FOI Request: Care homes and deaths

The request was refused by Care Inspectorate.

Dear Care Inspectorate,

I am writing to you to request the following information.

1) From the date March 16, 2020 to provide a breakdown of the number of confirmed Covid-19 deaths in Scotland by
1a) Individual care homes
1b) Care home provider

2) From the date March 16, 2020, to provide a breakdown of the number of suspected Covid-19 deaths in Scotland by
2a) Individual care homes
2b) Care home provider

3) Provide any analysis undertaken by the organisation of care home deaths due to Covid-19 in Scotland.
3a) This should include but not be limited to impact assessments, legal advice, statistical analysis, financial impact assessments or other analysis.

Please do not hesitate to contact me if you have any questions.

Best wishes,
Conor Matchett

CI Info Governance,

Thank you for your email which will now be prioritised and actioned
accordingly by the Information Governance Team.

COVID-19: We continue to put people at the heart of all we do – now more
than ever – and this means everything we do is aimed at keeping people
safe and services supported. The health and wellbeing of our people, and
all those we come into contact with comes first. We are working remotely -
away from our local offices - and using technology to connect in with
people. You can contact us via email at
[email address] or you can find all information
related to COVID-19 on our website. Offices are also closed to members of
the public until further notice.

[1]Corona This email may contain confidential information and its content
is solely for the use of the individual to whom it is addressed. If you
are not the intended recipient, please inform the sender that you have
received this email in error before deleting it. Any disclosure,
reproduction, copying, distribution or other dissemination or use of this
email is strictly prohibited. All outgoing messages are checked for
viruses however no guarantee is given that this email message, and any
attachments, are free from viruses. You are strongly advised to check for
viruses using your own virus scanner. The Care Inspectorate will not
accept responsibility for any damage caused as a result of virus
infection.

References

Visible links
1. https://www.nhsinform.scot/coronavirus

CI Info Governance,

OFFICIAL

Date: 29 September 2020
Our Ref: 53373

Dear Mr Matchett

Freedom of Information Request

I am writing to acknowledge your request which will now be considered in accordance with the Freedom of Information (Scotland) Act 2002 (the ‘Act’).

You will receive a response within the statutory timescale of 20 working days as defined by the Act, subject to the information not being exempt or containing a reference to a third party. In some circumstances, the Care Inspectorate may be unable to meet the 20 working day timescale, however, if this is the case then you will be informed and given a revised timescale at the earliest opportunity.

There may be a fee payable for the retrieval, collation and provision of the information you requested. If this is the case you will be informed and the 20 working day timescale will be suspended until we receive payment from you. If you choose not to make a payment then your request will not be answered.

We would like to take this opportunity to thank you for your interest in the Care Inspectorate. Should you required any further assistance concerning this matter please do not hesitate to contact the Information Governance Team by email at [email address].

We respect your privacy and will only use your personal information fairly and lawfully. To find out how we handle your personal information please read the Privacy Notice on our website at http://www.careinspectorate.com/index.ph...

Yours sincerely,

Information Governance Team

Improving Care Through Information Governance Excellence…

Information Governance Team
Compass House, 11 Riverside Drive, Dundee, DD1 4NY

W: http://www.careinspectorate.com

OFFICIAL

show quoted sections

CI Info Governance,

OFFICIAL

 

Dear Mr Matchett

We write further to your request for the following information which has
been considered under FOISA;

1. From the date March 16, 2020 to provide a breakdown of the number of
confirmed Covid-19 deaths in Scotland by

1a. Individual care homes

1b. Care home provider

2. From the date March 16, 2020, to provide a breakdown of the number of
suspected Covid-19 deaths in Scotland by

2a. Individual care homes

2b. Care home provider

3. Provide any analysis undertaken by the organisation of care home deaths
due to Covid-19 in Scotland.

3a. This should include but not be limited to impact assessments, legal
advice, statistical analysis, financial impact assessments or other
analysis.

Our response – Points 1 and 2

Data in relation to deaths in care homes, including those attributed to
the Covid-19 virus, is published by National Records of Scotland on their
[1]website. This information is regularly updated and broken down at Local
Authority and NHS Health Board level.  In addition, the [2]Scottish
Government publish total numbers of deaths each week (from 27 May).

With regard to information held by the Care Inspectorate relating to
confirmed and suspected deaths due to Covid 19, we do not consider that
releasing this information for individual care services or at provider
level (which effectively is the same having reviewed the data) is in the
public interest and we are withholding it having applied the following
exemptions.

Section 33(1)(b) – Commercial interests and the economy

Release of this information at care home and provider level outlining
infections and deaths may substantially prejudice services commercially in
that it would be perceived as a negative reflection of their care service
provision and care standards.  The rate of Covid-19 infections and number
of deaths may not necessarily be related to a service’s quality of care,
hygiene standards, use of PPE etc. so to release information, even at
provider level, could have significant impact on the ability of the
provider and consequently their services to function commercially in
already challenging economic circumstances caused by the pandemic. 
Releasing information at this level would also likely impact on their
ability to engage new staff and/or attract new residents  which would have
a direct impact on their being able to operate commercially and maintain
sufficient standards of care for their existing residents ultimately
undermining the Care Service Sector. 

Information relating to care services is published following an inspection
activity, where the Care Inspectorate have identified specific issues with
care and have suggested improvements.  Our inspection reports are
available for all services on our [3]website. It is justifiable to release
information in these circumstances as we know that based on our inspection
as a Regulator that a care service has acted improperly or below agreed
standards. This is not the case in releasing data at provider or care
service level as the underlying causes for the infections and/or deaths
have not necessarily been identified as an actual consequence of provider
and/or care service failings.  This exemption is subject to the Public
Interest Test which is explained as follows.

Public Interest Test

The Scottish Information Commissioner’s briefing note states that public
interest:
“has been described as “something which is of serious concern and benefit
to the public”. It has also been held that public interest does not mean
what is of interest to the public but what is in the interest of the
public.  Public authorities must consider whether, in all the
circumstances of the case, the public interest in disclosing the
information is not outweighed by that in maintaining the exemption. If the
two are evenly balanced, the presumption should always be in favour of
disclosure.”

Factors which public authorities should take into account when applying
the public interest test include:

* whether disclosure would contribute to ensuring that any public
authority with regulatory responsibilities is adequately discharging its
functions
* whether disclosure would ensure fairness in relation to notifications,
reveal malpractice or enable the correction of misleading claims
* whether disclosure would contribute to a debate on a matter of public
interest
whether disclosure would prejudice the protection of an individual's
right to privacy

It is manifestly in the public interest that we are in a position to
regulate care services in an effective manner, by gathering relevant
information as part of our duties, whilst supporting, investigating, and
taking enforcement action where necessary.  Any steps which make us less
effective in regulating and assisting care services cannot be in the
public interest.

In terms of the first bullet point quoted above, disclosure of the
information you have requested at provider and care service level is
likely to significantly impede us in adequately discharging our regulatory
functions.  In terms of the second bullet point the disclosure of the
unverified data at this point could misrepresent the current status of
care quality  in care homes, misleading the public into believing that
certain care services were failing in their obligation to uphold the
standards of care as required under the Scottish Health and Social Care
Standards when this may not be the true position.  Disclosure could also
cause confusion and harm to those residents and their relatives who are
already distressed, if they were to be misinformed about the ability of
care services to provide care, maintain their levels of staffing and
uphold the quality of care required of them. In terms of the last bullet
point, disclosure would prejudice the protection of the right to privacy
of people who participated in investigations and other regulatory work.

If services become aware that the information they provide us may be
disclosed publicly it is extremely likely that we will receive less
information from them.  Particularly in circumstances where there are
concerns about a service or in times of crisis such as the Covid-19
pandemic.  In times like these it is vital that the Care Inspectorate
receives as much information and intelligence from care services as
possible in order to provide them with relevant support and guidance,
ultimately to ensure that care service residents receive appropriate and
necessary levels of care.

Section 35 – Law Enforcement

An investigation instigated by the Lord Advocate, and conducted by the
Crown Office and Procurator Fiscal Service (COPFS) is under way into all
deaths in care homes as a result of COVID -19 the investigation will look
at the events that led to the death and establish preventative learning.

This will involve the Police for the purposes of establishing if there was
any criminality involved. The Care Inspectorate is helping in providing
information for this investigation and will continue to exempt data
relating to deaths at care service level and applying exemption Section
35; specifically Section 35(1)(a) -  prevention or detection of crime and
Section 35(1)(b) apprehension or prosecution of offenders.

