Health (Tobacco, Nicotine etc and Care) (Scotland) Bill

– in the Scottish Parliament at on 3 March 2016.

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Photo of John Scott John Scott Conservative

The next item of business is a debate on motion S4M-15801, in the name of Maureen Watt, on the Health (Tobacco, Nicotine etc and Care) (Scotland) Bill. I call the minister, Maureen Watt, who has a generous 10 minutes.

Photo of Maureen Watt Maureen Watt Scottish National Party

I am delighted to open the debate on the Health (Tobacco, Nicotine etc and Care) (Scotland) Bill. I thank the Finance Committee, the Delegated Powers and Law Reform Committee and particularly the Health and Sport Committee for their consideration and scrutiny of the bill as it progressed through the parliamentary process.

The bill is wide ranging. If passed, it will contribute to helping people live longer, healthier lives, to tackling significant inequalities in Scottish society and to improving the delivery of health and social care services.

Cross-party support for preventing the harm that tobacco use causes has seen Scotland remain a world leader on tobacco control. The Government has been clear that it will continue to encourage everyone, and particularly children and young people, to choose not to smoke. By so doing, we hope to create a tobacco-free generation of Scots by 2034. Creating the offences of smoking and of knowingly permitting smoking within a perimeter around buildings on national health service hospital grounds is an important step towards continuing to denormalise smoking behaviour and achieving our ambitious target.

As I have said before, the bill is not about stigmatising smokers. Preventing ill health is a major challenge for our health services now and in the future. Tobacco remains the biggest cause of preventable disease and death in Scotland, and I am proud that the NHS has shown, and will continue to show, leadership in supporting and promoting healthy behaviours, particularly through tackling smoking.

For the first time in Scotland, the bill introduces controls that are specific to e-cigarettes, or nicotine vapour products—NVPs—as they are termed in the bill. There has been much debate among experts about the potential risk, and the potential benefits, of those new products. Such interesting and lively debate has also been evident during the Parliament’s consideration of the bill, but I am pleased that we have not allowed the debate to become sensational.

The Scottish Government has worked closely with experts and stakeholders and listened to their views to achieve the right balance in regulating NVPs. I am pleased that we can all agree that non-medicinal NVPs should not be available to children under the age of 18 and that over-18s should be prevented from purchasing such products on their behalf. Agreement has also been widespread on the benefits that are associated with placing further age controls on the sale and purchase of tobacco products.

The requirement for persons who intend to sell NVPs to be on the register of tobacco and NVP retailers was the focus of much of the debate on part 1 of the bill. That was because of concerns that the requirement to have a single register would send the message that NVPs are just as harmful as tobacco products are.

However, it has been agreed that a single register is required to reduce the burden on retailers and enforcement officers. As I indicated in my response to the Health and Sport Committee, that issue is about how the register is presented. I have already committed to providing a separation between the products on the website where the register is held. That does not require a change to the legislation and will be managed during implementation.

There is nothing in the bill that demonises NVPs or NVP users, and I have been clear that any public health gains should not be hindered by unnecessary regulation. However, it has been agreed that there is no place for marketing of the products to children, young people or non-smokers. The detail of such a prohibition will be set out in regulations.

The bill places a duty of candour on health and social care organisations. Increasingly, it is recognised that openness and transparency are essential elements of health and social care systems. The duty of candour will apply to organisations that provide healthcare, social care and social work services. It will help to promote an open learning culture and accountability for safer systems. It will be a driver for staff engagement in improvement work and will engender greater trust among patients and service users.

The bill requires an organisation that becomes aware that there has been an adverse event resulting in harm to follow the duty of candour procedure. The procedure, which will be set out in regulations, will require organisations to take action to meet, apologise to and support the affected person. It will detail the requirements for recording and monitoring incidents and the provision of training and support to staff who carry out the procedure. The bill also requires all organisations to report publicly on the number and nature of the events that have been disclosed to people and to confirm that the obligations of the organisational duty of candour have been met.

It is worth remembering that legislation forms only one part of the duty of candour. We will work with stakeholders to produce guidance and national training resources to assist organisations in the implementation of the duty. Many organisations already have procedures in place for handling complaints or responding to adverse or significant events. Therefore, the additional administrative demands of the duty should be minimal for most.

Care, compassion and dignity are central to the vast majority of the health and social care that is delivered every day throughout Scotland. The bill’s provisions on ill treatment or wilful neglect strengthen corporate accountability in health and social care and allow the criminal justice system to hold individuals and organisations to account when they are responsible for serious and deliberate neglect or ill treatment in providing care.

