Group 1 relates to the creation of offences for misuse of confidential information. Amendment 1, in the name of Lord James Douglas-Hamilton, is the only amendment in the group.

Amendment 1 would make the improper use of confidential medical information an offence punishable, on summary conviction, by a fine not exceeding level 4 on the standard scale.

In his communication to the committee, the minister stated:

"we consider that disciplinary action by employers and professional bodies provide sufficient sanction in the unlikely event of any such misuse of information gathered during an inspection."

He also said:

"I would reiterate our view that professional codes of practice and the sanction of disciplinary action are sufficient to enforce the provisions in our amendment regarding the use of information obtained for the purposes of an inspection."

However, the minister's response does not render redundant the case for the amendment. We are all well aware that the British Medical Association and local doctors are seriously concerned in case confidential medical information should slip out inadvertently into the public domain. As it is the season of Robert Burns, I am tempted to say:

"The best laid schemes o' Mice an' Men

Gang aft agley".

The purpose of my amendment is to reassure the medical profession that these matters are not being deal with lightly and that improper and unauthorised use of medical information will be taken seriously.

I am well aware that the minister says that an offending individual can be sacked on the spot. However, I believe that, in the words of Sir Winston Churchill,

"There is more error than malice in human affairs" and that it is not beyond the bounds of possibility that excessive workloads could inadvertently lead to unintended effects. Furthermore, the offence would be a much lesser sanction than sacking, as it would involve only a fine of up to £2,000.

Even so, bearing in mind that we are aware of no breaches of confidentiality by Her Majesty's inspectors on any occasion, I recognise that this provision might well never have to be relied on. If so, that will be an altogether satisfactory state of affairs. However, amendment 1 would still serve as an extremely valuable signal to Scotland's medical profession that, in the sensitive area of medical confidentiality, every effort will be made to maintain the highest standards.

I move amendment 1.

As Lord James Douglas-Hamilton highlighted, the confidentiality of medical records was one of the major issues that the committee grappled with throughout the passage of the bill. The key changes that we made at stage 2 related to making it explicit in the bill that confidential information must remain confidential for the purposes for which it was gathered. Section 3(1A), which contains that change, is sufficient to deal with the concerns that have been raised by the medical profession, to which Lord James Douglas-Hamilton referred. I do not think there is any need to go further than to say to someone who is employed as an inspector in one of our inspectorates that, if they breach the provision, they will have contravened an act of Parliament. That should ensure that the appropriate disciplinary action is taken. In some cases, the breach will be viewed as gross misconduct, leading to instant dismissal. If the breach were inadvertent, as Lord James Douglas-Hamilton suggested that it might be, the sanction that would be imposed by the employers would probably be more lenient.

The amendment that was agreed to at stage 2, in line with the intention of the Parliament, is sufficient to ensure confidentiality and to reassure the medical profession.

I support amendment 1, in the name of Lord James Douglas-Hamilton. I supported it by signing the original amendment. As other members have said, the issue of confidentiality has been key in the debate on the bill, which is fast-track legislation. We should respect the views and concerns of the medical profession, especially on the issue of confidentiality. I thank the minister for paying close attention to the concerns that were raised by the Parliament at stage 1 and in the amendments that were lodged at stage 2, and for introducing the issue of confidentiality into the bill. Had we not had the pressure of scrutiny of the bill by members of all parties, I do not think that the duty of confidentiality would necessarily have been included; it was not in the bill originally.

If there is a breach of that confidentiality, should it be dealt with through internal disciplinary processes, or do we recognise that, because of its serious import, some form of judicial response—in this case, a fine—should be signalled? The concerns of the medical profession are sufficient for us to say that we do not think that breach of confidentiality should be dealt with internally in an employment situation. We recognise those concerns and we want to send out a clear signal that any breach of confidentiality carries a social penalty and will be met with a judicial response.

We have come some distance, but the provision for fines would go a great deal further towards reassuring the medical profession that we respect issues of confidentiality. We want to ensure that the bill contains a clear signal that breach of confidentiality will be disciplined not through internal employment measures, but through judicial response. As Lord James Douglas-Hamilton said, such a response would be required only rarely. I think that it is the responsibility of the Parliament to give that reassurance to the medical profession.

As other members have said, the issue of confidentiality was much discussed by the committee as a matter of concern. As a result, the Executive lodged an amendment at stage 2 to take on board some of the concerns that were discussed.

If we go as far as Lord James Douglas-Hamilton and Fiona Hyslop wish us to go, we will make the inspectorate subject to a series of penalties to which no other inspectorate is subject. No other inspection agency in Scotland is subject to the offence of a breach of confidentiality; I question why we should have to introduce that offence for this specific group of inspectors.

Some members of the medical profession do not share the British Medical Association's concerns.

The BMA has particular concerns that were not echoed by paediatricians, for example.

Finally, why should we consider breaches of confidence in relation to medical records as different from breaches of confidence in relation to social work records? Social work records may contain information that could be more damaging to the individual concerned than their medical records.

I am not at all persuaded by the case that has been put to Parliament this afternoon by Lord James Douglas-Hamilton and Fiona Hyslop. The Executive is fully aware of the importance of confidentiality in the bill and in the manoeuvrings that take place in support of the inspection process. From the beginning of the bill process, we have been cautious and concerned to look at that in considerable detail, and we have been assisted by the work of the committee in that regard.

There seems to be a fairly weak case for hauling a series of inspectors before our overworked courts in order to fine them for what Lord James Douglas-Hamilton describes as inadvertent overwork. I am not impressed by the logical reasoning behind that, especially concerning the inadvertence aspect. Frankly, inadvertence—as I am sure Lord James Douglas-Hamilton will know—is not a basis for any kind of criminal offence in this matter. I am all for sending signals, but I am not for sending signals by way of fining people. That does not seem to be the way in which to do it, unless there is a cause made beyond that.

