Care home and 'care at home' service providers - FOISA extension: consultation

1. Ministerial foreword:

For over 20 years the statutory rights to information provided by the Freedom of Information (Scotland) Act 2002 (FOISA) and the Environmental Information (Scotland) Regulations 2004 have formed the bedrock of our commitment to transparency in government and public services in Scotland. The Scottish Government is determined that these should be effective in providing access to information about all public services – especially those which meet people’s most critical needs.

Since 2013 this government has extended FOI rights in a number of areas not originally covered by the legislation. In 2019 the law was extended to Registered Social Landlords in recognition of the important services they deliver, and the impact of these services on people’s lives.

This consultation seeks views on whether the rights and obligations of FOI law should now, and where possible, similarly be extended to private and third sector (i.e. voluntary and not-for-profit) operated care home and ‘care at home’ services, in recognition of the importance and impact of the services they deliver.

There can be no doubt that care home and ‘care at home’ services do indeed provide services of the utmost importance for people and communities in Scotland, including for some of our most vulnerable citizens. For that reason, the Scottish Government has been clear that it sees a case in principle that these services may be considered to be public functions, and that statutory FOI obligations should therefore be extended to private and third sector providers of such services. Doing so would bring the transparency obligations of those providers into line with those of public sector providers of similar services e.g. local authority run services.

This consultation will help to inform our detailed assessment of whether, and when, providers of these services can be understood to be delivering public functions. Subject to the outcome of that assessment, it will also inform our decisions on whether, and in what fashion, we should exercise the power to extend. This government recognises the significant pressures that the social care sector is facing at the current time in Scotland, and the need to take account of these as we approach the question of how and whether these rights and obligations should be extended to private and third sector providers.

That is why we hope as many people as possible will engage with this consultation. First and foremost, we want to hear the views of people who rely on care home and ‘care at home’ services for their own care, their friends and family and the wider community. Our decisions about the scale and pace of any future roll out of FOI in the sector must be informed by their perspectives on how and whether extension of FOI law would help them to access information and better scrutinise and understand these services.

We also need to hear the views of people who work in and with the sector, and from the provider organisations themselves. To be most effective, any future roll out of FOI will need to take place in partnership with the sector, taking its needs into account.

The Scottish Government has engaged with a number of individuals and organisations with interests in the sector and in transparency in the preparation of this consultation document. The launch of the document marks an important next step in the journey, and we hope it will provide a useful means by which all with an interest in the sector can contribute their views.

Graeme Dey MSP

Minister for Parliamentary Business and Veterans

Tom Arthur MSP

Minister for Social Care and Mental Wellbeing

Natalie Don-Innes MSP

Minister for Children, Young People & The Promise