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

4. Supporting the roll out of any extension

This chapter presents respondents' views on what support care providers would benefit from when discharging their obligations under FOISA, what would be helpful for people who use care services or members of the public to assist them when requesting information, and what categories of information people might request through FOISA.

The consultation document sets out that providers would be required to adopt the Scottish Information Commissioner’s Model Publication Scheme to make certain classes of information proactively available, where such information is held. Readers are referred to the consultation document for more details on these. Providers would also be required to provide the relevant information wherever possible, within 20 working days and would have a duty to advise and assist the requester to help them obtain the information they seek.

Q7. What would be most helpful to assist care providers in discharging their obligations under FOISA?

Three quarters of all respondents commented at Q7. The most prevalent themes, all mentioned by many respondents across organisational types and individuals, were that official guidance, training and support, and templates would assist care providers to discharge their obligations under FOISA.

Guidance

Clear guidance was called for by many respondents to help care providers fulfil their obligations under FOISA. A range of suggestions was made regarding what areas this should cover. These included:

• Sector-specific guidance: for different sizes and types of providers, such as small services or children and young people’s services.
• Clarity on scope: included elements; how exemptions should be applied; types of information that can be provided, e.g. defining ‘publicly funded’ and the boundary between contracted service delivery and independent operations.
• Clarity on links with other arrangements such as data protection legislation, subject access requests, regulatory requirements, and Environmental Information (Scotland) Regulations 2004.
• Processes: to respond to FOI requests effectively, such as how to triage and prioritise requests; redaction protocols; standard retention and disposal schedules and record-keeping responsibilities; duties to provide advice and assistance under section 15 of FOISA (following the guidance of the section 60 Code of Practice). Providing clarity in these areas was felt to aid consistency of approach.

“Clear and practical guidance from the Scottish Information Commissioner, developed specifically for the care sector, with worked examples relevant to the types of information requests care providers are likely to receive. This should distinguish clearly between FOI requests (for non-personal information about the provider's operations) and subject access requests under data protection law (for personal data about individuals). In our experience, providers already struggle with this distinction - our family has encountered a care provider that conflated a straightforward request for its own policies with a subject access request process, causing months of unnecessary delay.” – Individual

“There was strong consensus on the importance of co-produced, sector-specific guidance that clearly sets out what information falls within scope, how any exemptions should be applied in practice, and how FOISA interacts with existing regulatory and data protection requirements. Providers stressed the need for practical operational guidance rather than high-level interpretation, alongside templates, shared tools and clear routes for advice and support that are tailored to the realities of social care delivery.” – The Health and Social Care Alliance Scotland (the ALLIANCE)

Training and support

A wide range of suggestions were made by many respondents about the type of training and support that care providers would benefit from. It was felt that existing public sector resources could be shared with the private and third sector, that comprehensive, funded training was necessary, and that the Scottish Information Commissioner, SSSC or Scottish Government could provide training and support.

These respondents felt staff should receive training, with suggestions for who this should be targeted at, including all staff, social care staff, managers / senior staff and providers. Topics for training mentioned by respondents were similar to those mentioned in the guidance theme above, such as rights and responsibilities of providers and those making FOI requests, and data protection requirements, including how to protect people’s identities. Respondents suggested that training should be free of charge and delivery could be in the form of short online modules, webinars, extended induction and peer support.

“If FOISA is extended to private and third care providers, the social care workforce will need to receive adequate training and support. The public sector has well-developed training resources to enable their workforce to understand and comply with FOISA. It may be helpful for these resources to be shared with care providers to enable a smooth transition. There may be a role for the SSSC here in supporting the workforce in their professional development related to FOISA. Public sector care providers may also be able to share learning related to which types of information members of the public are likely to ask for.” - SSSC

“Data Protection Officers should provide 'plug-in' data recording services and training to allow especially smaller and startup companies to create a boilerplate infrastructure for storing data that may be requested under FOISA, for pro-actively publishing such data in line with best practice guidelines and in the management of staff responsible for responding to FOI requests.” - Common Weal

Practical support or suggestions for practical resources to enhance infrastructure were called for by several respondents. These included ideas such as technological solutions, website and publication support, records management support, an online resources hub, support to representative organisations, access to data protection officers, support with collaborative arrangements, support to reduce administrative burden or bureaucracy and protections from excessive or vexatious FOI requests. For instance, two respondents called for a limit on the number of requests that any one entity could make. Some respondents requested realistic timescales in which they could respond to requests, particularly for smaller organisations.

