Commissioner for Ethical Standards in Public Life in Scotland

Transcription

1 Commissioner for Ethical Standards in Public Life in Scotland REPORT Complaint number NHS/Lo/1872 concerning an alleged contravention of the Code of Conduct for Board Members of Lothian NHS by Councillor Frank Toner Commissioner for Ethical Standards in Public Life in Scotland Thistle House, 91 Haymarket Terrace, Edinburgh EH12 5HE T: E: W: I

2 CONTENTS 1.0 Introduction 2.0 Outline of the Complaint and the Response 3.0 The Investigation 4.0 Consideration of the Evidence 5.0 Findings and Conclusion Appendix A Appendix B Appendix C The Complaint The Response List of Persons Interviewed Appendix D Draft Minute of the NHS Lothian Board meeting on 3 February 2016 Appendix E Appendix F The respondent s representations on the Proposed Report The Commissioner s comments on representations on the Proposed Report

3 1.0 Introduction 1.1 Complaint number NHS/Lo/1872 alleges a contravention of the Code of Conduct for Members of Lothian NHS Board ( the Code ). The Model Code was issued by the Scottish Ministers in terms of section 1 of the Ethical Standards in Public Life etc. (Scotland) Act 2000 ( the 2000 Act ) in 2002, and revised in December A revised Code was adopted by the Board on 6 August The complaint has been lodged by Councillor Janet Campbell ( the complainant ) who alleges a contravention of the Code by Councillor Frank Toner ( the respondent ). The complainant and respondent are elected members of West Lothian Council ( the Council ). 1.3 It is alleged that the respondent has contravened the Code of Conduct for Members of Lothian NHS Board, and, in particular, the provisions on Declaration of Interests set out in section 5 of the Code. With regard to Declaration of Interests, paragraphs 5.1 to 5.4, 5.8, 5.12 and 5.13 of the Code state: General 5.1 The key principles of the Code, especially those in relation to integrity, honesty and openness, are given further practical effect by the requirement for you to declare certain interests in proceedings of the public body. Together with the rules on registration of interests, this ensures transparency of your interests which might influence, or be thought to influence, your actions. 5.2 Public bodies inevitably have dealings with a wide variety of organisations and individuals and this Code indicates the circumstances in which a business or personal interest must be declared. Public confidence in the public body and its members depends on it being clearly understood that decisions are taken in the public interest and not for any other reason. 5.3 In considering whether to make a declaration in any proceedings, you must consider not only whether you will be influenced but whether anybody else would think that you might be influenced by the interest. You must, however, always comply with the objective test ("the objective test") which is whether a member of the public, with knowledge of the relevant facts, would reasonably regard the interest as so significant that it is likely to prejudice your discussion or decision making in your role as a member of a public body. 5.4 If you feel that, in the context of the matter being considered, your involvement is neither capable of being viewed as more significant than that of an ordinary member of the public, nor likely to be perceived by the public as wrong, you may continue to attend the meeting and participate in both discussion and voting. The relevant interest must however be declared. It is your responsibility to judge whether an interest is sufficiently relevant to particular proceedings to require a declaration and you are advised to err on the side of caution. If a board member is unsure as to whether a conflict of interest exits, they should seek advice from the board chair.

