– in the Scottish Parliament on 3rd March 2016.
The next item of business is stage 3 of the Health (Tobacco, Nicotine etc and Care) (Scotland) Bill. Members should have the bill as amended at stage 2, the marshalled list of amendments and the groupings. The division bell will sound and proceedings will be suspended for five minutes for the first division of the afternoon. The period of voting for the first division will be 30 seconds; thereafter, I will allow a voting period of one minute for the first division after a debate.
Section 10—Tobacco and nicotine vapour product banning orders
Amendment 1 is a technical amendment that is required as a result of an amendment to the bill at stage 2. The stage 2 amendment added to the relevant enforcement actions, which can count towards an application for a tobacco and nicotine vapour product banning order. The purpose of the amendment is to make it clear that it is not a requirement that at least one offence must have been committed under chapters 1 and 2 of the Tobacco and Primary Medical Services (Scotland) Act 2010 before a sheriff can be satisfied that a banning order can be issued. That will ensure that a banning order can be applied where three relevant enforcement actions pertain to convictions under section 92(1)(b) or (c) of the Trade Marks Act 1994.
I move amendment 1.
Amendment 1 agreed to.
Section 22—Duty of candour procedure
Amendment 3, in the name of Malcolm Chisholm, is grouped with amendment 4.
Amendments 3 and 4 relate to the provisions in the bill that deal with the duty of candour. As most members will know, the duty will arise if a person experiences unintended harm. In that situation, the organisation involved will have a duty to tell the person, support them, review the situation in order to learn lessons and apologise.
I am strong supporter of the duty of candour. However, when I visited Ardgowan hospice with colleagues from the Health and Sport Committee as part of the palliative care inquiry back in September, we asked the clinicians about the bill, and about the duty of candour in particular. The consultant in palliative care and other staff at the hospice expressed the concern that there may be people who do not wish to be informed about the experience that has caused unintended harm. They were thinking of hospice situations, but there may be other situations in which the person does not want to know—it could be a relative, if the person in question is no longer alive.
That question was also raised during our stage 1 deliberations. Peter Walsh of Action against Medical Accidents was one of the people who gave evidence. He has a great deal of experience of how the duty of candour has operated in England, where it is already in law. He is a great supporter of the duty of candour, and I found what he said about one of the provisions in English legislation quite interesting. He said:
“The way that it has been dealt with in England is that there is a requirement to tell the patient or service user or their family that there is something to report and to discuss, and they can simply say, “Thanks, but I don’t want to know.” Let us say that mum or dad has passed away: the family can say, “We’re moving on and we don’t want to know another thing.” That is their absolute right, but it is not the right of any individual health professional or organisation to decide for them that they do not need the opportunity to know.”—[Official Report, Health and Sport Committee, 22 September 2015; c 9.]
That last point is very important because we are trying to get beyond the paternalistic culture that we used to have in the health service. The appropriate health professional may think, “Oh well, it’s not really in the interests of this person or their relatives to know this”, but that is not the way to deal with such matters. People have the right to know, so they must be asked. Amendments 3 and 4 are an attempt to deal with that point.
I lodged amendments at stage 2 and have now lodged them again in simpler form. I have also taken into account a concern that was raised by the minister in response to my previous amendments. A great deal of what will govern the duty of candour procedures will be in regulations. Section 22 is the critical part of the bill. I propose adding two bits to section 22. Section 22(2)(c) refers to
“a meeting with the relevant person”.
I propose that the regulations that govern that should include the words
“asking the relevant person whether the relevant person wishes to receive an account of the incident”.
One of the points that the minister made in the committee was that, of course, even when a person or their relative expresses a wish not to know, it is still crucial that there be a review of the circumstances that led to the harm. I have therefore lodged amendment 4 to section 22(2)(i), which relates to reviewing the circumstances. I propose to insert the words
“even if the relevant person has advised that the relevant person does not wish to receive an account of the incident”.
The review will still have to go ahead so that lessons can be learned.
I accept that much will be in regulations, but when we pass legislation, there is always a general question about the extent to which we just take on trust what will be in regulations, and the extent to which we should flag up in primary legislation what must be in the regulations. My amendments 3 and 4 strike the right balance. I accept that we cannot work out all the details in the bill, but we should have the right to flag up certain really important dimensions of the regulations.