“Overall, members stressed that for FOISA to be successfully extended, providers must not be left to navigate the requirements alone. A combination of national guidance, practical toolkits, accessible training, opportunities for shared or pooled expertise, and proportionate support for smaller services would be essential in helping providers meet their obligations without compromising their capacity to deliver high-quality care.” - Social Work Scotland

Templates

The provision of templates, including model publication schemes tailored to care providers, was recommended by many respondents. Suggestions were made that indicated templates could cover the same type of information raised in the above theme on guidance, such as what information should be disclosed. Other suggestions include template response letters, refusal notices, policies and procedures and internal logs.

“Templates to support the development of policies and procedures in compliance with s.60 code of practice would also be helpful.” - ARA

Funding and resources

Many respondents, almost half of whom were care providers, also called for more resources for care providers to assist them in complying with a FOISA extension. There was considerable overlap with this theme, which was written up in Chapter 2 on the cost considerations. It was felt that more resources would support transitional and ongoing costs, such as helping build capacity, paying for training or specialist advice, and costs associated with responding to requests. Other suggestions included that:

• Resources could be shared across organisations.
• Resources could be included in commissioning contracts.
• The Scottish Government could provide the Scottish Parliament with estimates of the future costs of FOISA duties for social care third sector providers.
• The Scottish Government could set duties to monitor any resources allocated for this purpose, either itself or through a public body such as the Scottish Information Commissioner.

Consider implementation

The need to consider providing transitional support to care providers was raised by several respondents at Q7. However, comments on how respondents felt FOISA should be extended were left across multiple questions and have been incorporated here to minimise repetition. It was felt important to consider how best it should be implemented so as not to destabilise services on which vulnerable people depend.

Suggestions for how the FOISA extension should be introduced included:

• Centring equality considerations during implementation, such as undertaking an Equality and Human Rights Impact Assessment as early in the policy development process as possible and ensuring it is kept under review as the policy moves into implementation.
• Engaging with stakeholders to help determine how FOISA could operate.
• Designing FOISA to make sure rights are accessible, safe and easy to exercise in real-life situations. For instance, implementing it in a way that recognises many carers are already navigating complex systems, balancing multiple roles and advocating for people with significant care needs.
• Introducing the FOISA extension in a phased manner, for instance:
  • Initially limiting the scope of FOISA to a limited set of information or areas to which requests could relate.
  • Providing sufficient time and resources to build capacity, implement and test processes and guidance.
  • Adjusting arrangements based on operational experiences.
  • Embedding flexibility around response timescales.
  • Exempting smaller providers.
• Avoiding duplication of roles of other organisations, such as the Care Inspectorate and SSSC.
• Requiring organisations to designate a senior manager with responsibility for compliance, in line with the section 60 code of practice for the Freedom of Information Act 2002.
• Adopting a proportionate approach, such as to the size, nature and governance of providers, for instance:
  • Ensuring it is simple and workable.
  • Embedding flexibility around response timescales.
  • Exempting smaller providers.

For example, one individual suggested that requests could only be for a specified limit of questions, or organisations could be required to publish certain information on their website to reduce administrative requirements.

“Our strong recommendation is that to the extent an important public ‘need’ for relevant missing information has been identified (and which cannot be addressed through existing arrangements and rights), this is agreed with provider organisations. The agreed details can then be proactively published (either by the organisations or existing public authorities) with requesters asking for such details to be directed to them and no other details to be accessible. This could be done without the disproportionate impact and regulatory and costs burdens of making each private organisation a whole or hybrid FOISA public authority.” - Boclair Care Home

Provide advice or legal support

A range of suggestions was made by some respondents who felt advice, including legal advice, could be offered to providers. This could be provided through a centralised advice service, such as through a helpdesk, or ongoing advice provided by the Scottish Government, Scottish Information Commissioner or Scottish Care. Other suggestions included a liaison function or mentoring, someone to review responses initially to ensure suitability or to clarify obligations, providing FAQs and regular updates and disseminating best practice. Two respondents suggested that public bodies could disseminate information about the number of FOI requests typically received, to help care providers anticipate the volume of such requests.

