Health and Sport Committee [Draft]

Meeting date: Tuesday, November 10, 2020

Official Report 635KB pdf

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Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill: Stage 2

We resume the meeting in public session. The next agenda item is the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill at stage 2. Members should have a copy of the bill as introduced, the marshalled list of amendments that was published on Thursday, and the groupings of amendments, which set out the amendments in the order in which they will be debated.

It might be helpful to explain the procedure briefly. There will be one debate on each group of amendments. I will call the member who lodged the first amendment in the group to speak to and move that amendment and speak to all the other amendments in the group. I will then call any other members who have lodged amendments in that group.

Members who have not lodged amendments in the group but who wish to speak should indicate that by placing an “R” in the chat box.

If she has not already spoken on the group, I will invite the cabinet secretary to contribute to the debate just before I move to the winding-up speech. The debate on the group will be concluded by me inviting the member who moved the first amendment in the group to wind up.

Following the debate on each group, I will check whether the member who moved the first amendment in the group wishes to press it to a vote or to seek to withdraw it. If they wish to press ahead, I will put the question on that amendment. If a member wishes to withdraw their amendment after it has been moved, they must seek the agreement of other members to do so. If any member present objects, the committee immediately moves to the vote on the amendment.

If any member does not want to move their amendment when called, they should say, “Not moved.” Please note that any other member present may move such an amendment. If no one moves the amendment, I will immediately call the next amendment.

When I put the question on an amendment, members should immediately type “N” in the chat box if they do not agree to it. There will then be a division. Of course, only committee members are allowed to vote. Voting in any division will be done using the chat box function, as previously agreed by members.

The committee is required to indicate formally that it has considered and agreed each section of the bill, so I will put a question on each section at the appropriate point. The aim is to complete stage 2 today.

We move directly to amendments.

Section 1—Provision of certain forensic medical services

Amendment 1, in the name of the cabinet secretary, is grouped with amendments 2, 3, 25 and 26.

I am very pleased to open the debate on the first group of amendments to the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill at stage 2. It is a technical group of amendments that, first, clarifies the policy on private sector involvement in the provision of forensic medical services in the context of rape and sexual assault. Government policy is that responsibility for such services should rest with health boards. That is how they are currently being provided and how preparations for self-referral are being advanced.

The original wording of sections 1(1)(a), 1(2) and 1(3) was intended to allow, where necessary, locum cover for out-of-hours forensic medical examination. That can continue to be provided as needed under the existing National Health Service (Scotland) Act 1978 and its legal framework. Therefore, the inclusion in section 1(1)(a) of the words

“or secure the provision of”

might go too far. That wording, along with subsections (2) and (3), is unnecessary. The removal of those words by amendments 1 and 2 will better deliver the policy that I have described, which is that boards should provide in-house the examination service and the retention service that are set out in the bill, and that, where appropriate, limited private sector involvement in the form of locum cover can be arranged under the principal legislation for the NHS in Scotland. Amendment 2 is consequential on amendment 1.

The second main clarification that the technical amendments in this group provide is that sexual assault response co-ordination services under the bill are available to victims irrespective of their place of residence. A victim may be ordinarily resident in another health board area, in another part of the United Kingdom or indeed abroad. To deliver that policy, amendment 3 amends section 1, while amendments 25 and 26 consequentially amend the Functions of Health Boards (Scotland) Order 1991 via the schedule to the bill.

I move amendment 1.

No other members have indicated that they wish to speak on this group of amendments. The question is, that amendment 1 be agreed to. I remind members that, on this occasion, anyone who does not agree should type “N” in their chat box.

Sandra White has indicated—

I apologise, convener: I thought that you said to type “M” if we agreed.

I apologise. Another member has also put “M” for “mother” in the chat box. That was not my intention, and clearly my pronunciation needs to be sharpened. I will repeat this for the sake of clarity and to avoid any confusion: if you wish not to agree to amendment 1, please place an “N” for “Norway” in the chat box.

Thank you for the clarification, convener.

I see no “Ns” for “Norway”. I therefore take it that we are all agreed on the amendment.

Amendment 1 agreed to.

Amendments 2 and 3 moved—[Jeane Freeman]—and agreed to.

Section 1, as amended, agreed to.

Section 2—The examination service

Amendment 30, in the name of Margaret Mitchell, is grouped with amendments 5, 31 and 32.

Thank you, convener, and my thanks to the committee for giving me the opportunity to speak to my amendments in this group.

The bill seeks to strike a balance between the health and justice aspects of a forensic medical examination following a sexual offence. Under the bill, the age of self-referral is 16, and that is ostensibly based on three factors. First, it reflects existing services provided by NHS Greater Glasgow and Clyde and NHS Tayside; secondly, it aligns with the age of consent under the Sexual Offences (Scotland) Act 2009; and thirdly, it recognises that child protection measures apply to those under the age of 16.

However, under the Age of Legal Capacity (Scotland) Act 1991, anyone

“under the age of 16 years shall have legal capacity to consent on”

their

“own behalf to any surgical, medical or dental procedure or treatment where, in the opinion of a qualified medical practitioner”,

they are

“capable of understanding the nature and possible consequences of the procedure or treatment.”

Amendment 30 therefore reduces the age of self-referral from 16 to 13. That helps to give effect to the views of Dr Anne McLellan, who is a consultant in sexual and reproductive health at NHS Lanarkshire, who gave evidence to the committee at stage 1, stating:

“we should encourage self-referral in 13 to 15-year-olds, because 40 per cent of last year’s 13,000 sexual assaults were on under-18s.”—[Official Report, Health and Sport Committee, 12 May 2020; c 10.]