4 Your Financial Interests 5.8 You must declare, if it is known to you, any financial interest (including any financial interest which is registrable under any of the categories prescribed in Section 4 of this Code). If, under category one (or category seven in respect of non-financial interests) of section 4 of this Code, you have registered an interest (a) as an employee of the Board; or (b) as a Councillor or a Member of another Devolved Public Body where the Council or other Devolved Public Body, as the case may be, has nominated or appointed you as a Member of the Board; you do not, for that reason alone, have to declare that interest. There is no need to declare an interest which is so remote or insignificant that it could not reasonably be taken to fall within the objective test. You must withdraw from the meeting room until discussion of the relevant item where you have a declarable interest is concluded. There is no need to withdraw in the case of an interest which is so remote or insignificant that it could not reasonably be taken to fall within the objective test. The Non-Financial Interests of Other Persons 5.12 You must declare if it is known to you any non-financial interest of:- (i) (ii) (iii) a spouse, a civil partner or a co-habitee; a close relative, close friend or close associate; an employer or a partner in a firm; (iv) a body (or subsidiary or parent of a body) of which you are a remunerated member or director; (v) a person from whom you have received a registrable gift or registrable hospitality; (vi) a person from whom you have received registrable election expenses. There is no need to declare the interest if it is so remote or insignificant that it could not reasonably be taken to fall within the objective test. There is only a need to withdraw from the meeting if the interest is clear and substantial You must consider at the earliest stage possible whether you have an interest to declare in relation to any matter which is to be considered. You should consider whether agendas for meetings raise any issue of declaration of interest. Your declaration of interest must be made as soon as practicable at a meeting where that interest arises. If you do identify the need for a declaration of interest only when a particular matter is

5 being discussed you must declare the interest as soon as you realise it is necessary. 1.4 The respondent has signed a declaration of acceptance of the office of councillor under the Local Authorities (Councillors) (Declaration of Acceptance of Office) (Scotland) Order 1990, as amended, in terms of which the respondent has undertaken to meet the requirements of the Councillors Code of Conduct in the performance of his functions in that office. Paragraph 3.17 of the Councillors Code requires the observance of the rules of conduct of external bodies to which a councillor has been appointed or nominated. 1.5 For the purpose of this investigation, I was assisted by Mr Jon Miller, Investigating Officer. 1.6 This Report has been prepared for submission to the Standards Commission for Scotland in terms of section 14(2) of the 2000 Act. The Report was submitted in proposed form to the respondent for any representations. Details of the representations received and the extent to which the representations have been accepted or otherwise are set out in Appendices E and F. Minor amendments have also been made. 2.0 Outline of the Complaint and the Response The Complaint 2.1 The complaint is set out in a complaint form and attachments which are attached as Appendix A. The complainant alleges that on 3 February 2016, as a member the Board of NHS Lothian, the respondent participated in the consideration of a review of child health and medical paediatric inpatient services without declaring his financial interest as a remunerated employee of Mr Neil Findlay, MSP, who had interested himself in the review by means of a request for information under the Freedom of Information (Scotland) Act This complaint was made by Councillor Campbell on 15 February 2016 and relates solely to Councillor Toner s participation in discussion of the Royal College of Paediatrics and Child Health Review of Medical Paediatric Inpatient Services in Lothian ( RCPCH review) at the meeting of the Board of NHS Lothian on 3 February On 3 March 2016 Councillor Campbell submitted a letter to the Commissioner requesting that the scope of the complaint be widened to include the respondent s conduct at the meeting of the St John s Hospital Stakeholder Group on 20 January 2016 (complaint reference LA/WL/1882). Although the complaints are similar in content they are distinguished by the application of the Code of Conduct for NHS Lothian Board Members in regard to the meeting on 3 February 2016, and the Councillors Code of Conduct in regard to the 20 January 2016 Stakeholder Group meeting. Accordingly they have been reported as separate issues. The Response

