NHS use of independent sector providers: FOI release

Information requested

Please provide any correspondence between the Scottish Government and NHS board Chief Executives and/or Finance Directors regarding boards’ use of independent sector providers.

Please provide correspondence from 1st January 2024 to present. Please provide each piece of correspondence in full.

Response

In line with your previous FOI request of 28 July 2023 (202300368903), we have interpreted this request as relating to planned care and to the use of the independent sector generally. The costs of locating, retrieving and providing the information requested would exceed the upper cost limit of £600 if an otherwise broader approach was taken that encompassed correspondence relating to the entirety of the NHS system and specific providers.

If you would like to request correspondence between the Scottish Government and NHS board Chief Executives and/or Finance Directors regarding boards’ use of independent sector providers in relation to other parts of the NHS system, you may wish to consider reducing the scope of your request in order that the costs can be brought below £600.

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 an exemptions under sections 30(b)(ii) – free and frank exchange of views for the purposes of deliberation, 33(1)(b) (commercial interests) and 38(1)(b) (personal information) of FOISA applies to that information. The reasons why these exemptions apply are explained in the Annex to this letter.

ANNEX A

Section 30(b)(ii) – free and frank exchange of views for the purposes of deliberation [in relation to communications/meetings with external stakeholders]

An exemption under section 30(b)(ii) of FOISA (free and frank exchange of views) applies to some of the information requested. This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank exchange of views for the purposes of deliberation. This exemption recognises the need for officials to have a private space within which to discuss issues and options with external stakeholders before the Scottish Government reaches a settled public view. Disclosing the content of these discussions with NHS Boards which detail proposed funding figures for deliberation will substantially inhibit such discussions in the future, because these stakeholders will be reluctant to provide their views fully and frankly if they believe that those views are likely to be made public.

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 funding proposals from NHS Boards until the Government as a whole can adopt a decision 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 Tayside. Premature disclosure is likely to undermine the full and frank discussion of issues between the Scottish Government and these stakeholders, which in turn will undermine the quality of the decision making process, which would not be in the public interest.

Section 33(1)(b) – commercial interests

An exemption under section 33(1)(b) of FOISA (commercial interests) applies to some of the information requested. This exemption applies because disclosure of this particular information would, or would be likely to, prejudice substantially the commercial interests of independent sector suppliers. Disclosing this information would be likely to give independent sector competitors an advantage in future similar tendering exercises, which would substantially prejudice the suppliers’ ability to submit competitive tenders and so could significantly harm their commercial business.

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 and transparent government, and to help account for the expenditure of public money. However, there is a greater public interest in protecting the commercial interests of companies which tender for, or enter into, NHS contracts, to ensure that we are always able to obtain the best value for public money.

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. the 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.

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 202400410803 - Information Released - Annex

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