Agenda item 2 is our final evidence-taking session on the Health (Tobacco, Nicotine etc and Care) (Scotland) Bill. I welcome to the committee Maureen Watt, Minister for Public Health; and, from the Scottish Government, Claire McDermott, bill team manager; Lynne Nicol, quality team leader; Siobhan Mackay, head of tobacco control team; Professor Craig White, divisional clinical lead; David Wilson, solicitor in the food, health and community care division; and Ailsa Garland, principal legal officer.
I understand that the minister wishes to make a short opening statement, after which we will go straight to questions.
Thank you very much, convener, and good morning, members.
Thank you for the opportunity to say a few words about the Health (Tobacco, Nicotine etc and Care) (Scotland) Bill and why I believe that it is important. The bill covers three distinct health topics, each of which has its own important part to play in helping people in Scotland live longer and healthier lives and in safeguarding our health and social care provision. I should add that the programme for government announced a commitment to provide a right to voice equipment, and I intend to write to the committee to detail the Scottish Government’s plans to lodge a stage 2 amendment on that matter.
Part 1 seeks to reduce access for under-18s to nicotine vapour products and to reduce the products’ appeal to children and non-smokers in Scotland. It also seeks to place further controls on the sale of tobacco and to continue to denormalise smoking. It is my belief that in a climate of on-going debate the bill has struck the right balance in the regulation of NVPs.
As you will have heard, the revised European Union tobacco products directive, which will place restrictions on cross-border advertising of e-cigarettes on, for example, television and radio, will be implemented across the United Kingdom by May 2016. The bill builds on that by taking powers to prohibit domestic advertising, including billboards, posters and leaflets.
However, it is not the intention to ban certain point-of-sale advertising of NVPs in Scotland. It is important that current smokers are able to ask questions and have consultations about which products might be right for them.
I am aware that introducing an offence of smoking outside hospitals has stimulated debate, from those who believe that the legislation is unnecessary to those who believe that it should cover the entirety of national health service hospital grounds. The bill proposes an offence of smoking within a perimeter around hospital buildings. The perimeter will be consulted on and determined in regulations.
Preventing ill health is a major challenge for our health services now and in the future. Tobacco remains the biggest cause of preventable disease and death in Scotland. It is therefore my view that our NHS must show leadership in supporting and promoting healthy behaviours, particularly around denormalising smoking.
The provisions in part 2 place a requirement on organisations that provide health and social care to follow a duty of candour procedure where there has been an incident of physical or psychological harm. The procedure will be set out in regulations to be made using the power in the bill. The proposals have been intentionally focused on an organisational duty. The introduction of the duty will provide a further dimension to the arrangements already in place to support continuous improvement in quality and safety culture across Scotland’s health and social care services.
Part 3 creates offences of ill treatment or wilful neglect, which will apply to health and social care workers and provider organisations. The offences will cover intentional acts or omissions and are not intended to catch incidents of mistake. Neglect and ill treatment occur very rarely in our health and social care system, but the criminal justice system must be able to identify and deal with those cases effectively and appropriately when they arise. The creation of the offences is intended to help secure access to justice for those who suffer neglect or ill treatment.
It is important to emphasise the difference between those offences and the unintended or unexpected incidents covered by the duty of candour. The wilful neglect offences are intended to relate to very deliberate acts or omissions.
That is all that I would like to say at the moment, convener. I look forward to the committee’s consideration of the bill and the discussions to follow.
Thanks, minister. We will go directly to questions from Richard Lyle.
Good morning, minister. You answered in your opening statement the question that I was going to ask—thank you for that—but I will ask it anyway, in order to confirm what will be the case.
I refer to smoking in hospital grounds. Most people have expressed concern that we are allowing the local health board to totally ban smoking in hospital grounds. However, in your opening statement you said that a perimeter would be set. Have you any idea what perimeter will be set? I, like many others, abhor the fact that people smoke outside hospitals, but I can understand the reasons why they are doing that—maybe they have had some bad news or have been in to see a relative who unfortunately has just died, or whatever.
I support the parts of the bill that suggest that we have to remove people who are smoking from hospital entrances. How will the perimeter be identified to smokers? Will you, as one witness suggested, consider putting up shelters, where people who are smoking could be visited by others who could explain to them the reasons why smoking is bad for their health?
