Health and Sport Committee

Meeting date: Tuesday, April 16, 2013

Official Report 515KB pdf

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Victims and Witnesses (Scotland) Bill: Stage 1

Item 3 is an evidence session on the Victims and Witnesses (Scotland) Bill. This is our second evidence session on the bill. As is normal at round-table events, I ask everyone to introduce themselves.

I am the member of the Scottish Parliament for Greenock and Inverclyde and the convener of the Health and Sport Committee.

Good morning. I am Scotland’s Commissioner for Children and Young People.

Good morning. I am an MSP for Glasgow and the committee’s deputy convener.

Good morning. I am the chair of the Scottish Human Rights Commission.

Good morning. I am head of strategy and legal at the Scottish Human Rights Commission.

Good morning. I was one of the commissioners on the time to be heard pilot.

Good morning. I am the member for Clydebank and Milngavie.

I am a member for North East Scotland.

I am the director of CELCIS.

I am the member for the Kirkcaldy constituency.

I am a researcher at CELCIS.

I am a member for North East Scotland.

I am chief executive of the Mental Welfare Commission for Scotland.

I am a member for South Scotland.

I am the human resources manager at the Mental Welfare Commission for Scotland and the interim project manager for setting up the national confidential forum under the commission.

Thank you for that. I welcome you all. As is usual in these sessions, we will do our best to do more listening than asking questions. Bob Doris will ask the first question.

As you all know, the committee has been tasked with looking at the detail in the bill on the national confidential forum, which is based on the time to be heard pilot in 2010. Do you believe that that is a good basis for the national confidential forum? To what extent can the forum meet the needs and wishes of victims of abuse?

Who would like to pick that up?

I am happy to jump in. The question is really important. Although I appreciate that the role of the Health and Sport Committee is to consider the national confidential forum, the wider purpose for Scotland of all those who have a role to play is to ensure that survivors’ needs are met. I would say that a portion of those needs may well be met by the national confidential forum, which is based on time to be heard, but we also need to look at the wider strategy for all the needs of survivors. I suggest that what is proposed is perhaps a narrow way of meeting their needs. There might need to be a more effective strategy that addresses all their needs before we move forward on a national confidential forum.

Based on my experience of being part of the time to be heard pilot, I would say that it certainly seemed to be a positive experience for most of the people who attended. Like Jennifer Davidson and many of the witnesses who spoke at your previous session on the bill, I am aware that there is a wider agenda and that for some people the lack of a justice component is a health and wellbeing issue because being denied justice is, to them, an emotional issue.

On the basis of the experience that we had with time to be heard, it is difficult to gauge how much that other justice issue will become prominent, because most of the people we heard had never been involved in any of the discussions about justice. They were at a different part of the timescale in terms of coming to terms with what happened to them and identifying what they wanted to happen next. A lot of the survivors groups have been involved for a long time and have reached the stage where they are able to reflect more and look to the more challenging justice aspects.

Many of the people who came to speak to us just wanted to tell their experiences; at that point, that was what was important to them. However, that is not to say that, later on, they will not be able to engage with the wider agenda for something more. The wider agenda is important for many people, and it may be important for more people than we can say at present on the basis of the stage that they were at when they came to speak to us.

I echo what Jennifer Davidson and Kathleen Marshall have said. As members of the committee might know from some of the papers that you have before you, the Scottish Government asked the Scottish Human Rights Commission some years ago to present a framework for both acknowledgement and accountability. We looked at international human rights law, domestic human rights law and international best practice, and presented a comprehensive framework in which various initiatives could be taken to deal with both acknowledgement and accountability.

As members might know, an interaction process is under way that is jointly led by the commission and CELCIS, involving survivors, the Government, local authorities, religious orders, the bishops conference and so on. It is exploring other means of providing access to justice and redress for the survivors. It is also exploring the state’s obligation to carry out proper investigations to learn the lessons, to ensure that there can be no repetition and to ensure that those who should be held to account for serious abuse will be.

We see the national confidential forum as meeting some of the need for satisfaction of some survivors. Possibly—I hope that this will happen—it will have some therapeutic element, although others might contest that. However, it is part of a broader package that needs to be taken forward.

I was involved in the evaluation of the time to be heard pilot to which Kathleen Marshall referred, and I am one of the principal consultants in the interaction to which Alan Miller referred. Feedback from participants was that time to be heard included some very positive components, but people also said that they were seeking a wider range of remedies. Therefore, it is difficult to see the national confidential forum in isolation without looking at the other remedies, such as reparation and access to records. We really need to see the national confidential forum within that bigger picture. That was part of the feedback.

I thank people for acknowledging the need for that wider strategy, but they will appreciate that we are scrutinising a very specific part of the bill. The committee is not attempting to ignore the wider strategy, but we have a duty to scrutinise the details in the bill.

In our evidence session before the recess, one issue that was raised was that those who benefited from the time to be heard pilot may have started to address issues that they had not dealt with for many years, for which they might need on-going therapeutic or counselling support on a long-term basis. It is probably fair to say that our previous witnesses were not sure how long term that counselling support might be. What are the needs of those who want to engage with the national confidentiality forum? Should the state or authority ensure that there is a long-term commitment to providing counselling and therapy? As we heard before Easter, that support might be needed not just for a number of weeks but for a number of months or perhaps even years. Do people have any views on that?

First, while I acknowledge the need for a wider strategy, I would not like the national confidential forum to be held up for that. The wider strategy may take a long time, and there are people who need the forum now.

I take the point about the need for on-going support. The availability of support was an issue that we were very aware of in the time to be heard pilot, although support was made available from In Care Survivors Service Scotland. It is important that the support continues. We had evaluations and feedback but the pilot was time limited, so it would be really valuable if, when the national confidential forum is set up, it is made clear that those who were involved in the time to be heard pilot are not barred from coming forward again. Those people may not have had the opportunity to come back to reinforce or to add more information to what they said previously.

Also, those people may be a valuable source of information on what their experience was afterwards. As the previous witnesses who gave evidence to the committee mentioned, there may be an initial euphoria when people get something off their chest that they have held on to for so long without telling anyone. Our experience was that people went out of the forum with a spring in their step, which was amazing. I am sure that for most people the beneficial effects of that would continue, but those who have been through the pilot will be a valuable source of information on the kind, extent and length of support that should continue to be provided. I would certainly support what the witnesses at the committee’s previous evidence session said about the need for on-going support, which the survivor should be able to choose. That is an important aspect.

I want to back that up. Some of those who came forward to time to be heard had never previously recognised their experience as abusive. Some had gone through their lives without ever telling the rest of the family about their experience. When they came to time to be heard, they left with a spring in their step, as Kathleen Marshall said.

However, subsequent events such as the evidence coming out of the Savile inquiry can bring up those experiences again. Items in the media can flag things up. Also, as life moves on and people have life-changing events, those experiences can come up.

It is about access to on-going counselling and support of people’s choice. Reference has been made to In Care Survivors Service Scotland, which is a superb service. However, survivors have told me that they want to be able to choose the counselling approach that they would like. There is a need for on-going support for survivors, but it should be support of their choice, provided at the time of their choice.

10:00

Providing on-going support for people who have been through the kind of experiences that will be the focus of the national confidential forum will take as long as it takes, and we have to make sure that support is available for as long as it takes. We can draw a parallel with the situation for children who have been through abusive or traumatising experiences. We would not put a time bar on the length of time for which those children received support and assistance. We are dealing with human beings who in many instances have bottled up their experience and have not had the confidence to share it. The approach should be that we provide support for as long as it takes.

Does anyone else wish to come in?

I might come back in later, but I just want to thank the witnesses for putting that on the record, because it is important.

Okay, thanks.

I want to follow up the point about those who are eligible to take part in the forum. Kathleen Marshall said that people who have taken part in the pilot should not be barred from coming into the process, but people under 18 are barred and people in foster care are barred. What are the witnesses’ views on that?

There are specific issues for people aged under 18 because there should be other routes for them to use to address issues about when they were looked after. I do not have an issue with their being barred from the national confidential forum, although I have not heard anyone make an argument for their being included and I would be prepared to listen to such arguments.