Section 35 of FOISA is not an absolute exemption so we must consider both
the substantial prejudice and public interest tests which are outlined
below.

Substantial Prejudice Test
The current investigations being carried out by Police Scotland on behalf
of COPFS are under way in order to find out if there was any criminality.
It is critical that related information is not made public while these
investigations are ongoing. The publication of provider and care service
specific data, whilst it may be thought to highlight where these failings
may have been, may not, but instead may lead to a provider and/or a
service identifying and destroying any evidence they perceive as
incriminating.

In addition, the release of this data may prejudice the views of any
potential jury member, if they are familiar with the care services listed,
or if they read the inevitable press reporting resulting from such a
release.

In these circumstances, if information in relation to ongoing
investigations, provided to the Police by the Care Inspectorate, is
disclosed publicly it is likely to substantially prejudice those ongoing
investigations and the subsequent apprehension or prosecution of
offenders.

Accordingly, if it became known that information given to us on a
confidential basis by care services, and which forms part of an ongoing
police investigation, may have been disclosed to another person, it is far
less likely that such information would be provided to the Care
Inspectorate by the care service in the future.

Public Interest Test

The Scottish Information Commissioner’s briefing note states that public
interest:
“has been described as something which is of serious concern and benefit
to the public”. It has also been held that ‘public interest does not mean
what is of interest to the public but what is in the interest of the
public’. 

Factors which public authorities should take into account when applying
the public interest test include:

o whether disclosure would ensure fairness, reveal malpractice or enable
the correction of misleading claims

In this case disclosure would potentially hinder fairness, lead to
malpractice being hidden and therefore allow misleading claims to be
sustained. Therefore, we consider that it is not in the public interest to
disclose this information as it would be likely to impede the ongoing
investigations and potentially impact upon any subsequent prosecution.

Section 36(2) Confidentiality

The role of the Care Inspectorate as the regulator for care in Scotland
requires it to assist and support all Scottish care services and their
providers in upholding the Scottish Health and Social Care Standards. It
is vital that both providers and care services feel free in terms of their
relationship with the Care Inspectorate to turn to us when they need our
support and guidance, and also in the instances where they themselves have
any concerns.

This section incorporates the Scots law of confidence into FOISA.
Therefore, information collected or provided to the Care Inspectorate by a
care service can be considered as confidential in that the care service is
providing that information in the understanding that it is provided in the
context of our role as regulator, and within the confines of our
professional relationship with the care service. 

We therefore consider that the notifications received in relation to
Covid-19 and its impact on services during the pandemic, are being
provided to us by the services in the understanding that they will remain
confidential and disclosure into the public domain would constitute a
potential actionable breach of confidence by the Care Inspectorate, as
defined under Scots law.  Accordingly, we are applying the relating
exemption as stated in Section 36(2), Confidentiality of FOISA and this
exemption is absolute and not subject to the Public Interest Test.

Section 39 - Health and Safety

We are also withholding the confirmed and suspected deaths related to
Covid-19 at provider and care service level as we believe that this
information could be detrimental to the health and safety as well as the
physical and mental health of the residents, families and staff within the
individual care settings and are applying section 39(1) to this data:

Section 39 of the Freedom of Information (Scotland) Act 2002 (FOISA).
Information may be withheld if:

o disclosure would, or would be likely to, endanger the physical or
mental health or safety of an individual (section 39(1)).

The Commissioner states that there must be at least a significant
probability that health or safety would be endangered for the exemption to
be applied. There must also be a genuine link between disclosure and the
endangerment: it cannot simply be a remote or hypothetical possibility.

We believe that there is a direct connection between the release of the
number of deaths at care service level into the public domain (e.g.
released by the media) to anxiety amongst the staff, residents and family
members.   Further, to release information at provider level could lead to
the identification of a particular service where confirmed or reported
cases of Covid 19 were high and this could result in the care service
being unfairly targeted in the media and increase anxiety for residents,
their relatives and the care service staff.

Many residents are placed within care services as they have complex health
and social care needs, however these residents are entitled to a private
life, confidentiality and to spend their final days in a dignified way. 
Care homes are striving to avoid creating a sense of panic or disruption
to protect and care for residents, their families and staff.

We consider that it is the correct approach for authorities to release the
data regarding deaths at local authority and health board level.  Each
person who dies in a care home is an individual with unique personal
circumstances.   For most people, this includes families and friends who
are significantly impacted by the person’s dying and death.   It is
imperative for care homes to be able to communicate with families
individually regarding the circumstances of the residents whose direct
care is their responsibility without the added burden of intrusion from
the press and/or the wider community.

Section 39 Public Interest Test

FOISA does not define the term “public interest”, but it has been
described as “something which is of serious concern and benefit to the
public”. The public interest does not mean what is of interest to the
public, but what is ‘in the interest of the public’.

There is clearly a significant public interest in protecting individuals’
health and safety. Having given this due consideration we do not believe
that disclosure of the information is in the public interest due to the
negative impact it would have on mental or physical health, through
generating further fear about care of service users during the Covid-19
public health situation and increasing individual’s stress levels for
those who are already dealing with heightened stress due to the pandemic;
at its worst case exacerbating already complex health conditions and
leading to earlier death of the most frail and vulnerable residents.

Our response – Point 3

With regard to this element of your request I confirm that the Care
Inspectorate is and has not carried out any specific analysis or
assessment of data relating to deaths due to Covid-19.  Therefore, under
FOISA, we have applied the exemption Section 17, Information is not held
as the Care Inspectorate does not hold the information you have requested.

However, we have published a report in which we have included our findings
relating to analysis of care homes where it is indicated there may be
relationships, although untested,  between a high number of cases of
suspected COVID-19 and size of service, geographical location (including
urban/rural) and provision of nursing care.  The document is published on
the Care Inspectorate website and can be access via this [4]link.

Right to review

If you have any queries regarding our response to your request under FOISA
you may ask for a review.  If you wish to instigate a review you can do
this by emailing the Information Governance Team at
[5][email address] stating your reason(s) for
dissatisfaction.  This must be done within 40 working days of receiving
this email.

Right to appeal

If you remain dissatisfied with the decision of the Care Inspectorate in
relation to how we have dealt with your request for information considered
under FOISA you have the right to pursue the matter with the Scottish
Information Commissioner within six months of receiving our review. You
can contact the Commissioner at:

The Scottish Information Commissioner

Kinburn Castle

Doubledykes Road

St Andrews

Fife

KKY16 9DS

 

Online:                 [6]OSIC Online Appeals

Email:                   [7][email address]

Telephone:          01334 464610

 

Should you then wish to appeal against the Commissioner’s decision there
is a right of appeal to the Court of Session on a point of law only.

We respect your privacy and will only use your personal information fairly
and lawfully. To find out how we handle your personal information please
read the Privacy Notice on our [8]website.

Yours sincerely

 

Information Governance Team

 

Care Inspectorate

Compass House

11 Riverside Drive

Dundee

DD1 4NY

 

www.careinspectorate.com

 

 

show quoted sections

Dear Care Inspectorate,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Care Inspectorate's handling of my FOI request 'FOI Request: Care homes and deaths'.

I am disappointed to hear that the Care Inspectorate does not believe this information is in the public interest to release given the intense public interest in the topic of Covid-19 and in particular the very public scandal of care home deaths and their connection to both policy and quality of care.

On the specific exemptions applied, i will approach them one by one.

Section 33(1)(b):
I believe there is a substantial argument in favour of disclosure when it pertains to commercial interests. The deaths of thousands of individuals in a global pandemic should be subject to scrutiny, and appeals to economic security of often multi-million pound care home operators does not offer the transparency and accountability demanded by families, politicians, and the public.

I would argue Covid-19 and its impact has already undermined the care home sector to the degree you suggest disclosure would, and I believe it is crucial to hold those accountable for Covid-19 deaths to account. This information, while crude, would provide the first step in discovering why so many deaths occurred in care homes during the pandemic. If your argument on deaths being linked to commercial performance dropping was accurate, the Care Inspectorate would be hard pressed to publish its own inspection reports, which it does anyway and as it should data about Covid-19 deaths. Again, I believe the public interest to wholly outweigh the arguments for non-disclosure through this particular exemption.
The points raised around arguments in favour of disclosure being in the public interest are also fulfilled easily through the media attention around care home deaths, general public opinion, and the potential for such data to provide trends or patterns and potential malpractice in the social care sector.