Obviously, I will listen with interest to what the minister says.
I move amendment 3.
I support Malcolm Chisholm’s amendments, and I will be brief. From my experience in the health service, I am well aware that there are patients who certainly do not want to know the detail of what goes on even in their own treatment, or if there have been mistakes. I appreciate that, for the duty of candour, it is necessary for them to know that there has been something, but it should absolutely be their right not to have to hear the detail of the concern. Malcolm Chisholm’s amendments 3 and 4 support what I think on the issue.
I, too, will be brief. At stage 2, I argued that the duty of candour should go through all health and social care processes, and that patients should be informed of their treatment and given all the available information. That is to make the treatment person centred. Malcolm Chisholm’s amendments 3 and 4 emphasise that the person must be in control of the information that they receive and of whether they get detail. It is about the person being at the very centre of the treatment so that they can either refuse to have information or have all the information about their care.
As other members do, I recognise that it may not always be in the best interests of the individual to be told about what has happened. In implementing the duty of candour, organisations will be required to consider that carefully and ensure that they do not have a one-size-fits-all approach to disclosing information. Organisations will be required to check whether the affected person wants to be told about what went wrong, but regardless of that, the main aim is that organisations will be required to take steps to review incidents irrespective of whether the affected person wants to be told about what went wrong. The bill allowed that to be included in regulations, and the Scottish Government’s duty of candour implementation advisory group will, of course, include that in implementing the bill.
Given Malcolm Chisholm’s persistence on that point and, perhaps, as a parting gift from the Scottish Government, I am content to support amendments 3 and 4.
I thank the minister very much for that, but I assure her that I am not parting yet. I have two and a half weeks’ worth of speeches left.
Amendment 3 agreed to.
Amendment 4 moved—[Malcolm Chisholm]—and agreed to.
After section 28
We move to group 3. Amendment 2, in the name of the minister, is the only amendment in the group.
Presiding Officer, I indicated at stage 2 that an amendment would be lodged at stage 3 in relation to the care-worker offence of ill-treatment or wilful neglect, which is set out in section 26 of the bill. Amendment 2 will add that offence to the list of offences in the Police (Scotland) Act 1997 that must always be disclosed in higher-level disclosures. I thank Mary Scanlon for the work that she has done on the amendment.
The serious nature of that offence and the breach of trust that is involved are such that the passage of time will not diminish the relevance of the information to a prospective employer or volunteer organisation. Amendment 2 will ensure that Disclosure Scotland will always disclose spent convictions for that offence.
Its inclusion on the list of offences that must always be disclosed means that no matter how old the conviction is, it will always be disclosed in a higher-level disclosure and will therefore be available to employers and volunteer organisations.
I move amendment 2.
I thank the minister for her response and for the very reasonable hearing that I got at stage 2. I am grateful that she has lodged amendment 2.
Amendment 2 was born out of contact with a constituent, Mrs Blan Bremner, whose mother, Mrs Doreen MacIntyre, died in a care home in Inverness. Mrs Bremner gave me permission to use her name and asked me what I could do in this session of Parliament to stop people who abuse, neglect and maltreat elderly people in care homes from simply walking out and getting another job. I am very grateful to the minister for lodging amendment 2.
Given that I am not on the committee and am not steeped in understanding of the bill, I want to ask for some clarity. At stage 2, the minister said:
“In addition—and more specifically in relation to the offences in part 3 of the bill—a court may, when convicting an individual, refer that individual to Disclosure Scotland if it thinks that it might be appropriate for the individual to be considered for listing.” —[Official Report, Health and Sport Committee, 26 January 2016; c 16.]
I heard what she said today, but that response at stage 2 slightly bothers me, because it seems to bring a degree of uncertainty to say that the court, when convicting an individual, may refer to Disclosure Scotland only when the court thinks that it is appropriate for that person to be considered for listing. I know that Mrs Blan Bremner certainly would not like anyone to suffer in the way that her mother did. I want to make sure that the provision is watertight.
I will make sure that Mary Scanlon’s point is clarified in the regulations and guidelines on the bill’s implementation.
Amendment 2 agreed to.