Whether the Medical Council was justified in refusing access to a named doctor’s certificate of additional qualification under sections 15(1)(g) and 37 of the FOI Act
1 November 2021
The applicant made a complaint to the Medical Council about a named doctor in 2018. Part of the complaint appears to relate to the registration status of the named doctor. A doctor’s registration details are publicly available on the Medical Council’s website. The information includes details on qualifications, years of registration, location and status they hold on the register. According to its website, all doctors are required to register with the Medical Council in order to practice, and doctors can only practice independently as specialists if they have specialist registrations. Doctors on both the general and specialist register can add additional qualifications to their record where they have completed a recognised higher qualification. This allows them to use associated letters after their name should they so wish. However, an additional qualification does not represent that the doctor has undergone training in a formal specialist training programme.
On 20 July 2021, the applicant sought a named doctor’s record of membership from the Royal College of Obstetricians and Gynaecology (UK) which is listed as an additional qualification on the doctor’s registration details. She included the conferral date and the doctor’s registration number. On 16 August 2021, the Medical Council refused the request under section 37(1) of the FOI Act on the grounds that the record contains personal information relating to a third party.
On the 18 August 2021, the applicant sought an internal review of that decision. She said she was not requesting the named doctor’s personal information. On 7 September 2021, the Medical Council affirmed its refusal of the request under section 37(1) and also cited section 15(1)(g) as a second ground for refusal.
On 9 September 2021, the applicant sought a review by this Office of the Medical Council’s decision. During the course of the review, the Investigating Officer informed the applicant of her view that the Medical Council had justified its refusal of the request under section 15(1)(g) of the FOI Act. The applicant was invited to make a submission in response, and she has done so.
I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the correspondence between the applicant and the Medical Council as outlined above and to the correspondence between this Office and both parties, as well as the submissions made by the Medical Council and the applicant on the matter.
Scope of the Review
This review is solely concerned with whether the Medical Council was justified in its decision to refuse the applicant’s request for the certificate of additional qualification of a named doctor under sections 15(1)(g) and 37(1) of the FOI Act.
Analysis and Findings
Having regard to the submissions made by the Medical Council during the course of this review, it seems to me that section 15(1)(g) is of most relevant in this case. Accordingly, I will consider the applicability of that provision in the first instance.
Section 15(1)(g) of the FOI Act provides for the refusal of a request that an FOI body considers to be frivolous or vexatious, or to form part of a pattern of manifestly unreasonable requests. While the section identifies three specific characteristics which may lead to a decision to refuse a request, there may often be a degree of overlap. For example, a request that is frivolous may also be vexatious, and what is frivolous and/or vexatious may also form part of a pattern of manifestly unreasonable requests.
This Office considers that a request may be regarded as frivolous or vexatious where, among other things, it has been made in bad faith or it forms part of a pattern of conduct that amounts to an abuse of process or an abuse of the right of access. This Office deems it appropriate to consider the request in the context of (i) other requests made to the public body and, (ii) the requester’s dealings with the public body concerned. On this point, it is noteworthy that in her judgement in Kelly v the Information Commissioner  IEHC 479, O’Malley J. found that this Office was not confined to considering the specific request and that it was entitled to consider the wider context in which the request was made.
This Office is also satisfied that it is entitled, by virtue of section 13(4) of the FOI Act, to take into account the motive of a requester when considering whether a request is frivolous or vexatious. In the aforementioned High Court proceedings, O'Malley J. stated that in determining whether a particular application should be described as vexatious, the Information Commissioner is entitled by statute to use his discretion. She stated that "[t]here is no obligation on the Commissioner to prove the applicant's state of mind, and inferences may be drawn on a common sense basis from a pattern of conduct".
In its submissions to this Office, the Medical Council provided details of its considerable dealings with the applicant over the past number of years. It said that in 2018, the applicant made a complaint against two named registered medical practitioners, one of whose registration status is the subject matter of this request. In line with the Medical Practitioners Act 2007 (the 2007 Act), the Preliminary Proceedings Committee (PPC) investigated the complaints and decided no further actions should be taken. Following further correspondence from the applicant, the PPC further considered, and re-affirmed its decision in December 2018. The Medical Council explained that since that decision, the applicant continued to submit correspondence to the Council for consideration, requested information from various sections and made accusations against the named doctor. In December 2020, under section 59(9)(b) of the 2007 Act, the PPC found that the applicant’s most recent correspondence and complaint against the named doctor was vexatious and no further action would be taken.
