Patient Safety Commissioner for Scotland Act 2023

Gathering and use of information

12 Power to require information

(1) The Commissioner may require a person to which subsection (4) applies to supply the Commissioner with information that—

(a) is in the person’s possession or control,

(b) may be relevant to the work of the Commissioner,

(c) is not information of a kind that the Commissioner is prohibited by subsection (3) from requiring the person to supply.

(2) A requirement under this section is imposed on a person when the Commissioner gives the person written notice specifying—

(a) the information that the person is required to supply,

(b) the way in which the person is required to supply it, and

(c) either—

(i) the time by which the person is to supply it, or

(ii) the period throughout which the person is to supply it and the intervals within that period at which it must be supplied.

(3) The following are the kinds of information that the Commissioner is prohibited from requiring a person to supply under this section—

(a) information that the person would be entitled to refuse to provide in proceedings in a court in Scotland,

(b) information about an individual (whether or not it is anonymised).

(4) This subsection applies to a person who is—

(a) a health care provider,

(b) a body constituted by virtue of the National Health Service (Scotland) Act 1978.

(5) In this section, “information” includes unrecorded information.

13 Further power to require information in a formal investigation

(1) When carrying out a formal investigation under section 8, the Commissioner may require any person to supply information that—

(a) is in the person’s possession or control,

(b) may be relevant to the investigation, and

(c) is not information that the person would be entitled to refuse to provide in proceedings in a court in Scotland.

(2) But the Commissioner may only impose a requirement to supply information under this section if the Commissioner is satisfied that requiring the information to be supplied is proportionate to the seriousness of the issue being investigated.

(3) A requirement under this section is imposed on a person when the Commissioner gives the person written notice specifying—

(a) the information that the person is required to supply,

(b) the way in which the person is required to supply it, and

(c) the time by which the person is to supply it.

(4) The Commissioner may require a person to supply information under this section whether or not—

(a) the Commissioner stated in a formal investigation’s terms of reference that the Commissioner expected to need access to the information,

(b) the Commissioner took steps to bring the investigation’s terms of reference to the person’s attention in accordance with section 8(2)(a).

(5) The Commissioner’s power to require a person to supply information under this section is without prejudice to the Commissioner’s power to require a person to supply information under section 12.

(6) In this section, “information” includes unrecorded information.

14 Failure to supply required information

(1) The Commissioner may take the action mentioned in subsection (3) or (4) (or both actions) where—

(a) a requirement to supply information has been imposed on a person by a written notice under section 12 or 13, and

(b) the person refuses, or fails without reasonable excuse, to supply the information in accordance with the terms of the notice.

(2) The Commissioner may take the action mentioned in subsection (4) where—

(a) a requirement to supply information has been imposed on a person by a written notice under section 12 or 13, and

(b) the Commissioner suspects the person has deliberately altered the information.

(3) The Commissioner may publicise the person’s refusal, or failure, to supply the information.

(4) The Commissioner may report the matter to the Court of Session.

(5) After receiving a report under subsection (4), and hearing any evidence or representations on the matter, the Court may (either or both)—

(a) make any order for enforcement that it considers appropriate,

(b) deal with the matter as if it were a contempt of court.

15 Confidentiality of information

(1) A person mentioned in subsection (3) commits an offence if the person knowingly or recklessly makes an unauthorised disclosure of information that—

(a) has been obtained by or on behalf of the Commissioner for the purposes of exercising the Commissioner’s functions,

(b) is not, and has not been, in the public domain when the disclosure is made.

(2) A disclosure of information is authorised for the purpose of subsection (1) in so far as it is—

(a) made with the consent of the person from whom the information was obtained,

(b) necessary for the purpose of enabling, or assisting, the exercise of the Commissioner’s functions,

(c) made for the purpose of legal proceedings, whether civil or criminal (including for the purposes of investigating an offence or suspected offence),

(d) made for the purpose of assisting one of the following persons in exercising their statutory functions—

(i) Healthcare Improvement Scotland,

(ii) the Commissioner for Patient Safety in relation to England, which is an office established by section 1 of the Medicines and Medical Devices Act 2021,

(iii) the Scottish Public Services Ombudsman,

(e) required by an enactment or rule of law.

(3) The persons referred to in subsection (1) are—

(a) the Commissioner,

(b) a member of the Commissioner’s staff,

(c) a member of the advisory group established in accordance with section 16,

(d) an agent of the Commissioner.

(4) A person who commits an offence under subsection (1) is liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum,

(b) on conviction on indictment, to a fine.