Here is the challenge. At present, we actively encourage children and young people to attend local young persons’ clinics to ensure that they are able to make healthy decisions about their sexual relationships and access care for sexually transmitted diseases and pregnancy. In fact, we reassure children and young people that they can engage confidentially with sexual health services, while confirming that those under 16 years of age who might share information will, if a member of staff considers the child or someone else to be in danger, have that information passed on and disclosed to other agencies.

However, as has been stated, providing confidentiality in relation to the disclosure of child sexual abuse or exploitation is problematic, as protection service procedures will automatically apply. Consequently, that deters many young victims from coming forward to disclose such abuse and to seek the medical treatment that they need.

Amendment 32 seeks to address that problem. It states that

“Ministers must issue guidance to health boards about … child protection … and confidentiality”

so that boards can best support children to access forensic medical examinations. That should include ensuring that professionals are informed about the child protection process and how to talk to children about what happens next, thereby helping to ensure that those children feel that they are part of the process.

Ultimately, however, it will be for ministers to determine what the guidance will say. I hope that, in doing so, they will consider the getting it right for every child principles that are set out in the “National Guidance for Child Protection in Scotland 2014” document. The guidance states that the GIRFEC approach

“puts children’s needs first; ensures that children are listened to and understand decisions that affect them; and … that they get the appropriate co-ordinated support needed to promote, support and safeguard their wellbeing, health and development.”

Research has confirmed that, if staff who provide childcare are allowed a degree of confidentiality in relation to anything else that children aged between 13 and 15 who self-refer for a forensic medical examination may disclose, that creates the safe space that is necessary to enable the child to feel more in control.

Such an approach would result in three important and potentially positive outcomes. First, children and young people would be encouraged, and would be more likely, to present for a self-referral forensic examination. Secondly, the best evidence from that examination would be captured as early as possible and retained as necessary in due course. Thirdly, and most importantly, a child who may at present be deterred from coming forward would have access to the physical medical healthcare, as well as the mental health support, that they need.

As members of the cross-party group on adult survivors of childhood sexual abuse have come to understand from listening to many brave survivors of such abuse, children need to be assured that, if they disclose sexual abuse, they will still retain some degree of control over the situation and that will not be totally taken away from them when child protection services come in.

I turn to amendment 31. As it stands, the bill makes no special provision for children and young people and their distinct needs have not been addressed. Amendment 31 defines a “relevant child” as someone aged between 13 and 15 who refers for a forensic medical examination, and that includes a child who is referred for an examination by the police. The amendment provides that they receive the individual age-appropriate support that they require, and that

“the forensic medical examination”

must take

“place in a setting that is appropriate for the … child having regard to”

their

“age and maturity”.

11:00  

In her evidence to the committee, the cabinet secretary stated that she considered the bill to be barnahus ready. That is hopefully where Scotland is heading, and the absence of a physical building to provide the appropriate wraparound services under one roof does not mean that we cannot aspire to achieve the barnahus principles.

Amendment 31 therefore also provides for an appropriate adult to be assigned to the child who will be responsible for co-ordinating the necessary support and the assistance that is required as a result of the incident that gave rise to the need for the forensic examination. That adult would also be responsible for explaining to the child what further steps, from both the health and justice perspectives, will take place; meeting the child as soon as is reasonably practicable after the forensic medical examination is requested and before the medical examination can begin; co-ordinating any process that follows from the incident; and, crucially, explaining any child protection procedures that follow from the examination.

In an article to The Scotsman last month, Dr Sarah Nelson OBE explained that one of the reasons that adult survivors of childhood sexual abuse give for waiting until they are 16 to report the abuse is that they are afraid of control being taken away from them due to the rigid and inflexible child protection procedures, which can often see authorities rush into a situation before it has been properly assessed.

To recap, the intention of amendment 30 is to ensure that children feel that they have that crucial control over what is happening through the support that they receive, and that they have their fears addressed. That will, in turn, help to ensure that, rather than being deterred from accessing vital healthcare, such children are instead encouraged to access it.

I turn to the cabinet secretary’s amendment 5. Although I acknowledge and welcome the fact that the Scottish Government has taken on board the committee’s recommendation that the bill be amended to allow ministers to amend in the future the age of self-referral, I firmly believe that there is an opportunity now, in the bill, if amendments 30 to 32 gain the committee’s support, to address the confidentiality issue and allow 13 to 15-year-olds to self-refer, thus providing another opportunity to encourage those children who have experienced child sexual abuse or child sexual exploitation to come forward. That must surely be a good thing.

I move amendment 30.

I call the cabinet secretary to speak to amendment 5 and the other amendments in the group.

There has, rightly, been strong interest shown in children and young people issues in the bill’s progress. Important context for the current group of amendments was provided in the children’s rights and wellbeing impact assessment for the bill, which noted that forensic medical examination is not relevant to many victims of child sexual abuse because offending is often not disclosed within the seven-day DNA capture window. Access to healthcare and support for recovery are, of course, vital—irrespective of when child sexual abuse is disclosed.

I listened very carefully to what Ms Mitchell said on what she seeks to achieve with her amendments, and I have sympathy with what she said. I will address those issues in a moment. First, however, I will speak to amendment 5, which is lodged in my name.

The committee recommended in its stage 1 report that the minimum age of 16 for accessing self-referral should become the subject of a delegated power, which would allow it to be varied in the future, should that become appropriate. That was a sensible recommendation from the committee, and one that I welcomed and was happy to accept. Amendment 5 delivers on that commitment.

Amendment 5 proposes that the age must be no lower than 13 and no higher than 18. Thirteen is the age under which the Sexual Offences (Scotland) Act 2009 rightly says any sex with a child is rape, which means that a child of that age is taken to lack any capacity to consent to sexual activity. Maturity among children of the same age varies, of course, but it is reasonable to think that, in general, children under 13 would not have sufficient capacity to self-refer.

