Correspondence regarding health boards use of the independent sector: FOI release

Information requested

Please provide all Scottish Government correspondence to and from health boards regarding their use of the independent sector, in the 2023 calendar year to date.

If fulfilling the request is likely to take the response over the working time limit allowed under FOISA, please provide information for the following boards:

a) Greater Glasgow and Clyde

b) Lothian

c) Highland

I can confirm the request relates to planned care and the request relates to the use of the independent sector in general.

Response

I enclose a copy of some of the information you requested.

While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because exemptions under sections 30(c) (substantial prejudice to the effective conduct of public affairs) and 38(1)(b) (personal information) of FOISA apply to that information. The reasons why these exemptions apply are explained in the Annex to this letter.

ANNEX A

Section 38(1)(b) – applicant has asked for personal data of a third party

An exemption under section 38(1)(b) of FOISA (personal information) applies to some of the information requested because it is personal data of a third party, i.e. names and contact details of individuals, and disclosing it would contravene the data protection principles in Article 5(1) of the General Data Protection Regulation and in section 34(1) of the Data Protection Act 2018.

This exemption is not subject to the ‘public interest test’, so we are not required to consider if the public interest in disclosing the information outweighs the public interest in applying the exemption.

Section 30(c) – substantial prejudice to the effective conduct of public affairs [in relation to communications/meetings with external stakeholders]

An exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to some of the information requested. It is essential for officials to be able to communicate, often in confidence, with external stakeholders on a range of issues, including discussions with NHS Boards regarding the use of independent sector providers to support treatment of patients. Disclosing the content of these communications, particularly without the consent of the stakeholder, would be likely to undermine their trust in the Scottish Government and would substantially inhibit communications on this type of issue in the future. These stakeholders would be reluctant to provide their views fully and frankly if they believed that their views were likely to be made public, particularly while these discussions were still ongoing and related to a sensitive or controversial issue such as treatment plans for patients. This would significantly harm the Government’s ability to carry out many aspects of its work, and could adversely affect its ability to gather all of the evidence it needs to make fully informed decisions.

This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption. We recognise that there is a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. However, there is a greater public interest in allowing Ministers and officials a private space within which to communicate with appropriate external stakeholders as part of the process of exploring and refining the Government’s position on independent sector providers to treat NHS patients, until the Government as a whole can adopt a position that is sound and likely to be effective. This private space is essential to enable all options to be properly considered, so that good decisions can be taken based on fully informed advice and evidence, such as that provided by NHS Boards. Premature disclosure would be likely to undermine the full and frank discussion of issues between the Scottish Government and these stakeholders, which in turn would undermine the quality of the decision making process, which would not be in the public interest.

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at http://www.gov.scot/foi-responses.

FOI 202300368903 - Information Released - Annex

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44 page PDF

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