Commentary on Provisions Gathering and use of information Section 12: Power to require information
28.Section 12 empowers the Commissioner to require certain persons to supply information to the Commissioner. Those persons are providers of health care, including independent health care providers, and bodies constituted by virtue of the National Health Service (Scotland) Act 1978. The latter group includes Scottish NHS bodies which have functions relating to health care but which do not provide health care directly themselves (such as Healthcare Improvement Scotland and Public Health Scotland). Failure to supply requested information may result in the Commissioner taking action under section 14.
29.The Commissioner’s power under section 12 cannot be used to require a person to supply information about individuals. The power could be used, for example, to require a health care provider to supply details of its protocols and procedures for dealing with a particular type of incident. But it could not be used to access the medical records of patients, or the personnel information of staff, involved in a specific incident of that type. In order to access information about individuals, the Commissioner would have to exercise the power conferred by section 13 in the context of a formal investigation.
30.The Commissioner’s power under section 12 also cannot be used to require a person to supply information that the person could not be compelled to give in court. This means, for example, a person cannot be required under section 12 to answer questions that may incriminate the person in the commission of a crime.