6 2.3 The response is set out in a letter from the respondent which is attached as Appendix B. The respondent rejects the validity of the complaint and opines that neither he nor his employer had a financial interest in the agenda item under consideration by the Board, and that even if such an interest existed it was not such as to fall within the scope of the objective test and require declaration. 3.0 The Investigation 3.1 To establish the background to the complaint, the Investigating Officer sought and received information from NHS Lothian. 3.2 Having considered the documentary evidence, the Investigating Officer proceeded individually to interview the complainant, the respondent, and relevant witnesses. The interviews took place on 29 March, 5 April and 21 April A list of those interviewed is attached as Appendix C. 4.0 Consideration of the Evidence 4.1 The complainant, Councillor Janet Campbell, has been an elected member of West Lothian Council for eight years. She represents the Broxburn, Uphall and Winchburgh ward as a member of the SNP group. 4.2 The respondent, Councillor Frank Toner, has been an elected member of West Lothian Council for four years. He represents the East Livingston and East Calder ward as a member of the Labour group. On 10 May 2012 Councillor Toner was nominated by West Lothian Council to a nonexecutive directorship of NHS Lothian Board. In both capacities the respondent has been active in supporting the retention of the children s ward at St John s Hospital, Livingston, and in expressing concern about the process and progress of the review of paediatric services referred to in this Report. On 30 May 2016 Councillor Toner tendered his resignation from the Board with immediate effect. 4.3 In March 2012 the respondent took up remunerated employment as a trainee parliamentary assistant for Mr Neil Findlay, MSP. He continues in that role as at the date of this Report, working 14 hours over two days per week. This employment was inserted under category two (remuneration) in the respondent s register of interests as a Board member of NHS Lothian and is retained in the most recent update to the register dated February The Board of NHS Lothian comprises 24 members and is chaired by Mr Brian Houston who has held that position since 1 May Mr Houston reports to the Cabinet Secretary and First Minister on the Board s oversight and scrutiny of the executive management of NHS Lothian. Four councillors nominated by the City of Edinburgh, East Lothian, Midlothian and West Lothian Councils are currently non-executive members of the Board. 4.5 On appointment to the Board, the respondent was issued with an induction pack which included the NHS Lothian Code of Conduct. He was invited to attend informal development sessions for directors on 23 January and 27 February 2013 although his attendance cannot be confirmed. The respondent was present at the meeting on 6 August 2014 when the Board adopted the revised Code of Conduct, and in July 2015 he was issued with

7 an interactive member induction pack which contains a link to the Code of Conduct. 4.6 The issue of child health and paediatric inpatient services at St John s Hospital, Livingston, has been a topic of public concern for several years. This was heightened by staff shortages which led to the temporary closure of the children s ward in 2015 and has contributed to the decision by NHS Lothian to commission an independent review of medical paediatric services in Lothian by the Royal College of Paediatrics and Child Health ( RCPCH ). The original timescale envisaged a completion date of April 2016 but the report is now expected to be delivered to the June meeting of the NHS Lothian Board. 4.7 Mr Neil Findlay MSP was elected to the Scottish Parliament in 2011and has been re-elected in 2016 as one of the list members for Lothian. He was a West Lothian councillor from 2003 to On 29 May 2013 Mr Findlay was appointed Shadow Cabinet Secretary for Health and Wellbeing. He has taken a close interest in the RCPCH review and its completion date. Referring to the extension from the original March 2016 target Mr Findlay was quoted in a Herald press report on 6 November 2015 as saying: This delay stinks. The review of paediatrics has to report before the end of the financial year but now we are being told it is being delayed because of the Scottish elections and that it won t report until June a month after people have cast their votes. This is an outrageous situation that looks very much as if the review has been politically motivated by ministers and the health board to hide what may come from this review from the voters. The people in West Lothian should be able to make an informed choice at the next election and our local SNP representatives should be judged on their record, and that of the government they support. 4.8 On 12 November 2015 Mr Findlay contributed to First Minister s Questions in the Scottish Parliament seeking a guarantee that paediatric services would be retained at St John s Hospital and again referred to the delayed completion of the RCPCH review. On 17 January 2016 the Falkirk Herald reported him as saying that he had grave concerns over the future of St John s Hospital, and in regard to the RCPCH review It was originally said the review would report within the current financial year. Now, mysteriously, the review will report just a few days after the election. On 26 January 2016 the Herald carried an extensive report on the outcome of Mr Findlay s freedom of information request to NHS Lothian, and in particular the timescale for completion of the review which would result in its delivery after the Scottish Parliament elections. Mr Findlay was quoted as claiming that the delay was intended to seek political gain. 4.9 Mr Findlay has promoted a campaign to retain the children s ward at St John s Hospital which is publicised on his website neilfindlaymsp.com under the title Protect Our St John s Children s Ward. The accompanying text reads: Over the summer the Children s ward at St Johns closed its doors for a second time in three years due to staff shortages and staff holidays. This