Monitor or scrutinise care providers

The need to show evidence or monitor arrangements was highlighted by some respondents. These suggestions included providing proof of compliance by providers, requiring providers to meet core standards and monitoring these to ensure they are met, and providing proof of identity by the person making the request. An individual felt sanctions should be applied where evidence of non-compliance was found but did not specify the nature of potential sanctions.

Ways services could be monitored suggested by respondents included via the Care Inspectorate, either by annual returns or in pre-inspection data collection, requiring streamlined documentation containing standards that were subject to regular audit, setting clear expectations and standards for public sector commissioners to monitor resources allocated to contracted services and monitoring the allocation of resources through the Office of the Scottish Information Commissioner.

“Perhaps publish (redacted where appropriate) requests and responses. And perhaps proof of identity from the person making the request, as well as reasonable grounds for making the request.” – Individual

Q8. What would be most helpful to people who access social care and other members of the public to enable them to access their rights under FOISA?

Almost three quarters of all respondents left a comment at Q8. The most prevalent themes were information provision, guidance and awareness-raising campaigns.

Provide information to people

Providing people with information about their rights was advocated by many respondents. In addition, it was noted that where sufficient information about care services was freely available, this could reduce the need to make FOI requests or that members of the public needed access to information irrespective of FOIs. Clear information provision, either proactively delivered about care services or to raise awareness of the FOI process, was also seen as having the benefit of reducing misunderstandings and ensure people had realistic ideas of what could be provided. Co-producing information with people who use care services was recommended by one respondent.

Topics suggested for inclusion in any information provision encompassed:

• People’s rights and how to exercise these.
• What information can and cannot be requested, with reasons for this, e.g. to explain why certain information is excluded and would be redacted or not provided.
• What people could expect from an FOI request, such as responses within a certain timescale.
• Clarity on how FOISA relates to other provisions such as subject access requests, GDPR, advocacy, complaints processes or which bodies to direct concerns or issues to, such as the Care Inspectorate, local authorities and other regulatory bodies.
• Ways to request information, with contact details.
• The duty on organisations to ‘advise and assist’.
• What to do if dissatisfied, for instance, with a clear appeal template provided.
• Broader topics relating to care providers where people may benefit from more information included: service quality, performance, funding arrangements, and decision-making.

Suggestions for how such information should be provided included in leaflets, newsletters, training, publication schemes, websites, public notice boards and via the office of the Scottish Information Commissioner. Some felt standardised forms or templates would be helpful, such as a template request with drop-down choices of the type of information sought or linked to subject access requests guidance. One support / advice provider suggested that free legal resources could be provided by the Scottish Government.

Some respondents felt providing information in locations where people who use care services are likely to be was important, such as at the point of entry into care services or in service agreements and care plans. A few called for a short, simple statement publicised in accessible locations.

“From personal experience, the greatest barrier to obtaining information from a care provider is not knowing what rights exist or what mechanisms are available. We spent months making informal requests, chasing responses, and escalating through correspondence before resorting to a Freedom of Information request to the commissioning local authority - which could only provide information the authority itself held, not information held by the provider. Had FOISA applied to the provider, and had we known that from the outset, the process would have been fundamentally different.” – Individual

“Often, the largest barrier to the public for the submission of FOI requests is to work out who to send the request to. Local Authorities could provide a central access portal for all FOI requests (similar to the one maintained by the Scottish Government or by the English charity "What Do They Know" where staff are able to direct FOI requests to the appropriate data-holder). The central access portal should also maintain a library of all FOI request responses as well as a database of proactively published data for all providers within the Local Authority.” - Common Weal

Provide clear guidance

Several respondents felt clear guidance should be provided that would assist people in requesting FOIs, with suggested topics similar to those mentioned in the theme above. One respondent recommended that a national Publication Code should ensure that providers publish core details such as service descriptions, fees, performance data, complaint procedures and inspection outcomes.