No two hospital grounds are the same throughout Scotland, so it will be very much up to health boards to decide what perimeter they want. Basically, we want to get away from the situation that you describe, where people go through a wall of smoke as they enter the hospital. Something like 10m to 15m is roughly what we have in mind for the perimeter, but that will be set down in the regulations.
With the convener’s agreement, I will ask you one more question.
NHS boards cannot—I repeat, cannot—ban smoking on their grounds totally. They must act within the provisions of bill when setting the perimeter in a hospital’s curtilage. I would suggest that 15m is too close and that perhaps it should be double that. We might disagree on the range, but can you give the assurance that NHS boards cannot totally ban people from smoking within hospital grounds?
“Banning” is not a word that I like. It will be up to each health board to decide what its policy will be. The bill will not make it compulsory for health boards to ban smoking within their grounds.
I am very much in favour of a health-promoting health service. It is an anomaly that we allow an activity that damages people’s health to take place within a hospital setting. We know already, and you will know from the evidence that the committee has taken, that different health boards are at different points along the journey. Some health boards, such as NHS Ayrshire and Arran, are much further along. The discouraging of smoking in hospital grounds is not new; it has been on-going for a long time. Health boards are on different paths along the journey.
To answer your question, the bill itself will not ban or prohibit smoking in hospital grounds. That has to be left to the policy of health boards.
Thank you for that reassurance. Again, I welcome the measure and wish it to happen.
I will ask about the role of staff in policing the smoking ban around hospitals. The bill talks about the “management and control” of a no-smoking area and knowingly permitting another person to smoke there. If a member of staff is walking into work and sees people smoking outside, does that staff member have a role in trying to stop them? If there is a patient who staff believe should be allowed to smoke for their own wellbeing, and a staff member takes them outside and allows them to smoke, would that staff member be breaking the law? We need to be clear about the role that staff will play.
Staff, of themselves, would not be telling people whether they can smoke.
We are looking for a culture change. The advertising that we have done with the green curtain campaign on taking smoking right outside has been effective.
To answer your first question, we would not expect all staff to tell those people that they cannot smoke there. Dealing with people will be up to the health boards and other organisations. The perimeters will have signposting that says that smoking is not permitted in the hospital grounds. You have probably already seen that at most hospitals.
On your second question, I suspect that you are thinking of people who are in mental health wards or long-term patients who have gone on smoking. In the case of people who are going in for an operation, we are trying to make sure that they are made aware of the smoking policies at the initial appointment with their consultants and are offered smoking cessation services before they go for their operation.
Areas will be set aside for people who have mental health issues to smoke. However, the overarching policy will be to encourage people to stop smoking, because smoking does not contribute anything towards mental health and wellbeing. It actually does the opposite.
I am thinking of a situation in which a patient is unable to get outside on their own to smoke, for example because of mobility problems, and a member of staff takes them outside to facilitate their smoking. I understand that in mental health wards there will be smoking areas, but I am thinking of normal wards.
In each individual circumstance, it will be up to the nurses or doctors, in consultation with the patient, to decide, and there will be areas set aside outside the perimeter. Siobhan Mackay or Claire McDermott may wish to comment on that.
09:45
NHS Health Scotland published guidance earlier this year to support the implementation of smoke-free grounds across all NHS sites. It set out standards for boards, including what the roles and responsibilities of staff are. No staff member would be criminalised for assisting somebody to go out and smoke, although that would be a matter for the NHS board, and I think that the minister is right to say that the individual circumstances would have to be considered.
I know that the minister is aware of a case in my region where a patient was banned from smoking in the grounds of a mental hospital. I want to clarify a point, because I will be raising the issue with the local health board soon. Is the health board still responsible? In such an instance, can it still say that the grounds must be smoke free, or could it be asked—or pressurised—to provide a shelter of the kind that the minister mentioned for such patients?
It is up to the health board to decide its policy. It is not right for me to talk about any individual case. The best course of action for that particular person should be decided in consultation with the patient and their consultant or carers. There might be something that we do not know about that case; the policy is up to the health board.
That is helpful, as it clarifies the point for me. Thank you.
How will exemptions be clear to people and not just to the health board? If there are many different hospitals in a region and one has a 15m exclusion zone and another has a 50m exclusion zone, and if there are exemptions at one hospital but not at another, how can there be a clear message if such an ad hoc approach is taken?