8 second closure has prompted a Lothian wide review of Acute Paediatric Services. I am very concerned that this review could recommend either a downgrade or closure of the ward at St Johns. This concern is compounded by the recent revelations that the Scottish Government has sought to delay the timeline of the review with the report not being published until after the Scottish Election in May. The interference by the Scottish Government suggests they think the review may recommend an outcome that is bad for the future prospects of the Children s Ward. What is worse they seem more concerned about the public reaction and the impact on the electoral prospects of their sitting MSP s rather than protecting the future of the ward and preventing any further disruption to paediatric services at St Johns On 24 November 2015 a parliamentary researcher acting on behalf of Mr Findlay (apparently outwith the knowledge of the respondent) submitted a freedom of information request to NHS Lothian seeking the following: a copy of any correspondence, letters, s, briefings etc, between senior management at NHS Lothian and MSPs, and/or Government Ministers and/or civil servants and/or special advisors in relation to the current review into paediatric services across Lothian; a copy of any correspondence, letters, s, briefings etc, between senior management and NHS Lothian and the Cabinet Secretary for Health and Wellbeing in relation to the current review into paediatric services across Lothian; and a copy of any correspondence, letters, s, briefings, terms of reference given to the review team etc, between NHS Lothian and any member of the review team currently charged with reviewing paediatric services across Lothian At interview, the respondent stated that he was unaware of this request until the publication of the report in the Herald on 26 January 2016 and that he was only aware in general terms of Mr Findlay s interest in seeking the retention of the children s ward at St John s Hospital. The respondent stated that Mr Findlay had not prompted him in relation to his contribution to the Board meeting on the matter of the RCPCH review On 3 February 2016 the Board met at Waterloo Gate, Edinburgh for its normal monthly meeting under the chairmanship of Mr Houston. The respondent was present with sixteen other non-executive directors. The Chair asked for declarations of interest in any item on the agenda. No declarations were made A paper was submitted by the Chief Officer, University Hospitals and Acute Services (the Chief Officer) for the consideration of the Board to update members on the RCPCH review. In addition to the update on progress, the paper referred to the interest of MSPs and the freedom of information request in the following terms: NHS Lothian has had correspondence from some MSPs, West Lothian Council and has received a Freedom of Information request in November 2015 all of which have been responded to. Members will also have seen

9 considerable Press coverage of this and of the Review. NHS Lothian has responded to all of these enquiries The draft minute (approved at the April meeting of the Board but not yet published) notes the following announcement by the Chair at the commencement of the meeting, and the response by Councillor Toner: The Chair reminded the Board that an additional paper had been circulated after the formal Board agenda had been issued. This was agenda item 2.8 Royal College of Paediatricians and Child Health Review and Medical Paediatrics Inpatient Services in Lothian Update. Councillor Toner with reference to the aforementioned paper asked that papers be issued earlier in future. The Chair noted and accepted the point made although he advised given the landscape in this area was busy it had been the desire to ensure the paper was as up to date as possible. He however took the general point that papers should be issued as far in advance as possible In regard to the RCPCH review the draft minute records that the Chair explained that the paper before the Board represented an update on progress. Members were informed that at this point the timeline for the completion for the review and the receipt of the review report remained as previously notified, with the final report expected to be submitted to NHS Lothian in May It was planned that this would go to the NHS Lothian Board Development Session in May 2016 and then onto the June public Board meeting After contributions from another director and the Chief Officer, both of whom referred in positive terms to the degree of public and clinical engagement in the review, the draft minute records the following exchange between the respondent, the chief officer and the Chair: Councillor Toner commented that he was less congratulatory around the process and made detailed reference to the Freedom of Information request made by Mr Findlay MSP and referred to in the appendix to the paper. In particular he expressed concern about an exchange on 1 October 2015 between Scottish Government officials and [the Chief Officer] where reference had been made to NHS Lothian [being] bumped into making a decision in respect of the reporting timeline for the review report. Reference was also made to an from the medical director as well as one from the Chair to the Chief Executive suggesting there was no need to take heed of 415 s. [The Chief Officer] commented that he was delighted that Councillor Toner had raised the point about the around Scottish Government engagement. [The Chief Officer] commented that he had advised the Scottish Government official who had been producing a briefing paper for the Cabinet Secretary that he could not be bumped into a decision in advance of the Board meeting as it was for the Board to determine and approve deadlines. Councillor Toner advised that in his opinion a protracted review process put additional risk on the service. [The Chief Officer] referred Councillor Toner to the FOI traffic. [The Chief Officer] commented that any suggestion that Scottish Government Officials had tried to elongate the