Those offences are not about catching people who are doing the best they can in a busy environment; they are about dealing with situations where someone intentionally sets out to neglect or ill treat a person who is in their care. When neglect or abuse has taken place, it is important that there is access to justice for victims of such neglect or abuse. The bill will help to achieve that.

The provision of communication equipment and the associated support that is required to use that equipment are key requirements of children and adults who have lost their voice or who have difficulty speaking. The bill places an explicit duty on Scottish ministers to provide or secure the provision of communication equipment and associated support. In addition, under the existing powers of the National Health Service (Scotland) Act 1978, Scottish ministers will issue directions to health boards in the near future to support the discharge of that duty. Those directions will be developed in consultation with a group of stakeholders and will contain the correct level of detail to address the operational issues that we know are a concern. The group will meet next week to start the development process.

Loss of voice has a huge impact on the affected individuals, and the bill will ensure that those who are in need have access to the appropriate equipment. Importantly, they will also have access to the support that they require to enable them to lead as independent a life as possible and to participate in society.

I move,

That the Parliament agrees that the Health (Tobacco, Nicotine etc. and Care) (Scotland) Bill be passed.

Photo of Rhoda Grant Rhoda Grant Labour

First, I thank the staff of the Health and Sport Committee, the legislation team and all the others who helped with the bill process, as well as all those who came to the committee to give evidence in person and who submitted evidence in writing, which helped us to scrutinise the bill.

The bill is a bit cobbled together. As a piece of proposed legislation, it covers many different areas and it has appeared to confuse some issues by linking them together as part of the same thing. That has been unhelpful.

Provisions to control nicotine vapour products and to stop smoking outside hospitals make a link between the two issues, and that has caused confusion, as did introducing a duty of candour in the same place as wilful neglect was being criminalised. That confused the issue at times by drawing links that simply are not there.

We are a long way from having the last word on nicotine vapour products. Evidence is sketchy with a new product, so legislation will change as more becomes known about NVPs. However, the evidence strongly suggests that they are much safer than cigarettes and that they could save lives as an alternative to smoking. Therefore, any negative suggestions in the bill that discourage people from moving from cigarettes to NVPs would not be helpful.

However, we cannot say that NVPs are safe, either. There is little legislation that covers the chemicals that are included in the various brands. NVPs do not all have the same chemicals in them, and it is therefore difficult to assess any harm and legislate for that. Neither is it clear what the health effects of some of the chemicals are. Some products contain nicotine, but that is not always the case. Although we encourage smokers to move to NVPs, it would be foolhardy to suggest that non-smokers should take up vaping.

In addressing smoking on hospital grounds, the bill has tended to cause confusion about the position of NVPs; it does not include NVPs at all in that respect. Many of the provisions on smoking in hospital grounds will be delivered through regulations, which will require to be scrutinised. It is difficult to imagine how the eventual legislation will work in practice, given the different locations that the regulations will cover.

It was clear to the committee that windows and doorways should always be clear of smoking. However, how that can be ensured when windows and doorways face a street is a different issue.

There were concerns about staff having to enforce the legislation and the possibility that, if they did not, they would find themselves at odds with the law. There were also concerns that staff could commit an offence by assisting patients to get outside if they wanted to smoke. The minister assured us that that will not be the case and that the only staff who will enforce the legislation will be those who are employed specifically for that purpose, which means that there will be no conflict between policing the legislation and the needs of a patient or the duty of patient care.

The bill introduces a duty of candour for health, social care and social work organisations. That means that, if a patient or client is accidentally harmed by treatment, they need to be told about that. However, the bill legislates for that only when the harm is significant. There is a reporting procedure, as well as a procedure for an apology to be given.

I maintain that a duty of candour should run through all actions and errors, so that we have open and transparent services. People should be informed of all aspects of their treatment, as well as mistakes that might be made. That would build confidence in the service and lead to a patient-centred approach. Although it would be time consuming—indeed, impossible—to surround all that with a bureaucracy, it should be part of the information that patients can access at all times, unless they do not wish to have that information, as Malcolm Chisholm suggested when he spoke about his amendments earlier.

The bill deals with wilful neglect, which was sometimes confused in discussions with issues around the duty of candour, because people believed that the issues were on the same spectrum. That is absolutely not the case. The duty of candour is about informing patients of unintended consequences and genuine mistakes, whereas wilful neglect is just that: wilful and intentional neglect and mistreatment that comes about through direct malice towards a patient or client or because an owner or manager does not provide adequate resources to ensure a reasonable quality of care. When a carer cannot provide an acceptable level of care because they have not been given the time or resources, they are not liable, but their employer is. However, if they neglect or mistreat a service user, they will be personally responsible.