We recommended that the forum should be widely available to people who were in institutional care, education institutions and foster care. As you work through the decades, you will encounter situations where people spent periods in and out of institutional care and foster care. If the forum can listen to some parts of a survivor’s experience but not other parts, that could be slightly tricky. Foster care is an area where we have the most to learn. In areas such as education and health institutions, abuse issues have not arisen to the degree that they have arisen in places such as children’s residential homes. As a matter of principle, I would want the forum to be available as widely as possible.

I see that the bill does not talk about education institutions. I am not sure to what extent they would come into the category of care services or how many of them would be excluded by the bill. The bill also seems to exclude foster care. I would like it to be possible to include that at some point. I know that the bill can be amended by order subject to the affirmative procedure. Even if the bill did not start off including foster care and all the other categories, it should be possible to include them later because people have suffered just as much in those areas. It is sometimes very difficult to tell the difference between a large foster home and a small children’s home because of the number of people there and the training and skill of the foster carers. That division therefore becomes artificial. If anyone aged over 18 is eligible, divisions between categories of care become more difficult to sustain.

Does Duncan Wilson want to respond to that?

On the point about people aged under 18, I very much echo what Kathleen Marshall said. The SHRC noted that although we are looking for an explanation for that, we have not seen one in the explanatory notes or the policy memorandum. In principle, any process of justice and remedy should be open and should include everyone. Any departure from that should be carefully justified, so there should be a reasonable justification for the blanket exclusion of anyone under the age of 18. I note that the Care Inspectorate suggests in its written evidence that consideration be given to including over-16s, given their special status in our law.

Further, in the human rights framework and in our written submission, the commission has proposed that consideration be given to opening up the process to others who were indirectly affected—surviving relatives, for example. There could be benefit in opening up the process to others who were not directly affected but were strongly indirectly affected. That would certainly accord with international human rights standards.

What do you mean by “indirectly affected”? Are you talking about parents?

Some examples could be close relatives of people who are no longer alive—who might have taken their own lives, for example, following the process—or who are unable to participate directly for other reasons.

Okay. Does anyone else want to respond to Nanette Milne’s question?

I back up what both Duncan Wilson and Kathleen Marshall said about over-16s, but I particularly want to make a point about foster care. In Scotland, we are in a different position. We sometimes look to Ireland and Canada, but Scotland is quite unusual in that historically a higher percentage of our children were placed in foster care. Although the Clyde report back in 1946 recommended foster care, a number of children were boarded out, as it was known—they went to some of the crofting communities and were used as cheap labour. Although people might perceive foster care as a positive experience, it has not always been that, as we know from historians such as Lynn Abrams.

At CELCIS, Professor Kendrick and I have received some funding to work in partnership with the In Care Survivors Service to do a scoping study on including those who were in foster care. We started that just a couple of weeks ago, but our strong feeling is that they should be included. We know from some historical accounts in the media going back to the 1940s that children in foster care were abused as well. We know about that from both historians and the media. I would strongly recommend that those who were in foster care be included.

Should more informal care such as kinship care be included as well? I would be interested to hear your views on that.

Do you want to pick that up, Duncan?

There can be value in a process such as this for anyone who has survived abuse, but there is also a distinction in relation to state responsibility where the state has placed someone in care. One of the drivers for a process of acknowledgement and accountability should be that it can look at where the state has failed to prevent abuse or to protect children from a real risk of abuse that it knew of or ought to have known of. That is clearly stronger where the state has taken responsibility for placing someone in care.

I have two points. First, I think that what is proposed is too restrictive in relation to residential care, for all the reasons that have been mentioned. It is important to include all placements that are in some way engineered by or the responsibility of the state through either state provision or regulatory bodies. There has been written evidence to the effect that the scope should be much wider.

On the age issue, there will be anomalies regardless of where the line is drawn. There are particular anomalies in our legislation regarding 16 and 17-year-olds in that they are sometimes regarded as adults and sometimes as children. Wherever the line is drawn, there are going to be difficulties. If, as I hope will happen, the average age of young people in care increases to beyond 18, the national confidential forum will have to take that into account. Children or young people in care should have access whether the line is drawn at 16 or 18.

A bigger point, however, is that we have children who do not have the confidence to come forward and are unable, for whatever reason, to say, “Here are my experiences.” In setting up the NCF there should be a debate that asks what we should do about children right now—children under the age of 18 right the way down.

Savile has been mentioned, and that experience shows us that children do not have the confidence to raise issues and share information. That is happening right now. One of the benefits of this discussion should be that we focus on children in the here and now. I do not suggest that we expand the forum to cover all age groups, but the principles of it stand and we should attend to children right now. Regardless of how well our child protection systems operate, they miss children who do not have the confidence to come forward. We should use the opportunity now to home in on that.

Does anyone else from the panel want to respond?

First of all, I echo what Tam Baillie said. We should reflect on what is happening with children today and how the NCF will help them to recount what is happening to them.

I want to go back to children who are placed in care by the state. Interestingly, in the Quarriers pilot the children had not all been placed in care by the state—some had been placed by their families—so sometimes that division can be artificial. In more recent decades, when we had the idea of voluntary care, some children would have been classed as being in care on a voluntary basis whereas in fact it was not necessarily completely voluntary but was to do with trying not to make it compulsory, or something that was done in partnership with parents and so on. I would not want the business about care being provided by the state to exclude people from involvement in the forum.

There will be some grey areas. Kinship care, which has been mentioned, is a very interesting area because although it is now emerging as a category in law, it has really been seen as involving the extended family. There is a question about how far we go into the family side—I do not have an answer to that.

There are also issues about private foster care, where children have been placed with people who are not related to them, and foster care where the state’s duty is more at a distance and supervisory in nature, rather than the state actually placing those children. I do not have a clear answer on those issues but we should explore them. It is important that the act that comes out of the parliamentary process is flexible enough to be able to extend the NCF process to those other categories when we have had a chance to think things through, so that no one will be permanently excluded from it.

Gil Paterson, is your question—

It is on age—

It is on eligibility. That is fine.

One of the Government’s reasons for picking the age of 18 is that there might be current issues with people presently in an institution. I suspect that such issues might be deemed criminal, so anomalies might arise as it would not be appropriate for the NCF to be engaged with those people. It is likely that a child over 18 would be out of the institution and therefore less likely to be involved in a current case. What does the panel think?

There are two points in that. We currently have children or young people who are looked after beyond the age of 18—children with disabilities, for example. We have ambitions in Scotland to be better at taking care of children who are in care and not encouraging them to leave too early. In fact, a bill that will be published later this week will propose that support is offered to young people up to the age of 25.

I think that the direction of travel should be that young people are maintained within care establishments for longer. Even a bar at 18 will have to address that if we are to realise the ambition of ensuring that we treat our young people in care more like young people who are leaving home. Young people are now not leaving home until they are in their mid-20s, but most of our young people leave care aged 16 or 17, and, quite rightly, we have ambitions to increase the age at which young people leave care. In its framing, the bill will have to address that issue, regardless of where it draws the line in relation to age.

10:15

I concur with Tam Baillie. I want to go back to Gil Paterson’s question because I think that it raises some serious issues around the forum’s role in relation to acts that may be criminal. I recommend that the committee look closely at the powers that the national confidential forum will have to ensure that they are sufficient to address issues that are raised that have criminal implications.

The committee received this morning a letter from the Minister for Public Health, Michael Matheson. I have asked the clerks to get copies of it so that you can be provided with it. The letter relates to the evidence session at our previous meeting and the issue of eligibility to participate in the NCF. It is difficult to summarise the letter—as I said, I have sent for copies—but it seems to point out that eligibility is for anyone with past rather than current experience of being in care. The minister states:

“An age threshold is considered prudent as those experiences are not to be current. I am sure you will appreciate that the NCF would not be an appropriate mechanism to address the experiences, including of abuse and neglect, of people currently in institutional care.”

I invite witnesses’ responses to that. I have sent for copies of the letter, so if anyone needs to return to this issue before the meeting finishes, I will be happy for them to do that.

The 16 to 18 issue is interesting. The duties for child protection, passing on information and so on tend to apply to children up to the age of 16, but in many ways they are creeping up to apply to those aged 18. We therefore do not want to have a gap for 16 and 17-year-olds.