The situation will be roughly the same as that under the Smoking, Health and Social Care (Scotland) Act 2005 regarding residential hospitals and residential properties that are in and around hospitals. We are on a journey and we want to ensure that people who visit hospitals and go into hospitals are absolutely aware that our aim is to make hospitals and hospital grounds smoke free.
As we have in the past, we are relying on people realising that we want to make hospitals health-promoting places. Smoking damages health, so why would we allow smoking in an area that people are in to get well? It is very much a journey for people to realise that we really do not want people to smoke in hospitals and hospital grounds, and I think that that message is already getting through. The green curtain campaign has had a great deal of success and, in the run-up to implementation of the bill, there will be more advertising and leaflets to make people aware of what we want round our hospitals.
My question is about the advertising and promotion of nicotine vapour products, which are more commonly known as e-cigarettes. The policy memorandum states that you are looking to retain point-of-sale advertising, but what is not particularly clear is what other types of advertising you might consider acceptable and how you will restrict other forms of advertising for NVPs. Will you clarify that?
Shops that sell NVPs will be allowed to advertise the products so that people know which one will particularly suit them given what they want the product to do. Much of the other advertising will be covered by the European Union tobacco products directive, but we want to ensure that there is no advertising at events on billboards, posters, screens and so on.
It seems to be accepted that e-cigarettes can be useful in getting people to move away from smoking. Community Pharmacy Scotland suggested that, while we would not necessarily want to encourage people towards e-cigarettes, we should ensure that they are aware that such products are freely available.
Is there no intention to extend advertising away from the point of sale in order to encourage people to use NVPs, given that there is a preventative health message? I think that we all accept that NVPs are a good way of getting people away from tobacco smoke.
On the point about pharmacies, NVPs are not medicinal products and are not regulated or licensed as such. The manufacturers and sellers are not—as far as I can see—interested in having their products regulated as medicinal products.
I am sorry, minister—I am not suggesting that e-cigarettes are medicinal products. I am simply saying that Community Pharmacy Scotland sees the benefit in having e-cigarettes available to people in pharmacies and other outlets. I am trying to establish whether there will be any additional advertising other than that at the point of sale.
Claire McDermott may want to come in on that.
The bill recognises that NVPs may act as cessation devices. Point-of-sale advertising will still be allowed in pharmacies under the regulations—that is the intention, at least—but we do not envisage any advertising beyond that.
The licensing of medicines is a matter for the Medicines and Healthcare Products Regulatory Agency. If the manufacturers got a licence for e-cigarettes, they could advertise under separate regulations.
So there will be advertising only at the point of sale and there will be no further advertising of the benefits of NVPs.
There is a fine balance to be struck with NVPs. We are not totally aware of their effects, as there has not been much research into that. We would not want them to be advertised to the extent that people who would not even think of smoking were encouraged to start using NVPs. We recognise that, for many people, NVPs are part of the process of stopping smoking, but we would not want their use to be advertised as a thing to do.
That is reasonably clear. The advertising will be at the point of sale—full stop.
Yes.
Does anyone else want to come in on that theme?
The Government is treading a fine line. The evidence that we have heard has emphasised differing—I was going to say conflicting—aspects, and I have over the past few weeks noticed differences in medical opinion on the subject.
This is one of those areas that are a bit confusing for the public, but I think that most people are reasonably happy with the line that you have trodden, minister. However, do you feel that there is room for a slightly more positive attitude to e-cigarettes from the Government? There might be some disagreement and uncertainty about whether there is a degree of harm from e-cigarettes, but surely everybody is united in the belief that they are massively less harmful than cigarettes. I think that Cancer Research UK and—if I am not misrepresenting her—Professor Linda Bauld, who gave evidence to us, take that view. Should a clear message be sent out to that effect?
I am aware of what Linda Bauld and Cancer Research UK said. As I said in answer to Dennis Robertson, we recognise that people are using NVPs as a method of stopping smoking, but it is also recognised that they are more effective in helping people to cease cigarette smoking if they are used in conjunction with smoking cessation services that are already available.
My worry is that we simply do not know enough about the long-term effects of NVPs. I have been reading about something that is called popcorn lung. In drafting the legislation, we felt that we needed to be very cautious and to tread a very fine line between promoting NVPs as healthy products for stopping smoking and promoting them as things that people can use as a recreation. We debated the issue long and hard, but I hope that the bill strikes the right balance.