At the other end of the age range, 18 is the age at which the United Nations Convention on the Rights of the Child says a child becomes an adult. I look forward to the Delegated Powers and Law Reform Committee’s scrutiny of the new power, should amendment 5 be agreed to.

I confirm that for the purposes of initial implementation of the bill next year—should the Parliament pass it—the Government intends that the minimum age for self-referral will remain at 16, as is provided for in the bill, in line with current self-referral practice in Scotland. The arrangement is referenced in the revised national child protection guidance that the Government has recently issued for consultation, which I highlighted to the committee in my letter last week.

I hope that there is consensus to support amendment 5. I encourage members and stakeholders, who strongly hold the view that a lower or higher age than 16 should be prescribed, to review and respond to the child protection consultation that I mentioned, so that a full range of voices can inform finalisation of the new national child protection guidance.

I turn to Ms Mitchell’s amendments. I welcomed her contribution in the October stage 1 debate, and know from her work as convener of the Justice Committee that she has a long-standing interest in children’s rights in the justice system. That interest includes, but is not limited to, support for the barnahus concept, which the Government also supports.

I understand the positive objectives that Ms Mitchell’s amendments aim to achieve. We all want to ensure that victims of child sexual abuse have access to age-appropriate and trauma-informed healthcare and recovery. I am conscious that the committee expressed in its stage 1 report the view that no specific amendments are required to support the Barnahus concept, or otherwise to make special provision for children and young people. I have consistently made clear the Government’s position that the bill, although it is not a barnahus bill, is in all respects barnahus ready.

Amendment 30 goes against the grain of the committee’s recommendation in paragraph 49 of its stage 1 report. The function of the proposed new delegated power is to allow a change, in the future, of the minimum age for access to self-referral from any age below the age of 16—from 13 to 15 years old—and any age above the age of 16 up to 80, but only following endorsement through affirmative regulations. Such regulations would, naturally, be consulted on widely, and a further children’s rights and wellbeing impact assessment would inform them. I am grateful for the support of the NSPCC, which has written to me and the committee to oppose amendment 30, arguing that it could put services under strain and even, potentially, put children at risk.

I am afraid that against that background I cannot support amendment 30, although nothing in my amendment 5 would prevent a reduction to 13 of the minimum age for access to self-referral, following consultation on regulations, should they ever be appropriate.

Existing health, social work and Police Scotland practices already deliver much of what amendment 31 seeks to achieve. To be of assistance to the committee, I have written to provide an advance copy of Scotland’s first-ever clinical pathway for children and young people who have experienced sexual abuse, which will be implemented in our health boards on 24 November, in advance of the formal launch in early December. As is set out in more detail in my letter, the chief medical officer’s task force developed the pathway in close collaboration with a broad range of key stakeholders, including the three regional child protection managed clinical networks across Scotland, paediatricians, Police Scotland, Social Work Scotland and, of course, our third sector partners.

The aim of the pathway is to ensure a consistent national approach to provision of child-centred and trauma-informed healthcare, following a disclosure of sexual abuse. The pathway describes the requirement for close working across all key agencies to ensure an holistic healthcare response at every step.

In that regard, the pathway, like the bill, is in keeping with the barnahus principles. I consider it to be unnecessary to legislate for work that is already in hand or which is covered by the existing child protection responsibilities of public bodies and professionals. The provisions of the bill deliberately leave the details of health board practice to guidance and the professional judgment of skilled and experienced healthcare professionals. I am grateful for the support of the NSPCC, whose view is that amendment 31 is not necessary.

Although I would never object to an amendment wholly based on technical issues, I should flag up to the committee that the proposed role of the appropriate adult, in the sense of the professionals who support the processes, would be unprecedented in the healthcare system. That could have unpredictable practical and financial effects.

The Rape Crisis Scotland national advocacy project, which is fully funded by the Scottish Government, exists to provide appropriate advocacy support to children over 13. In its briefing for the stage 1 debate, Rape Crisis Scotland acknowledged that the approach does not require a statutory underpinning. I emphasise the Government’s strong support for Rape Crisis Scotland and the advocacy project.

Nonetheless, amendment 31 has prompted me to reflect on what more the Government might do to support child victims to access services under the bill. Although I cannot support amendment 31, I undertake to give thought to how we can further support the NHS to implement the clinical pathway for children and young people, including through provision of on-going care and support for children and families, to aid recovery.

Amendment 32 proposes statutory guidance on matters that are outwith the remit of the chief medical officer’s task force. I mentioned the live consultation on the national child protection guidance, which contains specific guidance on child protection and forensic medical examinations. Guidance on confidentiality is most appropriately provided by employers and professional bodies such as the General Medical Council and the Nursing and Midwifery Council, so it would be inappropriate to give the Scottish Government a statutory role that would cut across that.

Moreover, the committee rightly sought views from the Information Commissioner’s Office on data protection matters; I fear that the proposal in amendment 32 also risks cutting across the ICO’s role. Therefore, I cannot support amendment 32.

In summary, I reiterate that I agree with the sentiments that inspired Ms Mitchell’s three amendments in the group, but I invite the committee to reject the amendments, for the reasons that I have given. I look forward to hearing comments, but I ask Ms Mitchell not to press amendment 30 and not to move amendments 31 and 32. If the amendments are pressed, I ask the committee to reject them and to support amendment 5, which specifically addresses the committee’s stage 1 recommendation.

The CMO task force is advancing preparations to implement the bill next year, should the Parliament pass it at stage 3, and I am concerned that Ms Mitchell’s amendments could have the unintended consequence of delaying commencement of the bill and of the time when the advantages of self-referral for victims can be realised.