To take each of your points on its merits;
"In terms of the first bullet point quoted above, disclosure of the information you have requested at provider and care service level is likely to significantly impede us in adequately discharging our regulatory functions."
- I do not see how this is possible. Disclosure of this information does not in any way impede the Care Inspectorate's role as regulator of the care system.

"In terms of the second bullet point the disclosure of the unverified data at this point could misrepresent the current status of care quality in care homes, misleading the public into believing that certain care services were failing in their obligation to uphold the standards of care as required under the Scottish Health and Social Care Standards when this may not be the true position. Disclosure could also cause confusion and harm to those residents and their relatives who are already distressed, if they were to be misinformed about the ability of care services to provide care, maintain their levels of staffing and uphold the quality of care required of them."
- The data would be verified, it is your data that you are statutorily required to collate. Other than National Records of Scotland data, there is no clearer source of verified data. That data can be linked to already publicly accessible inspection reports and the public can make their own decisions. Confusion and harm to residents and families is not a legal basis to refuse disclosure of the information and should not be used as such.

"In terms of the last bullet point, disclosure would prejudice the protection of the right to privacy of people who participated in investigations and other regulatory work. If services become aware that the information they provide us may be disclosed publicly it is extremely likely that we will receive less information from them. Particularly in circumstances where there are concerns about a service or in times of crisis such as the Covid-19 pandemic. In times like these it is vital that the Care Inspectorate receives as much information and intelligence from care services as possible in order to provide them with relevant support and guidance, ultimately to ensure that care service residents receive appropriate and necessary levels of care."
- If care home operators were to do this it would be unlawful and amount to malpractice and show that ultimately economic concerns overrode their desire to provide the "appropriate and necessary levels of care" as you put it. You also state that these circumstances include "concerns about a service", which is true, and as previously stated, should provide more weight to disclosure than to retention of the data. The Care Inspectorate is backed up statutorily and if data disclosure undermines that, that is a problem of the Scottish Government and Care Inspectorate's making and not a legal basis to refuse disclosure from a Freedom of Information request.

Section 35 – Law Enforcement
This investigation was not public at the time of my request to the Care Inspectorate. I would appreciate a detailed breakdown of when the Care Inspectorate began to take its opinion not to disclose data on a service provider level due to this undertaking from the COPFS.

In any case, the release of this information would not worsen any prejudice for any potential juror that already exists and did exist prior to the start of the COPFS investigation and should not outweigh the public interest in favour of disclosure.

Section 36(2) Confidentiality

The Care Inspectorate on several occasions has breached this confidentiality clause themselves when confirming deaths (but not specific numbers of deaths) to the press during Covid-19. This is a spurious exemption that does not apply to this information request.

Section 39 - Health and Safety

In your response you state: "There must also be a genuine link between disclosure and the endangerment: it cannot simply be a remote or hypothetical possibility."

You have not provided me with evidence that there is a genuine link. Your argument is that the hypothetical release could cause anxiety. This is not only a hypothetical possibility (by your own words a exclusionary factor) but it is also not a significant risk to health and safety of the public.

In addition, any anxiety for care home residents and families already exists due to the already extensive media coverage of care home deaths and this disclosure would not substantially add to that anxiety. This is another example of an erroneous exemption. You also have not demonstrated to my satisfaction how disclosure could directly and genuinely affect individual care home residents and family members and staff to the point where it demonstrates a genuine, not hypothetical, risk to health and safety.

Yours faithfully,

Conor Matchett

CI Info Governance,

OFFICIAL

Date: 4 November 2020
Our ref: IR53436

Dear Mr Matchett

Freedom of Information Request for a Review

I am writing to acknowledge your request for a review which will now be considered in accordance with the Freedom of Information (Scotland) Act 2002 (the ‘Act’). You will receive a response within the statutory timescale of 20 working days as defined by the Act. In some circumstances, the Care Inspectorate may be unable to meet the 20 working day timescale, however, if this is the case then you will be informed and given a revised timescale at the earliest opportunity.
We would like to take this opportunity to thank you for your interest in the Care Inspectorate. Should you required any further assistance concerning this matter please do not hesitate to contact the Information Governance Team by email at [email address].
We respect your privacy and will only use your personal information fairly and lawfully. To find out how we handle your personal information please read the Privacy Notice on our website at http://www.careinspectorate.com/index.ph...

Yours sincerely,

Information Governance Team

Improving Care Through Information Governance Excellence…

Information Governance Team
Compass House, 11 Riverside Drive, Dundee, DD1 4NY

W: http://www.careinspectorate.com

OFFICIAL

show quoted sections

CI Info Governance,

OFFICIAL

Dear Mr Matchett

 

I write to advise that the response prepared following your request for a
review is awaiting Executive sign off and will be with you shortly.

 

Yours sincerely

 

Information Governance Team

 

 

 

 

 

OFFICIAL

COVID-19: We continue to put people at the heart of all we do – now more
than ever – and this means everything we do is aimed at keeping people
safe and services supported. The health and wellbeing of our people, and
all those we come into contact with comes first. We are working remotely -
away from our local offices - and using technology to connect in with
people. You can contact us via email at
[email address] or you can find all information
related to COVID-19 on our website. Offices are also closed to members of
the public until further notice.

[1]Corona This email may contain confidential information and its content
is solely for the use of the individual to whom it is addressed. If you
are not the intended recipient, please inform the sender that you have
received this email in error before deleting it. Any disclosure,
reproduction, copying, distribution or other dissemination or use of this
email is strictly prohibited. All outgoing messages are checked for
viruses however no guarantee is given that this email message, and any
attachments, are free from viruses. You are strongly advised to check for
viruses using your own virus scanner. The Care Inspectorate will not
accept responsibility for any damage caused as a result of virus
infection.

References

Visible links
1. https://www.nhsinform.scot/coronavirus

CI Info Governance,

OFFICIAL

Dear ,

 

We write further to your email of 2 November and confirm that in
accordance with Section 20, Requirement for a review of refusal etc. under
FOISA we have carried out a review of our response to your request for
information. 

 

You originally requested the following information from the Care
Inspectorate.

 

1) From the date March 16, 2020 to provide a breakdown of the number of
confirmed Covid-19 deaths in Scotland by

1a) Individual care homes

1b) Care home provider

 

2) From the date March 16, 2020, to provide a breakdown of the number of
suspected Covid-19 deaths in Scotland by

2a) Individual care homes

2b) Care home provider

 

3) Provide any analysis undertaken by the organisation of care home deaths
due to Covid-19 in Scotland.

3a) This should include but not be limited to impact assessments, legal
advice, statistical analysis, financial impact assessments or other
analysis.

 

Under FOISA, when carrying out a review, we are obliged to reconsider the
response initially provided to an applicant and decide whether or not our
original response remains the same, or whether there is any further
information which can be provided and/or released.

 

The response we originally provided has been reproduced at Annex B for
reference.

 

Our Review Response

 

Having reviewed our previous response to you under reference 53373 sent on
23 October. We are writing to confirm that we are upholding our original
response to you. 

We are continuing to withhold the requested data for both Questions 1 and
2, concluding that you are not wishing a review of question 3.

A copy of your request for a review is provided at Annex A, and this is
annotated with each point which we have addressed in the body of our
letter in the order that you have raised it.

 

Point 1

 

I am disappointed to hear that the Care Inspectorate does not believe this
information is in the public interest to release given the intense public
interest in the topic of Covid-19 and in particular the very public
scandal of care home deaths and their connection to both policy and
quality of care.

 

Point 1 Our Response

 

When considering the public interest, the Care Inspectorate has to
consider what is in the interest of the public and not what is of interest
to the public as per the guidance from the Office of the Scottish
Information Commissioner.  If we can see that there may be harm caused to
individuals by making information public then this is not in the public
interest.

 

Point 2

 

33(1)(b) – Commercial Interests

I believe there is a substantial argument in favour of disclosure when it
pertains to commercial interests. The deaths of thousands of individuals
in a global pandemic should be subject to scrutiny, and appeals to
economic security of often multi-million pound care home operators does
not offer the transparency and accountability demanded by families,
politicians, and the public

 

I would argue Covid-19 and its impact has already undermined the care home
sector to the degree you suggest disclosure would, and I believe it is
crucial to hold those accountable for Covid-19 deaths to account. This
information, while crude, would provide the first step in discovering why
so many deaths occurred in care homes during the pandemic. If your
argument on deaths being linked to commercial performance dropping was
accurate, the Care Inspectorate would be hard pressed to publish its own
inspection reports, which it does anyway and as it should data about
Covid-19 deaths. Again, I believe the public interest to wholly outweigh
the arguments for non-disclosure through this particular exemption.