In that sense, do you disagree with the guidelines that Public Health England has issued?
I have seen Public Health England’s guidelines. I suppose that the short answer is yes—at the moment, we disagree with them. We do not want to be behind the curve, but NVPs are not licensed as medicinal products and not much research has been done on the long-term effects. We recognise that people are using them as a way of stopping smoking. That is a good thing, and the rates of smoking are coming down. However, I am very cautious.
You are to be commended for not going down the route that has been taken in Wales, where e-cigarettes have been conflated with cigarettes when it comes to smoking in public places. However, some hospitals in a particular location in Scotland have banned the use of e-cigarettes on hospital grounds, which is an example of the Welsh approach. Do you have any views on that?
I think that NHS Lothian has decided not to allow e-cigarettes to be used on hospital grounds. Each health board has the ability to decide how it wants to progress. It will be interesting to see how NHS Lothian fares with that approach in comparison with other health boards.
This is very much a new area of legislation. We hope that what we are proposing in the bill strikes the right balance.
To flip back to the exemptions, different health boards have made different decisions on the use of NVPs. As Malcolm Chisholm suggested, the Scottish Government is almost in the middle—it is still making up its mind—in that its position is between the position south of the border and the position in Wales.
There is a bit of an issue when health boards are treating those who use NVPs almost as smokers. We got some evidence that, if that approach continues to be adopted, people who use NVPs might think that they might as well be smokers if they have to leave a building or be treated like smokers. Perhaps that could be reflected on when guidance is issued, particularly in relation to exemptions and no-smoking zones around hospitals.
10:00
We have made it very clear that the bill does not ban the use of NVPs, but—as we have seen—each health board has already decided on its own policy. Some people have said to me that they do not like walking through the vapour from NVPs—some asthmatics do not find it helpful. I hope that what we have proposed in the bill is the right course.
If someone was using an NVP in hospital grounds, how would a ban be enforced if NVPs are not covered by the bill? It would not be enforced, would it?
That would be up to the health board’s policy rather than the provisions in the bill. We are not banning NVPs in hospital grounds, but the position will depend on the health board’s policy. Health boards are entitled to make that decision; that is devolution of power.
We have heard that one before in relation to health boards, but fair enough.
I turn to the duty of candour and wilful neglect, which we can perhaps look at together. Some people have suggested that the new offence of wilful neglect could undermine the duty of candour. We might come on to that issue.
My first question is on the origins of this. I take it that the origins are in the Francis report. To what extent have you looked at the legislation in England and decided to vary your approach, or have you not been very much involved in that?
Are you referring to the duty of candour or to wilful neglect?
Both of them.
I know that people try to conflate the two.
I am not conflating them; I am saying that they are related.
We have tried to keep them separate, because they are separate.
The provisions are obviously a result of the Francis report, and I have looked at the legislation in England. I am sorry, but I have forgotten the thrust of your question.
I am trying to get the background to where the bill has come from. In general, I support the provisions, so I am not necessarily putting this forward as my own view, but some people argue that the provisions deal with problems that have not arisen in Scotland. One way of asking you about that is to ask whether, in relation to wilful neglect, for example, you can give an example of a past case that has not been adequately addressed within the existing avenues for redress.
Off the top of my head, I cannot give an example.
I will deal with the two aspects separately. A duty of candour is part of the existing professional arrangements of several health professions, but we want to extend the duty to cover all health and social care professionals, which is not the case now. The duty will support disclosure and—I hope—learning and improvement after incidents when there is unintended harm.
Wilful neglect and ill treatment—as I think it is called—are terms that have been around for a long time. The provisions are about ensuring that people understand what they are.
I was encouraged that you were clear about this in your opening statement, but is the fact that the bill does not define wilful neglect or ill treatment a problem? Some of the criticisms have come from fears that the offences may extend more broadly than you intend. You were clear in your opening statement that the offences should cover only
“very deliberate acts or omissions.”
Does that need to be spelled out more clearly in the bill to reassure people?
Offences already exist and the form of the proposed offences is intended to reflect the existing offences. The existing offences use the terms “ill-treatment” and “wilful neglect”. We did not think that further definition was necessary, because it might be counterproductive if it casts doubt on the meaning of the existing legislation.
I expect that even what you have said today could be taken into account when the legislation is being interpreted. However, we might need to think about whether those could be defined more closely.