A number of members want to contribute to the debate on the group.

I congratulate Margaret Mitchell on her comprehensive amendments and on her speech. As the convener knows, I have a background in child protection management, from many years ago. I agree with Margaret Mitchell, in that I have always been concerned about the low level of reporting by victims of abuse.

Having said that, I note that I read with interest the recent reports by Children 1st and the NSPCC, which oppose amendment 30 on the basis that children under 16 will automatically be considered under the child protection pathway, to which the cabinet secretary referred.

There is also a wider picture; we need to be aware that incorporation of the UNCRC into Scots law is on the horizon. That will be significant for the rights of children, and will increase reporting by victims who are under 16. The child protection guidance that is currently out for consultation is very important, so I encourage organisations to take part in that consultation.

11:15  

At stage 1, I looked sympathetically at the change, and I understand many of the arguments for it. However, having read the cabinet secretary’s amendment 5, on the change to delegated powers, I think that the Government is keeping the door open for a possible change in the future. That is the right way to go. There is a lot of common ground between Margaret Mitchell, the cabinet secretary and me: we all share the same objectives. However, given the reports that I mentioned from Children 1st and the NSPCC, I am not confident that we should support amendment 30. On that basis, I urge Margaret Mitchell not to press amendment 30, and not to move amendments 31 and 32. I support amendment 5 in the name of the cabinet secretary, which makes sense and reflects the arguments at stage 1.

I am very sympathetic to Margaret Mitchell’s objectives and I know that she has a lot of expertise in the subject. My concern is primarily about timing. I hope that her sentiments will be followed through when the bill is changed in the future, under delegated powers.

As you know, convener, I have a specific interest in the matter. I should also declare that I am working with a constituent who was in the relevant age bracket when an offence happened some 44 years ago, and is only just now getting to court. That process has given me more information than most people might want to have on such a crime. I have been very struck by the fact that the individual had nowhere to turn because the appropriate adult was one of the people who allegedly committed the crime.

I am also struck by the fact that the NSPCC now runs, in all primary schools, abuse courses that include sexual abuse. Our children are much better informed about what constitutes abuse. For that reason, the NSPCC says that they should speak to an appropriate adult.

I listened carefully to what the cabinet secretary had to say. I know that she is thinking along those lines by leaving the door open for a future change. That is much appreciated. It strikes me, however, that there is still a gap that we can fill with the bill. I do not accept the argument for not including 13 to 15-year-olds in the self-referral provision. Margaret Mitchell makes a strong case for including them. I am disquieted by my experiences with my constituent and by the fact that there is a gap. What happens if the appropriate adult is the one who has committed the crime? Where does the child go, then?

I will support amendments 30, 31 and 32. If they fall, I will lend support to the cabinet secretary’s amendment 5, which intends to leave the door open. I ask the committee to consider what happens to someone who is between 13 and 15 years old, who in all likelihood knows the abuser who might be the appropriate adult that we are asking them to go to. I hope that the committee will consider that point in deciding on Margaret Mitchell’s amendments.

I, too, express my support for Margaret Mitchell’s amendments. I do not have much to add at all, given how eloquently and persuasively she made the arguments.

I also acknowledge the constructive way in which the cabinet secretary has responded to the amendments. I do not think that there are huge divergences of opinion, but I was persuaded by Margaret Mitchell’s argument about age, particularly in relation to legal capacity in Scotland. The Age of Legal Capacity (Scotland) Act 1991 says that anyone under the age of 16 has the “legal capacity to consent” to any medical or surgical procedure.

I think that Margaret Mitchell’s points about needing to encourage children under 16 are important, too. Through amendment 5, the Government acknowledges that “no lower than 13” is the age at which a person could self-refer. Therefore, it seems to me that this is a question of timing, as David Stewart put it. The Government appears to accept that such a change might happen in the future. Given that the Government has conceded that, the question is why that should not happen now. If one accepts that 13 to 16 is a potential age range, not making the change now would be incorrect.

I will deal briefly with amendments 31 and 32. It strikes me as eminently sensible for guidance to be issued to health boards on matters of confidentiality. Those are difficult legal questions, so it would be a wise move for the Government to issue guidance to health boards and I support amendment 32.

Amendment 31 would allow control by the individual involved, by giving them a supportive figure who would be trained and supported by the Government. That would truly implement the barnahus concept through the legislation.

For those reasons, I will support the three amendments in the name of Margaret Mitchell.

David Stewart’s argument was powerful and persuasive, as always, and I find myself agreeing with him on the issue. Let us consider NSPCC Scotland’s comments about amendment 30 and lowering the age of self-referral. In its written submission, NSPCC Scotland said:

“We do not support this amendment. Given the sheer level of complexity in the lives of many children who experience sexual abuse, any change to the age of referral which potentially separates the forensic medical response from statutory child protection response, must be underpinned at the very least by comprehensive research into need, whole systems review and substantial resourcing for services, to allow them to cope with increased demand.”

I read that out because I consider it to be important. We get information constantly from third sector organisations and those who work in the sector. To not listen to what they have to say would not be the place that we would all want to be in. I understand where Margaret Mitchell is coming from, but I find NSPCC Scotland’s argument persuasive.

On amendment 31, NSPCC Scotland admits that the

“intention of this amendment is welcome. It clearly recognises that a lack of co-ordination and support for a child in their journey through complex and at times disparate systems ... However, the scope of the amendment ... clearly illustrates the critical need to radically reform the response to children who experience sexual abuse.”

NSPCC Scotland more or less wants to work to find a way forward. I think that we are on that road, given what the cabinet secretary has produced. Furthermore, we mentioned in our stage 1 report that we want to go down that route. For those reasons, I will not vote for amendment 31.

