The Scottish government has launched a consultation on widening freedom of information (FOI) legislation to cover private and third sector organisations running care homes and care at home services. Ministers say there is a ‘good argument’ for the move but have not said if there is evidence that the current arrangements have been causing problems for care users and their families. Scottish Care says the proposals do not seem practical or proportionate.

The Freedom of Information (Scotland) Act 2002 (FOISA) created a legal right for people to access information held by Scottish public authorities as a way to open up government and public services to greater scrutiny. It also set clear duties on those bodies to publish information proactively. Those covered under the Act can refuse some requests for exempted information, and there is an independent appeals process for people whose requests have been turned down.

The Scottish government says GPs, dentists, opticians and pharmacists have been subject to FOISA in relation to their provision of NHS services since the law came into force in 2005. Since then, FOISA has been extended to arms-length bodies established by local authorities, independent and grant aided schools and registered social landlords.

A consultation has now been launched seeking views on extending FOISA to private and third sector providers of care home and care at home services.

The government says it has been working with an advisory group since early last year on the proposals.

Commenting on the launch of the consultation, Minister for Parliamentary Business Graeme Dey MSP said:

“There is a good argument that these services can be considered to be public functions, and that statutory FOI obligations should therefore be extended to private and third sector providers in this area. Doing so would put the same obligations on those providers to be open and transparent that we already place on public sector providers of similar services, such as local councils.”

Healthandcare.scot asked the government for the background to the proposals to extend FOI to care services.

Social Care Minister, Tom Arthur MSP told us:

“We are pursuing this change because we believe FOI rights should provide an effective route to seek information about all public services.

“Care home and ‘care at home’ services are vitally important for people and communities across Scotland and are often supported by significant public funding.”

Asked whether there is evidence that users and their families are being denied access to the information they seek under existing arrangements, a spokesperson responded:

“Organisations have called for the extension of FOI law to private and third sector care providers to improve accessibility of information and address differences in rights to information between services delivered in and outside the public sector.

“The former Scottish Information Commissioner also recommended the Scottish government consider extending the legislation to health and social care services.”

New burdens

The organisation representing independent care providers in Scotland, Scottish Care, says it is encouraging its members to look at the proposals and submit responses.

In a statement to healthandcare.scot, Scottish Care said:

“Scottish Care supports transparency and accountability as fundamental to high-quality, rights-based care. The sector already operates under robust regulation and reporting through bodies such as the Care Inspectorate, SSSC and Healthcare Improvement Scotland.

“However, we do not believe extending FOISA to independent providers is practical or proportionate. This approach risks creating significant administrative and financial burdens, particularly for small, community-based organisations, and could divert resources away from frontline care.

“We have written to the Scottish government to outline these concerns and to urge that improvements to openness build on existing mechanisms rather than imposing additional bureaucracy that may compromise sustainability and quality.”

The Scottish Care statement adds:

“It is vital that any decision reflects the realities of service delivery and safeguards the ability to provide high-quality, person-led care.”

Plea for partnership

Ministers say they want to hear the views of people who rely on care services for themselves, their friends and families, and those working in the sector and care providers.

Mr Dey added:

“This government recognises the significant pressures that the social care sector is facing and, to be effective, any future roll-out of Freedom of Information will need to take place in partnership with the sector, taking this into account. Therefore, I hope as many people as possible will engage with this consultation.”

The consultation closes on 30 March, four days after the Scottish parliament session concludes ahead of the Holyrood election. The decision whether to take the proposals forward will therefore rest with the next Scottish government.

Holyrood is already considering a separate Freedom of Information Reform Bill introduced by Labour MSP and former trade union lawyer, Katy Clark.

A Scottish government spokesperson said the moves to extend FOI provisions to care providers are unrelated to that bill.

If you have any views on the proposal to extent FOI, or wish to comment on operational aspects of responding to FOI requests, please email us at editorial@healthandcare.scot. Please note that, although we can publish feedback anonymously, you do need to let us know who you are.

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