On 8 December 2005, the Scottish Information Commissioner ("SIC") made one of his most controversial decisions to date by ordering the Common Services Agency ("CSA") for the Scottish Health Service to release the mortality rates of surgeons in Scotland.

The decision was made after Mr Camillo Fracassini of The Sunday Times and Mr Peter MacMahon of the Scotsman appealed separately to the SIC when the CSA refused to release the information claiming that it was not held and, in any event, to release the requested information would breach data protection principles and would prejudice substantially the effective conduct of public affairs.

In his decision, the SIC, Kevin Dunion, examined each of the CSA's claims in turn.  First, he considered whether or not the information requested was held by the CSA. The CSA claimed that the information was incomplete, so its release would give misleading results and could be open to misinterpretation. However, the SIC determined that the Freedom of Information (Scotland) Act 2002 requires an authority to provide the information that it holds in relation to a request, not information that 'it should hold or would like to hold'. He concluded that the information requested was indeed held by the CSA.

He went on to consider the view of the CSA that release of the information would be in breach data protection principles. Information is considered to be personal data is protected by the Data Protection Act 1998. That Act outlines, through data protection principles, the circumstances in which personal data can be processed. Kevin Dunion looked at advice given by the UK Information Commissioner, who is responsible for the enforcement of the Data Protection Act, in applying the principles. The SIC considered that in this case it was helpful to ask whether the information related to the private or public lives of the party. If the information is about the home or family life of an individual, or his or her finances etc, it is likely to be protected. If, however, the information is about someone acting in an official or work capacity, the information should be provided unless there is some risk to the individual concerned. In this case, the surgeons are clearly acting in a professional capacity. The SIC explained that it was 'far from demonstrated' that there would be any professional damage or distress caused by the release of the information. He explained that the data protection principles "should not be used…as a means of sparing officials embarrassment over poor administrative decisions, or, as in this case, potential embarrassment over mortality rates of the surgeons."

The CSA had also submitted that releasing surgeons' mortality rates would prejudice the effective conduct of public affairs.  It was argued that the information released would not be risk-adjusted to account for patients who have, for example, an underlying illness that increases the risk of dying during the procedure, and as a result the figures may be misleading. It was also claimed that doctors would be less willing to cooperate with information gathering, resulting in a negative impact on the quality of healthcare in Scotland.  The SIC disagreed. He believed that the process for gathering information was not a voluntary one so there would be no effect on what information was forthcoming. When considering the argument that the data could be published in a misleading manner, he looked at previous cases where mortality rates had been published in the Guardian and in the Scotsman newspapers. In both cases the information had been put into context with possible reasons for higher mortality rates provided. Nor were league tables of rates produced. Kevin Dunion argued that unwarranted conclusions would not necessarily be drawn from releasing this information. He continued by explaining that if any damage did occur, there are means by which this can be rectified, for example, through the media and health reporters. He stated that releasing the information would not lead to 'inescapable damage'.

Based on these arguments, the Scottish Information Commissioner ordered the release of all surgeons' mortality rates and their clinical speciality by 8 February 2006.   The rates were published on the Scottish Health Statistics website on Monday 6 February 2006 together with an accompanying statement providing a detailed explanation of the background to these figures and explaining that, taken out of context and without the background information, the figures do not provide reliable information about surgeons’ performance.

In England and Wales, following the Bristol inquiry, in 2002 Alan Milburn, then health secretary, announced that the patient death rate for every surgeon in England and Wales would by published within two years. This has not yet happened. However, the rates of heart surgeons are beginning to be released and 25 consultant heart surgeons chose to publish their mortality rates in the British Medical Journal last year.

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