Meeting of the Parliament (Hybrid)

Meeting date: Wednesday, March 9, 2022

Official Report 1247KB pdf

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Justice for Families (Milly’s Law)

The next item of business is a debate on motion S6M-03491, in the name of Anas Sarwar, on Milly’s law—justice for families. I ask members who wish to speak in the debate to press their request-to-speak button or type R in the chat function.

15:03  

Two years ago, I stood up in Parliament and exposed the failures at the Queen Elizabeth university hospital. What has been uncovered since is a human tragedy on an unimaginable scale. It is beyond doubt the biggest scandal in the devolution era. Three high-risk water reports were ignored, staff have been bullied and silenced, patients have picked up preventable infections and children have died. The health board has been the subject of an independent review, a case-notes review and, now, a public inquiry and criminal investigations.

It is important to stress that we have come this far only thanks to the bravery of national health service staff who have been willing to risk their jobs in order to reveal the truth. That emphasises the fact that it is not just patients and families who have been failed; NHS staff have been failed, too. The health board’s leadership and the Government should stop making a human shield of those NHS staff.

In any other country in the world, there would have been resignations and sackings, but here in Scotland not a single person has been held to account. Patients and families have been left to bear the consequences.

Nowhere is that more clear than in the case of Milly Main. Milly was just 10 years old when she died in 2017. She was in remission from leukaemia and had her whole life ahead of her, but she contracted an infection in the children’s cancer ward and her life was tragically cut short. Her mother, Kimberly, was never told the true cause of Milly’s death. Kimberly chose to relive the most painful moments of her life in the hope that others never have to go through the hurt that she has been through. Her bravery and strength are unquestionable, but they should not have been necessary.

Tragically, that case is not a one-off. There are countless cases in Scotland in which the state has failed and people have been victims, but in which public institutions have, rather than delivering justice, sought to protect themselves, and have acted against the interests of the public. There are many examples—the Queen Elizabeth, the M9 crash and the mesh scandal are just three examples in which victims have not just been failed but have had to fight the system in order to get truth and justice.

Across Scotland’s NHS, councils, police service and prisons, thousands of workers do their best every single day, but too often when a public service fails, managers and ministers spin and scapegoat, which takes precedence over truth and justice. That is why we need to change the law. No longer should public bodies be permitted to close ranks and protect their reputations at the expense of transparency and truth. Although the duty of candour principle exists in Scotland’s NHS, it is not the lived experience of too many people who have to fight to get answers.

That is why we must put victims and their families at the heart of investigations into public scandals and tragedies. The suggested law would fundamentally reset the balance in favour of families, rather than powerful public bodies. In recognition of Kimberly Darroch’s fight for justice, we are calling the new law “Milly’s law”.

Based on the model that was proposed for the Hillsborough law, it would provide for a new statutory charter for families that would set out clearly the duties that public bodies owe to them and which would, crucially, be legally binding. Instead of families having to campaign alone and to reveal their most painful moments in the press in order to get the Government to listen, they would access an independent public advocate—someone who would be there to provide legal advice and to represent them. Crucially, the public advocate would be empowered to launch investigative panels to uncover the truth at an early stage and to facilitate transparency, rather than evasion.

We cannot make such a law happen today, but agreeing to the motion could send a clear message that justice—real justice—is a priority of Parliament. Let me be clear: failure to back victims is not just business as usual or party politics, but an open admission that one is on the side of the powerful against the powerless. It is an abdication of our moral responsibility to lead, in Parliament. If our motion falls tonight, many members of Parliament will need to take a long hard look at themselves and consider why they are even here in the first place.

We must put bereaved families at the heart of the response to public tragedies, so that never again does a grieving parent have to beg for the truth to be brought to light. The scandal at the Queen Elizabeth university hospital must be a watershed moment, when we recognise that for far too many people, when they most need help their Governments and institutions work against them, not for them. Together, we can change the law to fundamentally reset the balance and create a system that is on the side of families, not institutions, and which delivers justice, not cover-ups.

I move,

That the Parliament acknowledges that there have been many instances in Scotland where families who have been badly failed, as well as bereaved, due to the actions and neglect of public bodies have struggled to get the justice they and their loved ones deserve; believes that victims and their families should be at the heart of investigations into public tragedy, and calls for a statutory Charter for Families to be binding on public bodies and the establishment of an independent public advocate who can act on behalf of bereaved families and victims, offering them advice and representation, and who is empowered to launch independent investigative panels to facilitate transparency at an early stage.—[Anas Sarwar]

15:09  

I thank Anas Sarwar and Scottish Labour for bringing this very important debate to the chamber. I will address the points in the proposal that he has introduced about Milly’s law shortly.

I start where Anas Sarwar started: by thanking all those who work in our public services up and down the country. In a time of unprecedented pressure, they have been tireless in their efforts. Staff in the NHS, Police Scotland and other public organisations have worked every single day during the Covid-19 pandemic to care for and support the people of Scotland. Despite the significant pressures that our public services have been under, we know that staff always aim to provide the best service they can provide to members of the public. Again, I record my thanks to them for that.

However, given my role, I am the first to acknowledge that there are times when the quality of service or care that is provided by our public services falls far short of the high standards that members of the public, members of the Scottish Government and, I suspect, members across the chamber expect to be consistently delivered. When that happens, individuals and families should be supported; they should have their questions answered and their concerns addressed and they should be told honestly what has happened, what will be done in response and what actions will be taken to ensure that the same never happens again. Transparency must be at the heart of all such efforts. That is particularly vital following the pain and distress of losing a child. I can imagine no worse pain that could befall a parent or a family.

I recognise that, on occasions, rather than being given the information that they seek, people who are affected and their families are instead left seeking answers. Therefore, I say at the outset that the proposal from Anas Sarwar and Scottish Labour on Milly’s law will be considered with an open mind by the Government and by me, in my role as Cabinet Secretary for Health and Social Care. I extend an invitation to Mr Sarwar to meet me to discuss the details of the proposals and, indeed, to discuss a member’s bill, if he intends to lodge such a bill.