Most people who are in a caring profession are compassionate and provide selfless care—we all pay tribute to them—but a minority of people who choose to enter the profession do not really care about the treatment of vulnerable people. It is only right that they should feel the full force of the law, and I am really pleased that anyone who is convicted under the bill will have that conviction remain so that they will never be in a position to treat people in that way again.

At stage 2, the Government lodged an amendment that added a section on the provision of communication equipment. That was welcomed by everybody in the committee and beyond. The amendment was down to the work and dedication of Gordon Aikman, who has campaigned tirelessly for that measure and for better services across the board for people with disabilities. He is an amazing man who has achieved much in a short time.

We can only imagine what losing the ability to speak would be like. It would be devastating. Therefore, communication equipment is a lifeline that allows people to express wishes and continue to be part of their social network. How frustrating it must be to be able to listen, surrounded by people, but not to be able to contribute. When that contribution is about someone’s life, circumstances and care, the feeling must be even worse. A right to communication equipment is therefore necessary and is a welcome addition to the bill.

We will support the bill tonight because it will make a difference to our constituents’ lives.

Photo of Nanette Milne Nanette Milne Conservative

This afternoon sees the completion of the fifth piece of legislation to be scrutinised by the Health and Sport Committee in the last few months of this parliamentary session. I echo the thanks that have already been expressed to all those who have contributed to our understanding of the bill’s provisions and to those who have worked to make improvements to it as it has made its way through the parliamentary process. I feel particularly indebted to the committee clerks, who have shouldered a heavy workload recently, and to the witnesses who provided written and oral evidence as the committee scrutinised the bill in its early stages.

The Health (Tobacco, Nicotine etc and Care) (Scotland) Bill contains three important parts. As we know, part 1 progresses the Scottish Government’s anti-smoking strategy by introducing policies on tobacco, nicotine and smoking; part 2 introduces a duty of candour to encourage a culture of openness within the NHS and social care services; and part 3 brings in a new offence of wilful neglect and ill treatment, which is aimed at health and social care professionals and providers of care.

When I was preparing for this short debate, I found the briefings from Action on Smoking and Health Scotland and the Royal College of Nursing very useful. Those briefings neatly sum up the general response to the provisions of the bill as it comes to the end of its parliamentary scrutiny.

Part 1, which deals with the regulation of electronic cigarettes and introduces a statutory ban on smoking within a designated distance from hospital buildings, is widely accepted and welcomed. ASH Scotland focuses on nicotine vapour products as a means of reducing the use of tobacco, which is a goal of everyone involved in public health. There is a growing body of anecdotal evidence that e-cigarettes have assisted people who were previously very heavy smokers to quit smoking when all other attempts have failed. Any potential harm from the use of NVPs will have to be monitored over time, but there seems to be little doubt that they are very much safer than tobacco products.

There are, however, concerns about people who use NVPs alongside tobacco, and particularly about attempts to recruit non-smokers into using nicotine via NVPs. That is why the bill’s proposals on age restrictions, a ban on self-service sales through vending machines and requiring people who sell e-cigarettes to register and adopt age verification policies are seen as sensible and proportionate.

I think that the proposed restrictions on marketing—particularly promotions aimed at young people—will be useful in preventing vaping from becoming a gateway to smoking, which appears to be happening in some countries, although not yet in the UK.

The ban on smoking in designated parts of hospital grounds will give statutory backing to the current position held by most NHS boards, which have introduced smoke-free policies in hospital grounds. That ban is receiving a general welcome, although concerns have been expressed to me about patients in psychiatric hospitals who find it extremely difficult to give up smoking. However, I agree with the health boards’ assertion that physical health is as important for people with a mental health problem as it is for other members of society. In that context, I find ASH Scotland’s suggestion of testing the success of weaning such patients on to e-cigarettes to help them quit tobacco an interesting proposal. That approach could also be tested in the prison population, where heavy smoking is the norm.

I fully accept that NVPs are much safer than tobacco-based products but, as yet, there is no knowledge of any potentially harmful effects of vaping. Therefore, the evolving use of NVPs needs to be monitored over time, and I hope that, in a few years’ time, the Parliament might find time to look at the effectiveness of the legislation in relation to public health.

Although some concerns have been expressed about the need to introduce a duty of candour, I think that there is a general acceptance that such a measure is needed to drive cultural change within health and social care services. However, the RCN still has serious reservations about part 3 of the bill, which introduces an offence of ill treatment and wilful neglect. It feels that it might work against building the culture of transparency that we all want to see in our health and social care services if people feel that they could be under the threat of litigation, particularly when they are faced with the stresses of a shortage in workforce capacity.

