28.Section 12 empowers the Commissioner to require certain persons to supply information to the Commissioner. Those persons are providers of health care, including independent health care providers, and bodies constituted by virtue of the National Health Service (Scotland) Act 1978. The latter group includes Scottish NHS bodies which have functions relating to health care but which do not provide health care directly themselves (such as Healthcare Improvement Scotland and Public Health Scotland). Failure to supply requested information may result in the Commissioner taking action under section 14.
29.The Commissioner’s power under section 12 cannot be used to require a person to supply information about individuals. The power could be used, for example, to require a health care provider to supply details of its protocols and procedures for dealing with a particular type of incident. But it could not be used to access the medical records of patients, or the personnel information of staff, involved in a specific incident of that type. In order to access information about individuals, the Commissioner would have to exercise the power conferred by section 13 in the context of a formal investigation.
30.The Commissioner’s power under section 12 also cannot be used to require a person to supply information that the person could not be compelled to give in court. This means, for example, a person cannot be required under section 12 to answer questions that may incriminate the person in the commission of a crime.
31.The Commissioner’s power to require information under section 12 is limited in that it can only be used to impose requirements to supply information on health care providers and bodies constituted by virtue of the National Health Service (Scotland) Act 1978. The latter group includes Scottish NHS bodies which have functions relating to health care but which do not provide health care directly themselves. It cannot be used to require the supply of information about individuals. Section 13, by contrast, allows the Commissioner to require anyone to supply information (not just the persons specified in section 12), and it allows the Commissioner to require that a person supply information about individuals. As with a failure to supply information requested under section 12, the Commissioner may deal with a failure to supply information requested under section 13 by taking action under section 14.
32.The Commissioner’s power under section 13 is limited in that it can only be exercised in the context of a formal investigation that has been initiated in accordance with section 8. In preparing the terms of reference for a formal investigation, the Commissioner is required to provide information about the access to individuals’ information that the Commissioner expects to need in the course of the investigation (see section 9). And on launching a formal investigation, the Commissioner must bring its terms of reference to the attention of anyone upon whom the Commissioner expects to impose a requirement to provide information under section 13. The fact that the Commissioner did not anticipate needing particular information when producing the terms of reference for an investigation does not, however, prevent the Commissioner from requiring that the information be supplied during the course of the investigation and nor does the Commissioner’s not bringing the investigation’s terms of reference to a person’s attention preclude the Commissioner from imposing a requirement on the person to supply information (see section 13(4)).
33.The Commissioner’s power to require a person to supply information under section 13 is further constrained by:
subsection (2) of that section, which requires the Commissioner to be satisfied that requiring the person to supply the information is proportionate to the seriousness of the issue under investigation, and
subsection (1)(c), which prevents the Commissioner from requiring a person to supply information that the person could not be compelled to provide in court (see paragraph 30 above).
34.Section 14 sets out the actions the Commissioner may take where a person who was required to supply information under sections 12 or 13 and has refused to supply or failed to do so without reasonable excuse.
35.The actions available to the Commissioner in such circumstances are to publicise the person’s refusal or failure to supply the information and/or to report the matter to the Court of Session.
36.The Commissioner may report the matter to the Court of Session where a requirement to supply information has been imposed on a person by a written notice under section 12 or 13 and the Commissioner suspects that that person has deliberately altered the information.
37.After receiving a report and hearing any relevant evidence or representations, the Court may (either or both) make an order for enforcement as it considers appropriate and/or deal with the matter as if it were a contempt of court.
38.Section 15 contains a confidentiality provision that covers: the Commissioner (including any former Commissioners), the Commissioner’s staff (or past staff), a member of the advisory group established under section 16 (or a former member) and an agent (or former agent) of the Commissioner. These persons would be guilty of an offence if they knowingly or recklessly disclose information which has been obtained in the course of the Commissioner’s activities, and which is not at the time of disclosure, and has not previously been, in the public domain. Accidental disclosure of confidential information (unless as a result of recklessness on the part of the discloser) would not therefore constitute an offence under this provision.
39.There are exceptions set out in subsection (2) under which disclosure is authorised where it is made, for example, with the consent of the person from whom the information was obtained, or where it is necessary for the purposes of exercising the Commissioner’s functions, or where it is made for the purposes of legal proceedings (whether criminal or civil – and including the purposes of the investigation of any offence or suspected offence) or assisting Healthcare Improvement Scotland, the Commissioner for Patient Safety in relation to England or the Scottish Public Services Ombudsmen in exercising their statutory functions.
40.A person who commits an offence is liable to a fine on summary conviction or conviction on indictment. The fine on summary conviction is up to the statutory maximum, which is defined in schedule 1 of the Interpretation and Legislative Reform (Scotland) Act 2010 as the prescribed sum under section 225(8) of the Criminal Procedure (Scotland) Act 1995 (currently £10,000). The maximum fine on indictment is unlimited.