My initial thoughts are that there is certainly merit in a number of the Milly’s law proposals, but I think that some of the proposals that Mr Sarwar has put forward need further consideration and discussion. It is possible that work towards some of the outcomes that he seeks could already be in train, through action that the Government is taking. I will elaborate on my thinking on that shortly.

Before I do so, I apologise without hesitation to all the people who have had poor experiences while in the care of the NHS or other public services. We have already established an independent public inquiry, led by Lord Philip Brodie QC, to fully investigate the issues that were highlighted by Milly’s case. The Government will, of course, co-operate fully with that inquiry.

There are already systems and processes in place in NHS Scotland that make openness and transparency when things go wrong not just a principle—I think that that is the word that Anas Sarwar used—but a statutory obligation, through our laws on the duty of candour. That means that health boards are legally required to review certain types of incidents, to meet personally people who have been affected, to investigate the issues that are raised, to offer an apology and to consider what learning can be applied.

What the cabinet secretary has just said flies in the face of people’s experience. What sanctions would apply to health boards for not following the law?

I accept fully Jackie Baillie’s point that, on occasion, the processes that we have put in place are not followed; I have said that already. When I have discussions with Anas Sarwar and Scottish Labour on the Milly’s law proposals, we can examine whether the arrangements in that regard can be strengthened and whether there is a need for sanction, as Ms Baillie suggests.

In addition, a consultation will take place later this year, which will include proposals for statutory duties of candour and co-operation to be placed on Police Scotland.

I turn briefly to whistleblowing, which the Government supports. That is why we have taken concrete steps to ensure that we have good processes and procedures in place to facilitate whistleblowing. I recently met Rosemary Agnew, the Independent National Whistleblowing Officer, and we will look to see what more we can do in that regard.

I am conscious of time. We have committed to the establishment of an independent patient safety commissioner. I said earlier that action on some of the outcomes that Anas Sarwar seeks might already be in train. One of the Milly’s law proposals is for an independent public advocate; Mr Sarwar elaborated on that. It is possible that the same could be achieved through the patient safety commissioner. We should have a discussion about that.

Our public service staff work incredibly hard to keep people safe, but I accept that things go wrong. I hope that Mr Sarwar will see that my amendment takes on board the spirit of much of what Scottish Labour has proposed in its motion. I look forward to meeting Anas Sarwar and Scottish Labour to discuss their proposals in more detail.

I move amendment S6M-03491.1, to leave out from “acknowledges” to end and insert:

“understands that public services, such as the NHS and Police Scotland, are staffed by people who work each day to care for and support the people of Scotland; recognises that, where the delivery of standards in public services fall short of what everyone would rightly expect, individuals and their families are too often left seeking answers, or justice; further recognises that this pain, not least where a life is lost, can be compounded where families are concerned that they are not being given these answers; believes that individuals and their loved ones who have been harmed should be central to any investigations or inquiries when, regrettably, things have gone wrong; notes that staff working in public bodies should feel safe to raise concerns when they arise, and that structures within the bodies should empower this; supports the creation of an independent Patient Safety Commissioner to champion the patient voice and promote users’ perspectives in improving patient safety, as set out in Baroness Cumberlege’s report, First Do No Harm; notes that the NHS is subject to an organisational duty of candour, and welcomes that consultation on putting a similar duty on Police Scotland will take place later in 2022.”

15:14  

I draw members’ attention to my entry in the register of interests, which states that I am a practising NHS doctor.

The Scottish Conservatives welcome Anas Sarwar’s motion and we support the principle that grieving parents should never again have to beg for the truth to come to light. We need to ensure, however, that an independent public advocate would operate under clear criteria and guidelines. The matter should not be about creating a big-budget department that ends up dealing with patient deaths that are currently well handled by clinicians through normal transparent communication between doctors and families, but the principle is important, so we will support the motion.

The story of Milly Main should be etched into Parliament’s collective memory. It is a tragedy—the avoidable death of a young girl, and a devastated family. It is also a scandal of institutional cover-up, intimidation, ministerial incompetence and a Scottish National Party Government that is consumed by secrecy.

I can only imagine the heartbreak and devastation of losing a child, but Milly’s parents, Kimberly and Neil, were also subjected to what has been described as health board “denial” and even “cover-up” around the circumstances of their daughter’s death, thereby putting them through heartbreak over and over again as they pursued the truth. That is plain cruelty.

Milly’s mum became aware of the Stenotrophomonas infection only when she saw it mentioned on her daughter’s death certificate. Kimberly wrote to the cabinet secretary’s predecessor, Jeane Freeman, with her concerns, but all she got back was a generic pass-the-buck reply, even though the former cabinet secretary knew about the case.

Three months later, a brave whistleblower lifted the veil of secrecy and claimed that the hospital’s contaminated water supply had caused the death of a child who had cancer. The whistleblower then faced bullying and intimidation at the hands of the health board. The SNP Government later hid behind a public inquiry as an excuse for inaction.

We know that Milly was not the only victim, and the SNP Government has been complicit in attempts to cover up multiple serious infections—and even deaths—at the QEUH. Milly was one of 84 children who were infected with bacteria while undergoing treatment, and a third of them suffered health impacts. Everything pointed to an infected water supply, although the health board insisted that such a link could not be proved. Prior to Milly’s death, an independent water risk assessment warned management that the risk of bacteria was high. At both the Royal hospital for children and the Queen Elizabeth university hospital, contamination was found in taps and drains.

It is important to be clear that any cover-up was not the doing of clinicians. In fact, senior doctors who flagged up warnings were branded as troublemakers. Dr Christine Peters, who is a consultant microbiologist, raised issues about ventilation and the risk of infection from the water supply in 2014, before the First Minister opened the hospital. Dr Peters wanted sight of the water risk assessments, but she was not allowed to see them until five years later. There is a history of closing ranks and of refusal to listen to concerned doctors and nurses, and there is a history of intimidation of people who have raised concerns too strongly. However, bullying does not block infection.