I understand why Margaret Mitchell has introduced the amendments. However, I have listened to the cabinet secretary and considered the information that has been presented to us about the CMO’s task force and the children and young people’s clinical pathway. Those are the best ways for us to approach the issue, because the door might be open for further amendments.

I would like the work of the children and young people’s clinical pathway to be delivered in a timely way. Professionals from multiple disciplines have worked together to produce a pathway that applies to the care of children and young people up to the age of 16 and even, if a young person is vulnerable, up to 18.

The cabinet secretary’s letter says:

“The aim of the pathway is to ensure a consistent, national approach to the provision of child centred and trauma informed healthcare and forensic medical examination following a concern raised or disclosure of sexual abuse.”

The committee took evidence on the barnahus model being implemented. I support a wider holistic and child-centred approach. I do not support amendments 30 to 32, but I support the cabinet secretary’s amendment 5, so that we can implement the child-centred principles through the clinical pathway that has just been developed, which will be rolled out and monitored. That is how I would prefer to proceed.

For the sake of brevity, I will not go through everything, but I concur with what my colleague Emma Harper said about the clinical pathway and the number of professionals, including those from the third sector, who have been involved in developing it. The cabinet secretary’s amendment 5 supports a stage 1 commitment to the committee that the door would be left open, which is the proper way to proceed. I support amendment 5, but I do not support amendment 30.

On amendment 31, I have worked with Margaret Mitchell many times and I know that she is passionate about the subject, which I thank her for giving us the opportunity to debate. The cabinet secretary said—she can clarify this if I picked her up wrongly—that she is sympathetic to the amendment and will perhaps look at further support. I will go with her words; I do not support the amendment.

Amendment 32 would cut across the work of professionals whose job is to look at the situation, which is tragic for everyone involved and particularly the kids—as Brian Whittle said, that can apply in later years. I am sure that we are all sympathetic to that.

I support amendment 5; I do not support amendments 30 to 32.

I am persuaded by what the cabinet secretary said about lowering the specified age, but I will press her on a couple of points. She referred to demand for services. I understand the point about having a joined-up system that is not in conflict with child protection measures, but I do not understand why the proposals would increase demand for services. In some ways, surely an increase would be good, if it meant that more people were coming forward. Perhaps I have misunderstood, so more clarity would help.

If the cabinet secretary is open to lowering the specified age below 16, I press her on the timescale for that. When does she envisage that happening? Does she have an idea from the services of when they would be ready for the age to be lowered? When could such work commence?

I exercise my discretion to invite the cabinet secretary to comment briefly on those points, if she so wishes, before we return to Margaret Mitchell, who moved the lead amendment in the group.

Convener, as you have invited me to make a few points in response, I will do so. Before I say anything further, I repeat that I am very sympathetic to the intention behind Ms Mitchell’s amendments. However, I urge the committee not to support them.

11:30  

Mr Stewart has summarised large parts of what would have been my argument more eloquently than I could have done.

I also completely understand Mr Whittle’s point, and have addressed such issues with my own constituents. However, in my experience—from the great number of years that I spent as a member of the Parole Board for Scotland, which considered such matters from the other side; from seeing the consequences for perpetrators of sexual abuse and other crimes of early sexual abuse; and from listening to victims—the long-term, almost irreparable damage that such abuse does to children is just as important.

I say to Mr Whittle that the Rape Crisis Scotland advocacy project fills the gap that he mentioned—and does so with the significant experience, compassion and real learning that it has acquired over many years. That is one of the reasons why the Scottish Government supports it so strongly; it is also why Rape Crisis Scotland itself has taken the view that it has.

As for the amendment on guidance, Ms White is absolutely right. I have made the point that the requirement for confidentiality means that the responsibility for guidance on such matters is properly given to the professionals involved by the General Medical Council and the Nursing and Midwifery Council, which are not only professional but regulatory bodies. It would be wrong for the Government to cut across that and in any way to attempt to superimpose additional guidance on professionals. As Ms Harper will know, and as I know from my experience many years ago, the views of the Nursing and Midwifery Council are absolutely to be followed through by those whom it regulates.

However, the substantive point in all this is the one that is being made on age. If I understand the arguments that are being made about self-referral at an age lower than 16, the question that is being asked is: why not do that now? I strongly encourage members to refer to the view of the NSPCC, which Mr Adam referenced earlier and which has expressed the point much more eloquently than I could have done. It says that

“the sheer level of complexity in the lives of many children who experience sexual abuse”

means that any

“change to the age of referral, with potentially separate forensic medical responses from statutory child protection response must be underpinned at the very least by comprehensive research into need, whole systems review and substantial resourcing for services to allow them to cope with increased demand.”

In answer to Mr Rennie’s questions about when changes could be made, I think that the two aspects, which are the implementation of the clinical pathway—I wrote to members about it, enclosing a copy—and the conclusions, go hand in hand. The national child protection guidance consultation will provide us with significant further information and data so that, should it make the case strongly for a younger age, we will already have provided in the bill the opportunity to make such a change. Without research, underpinning and wider work having taken place, particularly with our key professionals and those in our stakeholder groups, this is not the time to make that change. However, it is right to have the door open. Perhaps it will happen in the very near future—but it is certainly a matter for the future.

I invite Margaret Mitchell to wind up and to press or withdraw amendment 30.

I thank committee members for their comments.

In order to put my amendments into context, it is important for us to remember that the vast majority of child abuse is committed not by strangers, but by family members and those who are in positions of power and trust. Worse still, we know from charities and agencies that support children who have been abused, that during lockdown incidents of child abuse have rocketed and spiralled. There is a pressing need to address the issue now.