One of the issues that struck me was whether we can promise under-16s in particular a national confidential forum. If under-16s came to the forum, there would be more issues about passing on information and doing something with it, and more moral and legal imperatives to do that than we would have with adults. In a sense, we would therefore be misleading children and young people by inviting them to relate their experiences to a national confidential forum—if that is what we are calling it—when we know that we will not be able to keep that information confidential. Such issues would be highlighted.

There must be a mechanism to encourage young people who are currently in the care system or who have been in it more recently to speak freely about their experiences. However, I am not sure that that should be the same mechanism that we are calling a confidential forum for adults, although I am willing to debate that point.

For most of the people to whom we spoke, there was less likelihood—because Quarriers stopped its residential care component in the 1980s—of people being identified as abusers who are currently in contact with children. However, for those aged over 18, we are more likely to find issues that we will have to take forward and report. Such issues are heightened for those who are currently children and legally regarded as so, whom we have a duty to protect. That is my thinking about whether the NCF is the right forum for them, or whether there should be something else that performs a similar function but for which there may be different expectations.

You referred to “something else”—does Tam Baillie have a view?

That is why I said earlier that I was not suggesting that the national confidential forum should cover all ages. However, we must look at its principles and we must find ways of creating confidential space for children who are currently in abusive or traumatising situations. There is a public debate to be had about how we address that for children in the here and now.

In response to the point about young people in care settings not getting access to the national confidential forum, that issue will have to be addressed by the Government, which after all has other policies that encourage young people to stay in care for longer. As I have said, it does not matter whether the line is drawn at 16 or 18, because we are still looking at young people staying in supportive care settings for longer periods. That will have to be addressed.

We discussed with the first panel of witnesses support services for those attending the NCF and, when the role of advocacy came up, I suggested that advocacy can be defined in a number of different ways. There is the statutory definition, which covers advocacy organisations; there are people who can be empowered to self-advocate; and there are others who want a trusted individual to advocate on their behalf but for whom that might not fit a legislative definition of advocacy. What is the panel’s view of the bill’s provisions on supporting those who attend the NCF? Are there any ways in which they might be improved or modified?

You make a good point. The bill, of course, is only part of the story, because the forum will put in place arrangements to ensure that those who give evidence get not only an initial briefing session, initial support and an initial understanding of what they are coming along to do, but support afterwards. Individuals with that responsibility have been built into the proposals for the forum, but all the other options that you mention will be absolutely open to anyone who gives evidence. However, we should also bear in mind that people who are identified as having a mental health problem—not just those who are subject to compulsory measures—have an absolute right to independent advocacy under the Mental Health (Care and Treatment) (Scotland) Act 2003.

I have a follow-up question, but does anyone else wish to comment on that issue?

I want to make a point of clarification about advocacy that emerged in time to be heard. As Donny Lyons suggested, there is a need to prepare and brief people thoroughly beforehand to ensure that they are very clear about what is going on. For example, two out of the six people whom I interviewed had misinterpreted the term “confidential forum” as meaning that they would have to keep their attendance at the forum confidential and were not aware that they could take a family member with them.

Secondly, extending the forum to people with learning difficulties who have been in long-stay hospitals will require substantial preparation, because they might well be non-verbal or have communication difficulties.

I absolutely agree. Speech and language therapy and assistance should be available for people in that situation, and the forum will consider all those issues to enable maximum participation. After all, if you do not do that, you will be in danger of indirectly discriminating against some people. Our organisation is very keen to give people with a learning disability enough support and information to allow them to participate.

Given the ways in which those people might or might not be communicating, we also need to think about how information on the forum will reach them. That is a key point in providing support and facilitating access to the forum.

My follow-up question was about how we identify those who require that level of support. As Donny Lyons suggested, some people already have a statutory right to advocacy but there will be others whose needs lie outwith that. However, I am relatively confident that you are saying that there are enough safeguards in place in the preliminary interview, briefings and so on to allow that need to be identified at an early stage so that, when people arrive at the NCF, the support that they require will have been identified and provided.

That is very much the intention.

Thank you.

I want to raise another issue that came up in our previous evidence session. The bill provides for the national confidential forum to be set up as a mandatory committee of the Mental Welfare Commission for Scotland. I would be interested to hear the witnesses’ views on the proposal for the forum to be housed within the commission. More specifically, I ask Lucy Finn and Donald Lyons from the commission, who are sitting on either side of me, to comment on how it plans to ensure the forum’s independence given that it will be housed within a public body.

I will start, and then hand over to Lucy Finn.

I was interested to read in the evidence that you took in your previous session a comment that you might just as well put the forum within the Mental Welfare Commission as anywhere else. We do not see it that way. We take a positive view of why the commission should host the forum. The overall strategic aims of the commission relate to enhancing individuals’ wellbeing and rights, and that is very much in line with the strategic aims of the forum. There is a definite synergy there.

The work that the commission does in general uses the individual’s experience both to support that individual and to tell a story on the basis of a collection of experiences, so that is familiar territory to us. We understand what that involves and what the benefits and some of the risks are in that, so we are well placed to take on the forum. We have governance mechanisms, information systems, support systems and risk management systems that the forum can use rather than having to develop all those things itself, and they will be appropriate to the work of the forum, especially in relation to the security and confidentiality of the information that comes to it.

I also point out—Lucy Finn will perhaps expand on this, as she has been doing the initial project management—that the forum’s work will be entirely separate from the rest of the Mental Welfare Commission’s work. Existing commission staff will not have any responsibility for or contact with what happens in the forum, which will sit very separately. It will have its own information system, which the commission will design and build for it, but to which the rest of the commission staff will not have access.

Having said that, it is important to point out what the bill actually says. It gives the functions of the forum to the Mental Welfare Commission, which will then delegate those functions to the forum as a sub-committee. It will be for the forum as a sub-committee to exercise those functions, but the commission will have a responsibility to ensure that they are exercised properly. Broadly speaking, the way that it works out is that the Mental Welfare Commission will be responsible for ensuring that the forum is properly governed and managed and that it delivers what it sets out to deliver under the legislation, but the evidence that the forum collects and the way in which it reports on the evidence will be for the forum to decide.

We are working out the mechanics of that in a memorandum of understanding with the Scottish Government. I am confident that the initial discussions are going well in that regard, but it is an on-going process.

I feel confident that we can establish the forum as separate, independent and away from the commission. I am working closely with the SurvivorScotland team in the Scottish Government and we are working on all those issues and ensuring that we understand all the various issues of staffing, confidentiality and information systems. Those systems will be completely separate, so commission staff will have no access to NCF information and vice versa. There will be no crossover, as we see it. The NCF will be a completely independent organisation within the commission. I feel confident from the work that we are doing with the SurvivorScotland team that that will be the case.

The question of stigmatisation and barriers, for yourselves and for others, was also raised. Do you have any comments on that?

The intention is that the national confidential forum will not carry a Mental Welfare Commission badge. The forum will have a lot to do with the mental health and wellbeing of survivors, but when information goes out from the national confidential forum it will be identified as being from the NCF only and not from the NCF and the Mental Welfare Commission. We certainly want to do all that we can to destigmatise mental health issues, but some people may find it offputting to see mental welfare being referred to up front. We are comfortable with that as a way forward in dealing with the issue.

10:30

I want to get further responses to Aileen McLeod’s initial question. Do witnesses have views on that question and the response from the Mental Welfare Commission?

I think that having the NCF hosted by a bigger organisation is helpful, aware as I am that the governance issues would be a huge burden for a small outfit like the NCF. However, I appreciate everything that has been said about keeping it separate.

The witnesses at the committee’s previous evidence session had some concerns about the question of stigmatisation, but they thought that it could be dealt with. It is about whatever works. If the survivors can live with the arrangement, I think that the rest of us can. I certainly feel quite comfortable that the national confidential forum is in a good location.

Is that the view of others? Do no issues arise for you?

I would listen to the survivors on that one. The concerns that I have heard—I must be honest and say that they were from professionals rather than survivors—were about the possibility of stigmatisation and about confidentiality. Those points were raised with reference to emails, mailing and telephone calls, and the view is that they should show that the NCF is entirely a separate body. People do not necessarily regard their experiences as having impacted on their mental health. They just want to talk through them because something happened that should not have happened. They do not see it as a medical or mental health issue, so the point is to distance the NCF from that aspect.

