Scottish health watchdog unlawfully blocked release of positive Covid-19 discharges into care homes breakdown
Public Health Scotland (PHS) has been told it acted unlawfully by failing to disclose information, including the specific number of patients discharged into named care homes with positive Covid-19 tests and the number of patients discharged into individual care homes from hospital.
Following a request under Freedom of Information legislation, the health watchdog claimed that releasing the information would be a “breach of confidence” and would lead to the identification of individuals who were discharged.
However, in an excoriating decision, officials were heavily criticised for blaming the pandemic for their failure to provide adequate evidence for their argument and were accused of a lack of “rigour” around its response to the Freedom of Information request.
The admonishment comes two weeks after The Scotsman revealed public health officials continue to shield Scottish ministers from criticism using a ‘communications framework’, but now hide the process as it is done ‘informally’.
The statistics requested from PHS were linked to a controversial report by the watchdog into the link between hospital discharges and Covid-19 outbreaks in care homes.
The report, published on October 28 last year, was later republished following criticism from the Office of Statistics Regulation, stating the document had not been clear around its findings.
The new version said PHS “cannot rule out” a link between hospital discharges and Covid outbreaks in care homes.
Officials had initially claimed the detailed breakdown of hospital discharges into care homes could not be released due to constituting a breach of confidence, a defence it later withdrew.
It then argued it was prohibited from disclosing the information altogether, that it would prejudice the effective conduct of public affairs, and would be prejudicial to commercial interests of care homes.
After partially releasing the information, PHS relied on a personal data exemption to stop the release, claiming the use of social media such as TikTok, building a specific computer model to identify individuals, and other available techniques could lead to individuals’ identification.
However, Daren Fitzhenry, the Scottish information commissioner, reserved specific criticism for the health watchdog’s response.
He wrote: “PHS has devoted much attention to the techniques potentially available, but it has not articulated its analysis of the likelihood of any of these techniques being used to identify the individuals under consideration here, or the actual contribution the withheld information would make to such identification.
“Simply following a disclosure protocol, without reference to the circumstances of the particular request, will not do, and neither will the argument [advanced by PHS] that it is not possible to devote resources to such analysis in the middle of responding to a pandemic.
"It goes without saying that the commissioner has sympathy with the demands placed on a key health authority during the pandemic, but that sympathy cannot extend to applying exemptions with anything short of the required degree of rigour.
“The commissioner considers the likelihood of disclosure of the information withheld here making a material contribution to the identification of any living individuals, with any level of accuracy, to be extremely remote. He has not been provided with any evidence of analysis from PHS which would persuade him otherwise.”
A spokesperson for Public Health Scotland said: “Public Health Scotland (PHS) has today disclosed further information to comply with the Freedom of Information (Scotland) Act 2002 (FOISA) to respond to a request for information about the discharge of patients and their Covid-19 test status from hospitals to named care homes.
“PHS originally declined to release the information to protect against the potential identification of individuals under FOISA exemptions relating to personal data. The information requested included the names, and by implication the addresses, of care homes and Covid-19 test status of residents.
“An application to the Scottish Information Commissioner (SIC) for the non-disclosure decisions to be reviewed was subsequently submitted. During the course of the SIC’s investigation, PHS disclosed unredacted information relating to care homes with nine or more cases.
“In considering the recent decision by the Scottish Information Comissioner (external website), PHS sought specialist advice and determined that a long enough period of time had now elapsed reducing the risks in relation to the impact of disclosure on individuals. The information has now been released to comply in full with the SIC decision. Please note that information relating to those care homes with five or less cases remains redacted.
“PHS sought to apply a balance at all times, while risk assessing the likelihood and impact of the disclosure of this information. This is especially important as PHS has a duty to maintain patient confidentiality and its statistical disclosure control protocol while complying with law.”
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