I understand that people, including the cabinet secretary at stage 1, have referred to the complexity of how to do that, given that child protection obviously kicks in and there is the question of how we would involve clinicians—whether they would be obliged to report sexual assault on young people in that age group. However, the way forward that I suggest in amendment 32 is based on what already exists in the health service in the context of young people in the same age group: 13 to 15-year-olds have access to medical health services in respect of sexually transmitted disease and pregnancy.

We know that a key factor preventing young people who are abused and exploited from coming forward is the loss of control and the breach of their confidentiality. Therefore, what amendment 32 proposes would give them that safe space of a little bit of time to come to terms with and understand what will happen before it does. If there is a risk that they will continue to be abused, that will most certainly be reported and acted upon. Crucially, amendment 32 puts in place a provision that gets over the complexity and encourages those young people who are presently falling through a gap and not getting the medical and mental health support that they need to access that support.

Turning to amendment 31, I have noted what members said about the clinical pathway and what the cabinet secretary said, but Children 1st’s concern was that we should have a barnahus model and not create within the bill a separate, parallel approach for children. I rather fear from the comments that that is exactly what we are en route to doing. Amendment 31, were it agreed to, would clearly set out the wraparound support for victims of childhood sexual abuse—the trauma-informed, multidisciplinary approach for children who have been sexually assaulted—and ensure that someone will take the lead in looking at a 13 to 15-year-old’s case so that they do not have to repeat their story, time and again, to different health professionals.

For all those reasons, I hope sincerely that the committee will think again and agree to the amendment for 13 to 15-year-olds now. If it may happen sometime in the future, I do not think that it is sufficient to say that it is all too difficult now, especially given my comments about the escalating incidence of child abuse during lockdown.

Therefore, I press amendment 30 and hope that there is the political will to support it.

The question is that amendment 30 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Cameron, Donald (Highlands and Islands) (Con)
Whittle, Brian (South Scotland) (Con)

Against

Adam, George (Paisley) (SNP)
Harper, Emma (South Scotland) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
Rennie, Willie (North East Fife) (LD)
Stewart, David (Highlands and Islands) (Lab)
Torrance, David (Kirkcaldy) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)

The result of the division is: For 2, Against 7, Abstentions 0.

Amendment 30 disagreed to.

Amendment 4, in the name of the cabinet secretary, is grouped with amendments 20 and 29.

At stage 1, there was a debate as to whether the definition of “evidence” in the bill was appropriate, and I committed the Government to developing a revised data protection impact assessment on the bill, which was duly prepared by my officials in consultation with the Information Commissioner’s Office. I sent the impact assessment in its final form to the committee last week, and it was published on the Government’s website this morning for wider scrutiny by stakeholders.

As highlighted in the revised impact assessment, the Government became persuaded that the definition of “evidence” in the bill should be refined. Amendment 20 will therefore insert an improved and more detailed definition of “evidence” into the bill. Subsection (1) of what will become new section 12A gives a non-exhaustive list of the types of things that may be considered to be evidence. In particular, the description of “notes or other records” now makes it clear that such notes can record matters that concern matters beyond the victim’s physical condition, such as their psychological state.

Subsection (2) in the proposed new section will ensure that evidence that is collected may transfer to the police only when it is needed for the purposes of investigation or prosecution of the incident, which means that records that contain notes of wholly unconnected health information will not be considered as evidence and will not be subject to transfer or destruction.

Subsection (3) is included in order to allow evidence to be stored even in the event that a victim does not decide to proceed with a full physical examination, thus allowing the health board to store initial non-intimate samples such as blood and urine that may be taken before a full physical examination is performed.

Amendment 29 is consequential and removes the existing definition of “evidence”.

Amendment 4 is a technical amendment that concerns the definition of “forensic medical examination” in the specific context of the bill. Although this point was not raised in stage 1 scrutiny, the definition of “forensic medical examination” is of equal importance to the definition of “evidence”. Amendment 4 clarifies that a forensic medical examination in the particular context of the bill is predominantly a physical medical examination. That distinguishes the subject matter of the bill from wider types of forensic medical examination, such as forensic mental health capacity assessments.

I move amendment 4.

Amendment 4 agreed to.

Amendment 5 moved—[Jeane Freeman]—and agreed to.

11:45  

Amendment 6, in the name of the cabinet secretary, is grouped with amendments 7 to 9.

The amendments in this group clarify that sexual assault response co-ordination services are available to victims under the bill irrespective of whether the incident took place in Scotland. Legislating to clarify the position in relation to incidents occurring outside Scotland will ensure that people who wish to access a sexual assault response co-ordination service can do so, regardless of where the incident took place.

Police Scotland already has well-established links with other police forces to transfer or receive evidence, when appropriate, under existing cross-border arrangements. In order to deliver the policy that I have mentioned, amendments 6 and 7 amend the definition of “sexual offence” in section 2(4) of the bill to clarify that it includes acts committed outside Scotland that would count as offences in Scots law if they were committed here.

Amendment 8 makes an equivalent amendment to the definition of “harmful sexual behaviour” in that section. Amendment 9 is consequential on amendment 8 and clarifies that the age of criminal responsibility in Scotland is the relevant one for the purpose of establishing whether an incident amounts to “harmful sexual behaviour”. That ensures that all behaviour elsewhere is caught according to whether it would be an offence of harmful sexual behaviour in Scotland, regardless of how it would be treated in the jurisdiction where the incident took place.

I move amendment 6.

Amendment 6 agreed to.

Amendments 7 to 9 moved—[Jeane Freeman]—and agreed to.

Section 2, as amended, agreed to.

After section 2

Amendment 31, in the name of Margaret Mitchell, has already been debated with amendment 30. I ask Margaret Mitchell whether she wishes to move or not move amendment 31.