The duty to provide or procure communication aids and other support for those who need such assistance is, of course, a very welcome addition to the bill, and I am more than happy to endorse it. As the minister said, communication is essential for human wellbeing, and the inability to communicate can be quite devastating for those who are affected. A friend of mine had a stroke, following which he could understand what people were saying, but could not articulate a response. He was like that until his dying day, and it was very obvious that it was the most frustrating thing that he ever had to cope with in his life. Therefore, I feel very strongly about the matter.

I will go into a little more detail about the reservations that have been expressed about parts 2 and 3 in my closing remarks. Overall, I find the bill’s provisions acceptable, and the Scottish Conservatives will support it at decision time.

Photo of Willie Coffey Willie Coffey Scottish National Party

The bill marks another staging post in the long journey towards improving public health in Scotland and our aim of limiting exposure to smoke and discouraging smoking behaviours. If the bill is passed, it will help to improve patient safety and the rights of patients by introducing the duty of candour or openness for care providers, which was debated and agreed earlier. It will help us to regulate the sale of NVPs or e-cigarettes, and it aims to reduce the exposure that youngsters may be getting to those products. It will also make ill treatment and wilful neglect in social care settings a criminal offence.

The overall aim of the bill is to have tobacco no more by 2034. A tobacco-free generation in Scotland, with the consequent benefits for public health and savings for the public purse, is a key prize to be won if we are successful. However, that will not be easy to achieve, because we are dealing with addiction and substantial vested interests. In addition, frankly, many people like cigarettes and do not intend to give them up. Nevertheless, we need such interventions to prevent people from taking up the habit, as they will probably get us to that tobacco-free Scotland eventually.

It is estimated that treating smoking-related illnesses costs the national health service in Scotland about £400 million every year, with about 33,500 admissions. Sadly, about 13,500 deaths each year are attributable directly to smoking. The scale of the problem that we face is shown in the fact that cigarette sales in the United Kingdom are worth around £13 billion a year, with a nice cheque for about £10 billion of that going to the Treasury in duty and VAT. Sales of e-cigarettes in the UK have been estimated to be worth about £127 million a year. Last year, nearly 33 billion cigarettes were released into the market in the UK, and we can estimate that about 3 billion of those were smoked by people in Scotland. Thankfully, however, the trend is coming down. In 1999, in Scotland, over 30 per cent of adults aged over 16 smoked, but that figure is now down to 23 per cent or thereabouts. That must give us all some encouragement.

As members have said, the bill is split into three parts. Part 1 contains provisions prohibiting the sale of e-cigarettes or NVPs to anyone under 18, and it will be an offence to purchase them for someone who is aged under 18. The bill will also prohibit their sale from vending machines, and retailers will have to register that they sell them, just as they register that they sell ordinary tobacco products. Part 2 deals with care settings and places a duty of candour on health and social care organisations to inform people that they have been harmed as a result of the care or treatment that they have received. In that context, I welcome Malcolm Chisholm’s amendments, which the minister accepted earlier. Part 3 creates a criminal offence of ill treatment or wilful neglect in health and social care settings.

I will say a brief word about e-cigarettes. Constituents of mine and some colleagues in Parliament say that e-cigarettes have helped them to reduce their smoking habit, and the Scottish Government recognises that e-cigarettes may have a role to play in quitting smoking. There is limited data available to allow us to come to a conclusion one way or the other, although I am pretty sure that that data will emerge in due course.

The bill is another good step forward in helping to prevent younger people from getting hooked on smoking, and in helping to protect people in healthcare settings, as has been outlined. I think that we are winning the battle on smoking, but there is still a long way to go until we can finally extinguish cigarettes from Scottish culture once and for all. Although 2034 seems a long way off, if we get this right, we can look forward to a tobacco-free society in Scotland.

Photo of Malcolm Chisholm Malcolm Chisholm Labour

As Nanette Milne said, this is the fifth bill that the Health and Sport Committee has scrutinised recently—in the past five months, to be precise. I know that because I have been on the committee for only the past five months. Like Nanette Milne, I pay tribute to our clerks, who have been brilliant both with the bill and with all of our heavy workload. I also thank the people who drafted our amendments as well as those who gave such useful and important evidence to the committee at stage 1.

There are five elements in the bill. I can deal with the first two quite quickly. First, everyone supports the right to voice equipment when it is required, and I welcome that provision. Secondly, the specific provision on smoking, which creates a legal basis for having no smoking outside hospitals, has, at the end of the day, proved not be controversial, although there was a lot of discussion about it at stage 1. Although some of the detail of that will come in regulations, everyone welcomes the fact that the policy will be strengthened by being given a legal basis.

