15. Before we decide whether we should do a detailed investigation of a complaint, we look at whether there are signs the organisation has got something wrong. We do this by comparing what should have happened with what did happen. We have done this and have not found any signs something went wrong when NHSE made its decision.
NHSE did not reschedule the IRP meeting in December 2020
16. Mr I says the IRP meeting went ahead without him on 15 December 2020. This was despite his request on 10 December 2020 for it to be rescheduled due to ill health. He says he asked for a new date within the next 4 weeks. He says the IRP had cancelled several meetings due to members being unable to attend, and this was his first cancellation.
17. The IRP noted Mr I was invited to attend but he was unwell and was not able to do so. He was informed of the IRP by invitation on 1 December 2020. The IRP members did a lot of preparation work before the IRP meeting and were clear on the details of his concerns and challenges raised at the local review stage. The CCG’s case file had clear correspondence, including a timeline of events detailing Mr I’s concerns.
18. NHSE said it acted in line with the National Framework. There is no expectation for families to attend the IRP meeting itself.
19. We can see Mr I sent an email to the IRP CHC team saying he felt the IRP had taken advantage of his ill health and the IRP was in serious breach of the Data Protection Act. It needed his consent to go ahead.
20. The IRP is an official body acting in accordance with the authority NHSE gives it. The IRP sent an email to Mr I on 11 December explaining that the meeting would go ahead on 15 December. It explained that it had details about his concerns. It gave him a chance to supply any further information or submissions by 14 December 2020. We know NHSE had no further contact from Mr I. It therefore assumed there were no further submissions and went ahead with the meeting.
21. When an applicant requests an independent review, they complete a questionnaire. The NHSE file includes this and the IRP request letter.
22. Implied consent is an agreement that is not made explicitly by words or actions. It generally means a person has given permission for something without actually saying so. Therefore, Mr I, through applying for an IRP and completing the required documents, gave implicit consent for the IRP to go ahead.
23. The email NHSE sent on 11 December 2020 also shows it had been trying to conclude the IRP process since 2019. Mr I could not attend the original panel date of 26 April 2019 so it was cancelled. Later arrangements were made in May 2019 and in March 2020. NHSE cancelled the March 2020 meeting due to the pandemic and its impact on the CHC service. The IRP meeting on 15 December 2020 was the fourth attempt.
24. We know the IRP process is quite clear about the involvement of the individual or representatives in the IRP meeting. The National Framework paragraph 201 says:
All parties involved should be able to view and comment on all evidence to be considered under the relevant disputes procedure. Where written records or other evidence are requested, the CCG making the request should ensure that those providing the evidence are aware that it will be made available to those involved in the independent review panel. The chair should consider the most appropriate way forward to ensure that all parties can play a full and informed role in the process.
25. Paragraph 16 in Annex D of the National Framework says:
The IRP should have access to the views of key parties involved in the case, including the individual, his or her family and any carer. It will be open to key parties to put their views in writing or to attend. If parties attend, they should be given the opportunity to hear the submissions of other parties and to ask them questions.
26. Therefore, there is no statutory requirement for the individual or their families to attend, although they are invited to do so.
27. We are satisfied there is no sign of a failing here in line with the National Framework. We can tell how frustrating it was for Mr I not to have the meeting rearranged. We can see the IRP acted in line with the guidance in deciding to continue with the meeting. It had access to Mr I’s views and gave him the opportunity to provide any additional comments before the meeting.
NHSE did not record the meeting
28. Mr I is unhappy NHSE did not record the IRP meeting. He says he asked it to do this because previous minutes of meetings did not match his recollection of events. There were also different interpretations of his wife’s needs in the earlier assessments completed. He wanted to use a video camera or voice recording at the IRP meeting to confirm the minutes of the meeting.
29. He says he should be able to record the meeting for his own reference without NHSE’s consent or knowledge, and these recordings could be used in court proceedings at the judge’s discretion. He says there is case law allowing covert recording to be admitted as evidence.
30. The IRP said a record of the IRP meeting (including open and closed sessions) would be made available to Mr I and the CCG once the report was completed. Audio recording of the IRP meetings would not be an option. The IRP manager said NHSE could not provide any recording facility and its panel members and chair did not give consent to have any recording done by Mr I.
31. We can see the evidence shows NHSE considered Mr I’s request to record the meeting but a definite agreement was not made.
32. On 28 May 2019 NHSE told Mr I the IRP would not be recorded but a full written record of the proceedings would be made available. He was also assured all records and submissions would be considered. He was asked to confirm his attendance on 30 May 2019.
33. We know Mr I was adamant the meeting must be recorded. The IRP manager said if the meeting was recorded, professionals would have to do it and they would only record the open session. However, the date for the meeting would have to be changed as further work was needed to organise this.
34. The meeting was rescheduled for March 2020. On 12 March 2020 the IRP manager emailed the head of corporate information governance and data protection for advice about the recording of the meeting and the disclosure of evidence within it.
35. On 23 March 2020 the IRP manager got a response. It said a data subject does not have the right to insist IRP meetings be recorded. An organisation decides how to process records and information. The discussions in a panel meeting are confidential as they relate to a patient’s data. This includes patients who have died, as the duty of confidentiality applies after death.
36. The GDPR sets out how organisations should handle data, including seven key principles. One of the principles is that an organisation should process data in a manner that ensures appropriate security for personal data.
37. In our Principles, ‘Being open and accountable’ says public organisations should handle and process information properly and appropriately in line with the law. While their policies and procedures should be transparent, public organisations should, as the law requires, also respect the privacy of personal and confidential information. We can see NHSE has done that.
38. The only information in the National Framework about how an IRP should be documented is in Annex D paragraph 22, which states:
A full record should be made of the IRP hearing, including details of those present and their role, the issues and evidence considered, the conclusions and recommendations reached by the IRP, and the reasons for them. A copy of this should be sent by NHS England to all parties.
39. NHSE did this. The National Framework does not say an IRP should be audio- or video-recorded.
40. We recognise Mr I had concerns about previous meeting minutes. We can see NHSE must decide how to process records and information. It appears allowing the IRP to be recorded and shared with Mr I could have prevented the proper handling of the information in line with the GDPR. The recordings would be in the hands of individuals outside its jurisdiction and therefore it could not control the publication and security of the data.
41. We are satisfied there is no sign of a failing here. We think NHSE acted in line with our Principles and the National Framework and carefully considered its obligations under the GDPR. We can see NHSE produced the IRP report within the required timescale. This included a full written record of the IRP meeting.