Awareness-raising campaigns

The need to raise awareness through publicity campaigns was mentioned by several respondents. These comments typically emphasised the importance of promotion, though typically further detail was not provided. Where details were given, these included suggestions such as running media campaigns through radio or television and social media, written leaflets sent to all those needing a care service, posters in shops, care services, service websites, GP surgeries and pharmacies.

Focus on accessibility

Ensuring accessibility for people with diverse needs was mentioned by several respondents. Calls were made for accessible information, such as in plain language, Easy Read, minority languages and available in multiple formats, including verbally, digitally, braille and paper based. It was felt that this would benefit disabled people, older people, those from minority groups and those with limited digital access. One membership / representative body highlighted one of its campaigns, which called for accessible communication to be embedded as a basic standard across all areas of health and social care.

“Information should be available in plain English and in accessible formats, recognising that many people who use social care services may have communication needs or disabilities.” - Clinical 24

Provide advocacy support

The need for enhanced or comprehensive advocacy support was called for by some respondents. This was recommended to enable people to realise their rights, recognising that many individuals who may wish to make an FOI request may lack capacity or have complex needs. The need for additional resourcing, in light of existing constraints in such services, was highlighted by these respondents.

“There was strong emphasis on the need for clear signposting to accessible and available independent advocacy and advice, particularly for those who lack capacity, have additional communication needs or are navigating complex and emotionally difficult situations. This must also be supported by sustainable funding for the independent advice and advocacy sector, to ensure that an already under-resourced system is not placed under further strain by increased, unfunded demand.” - The Health and Social Care Alliance Scotland (the ALLIANCE)

Person-based support

Some respondents felt support from another person would be helpful, with signposting to forms of information, advocacy and support the most mentioned role. A few respondents suggested specific post holders to help people navigate the process, such as a named FOI lead or dedicated officer within services, or a client liaison officer based in Health and Social Care Partnerships.

Transparent and consistent processes

The need for clear and consistent processes was mentioned by some respondents, and some others felt there should be transparency around FOISA or obtaining information. Straightforward and consistent processes were recommended to avoid confusion, minimise misdirected or inappropriate requests and build trust in the system. Similarly, a culture of openness was recommended to reduce the need for formal FOI requests, avoid secrecy, and create a more positive experience for people (see also Q13 for more detail on transparency).

Q9. What categories of information relating to the work of care home and ‘care at home’ services would people be most likely to seek?

Almost seven in ten of all respondents left a comment at Q9 on categories of information people may be most likely to seek through a FOI request. The consultation document makes clear that exemptions exist within FOISA to protect personal information. Therefore, information directly related to an individual would likely be exempt from disclosure under FOISA. Individuals can access their own personal data through subject access rights under data protection legislation. However, some respondents highlighted that personal records may be sought, and readers are advised that where such information is mentioned, release would generally not be possible through FOISA.

A wide range of categories were suggested, with the most prevalent being that staffing information, financial and contractual information and complaints / incidents / safeguarding information would be most commonly sought.

Staffing information

Many respondents felt people would most likely seek information on staffing through FOI requests. Such information could include:

• Staffing levels, staff to resident ratios, rostering.
• Staff turnover, number of unfulfilled vacancies.
• Staff sickness absence levels.
• Supervision arrangements.
• Qualifications, training and registration status.
• Diversity.
• Pay rate.
• Staffing structures and roles.
• Whether other work is undertaken, as well as the caring role.
• Driving license, insurance, MOT if staff member drives as part of their role, whether staff are paid for travel time.
• Number of staff trained in child or adult protection and physical restraint.
• Number of managers, number of registered managers.
• Staff suspensions, disciplinary actions.
• Number of locally employed staff.
• Levels of violence experienced by staff at work.
• Lone working policy.