I emphasise what I said earlier: the very clear intention is that the NCF will not be badged in a public-facing way. It will be important to have an on-going dialogue with survivors to ensure that they have confidence in that and that the hosting arrangements are in line with that.

I like to think that probably nobody does information security like we do. We have so much very sensitive and confidential individual information, which we collect through people phoning us for advice and sending us letters and emails. I am very confident that we could assist the forum in setting up equally secure and confidential information handling. We have information technology security policies and codes of conduct, and we would expect the forum to follow those codes of conduct rather than devise one for itself. Again, that is a good example of why the Mental Welfare Commission in particular is a good host for the NCF.

From our side, the main point is the same one that we made in the human rights framework on this issue in 2010 and which was picked up in the final preparations for the time to be heard forum: it is about the body having the greatest possible functional independence, particularly from Government. The memorandum of understanding will therefore be key for ensuring, for example, the forum’s autonomy to establish its own procedures and the clear autonomy of the forum and its chair to agree and publish its final report without any need for oversight or approval. Those are the headline issues that go to the heart of functional independence.

Let me make one additional point. As part of our support in drawing up the human rights framework, we produced the document “Time for ‘Justice’”, which makes clear that some survivors want the forum to have complete independence. Whether the forum exists within another body or as completely standalone, they wanted there to be no Government representation on its committees and reference groups. The survivors made that point in 2010 about the forum being a standalone body with complete independence from Government.

As I perhaps should have said earlier, another reason why the Mental Welfare Commission was chosen to host the national confidential forum is the commission’s independence from Government. The minister was keen for the forum to be hosted by an organisation that is not only independent but visibly independent. The commission has not been afraid—and this remains the case—to give some uncomfortable messages to Government when we have had to do so.

Before I give Aileen McLeod the opportunity to ask another question, I think that Gil Paterson has a follow-up question.

My question may have been answered, but I want to push the issue a bit further from a slightly different direction.

Knowing that people’s approach to the NCF could be the first step to recovery on what may be a long journey, I wonder whether the witnesses around the table who are not from the commission are comfortable that the commission’s involvement will not be a barrier to people walking through the door. Is everyone sufficiently comfortable that we can make the NCF work in the way that has been suggested?

It is always tempting to go for maximum independence, but given that the similar experience of a small independent public body needs to be balanced against the responsibilities that independence would bring, I think that it makes sense for the NCF to be hosted by another public body.

Regarding the badging or appearance of the national confidential forum, I am reassured by what has been said. There will appear to be a national confidential forum, which in the background will get all the assistance from that independent public body. I might reiterate the call that Donny Lyons made for the rehabilitation of the word “mental”, but this is not the way to do that, as the national confidential forum will look like an independent body.

I have a couple of questions on that independence. Will the forum be funded from within the commission’s existing budget, or will it come with additional moneys for setting up and designing the processes and ensuring that the appropriate support is made available for people entering the system?

An additional budget will be given for the NCF.

Has that been agreed?

Yes.

Can that budget meet all your aspirations about supporting people through the process, about language and about the other issues that we have heard about?

Some matters will need to be tested out. We have an agreed budget for the start-up costs and an on-going running budget on the basis of what we anticipate the need might be. However, we will need to review that as time goes on.

Who will sit on the forum? What will be the mechanism or process to ensure that the members of the forum are seen to be independent?

The head of the forum and its members will be public appointments. The staffing will be provided through the commission.

How many staff do you envisage?

There will be a budget for the head of the forum and, initially, probably two members. The staffing has yet to be decided, but there will probably be three or four staff at the initial stage. After that, it depends. I guess that take-up—the number of people who will come forward—is a bit unknown, and that will determine how many staff will be required. At the moment, we think that there will be three or four support staff as well as the head of the forum and the members.

What do you expect take-up will be in the first and second year? Do you think that the demand will then rise? I presume that you have some notion or estimation of how many people will avail themselves of the process and that you have projected budgets and staffing levels from that.

We have not done that; SurvivorScotland made projections and based the budget on them. That did not come from the commission.

Right, but what is the expected take-up?

I cannot recall, offhand—Louise Carlin, who is sitting at the back, probably knows better than I do. We will probably have four evidence sessions a week when the forum is fully up and running, from my recollection. That would mean that there were 200 sessions a year, or just short of that, given holidays and so on, with probably two or three people giving evidence at each session, so in the region of 1,000 to 2,000 people a year could give evidence to the forum.

The issue is more complex, because it will be about how we prioritise people who want to give evidence to the forum. When people hear that the forum is up and running, there might be quite a demand for it. We will have to consider whether to operate on an age basis or a geographical basis, for example. All those things still have to be worked through.

Those are big numbers, and you are talking about a committee that meets perhaps three times a week—this committee knows about the strain that that puts on people. I am surprised by the numbers, which are significant.

Professor Kendrick and I were commissioned by the Scottish Government to do a scoping exercise for the national confidential forum. We extrapolated from the Irish scenario, and I think that in Ireland less than half of 1 per cent of people who had been through care came to the confidential forum. I think that we reckoned, very crudely, that in Scotland we might be talking about 1,500 people coming through the forum—I am trying to remember the figure.

I think that it was a bit higher than that. From recollection, I think that it might have been 2,000 or 3,000, but I do not have the figures with me.

As I said, the exercise was purely academic and involved working out the number of people involved from 1930 to now, who is still alive and what percentage might come through.

That is not something that we need to resolve today—my question was not a trick question. We can discuss take-up with the minister, because it raises issues to do with access, delays and so on. Will people have to wait to give evidence? Will the forum meet in a central place or will it be available in different places? A range of questions can be asked.

I want to make an additional point about how the bill might be amended to make it clearer and to assist the Mental Welfare Commission in housing the national confidential forum. The MWC is a public body, and like all public bodies it has obligations under the Human Rights Act 1998, in that if it receives credible allegations of criminal conduct it has a duty to refer them to the appropriate authorities—that is, the police. As the bill is drafted, it gives discretion to the members of the NCF in that regard—they “may” choose to do that—whereas members of the forum in Northern Ireland “must” do that, because it is recognised that the forum is a public authority and has obligations in that regard.

In the context of the relationship between the NCF and the Mental Welfare Commission, the bill could make it easier for the commission to ensure that it and the NCF act in accordance with their obligations to report credible allegations of serious harm and abuse to children. The NCF must also make very clear to people who are considering going to it what expectations they should have if, in the course of giving their testimony, they make allegations against an institution or an individual. People should understand what might happen as a result of that. They need to understand that the information may be reported to the police, which will change the character of their experience.

There is a need for as much clarity as possible for the NCF, for the Mental Welfare Commission and, most important, for those survivors who want to come to the NCF. The bill leaves that a bit too vague and ill defined. Therefore, the expectations might not be matched by what actually happens to survivors.

10:45

I was going to return to this point. Jennifer Davidson alluded to some of the powers, and you moved on to that point, Alan. Are you happy with the discussion, Aileen? Did you wish to follow up on any of the aspects that stemmed from your original question?

I am happy.

Alan Miller has taken us on to slightly different territory, which aligns with some of the evidence that we heard at our previous evidence session, at a different level, which I am sure today’s witnesses have read. Confidentiality, powers and the possibility of prosecution were discussed. At another level, people were angered by the fact that the evidence that they had brought to the forum was not communicated at the end of the story. That represents the battle. On one side is the confidentiality that may encourage people to get into the process. At the other end, people might be concerned that they could become involved in a criminal prosecution, or that too much of what they said might appear in public or on a website at a later date. That is a difficult balance, and you can perhaps help the committee to understand the matter and come to a view.

Is there any response or reaction to what Alan Miller has said, to what I have just said or to what previous witnesses have said? Jennifer, you alluded to this point earlier in relation to powers. Do you wish to comment further?

I do have some comments, although I saw that Kathleen Marshall wanted to speak.

I was just trying to spread the discussion around.