In 2019, two patients died at the QEUH after contracting a fungal infection that was caused by pigeon droppings. Last year, a senior Government official who was undergoing cancer treatment was exposed to another fungus—Aspergillus—but that information was concealed from the patient’s widow.

We have seen a pattern of its being left to grieving families to uncover the truth, while the SNP Government fails to do its duty and to hold health boards to account.

Over the past week, I have spoken to members of NHS Greater Glasgow and Clyde’s board, who have assured me that they are working hard to ensure a safe hospital environment.

All was going well—things were going in the right direction—but this morning I received confirmation from the health board that it knew last year that there are fire safety problems at the £842 million hospital. The internal wall panels contain material that does not meet building regulations, so wall linings will need to be replaced. That additional problem was described to me as being only a technical issue that is quite different to the well-document infection crisis. However, was Grenfell a technical issue? It all beggars belief.

I would be happy to look into that issue in more detail. I know of the issue because—far from it being shrouded in secrecy—the health board issued a press release about it in June last year. It is not a matter of secrecy. There is, of course, quite extensive remedial work to be done in relation to cladding and repairs to walls, but it is incorrect and inaccurate to suggest that there is secrecy, given that the health board issued a press release about the matter and it has been discussed in public board meetings during the past year.

I am talking about the internal walls, not the cladding—[Interruption.]—Was that before December’s debate, when ministers doubled down to defend the health board? The SNP Government must step up and shoulder its responsibility—or does it think that it has done no wrong?

I think that members will understand why, in our amendment, we call for not just a right to redress when things go wrong but

“a proactive approach to governance that seeks to avoid tragedy in the first place”.

We want victims and families to be treated with respect and we want ministers to ensure an end to institutional hostility towards whistleblowers. Let us, once and for all, do away with the corrosive culture of secrecy that we have experienced far too often from this SNP Government.

I move amendment S6M-03491.2, to insert at end:

“; further calls for transparency and openness when gross failures come to light, a proactive approach to governance that seeks to avoid tragedy in the first place, improved communication with victims and families, and a more pronounced ministerial effort to deal with institutional hostility towards whistle-blowers and those who warn of problems in their place of work where tragedy ensues.”

15:20  

I am pleased to speak for my party in the debate and I thank Anas Sarwar for all his work with families and victims to shine a spotlight on the important issue that is raised in the motion. It has been three months since members debated the horrific scandal—it is a scandal—at the Queen Elizabeth university hospital. It is more than three years since we learned of serious safety and cleanliness issues at the hospital, which ranged from grime-damaged facilities to contaminated supplies.

QEUH was built to provide the most excellent and efficient healthcare to all who needed it but, in the years after it opened, problems at the hospital had a catastrophic impact on some patients. In December, we heard the stories of some victims of the scandal, including Andrew Slorance, a father of five and dedicated public servant, whose widow, Louise, has had to campaign to hear the full and unvarnished facts about her husband’s death. We also heard about Milly Main, to whom the proposed law is dedicated. Milly passed away in the paediatric hospital when she was just 10 years old.

The tireless campaigning of Milly’s mother, Kimberly Darroch, alongside that of Louise Slorance, has brought much-needed light to the issues to do with transparency at QEUH and the health board that oversees the hospital. It is right that we all applaud their efforts to seek justice and that we acknowledge their bravery in confronting the issues that led to the tragic deaths of their loved ones.

As I have said in the chamber, I am a father of three young children. My daughter is not much younger than Milly was when she died, and my heart breaks for Kimberly and all those who have lost family members as a result of the issues at the hospital. I can only imagine the anguish that they have gone through.

Far too many families have faced barriers in their search for answers. It seems that, too often, when people have been most in need of help and support, doors have been shut in their faces and those people have got the undeniable feeling that the Government and the institutions that are there to serve them in their time of need have acted as a barrier to the truth and justice that they deserved. There is a painful symmetry with the experience of families of the victims of the Hillsborough disaster, who, for years, met obstacle after obstacle in their search for the truth and clarity that they so desperately needed to be able to peacefully lay their loved ones to rest.

The tragedies at QEUH have shone a light on the problem of institutions that too often seek to protect themselves at the expense of offering up the unvarnished truth. That is why my party is pleased to support the motion in Anas Sarwar’s name. It is right that families who find themselves in the most distressing and vulnerable situations imaginable should have access to a representative who will act on their behalf and ensure complete transparency from the beginning and at every stage of an investigation.

Anas Sarwar talked about his hope that this is a watershed moment in our politics. I, too, hope that we are now able to recognise and correct the problems in our institutions when it comes to investigating why things have gone badly wrong. I pray that, out of the unimaginable tragedy of Milly Main’s death, a law in her name and which bears her name might one day be an emblem of the right of every family who experience a tragedy to full transparency, accountability and justice.

We move to the open debate.

15:24  

I am glad that my party has brought the debate to the chamber. It is the right thing to do, and passing the law would, equally, be the right thing to do. That is why I am sure that we can all agree that Milly’s law is a reform that the whole Parliament can get behind without hesitation.

For far too long, individuals and families across Scotland have felt—rightly—that the system simply does not work for them. When a loved one has fallen victim to a serious failing that has led to loss of life, people are left picking up the pieces, with little support or understanding.

The point of Milly’s law is to ensure that bereaved families have the right to be at the heart of how organisations and institutions respond to such scandals and to ensure that they are not simply an audience to be spoken to. Far too many families have found themselves in that situation, when they feel that they are being lectured to and left out in the cold. That should not be happening. To ensure that it does not happen, we should give bereaved families the right to accessible legal advice and representation, so that they can participate fully in all public inquiries. That is the only way in which we can lift the lid off those tragedies—by exposing them to the light and putting those who are affected in the driving seat.