As part of the complaint the applicant raised concerns around the qualifications of the named doctor and her registration status. The Medical Council said that in line with standard practice the named doctor’s qualifications and registration status were confirmed during the complaints process. Therefore, the Council outlined there is no patient safety issue as alleged by the applicant, and the information available on the Published Register of Medical Practitioners should suffice, rather than providing a copy of the original record.
The Medical Council explained that the registration section alone has received 88 pieces of correspondence from the applicant, while the information governance section has received nine FOI requests to date. An initial review of correspondence highlighted 46 occasions since 2018 that the applicant specifically sought information or clarity about the named doctor’s registration from the Medical Council’s registration section.
The Medical Council explained that she also made FOI requests specifically seeking employment information in relation to members of the registration section at the time of the named doctor’s registration as well as information on the current staff within the professional standards section.
It further explained that the applicant has raised complaints under the Equal Status Acts 2000-2018, the Civil Liability Amendment Act 2017, and the associated Civil Liability (Open Disclosure) (Prescribed Statements) Regulations 2018 against the Council, members of the PPC, and the staff who have engaged with her. It said that she also made accusations against the CEO and the President in relation to alleged breaches of the Code of Practice for the Governance of State Bodies, and the 2007 Act.
The Medical Council submitted that the FOI process is not a mechanism to be used as an attempt to reopen the complaint previously dealt with under Medical Practitioners Act 2007. It said it believed the applicant was using the FOI process to further progress a personal grievance. The Medical Council outlined that since the complaint against the named doctor was closed, the applicant has continued to contact both the Professional Standards and Registration Sections, the Office of the CEO and the President, all of whom have issued responses. The Council submitted that the complaints under the differing legislation, as well as the FOI requests, further highlights the vexatious nature of the FOI request.
In her application for review the applicant argued that she was concerned that the named doctor has been employed as a Consultant Obstetrician and Gynaecologist in a named hospital but is unsuitable to carry out the role. She outlined her belief that the named doctor’s role breached patient safety and this was related to her registration status with the Medical Council.
In further correspondence with this Office, the applicant said that it was unclear who or how the named doctor’s UK qualifications as a Member or Fellow of the Royal College of Obstetricians and Gynaecologists and registration status were confirmed. She linked a copy of a news article of a separate doctor being struck off the register. She re-iterated her belief that the request for the relevant document is a matter of public interest in order to confirm that the named doctor has the qualifications she is advertising and practicing under. She explained that as the Medical Council refused to answer some of her questions she eventually resorted to this Office.
The request that is the subject of review in this case is directly related to the applicant’s original complaint in 2018. Since 2018, she has used various mechanisms and avenues to pursue her grievance concerning the named doctor, including through the use of the FOI Act. While it is entirely legitimate for an applicant to use the FOI Act to seek to obtain information that might assist an individual in support of a complaint, such use must be reasonable and proportionate. While the Act demands that FOI bodies meet very high standards in dealing with requests, the corollary is that the legislation assumes reasonable behaviour on the part of requesters.
The interactions that the parties have had in this case since 2018 are significant and it is clear to me that they have placed a significant burden on the Medical Council in terms of the time and resources required to deal with the applicant’s prolonged efforts to pursue a grievance that has long since been decided upon. It seems to me that the applicant’s use of the FOI is simply another avenue by which she is seeking to continue to pursue that grievance. As such, I am satisfied that her use of FOI comprises a pattern of conduct amounting to an abuse of the right of access.
In the circumstances, I find that the Medical Council was justified in deciding to refuse the request under section 15(1)(g) on the ground that it was vexatious. Having found section 15(1)(g) to apply, I do not consider it necessary to examine the other exemption cited in this case.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Medical Council to refuse the request under section 15(1)(g) of the FOI Act.
Right of Appeal
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.