A tension undoubtedly exists within the forum. I apologise to the committee for labouring this point but it would have made much more sense if a wider strategy had been laid out from the very beginning. We would have been much more comfortable with moving to the idea of the forum if other remedies for justice were also available. Ultimately, the source of the tension is the lack of justice remedies. Because of that, the timing is unfortunate, because the risk is that people’s expectations of what the forum will achieve will be raised given the gap in other remedies.

In that context, how data are held will be really important. That is not just about powers, but about the parameters of the forum. What are they? I will make a couple of comments on that. First, the bill contains a commitment to ensuring that a permanent record is kept and that public access is provided to information. Reference is made to the NCF producing reports. I suggest that generic reports will be far less powerful in respect of the evidence that is provided. The whole range of stakeholders—certainly survivors but also stakeholders who are interested in shaping the future of the care system—will have an interest in what comes out of the forum for a number of different purposes. I suggest that, before there is even agreement on how the forum progresses, stakeholders come together to inform what the data need to look like and how the powers are formed.

Secondly, it is essential to archive and preserve what has been gathered. That includes survivors coming back later and reviewing the records that they have put to the forum, which is an important opportunity. I recognise that establishing the forum in legislation is an important step towards creating more safeguards around the data. Those data are very important. They do not just form a historical record; they are a personal record.

I feel that I have not necessarily got to the nub of what you were looking for, which is on the forum’s powers. Ultimately, those powers need to be seen in the context of wider legal remedies. Without that, there will be big risks for the forum in future.

No, it was helpful to broaden that out.

I will make two important but distinct points. The first concerns the previous evidence-taking session. I am sure that the committee was struck, as I was, by the discussion about anonymity, which is not the same as confidentiality.

Although there may be benefits in having a confidential forum, that does not necessarily require anonymity in the testimony at the end of the process. It might be worth considering the approach of the Ryan report in Ireland, for example, which used coded references to survivors’ testimonies, so that individuals could identify where their experience was directly reflected in the final report.

My main point builds on the discussion about the limits of confidentiality and the duty to investigate or pass credible information related to criminal activity to the investigating authorities. There may be some debate about that. I note that, from page 100 onwards, the time to be heard report refers to the question and the points that we raised about it.

That is an important issue that the Parliament must ensure it has fully considered before the bill is enacted. One of the reasons why we refer explicitly in our written evidence to the process of finalising the equivalent bill in Northern Ireland is that the same question arose, advice was sought and the answer that was given was quite clear, and was quoted in the Northern Ireland Assembly Official Report. It was that the

“statutory framework requires that, where allegations of child abuse come to light, these must be reported immediately to PSNI”—[Official Report, Northern Ireland Assembly, 20 November 2012.]—

that is, the Police Service of Northern Ireland.

In the final stages of reviewing the evidence that we gathered and finalising the human rights framework, we hosted a round table with representatives of similar processes in different countries, including Ireland. At that meeting, it was made clear that the interaction between the confidential committee and the investigations committee in Ireland was key to addressing the issue.

That is where the anomaly in our process is at its sharpest. Few, if any, equivalent processes around the world have focused solely on a confidential committee without additional elements, such as addressing the limitations legislation on civil litigation—although we have a separate, Government-led consultation on that in Scotland, it may or may not address time bars for survivors of historic child abuse—or having an investigations or inquiry model and/or other options such as a reparations fund.

As it stands, the time bar effectively blocks access to civil justice for survivors of historic child abuse in Scotland; criminal injuries compensation is available only to those whose experience occurred after 1964 and was criminal, which might not extend to serious neglect; there is no national reparations fund; and Scotland has not taken some of the other measures that have been used in other countries, notably the inquiry and investigation model that is being set up right now in Northern Ireland or a crime commission such as the one that is being set up this year in Australia.

Scotland has an unusual process and it becomes most challenging in relation to the limits of confidentiality. We note and put on the table the point that other countries have addressed that in different ways. We note that Scotland has an unusually difficult challenge in that it has not adopted the other measures that other countries have used. We encourage the Parliament and the Government to seek further clarification of the nature of the responsibilities, and indeed the Mental Welfare Commission should be mindful of them in negotiating with Government.

It is difficult for us, being the secondary committee. We are focusing on the health outcomes, but there is another committee—the lead committee—working on the bill as well.

Like Duncan Wilson, I think that we should draw your attention to pages 101 and 102 of the time to be heard report. The Scottish Human Rights Commission has had quite a lot of discussions about the duty to report when it reaches a certain level. I suppose that our concern was that, if someone’s experience was so far back that people were dead and the institution had disappeared, there was no real possibility of having an investigation. Is reporting that to the police a disproportionate response if the survivor does not want it to happen? I will not go into that too much because we have set out the issue, but it is unresolved.

We did not have to face that because, where there were cases in relation to which we felt that reports should be made to the police, we spoke to the survivors involved and the reports were taken forward with their consent, so we never had to make that decision, but it is still a live issue as I see it.

There is a different issue, which is about how individuals’ experiences are reported. There is no reason why there could not be a coding system. Because of the way in which time to be heard was set up, without any statutory support, we were always concerned about confidentiality and piecing things together, but I would think that, in a forum that is not a pilot and does not have an end, there will be an opportunity to have more negotiation with the survivors about how their experiences are reported and the extent to which they want them to be reported, and that should be quite simple to do.

Some people told us that they did not want to be quoted, or that they did not want to be quoted without negotiation. However, the point about coding is a lesson taken from people’s comments on the report, and I do not think that it should be too difficult to do.

Another issue is archiving and preserving. We had to destroy everything because we had no protection. People were offered the opportunity to come back and review their testimony, but nobody actually did that. Only one person came back to give us a second session of testimony. Personally, I felt that that was a loss. I would have liked to be able to preserve that, but we could not do that in the context within which we were operating. That could be an important element.

I remind the committee that another section in the bill states that the forum will have a separate records management policy, and it will have to comply with data protection legislation, under which people can keep data for only as long as it is necessary to keep it. There might be an issue about whether it could be archived or not. We will have to look at that when the forum develops a policy.

On the disclosure of information to criminal justice, I point out that that responsibility falls on forum members. The bill is clear that forum members have the duty to make that decision. The forum will have to set some sort of threshold for what it reports and when. The commission, as the body to which the forum is accountable, will have to be comfortable that the forum has appropriate procedures in place for doing that, but it will not be for the commission as such to decide whether information should or should not be passed on to criminal justice agencies.

That is fairly clear in the bill but, again, we will set it out, emphasise it more and work through the details of how the mechanics will work in a memorandum of understanding.

Duncan, do you want to respond?

11:00

I agree that the responsibility to make that decision might be clear in the bill, but the discretion to make it is unlimited. Whether in the bill, in regulations or in the operating procedures, we would certainly look for something a bit clearer than that, which balances the public interest in having a confidential committee with the state obligation to ensure the investigation of crimes. Of course, it is in the public interest that there is criminal prosecution of serious child abuse. In the earliest iterations of the procedures around the time to be heard forum, that appeared to be limited to where there was known to be an on-going risk to others. However, there may be instances of corroborated testimony of serious abuse, which the public interest would demand—and the public would expect—to be investigated whether or not the named individual had continuing responsibility for the care of children.

We have come to the end of our time, but Tam Baillie and Gil Paterson want to say something.

This brings us back to the starting point, which is the purpose and functions that will be fulfilled by the national confidential forum. We have heard strong evidence about the need for acknowledgement being satisfied but not the need for redress, investigation or reparation. It is entirely competent for the Health and Sport Committee to comment on that, as it is about the health and wellbeing of the people for whom the national confidential forum is being set up. As we heard earlier, in many instances people are looking for acknowledgement and to have their story heard, and they will be satisfied with that. However, the committee has also heard strong evidence that that does not go far enough for an unknown number of people—I suspect that it might be a lot more than you have heard from so far. I think that it is entirely competent for the committee to comment on the purpose and functions that will be fulfilled by the national confidential forum and the deficits in our current approach.

I am trying to reflect on the position of an individual who might want to walk in the door but does not do so because they feel that whatever they say will be passed on to the authorities so that criminal action can be taken, and that is not what they want. My understanding of Scots law is that there would need to be a complaint unless other evidence were produced. Maybe the Government would strike the right balance if it had people who would hear evidence and could then signpost and give advice to individuals about what they should do and how that would impact on them instead of saying prescriptively that the information will be passed on to the criminal justice service. I wonder whether anyone would like to comment on that.

