Scottish Information Commissioner rules that mortality rates for all surgeons in Scotland should be released 

NEWS RELEASE:  Thursday 8th December 2005 

The Scottish Information Commissioner today (Thursday, December 8th 2005) announced that the Common Services Agency for the Scottish Health Service (CSA) should release information on the mortality rates of surgeons in Scotland since 2002/3. This includes for each named surgeon, his/her speciality, the hospital where they work, the number of patients operated on annually and mortality rates. 

The decision was issued following separate appeals under the Freedom of Information (Scotland) Act by Mr Camillo Fracassini, of the Sunday Times and Mr Peter MacMahon of The Scotsman who queried the CSA?s original decision to withhold the requested information. 

After a very detailed consideration of the issues involved, the Commissioner did not agree with the CSA?s arguments for withholding the disputed information and, in his decision, requires the CSA to release the information sought.

The Commissioner found that the CSA did hold the information requested for the period 2002-04 and for part of 2005 and that release of the information would not breach the first data protection principle, as it relates to the professional, not private lives of the surgeons. He found also that release of the information would not be prejudicial to the effective conduct of public affairs, as it was derived from routinely collected hospital data, and would not impact upon the quite separate process of surgical audit.

Kevin Dunion, the Scottish Information Commissioner said, ?The CSA bases its view on a worst case scenario in which the information is used out of context and with the intention or unavoidable effect of being misleading and harmful. That does not appear to me to be the inevitable outcome of release and recent media coverage of surgical mortality rates shows that even unadjusted information can be presented in context There is nothing to prevent the CSA making additional contextual information available when it releases the requested data. Such information is not technical and perfectly capable of interpretation by the general public.?

The Commissioner?s decision considers experience of similar cases in the USA and Australia and experience of release of surgical mortality data in England and Scotland.

The Commissioner said, ?Where similar issues have been addressed by Commissioners, Ombudsmen or Courts elsewhere, the tendency has been to draw a distinction, as I have done, between personal and professional information, as well as to distinguish between information gathered by routine systems and those systems which may be susceptible to the withdrawal of voluntary participation.?

The Commissioner also stated, ?I take the view that the information requested constitutes personal data relating to surgeons? professional lives. It is collected by administrative procedures in the work place in which surgeons are employed and it describes their professional functions and outcomes from or related to their working activities. The scope for adverse comment or conclusion is limited to professional matters. While that may cause annoyance or resentment, it does not constitute damage or distress to the extent required to be exempt from disclosure.?

Either the CSA or the applicants can appeal against the Commissioner?s decision to the Court of Session within 42 days.


For further information, contact David Budge on 01698 540111 or out of hours on 07831 156333.

Notes to Editors:

1) Summary of Decision

  • In February 2005, Mr Camillo Fracassini and Mr Peter MacMahon separately requested information from the CSA on the mortality rates of all surgeons.
  • The CSA refused to release the information on the grounds that it was personal information, as defined by the Data Protection Act, and was therefore excluded under Section 38 of the Freedom of Information Scotland Act (FOISA). The CSA also relied on Section 30 of FOISA, arguing that the public interest would not be served by releasing ?crude, unadjusted mortality data.?
  • The CSA maintained that the data does not take account of the risk characteristics of the surgeon?s individual patients and that disclosure would therefore be misleading rather than informative and would be detrimental and unfair to the surgeons. 
  • The CSA upheld its view in March 2005, following a review requested by Mr Fracassini. 
  • In his investigation, the Commissioner found that the CSA did hold the information requested, its disclosure would not breach the data protection principles and therefore the CSA was not entitled to withhold the information under Section 38 of FOISA.  
  • The Commissioner also found that release of the information would not prejudice substantially the effective conduct of public affairs. The disputed information relates to routinely collected data and has no bearing upon the participation by surgeons in the separate process of surgical audit. He concluded that the information was not exempt from publication under Section 30 of the FOISA.   
  • The full decision will be available online from 09.00 hrs on Friday December 9th 2005.  Journalists can obtain an advance, embargoed copy of the full decision by contacting David Budge on 01698 540111 or out of hours on 07831 156333.

2) The Freedom of Information (Scotland) Act 2002

  • The Freedom of Information (Scotland) Act 2002 (FOISA) provides a statutory right of access to all information held by Scottish public authorities. This right came into effect on 1 January 2005.
  • Around 10,000 public authorities in Scotland are covered by FOISA. They include the Scottish Parliament and Executive, police forces, the NHS, local authorities, education institutions, and publicly owned companies.
  • Information can only be withheld by a public authority if it falls under one of the exemptions listed in FOISA.
  • If an individual believes an authority is wrong to withhold information, they ultimately have a right of appeal to the Scottish Information Commissioner, who can force release. 

3) The Scottish Information Commissioner

  • Kevin Dunion the Scottish Information Commissioner is a fully independent public official, appointed by the Queen on the nomination of the Scottish Parliament.
  • His duties and powers are to ensure that people get the information from Scottish public authorities to which they are entitled.
  • His role actively promotes and enforces compliance with FOISA.
  • He has to date issued 68 formal decisions.

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