I touched on the duty of candour when I introduced my two amendments on the issue, describing, as others have done, the purpose of the duty. I thank the minister again for accepting my amendments. In the evidence received by the committee, Marie Curie, Unison and others strongly supported the legislation because they thought that it would help to drive culture change and ensure organisational shift towards a supportive culture of learning and improvement. That is certainly the intention of the duty of candour, and it is up to everyone to ensure that that intention is realised in practice. One of the committee’s recommendations in its stage 1 report was that there needs to be a co-ordinated, planned and resourced programme of awareness raising, training and support for staff responsible for implementing the policy. That is crucial.

A crucial distinction, which was perhaps not always clear in the concerns that were expressed to the committee, is that, unlike the duty of candour, the ill treatment and wilful neglect offence is to do with deliberate actions. It is crucial that there is training, support and education for relevant staff and organisations so that people and organisations understand what the offence is and know, particularly in the case of organisations, what their roles and responsibilities are.

At the end of the day, perhaps the most contentious provisions turned out to be those on nicotine vapour products. However, I do not think that the tone of this debate will replicate the sometimes acrimonious tone of the debate at stage 1, when people who were pro-electronic cigarettes were lined up against those who were against them. It is striking that, although there are widely varying views inside and outside the Parliament about the issue, all of us support what is in the bill.

I lodged an amendment at stage 2 just to ensure that we can distinguish between the e-cigarette part of the register and the tobacco part. When I met the minister, she reassured me that they will appear quite separately to the public on the website. That meets, at least in part, the concerns of many people who do not wish ordinary cigarettes and e-cigarettes to be conflated in any context. However, we all support a degree of advertising control and actions that prevent young people from accessing those products. Again, the detail of that will be laid out in regulations.

We got a great deal of useful evidence. I was particularly struck by the evidence of Professor Linda Bauld, who has done a great deal of work on e-cigarettes. Members may have heard her on “Good Morning Scotland” at 7.15 this morning. I have been very influenced by her views on the issue. She said in evidence to the committee that

“A recent study shows that people in the UK who stop smoking using electronic cigarettes are 60 per cent more likely to be successful ... than those who use willpower alone or who buy nicotine replacement therapy over the counter.”—[Official Report, Health and Sport Committee, 1 September 2015; c 11.]

We all want Scotland to reach its ambitious target of reducing smoking prevalence to 5 per cent by 2034; I am sure that we would like it to be even lower. I believe that e-cigarettes have a role to play in that. I support the provisions in the bill and hope that we will be spared the rather negative comments about e-cigarettes that we sometimes hear.

Photo of Jim Hume Jim Hume Liberal Democrat

As I mentioned back in December during the stage 1 debate, the Scottish Liberal Democrats welcome plans to help many people live healthier lives, with better guidance and better support, through better and bolder health initiatives.

I was glad to see the Scottish Government’s response to the Health and Sport Committee’s stage 1 report ahead of the debate and the commitments set out for increased spending on health research.

I return to the points that I raised at stage 1 about the importance of basing the bill’s provisions and the regulation of NVPs on substantial and robust evidence. Although more research is being carried out on NVPs’ effects on health, there are more issues that we have to consider, as many members said, such as the marketing and messaging around NVPs. We must ensure that such products are presented as an alternative for people who want to quit smoking and not in a way that entices non-smokers to take them up.

I am encouraged by the commitments that the Scottish Government gave in its response to the stage 1 report. The Government said that NHS Health Scotland and the Scottish directors of public health are revising their position statements to reflect current evidence, and that consistency among national health service stopping-smoking services is a priority.

I remind members that the member’s bill that I introduced, the Smoking Prohibition (Children in Motor Vehicles) (Scotland) Bill, which was passed in December, aims to protect children’s health. I would not like counterproductive measures to be brought in that introduced children to new ways of inhaling nicotine and other harmful substances. I hope that the measures in the bill will be taken forward productively.

At stage 1, I also voiced concern about the balance between the use and necessity of the duty of candour and the new responsibilities that the bill places on health and social care organisations. The imposition of a legal requirement must be accompanied by the right education and support for our hard-working NHS staff. The Royal College of Nursing has said that it is crucial that staff have the required knowledge and skills and that they receive adequate training and support on the duty of candour.

I welcome the application of the duty of candour provision to organisations rather than individuals. That will help to manage the risk better and will lead to more effective learning. However, the views of professional organisations such as the British Medical Association must be considered and taken into account, as always.

No practitioner wants their patients to be harmed or to receive a level of care that is not as good as the service that patients deserve to receive. However, there are instances of ill treatment and wilful neglect, and health and social care actors should recognise their responsibility and be held to account.