My last question is about the duty of candour and concerns an issue that was raised when we visited Ardgowan hospice, although it could have been raised in various places, because I imagine that quite a few individuals are in this position. Will the legislation take account of people, some of whom may be in an end-of-life situation, who do not wish to receive information about any harm or potential harm?
Some health professionals have a duty of candour, but the issue is really one that concerns organisations and has not been covered before. Craig White has done a lot of work on the issue, so he could answer the question.
I read with interest the note of your visit to Ardgowan hospice and the research article that was mentioned. If one takes the research that was referenced in the context of cancer, one sees that even the roughly one in 10 people who say that they prefer the doctor to make decisions about what they are told still want specific information. One of the articles that is referenced says that failing to disclose information out of a belief that patients prefer not to know is not a tenable position.
In the context of a duty of candour and the outcomes that are defined in the bill, if someone dies as a result of a systems and processes failure, their loved ones are aware of that, so the issue does not come into play. Similarly, most people are already aware of some of the other outcomes around severe and significant harm. In the context of the duty of candour procedure, health professionals will, of course, make an assessment of the circumstances.
With regard to what you have said about the English legislation, the bill also includes provision to support people who are affected. Part of those supportive conversations would involve determining what level of information the person wants, what questions they have and how they want to receive the information. That is how that would be addressed. The other main differences between the bill and the English legislation are that our proposals include the requirement to provide training for staff involved, and there is also publication of an annual report that outlines the changes in policy and procedure as a result of a review.
I am sure that we welcome the training. That is an improvement on the English legislation.
Is there any provision to ask the patient whether they want to receive the information?
The duty of candour is not about whether a patient wants to know what their diagnosis is; it involves situations in which there might have been an unintended harm incident, with the aim of ensuring that people learn from that.
With regard to being open and honest, we acknowledge that it might not always be in the best interests of the individual for them to be told about something that happened to them, but the organisation will be required to consider the issue carefully and to ensure that they do not have a one-size-fits-all approach to disclosing information. The development group will consider the issue as part of its remit when we come to formulate the guidance.
I was not asking about the diagnosis. Will there be any provision to ask the patient whether they want to know about harm or potential harm that has been caused to them?
Section 22(2)(c) refers to
“the actions to be taken by the responsible person to offer and arrange a meeting with the relevant person”,
and section 22(2)(d) refers to
“the actions which must be taken at, and following, such a meeting”.
That meeting would usually be where that sort of conversation would take place, with the person being asked how often they wanted an update, whether they wanted to be involved in the review and what information they might require. Those are the sorts of issues that are being discussed around the guidance process. The conversation is very much tailored to the outcome but also to what the person’s preferences are for that information.
Is that before or after the initial information has been disclosed?
I guess that that depends on what we mean by information. If we are talking about a change in the structure of a person’s body or the wrong surgical procedure being performed, most people will already be aware of that initial information. Certainly health professionals will, as part of their professional duties, take that into account in their on-going relationship and assessment of the individual.
I am sure that we will explore the matter when we come to that part of the bill.
I think that Bob Doris and Rhoda Grant have questions on this theme.
I thought that Malcolm Chisholm followed a really interesting line of questioning. I do not want to put words into their mouths, but I suspect that if you spoke, as I have, to the Scottish Infected Blood Forum, Haemophilia Scotland and others, they would tell you that the duty of candour should be almost absolute. After all, how can when one should or should not disclose be defined? Those groups have given significant examples of individual clinicians not disclosing significant aspects of people’s health. I simply leave that sitting there, because the groups will be following this process and will want that point to be mentioned.
I suppose that the question is where we draw the line in relation to the duty of candour. Are we talking about a corporate or individual duty of candour? The groups that I have spoken to were very interested in, for example, the apology that the First Minister and the health secretary gave to those who had been given infected blood and so on. However, although they certainly got something from that, they really felt that they were getting something when the Scottish National Blood Transfusion Service started to give apologies. Sometimes the more distant the place the apology comes from, the less meaningful it can be, and it would be quite helpful if you could provide some more information on who would give the apology or who would provide information via the duty of candour. Would it be someone corporate, if you like, or someone at a more local level?
The reason for introducing a duty of candour on organisations is that there is still wide variation across Scotland in health and social care organisations’ response to incidents of unintended or unexpected harm. It is very much about ensuring that organisations take responsibility for what has happened as well as individuals, but the detail of the extent to which that will happen will be set out in regulations.
