Legal guidance for dealing with NHS services complaints: FOI release

FOI reference: FOI/18/02220
Date received: 15 August 2018 
Date responded: 23 August 2018
 
Information requested

Your "Can I Help You?" guidance for dealing with NHS services complaints etc states on p24 that:

3.5.2 Two public sector bodies

3.5.2.1 Given the increasing shared agenda for health and social care, particularly in relation to older people’s services where a patient receives health and social care services while living in the community, the relevant NHS body and the local authority social work department should agree who will take the lead. They should work together to ensure that all matters raised are investigated simultaneously to consistent timescales. It is recognised that different complaints handling processes currently exist for NHS and social care services and the complainant should be advised of this particularly where this may impact on the timescales for responses.
Learning and opportunities for improvement should also be shared between the two organisations."

When this guidance was operative, given that that the two public sector bodies are two separate data controllers and that there is legal constraints on sharing data with regard to the Data Protection Act 1998 and Article 8 of the Human Rights Act 1998:

1. Please provide the Scottish Government's legal guidance to Health Board's and NHS for the instruction: "They should work together to ensure that all matters raised are investigated simultaneously" as such guidance appears to instruct the public bodies to breach the Data Protection Act 1998 and Article 8 of the European Convention on Human Rights.

2. The document says: "In cases where a joint response is not possible the two organisations must work together to ensure that there is consistency in the responses provided".
I repeat "must".

Please the legal basis or legal guidance given for this command that the "two organisations must work together" when a joint response is not possible.

If they cannot or are not going to provide a joint response:

Please provide the LEGAL guidance and Scottish Government guidance to Health Boards for them to remain compliant with the Data Protection Act and Human Rights Act Article 8 when there will not be joint responses.

3. Please provide copies of any legal rulings or ICO assessments on the above issues.

Response 

While our aim is to provide information whenever possible, in this instance the Scottish Government does not have some of the information you have requested. The reasons why we don’t have the information are explained below.

The answer to your questions (1) and (2) is;

The “Can I Help You? Guidance for handling and learning from feedback, comments, concerns or complaints about NHS health care services” published on 29 March 2012 is now obsolete.

This is because a new NHS Model Complaints Handling Procedure (CHP) was introduced across Scotland from 1 April 2017.

The guidance replacing the “Can I help You? Guidance” is now contained within the CHP adopted by every NHS Board.

http://www.valuingcomplaints.org.uk/sites/valuingcomplaints/files/resources/NHS%20Model%20CHP%20%28updated%20Aug%202018%29.%20PDF_0.pdf

When the “Can I help You? Guidance was in force, the data protection responsibilities for NHS Boards were set out in the document at part 4, and there was no further legal advice issued by the Scottish Government, please see link to the document; https://www.gov.scot/Publications/2012/03/6414/7

Reasons for not providing information

The Scottish Government does not have the following information.

The Scottish Government does not have part of the information you have asked for on “any legal rulings or ICO assessments on the above issues”. This is because each NHS Board individually has the legal obligation to comply with Data Protection and Human Rights Legislation. The Scottish Government does not hold any information relating to any assessments/enforcement notices issued by the ICO in respect of the above. Each NHS Board would hold this information individually. The ICO publish a list of the assessments/enforcement notices that they have issued. Their website address is www.ico.org.uk

This is a formal notice under section 17(1) of FOISA that the Scottish Government does not have the information you have requested.

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