I am afraid that in this country, as in many others, there is a culture of self-preservation and sweeping difficult questions under the carpet. We all saw the scandal at the Queen Elizabeth university hospital, and we cannot let that happen again.

The reality is that relatives often do not have the time, the experience or the strength left to fight those clear injustices, but we cannot let that deter us from the truth. Families need to be given the right to have a powerful public champion to pursue their cause—someone who is independent and can act on their behalf. Milly’s law would ensure that they have that right.

On top of that, as we learned so harshly following the Hillsborough disaster and during the decades since then, it is absolutely necessary to establish a charter for families who are bereaved through public tragedy that is binding on all public bodies. That would give people a foundation, and the confidence, to fight back, often against overwhelming odds.

The impetus for Milly’s law came in response to a horrendous tragedy which, despite the numerous debates in this Parliament and the significant efforts of a number of my party colleagues, has not received the level of attention that it should rightly have received across the whole United Kingdom, not just Scotland. That is partly because we allow institutions too much power to control the narrative. To put it simply, the power must be taken away and put in the hands of those who are affected by loss. We find ourselves in this situation because organisations are not honest with themselves or with those whom their actions affect. There must be a duty of candour to bereaved families who seek the truth, rather than—as I mentioned earlier—a tendency to sweep things under the carpet.

I truly believe that the Queen Elizabeth university hospital scandal should be cause for serious concern far beyond Scotland, and Milly’s law can set an example that many others can follow. Never again should we omit evidence and findings from major public inquiries at subsequent criminal trials, and never again should we let families struggle for scraps of truth, so that they rely on a stroke of luck or a mistake. That is not fair, it is not just and—I repeat—it is not right.

I truly hope that the Parliament will fully support the passing of the law. We can make a significant difference by doing so and, after all, is that not why we are all here—to serve?

15:28  

I am grateful for the opportunity to speak in this important debate. I, too, associate myself with the comments that were made at the outset, and I thank every public service worker who has supported us all throughout the pandemic over the past couple of years.

Anas Sarwar has spoken about Milly’s story on many occasions in the chamber—it is a terrible tragedy. I cannae imagine how any mother or parent would thole that awfie experience—it is pretty heartbreaking. I know that, as a result of the efforts of Milly’s mother, Kimberly Darroch, lessons have been learned and important action has been taken, and we have heard from the minister that the Scottish Government is taking action to ensure that the chance of any other family experiencing a similar tragedy will not be repeated.

It is clear that the Scottish Government and every party in the chamber should agree that everyone in Scotland should receive the best possible care from all public bodies, including our NHS. As with any other proposal, I welcome the fact that the Scottish Government will consider any bill carefully once a proposal and consultation have been published.

Following Milly’s story, and to ensure that the voices of people who use health services are heard and their concerns are acted on, the Scottish Government committed to establishing a patient safety commissioner. In July 2020, Baroness Cumberlege published her report on the independent medicines and medical devices safety review. The review was commissioned by the United Kingdom Government, with devolved Governments’ agreement, to examine how healthcare systems responded to concerns raised about medical interventions. The review made nine strategic recommendations, and the former health secretary accepted all the recommendations that were within Scotland’s devolved competence, which included the establishment of a patient safety commissioner.

The intention is that the commissioner will work with and support healthcare providers and other relevant bodies to improve the processes and systems that they have in place for receiving and acting on patient feedback. They will support patients to raise issues or concerns about the treatment or care that they have received. The commissioner will also act as an advocate for patients.

The consultation on the role, which closed in May 2021, identified that the commissioner must be proactive and enhance what the NHS and the Scottish Government have in place, with an emphasis on listening to and learning from people’s experiences. The commissioner must then drive implementation to continually improve patient safety.

The consultation envisaged that the role should seek to address several areas for improvement in patient safety, which were set out in the report and include the need for more widespread and timely recognition by the patient safety system of issues that are identified by patients and the public. That is welcome, and I ask the cabinet secretary to continue to keep us updated on the process and procedures surrounding the creation and implementation of the patient safety commissioner post.

As members will be aware, I am still a registered nurse and, in my previous role as a clinical educator, I provided support and skills training for healthcare and allied health professionals. I welcome the fact that the Scottish Government has a shared vision for an open and learning culture in our NHS that encourages learning when there has been dissatisfaction or harm and encourages organisations, including our health services, to identify improvements. The Scottish Government’s commitment to that is demonstrated in the development of its approach to openness and learning through the introduction of the statutory organisational duty of candour legislation.

I am conscious of time so, in closing, I echo the view that everyone in Scotland should receive the best possible care from all public bodies, including our NHS. I pay tribute to Milly’s mother and family for their campaigning, which has led to meaningful change. I welcome the steps that have been taken and look forward to forthcoming progress.

15:32  

The debate is about the fundamental relationship between the individual and the state and about whether Governments and public institutions have a duty of transparency and honesty to those who are affected when something goes wrong. It is also about whether the families of those who have died have a right to information and to know the truth, and it is about the equality of arms between the individual and the state in any legal proceedings that look at what has gone wrong. The debate is not about undermining front-line staff who provide public services but about the rights of families when there are state-linked deaths, whether that be in the NHS or any other sector.

I will refer to a few recent deaths in custody that are relevant to the debate. Katie Allan was a third-year student at the University of Glasgow from East Renfrewshire who died in Polmont in 2018, and we still await a fatal accident inquiry. She was sentenced for drink driving and died by suicide after a catalogue of failures. Warnings that she was vulnerable were not heeded.

Allan Marshall also died in custody. The sheriff said that his death was entirely preventable and that guards involved in his death were “mutually and consistently dishonest.”

We hope that the fatal accident inquiry in the case of Sheku Bayoh will go ahead later this year. Again, that involves the state and the actions of the police force.

The Parliament has discussed death in custody in the past, and it has made attempts to improve fatal accident inquiries. I was not involved in those discussions, but I know that the average time between death and a fatal accident inquiry was 509 days on average between 2005 and 2008 whereas, since the 2016 legislation, the length of time has actually increased. It is clear that the issues need to be considered again.