I understand that; it is a risk that is attached to the forum. The forum will have to ensure that it has risk procedures in place so that the people who come along are properly briefed. If there is a suggestion that the information that they provide may be shared with the criminal justice service, before an individual goes into the forum, they need to know when and under what circumstances that might happen. That must be set out at the outset.

I would like to correct something that I said earlier—I got my maths wrong. If it is eight people a week for 50 weeks, between 400 and 500 people a year might have the opportunity to give evidence to the forum. That shows why I was a complete failure on “Countdown”. [Laughter.]

I would like to give a brief answer to Gil Paterson’s direct question. As the time to be heard report notes, we suggested that the practice that the United Nations convention against torture requires should be considered, which is that a formal complaint needs to be made. If a report is made to a public body of a credible allegation of serious ill treatment, that triggers the duty to respond on behalf of the public authority under the Human Rights Act 1998 and according to international standards. Of course, that would require clarifying to people before they went into the forum when that would happen, so that they would be aware of exactly what they were doing.

I recognise Gil Paterson’s concern, which echoes what Jennifer Davidson said. We must ensure that we no longer force individuals to try to find a way of fitting into the system. The system must be adapted so that individual survivors can choose whether they want criminal proceedings to be initiated, whether they want simply a confidential forum in which that does not take place or whether they want reparation, an apology or civil litigation. The system must be person centred; it should not be the other way round, with the person finding it difficult to know what is going to happen because the way in which they can access anything that might meet their needs is unclear or that is not one of a range of options that is designed to suit what they want. That is the tension that we have in having only one door and not a series of doors from which the survivor can choose in the knowledge of what is on the other side of each door.

I thank the witnesses for their written evidence and the evidence that they have provided this morning. I encourage you to recognise that this is an on-going process. Just as you read last week’s evidence and expressed opinions on that, if you read further evidence that is given at future sessions that you strongly agree or disagree with, we ask you to continue to participate in the process by contacting the clerks. If there are any issues that you have not been able to raise today but that you feel are important, or if any issues arise out of future sessions, please continue to communicate with the committee through the inquiry process. On behalf of the committee, I thank you all for the evidence that you have provided this morning.

I suspend the meeting while the table is cleared for our next panel of witnesses.

11:06 Meeting suspended.

11:11 On resuming—

If we are all sitting comfortably, we will move to our second panel of the morning on the Victims and Witnesses (Scotland) Bill. I welcome our guests and ask the panel to introduce themselves.

I am the member of the Scottish Parliament for Greenock and Inverclyde and the convener of the Health and Sport Committee.

I am from In Care Survivors Service Scotland, which is a national organisation for people who have been abused in care.

I am a member of the Scottish Parliament for Glasgow and deputy convener of the committee.

I am from Health in Mind, which is a mental health charity that has specialist supports for survivors. We work with many people who are survivors but that is not the particular reason that people come to us.

Good morning. I am the deputy chief executive of Victim Support Scotland. We look after victims of crime, both in the community and in the court process.

I am a member for Glasgow.

I am the team leader of the SurvivorScotland team, which is responsible for the national strategy for adult survivors of childhood abuse that was launched in 2005.

I am the member for Clydebank and Milngavie.

I am a member for North East Scotland.

I am the bill team leader for the national confidential forum provisions in the Victims and Witnesses (Scotland) Bill.

I am the member for the Kirkcaldy constituency.

I am a member for North East Scotland.

I am a member for South Scotland.

Thank you and welcome to everybody. The panel and the issues are slightly different in this evidence session. I will ask a question about demand to open up the session.

Earlier we asked about the number of people expected to take up the forum. Discussion may flow from that about how we support people—we will take the issues back to front. Has work been done on how many people we expect to present to the forum?

In preparation for the consultation we looked at the number of people who came forward for the Irish commission, both in relation to the investigation and the confidential committee. Based on those numbers, we expect about 2,000 people to come forward. We have done some work to investigate how many people were in care through a number of years, and that work has supported our estimate of the number coming forward.

11:15

I suppose that we are creating a demand and an expectation. How will that be managed in relation to resources? There was some confidence that the resources that are in place will meet the demand, but the other issue is supporting people through the process—the pre-hearing support, for example—when some people will be vulnerable and have communication difficulties. Some of those issues were raised as well.

For the time to be heard pilot we had support in place for the people who came forward before, during and after they came to the hearings. Lorna Patterson’s organisation—In Care Survivors Service Scotland—was part of that.

We had discussions as part of the consultation and at consultation events on what kind of support survivors would like. There was a range of suggestions: some people support one organisation, but the majority of people want to be able to choose their own support.

On the finances, we have put in place finance for support to be available for survivors who come forward for the national confidential forum. A range of organisations already receive funding for different areas under the SurvivorScotland strategy, which is over and above the money that has been set aside for support as part of the national confidential forum.

Does anyone else have any other comments?

As Linda Watters said, In Care Survivors Service Scotland was one of the organisations that supported people during the pilot. Going forward and picking up the lessons that have been learned, we feel that it is important to talk to survivors or people who want to go through the consultation before they do so. That is because people in our service told us that when they went into the consultation they expected to feel relief and to be listened to. Those people said that they experienced those things but did not anticipate the trauma effects that could come after the consultation.

What we saw is that some people felt almost euphoric—I think that that was discussed in one of the committee’s first evidence sessions. People felt that the experience was great and had made a difference—they felt really positive—but then several months later the trauma effects were triggered. Not everybody experienced that, but some people did. It is therefore right to have a choice of support services and it is important that people go in with some informal support from counsellors to let them know what might happen and to set some expectations of the different range of feelings that can happen.

We found that, by the point that people were going into the consultation, we had started to build a relationship—and we know that trust is very difficult for some survivors. We have that initial relationship and people told us in forums that it is important to offer the counselling and some level of advocacy as a one-stop shop in one organisation, partly because of the trust issue but partly because they have started to build a relationship and so the counsellor can offer the advocacy at the same time. In that way, they do not have to manage relationships with multiple people; they can have one person through the whole process. That is an option, as well as putting more emphasis on setting the expectations of what can happen before, during and after the process.

I noticed that in the earlier evidence session there was a suggestion that people would need counselling support for about a year after the consultation. Our experience is that support is needed for at least two years. We are still working with people who participated in the time to be heard pilot, and we think that, when we are looking at long-term trauma, two years is a more reasonable option.

Are there any other views on that?

To add to what Linda Watters said, we heard very loudly and clearly in the consultation on the NCF, which has informed discussions with the Mental Welfare Commission in developing the memorandum of understanding, that people want a choice.

As Linda Watters said, what we did as best we could, in advance of the forum being up and running, was to look at anticipated demand based on other fora and then at the average costs, if you like, of people going through the time to be heard pilot. Within that, we hope that we have set a provisional budget that is flexible and that allows people choice.

We should bear in mind that not everyone coming forward to the forum will have experienced abuse or neglect—20 per cent of people who came forward to time to be heard had wholly positive experiences of Quarriers. We will hear a spectrum of experiences and I imagine that there will be a spectrum of needs, from a desire for support, information and advocacy through to no requirement for support, information and advocacy. We have had to shape the budget and the MOU at this stage to enable that degree of flexibility when the forum is up and running.

Although I was not involved in time to be heard, we in Health in Mind work with a lot of people who have been looked after and in care who have experiences of serious trauma. Some people coming forward to the forum may want to use the support that is already in place for them because it will be provided by people whom they trust and with whom they already have a good relationship. We need to take account of the fact that the forum might lead to an additional demand on the resources of other agencies.

It is an excellent opportunity, but I think that it is true of us all that people often do not anticipate the outcome of something that has a positive feel at the start. For people who were looked after and in care many decades ago, their coping mechanisms will potentially be dismantled by this process. Therefore, I agree that the support that those people need, wherever it comes from, will need to last for a longer period in order to help them to rebuild the structures that enable them to continue with their lives in a positive way, which we hope they will have been doing until then.

We see the forum as an effective remedy for some people but not all. It is one of a range of options that need to be available for people.