 

The points raised around arguments in favour of disclosure being in the
public interest are also fulfilled easily through the media attention
around care home deaths, general public opinion, and the potential for
such data to provide trends or patterns and potential malpractice in the
social care sector.

 

Point 2 Our Response

 

The Care Inspectorate regulates care services within Scotland.  To publish
the data received by the care services, which is gathered in a
confidential manner, in our role as the regulator, or any placing of the
information into the public domain would, we believe, amount to
unauthorised use. Moreover, release of this information relating to deaths
due to Covid-19 would be detrimental to care services, their employees and
residents as it be likely to  be used as a direct measure of service
quality or performance in a way that is unjustified.  This is  evident
from  analysis of available data, which demonstrates that there is not a
clear correlation between the evaluations/grades awarded to care homes
during our previous inspection activity, and  the number of deaths a care
home has experienced in the pandemic.  It is simply not the case that care
homes with higher grades do not get cases of Covid-19, and conversely it
is not the case that those with lower gradings have higher numbers of
cases..

Unjustified criticism of the registered care services concerned would lead
to distress to providers and staff, may lead to withdrawal of credit (and
as a consequence, deliveries) by suppliers, tradesmen declining to work on
the premises (both of which would also impact negatively upon residents),
and may lead to unjustified loss of confidence on the part of  residents,
commissioners, placing authorities, suppliers, investors and lenders,
threatening the continued solvency and indeed existence of the care
service concerned. 

 

Point 3

 

In terms of the first bullet point quoted above, disclosure of the
information you have requested at provider and care service level is
likely to significantly impede us in adequately discharging our regulatory
functions."

 

- I do not see how this is possible. Disclosure of this information does
not in any way impede the Care Inspectorate's role as regulator of the
care system.

 

Point 3 Our Response

 

The role of the Care Inspectorate is not just to inspect care but to
support improvement in the quality of care where that is needed.  It is a
vital part of our work to gather information and intelligence from care
services in order that we can work with them to offer advice, guidance and
to share good practice, supporting them to develop and deliver good care. 
We also use the information notified to us to take appropriate action
where we identify that the care provided is not good enough, identifying
areas for improvement and issuing requirements where required.

As we outlined in our response to Point 2 the Care Inspectorate regulates
care services within Scotland.  To publish the death data received by the
care services, which is gathered in a confidential manner, in our role as
the regulator, or any placing of the information into the public domain
would, we believe, amount to unauthorised use.  We also believe detriment
would be likely to be caused as a result of  information related to
Covid-19 deaths  being used as a direct measure of service quality or
performance in a way that is unjustified, based upon the  analysis of
available data, which demonstrates that there is not a clear correlation
between the evaluations/grades awarded to care homes during our previous
inspection activity, with the number of deaths a care home has experienced
in the pandemic. 

 

Point 4

 

"In terms of the second bullet point the disclosure of the unverified data
at this point could misrepresent the current status of care quality  in
care homes, misleading the public into believing that certain care
services were failing in their obligation to uphold the standards of care
as required under the Scottish Health and Social Care Standards when this
may not be the true position.  Disclosure could also cause confusion and
harm to those residents and their relatives who are already distressed, if
they were to be misinformed about the ability of care services to provide
care, maintain their levels of staffing and uphold the quality of care
required of them."

- The data would be verified, it is your data that you are statutorily
required to collate. Other than National Records of Scotland data, there
is no clearer source of verified data. That data can be linked to already
publicly accessible inspection reports and the public can make their own
decisions. Confusion and harm to residents and families is not a legal
basis to refuse disclosure of the information and should not be used as
such.

 

Point 4 Our Response

 

The information received from care homes initially relating to Covid-19,
may or may not be complete.  The Coronavirus Act (2) came into force 27
May 2020 and only then did it become Law for certain notifications to be
submitted to the Care Inspectorate. Prior to this the Covid-19
notifications were mainly voluntary, and the quality was varied and
unverifiable. Information about the notifications which services are
required to submit to the Care Inspectorate in relation to Covid-19 can be
found on our [1]website.

 

Point 5

 

"In terms of the last bullet point, disclosure would prejudice the
protection of the right to privacy of people who participated in
investigations and other regulatory work. If services become aware that
the information they provide us may be disclosed publicly it is extremely
likely that we will receive less information from them.  Particularly in
circumstances where there are concerns about a service or in times of
crisis such as the Covid-19 pandemic.  In times like these it is vital
that the Care Inspectorate receives as much information and intelligence
from care services as possible in order to provide them with relevant
support and guidance, ultimately to ensure that care service residents
receive appropriate and necessary levels of care."

 

- If care home operators were to do this it would be unlawful and amount
to malpractice and show that ultimately economic concerns overrode their
desire to provide the "appropriate and necessary levels of care" as you
put it. You also state that these circumstances include "concerns about a
service", which is true, and as previously stated, should provide more
weight to disclosure than to retention of the data. The Care Inspectorate
is backed up statutorily and if data disclosure undermines that, that is a
problem of the Scottish Government and Care Inspectorate's making and not
a legal basis to refuse disclosure from a Freedom of Information request.

Point 5 Our Response

 

We refer you back to our response at point 2 and point 3.

 

Point 6

 

Section 35 Law Enforcement

I would appreciate a detailed breakdown of when the Care Inspectorate
began to take its opinion not to disclose data on a service provider level
due to this undertaking from the COPFS.

 

In any case, the release of this information would not worsen any
prejudice for any potential juror that already exists and did exist prior
to the start of the COPFS investigation and should not outweigh the public
interest in favour of disclosure.

 

Point 6 – Our Response

 

This is being treated as a new (FOISA) request and responded to under
reference 53490

 

Point 7

 

Section 36(2) Confidentiality

The Care Inspectorate on several occasions has breached this
confidentiality clause themselves when confirming deaths (but not specific
numbers of deaths) to the press during Covid-19. This is a spurious
exemption that does not apply to this information request.

 

Point 7 - Our Response

 

The fact that there have been deaths reported in care services from
information obtained via other sources is not the information that is
exempt under Section 36(2) Confidentiality in relation to our response as 
this is in the public domain from a different source.  The  Care
Inspectorate have not released death data at care service or provider
level. 

 

The circumstances in which the Care Inspectorate received this information
from regulated services, which are compelled by law to provide the
information, imply a duty of confidence as defined under Scots Law. As the
regulator for care in Scotland the Care Inspectorate is becoming party to
information which it seems inconceivable that the provider of the service
would voluntarily place in the public domain. If the care service cannot
be assured that the regulator will treat the information as confidential,
and if there is even a possibility of publication, that seems likely to
create a disincentive to full and frank disclosure of information to the
Care Inspectorate, even against a background of legal obligation, which,
if realised, would impact negatively upon our ability as the statutory
regulator to obtain a full and detailed picture of what is taking place in
(a) individual regulated care services and (b) the sector as a whole.  We
are therefore upholding our application of the exemption, Section 36,
Confidentiality.

 

Point 8

 

Section 39 – Health and Safety

You have not provided me with evidence that there is a genuine link. Your
argument is that the hypothetical release could cause anxiety. This is not
only a hypothetical possibility (by your own words a exclusionary factor)
but it is also not a significant risk to health and safety of the public.

 

In addition, any anxiety for care home residents and families already
exists due to the already extensive media coverage of care home deaths and
this disclosure would not substantially add to that anxiety. This is
another example of an erroneous exemption. You also have not demonstrated
to my satisfaction how disclosure could directly and genuinely affect
individual care home residents and family members and staff to the point
where it demonstrates a genuine, not hypothetical, risk to health and
safety.

 

Point 8 - Our Response

 

There have been many examples where information, in many cases
uncorroborated, relating to deaths has become public through other
sources. We have anecdotal and documented evidence from providers, of the 
reactions of local communities where, in one instance, there has been open
hostility to staff working in the care home, and at a second there has
been significant press intrusion, and considerable anxiety caused for both
the staff and the people experiencing care in the care home reported
formally to the Care Inspectorate once the number of deaths became
available in the public domain.