“As the largest trade union representing workers in the care sector, we would certainly be asking questions related to levels of violence at work experienced by staff, staffing levels on shifts, number of unfilled vacancies and similar inquiries that are routinely available from public sector employers.” - UNISON Scotland

Financial and contractual information

The second most prevalent theme was that many respondents felt financial information would be sought in FOI requests. These issues covered topics such as:

• Contractual arrangements, costs of services and service delivery models.
• Contributions from clients, total income from clients towards their care, how much is paid for free personal nursing care and free personal care for self-funders, and how much public funding is received.
• Audited accounts, annual turnover.
• Profit levels by placement or in total, dividends, financial viability, and expenditure.
• Charging arrangements, cost per bed fee structures.
• Budgets.
• How funding is used, costs spent on agencies.
• Procurement.
• How much is spent on fundraising.

Complaints / incidents / safeguarding

The next most prevalent theme, also raised by many respondents, was that FOI requests could relate to complaints, incidents or safeguarding. These included:

• Patterns or numbers of adverse or critical incidents, accidents, falls, or out-of-hours care.
• Number and nature of complaints, complaints upheld, assaults or sexual or racial harassment, and duty of candour reports.
• Death rates, deaths in service.
• Processes followed for complaints and investigations, e.g. timescale, outcomes.
• Policies on safeguarding, complaints, whistleblowing, and risk management.

“Where concerns arise relating to an actual or perceived service failure, for example, requests may potentially seek access to information on … Details of the number and nature of any related incidents that may have arisen – i.e. helping to answer questions about whether a particular incident was a ‘one-off’, or whether it may indicate a more systemic issue, or otherwise be a cause for wider concern.” - Scottish Information Commissioner

Performance or quality information

Several respondents felt information relating to the quality, standards or performance of care would be sought by those making FOI requests. Suggested areas included:

• Quality: Quality measures or indicators, service quality, quality assurance outcomes, quality improvement practices.
• Standards: Standards and conditions of care, how services are monitored or inspected, compliance, staff conduct standards.
• Performance data and documentation: outcomes for supported people, value, numbers supported, safety, wait times, etc. This also includes inspection findings (see theme below ‘Information on regulatory matters’).

“Finally, people increasingly want to see evidence of outcomes, including performance against outcomes-based frameworks, user experience data, and findings from external reviews. People accessing social care services generally look for information that helps them understand quality, safety, and value. They want clear, comparable details on service performance, such as Care Inspectorate findings, complaints outcomes, staffing levels and qualifications—to assess whether standards are being met and how concerns are handled.” - Turning Point Scotland

Information on regulatory matters

The likelihood of FOI requests being about regulatory matters was anticipated by several respondents. These included people seeking information about:

• Inspection outcomes and quality ratings.
• Regulatory compliance, responses to Care Inspectorate findings.
• Required improvement actions or sanctions.
• Regulatory correspondence, e.g. notifications made to or received from regulatory bodies in relation to the service.

Operational policies and matters

• Operational policies or matters were felt likely by several respondents to generate FOI requests. In addition to policies or practices mentioned elsewhere in this question, these included: promoting positive behaviour, use of restrictive practices, dignity, moving and handling, confidentiality, care planning, access to hospital / palliative care / hospice, number of 999 calls over a period, assessment waiting times, record keeping, data protection and equality duties.

Information about an individual’s care

As noted in the introduction to this question, exemptions exist within FOISA to protect personal information, so this section should be read bearing that in mind.

• Gaining access to an individual’s care plans or information was suggested by several respondents as another key piece of information that could be sought. This included:
• Care plans.
• Diaries, observation sheets, and notes relating to nutrition, hydration, and personal care.
• Whether any clients are immunocompromised and those with known infections.
• Contact records.
• Packages of care, e.g., the largest package.
• Policies relevant to the care of an individual.

“Members reflected that, where people have concerns about the care of a loved one, they may request information relevant to the issue they are raising, such as records relating to incidents, staffing levels, or organisational policies. In these cases, individuals usually focus on information directly linked to the circumstances they are querying, much as they would when making a complaint.” - Social Work Scotland

Some other respondents highlighted that medication may also be a topic of interest to people, such as medicine administration records and charts, administration errors, dispensing policies and medication management.