Trust—and the development of trust—was mentioned earlier. When somebody experienced trauma in residential care, it was in a place that, as a child, they believed they could trust. We are asking people to go back into a forum and saying, “Trust us.” The issue of the confidentiality of the forum—what may or may not be disclosed—is hugely significant for people and may deter some of them from coming forward.

We have heard that 2,000 people a year may come forward. It may be more than that; we do not know. Many people who have experienced trauma and neglect may not want to tell anybody and may never have told anybody about their experience.

A forum gives people a voice. For some it will be seen as empowering—that is hugely significant—but there will be others who want to come into the forum to have their say and it might not be enough for them; there might be something missing, such as access to justice. Whatever is missing, they will feel that they have had their say—but then what? What is next? That is the gap.

I want to pick up on the theme that I raised earlier about the support services that are available. Witnesses in the first evidence session wanted some form of advocacy to be built into the process. I raised the point that advocacy can be defined in different ways. There are independent advocacy services, and there are people who would be considered a trusted individual, such as a family member or friend. People also need to be given the power to self-advocate if they wish to do so.

The view was raised in the previous evidence session that the pre-brief that will take place in advance of a person’s appearance before the national confidential forum ought to help to identify their needs. That should take care of everything, although some will have a statutory right to advocacy under legislation. What is this panel’s view? Are you confident that the pre-brief would capture all the needs of people and the kind of support that they will need when they appear before the national confidential forum?

One aspect of our work that is having a major impact is peer support and peer mentoring, in which somebody with a similar—not the same—experience but who has moved on in their thinking and their life goes through training and supports another person. Somebody who is an in-care survivor supporting another in-care survivor has a credibility that can be difficult for professionals to offer if they have not had that life experience. I would like to see peer support considered as an option. I do not know whether that has been discussed already, but we know that people using our services really value the fact that the person helping them has been shaped by similar experiences.

I believe that it is a matter of having a choice of services. The last round of witness input mentioned independent advocacy. I do not disagree with that concept, but if there is going to be a choice we also need to think about organisations that can offer advocacy that joins up the different needs.

The Irish organisation Towards Healing has set up counselling and advocacy services that run alongside each other, which is what survivors tell us that they need. I understand that not everybody will be a survivor, but those who are survivors of in-care abuse tell us that they would prefer a one-stop advocacy and counselling support service. As Joan Johnson suggests, service user and peer groups can then help to give survivors a sense of community.

We anticipate that the types of advocacy might include help with access to records; looking at records can be a traumatic but also therapeutic and positive process. The people we have worked with during the consultation have wanted to meet other organisations and health professionals, general practitioners and housing advisers. A lot has resulted from those people finding a voice through the consultation process.

That is the type of advocacy we are talking about. We find sometimes that advocacy agencies refer back to us because it is very difficult for some people to separate their advocacy needs from their therapeutic needs. That is why there needs to be a choice.

The question was about the needs of the participants. Whatever happens must be centred on the person for the process to be truly effective. People will otherwise feel that they are being put through a process—that things will be taken from them and they will come out the other side. People’s needs change; they might feel particular wants or needs at a particular time. They have to feel that they are in control of the process. If they are not in control and things are being done to them, individually and collectively there are risks associated with that. That issue has to be catered for.

That is why the Government took great care with the consultation: to ensure that we heard the range of views, particularly on the issue of support, before, during and after the forum, of people who may consider participating in the forum, including survivors.

11:30

You will be aware from your briefing that through the SurvivorScotland strategy we invest a significant amount of money in current service provision and helped to set up and support other agencies. In addition to that, we heard through the consultation that particular barriers might be faced by particular groups, and that we should do some work now to explore what those barriers might be and what specific support should—or, perhaps, should not—be put in place to enable effective participation.

The issue of people with learning disabilities and mental health issues came up quite strongly. We have funded various consortia of organisations to consider those issues, particularly in relation to the model of acknowledgment, and to investigate what barriers might exist, what services already exist to support people through the new process and where gaps are. In advance of the forum being set up, we are doing as much as we can to consider the range of supports that are already there, what we currently fund and where there might be gaps.

Coming back to Alan McCloskey’s point, it is clear that the needs of the person going to the forum are what is important.

A lot of the services that we currently fund are around particular needs. For example, one service that we have funded in the past few years concerns male survivors, because they felt that they needed a different type of service because some of their issues were different from those of female survivors. In the past few years, we have also been working with Roshni to set up the ethnic survivors forum because the voices of survivors from ethnic minority backgrounds were not being heard. It is quite important that we continue the person-centred approach that Alan McCloskey mentioned.

When we discussed with the first panel the criteria for taking part in the national confidential forum, it was suggested that there would be some people who qualified because they had a period in residential care but the abuse that they suffered took place in a foster setting as well. In theory, the national confidential forum would enable them to talk about abuse that took place in a residential care setting but not in a foster care setting. That is one group of people whose experiences meet only some of the criteria. Another group might be those who went through a number of foster care settings as looked-after children. The national confidential forum would not be open to them. What are people’s thoughts on the eligibility criteria?

The bill makes provision for institutional care. It might seem to be a bit of a pedantic difference, but institutional care is broader than residential care or care that is being provided on a residential basis. It is anticipated that the national confidential forum will be much broader than the time to be heard forum and will encompass more areas than just residential care, including long-stay hospital provision and, potentially, other forms of provision.

On the issue of trying to dissect people’s experiences in the way that you suggest, I hope that—as was the case with the time to be heard forum—when the national confidential forum is up and running the commissioners will take a pragmatic approach and will not tell people that they can deal only with experiences that happened in a particular institution rather than in foster care. The focus of the forum will largely be on people’s experience of care, but that does not necessarily exclude other experiences, including abuse at home. People will speak about the experiences that they have lived through. As with the time to be heard forum, I do not imagine that the commissioners will take a prescriptive approach to what people can and cannot say but will encourage people to talk about what they want to talk about and what they feel is important. I hope that the bill—which I hope will become an act—will not lead to commissioners taking a strict view.

Residential care used to be much more the norm than it is currently. Children are placed in a range of family options now. Over the decades that I have been involved in social care and social work, there has been a drive away from residential care. As you heard in the previous discussion, that will mean that different issues might well be raised in terms of key identifiable people.

If a young person is placed in a family situation and they then report abuse, there is a clear line to one or two people as opposed to a residential unit, where there are multiple potential abusers. The provision potentially raises a lot of issues but it is important because coming into care can mean coming into all sorts of different care situations. Some people could feel really excluded if their care situation was not one that we looked at, so I welcome the provision.

I echo Louise Carlin’s comments about hoping that the scope is not so narrow that it forces people to be either in or out because of wherever they happen to be. The commissioners should be given the openness to include people and to listen to what people have to say, regardless of whether they fit the criteria exactly. If we make the process too rigid, we are in danger of saying to somebody, “We don’t want to hear your voice.” We have to allow people to have their say and to have their voice heard. That is the most important thing.

It is fair to say that provision in the bill is expansive around eligibility—it was intended to be—so there is a focus on institutional care in a broad sense. It includes people who were placed in any form of that care at any time and for any length of time, so there is no prescription around when someone was placed in care or around how long they were there—it tries to be a wide approach.

As the policy memorandum sets out, the focus on institutional care is to reflect an evolution from time to be heard. We know that the acknowledgement forum works for people placed in particular forms of care and that there are, particularly historically, distinct aspects of the forms of institutional care that are in addition to any abuse or neglect that may have been experienced. The starting point is about the context within which people were placed in care, not the fact of abuse or neglect. That is important to bear in mind.

Having said that, we are not necessarily saying that this model would not be of benefit to other people, so—as we said in the previous evidence session—we are funding CELCIS and others to look at the area of foster care and to consider whether this model might work for people placed in foster care. There is a recognition that children move between different types of care—that is not unusual. We are exploring that area, but we do not want to leap into something when we do not have a lot of evidence to say whether it works. With time to be heard, we have evidence that it works for people who were placed in institutional care as children.

As regards eligibility and support, we need to think about people in Scotland but we are also supporting people elsewhere. For example, we support someone who is currently living in Spain but who was abused in Scotland. We are doing remote advocacy for that person, and there are several people in England as well.