 

Many residents are placed within care homes as they have complex health
and social care needs and these residents are entitled to a private life,
confidentiality and as appropriate to spend their final days in a
dignified way.  Care homes are striving to avoid creating a sense of panic
or disruption to protect and care for residents, their families and staff.

 

Accordingly, taking the foregoing into consideration, we believe this is
evidence which supports the harm which would be caused as a result of
disclosure even where  the data disclosed is not  accurate.  With regard
to our application of the exemption Section 39, Health and safety we are
upholding this exemption as applied in our initial response.

 

Conclusion

 

Having reviewed our previous response to you under reference 53373 sent on
23 October, and having addressed each of your recent points in turn,  we
are writing to confirm that we are upholding our original response and the
exemptions applied which are outlined below.

  

Section 33(1)(b) – Commercial interests and the economy

 

Release of this information at care home and provider level outlining
infections and deaths may substantially prejudice services commercially in
that it would be perceived as a negative reflection of their care service
provision and care standards.  The rate of Covid-19 infections and number
of deaths may not necessarily be related to a service’s quality of care,
hygiene standards, use of PPE etc. so to release information, even at
provider level, could have significant impact on the ability of the
provider and consequently their services to function commercially in
already challenging economic circumstances caused by the pandemic. 
Releasing information at this level would also likely impact on their
ability to engage new staff and/or attract new residents  which would have
a direct impact on their being able to operate commercially and maintain
sufficient standards of care for their existing residents ultimately
undermining the Care Service Sector. 

Information relating to care services is published following an inspection
activity, where the Care Inspectorate has identified specific issues with
care and have suggested improvements.  Our inspection reports are
available for all services on our [2]website. It is justifiable to release
information in these circumstances as we know that based on our inspection
as a regulator that a care service has acted improperly or below agreed
standards. This is not the case in releasing data at provider or care
service level as the underlying causes for the infections and/or deaths
have not necessarily been identified as an actual consequence of provider
and/or care service failings.  This exemption is subject to the Public
Interest Test which is explained as follows.

 

Public Interest Test

 

The Scottish Information Commissioner’s briefing note states that public
interest:
“has been described as “something which is of serious concern and benefit
to the public”. It has also been held that public interest does not mean
what is of interest to the public but what is in the interest of the
public.  Public authorities must consider whether, in all the
circumstances of the case, the public interest in disclosing the
information is not outweighed by that in maintaining the exemption. If the
two are evenly balanced, the presumption should always be in favour of
disclosure.”

Factors which public authorities should take into account when applying
the public interest test include:

1.     whether disclosure would contribute to ensuring that any public
authority with regulatory responsibilities is adequately discharging its
functions

2.     whether disclosure would ensure fairness in relation to
notifications, reveal malpractice or enable the correction of misleading
claims

3.     whether disclosure would contribute to a debate on a matter of
public interest

4.     whether disclosure would prejudice the protection of an
individual's right to privacy

It is manifestly in the public interest that we are in a position to
regulate care services in an effective manner, by gathering relevant
information as part of our duties, whilst supporting, investigating, and
taking enforcement action where necessary.  Any steps which make us less
effective in regulating and assisting care services cannot be in the
public interest.

In terms of the first bullet point quoted above, disclosure of the
information you have requested at provider and care service level is
likely to significantly impede us in adequately discharging our regulatory
functions.  In terms of the second bullet point the disclosure of the
unverified data at this point could misrepresent the current status of
care quality  in care homes, misleading the public into believing that
certain care services were failing in their obligation to uphold the
standards of care as required under the Scottish Health and Social Care
Standards when this may not be the true position.  Disclosure could also
cause confusion and harm to those residents and their relatives who are
already distressed, if they were to be misinformed about the ability of
care services to provide care, maintain their levels of staffing and
uphold the quality of care required of them.

If services become aware that the information they provide us may be
disclosed publicly it is extremely likely that we will receive less
information from them.  Particularly in circumstances where there are
concerns about a service or in times of crisis such as the Covid-19
pandemic.  In times like these it is vital that the Care Inspectorate
receives as much information and intelligence from care services as
possible in order to provide them with relevant support and guidance,
ultimately to ensure that care service residents receive appropriate and
necessary levels of care.

 

Section 35 – Law Enforcement

 

An investigation instigated by the Lord Advocate, and conducted by the
Crown Office and Procurator Fiscal Service (COPFS) is under way into all
deaths in care homes as a result of COVID -19 the investigation will look
at the events that led to the death and establish preventative learning.

This will involve the Police for the purposes of establishing if there was
any criminality involved. The Care Inspectorate is helping in providing
information for this investigation and will continue to exempt data
relating to deaths at care service level and applying exemption Section
35; specifically Section 35(1)(a) -  prevention or detection of crime and
Section 35(1)(b) apprehension or prosecution of offenders.

Section 35 of FOISA is not an absolute exemption so we must consider both
the substantial prejudice and public interest tests which are outlined
below.

 

Substantial Prejudice Test

The current investigations being carried out by Police Scotland on behalf
of COPFS are under way in order to find out if there was any criminality.
It is critical that related information is not made public while these
investigations are ongoing. The publication of provider and care service
specific data, whilst it may be thought to highlight where these failings
may have been, may not, but instead may lead to a provider and/or a
service identifying and destroying any evidence they perceive as
incriminating.

In addition, the release of this data may prejudice the views of any
potential jury member, if they are familiar with the care services listed,
or if they read the inevitable press reporting resulting from such a
release.

In these circumstances, if information in relation to ongoing
investigations, provided to the Police by the Care Inspectorate, is
disclosed publicly it is likely to substantially prejudice those ongoing
investigations and the subsequent apprehension or prosecution of
offenders.

Accordingly, if it became known that information given to us on a
confidential basis by care services, and which forms part of an ongoing
police investigation, may have been disclosed to another person, it is far
less likely that such information would be provided to the Care
Inspectorate by the care service in the future.

 

Public Interest Test

 

The Scottish Information Commissioner’s briefing note states that public
interest:
“has been described as something which is of serious concern and benefit
to the public”. It has also been held that ‘public interest does not mean
what is of interest to the public but what is in the interest of the
public’. 

Factors which public authorities should take into account when applying
the public interest test include:

·         whether disclosure would ensure fairness, reveal malpractice or
enable the correction of misleading claims

In this case disclosure would potentially hinder fairness, lead to
malpractice being hidden and therefore allow misleading claims to be
sustained. Therefore, we consider that it is not in the public interest to
disclose this information as it would be likely to impede the ongoing
investigations and potentially impact upon any subsequent prosecution.

 

Section 36(2) Confidentiality

 

The role of the Care Inspectorate as the regulator for care in Scotland
requires it to assist and support all Scottish care services and their
providers in upholding the Scottish Health and Social Care Standards. It
is vital that both providers and care services feel free in terms of their
relationship with the Care Inspectorate to turn to us when they need our
support and guidance, and also in the instances where they themselves have
any concerns.

This section incorporates the Scots law of confidence into FOISA.
Therefore, information collected or provided to the Care Inspectorate by a
care service can be considered as confidential in that the care service is
providing that information in the understanding that it is provided in the
context of our role as regulator, and within the confines of our
professional relationship with the care service. 

We therefore consider that the notifications received in relation to
Covid-19 and its impact on services during the pandemic, are being
provided to us by the services on the understanding that they will remain
confidential and disclosure into the public domain would constitute a
potential actionable breach of confidence by the Care Inspectorate, as
defined under Scots law.  Accordingly, we are applying the relating
exemption as stated in Section 36(2), Confidentiality of FOISA. This
exemption is absolute and not subject to the Public Interest Test.

 

Section 39 - Health and Safety

 

We are also withholding the confirmed and suspected deaths related to
Covid-19 at provider and care service level as we believe that this
information could be detrimental to the health and safety as well as the
physical and mental health of the residents, families and staff within the
individual care settings and are applying section 39(1) to this data:

Section 39 of the Freedom of Information (Scotland) Act 2002 (FOISA).
Information may be withheld if:

o disclosure would, or would be likely to, endanger the physical or
mental health or safety of an individual (section 39(1)).

The Commissioner states that there must be at least a significant
probability that health or safety would be endangered for the exemption to
be applied. There must also be a genuine link between disclosure and the
endangerment: it cannot simply be a remote or hypothetical possibility.