Could there be both? What about an individual who is close to patient care—be that health or social care—who gives information in relation to the duty of candour? They could have been under stress or strain; no wilful neglect might have been involved; and what happened, serious though it was, was just an unfortunate incident that could itself identify a systems issue, in which case you might want a corporate duty of candour and apology. Does this have to be a matter of either/or? Could it be both and, if so, could that sort of thing be teased out in regulations?
It could absolutely be both, because the situation that you have just highlighted could well occur. That is why making the duty of candour the responsibility of organisations as well as individuals is absolutely necessary.
As we know, the statistics show that the health service has become significantly safer in recent years, particularly as a result of the patient safety programme, so I put my next question in that context. Each week, seemingly small-scale incidents could trigger the duty of candour, and the question is whether or not it is triggered. Quite a lot of my constituents want a culture of candour as much as a duty of candour, and the issue is about openness, transparency and being able to say about an individual receiving social care—in fact, social care would be a very good example—who, say, has had a wee fall, “We really should have had two people to move and handle them, but the second staff member was overstretched. The patient was really keen to be moved, but we got things a little bit wrong. We’ve now put processes in place, and this is what has happened.” I think that a lot of families would very quickly get something meaningful from that approach. The question is whether that would be part of a culture of candour or would result from a legislative duty of candour, because they could be two separate things. How do we promote a culture of candour that exists even when the duty of candour itself is not triggered?
10:15
You are right—it is about promoting a culture of candour. However, it is also a continuous improvement process. We learn from mistakes and, in the example that you cited, a mistake was made, but we know what should have been done. The focus is on learning from what has happened and on the organisation providing support, training and staff development. As you say, we need to ensure that the culture is that people learn from what has happened—that there is a development and learning culture across the service.
Ailsa, did you want to say something about the legal aspects?
Yes. I want to add to what the minister said and say something about whether the duty applies to organisations or individuals. The duty in the bill is placed on organisations but it is not intended to usurp the role of individuals. It is just that the organisation will be under a requirement to follow the duty of candour procedure, which will be set out in the regulations. There have been concerns that people close to the incident will not then be able to provide information. The bill requires that a different health professional makes the judgment that the incident has caused the outcome that is listed in the bill, but that does not mean that the professionals close to the incident cannot be involved in the information giving. That is something that we can look at in relation to the regulations and when we set out the detail of the procedure to be followed.
I am sure that I read somewhere in my notes that if the duty of candour is implemented and an apology given, it is not necessarily an admission of neglect—it is not a corporate admission. If the duty of candour were used at a more local level, could it empower health and social care workers to provide information to individuals and be more open and transparent? They might be keen to do that now but they might think, “If I disclose this information to this person, what will happen in relation to me, in my practice?” Is protection built in for individuals who work in health and social care to allow them to be as open and transparent as they would like to be without compromising their position? Someone might say, “We got this wrong. The duty of candour has been invoked here”, and apologise at a local level. Would we be likely to see more of that if it were entrenched that that is not necessarily an admission of neglect? Would that be teased out in regulations or is it in the bill?
That is where we need to separate the duty of candour and neglect. Situations in which there is ill treatment or wilful neglect are dealt with separately. Under the duty of candour, we want to foster a culture of openness and transparency in the health service, in which people learn from their mistakes. However, the bill does not provide an exemption from disciplinary action when someone reports an unintended or unexpected incident, if indeed disciplinary action is required. That situation will not change. We want the whole organisation to learn from incidents and for the service to, and care of, an individual to be better.
Craig, did you want to come in on that?
Yes. Section 23(2) states:
“An apology or other step taken in accordance with the duty of candour procedure under section 22 does not of itself amount to an admission of negligence or a breach of a statutory duty.”
Health and social care professionals have discussed that and commented on the importance of making it clear that an apology is part of this procedure and that any decisions that might be made in the legal process, for example on negligence and liability, are completely separate procedures.
I have no more questions, convener, but I want to say that I support that approach. Those providing health and social care directly to our vulnerable constituents get things right nearly all the time. We are all human; sometimes we get things wrong. We need to empower people to be able to say, “Look, we got that wrong. That doesn’t make our member of staff a bad worker, but in terms of transparency and a culture of candour, we’re giving you this information.” That is about reassuring people that organisations will learn from any incidents, but the individuals involved will not necessarily be hauled over the coals. It is about getting the balance right.