Facilities and health and safety

Several respondents felt that FOI requests may relate to health and safety or facilities-related enquiries. Issues here included:

• Infection control and prevention policies, infection rates.
• Environmental information, e.g. heating, lighting, air quality, cleanliness.
• Building conditions, physical environment, or plans for new developments.
• Monitoring and evaluation arrangements for facilities.
• Health and safety policies.
• Personal Protective Equipment (PPE) provision and disposal.

Governance information

Aspects of governance and management were considered areas about which people may request information. This included:

• Governance and accountability structures.
• Outcomes of internal reviews.
• Organisational structures.
• Senior management roles.
• Management approaches and records.
• Strategic planning and service evolution.
• Organisational sustainability.
• Ownership.
• Minutes of management meetings.
• Resilience planning.

Some other respondents highlighted that how decisions are taken in relation to care provision or service delivery may be the focus of FOI requests, with one noting this may be especially relevant where decisions are taken to change packages or services.

Contractors or third-party providers

Another category some respondents felt could be of interest to those making FOI requests was third-party involvement or contractors used by providers. This included:

• How goods and services are procured.
• How much is spent on external providers.
• Contracts with external providers, e.g. insurance providers, providers of specialist equipment and technology.
• Frequency and use of agency care staff.

“Agency - number of hours or staff for each [agency], number of shifts covered - particularly difficult where there are different rates for different times of the day/days of week and varying lengths of shifts in care homes. This sort of request usually goes back with an 'unable to provide information / too expensive as we don't hold the information in this way’. Number of staff of a particular type in a particular year, e.g. social workers, occupational therapists. Amount paid to each agency.” – Individual

Admissions, occupancy and discharges

FOI requests could be raised in relation to occupancy factors, according to some respondents. These areas included:

• Service availability, capacity, occupancy levels, and waiting times.
• Number of service users.
• Discharge planning arrangements; when and how someone moves on, transition support for children moving on to adult services.
• Admission arrangements, number of admissions in a period.

Services or provider information

People may be interested in requesting information on services offered or about the provider, according to some respondents. For instance, on:

• Services provided, including food, activities, and opening hours.
• Types of care and support offered, e.g. behaviour support, specialist support.
• User profile.
• Condition-specific placements, e.g. mental health, learning disability, etc.
• Any differences between children's and adults’ services.
• Diversity data, e.g. % of residents with dementia or needing intensive care, age.
• Access to religious / faith leaders in care homes.
• Whether there is a dedicated activities coordinator.
• Whether the service engages with the local community.

Other types of information

A few respondents raised a range of information that may be requested, including:

• Information relating to commercial activities, e.g. information made available for sale, such as publications.
• Rights of people who use services, engagement mechanisms, and feedback from people who use services.
• Media enquiries, particularly on sensitive issues.

Other issues

Many respondents left a miscellaneous comment at this question, either commenting more broadly on the question, or taking the opportunity presented by this final question relating directly to the proposals, notwithstanding the following impact assessment questions, to leave general comments about the proposed FOISA extension.

The main views relating to this question were that:

• It was difficult to answer the question, as it was unknown what information people would be interested in obtaining.
• The categories of information requested would be driven by personal circumstances, concerns and interests, or conversely that people would be most likely to request information relating to the overall operation and quality of care services, rather than personal data about individuals who use care services.

Other more general comments included that:

• Rates of complaints to the Care Inspectorate have been lower for third sector providers compared to private providers. To the extent that FOI requests may be considered a proxy for service quality, then a similar pattern could be found with FOI requests.
• Information should be disclosed wherever possible without the need to make a FOI request, in the spirit of openness and transparency, and people should not have to fight to obtain information.
• Anecdotal evidence cited in Community Care Providers Scotland response suggested that Registered Social Landlords have experienced FOI requests of a commercial nature from private companies seeking market intelligence.
• Existing data protection exemptions provide strong safeguards to ensure that personal data is not released.