We believe that there is a direct connection between the release of the
number of deaths at care service level into the public domain (e.g.
released by the media) to anxiety amongst the staff, residents and family
members.   Further, to release information at provider level could lead to
the identification of a particular service where confirmed or reported
cases of Covid 19 were high and this could result in the care service
being unfairly targeted in the media and increase anxiety for residents,
their relatives and the care service staff.

Many residents are placed within care services as they have complex health
and social care needs, however these residents are entitled to a private
life, confidentiality and to spend their final days in a dignified way. 
Care homes are striving to avoid creating a sense of panic or disruption
to protect and care for residents, their families and staff.

We consider that it is the correct approach for authorities to release the
data regarding deaths at local authority and health board level.  Each
person who dies in a care home is an individual with unique personal
circumstances.   For most people, this includes families and friends who
are significantly impacted by the person’s dying and death.   It is
imperative for care homes to be able to communicate with families
individually regarding the circumstances of the residents whose direct
care is their responsibility without the added burden of intrusion from
the press and/or the wider community.

 

Section 39 Public Interest Test

 

FOISA does not define the term “public interest”, but it has been
described as “something which is of serious concern and benefit to the
public”. The public interest does not mean what is of interest to the
public, but what is ‘in the interest of the public’.

There is clearly a significant public interest in protecting individuals’
health and safety. Having given this due consideration we do not believe
that disclosure of the information is in the public interest due to the
negative impact it would have on mental or physical health, through
generating further fear about care of service users during the Covid-19
public health situation and increasing individual’s stress levels for
those who are already dealing with heightened stress due to the pandemic;
at its worst case exacerbating already complex health conditions and
leading to earlier death of the most frail and vulnerable residents.

 

Right to appeal

 

If you are unhappy with our review of your request and our decision to
uphold the refusal to release information to you under the exemptions
outlined, you have a right of appeal to the Scottish Information
Commissioner, who can be contacted at:

The Scottish Information Commissioner

Kinburn Castle

Doubledykes Road

St Andrews

Fife

KKY16 9DS

 

Online:                 [3]OSIC Online Appeals

Email:                   [4][email address]

Telephone:          01334 464610

 

Should you then wish to appeal against the Commissioner’s decision there
is a right of appeal to the Court of Session on a point of law only.

We respect your privacy and will only use your personal information fairly
and lawfully. To find out how we handle your personal information please
read the [5]Privacy Notice on our website.

Yours sincerely

Information Governance Team

Care Inspectorate

Compass House

11 Riverside Drive

Dundee

DD1 4NY

 

[6]www.careinspectorate.com

 

 

Annex A:

Dear Care Inspectorate,

 

Please pass this on to the person who conducts Freedom of Information
reviews.

 

I am writing to request an internal review of Care Inspectorate's handling
of my FOI request 'FOI Request: Care homes and deaths'.

 

[Point 1]

I am disappointed to hear that the Care Inspectorate does not believe this
information is in the public interest to release given the intense public
interest in the topic of Covid-19 and in particular the very public
scandal of care home deaths and their connection to both policy and
quality of care.

 

On the specific exemptions applied, i will approach them one by one.

 

[Point 2]

Section 33(1)(b):

 

I believe there is a substantial argument in favour of disclosure when it
pertains to commercial interests. The deaths of thousands of individuals
in a global pandemic should be subject to scrutiny, and appeals to
economic security of often multi-million pound care home operators does
not offer the transparency and accountability demanded by families,
politicians, and the public.

 

I would argue Covid-19 and its impact has already undermined the care home
sector to the degree you suggest disclosure would, and I believe it is
crucial to hold those accountable for Covid-19 deaths to account. This
information, while crude, would provide the first step in discovering why
so many deaths occurred in care homes during the pandemic. If your
argument on deaths being linked to commercial performance dropping was
accurate, the Care Inspectorate would be hard pressed to publish its own
inspection reports, which it does anyway and as it should data about
Covid-19 deaths. Again, I believe the public interest to wholly outweigh
the arguments for non-disclosure through this particular exemption.

 

The points raised around arguments in favour of disclosure being in the
public interest are also fulfilled easily through the media attention
around care home deaths, general public opinion, and the potential for
such data to provide trends or patterns and potential malpractice in the
social care sector.

 

To take each of your points on its merits;

 

[Point 3]

"In terms of the first bullet point quoted above, disclosure of the
information you have requested at provider and care service level is
likely to significantly impede us in adequately discharging our regulatory
functions."

 

- I do not see how this is possible. Disclosure of this information does
not in any way impede the Care Inspectorate's role as regulator of the
care system.

 

[Point 4]

 

"In terms of the second bullet point the disclosure of the unverified data
at this point could misrepresent the current status of care quality  in
care homes, misleading the public into believing that certain care
services were failing in their obligation to uphold the standards of care
as required under the Scottish Health and Social Care Standards when this
may not be the true position.  Disclosure could also cause confusion and
harm to those residents and their relatives who are already distressed, if
they were to be misinformed about the ability of care services to provide
care, maintain their levels of staffing and uphold the quality of care
required of them."

 

- The data would be verified, it is your data that you are statutorily
required to collate. Other than National Records of Scotland data, there
is no clearer source of verified data. That data can be linked to already
publicly accessible inspection reports and the public can make their own
decisions. Confusion and harm to residents and families is not a legal
basis to refuse disclosure of the information and should not be used as
such.

 

[Point 5]

"In terms of the last bullet point, disclosure would prejudice the
protection of the right to privacy of people who participated in
investigations and other regulatory work. If services become aware that
the information they provide us may be disclosed publicly it is extremely
likely that we will receive less information from them.  Particularly in
circumstances where there are concerns about a service or in times of
crisis such as the Covid-19 pandemic.  In times like these it is vital
that the Care Inspectorate receives as much information and intelligence
from care services as possible in order to provide them with relevant
support and guidance, ultimately to ensure that care service residents
receive appropriate and necessary levels of care."

 

- If care home operators were to do this it would be unlawful and amount
to malpractice and show that ultimately economic concerns overrode their
desire to provide the "appropriate and necessary levels of care" as you
put it. You also state that these circumstances include "concerns about a
service", which is true, and as previously stated, should provide more
weight to disclosure than to retention of the data. The Care Inspectorate
is backed up statutorily and if data disclosure undermines that, that is a
problem of the Scottish Government and Care Inspectorate's making and not
a legal basis to refuse disclosure from a Freedom of Information request.

 

[Point 6]

Section 35 – Law Enforcement

 

This investigation was not public at the time of my request to the Care
Inspectorate. I would appreciate a detailed breakdown of when the Care
Inspectorate began to take its opinion not to disclose data on a service
provider level due to this undertaking from the COPFS.

 

In any case, the release of this information would not worsen any
prejudice for any potential juror that already exists and did exist prior
to the start of the COPFS investigation and should not outweigh the public
interest in favour of disclosure.

 

[Point 7]

Section 36(2) Confidentiality

 

The Care Inspectorate on several occasions has breached this
confidentiality clause themselves when confirming deaths (but not specific
numbers of deaths) to the press during Covid-19. This is a spurious
exemption that does not apply to this information request.

 

[Point 8]

Section 39 - Health and Safety

 

In your response you state: "There must also be a genuine link between
disclosure and the endangerment: it cannot simply be a remote or
hypothetical possibility."

 

You have not provided me with evidence that there is a genuine link. Your
argument is that the hypothetical release could cause anxiety. This is not
only a hypothetical possibility (by your own words a exclusionary factor)
but it is also not a significant risk to health and safety of the public.

 

In addition, any anxiety for care home residents and families already
exists due to the already extensive media coverage of care home deaths and
this disclosure would not substantially add to that anxiety. This is
another example of an erroneous exemption. You also have not demonstrated
to my satisfaction how disclosure could directly and genuinely affect
individual care home residents and family members and staff to the point
where it demonstrates a genuine, not hypothetical, risk to health and
safety.

 

Yours faithfully,

 

Conor Matchett

 

Annex 2

 

Dear Mr

 

We write further to your request for the following information which has
been considered under FOISA;

 

1. From the date March 16, 2020 to provide a breakdown of the number of
confirmed Covid-19 deaths in Scotland by

1a. Individual care homes

1b. Care home provider

2. From the date March 16, 2020, to provide a breakdown of the number of
suspected Covid-19 deaths in Scotland by

2a. Individual care homes

2b. Care home provider

3. Provide any analysis undertaken by the organisation of care home deaths
due to Covid-19 in Scotland.

3a. This should include but not be limited to impact assessments, legal
advice, statistical analysis, financial impact assessments or other
analysis.