10 process was not true. He advised that the initial thought had been that the review team would report in March / April However once additional detail became available about the full extent of the review and the consultation and engagement process this had emphasised the need for solid and comprehensive engagement. The [Chief Officer] commented that he made no apology for extending the timeline to ensure that the review process was complete and transparent. Councillor Toner commented that initially the RCPCH had stated that they could conclude the review by the end of the financial year. It had then been reported that their public engagement expert had not been available immediately. At the St John s Hospital Stakeholder Group meeting it had transpired that the RCPCH did not in fact have access to the initially proposed person. The Chairman advised the Board about comment made in correspondence from Mr Neil Findlay MSP following on from the previously referred to FOI request to the effect that he had suggested that the 415 s should be ignored. The Chairman commented that he had and would again apologise for using insensitive words in respect of how the 415 essentially identical s should be processed. The s had been submitted into the process and would feature as part of the review team feedback. Councillor Toner welcomed the apology and the clarity around the s as there had been concerns that they were being ignored. He commented as a Board member he did not think that he had received significant assurance around all the questions raised within the context of the FOI request as reported to the Board. The Chief Executive commented that the critical issue was that the Board needed to come to a view on the sustainability of the service. The Chief Executive confirmed to the Board the need to take account of guidance issued around the Scottish Parliamentary Elections by the Scottish Government which stated that care should be taken to ensure that Board meetings did not introduce agenda items likely to be subject to controversy during the election period. Therefore even if the RCPCH report had been available prior to the Parliamentary elections if there had been any proposals for material change then the Board would not have been able to consider that during the purdah period. Furthermore if the report had made recommendations for material change then the Board would have been required to conduct a period of public consultation before coming to a decision which would also not have been able to be pursued through the purdah period At this point the respondent moved a motion proposing amendments to the recommendations contained in the paper, the effect of one change being to have the Board agree to the submission of the RCPCH report prior to the Scottish Parliament elections in May; and another alteration to request an additional meeting of the St John s Hospital Stakeholder Group to consider the information obtained through Mr Findlay s freedom of information request The respondent s motion failed to secure a seconder and the Board agreed to the recommendation contained with the paper which included the noting of the expected May 2016 completion date for the review.