As MSPs, we have all had cases where people—in a care home, for example—think that things could have been done better. They do not necessarily want any reparation; they want to make sure that lessons are learned. That has certainly been my experience. We have to follow up the cases and make sure that the organisations learn from the incidents, which is often all that the relatives want.
From previous inquiries and from our own involvement in such matters, we all know the power of an apology. We can therefore appreciate the minister’s comments, which take us on to another wee stage that follows on from Professor White’s comment about the definition in the bill that an apology or other step taken in accordance with the procedure would not be an admission of negligence.
The committee is also aware that the Parliament is considering the Apologies (Scotland) Bill, which is Margaret Mitchell’s member’s bill. The Justice Committee’s stage 1 report broadly supports that bill’s general principles. It is almost identical to what is in the Health (Tobacco, Nicotine etc and Care) (Scotland) Bill, although it extends the remit to all public service organisations. The Scottish Public Services Ombudsman said in a submission that the provision in the Health (Tobacco, Nicotine etc and Care) (Scotland) Bill should be removed altogether and included in broader legislation, or at least be extended to the whole public sector.
We have had a lot of comment about that. Should the duty of candour be part of broader apologies legislation and taken out of the Health (Tobacco, Nicotine etc and Care) (Scotland) Bill, or should Margaret Mitchell’s Apologies (Scotland) Bill be amended to exclude health and social care, which should be left to the Health (Tobacco, Nicotine etc and Care) (Scotland) Bill to pursue?
My understanding is that the need for apologies offered as part of the duty of candour procedure should be exempt from the Apologies (Scotland) Bill. That point has been emphasised. I will bring in Craig White to clarify the position, because he gave evidence to the Justice Committee on the Apologies (Scotland) Bill.
The Scottish Government’s position is that the need for apologies offered as part of the duty of candour procedure should be exempt from the Apologies (Scotland) Bill.
Fine. That is now on the record, if it was not already on it.
I call Mike MacKenzie, to be followed by Rhoda Grant.
The area that I was hoping to explore has been fully covered, convener.
I have a question about the duty of candour. It is obvious from the bill that any incidents that trigger the whole process must be serious ones. Should the bill emphasise an overarching duty of candour in all situations, so that medical professionals tell patients what is going on, regardless of whether the issue is serious? Surely people should be entitled to information about their own care.
Given that we want an open and transparent health service and that we are talking more and more about patient-centred treatment, it is important that all health professionals discuss the patient’s care and treatment with them while they are in a care setting. The duty of candour will, I think, ensure that systems are in place, both for the organisation and for the individuals concerned, in order to make that happen more often than it has perhaps happened to date.
Should an overarching duty of candour be in the bill?
The description of what we mean by “duty of candour” is well set out in the bill.
The bill uses the term “serious incidents”.
Does anyone have any thoughts on that?
The international evidence on the sort of outcomes that we have been talking about, such as death and significant harm, suggests that the professional duty of candour should apply—as Rhoda Grant has hinted—across the spectrum, at all levels of incident.
The evidence also suggests that we need to focus our thinking on what an organisation does to ensure that there are in place other policies and procedures around the review and around learning across the organisation, and that there is a systematic approach to providing support where there has been significant harm. The level of training required to enable and empower professionals to discharge their professional duty is quite specialised, given the nature of the incidents involved. That is the context in which the policy was developed, in terms of there being additional requirements for an organisational duty, relative to what is specified in a professional duty.
That does not really answer my question. I understand that, and I understand why those things are there.
The minister said, either in her opening remarks or in answer to a question, that some professionals have a duty of candour in their code of conduct. Not all professionals do, however. Would it be appropriate to put the duty on the face of the bill so that anyone who is dealing with a patient has a duty of candour, full stop, and regardless of the outcome of the incident?
I am sorry that I did not answer the question. Most regulated professionals have a professional duty of candour, and in some professions, such as medicine and nursing, additional guidance is provided. Under the UK legislation that supports the regulation of health and social care professionals, those professional duties are reflected in their codes of conduct.
That is what I said, but what about the professionals who do not have such a duty in their code of conduct?
They will be covered by the duty of candour in the bill. It is important to put in place within organisations the infrastructure to ensure that all health professionals are covered by the duty of candour.