I was recently contacted by a constituent who was misdiagnosed with a minor infection—the problem was actually cancer. Despite repeated visits to the hospital, my constituent’s concerns were dismissed and insufficient checks were made of their medical history. That caused the cancer to develop into an incurable one. The person is now trying to buy as much time as they can to spend with their family, because of that mistreatment.

By going a step further and putting in place the right protections for not only staff but patients, we increase the humanity of our health service and recognise that people need to be treated holistically and not in some medical silo.

We support the bill and look forward to voting for it at decision time.

Photo of Nanette Milne Nanette Milne Conservative

I begin my closing remarks by returning to parts 2 and 3 of the bill. I grew up in a paternalistic NHS, at a time when patients expected and received little information about the treatment that they were given and accepted without question that health professionals, particularly doctors, knew best and did their best, even when things went wrong. No one would ever have thought that such people might apologise for a mistake, even if they admitted making one.

I am thankful that we live in a very different world, in which information is widely available. It is only right that patients are as involved as they wish to be in their treatment plans and progress, and it is only right that when something happens that has or could have been harmful to them patients have the right to know about it. Of course, not everyone wants to know the detail of the event that went wrong, which is also their right, but patients or their carers and families should be made aware that information is available to them.

A culture of openness, whereby health and care organisations and their staff feel able to admit mistakes and learn from them, and in which staff can inform service users or their carers and families when treatment has resulted in harm, can only lead to an improvement in patient safety. That, of course, is paramount in a well-run health and social care system.

For that to happen, staff must be supported to learn from mistakes and make improvements, so that errors are less likely to recur. Staff will require proper training in the knowledge and skills that they will need if they are to comply with a duty of candour in a more open climate in the service that employs them. In the past there has sometimes been a tendency within health and care organisations to cover up mistakes. It should be possible in this day and age to be open about those and to apologise to service users when they happen.

Of course, a duty of candour already exists for many health and care professionals, but it does not cover all professions and there can be resulting inconsistencies in the application of such a duty in health and care organisations. I hope that the bill will eliminate those inconsistencies and allow organisations to follow best practice and learn from incidents of unintended harm, with a resultant improvement in the care that they provide, so that such harm does not arise again.

The new offence of ill treatment and wilful neglect is intended to apply only to the most exceptional cases. We know that, sadly, such cases have been exposed. Even when the neglect or ill treatment is proved, however, the perpetrators have on occasion been able to find other employment within the care sector. That was highlighted by Mary Scanlon in an example that she gave at stage 2, and the minister’s stage 3 amendment to deal with that was very welcome indeed.

The RCN still has serious reservations about the introduction of the new offence and genuinely feels that it could have the opposite effect to that which is intended in introducing a duty of candour, with the threat of criminal proceedings militating against the building of a culture of openness and transparency. Given the comments and concerns about parts 2 and 3 of the bill, it seems clear that the education, training and support of health and care professionals will be crucial in developing the desired culture of openness in our caring professions and organisations.

I hope that all aspects of the bill will produce the outcomes that are sought, but it will be very important to scrutinise them in a few years’ time, so that the accumulating evidence on the uses of NVPs, the practical application of the duty of candour and the use of the new offence of wilful neglect and ill treatment can be revisited and assessed for their effectiveness.

We all accept the need for post-legislative scrutiny of the statutory provisions that we make in this Parliament and, where there are evolving situations, or reservations expressed by respected bodies such as the RCN, it is particularly important that the provisions are reviewed in the future. I hope that this will be undertaken by future members of the Parliament. As I said in my opening remarks, however, Conservative members are overall content with the bill as amended and will give it our support.

Photo of Elaine Smith Elaine Smith Labour

I should have said at the start of closing speeches that we have a few minutes in hand if members are inclined to take interventions or wish to take a little bit longer in their speeches. I call Rhoda Grant, who has six minutes or so.

Photo of Rhoda Grant Rhoda Grant Labour

This has been a good debate. It is sometimes difficult to debate a bill that covers such a range of different issues. To sum it up, we all want and look forward to a tobacco-free society, as Willie Coffey said, and the bill will go some way towards that. We also look forward to a society in which there is better patient-centred care, and the bill will help with that.

The minister mentioned the single register for NVPs and tobacco products. That was one of the issues that got the committee thinking. There were certainly concerns from pharmacists about having to register as tobacco retailers if they were to use NVPs as part of their smoking cessation programmes. It was very clear that there should be no barriers to NVPs being used to help people to stop smoking. At the same time, we had to make sure that the protections were in place.

Malcolm Chisholm lodged amendments to resolve those issues. He received the reassurance from the minister that they would be dealt with quite separately, which gives comfort to organisations that would be selling NVPs for therapeutic reasons.