[Inaudible.]

We will try again. I see that Donald Cameron wishes to move the amendment instead.

Amendment 31 moved—[Donald Cameron].

The question is, that amendment 31 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Cameron, Donald (Highlands and Islands) (Con)
Whittle, Brian (South Scotland) (Con)

Against

Adam, George (Paisley) (SNP)
Harper, Emma (South Scotland) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
Rennie, Willie (North East Fife) (LD)
Stewart, David (Highlands and Islands) (Lab)
Torrance, David (Kirkcaldy) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)

The result of the division is: For 2, Against 7, Abstentions 0.

Amendment 31 disagreed to.

Sections 3 to 5 agreed to.

After section 5

Amendment 32 moved—[Donald Cameron].

The question is, that amendment 32 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Cameron, Donald (Highlands and Islands) (Con)
Whittle, Brian (South Scotland) (Con)

Against

Adam, George (Paisley) (SNP)
Harper, Emma (South Scotland) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
Rennie, Willie (North East Fife) (LD)
Stewart, David (Highlands and Islands) (Lab)
Torrance, David (Kirkcaldy) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)

The result of the division is: For 2, Against 7, Abstentions 0.

Amendment 32 disagreed to.

Section 6 agreed to.

Section 7—Return of certain items of evidence

Amendment 10, in the name of the cabinet secretary, is grouped with amendments 11 to 17.

This group of technical amendments deals with the return, destruction and transfer of evidence that is stored following self-referral examinations.

Amendment 14 proposes what members might recognise as a cooling-off period. In its written evidence at stage 1, the Faculty of Advocates suggested that, when a self-referring victim requests destruction of evidence that has been collected as a result of their forensic medical examination, there should be a period of reflection and the request should be withdrawn if the victim so wishes. I thought that that suggestion was sensitive, positive and fully in line with the bill’s policy of giving victims control over what happens to them at a time when that control has been taken away. Therefore, amendments 13 and 14 provide that, following a request for destruction of evidence, the health board should not act on that request for a period of 30 days. Amendment 15 is consequential on amendments 13 and 14 being made.

New subsection (1A)(a), which amendment 16 proposes be added to section 8, allows a victim to withdraw their request for that evidence to be destroyed during the 30-day cooling-off period. If the request is withdrawn, the evidence will continue to be held until the end of the retention period that is specified in regulations that are made under section 8(1)(b), unless a further request for earlier destruction is made and not withdrawn. If the 30-day cooling-off period goes beyond the period that is specified under section 8(1)(b), destruction will take place at the end of the section 8(1)(b) period. Therefore, it will not be possible to withdraw a request for destruction made under section 8(1)(a) after that point.

Proposed subsections (1A)(b) and (1B) to (1C), which amendment 16 also proposes to add to section 8, deal with situations in which the victim requests the destruction of evidence or the evidence is due to be destroyed at the end of the period specified under section 8(1)(b), but a police request for the evidence to be transferred to it is made at around the same time. The request for transfer of the evidence to the police takes precedence unless it is not possible to stop the destruction of the evidence.

Amendment 12 is the other main amendment in the group, and it addresses the rare or exceptional situation in which a self-referring victim requests the return of their property but it is not in the public interest for the item to be returned to them. The amendment makes provision to ensure that the health board is not under a duty to make that return in those circumstances. Proposed subsection 2A(a), which would be added to section 7 along with proposed subsection 2B, allows a health board to refuse to return an item that is stored as evidence if, at the time that the victim requests the return of the item, the health board has some doubt about whether the item belongs to the victim. Amendments 10 and 11 are consequential.

Current CMO task force policy is that, apart from samples, only underwear and relevant outerwear would be stored as evidence. I therefore expect questions of ownership to be an extremely rare occurrence, but amendment 12 may become more relevant if there are any future changes to forensic science guidance about what items should or could be retained in a forensic examination.

Proposed subsection 2A(b), along with proposed subsection 2B, allows the health board to refuse to return an item that is stored as evidence if there is a safety reason why that item should not be returned to the victim. There could be exceptional circumstances in which an item has become biologically hazardous and it would be unsafe for it to be returned to the victim—for example, if there were remnants or traces of a date rape drug on the item. In both the above scenarios, the victim may be unsure why they cannot have the item returned to them, so provision is included in proposed subsection 2B(b) to ensure that the health board explains the reason.

Finally, proposed subsection 2A(c), along with proposed subsection 2B, provides that the health board must refuse to return an item that is stored as evidence if the victim has made a police report. That will have initiated a police investigation, and the items will be awaiting collection by the police. Health boards require clarity about what to do should the victim appear to request the return of items that have become the primary responsibility of the police. However, I must emphasise that the victim’s right to the return of property under the Victims and Witnesses (Scotland) Act 2014 is unaffected; the nuance is that they must request the return of the property from the police and not from the health board.

Amendment 17 amends section 9 to make it clearer that the police cannot request a transfer of evidence that has already been destroyed or returned to the victim. Although that is implicit, the greater focus on those issues introduced by the other amendments in the group means that the point being made more explicit will assist.

I move amendment 10.

Amendment 10 agreed to.

Amendments 11 and 12 moved—[Jeane Freeman]—and agreed to.

Section 7, as amended, agreed to.

Section 8—Destruction of evidence

Amendments 13 to 16 moved—[Jeane Freeman]—and agreed to.

Section 8, as amended, agreed to.

Section 9—Transfer of evidence to police

Amendment 17 moved—[Jeane Freeman]—and agreed to.

Section 9, as amended, agreed to.

After section 9

Amendment 18, in the name of the cabinet secretary, is grouped with amendment 28.

