therefore no public interest test is required.
Section 41(2)
This states that:
The duty to confirm or deny does not arise if, or to the extent that, the
confirmation or denial that would have to be given to comply with section 1(1)(a)
would (apart from this Act) constitute an actionable breach of confidence.
Under section 44(1)(a) confirming or denying whether CQC holds the requested
information would, if such information were held, constitute an actionable breach
of confidence.
This is an absolute exemption, therefore no public interest test is required.
Section 40(5)
This states that the duty to confirm or deny to the extent that:
the giving to a member of the public of the confirmation or denial that would
have to be given to comply with section 1(1)(a) would (apart from this Act)
contravene any of the data protection principles or section 10 of the Data
Protection Act 1998 or would do so if the exemptions in section 33A(1) of that Act
were disregarded.
Confirming or denying whether CQC hold the requested information would, if
such information were held, facilitate the identification of individuals in breach of
the first and seventh data protection principles.
This is an absolute exemption, therefore no public interest test is required.
Section 31(3)
This states that:
The duty to confirm or deny does not arise if, or to the extent that, compliance
with section 1(1)(a) would, or would be likely to, prejudice any of the matters
mentioned in subsection (1).
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Under section 31(1)(g) under the purpose specified at 31(2)(c) and (d) confirming
or denying holding the information would prejudice the purposes of ascertaining
whether circumstances which would justify regulatory action in pursuance of any
enactment exist or may arise, and the purpose of ascertaining a persons fitness
or competence in relation to the management of bodies corporate or in relation to
any profession or other activity which he is, or seeks to become, authorised to
carry on.
CQC has considered the public interest in transparency and openness that would
be served by disclosure. We consider that the public interest in preserving the
integrity of the process and in not disclosing as yet unproven allegations is
greater.
CQC Complaints and Internal Review procedure
If you are not satisfied with our handling of your request, then you may request
an internal review.
Please clearly indicate that you wish for a review to be conducted and state the
reason(s) for requesting the review.
Please be aware that the review process will focus upon our handling of your
request and whether CQC have complied with the requirements of the Freedom
of Information Act 2000. The internal review process should not be used to raise
concerns about the provision of care or the internal processes of other CQC
functions.
If you are unhappy with other aspects of the CQC's actions, or of the actions of
registered providers, please see our website for information on how to raise a
concern or complaint:
www.cqc.org.uk/contact-us
To request a review please contact:
Information Rights
Care Quality Commission
Citygate
Gallowgate
Newcastle upon Tyne
NE1 4PA
E-mail: information.access@cqc.org.uk
Further rights of appeal exist to the Information Commissioners Office under
section 50 of the Freedom of Information Act 2000 once the internal appeals
process has been exhausted.
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The contact details are:

Information Commissioner's Office
Wycliffe House
Water Lane
Wilmslow
SK9 5AF
Telephone Helpline: 01625 545 745
Website: www.ico.org.uk