The proposal that is before us calls for a charter for families who have been bereaved through public tragedy, which would be binding on all public bodies. It asks for improved access to legal advice and assistance so that bereaved families can take part in public inquiries. It asks for evidence from public inquiries to be taken into account in criminal trials. It asks for an extension of the duty of candour to bodies such as the police.

I hope that the member gets her time back for this intervention—she is making an interesting and important point. The problem is that, in an inquiry such as a fatal accident inquiry, as soon as there is a hint that there will be a criminal prosecution, the inquiry is sisted—it is stopped for the time being—to give the person who might be accused some protection.

The member raises an important point, which I do not have time to come back to in detail in this debate, but I hope that we will be able to explore it on another occasion.

The demands are not just being made in Scotland. Recently, Lord Rosser’s amendment to introduce a duty of candour into the Police, Crime, Sentencing and Courts Bill was passed in the House of Lords. Such demands are being campaigned for throughout the UK, partly spearheaded by the Hillsborough campaigners, who have been campaigning for rights because of their treatment. The demands are also being backed by those who have campaigned for nuclear test veterans and victims of the Grenfell fire and of the Manchester arena bombing, and by those involved in many other campaigns.

In 2017, the Angiolini review of serious incidents and deaths in custody called for non-means-tested funding for families immediately after a state-related—

Ms Clark, I must ask you to wind up.

I very much hope that the Parliament will look sympathetically on the motion.

Thank you—I am afraid that we are very tight for time.

15:37  

I start by sending my condolences to anyone affected by the tragic events at the Queen Elizabeth hospital in Glasgow. Nothing that we say or do in the chamber today will bring their loved ones back or offer any comfort.

Secondly, there are the hard-working staff who cared for those people’s loved ones and who still care for our loved ones on a daily basis under immense pressure from the current circumstances.

The fateful mistakes that led to Milly Main’s death, as set out in great detail by Mr Sarwar, continue to shock us all, as is apparent from the debate, but Milly’s death, and the needless infection of countless children at the hospital, was not just a tragedy, an accident or a mistake; it was a failure of governance at so many steps along the way—whether from the procurement and its oversight, the build itself, the building’s release to the health board, the working culture or the way in which concerns were raised and subsequently investigated. It is not the fault of the front-line staff, who were asked to go above and beyond. They had themselves flagged concerns to senior management at the hospital.

It is claimed that the health board knew about contaminated water as far back as 2015, when it took the keys of the hospital from the contractors. The question is what was done about it and whether that went far enough to mitigate the potential risk of the tragedy that actually ensued. We know that infection control doctors raised multiple concerns on multiple occasions, and even reported them to Health Protection Scotland in 2017. Despite all of that, the then health secretary, Jeane Freeman, told Parliament that she only found out on 11 March 2018, more than six months after the first potential water contamination death at the hospital. That begs the question: why did something so profoundly serious not land on her desk prior to that? I do not know what is a worse or more depressing scenario: that no one in Government knew about it before then, or that they did know but kept it quiet. Only one of those can be true.

Milly died from an infection that she acquired at the hospital that was meant to take care of her and make her better. In fact, she was getting better, until the infection. However, she and 83 other children were infected by the same bacteria and a third of them suffered severe health impacts as a result. Who has really taken full responsibility for all of that? Who was sacked? Who was sued? Who was prosecuted? The answer is no one.

Ms Freeman—for whom I had and still have a lot of respect—is no longer here to account for the Government; all the while, the contractors are mired in legal disputes with the health board and the health board recently gave its own senior management team an “Excellence in Leadership” award. I cannot begin to imagine how galling that is for the families affected by this tragedy.

Warnings were ignored and action was not taken and I am afraid that that ultimately led to the death of a child. If that had happened in the private sector, we would not be talking about public inquiries but criminal prosecutions. The reality is that we talk so often about these eponymous laws, which bear the names of the victims of tragedies, and we do so usually because the legislation is either too weak or simply non-existent.

We have Michelle’s law, Suzanne’s law, Frank’s law, Anne’s law and now Milly’s law. Behind every law is a name and behind every name is a victim. Every one of those laws should shame the Government for its actions or its inaction. It is failed governance, failed transparency and poor or non-existent communication that lie at the heart of so many of the problems here.

Four years on, we are still talking about solutions. We should not need a new law to stop tragedies such as this one. I have two quick points to make. First, far too often whistleblowers are not taken seriously and they are branded as troublemakers. There needs to be a cultural shift, not just in the NHS but in so many of our public bodies.

My last point is on the erosion of local services. If we are going to move services from places such as Inverclyde Royal hospital in Greenock and centralise them at a super-hospital, patients must find that those services are improved. Patients must have complete faith in the place that they are being moved to. The pain of the longer commute and fewer visitors needs to be compensated for by better outcomes.

It all comes back down to the families. The father of one child who became infected at the Queen Elizabeth said:

“When you see the fear in doctors’ eyes, the fear of ... intelligent people ... that’s scary ... we ... steeled ourselves for dealing with cancer ... what we didn’t expect was to be put in a position where a building almost killed our son.”

That family was one of the luckier ones. Milly’s was not. These families do not want more reviews; they want more honesty and more action, and they deserve it.

15:42  

Let me first express my condolences to Milly’s family. I have a 10-year-old granddaughter, the same age as Milly was when she died, and have similar images of a bubbly girl with all her life ahead of her. I cannot begin to imagine the pain of losing a child. I commend Milly’s family for pursuing answers and accountability for her death and I commend Anas Sarwar for his tenacity in representing their cause.

I understand and am sympathetic to much in the motion, but I am going to pause over the charter and I will tell members why. I recently pursued a local authority over its failures towards children with severe learning difficulties who were nonverbal and suffered assaults at the hands of their teacher. With the help of the parents and some brave staff, after four years of pursuing the case—through police, a prosecution and finally an independent inquiry—the council was finally brought to book.