11 4.19 In his written response to the complaint Councillor Toner avers that he had no financial interest to declare in this item of business. He stated: The Board s consideration of the FOISA request had no bearing on my employment, and had no bearing on my remuneration from that employment. It did not have any bearing on the financial interests of my employer he is an MSP and his remuneration does not depend on any decision that the Board may have taken or any comment it may have made. The respondent further contended that the interest (if it existed) was remote and insignificant, and could not reasonably be said to fall within the objective test At interview the respondent remained of that view. He agreed that he had been aware of Mr Findlay s freedom on information request on 26 January 2016, and that he had also seen an article in the Herald newspaper which covered his employers concerns about the review. He stated that in his work as a parliamentary researcher he had not had any involvement in the review and had absolutely not been asked by Mr Findlay to raise any issues on his behalf at the NHS Lothian board meeting. He stated that he had considered whether he had a declarable interest and that if NHS Lothian had not responded to Mr Findlay s request for information he would have made a declaration. For me the matter was concluded and therefore [Mr Findlay s] interest had concluded The respondent stated at interview that he suffered from dyslexia which impacted negatively on his ability to appreciate the content of complex reports and other papers placed before him. Councillor Toner requested that this be taken into account in the context of his understanding of the requirements of the Code in regard to declaration of interests. 5.0 Findings and Conclusion 5.1 The complainant alleges that Councillor Frank Toner has contravened the Lothian NHS Code of Conduct, as outlined in paragraphs 1.3 and 2.1 of this Report. 5.2 The complaint alleges that on 3 February 2016, as a member the Board of NHS Lothian, the respondent participated in the consideration of a review of child health and medical paediatric inpatient services without declaring his financial interest as a remunerated employee of Mr Neil Findlay, MSP, who had interested himself in the progress of the review by means of a request for information under the Freedom of Information (Scotland) Act, In assessing whether the respondent should have declared an interest in relation to his participation in the discussion of the RCPCH review I examined both the relevant provisions contained in section 5 of the Code, and the involvement of Councillor Toner s employer in questioning elements of the review via a request for information from NHS Lothian, and other public statements illustrating Mr Findlay s interest in the review. 5.4 In this regard I make the following findings of fact:

12 The respondent has been a remunerated employee of Mr Neil Findlay, MSP, since March 2012 and has included this employment within his NHS Lothian register of interests. Mr Neil Findlay, MSP, had taken a public stance on the RCPCH review on several occasions and in particular expressed concern that the review would not be completed prior to the Scottish Parliament elections in May A freedom of information request for background information on the RCPCH review of child care and medical paediatric inpatient services in Lothian was submitted to NHS Lothian by a representative of Mr Findlay s office on 24 November A paper submitted to the NHS Lothian board meeting on 3 February 2016 referred specifically to the RCPCH review and its reporting schedule, and to correspondence, the FOI request and press coverage. The respondent made no declaration of interest arising from his remunerated employment and participated in the discussion of the paper relating to the review. 5.5 The relevant provisions on declaration of financial and non-financial interests are contained in section 5 of the Code. Paragraphs 5.1 to 5.4 serve as an introduction and highlight the intention to produce transparency in regard to interests which might influence, or be thought to influence, a Board member s actions. In making their judgement on this question members are advised to err on the side of caution and required to comply with the objective test whether a member of the public, with knowledge of the relevant facts, would reasonably regard the interest as so significant that it is likely to prejudice your discussion or decision-making in your role as a member of a public body. Paragraph 5.4 of the Code advises that members should consider how their participation in the item of business might be perceived by the public, and if unsure to seek advice from the Chair. 5.6 Paragraph 5.8 of the Code requires the declaration of any financial interests which are registrable under any of the categories prescribed in section 4 of the Code. The respondent has included within his register of interests an entry as a remunerated employee of Neil Findlay, MSP. Mr Findlay s interest in the matter, specifically his FOI request, was noted in the paper, and a copy of the request from Mr Findlay s office was appended to the papers distributed to the Board members prior to their meeting. The respondent himself made specific reference to the freedom of information request in his contribution to the meeting. The existence of Mr Findlay s interest, and the respondent s knowledge of that interest, is clearly evidenced. The respondent s statement in his written response to the complaint expressed a belief that he had no financial interest to declare. In making that statement, however, he considered only whether the discussion on the RCPCH review raised any issue which could have a financial impact on himself or his employer. Having concluded that no such benefit or detriment could arise, the respondent concluded that there was no requirement to make a declaration. In so doing however he

