Health (Tobacco, Nicotine etc and Care) (Scotland) Bill: Stage 3

Part of the debate – in the Scottish Parliament at on 3 March 2016.

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Photo of Malcolm Chisholm Malcolm Chisholm Labour

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.