As a result of that, I have called for the principle of corporate criminal responsibility to be considered for public bodies—perhaps through a public body criminal responsibility bill, which the Government has indicated that it will investigate. The First Minister has stated:

“Given the seriousness of the issue, I want to say very clearly, through Christine Grahame, to the parents involved that I will, of course, consider any representations that are made to me.”—[Official Report, 24 February 2022; c 25.]

That is something that could be applied to NHS boards because, quite often, the people who are involved have gone somewhere else and there is no discipline—there is nothing that can be done. It would have to be used only in extremis, but I feel that it is something that requires pursuit.

I am very sympathetic to a statutory charter, but I think it is premature in the current circumstances. I note what the cabinet secretary had to say about discussions. Currently, there is the police investigation and the wider public inquiry into the

“planning, design, construction, commissioning and, where appropriate, maintenance”

of both the Golden Jubilee and the Queen Elizabeth. That inquiry by Lord Brodie will determine how ventilation and water contamination issues affected patient safety and care in the hospitals and whether those issues could have been prevented. It will also recommend how past mistakes can be avoided in future NHS projects.

Other areas that the inquiry team are investigating include the management of the projects by NHS Greater Glasgow and Clyde and NHS Lothian, and whether the “organisational culture” at the health boards

“encouraged staff to raise concerns”—

or perhaps prevented them from doing so.

Crucially, it will also consider whether individuals or bodies

“deliberately concealed or failed to disclose evidence of wrongdoing or failures”

during the projects. Those findings will be invaluable in establishing what is required next.

With both on-going potential criminal charges and the report that is yet to be published, any legislative measures are in my view premature—not ruled out, but premature. There may even be a fatal accident inquiry; I agree that those take a long time. If there is, it is open to Milly’s family to apply for legal aid so that they can be separately represented. Just like criminal prosecutions, fatal accident inquiries are heard by the Crown on behalf of the public, so there is no entitlement for individuals to have separate representation. However, I expect that if an inquiry were to take place, Milly’s family would be successful in securing legal aid.

I conclude by again extending my condolences to Milly’s family. I am glad that the debate was held. I hope that at the end of those processes, Milly’s family’s persistence ensures that all children receive the very best, safe care. I thank Anas Sarwar for securing the debate.

15:46  

My thoughts are with all those whose care has fallen short of the high standards that we hold for our public services. Fighting to have your voice heard can be exhausting, so I also thank those who have tirelessly campaigned to bring injustices or failure to light, especially Milly’s family, and I thank Anas Sarwar for securing the debate.

Our public services are invaluable and we should all be able to rely on them, particularly during a global pandemic. Unfortunately, sometimes those services fall short of the standards that have been set for them. When that happens, it is right and proper that there is honesty and transparency about what has gone wrong and how those failings can be addressed. However, as the motion and the Government amendment note, individuals and their families are too often left seeking answers or justice.

We must not underestimate the pain and hurt caused to individuals who know that something is not right with either their or their loved ones’ care, but who are ignored or dismissed when they try to raise concerns. Too often, I know that people feel shut out of the process when investigations are taking place. It is important that any investigations and their findings are communicated on an on-going basis to patients and their families. It is essential that whenever public bodies have failed in their duty of care towards members of the public, they are held accountable.

Transparency and candour are fundamental to ensuring that people can trust the services that are available to help them. The public has a right to know when there have been failings, as well as what action will be taken to prevent such failures in future. Without that, relationships can be damaged. Understandably, that can lead to fear, hurt and anger on behalf of those who have been failed and their families. As we recover from one of the greatest challenges that our NHS has ever faced, we must prioritise rebuilding and repairing the relationships between patients and health services, which have been severely tested by the strain that Covid has placed on them.

As the Cumberlege report notes, the system is not good enough at spotting trends in practice and outcomes that give rise to safety concerns. The report found that people from all over the UK who have been affected have been dismissed, overlooked and ignored for far too long, and that the issue was not one of a single or a few rogue medical practitioners or differences in regional practice, but that it was system wide.

There is no intention to blame individual members of staff, the vast majority of whom work extremely hard to deliver excellent care for the people of Scotland. However, there is clearly a culture where patients are not always listened to when things go wrong. A “clinician knows best” approach fails to take into account that patients are often the first to know when something is not right with their own bodies or the care that they are receiving. That is why the creation of an independent patient safety commissioner will be so important and will ensure, when patients do have concerns and complaints, that they are listened to and that those complaints are considered alongside other similar concerns and complaints so that patterns can be detected at an early stage. The commissioner will be able to advocate for patients in a system that is not always willing to take their concerns seriously, or capable of doing so.

Services should be held accountable when failings are discovered but, when genuine mistakes have been made, we need to support staff to come forward, and to establish an opportunity for learning, training and development. Creating a hostile culture that discourages people from coming forward will not serve patients or staff well. The Sturrock review laid bare the cultural problems that exist within our NHS and the terrible toll that they have taken on staff, who are afraid to speak out about issues. We need to foster a culture in which people feel comfortable and safe in coming forward when mistakes have been made.

I close by expressing my thanks to all those working in the NHS and wider public services, many of whom have been dealing with extremely difficult conditions since the beginning of the pandemic. Improved transparency and accountability will serve patients and staff better, and we owe it to all who are affected to make sure that that happens.

15:50  

I begin by offering my condolences to Milly Main’s family for the circumstances that have led us here, and expressing my admiration for the courage and determination of Milly’s mother, Kimberly, over the past five years. I, too, extend my thanks to all public sector staff who are committed to looking after and supporting the people of Scotland who they care for every day.

Milly’s tragic death at the Queen Elizabeth university hospital in 2017 and the circumstances of the subsequent investigation were, I am sure, a distressing time for her family, friends and community. Milly’s story may not be an isolated one but, through the hard work of Kimberly and others, it is one that will lead to change. I welcome the debate and I hope that the potential introduction of Milly’s law will help to ensure that such failings never happen again but that, whenever they do happen, the families who are impacted are supported to establish the truth. Milly’s law proposes positive change in how our public sector deals with institutional failings, and I commend the work and persistence of Anas Sarwar in highlighting the issue.