I think that we should be guided by the underlying message of the Education Committee's stage 1 report, with which the Executive fully agreed. Although there was no fundamental disagreement with the principles of the bill, the report identified a need to provide reassurance among a range of interests—not just medics, but social workers and others—that the confidentiality of children and their families would be safeguarded. The report recognised that there is a need to build confidence and understanding in the joint inspection process. Working with the committee, we have built in a number of measures to provide that reassurance.

Most important, we have introduced in the bill a duty of confidentiality, which has been mentioned. A new duty will not be introduced, as the duty already existed, but the duty has been declared in the bill, which is important. The duty will require all members of the joint inspection team not to disclose confidential information, although there are some prescribed exceptions.

That duty of confidentiality will be of great benefit, but I fail to see how the introduction of the offence in question would add any further value. No other inspectorate in Scotland is subject to such a provision; indeed, those same inspectors would not be subject to any such offence when they were acting in a single inspection. The Executive does not know of any example of a breach of confidentiality by any of Scotland's inspectorates or regulatory bodies. Why would we want to legislate for an eventuality that has never occurred? In the law-making process, the Parliament has always considered the mischief that it is trying to mend and asked whether that mischief is based on fact and reality. If it is, we will do something; if it is not, we should not legislate.

The Education Committee noted in its stage 1 report that only limited provision exists for such offences in England and Wales. The Health and Social Care (Community Health and Standards) Act 2003 provides for offences, but only in relation to confidential personal health information that has been obtained by the Commission for Healthcare Audit and Inspection, which is interesting. We are talking about a minor exchange in that regard. We are not in the business of creating unnecessary criminal offences.

The draft code of practice for the joint inspection of child protection services, with the duty of confidentiality, as recommended by the Education Committee, will address in detail how confidential information will be handled in full compliance with the Data Protection Act 1998 and the European convention on human rights. The draft code was circulated last week to all members of the Education Committee and it will be issued again externally by the end of January. Again, as a result of helpful discussion with the committee, the bill as amended at stage 2 will require the joint inspection team to have official and formal regard to the code.

Elaine Murray made a good point about whether there is something different about medical records. Medical records are important and there has always been concern about them, but, to be honest, social work records also contain substantial and important personal information. No distinction can be made in real terms between the different sorts of record in our approach to the bill.

I am confident that the requirements in the bill, with the joint inspection team's professional codes and the individual contracts of employment that Lord James Douglas-Hamilton rightly talked about, will provide sufficient sanction in the unlikely event of any misuse of confidential information that is gathered during an inspection.

I hope that what I have said and our having gone over the issue for the Official Report will satisfy Lord James Douglas-Hamilton. I urge him to seek to withdraw amendment 1.

On a point of order, Presiding Officer. I thought that I was having a senior moment, but I am glad to say that I have not been having one. The bill, as introduced, is available for members, but there are no copies of the bill as amended at stage 2, which makes things difficult for members. I wonder whether those bills could be replaced.

I will attend to that and get the right bills sent to the back of the chamber.

I thank the minister for his conciliatory reply. However, we think that a signal should be given to reassure the medical profession, therefore I will press amendment 1.

The question is, that amendment 1 be agreed to. Are we agreed?

Members:

No.

There will be a division. I suspend the meeting for five minutes to allow members to get to the chamber. There will then be a 30-second voting period.

Meeting suspended.

On resuming—

We will now proceed with the division.

Division number 1

For: Adam, Brian, Aitken, Bill, Baird, Shiona, Ballance, Chris, Ballard, Mark, Brocklebank, Mr Ted, Brownlee, Derek, Byrne, Ms Rosemary, Crawford, Bruce, Douglas-Hamilton, Lord James, Fabiani, Linda, Fergusson, Alex, Fox, Colin, Fraser, Murdo, Gallie, Phil, Gibson, Rob, Goldie, Miss Annabel, Grahame, Christine, Harper, Robin, Harvie, Patrick, Hyslop, Fiona, Johnstone, Alex, Kane, Rosie, Leckie, Carolyn, MacAskill, Mr Kenny, Marwick, Tricia, Matheson, Michael, Maxwell, Mr Stewart, McLetchie, David, Milne, Mrs Nanette, Mitchell, Margaret, Neil, Alex, Ruskell, Mr Mark, Scanlon, Mary, Scott, Eleanor, Scott, John, Stevenson, Stewart, Swinney, Mr John, Welsh, Mr Andrew, White, Ms Sandra
Against: Arbuckle, Mr Andrew, Baillie, Jackie, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Canavan, Dennis, Chisholm, Malcolm, Craigie, Cathie, Curran, Ms Margaret, Deacon, Susan, Eadie, Helen, Ferguson, Patricia, Finnie, Ross, Gillon, Karen, Glen, Marlyn, Gordon, Mr Charlie, Gorrie, Donald, Henry, Hugh, Home Robertson, John, Hughes, Janis, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lyon, George, Macdonald, Lewis, Macintosh, Mr Kenneth, Maclean, Kate, Macmillan, Maureen, Martin, Paul, May, Christine, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McMahon, Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Pringle, Mike, Purvis, Jeremy, Radcliffe, Nora, Robson, Euan, Rumbles, Mike, Scott, Tavish, Smith, Elaine, Smith, Iain, Smith, Margaret, Stephen, Nicol, Stone, Mr Jamie, Swinburne, John, Wallace, Mr Jim, Whitefield, Karen, Wilson, Allan
Abstentions: Turner, Dr Jean

The result of the division is: For 40, Against 65, Abstentions 1.

Amendment 1 disagreed to.