 

Our response – Points 1 and 2

 

Data in relation to deaths in care homes, including those attributed to
the Covid-19 virus, is published by National Records of Scotland on
their [7]website. This information is regularly updated and broken down at
Local Authority and NHS Health Board level.  In addition, the [8]Scottish
Government publish total numbers of deaths each week (from 27 May).

With regard to information held by the Care Inspectorate relating to
confirmed and suspected deaths due to Covid 19, we do not consider that
releasing this information for individual care services or at provider
level (which effectively is the same having reviewed the data) is in the
public interest and we are withholding it having applied the following
exemptions.

 

Section 33(1)(b) – Commercial interests and the economy

 

Release of this information at care home and provider level outlining
infections and deaths may substantially prejudice services commercially in
that it would be perceived as a negative reflection of their care service
provision and care standards.  The rate of Covid-19 infections and number
of deaths may not necessarily be related to a service’s quality of care,
hygiene standards, use of PPE etc. so to release information, even at
provider level, could have significant impact on the ability of the
provider and consequently their services to function commercially in
already challenging economic circumstances caused by the pandemic. 
Releasing information at this level would also likely impact on their
ability to engage new staff and/or attract new residents  which would have
a direct impact on their being able to operate commercially and maintain
sufficient standards of care for their existing residents ultimately
undermining the Care Service Sector. 

Information relating to care services is published following an inspection
activity, where the Care Inspectorate have identified specific issues with
care and have suggested improvements.  Our inspection reports are
available for all services on our [9]website. It is justifiable to release
information in these circumstances as we know that based on our inspection
as a Regulator that a care service has acted improperly or below agreed
standards. This is not the case in releasing data at provider or care
service level as the underlying causes for the infections and/or deaths
have not necessarily been identified as an actual consequence of provider
and/or care service failings.  This exemption is subject to the Public
Interest Test which is explained as follows.

 

Public Interest Test

 

The Scottish Information Commissioner’s briefing note states that public
interest:
“has been described as “something which is of serious concern and benefit
to the public”. It has also been held that public interest does not mean
what is of interest to the public but what is in the interest of the
public.  Public authorities must consider whether, in all the
circumstances of the case, the public interest in disclosing the
information is not outweighed by that in maintaining the exemption. If the
two are evenly balanced, the presumption should always be in favour of
disclosure.”

Factors which public authorities should take into account when applying
the public interest test include:

1.     whether disclosure would contribute to ensuring that any public
authority with regulatory responsibilities is adequately discharging its
functions

2.     whether disclosure would ensure fairness in relation to
notifications, reveal malpractice or enable the correction of misleading
claims

3.     whether disclosure would contribute to a debate on a matter of
public interest
whether disclosure would prejudice the protection of an individual's right
to privacy

It is manifestly in the public interest that we are in a position to
regulate care services in an effective manner, by gathering relevant
information as part of our duties, whilst supporting, investigating, and
taking enforcement action where necessary.  Any steps which make us less
effective in regulating and assisting care services cannot be in the
public interest.

In terms of the first bullet point quoted above, disclosure of the
information you have requested at provider and care service level is
likely to significantly impede us in adequately discharging our regulatory
functions.  In terms of the second bullet point the disclosure of the
unverified data at this point could misrepresent the current status of
care quality  in care homes, misleading the public into believing that
certain care services were failing in their obligation to uphold the
standards of care as required under the Scottish Health and Social Care
Standards when this may not be the true position.  Disclosure could also
cause confusion and harm to those residents and their relatives who are
already distressed, if they were to be misinformed about the ability of
care services to provide care, maintain their levels of staffing and
uphold the quality of care required of them. In terms of the last bullet
point, disclosure would prejudice the protection of the right to privacy
of people who participated in investigations and other regulatory work.

If services become aware that the information they provide us may be
disclosed publicly it is extremely likely that we will receive less
information from them.  Particularly in circumstances where there are
concerns about a service or in times of crisis such as the Covid-19
pandemic.  In times like these it is vital that the Care Inspectorate
receives as much information and intelligence from care services as
possible in order to provide them with relevant support and guidance,
ultimately to ensure that care service residents receive appropriate and
necessary levels of care.

 

Section 35 – Law Enforcement

 

An investigation instigated by the Lord Advocate, and conducted by the
Crown Office and Procurator Fiscal Service (COPFS) is under way into all
deaths in care homes as a result of COVID -19 the investigation will look
at the events that led to the death and establish preventative learning.

This will involve the Police for the purposes of establishing if there was
any criminality involved. The Care Inspectorate is helping in providing
information for this investigation and will continue to exempt data
relating to deaths at care service level and applying exemption Section
35; specifically Section 35(1)(a) -  prevention or detection of crime and
Section 35(1)(b) apprehension or prosecution of offenders.

Section 35 of FOISA is not an absolute exemption so we must consider both
the substantial prejudice and public interest tests which are outlined
below.

 

Substantial Prejudice Test

The current investigations being carried out by Police Scotland on behalf
of COPFS are under way in order to find out if there was any criminality.
It is critical that related information is not made public while these
investigations are ongoing. The publication of provider and care service
specific data, whilst it may be thought to highlight where these failings
may have been, may not, but instead may lead to a provider and/or a
service identifying and destroying any evidence they perceive as
incriminating.

In addition, the release of this data may prejudice the views of any
potential jury member, if they are familiar with the care services listed,
or if they read the inevitable press reporting resulting from such a
release.

In these circumstances, if information in relation to ongoing
investigations, provided to the Police by the Care Inspectorate, is
disclosed publicly it is likely to substantially prejudice those ongoing
investigations and the subsequent apprehension or prosecution of
offenders.

Accordingly, if it became known that information given to us on a
confidential basis by care services, and which forms part of an ongoing
police investigation, may have been disclosed to another person, it is far
less likely that such information would be provided to the Care
Inspectorate by the care service in the future.

 

Public Interest Test

 

The Scottish Information Commissioner’s briefing note states that public
interest:
“has been described as something which is of serious concern and benefit
to the public”. It has also been held that ‘public interest does not mean
what is of interest to the public but what is in the interest of the
public’. 

Factors which public authorities should take into account when applying
the public interest test include:

·         whether disclosure would ensure fairness, reveal malpractice or
enable the correction of misleading claims

In this case disclosure would potentially hinder fairness, lead to
malpractice being hidden and therefore allow misleading claims to be
sustained. Therefore, we consider that it is not in the public interest to
disclose this information as it would be likely to impede the ongoing
investigations and potentially impact upon any subsequent prosecution.

 

Section 36(2) Confidentiality

 

The role of the Care Inspectorate as the regulator for care in Scotland
requires it to assist and support all Scottish care services and their
providers in upholding the Scottish Health and Social Care Standards. It
is vital that both providers and care services feel free in terms of their
relationship with the Care Inspectorate to turn to us when they need our
support and guidance, and also in the instances where they themselves have
any concerns.

This section incorporates the Scots law of confidence into FOISA.
Therefore, information collected or provided to the Care Inspectorate by a
care service can be considered as confidential in that the care service is
providing that information in the understanding that it is provided in the
context of our role as regulator, and within the confines of our
professional relationship with the care service. 

We therefore consider that the notifications received in relation to
Covid-19 and its impact on services during the pandemic, are being
provided to us by the services in the understanding that they will remain
confidential and disclosure into the public domain would constitute a
potential actionable breach of confidence by the Care Inspectorate, as
defined under Scots law.  Accordingly, we are applying the relating
exemption as stated in Section 36(2), Confidentiality of FOISA and this
exemption is absolute and not subject to the Public Interest Test.

 

Section 39 - Health and Safety

 

We are also withholding the confirmed and suspected deaths related to
Covid-19 at provider and care service level as we believe that this
information could be detrimental to the health and safety as well as the
physical and mental health of the residents, families and staff within the
individual care settings and are applying section 39(1) to this data:

Section 39 of the Freedom of Information (Scotland) Act 2002 (FOISA).
Information may be withheld if:

o disclosure would, or would be likely to, endanger the physical or
mental health or safety of an individual (section 39(1)).

The Commissioner states that there must be at least a significant
probability that health or safety would be endangered for the exemption to
be applied. There must also be a genuine link between disclosure and the
endangerment: it cannot simply be a remote or hypothetical possibility.

