Information Commissioner orders DHSC to disclose pandemic surge planning documents

The surge planning documents resulted from lessons identified during Exercise Cygnus (a simulation exercise to test the NHS’ preparedness for coping with a flu pandemic), but are relevant for any major pandemic where difficult decisions have to be made about allocation of scarce resources.

It has been over a year since Dr Moosa Qureshi requested “a specific report focusing on NHS population triage” in an application for judicial review. It has been six months since Dr Qureshi made Freedom of Information requests for both the surge planning documents to NHS England and the Department of Health and Social Care. NHS England failed to respond to Dr Qureshi’s request and on 2nd March 2021, the ICO found that NHS England breached section 10(1) of the Freedom of Information Act which requires a public authority to respond to information requests promptly and no later than the twentieth working day following the date of receipt of the request.

The Department of Health and Social Care refused to disclose the surge planning documents relying on section 36 of the Freedom of Information Act which provides an exemption if disclosure would or would be likely to prejudice the effective conduct of public affairs. In March 2021, Dr Qureshi’s lawyers, Leigh Day, wrote to the Information Commissioner arguing in favour of disclosure, submitting:

“The Refusal Decision here challenged is the latest in what has been a persistent pattern on the part of the DHSC of closing ranks and refusing to disclose documentation relevant to the public’s understanding of the nation’s preparation for and action in response to the ongoing COVID-19 pandemic.”

In a carefully weighed decision, the ICO has now ordered the Department of Health and Social Care to disclose the documents. The Information Commissioner has accepted that section 36 of the Freedom of Information Act is engaged, but has found that the balance of the public interest favours disclosure.

In ordering disclosure of the surge planning documents, the Information Commissioner has clearly emphasised the importance of disclosure both to support clinical decision-making and for public debate:

“50. The Commissioner recognises that there is a very strong public interest in understanding how effectively the Government prepared for and has handled, the pandemic. Exercises like Cygnus were designed to test capability and to identify areas of weakness. Therefore it is important to understand whether lessons from Cygnus were properly learned and where appropriate, developed or addressed.
51. Furthermore, the Commissioner notes that the second of the two reports relates to proposals for population triage. This relates to a situation whereby the NHS becomes overwhelmed and is unable to treat all those requiring treatment. At that point, tough decisions have to be made as to who will receive treatment (and what treatment they will receive) and who doesn’t. These are literally life and death decisions.
52. If clinicians (or even politicians) are being asked to make such decisions, it is vital that they are supported by a clear framework and that framework has been the subject of public debate. Any framework must be seen to be fair if it is to demand public confidence. The Commissioner therefore considers that there is a very strong public interest in understanding what considerations the Government has made about how a triage system would operate, when it would be triggered and by whom. This would inform the public and enable them to participate in the debate.”

This decisive order from the ICO is an important step in Dr Qureshi’s ongoing CygnusReports.org campaign for pandemic transparency against multiple public authorities. The Department of Health and Social Care now has 28 days to appeal the ICO’s decision.

Dr Moosa Qureshi said:

"This robust and carefully balanced decision by the ICO is an important milestone during the long CygnusReports.org campaign for pandemic transparency. It's clear to myself and many of my senior NHS colleagues that there's a clinical imperative for authoritative pandemic triage guidance, but the Nuffield Council of Bioethics has said there's also an ethical imperative, and experts like Dr Kathy Liddell at the University of Cambridge have laid out the legal risks to healthcare professionals in the absence of authoritative guidance.
 
“By refusing to provide a population triage protocol, the Department of Health is arguably transferring blame - and legal liability - from politicians to NHS healthcare workers who have already risked their lives on the front line. It's also failing to clearly define the rights of patients during a pandemic. That has to be unacceptable. It’s time now for our nation to open up a public debate about how best to prepare together for a world of future risks."

Leigh Day Partner Tessa Gregory added:

“We trust that the Department of Health will comply with the Information Commissioner’s order and disclose the surge planning documents without any further delay. Our client will continue to fight for full transparency because he understands that the Government’s secretive approach to emergency planning is dangerous and has already cost lives.”