As convener of the Criminal Justice Committee, I, with my colleagues, have listened to many professionals, experts and others on the challenges faced by ordinary people who seek support from and answers within the criminal justice system. However, for some, navigating that system is almost as traumatising as the incident that took them there in the first place. Their testimonies have demonstrated why it is so important that, when people feel let down or failings happen, lessons are learned and corrective action is taken to ensure that lasting improvements are made.

I welcome the opportunity that Milly’s law can bring to bereaved families, and, in particular, the establishment of the patient safety commissioner, which will enhance and complement the work of the Scottish Public Services Ombudsman and will ensure that the voices of the people using our health services are heard and their concerns are acted on. Opportunities to improve what can be a reactive system offer much-needed help and support to families in their time of need. They can also ensure a timelier recognition of issues, helping to drive forward continuous improvements in patient safety.

Turning to the matter of a duty of candour, I very much welcome the introduction of legislation that creates a requirement for all care providers, including health boards, to review certain types of adverse events and to meet personally with those affected, to apologise and to meaningfully involve them in a review of what happened. I hope that that will mean that, in future, families get answers more quickly and in a way that perhaps makes them feel less alienated from the process.

Finally, on a related issue, I welcome the Scottish Government’s commitment to consult on legislative proposals later this year, with a view to delivering new laws that will improve transparency and further strengthen public confidence in the police. It is in the interests of Police Scotland and of the wider public that we ensure that the systems for investigating complaints and failings are as robust and transparent as possible.

In conclusion, I commend the work that has been done to date around the proposals for Milly’s law, and I hope that it will result in tangible improvements in the way that our public sector deals with bereavements and institutional failings in the future.

I also commend Kimberly for her work, her commitment both to Milly and to this important campaign, and for reminding us all that there is nothing as powerful as a mother’s love.

We move to the closing speeches.

15:55  

This has been an interesting debate, with some informed and constructive contributions. I thank Anas Sarwar for the way in which he moved the motion, and I thank Katy Clark, Christine Grahame and Jamie Greene, who all brought different dimensions to the debate with their contributions.

I have a fear of heights—I am always worried that my glasses will fall off and I will be stranded—but nothing has scared me witless more in life than the wellbeing of my children. That sentiment will be shared by every single parent in the chamber. From the minute that a child becomes part of someone’s life, there is a contract that they will never forget.

As a child, we expect that we will see our parents pass—that is part of the contract of life—but we would never expect to have to deal with the loss of our own child. If people want to know what that grief looks like, they need only look at television pictures of parents in Ukraine. Fathers are having to send their children away while they go back to fight, and as mothers try to flee, their child is shot dead before them on the street—the grief is writ large. Although it does not make it any easier, they understand that the situation is due to the boot of a reckless dictator. There will be parents here who, off camera, feel exactly that grief when a child is knocked down by a car, or when a child dies of an incurable illness. However, when a child dies, and the institution of the healthcare system seems predisposed to deny us the knowledge of why it happened, that is totally unacceptable.

What worries me in part is that we have moved to a compensation culture, in which accountability is transferred and becomes “Here’s money instead.” In 2007, when I first spoke in a health debate in the chamber, the NHS paid out £18.93 million in compensation. The compensation figure for last year was revealed yesterday—it is £61.59 million.

Constituents have come to me about the death of a child or a parent, and they did not understand, or could not accept, the sequence of events that led to that loss. They have gone through a process that I can only describe as a massaging and managing of their issue, at the end of which they were told, “Of course, you can apply for compensation.” In tears, they did, eventually, but that did not answer the fundamental questions. They want to know why it happened, and they very often ask, “Is this going to happen to somebody else?” It seems to me that the transfer to a compensation culture involves an avoidance of both accountability and the determination to ensure that it will not happen again.

Back in 2019, I first raised the issue of Milly Main with the First Minister. That came on the back of an understanding that our NHS maintenance backlog was some £900 million at that point. We then asked what health inspections had been taking place and learned that the number had declined from 38 to just 14 in that year. I do not know whether that situation has now been reversed. There was, I think, an acceptance by Jeane Freeman that public confidence had been shaken, but as the months went on and the questions continued to be asked, there was a surfeit of embraces, clutching and condolences. We heard the phrase “My heart goes out to”, but there was no material advance on the fundamental questions of what happened, what was being done about it and why we did not know.

I applaud Anas Sarwar’s tenacity in pushing the issue. He and I have relied on brave souls telling us things that people did not want us to know. It is only because we found out those things that we have been able to drive the whole argument forward.

Let me be absolutely clear: I think that we should be supporting and encouraging Anas Sarwar’s bill. This is 2022, and we have to get to a point at which we do not simply say to people, “Look, rather than pursuing this, here’s some cash. You won’t actually ever find out what’s happening and we’re not ever really going to tell you. In fact, there is an institutional willingness to club together to try and hide behind a screen.” That must end. That is why I support Milly’s law, and I commend Anas Sarwar for his efforts to bring forward a bill.

16:00  

I think that this is the second time that I have said this in as many months, Presiding Officer, but it is a genuine pleasure to follow Jackson Carlaw’s contribution. He made some powerful points. Indeed, a number of members from all parties, including Anas Sarwar, who led the debate for Scottish Labour, have made important points.

I reiterate that I will seek an early meeting with Anas Sarwar. My office will be in touch to arrange that. I am keen to understand—I am sure that he will address the matter in his closing speech—the timetables that are involved in relation to the proposals, the bill and so on. Let us get ahead of that and meet early on to discuss the specifics of Milly’s law, as the proposals have a lot of merit to them.

I, too, commend every member of this Parliament who has, over the years, amplified the voices of those who have felt powerless in the face of terrible adversity. That should never have been necessary; it should not have taken members of this Parliament to amplify those voices. However, they have done so admirably.

