The Freedom of Information Commissioner Jennifer Dilbert has ruled that patients have no right to be informed of the identity of their doctors’ insurers.
The commissioner upheld a decision by the Health Regulatory Services to refuse to reveal which insurance company insured a particular medical practitioner to an applicant, who wanted the information to help seek legal recourse for alleged malpractice by the practitioner.
Ms Dilbert, in a 4 March report, agreed that the information in question was exempt from release under the Freedom of Information Law. “The responsive record in this matter is exempt from disclosure under Section 23(1) of the Freedom of Information Law, 2007, as it would involve the unreasonable disclosure of the personal information of the third party. I do not find that there is an overriding public interest in disclosing the record,” she said.
In a submission to the Information Commissioner’s Office hearing, the medical practitioner argued that the identity of insurers did not form part of the record held by the Health Regulatory Services in connection with its functions and that the requirements for registration of medical and dental practitioners set out in the Health Practice Registration Regulations made no mention of malpractice insurance.
Ms Dilbert said she did not agree with that argument, stating that the record existed and a copy had been provided to her by the Health Regulatory Services. She said it was “surely necessary” for the authority to hold or have access to this information to ensure a healthcare facility or a practitioner complied with the Health Practice Law, which states that a facility or individual must have malpractice insurance or indemnity cover.
The medical practitioner had also argued that the request was vexatious. The FOI Law states that a public authority is not required to comply with a request if that request is deemed vexatious. However, Ms Dilbert said she was not prepared to consider that argument because it was not within the purview of a third party – in this case, the medical practitioner – in a hearing to make representations on why a public authority should find a request vexatious.
The Health Regulatory Services, in its submissions, had not argued that the request was vexatious.
The regulatory authority consulted one of Cayman’s largest malpractice carriers, the Medical Protection Society or MPS, for its views on the request. The company advised that the UK Data Protection Act prohibits MPS from releasing information on any of its members without the member’s consent, unless there is an overriding reason to share the information. It also advised that confidentiality of its members was also protected under the Confidential Relationships (Preservation) Law (2009 Revision).
Medical Protection Society told the Health Regulatory Services that a patient “cannot file a complaint about an MPS member with MPS, nor can they seek compensation from MPS as a result of a member’s negligent practice”, and therefore it could see no reason why the name of a practitioner’s insurance carrier should be revealed”.
The medical practitioner argued that revealing the name of the medical malpractice insurer would be the same as revealing the identity of the practitioner’s bank or home insurer.
Ms Dilbert said that revealing to the identity of the insurer to the applicant in this case would not have helped the individual seek recourse for the alleged malpractice and that the applicant had not yet sought assistance for the alleged grievance from the Health Regulatory Services.
She said the Health Regulatory Services had pointed out that the applicant had two avenues for recourse – writing a letter of complaint to the Medical and Dental Council, which is responsible for the registration of doctors and dentists and which can warn, suspend or revoke the registration of a practitioner if negligence is discovered, or go to court over the matter.
The commissioner advised the authority to consider doing further publicity to make members of the public aware of their legal recourse on complaints against medical practitioners.
She highlighted some procedural problems that had been encountered in the handling of this request, such as that it was not immediately clear if the Health Regulatory Services had conducted an internal review following its initial refusal to reveal the information. Under the Freedom of Information Law, if a request for information is refused, the applicant can appeal and ask for an internal review by the principal officer in the relevant authority or department. If, following the internal review, the request is still declined, the applicant can appeal to the commissioner.
Ms Dilbert said that a phone conversation between the authority and the Information Commissioner’s Office’s intake analyst revealed that the principal officer had been involved in the initial review of the request, so that officer could not carry out an internal review. She said the applicant should have been advised at that point to appeal directly to the Information Commissioner. Under the FOI Law, no review can be conducted by the same person who made the initial decision.
However, it subsequently emerged that an internal review could have been carried out at ministry level.
“It is critical that the HRS identify and designate the person who will conduct internal reviews. This should not be a floating responsibility that is transferred to another person if and when the designated person is involved in the original decision, as this will cause confusion and unduly delay the appeals process,” Ms Dilbert said.
She also said the dealings with the third party – the medical practitioner – were “incorrect and somewhat confusing for all involved”.
There were also issues involving inadequacies in record keeping and procedural policies of the Health Regulatory Services, particularly relating to files dating back to before the creation of the authority in July 2008 and the enactment of the Health Practice Law, which was revised in 2005.
“In order to ensure that the HRS is able to effectively carry out its vital duty of regulation the provision of health services in the Cayman Islands, I would strongly recommend that these inadequacies be addressed, and that a full audit be conducted on all the documentation held by HRS on currently registered practitioners in the Cayman Islands,” Ms Dilbert said.