We have to be careful about the use of NVPs because, although they have undoubted health benefits as an alternative to smoking, they might cause health problems themselves. We heard about something called popcorn lung, which we did not go into. Some of the chemicals that are used in NVPs can cause other conditions that might create health problems of their own. It was therefore right and proper to put in age restrictions in relation to whom they could be sold and restrictions on vending machines.

A lot of members have spoken about the use of NVPs as an alternative to smoking, and Jim Hume commented that they should not be used as an access point to nicotine dependence. Some of the evidence that we received in committee suggested that some of the other chemicals that are used in cigarettes make them more addictive, and that nicotine in NVPs might therefore be less addictive than nicotine in cigarettes. We are talking about a developing industry, and those things can change. We would certainly never want those sorts of chemicals used in NVPs, especially if there are health problems, as that could make people more addicted to them.

Nanette Milne spoke about psychiatric patients smoking on hospital grounds. Real concerns were raised around that. If someone is not well, chemicals will have an impact, but we need to ensure that people in psychiatric hospitals are able to smoke if they really need to.

Mary Scanlon and I visited Newcraigs hospital and were delighted to hear that secure outside space was going to be provided to allow people to go outside. That is important for all psychiatric hospitals, as people might be less able to give up smoking when they are receiving treatment. We need to be sure and be clear about giving people those choices, especially when they are suffering from conditions that mean that it would be cruel and unfair to make them change their behaviour. They need our compassion in such a situation.

Photo of Maureen Watt Maureen Watt Scottish National Party

Rhoda Grant raises an interesting point that highlights the need for a person-centred approach and the provision of some leeway. Increasingly, however, the evidence shows that, if mental health patients and prisoners were encouraged to give up smoking, it would help their overall health, and those options should be available too.

Photo of Rhoda Grant Rhoda Grant Labour

I was not suggesting for one moment that those options should not be available, because addictions of any kind have an impact on people’s mental health and stopping smoking is obviously the desired outcome. The issue is how we get people to do that if they are not well. We need to show compassion as well as encouraging them to stop smoking.

There was a lot of discussion about the duty of candour, and I emphasise that aspect again as it is an important part of patient care. Patients should have the information that they need when they are receiving care. However, the duty of candour as set out in the bill can be quite bureaucratic, as it provides for a reporting system and a system for apologies. I hope that the guidance that is given on implementing the bill will ensure that such an apology is meaningful. If the process is mishandled, that could cause additional distress. People need to be quite clear that an apology is being given not just because it has to be but because it is actually meant.

Malcolm Chisholm pointed out that that part of the bill is not so much about punishment as about keeping patients informed, and learning from experience and improving the service that we give to people. Even when a patient does not want to exercise their rights under the duty of candour, Malcolm Chisholm’s amendments allow for the circumstances surrounding the events to be examined so that staff can learn from the experience. That is really important, and the point was echoed by Nanette Milne, who spoke about the paternalistic NHS—which we have, I hope, seen the back of, although bits of it still exist here and there. It is important that we ensure that the NHS is patient centred rather than staff centred or led.

Nanette Milne highlighted the RCN’s concerns about wilful neglect and its worry that bill would be a barrier to openness and whistleblowing. She rightly wants that aspect reviewed, and I echo that call, because it is important that we have a very open health service and there are no barriers to people reporting concerns to ensure that problems do not happen again. However, I stress that I very much support the inclusion of an offence of wilful neglect. Mary Scanlon spoke about one such case, and we have all had cases of wilful neglect of patients that have been sad and heartbreaking. When that happens in a palliative care setting, it is even worse, because there is no way of going back and making something better, which can lead to families having real difficulty getting over their grief.

I want to touch on communication equipment, but I am not sure how much time I have, Presiding Officer.

The Deputy Presiding Officer:

I can allow you the time to touch on that.

Photo of Rhoda Grant Rhoda Grant Labour

Thank you.

At First Minister’s question time, I raised with the First Minister the Sue Ryder report about the treatment of patients with neurological disorders. The provision on communication equipment is a step towards dealing with that matter, because a lot of people who have neurological disorders also have issues with communication. However, it is important that the provision in the bill should be only one part of that. We have to go back and examine closely how we provide care for those with neurological disorders and produce a strategy in the next session of Parliament to ensure that people, especially young people or people who have lost the ability to speak—such as the friend that Nanette Milne talked about—get the care and treatment that they want.

The Deputy Presiding Officer:

I would be grateful if you would draw to a close now.

Photo of Rhoda Grant Rhoda Grant Labour

I simply reiterate that we will support the bill at decision time.