A number of points have been well made by members. Katy Clark made the point very well about the imbalance that can often arise between the state and its institutions and the public. She spoke at length about some of her concerns about the handling of police complaints and about the prison service. Later this year, we are due to consult on the police complaints handling bill. I am sure that she will want to give her thoughts on that. Many of the issues that she touched on will be covered in that consultation.

A number of members spoke powerfully about the loss of a child, including how no one expects that to happen, how unnatural it must feel and how none of us, unless we have experienced it ourselves, can understand the grief that befalls parents and a family when that happens.

I accept the central premise—which Opposition members and members of my party have mentioned—that, on occasion, the health boards involved have not approached the issue correctly, appropriately or, indeed, with the values that all of us hold dear around transparency and parent and family involvement. I think that there are merits in the proposals.

This has been a very good debate, with, by and large, very good contributions. However, we perhaps need to take a moment. We should not always cast the debate as being one of management, and senior management in particular, versus the public. I have had the pleasure of being the health secretary for the best part of 10 months. I have dealt with and spoken to senior management in every single health board and non-territorial board in the country. I speak to men and women who are dedicated to public service. I fully accept that that does not mean that they get everything right, but they are dedicated to public service. We need to ensure that the values that we expect in our health service materialise, particularly at the time of adverse events.

On the actions that the Government has taken, we have the duty of candour laws. I accept the point that there may be a discussion to be had about what else can be done. Jackie Baillie raised the point about potential sanctions, which I will consider.

A consultation on the patient safety commissioner has just taken place, and perhaps that role presents an opportunity. As I said, I will have an early meeting with Anas Sarwar, at which we will perhaps discuss his bill, pre-introduction, and his expectations in relation to the public advocate that he is calling for. Perhaps those could be met through the patient safety commissioner.

Where, unfortunately, things have not gone right and there is a requirement for independent public scrutiny, as happens with a public inquiry, I make it abundantly—absolutely—clear that the Government will co-operate with the public inquiry that is under way. My goodness, let us hope that there is not another such inquiry in future, but, if there ever is, the Government will co-operate fully with it.

I look forward to seeing the detail of Milly’s law and co-operating and working closely with people across the Opposition parties to make sure that we prevent things from going wrong and that, if they do go wrong, we deal with them openly and transparently.

16:04  

It cannot be acceptable that, in today’s Scotland, bereaved families should have to fight tooth and nail for justice for their loved ones when the unthinkable has happened. The scales are tipped in favour of the system, the institutions and the faceless public bodies. Further, it is not just that the scales are tipped in their favour, because they hide information, they cover up and they conceal. Regrettably, I have experienced that many times from NHS Greater Glasgow and Clyde in particular. The lack of transparency, openness and honesty is, frankly, appalling, and it cannot be allowed to continue.

It is not right that grieving family members, such as Kimberly Darroch and Louise Slorance, should have to campaign to get to the truth. A duty of candour might exist in principle in Scotland’s NHS, but that is not the experience of those who have tried to get answers when things have gone horribly wrong. It is only because of the dogged determination of those families, often during their darkest hour, that the truth has been revealed. That is simply not right.

The Clostridium difficile outbreak at the Vale of Leven hospital in my constituency left the families of at least 34 victims fighting for an apology for seven long years. Having them fight an uphill battle for justice, when they should have been grieving, was inhumane. Faced with denial, the deliberate withholding of information or whitewashed reports that absolved everyone of any blame for anything, they held out. Their determination delivered a public inquiry, and it delivered change.

For those families, everything was put on pause, simply because they wanted answers that were not forthcoming. When something goes badly wrong in the NHS or in any public institution, the response should be one of listening and learning lessons, not closing ranks and hunkering down. The road to clarity should be easy and direct.

The problem is not exclusive to public health tragedies. The same issues were repeated in relation to the fire at Cameron House at Loch Lomond, which claimed the lives of two young men, Simon Midgley and Richard Dyson. I have been working with Simon’s mum, Jane Midgley. This year marks five years since the fire, and despite the criminal case being concluded, Jane is still waiting for answers. The next stage is a fatal accident inquiry to ensure that lessons are learned from the tragedy—but it drags on. Jane has no legal representation—she cannot get legal aid—so her voice is silenced. Her fight for justice is on-going to this day, and who is on her side?

Victims and their families should not have to pay for legal support while institutions and public bodies spend freely from the public purse. Too often, the bereaved are left with nowhere to turn. There was a fall in legal aid spending from £130 million to £99 million in 2020-21. Years of underfunding has led to a significant decline in the number of people who work in legal aid. The scales tip ever further away from ordinary people. No one should be priced out of seeking justice.

We are calling for Milly’s law in order to put families at the very centre of the process. We need a system that evens up the balance—that is on the side of families, not institutions. We need a system that allows transparency, truth and justice to prevail. We need a system that does not cover up and hide the facts, but allows them to come to the fore so that we can learn from mistakes and so that mistakes are prevented from happening again.

Based on the model that was proposed for the Hillsborough law, Milly’s law would reset that balance between families and powerful public bodies and ensure that bereaved families, collectively, are at the heart of the response to disasters and public scandals.

I think that, if it is agreed to, the SNP amendment will send an unhelpful signal about whose side the party is on. It looks to me like it is on the side of the institutions, and that would be incredibly disappointing. The Hillsborough families had to wait 30 years—30 years—for legislation. I hope that the SNP is not suggesting that Milly’s family, Andrew Slorance’s family, all the families at the Queen Elizabeth university hospital, Jane Midgley’s family, Katie Allan’s family and more besides need to wait any longer.

Members have a choice tonight. Do not just say in the debate that you support the families. Do not just give us warm words about Milly’s law—vote for it. Vote for it at decision time, because it is time to redress the balance and support the motion.

That concludes the debate on Milly’s law: justice for families. There will be a brief pause before the next item of business.