12:00  

The principle of trauma-informed care runs through the bill and drives the work of the chief medical officer’s task force. In that context, the bill enshrines the principle of trauma-informed care, writing it into the law for the first time in Scotland.

The existing wording on trauma-informed care appears in the schedule to the bill. However, given the principle’s importance, I am minded to give it more prominence. Amendment 18 therefore inserts improved wording on trauma-informed care in the main body of the bill. I am grateful to NHS Education Scotland colleagues for their support to help to expand and improve the wording on trauma-informed care in the amendment.

There are a number of different interpretations of what is meant by “trauma informed”. Without any reference in the bill to what is meant by “trauma informed” or “retraumatisation”, many may feel that they are already providing trauma-informed care without having an understanding of retraumatisation or of the importance of identifying and avoiding it.

Amendment 28 is consequential on amendment 18 and simply deletes the existing wording on trauma-informed care from the schedule.

I move amendment 18.

[Inaudible.]—who worked on this particular issue, which is one of the most important issues that we need to consider.

The trauma that had been experienced by the women whom the committee met and spoke to was horrific, and it was very moving to hear from them. I am pleased that the amendment will put the wording on trauma-informed care in the main body of the bill.

I have one question for the cabinet secretary. Page 24 of the policy memorandum, which sets out the Scottish Government’s policy intent behind the bill, lists five asks. The second of the bullet points under ask 2 refers to the need to ensure that

“A female doctor and nurse chaperone are available 24/7 ... where a victim”

so

“requests.”

Progress on that is marked as “ongoing”. Will that element be included in amendment 18? Is it to be part of the approach to ensuring a lack of trauma for, and retraumatisation of, victims? I would like clarification on that.

As no other member has indicated that they wish to speak, I call the cabinet secretary to wind up.

I have nothing further to add, except to respond to Sandra White’s question. The content of amendment 18 is clearly set out, and that is what it will say. I agree completely with Ms White that it is important that we have moved the wording on trauma-informed care from the schedule to the main body of the bill. With regard to the linked aspect of her question, the two areas—trauma-informed care and the provision of a female examiner or nurse chaperone—go hand in hand.

Ms White will be aware of the new course for forensic nurse examiners that has commenced at Queen Margaret University. That is an important step along the road, in addition to what we have already done, to ensure that we provide 24/7 access to female examiners should that be what an individual wants.

Amendment 18 agreed to.

Sections 10 and 11 agreed to.

After section 11

Amendment 19, in the name of the cabinet secretary, is in a group on its own.

The committee recommended in its stage 1 report that there should be a statutory annual reporting requirement, and the Government accepted that recommendation. Amendment 19 requires Public Health Scotland to produce annual reports on the implementation of the legislation should it be passed by Parliament.

Public Health Scotland is the body that is best placed to discharge that new statutory duty, as it had already agreed with the CMO task force the report on health board performance against the March 2020 Healthcare Improvement Scotland quality indicators. I am grateful to Public Health Scotland for agreeing that its work should have a statutory underpinning and for its approval of amendment 19 in draft form.

I do not believe that an indefinite statutory reporting requirement is proportionate, so the amendment provides for a long stop that—[Inaudible.]—reports must be produced on a statutory basis. I should emphasise that nothing in the policy prevents further non-statutory reports or post-legislative review by the Government, the Public Audit and Post-legislative Scrutiny Committee, the media, academia, or any other person.

I move amendment 19.

Amendment 19 agreed to.

Section 12 agreed to.

After section 12

Amendment 20 moved—[Jeane Freeman]—and agreed to.

Schedule

Amendment 21, in the name of the cabinet secretary, is grouped with amendments 22 to 24 and 27.

Paragraph 1 of part 1 of the schedule makes important consequential amendments to the National Health Service (Scotland) Act 1978. That is to ensure that the pre-existing NHS Scotland legislation and the bill will dovetail and interoperate properly.

Amendment 22 adds to the consequential amendments to the 1978 act so that ministerial intervention powers in sections 76, 77, 78 and 78A of the 1978 act are available, should they ever be needed. I emphasise that those powers are not new and ministers have always treated them as powers of last resort. Nevertheless, to enshrine the principle that forensic medical services under the bill are mainstream board functions, it is appropriate that all relevant 1978 act measures are applied to them just as they are to other health board services.

Amendments 21, 23 and 24 are purely consequential on amendment 22.

Amendment 27 concerns the clinical negligence and other risk indemnity scheme, which is established by regulations; the scheme is sometimes known as CNORIS, although I think that it is best known by its full title. Amendment 27 updates the wording of the regulations to cover forensic medical services that are provided under the bill. The regulations already cover forensic medical services under the memorandum of understanding between Police Scotland and health boards by virtue of wording that was inserted by amendment regulations in 2014. Amendment 27 reflects the new statutory basis for the delivery of services.

I should highlight, as I did in my recent letter to the committee, that further technical consequential amendments might be made at stage 3. It is too early to confirm that that will be the case or what those amendments might be, but I do not envisage that any consequential amendments that the Government lodges at stage 3 will contain any substantive policy; they will be purely technical and consequential so that existing legislation dovetails with the bill’s provisions.

I move amendment 21

Amendment 21 agreed to.

Amendments 22 to 28 moved—[Jeane Freeman]—and agreed to.

Schedule, as amended, agreed to.

Section 13—Interpretation

Amendment 29 moved—[Jeane Freeman]—and agreed to.

Section 13, as amended, agreed to.

Sections 14 to 16 agreed to.

Long title agreed to.

That ends stage 2 consideration of the bill. I thank Margaret Mitchell, the cabinet secretary, members and all those who have assisted in the proceedings.

Meeting closed at 12:11.