I appreciate that it is not for me to determine who should respond, but I know that Ailsa Garland has been looking at the issue from a legal perspective.
It would be helpful to hear from her.
Any discussion of the regulation of health professionals gets a little bit tricky because of the reserved-devolved split. We do not have the power to make provision in our legislation across the board.
We are talking about the fact that some professionals have a duty of candour in their code of conduct, whereas others do not. The policy in relation to setting out the various levels of harm is to set out a range of outcomes in section 21(4). However, we have to set a bar, as far as that is helpful, so it will not cover every incident of harm that may occur.
It would be fair to say—I am straying into policy here—that we hope that the bill encourages a cultural change. Even though a particular incident might not fall within the duty of candour procedure in the bill, we would hope that, over time, the bill might encourage a cultural change towards organisations being more open—even in relation to smaller incidents—with patients and those who receive social care.
I would like some clarity on the role of the independent health professional. I note that the duty of candour will be triggered by the opinion of a health professional who has not been involved in the care of the person in question.
How will an independent health professional be identified? Why does the bill refer only to healthcare professionals when the duty will cover other settings, such as social care and social work?
It will be someone who has not been involved in the person’s care up to that point. Somebody will come in to independently look at what happened to see whether the proper procedure was not followed and whether there was a lack of care in that person’s treatment.
10:30
Who would the independent health professional be, and why would they have to be a health professional if they have to cover all these settings?
Perhaps I can make two points in response to your question. First of all, taking an example from a health context, I do not think that this would preclude individual health professionals from being involved in discharging their professional duty and the organisation’s procedures. However, as I think the General Medical Council and Royal College of Nursing acknowledged in evidence to the committee, the independent health professional would be the independent person in the organisation who made the final decision whether a situation related to the outcomes that are defined in the bill. The reason why it would be a health professional is that, as you will know, some of the outcomes are health related. The bill contains a requirement for the decision to be made that the outcomes are not directly related to the course of the person’s illness or their condition, and we propose that such a judgment be made by a health professional.
And it would always be a health professional who would make that judgment.
Yes.
Could there be any variance? In some instances, the issue could be about health outcomes but in others, it could be something else.
I know that in your evidence-taking sessions you considered the integration of health and social care. It is possible that a social care professional in an organisation might report that they believed that one of the outcomes had occurred, and it would then be for the organisation responsible for the duty of candour procedure, in deciding whether to report it under that procedure, to have it confirmed by an independent health professional that the outcome was not related to the course of the person’s illness or their condition.
After all, we are talking about an adverse event in relation to their medical condition.
As this is our last evidence-taking session on the bill, I want to go back to the issue of enforcement. Are you confident that the ban on smoking in NHS grounds can be adequately enforced, given comments from witnesses that local authority officers are choosing not to enforce other areas of legislation due to resource constraints?
When we introduced the legislation that banned smoking in public places, local authorities used their enforcement powers. We do not expect a local authority officer to travel, say, a mile to a hospital to issue a fine, but the bill requires local authorities to get involved in cases of persistent breaches. I point out, however, that most people obeyed the legislation on smoking in pubs. We have been working on the matter with local authorities, the Convention of Scottish Local Authorities and environmental health officers, who already enforce the current smoke-free legislation across the whole of a local authority area, including hospitals.
So the local authorities are helping you with this.
Well, we are having discussions. [Laughter.] We know that the public are largely law abiding and we expect that, if they know that the bill is coming in and if our communication on it is good, the levels of compliance will be as high as those for other such pieces of legislation.
At the end of the day, this is all about education. When the ban on smoking in public places came in all those years ago, people said that it would not work. However, it did work, because there was steady progress on the matter. I advocate a continuation of that approach by removing smokers from hospital entrances. I am convinced that if we progress steadily with educating people, they will, in years to come, not smoke anywhere near hospitals. I agree with that approach.
An awareness-raising campaign is vital, but I simply note that the recently introduced drink-driving regulations have been accepted by the public to a huge degree. I think that the same will happen with the provisions in the bill.
As members have no other questions, I thank the minister and her colleagues for attending this morning and for their helpful evidence.
I suspend the meeting for a changeover of witnesses.
10:35 Meeting suspended.
Because of a delay in our witnesses arriving for the next part of the meeting, we have agreed to move agenda items around. The next item will be our discussion of the evidence that we have just heard, which will be in private session.
10:41 Meeting continued in private.