13 neglected to consider how his participation in the discussion could be perceived from an external perspective. That is the thrust of the objective test, albeit subject to an assessment of the relevant facts and reasonableness. 5.7 The relevant facts to be considered here were whether the respondent knew of his employer s interest in seeking background material on the RCPCH review,, and the extent to which the respondent s own input to the meeting, in particular questions aimed at ascertaining the reasons for the April 2016 completion date being extended, coincided with the concerns of his employer. 5.8 In assessing these points I considered that the scope of the freedom of information request to NHS Lothian was such as to be likely to include the recovery of documentation which would provide an insight into the terms of reference of the review, its procedure and timescale, and a comprehensive file of correspondence between NHS Lothian, the RCPCH, the Scottish Government and Ministers. The respondent stated at interview that he was aware of the Herald report about Mr Findlay s request on 26 January The completion date for the review, while not apparently identified as such by the review team, would have transcended the May 2016 Scottish Parliament elections and was therefore politically sensitive. 5.9 Declaration is not required if the interest is so remote or insignificant that it could not reasonably be taken to fall within the objective test. In this case, the interest of Councillor Toner s employer in the RCPCH review had been evident for some considerable time prior to the meeting, and was political in nature. The issues raised at the meeting by Councillor Toner coincided to a notable degree with the questions being raised by his employer. The respondent should have considered not only whether he would be influenced by his employer s interest, but also if his actions might be perceived by a member of the public as being so influenced. In this regard paragraph 5.3 of the Code is prescriptive in requiring compliance with the objective test. In my judgement, the respondent did not correctly apply the test and accordingly I find that he has breached paragraph 5.3 of the Code It was apparent from Councillor Toner s written response to the complaint that, by focusing on the lack of any financial impact on his own or his employer s income, he fundamentally misunderstood the criterion of external perception of his actions which underlies the application of the objective test. The respondent took the view that the link to his employer was not significant in the context of the issue before the Board, but failed to appreciate that, even if this was the case and permitted his participation, paragraph 5.4 of the Code required that his interest be declared. The respondent failed to make such a declaration and I find accordingly that he has breached paragraph 5.4 of the Code The request submitted to the Board under the freedom of information legislation clearly shows that Mr Findlay had interested himself in aspects of the review. The scope of that request was wide-ranging in seeking information on contacts between NHS Lothian and civil servants, MSPs, the Cabinet Secretary and Ministers, and between NHS Lothian and the RCPCH review team. In addition Mr Findlay had publicly expressed concerns as to the scope and timescale of the review both in Parliament

14 and the media. The respondent was aware of his employer s freedom of information request, and in general terms of Mr Findlay s concerns for the retention of paediatric services at St John s Hospital. His employer s concerns were directly relevant to the business being discussed at the Board meeting. Had the objective test been applied, this should have triggered a declaration by the respondent as a remunerated employee of Mr Findlay and withdrawal from consideration of that item of business. Paragraph 5.8 of the Code requires the declaration of any financial interest, including one which is registrable under any of the categories prescribed in section 4 of the Code in this case the respondent s remunerated employment by Mr Neil Findlay, MSP. That interest in the matter directly under discussion by the Board was not declared and accordingly I find that Councillor Toner has breached the terms of paragraph 5.8 of the Code Paragraph 5.12 of the Code requires the declaration of non-financial interests of an employer unless they are so remote or insignificant that they could not reasonably be taken to fall within the objective test. It is evident from the involvement of Mr Neil Findlay, MSP, that he has expressed significant and repeated concerns about the scope and timescale for completion of the RCPCH review, and the retention of paediatric services at St John s Hospital. Those concerns were known to the respondent when he participated in the meeting of the Stakeholder Group on 20 January 2016 and, as a remunerated employee of Mr Findlay, his employer s interest should have been declared. The respondent did not make such a declaration and I find accordingly that Councillor Toner has breached the terms of paragraph 5.12 of the Code In relation to NHS/Lo/1872, I have come to the conclusion that, having regard to the findings in section 5 and in particular paragraphs 5.9, 5.10, 5.11, and 5.12 of this Report, Councillor Frank Toner has contravened the terms of paragraphs 5.3, 5.4, 5.8 and 5.12 of the Code of Conduct for Members of Lothian NHS Board. Thistle House 91 Haymarket Terrace Edinburgh EH12 5HE 12 August 2016 Bill Thomson Commissioner