Photo of Maureen Watt Maureen Watt Scottish National Party

I thank members for their contributions. I welcome the breadth of support that the bill has received throughout its parliamentary stages and the constructive nature of what members have said. In particular, I offer my thanks to the experts who gave their time to provide evidence to the Health and Sport Committee, almost all of whom advocated the bill as being proportionate and necessary. The bill offers us a real chance to progress our commitment to ensuring that people in Scotland live longer, healthier lives. I also thank the bill team for all their hard work in getting us to this point.

The bill is an important milestone and will play its part alongside the vast range of measures that the Scottish Government will continue to progress to reduce tobacco-related harm. It will also, for the first time, put on the statute book specific regulation of NVPs. Many members have mentioned the fact that, because NVPs are new, evidence on whether they are effective or are harmful is still emerging. We absolutely do not want to stigmatise people who use NVPs to come off tobacco-related products, which we know are much more harmful, but it is amazing that we can put in place legislation on a new product, rather than play catch-up, as we have been doing with tobacco and alcohol products.

We are committed to preventing access to NVPs for young people under the age of 18. Alongside that, we wanted to consider what more could and should be done to control the sale and marketing of those new products. That is why we will ensure that there is no advertising of the products on billboards and posters. The products are now being advertised on television, but European Union legislation that must come into domestic United Kingdom law by 2016 will ensure that the products are no longer advertised on that medium. I am confident that the bill strikes the right balance in that respect and that we are contributing to giving children the best start in life by creating a society where they are supported to make healthy choices.

The bill will help to build further openness and transparency in our healthcare systems. It will allow patients and service users to know about what has gone wrong in the course of their treatment, should they wish. It will encourage apology, as well as learning and improvement, to prevent issues from happening again.

The idea raised by Nanette Milne and the RCN, in its briefing, that the offences will prevent a culture of transparency implies a pessimistic view of health and social care workers’ attitudes. I do not share that view, as the offences are not aimed at instances of unintended or unexpected harm. I am sure that, as the law comes into force, any reservations will be dispelled.

Part 3 of the bill is about premeditated neglect or ill treatment. Rhoda Grant was right to point out that the duty of candour and wilful neglect are completely separate issues. The premeditated neglect or ill treatment of people receiving healthcare or social care is deplorable. Those that commit such crimes—organisations as well as individuals—need to be dealt with by the criminal justice system, and the bill will provide for specific action against them.

The provisions were borne out of incidences of that—thankfully not in Scotland, but in other parts of the UK. It is important that people know not only that they can expect respectful and compassionate care but that, in the small number of cases where there has been wilful neglect, people will be suitably punished.

Nanette Milne and others mentioned the use of tobacco by mental health patients and prisoners. It is up to health boards to implement strategies as part of their wider commitment to health improvement. Now that prisoner health is for health boards, it should be easier to help prisoners to stop smoking.

Improvement in patient safety and in individuals’ health goes right through the bill. Rhoda Grant said that the bill was all-encompassing. We have had catch-all bills before, but it is important that this bill is passed at decision time.

The addition to the bill of provisions on voice augmentation communication equipment is welcomed by everyone. This morning I visited the Euan MacDonald centre and met Euan, young Greta and Paul, who is in the gallery. I saw how the use of voice equipment enabled them to join in conversations with others. Because there is such a wide range of equipment now, the bill’s sections have been left deliberately open so that people can have access to the right equipment at the right time.

Rhoda Grant mentioned last night’s Sue Ryder event. Dee View Court is in my constituency and I visit often. I can see how, given at the right time, voice equipment would be useful for many patients there.

In approving this wide-ranging bill, Parliament will be contributing to a number of better outcomes for Scotland. It will build on our vision of a tobacco-free generation by 2034; protect non-smokers, particularly children and young people, from nicotine addiction by reducing access to and the marketing of the new products; improve the delivery of health and social care services; and ensure that nobody in Scotland dies without a voice.

I thank all members who have helped with the bill’s passage. There were not that many amendments at stage 2 or, indeed, today at stage 3. I cannot guarantee that the same will be true for the Burial and Cremation (Scotland) Bill, which the Health and Sport Committee has to consider at stages 2 and 3.

I hope that Parliament will pass the bill unanimously at decision time.

Photo of Tricia Marwick Tricia Marwick None

Thank you, minister. That concludes the debate on the Health (Tobacco, Nicotine etc and Care) (Scotland) Bill.

I say to members that it is likely that we will sit beyond 5.30 next Tuesday. That will, of course, be subject to the decision of the Parliamentary Bureau on Tuesday morning, but I thought that members would appreciate a heads-up on the matter.