Commentary on Provisions
Gathering and use of information
Section 13: Further power to require information in a formal investigation
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).
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