We believe that there is a direct connection between the release of the
number of deaths at care service level into the public domain (e.g.
released by the media) to anxiety amongst the staff, residents and family
members.   Further, to release information at provider level could lead to
the identification of a particular service where confirmed or reported
cases of Covid 19 were high and this could result in the care service
being unfairly targeted in the media and increase anxiety for residents,
their relatives and the care service staff.

Many residents are placed within care services as they have complex health
and social care needs, however these residents are entitled to a private
life, confidentiality and to spend their final days in a dignified way. 
Care homes are striving to avoid creating a sense of panic or disruption
to protect and care for residents, their families and staff.

We consider that it is the correct approach for authorities to release the
data regarding deaths at local authority and health board level.  Each
person who dies in a care home is an individual with unique personal
circumstances.   For most people, this includes families and friends who
are significantly impacted by the person’s dying and death.   It is
imperative for care homes to be able to communicate with families
individually regarding the circumstances of the residents whose direct
care is their responsibility without the added burden of intrusion from
the press and/or the wider community.

 

Section 39 Public Interest Test

 

FOISA does not define the term “public interest”, but it has been
described as “something which is of serious concern and benefit to the
public”. The public interest does not mean what is of interest to the
public, but what is ‘in the interest of the public’.

There is clearly a significant public interest in protecting individuals’
health and safety. Having given this due consideration we do not believe
that disclosure of the information is in the public interest due to the
negative impact it would have on mental or physical health, through
generating further fear about care of service users during the Covid-19
public health situation and increasing individual’s stress levels for
those who are already dealing with heightened stress due to the pandemic;
at its worst case exacerbating already complex health conditions and
leading to earlier death of the most frail and vulnerable residents.

 

Our response – Point 3

 

With regard to this element of your request I confirm that the Care
Inspectorate is and has not carried out any specific analysis or
assessment of data relating to deaths due to Covid-19.  Therefore, under
FOISA, we have applied the exemption Section 17, Information is not
held as the Care Inspectorate does not hold the information you have
requested.

However, we have published a report in which we have included our findings
relating to analysis of care homes where it is indicated there may be
relationships, although untested,  between a high number of cases of
suspected COVID-19 and size of service, geographical location (including
urban/rural) and provision of nursing care.  The document is published on
the Care Inspectorate website and can be access via this [10]link.

 

Right to review

 

If you have any queries regarding our response to your request under FOISA
you may ask for a review.  If you wish to instigate a review you can do
this by emailing the Information Governance Team
at [11][email address] stating your reason(s) for
dissatisfaction.  This must be done within 40 working days of receiving
this email.

 

Right to appeal

 

If you remain dissatisfied with the decision of the Care Inspectorate in
relation to how we have dealt with your request for information considered
under FOISA you have the right to pursue the matter with the Scottish
Information Commissioner within six months of receiving our review. You
can contact the Commissioner at:

The Scottish Information Commissioner

Kinburn Castle

Doubledykes Road

St Andrews

Fife

KKY16 9DS

 

Online:                 [12]OSIC Online Appeals

Email:                   [13][email address]

Telephone:          01334 464610

 

Should you then wish to appeal against the Commissioner’s decision there
is a right of appeal to the Court of Session on a point of law only.

We respect your privacy and will only use your personal information fairly
and lawfully. To find out how we handle your personal information please
read the Privacy Notice on our [14]website.

Yours sincerely

 

Information Governance Team

 

 

Information Governance Team

Care Inspectorate
Compass House
11 Riverside Drive
Dundee
DD1 4NY

 

OFFICIAL

COVID-19: We continue to put people at the heart of all we do – now more
than ever – and this means everything we do is aimed at keeping people
safe and services supported. The health and wellbeing of our people, and
all those we come into contact with comes first. We are working remotely -
away from our local offices - and using technology to connect in with
people. You can contact us via email at
[email address] or you can find all information
related to COVID-19 on our website. Offices are also closed to members of
the public until further notice.

[15]Corona This email may contain confidential information and its content
is solely for the use of the individual to whom it is addressed. If you
are not the intended recipient, please inform the sender that you have
received this email in error before deleting it. Any disclosure,
reproduction, copying, distribution or other dissemination or use of this
email is strictly prohibited. All outgoing messages are checked for
viruses however no guarantee is given that this email message, and any
attachments, are free from viruses. You are strongly advised to check for
viruses using your own virus scanner. The Care Inspectorate will not
accept responsibility for any damage caused as a result of virus
infection.

References

Visible links
1. https://www.careinspectorate.com/index.p...
2. https://www.careinspectorate.com/index.p...
3. https://gbr01.safelinks.protection.outlo...
4. mailto:[email address]
5. https://www.careinspectorate.com/index.p...
6. http://www.careinspectorate.com/
7. https://www.nrscotland.gov.uk/statistics...
8. https://www.gov.scot/publications/corona...
9. https://www.careinspectorate.com/index.p...
10. https://www.careinspectorate.com/images/...
11. mailto:[email address]
12. https://gbr01.safelinks.protection.outlo...
13. mailto:[email address]
14. https://www.careinspectorate.com/index.p...
15. https://www.nhsinform.scot/coronavirus

CI Info Governance,

1 Attachment

OFFICIAL

Dear Mr Matchett

 

Freedom of Information (Scotland) Act 2002 (FOISA)

Information Request

 

I refer to your request dated 2^nd of December under FOISA for the
following information:

 

“I would appreciate a detailed breakdown of when the Care Inspectorate
began to take its opinion not to disclose data on a service provider level
due to this undertaking from the COPFS”

 

Our response

 

Please find attached the information you requested

 

The Lord Advocate stated that there would be investigations into all care
home deaths [1]here. 

 

However, the Care Inspectorate made an internal policy decision not to
release death data by care service prior to this announcement, taking into
consideration confidentiality, privacy of service users, staff welfare and
the commercial interests of the services and providers. The Information
Governance Team, Gold Group (an executive operations group convened to run
the response to the Covid-19 pandemic in the Care Inspectorate) and Legal
Team discussed and agreed which exemptions would be considered on  24
April 2020.and have continued to review this throughout the pandemic

 

Right to review

 

I trust this satisfies your request, however if you have any queries
regarding the information which has been provided to you under FOISA you
may ask for a review.  If you wish to instigate a review then you can do
this by emailing:

 

[2][email address].  This must be done within 40
working days of receiving this letter.

 

Right to appeal

 

If you remain dissatisfied with the decision of the Care Inspectorate in
relation to how we have dealt with your request for information considered
under FOISA you have the right to pursue the matter with the Scottish
Information Commissioner within six months of receiving our review. You
can contact the Commissioner at:

 

The Scottish Information Commissioner

Kinburn Castle

Doubledykes Road

St Andrews

Fife

KKY16 9DS

 

Online:            [3]OSIC Online Appeals

Email:              [4][email address]

Telephone:      01334 464610

 

Should you then wish to appeal against the Commissioner’s decision there
is a right of appeal to the Court of Session on a point of law only.

 

We respect your privacy and will only use your personal information fairly
and lawfully. To find out how we handle your personal information please
read the Privacy Notice on our website at
[5]http://www.careinspectorate.com/index.ph....

 

Yours sincerely

 

Information Governance Team

 

OFFICIAL

COVID-19: We continue to put people at the heart of all we do – now more
than ever – and this means everything we do is aimed at keeping people
safe and services supported. The health and wellbeing of our people, and
all those we come into contact with comes first. We are working remotely -
away from our local offices - and using technology to connect in with
people. You can contact us via email at
[email address] or you can find all information
related to COVID-19 on our website. Offices are also closed to members of
the public until further notice.

[6]Corona This email may contain confidential information and its content
is solely for the use of the individual to whom it is addressed. If you
are not the intended recipient, please inform the sender that you have
received this email in error before deleting it. Any disclosure,
reproduction, copying, distribution or other dissemination or use of this
email is strictly prohibited. All outgoing messages are checked for
viruses however no guarantee is given that this email message, and any
attachments, are free from viruses. You are strongly advised to check for
viruses using your own virus scanner. The Care Inspectorate will not
accept responsibility for any damage caused as a result of virus
infection.

References

Visible links
1. https://www.copfs.gov.uk/media-site-news...
2. mailto:[email address]
3. https://gbr01.safelinks.protection.outlo...
4. mailto:[email address]
5. http://www.careinspectorate.com/index.ph...
6. https://www.nhsinform.scot/coronavirus