Commissioner criticises "catalogue of failings" at NHS Ayrshire and Arran

News release: 22 February 2012

The Scottish Information Commissioner Kevin Dunion has issued his last decision, criticising NHS Ayrshire and Arran for some of the most serious failings in records management and information recovery he has seen in his nine years in office.

NHS employee Mr Rab Wilson had asked for copies of Critical Incident Reviews, Serious Adverse Event Reports and associated action plans, which are used in the primary care field as a structured way of investigating incidents and ensuring lessons are learned.  NHS Ayrshire and Arran advised Mr Wilson that they held only one action plan.

However given the potentially serious nature of the incidents which give rise to Critical Incident Reviews, and the Board's stated policy on these reviews, the Commissioner challenged this position when the case was appealed to him, and over the coming months more than 56 action plans were found.  The Commissioner has ordered the Board to disclose anonymised versions of the reports and plans to Mr Wilson.

Mr Dunion, who demits office tomorrow, said:

"This case has involved a catalogue of failings by NHS Ayrshire and Arran to search for and find information falling within the scope of Mr Wilson's request ? perhaps the most serious such case by an authority in my time as Commissioner.  Claims made to Mr Wilson turned out to be wrong and prior assurances given to me and my staff turned out to be unjustified.  At the very least, this constitutes a significant failure of records management, but, given the nature of the information which was the subject of the request, the failings may point to wider governance issues which have to be addressed.

"Mr Wilson's persistence was characterised by the Board as being vexatious, but perhaps instead should have raised concerns that records concerning critical incidents which should have been held were missing, policies regarding action plans were not being adhered to and public confidence that plans had been drawn up and acted upon could be affected.  Certainly I found it so difficult to believe that such documents could be unaccounted for in terms of whether they had been created, acted upon or destroyed that it caused me to continue with my investigation despite the Board's protestations.

"As this is my last decision, I will recommend to the new Commissioner, who takes up post on 1 May 2012, that consideration is given to carrying out an assessment of NHS Ayrshire and Arran's freedom of information practices."

The Commissioner has taken the unusual step of writing to Dr Martin Cheyne, Chairman of Ayrshire and Arran NHS Board, to bring these serious breaches directly to his attention, as well as to Mr John Burns, the Chief Executive.  The case will also be brought to the attention of Scottish Ministers and other relevant bodies.


For further information contact the Commissioner's Media Team on 01334 464610, out of hours on 07976 511752, or email

Notes to Editors:

Decision summary

Read the full decision at Decision 036/2012 Rab Wilson and Ayrshire and Arran NHS Board.

Rab Wilson asked Ayrshire and Arran NHS Board (NHS Ayrshire and Arran) for copies of all Critical Incident Reviews (CIRs) and Significant Adverse Event Reports (SAERs) carried out by NHS Ayrshire and Arran since January 2005, and for the action plans derived from the CIRs and SAERs.

  • NHS Ayrshire and Arran refused to disclose the CIRs and SAERs to Mr Wilson, on the basis that they were, in their entirety, exempt from disclosure. NHS Ayrshire and Arran advised Mr Wilson that it did not hold any CIR action plans (with the exception of one plan which he had already been given).
  • NHS Ayrshire and Arran also refused to provide copies of the SAER action plans, as they were to be published within 12 weeks, and NHS Ayrshire and Arran considered that they were exempt from disclosure. Following a review, Mr Wilson remained dissatisfied and applied to the Commissioner for a decision.
  • Following an investigation, the Commissioner ordered NHS Ayrshire and Arran to provide anonymised versions of the CIRs and SAERs to Mr Wilson. Although some of the contents of the reports were exempt from disclosure (for example because they contained sensitive personal data), the Commissioner concluded that it was possible to redact the reports in such a way that patients, etc. could not be identified. Failure to provide redacted copies of the reports was a breach of section 1(1) of FOISA.
  • During the investigation, NHS Ayrshire and Arran located a large number of CIR action plans falling within the scope of Mr Wilson's request; as a consequence, the Commissioner found that NHS Ayrshire and Arran had been wrong to advise Mr Wilson that it did not hold any such plans.
  • He also found that the exemption in section 27(1) (Information intended for future publication) did not apply to the SAER (or CIR) action plans; while "learning summaries" of the plans were published by NHS Ayrshire and Arran during the investigation, the Commissioner was not satisfied that it had intended to publish the plans when Mr Wilson made his information request.
  • In any event, the learning summaries which had been published did not contain the same information as the action plans. The Commissioner therefore ordered NHS Ayrshire and Arran to provide Mr Wilson with anonymised versions of the CIR and SAER action plans.
  • In the decision, the Commissioner also expresses significant concerns about the handling of Mr Wilson's request and about NHS Ayrshire and Arran's records management practices in relation to CIRs and SAERs and their action plans.

About the Scottish Information Commissioner

  • Kevin Dunion was appointed as the first Scottish Information Commissioner in February 2003. In February 2008 he was reappointed for a second, and final term. He will demit office on 23 February 2012.
  • The Commissioner is responsible for enforcing and promoting Scotland's freedom of information laws
  • His successor, Rosemary Agnew, is currently Chief Executive of the Scottish Legal Complaints Commission. Rosemary takes up post on 1 May 2012.
  • Margaret Keyse, the Scottish Information Commissioner's Head of Enforcement, has been appointed Acting Commissioner until 1 May 2012.

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