When Scotland’s Freedom of Information legislation was brought before the Scottish parliament 20 years ago, the serving deputy first minister Jim Wallace told MSPs that enhanced openness would lead to better scrutiny and, therefore, to ‘increased public confidence in decisions that are made which affect people’s lives’. The Freedom of Information (Scotland) Act has been, as Wallace foresaw, a useful tool for journalists and members of the public to reveal the inner workings of public bodies. One Scottish health board, however, is trying hard to dodge scrutiny.
NHS Fife has found itself at the centre of a public storm as it fights an employment tribunal claim brought against it by nurse Sandie Peggie. Peggie lodged a claim of sexual harassment, harassment relating to a protected belief, indirect discrimination and victimisation against the health board after being compelled to share a changing room with a transgender doctor. Her claim is also against the doctor, Beth Upton, whose court costs are being covered in part by NHS Fife.
The Scottish media – and the Scottish public – would like to know how much defending this court action is costing the taxpayer. NHS Fife will not be drawn. It has refused to reveal the cost of the case so far, despite FOI requests lodged by several newspapers. And the FOI request refusal is not the health board’s first attempt at secrecy. NHS Fife applied to have the employment tribunal heard in private, a significant step given that open justice is a vital tenet of the Scottish court system and the obvious public interest in this case. The health board has also caused proceedings to drag on for longer than they otherwise might by failing to disclose all documents required by the court.
It has been pointed out ad nauseam that the money being spent by the health authority might be better diverted to funding the more vital work of treating patients. NHS waiting times in Scotland, the Scottish health secretary and local MSP Neil Gray needs no reminding, are long. The health system is under increasing pressure. And yet, despite these tangible needs, an A&E nurse with 30 years experience has been suspended from duties and tens of thousands of pounds – at least – of public money is being spent deciding whether a female staff member should have an expectation of a single-sex changing room at work.
NHS Fife is not alone in being coy about transparency when caught in a controversial spot. Two of the most high level interventions made by the Scottish Information Commissioner in 2023/24 – for serious systemic practice failure – were against the Scottish government. One was on the use of WhatsApp and the other on its performance around FOI issues. This latter deficiency perhaps explains the relaxed attitude of Scottish health secretary Neil Gray when asked about the NHS Fife situation.
Collared in Glasgow by a political reporter from the Courier, Gray said the release of information was ‘for NHS Fife to determine’. ‘If there are reasons that NHS Fife is giving as to why that cannot be disclosed at this time, I would understand and respect that,’ he added. He perhaps might like to check. But, given that Gray has had a torrid time recently with details of his use of ministerial limos to football matches being released under FOI, he perhaps feels ambivalent as to the legislation’s principles.
NHS Fife has used section 38 of the legislation to turn down the request for the tribunal costs. This relates to the release of third party information and seems a nonsense attempt at a get-out given we know who the parties involved in the tribunal are. It is likely any intervention by the Scottish Information Commissioner will see the costs become public information at some point and the position of NHS Fife will then be even worse. Where it might have been transparent, it will be accused of more obfuscation, more poor decision making and ever more waste of public resources.
There is a reckoning awaiting for public bodies such as NHS Fife that have introduced self-ID by stealth, in contravention to the Equality Act. A Supreme Court judgment is also imminent on whether obtaining a gender recognition certificate modifies the meaning of ‘sex’. The health board has done its level best to keep much of its inner workings private. But the public deserve to know how much taxpayer’s cash has been funnelled into this case.
Comments