We need to be clear about eligibility—to state the obvious, someone does not have to be living in Scotland to participate. We need to think about what to do about offering support to people who are not currently living in Scotland, such in as the example that I just gave, whether it is therapeutic support or advocacy support. Helplines attached to that support will be important as well.

The other eligibility issue was about the age at which people could access the forum. We have settled on 18. There was a discussion earlier about that and about changing legislation and encouraging people to be in a care setting for a longer time. That is something that needs to be addressed. Somebody aged 17 cannot use this system. Does anyone have a view on eligibility in terms of age? I take it from the silence that there are no strong views about it.

As you mentioned, you have already had a letter from the minister on the matter. All that I would add, as the person who instructed the bill, is that there are different options regarding age, as Tam Baillie pointed out—and he is well placed to comment. We considered those different options—for thresholds of 16, 18, 21 and 25. The law currently makes provision for children becoming adults at different ages in different contexts. We thought that someone would be more likely to be in care if they were under 18, and that their experience would be current. We want to enable the forum to focus on previous experiences. Someone will be more likely to have a past experience of care if they are over 18.

The aim was to balance the resources and focus of the NCF, taking into account who was most likely to come forward. In that regard, most of the consultation responses were more concerned with the older age group and people’s ability to access the forum before they die—or their inability to participate. That came up in the time to be heard pilot. It will be for the commissioners to determine priorities and how maximum access to the forum can be facilitated for people of all ages.

Why are we having a bill? I am starting to ask that question. We will have the bill, but the extent of powers, the flexibility of age thresholds and other things will be left to the commissioners. Why are we not dealing with those issues through the bill?

We are. There is provision for age, eligibility and lots of other things in the bill. The main reason for having primary legislation is that it is required to enable the protections to be put in place for the participants and for the commissioners in order for the functions of the forum to be fulfilled. As Kathleen Marshall pointed out in the previous evidence session, time to be heard was set up on an informal basis. It is possible that significant risks are involved.

One of the main recommendations set out clearly in the “Time To Be Heard” report is that any future forum must be based on primary legislation. Like all bill teams, we have judged what should go in the eventual legislation and what can be left for operational agreements, for example with the Mental Welfare Commission. As you can see from the bill, the forum’s functions are set out, as are the eligibility criteria. There is a new duty of confidentiality. There are a number of provisions that we strongly feel should be set out in primary legislation, so that people are absolutely clear about them and so that we can give participants protections, including absolute protection against the threat of action for defamation, which would not be possible without primary legislation.

If, as the person leading the Government bill team, you feel that the provisions could and should be extended to cover fostering or whatever, is it not important to set that out in the bill and to make it clear that the commissioners have the right to extend the measures beyond residential care? As many witnesses have said, the people concerned should be able to avail themselves of the remedies under the bill and elsewhere, and they should not be excluded because of the nature of the care that they found themselves in or because of their age. Are those things not fundamental?

The Government has taken a decision to define eligibility to participate in the forum in a particular way, with a focus on institutional care. That is based on evidence of what works and on the views that were gathered from many consultations before the consultation that we did on the national confidential forum. A decision was made about that. There is to be an expansion from residential care and from the scope of the time to be heard forum.

We heard a minority of views in relation to foster care and calls to fund a bit of work to explore that. We did not get a lot of feedback from participants indicating a demand for the type of model that we are discussing for foster care. Nonetheless, some views have been expressed to that effect, and we want to explore that point. A range of other views has also been expressed. We took a decision to make provision in the bill on the basis of evidence about what works.

11:45

According to Children 1st, thousands of children in Scotland are being reported to the children’s panel and indeed are being put into protection because they are suffering direct or indirect sexual abuse. These are historical issues in residential institutions such as Quarriers homes and so on, but sexual abuse and trauma are also taking place in other environments.

You are absolutely right. It does not matter whether someone is 16, 17 or 18; the question is whether, if they are suffering or have suffered abuse, it is right for 18 to be the age of eligibility. We support 14, 15 and 16-year-old children who are going through the court system; they themselves are victims of crime or might well have been four, five or six years previously. It might be too narrow just to say, “If you’re 18, you’re in—if you’re not, I’m sorry but you’ll have to wait until you are.” The fact that you would be denying people their right to a voice needs to be considered, and I think that having 18 as the threshold might be too tight.

However, we should reflect on comments made by Tam Baillie and Kathleen Marshall that there is already legislation for looked-after children who are under 18. If those provisions do not give children the confidence to come forward, we need to look at them; indeed, I think that Tam Baillie suggested that there be discussion about what is happening in that world at the moment and what learning from the national confidential forum can be applied in that respect. That said, it might miss the point to extend the NCF’s remit to address the fact that looked-after children under 18 are feeling that they cannot come forward.

The convener mentioned the number of children suffering abuse, but I have to say that that is not what the forum is about; instead, it is looking at the context of the care in which children have been placed. The argument, then, is that the forum’s remit should be expanded to look at everything; after all, who is to say that more abuse is not happening in private homes than in foster care or institutions? However, we are trying to focus on the context in which children were placed and a model that we know works for people who, as children, were placed in institutional care, and that focus will include not only those who have been abused but those who had positive or indeed mixed experiences.

The more I let some of the evidence sink in, the more content I am that there will be a protocol in place to ensure that someone who seeks the national confidential forum’s support is not told, “You’re not eligible—go away,” but is signposted sensitively to other support agencies and procedures.

As for those who were abused in a foster care setting, I recall that the national confidential forum emerged from a pilot project that specifically looked at institutional care, and I would welcome it if, after today, we could get some more information about what is happening in foster care settings so that we can examine those concerns. However, I think that we need to be led by the evidence instead of simply saying that provisions in that respect must be included in the bill.

Flexibility is a key term and has been mentioned on many occasions. Going back to the bill—after all, our job is to scrutinise its specific provisions—I note that the national confidential forum will be able to decide the nature and dynamic of testimony sessions, how they will be set up and how they will be reported. Obviously, confidentiality and anonymity need to be guaranteed, but I think that the commissioners will have a huge amount of flexibility in taking all that forward. Are the witnesses, who are scrutinising the procedures, content that the bill provides the right degree of flexibility about how evidence sessions will look and be reported? Does the bill strike the right balance in that regard?

I see that no one wants to respond—I do love silence in a committee. We need to ask such questions and I can only assume that if you had concerns you would express them. When we report on the bill, convener, we will be able to say that concerns about the issue did not emerge in this part of the meeting. We have to give each part of the bill a health check, as it were, as part of our scrutiny. I raised the issue, and witnesses had the opportunity to respond if they had concerns.

We are putting in place a system through which we want to respect individuals and their circumstances, while applying age eligibility rules that exclude groups of people. It has been suggested that there might be issues for young people who remain in care, but what about young people for whom the abuse and the relationship with care is historical? A person of 16 or 17 who suffered abuse in care when they were much younger might want to resolve some of the issues and take advantage of the process.

Bob Doris talked about flexibility. What support is available for such people? What signposting would happen? Can anyone say what would happen to a young person in such a situation, other than someone saying, “You need to wait two years before we can deal with you”? The young person might be starting work or thinking about becoming a parent—there might be a range of reasons why they would rather resolve the issue at that point. Why should we prevent them from doing that?

If the limit is set at 18 and a 17-year-old is ready to talk about their experience for the first time, I imagine that they will be signposted to other organisations, including In Care Survivors Service Scotland—I am not here to promote the service, but we work with people who are 16 and over. Other agencies work with people under 16. We work specifically with people who were abused in care settings, including fostering, adoption and kinship settings.

As the bill stands, a person who is not 18 will not be able to participate in the forum. However, if they require other support and the trigger for their coming forward was a wish to address other issues, I am sure that the forum will signpost to an organisation such as the ICSSS.

We currently fund organisations that provide services for younger people. For example, in the past couple of months we provided funding to an organisation that deals with young people and homelessness and to an organisation that deals with issues to do with drugs and alcohol. The SurvivorScotland strategy has been published and there is a website, which was set up by survivors in 2005 and is owned by them, on which we list organisations that provide services. As Lorna Patterson said, there are organisations that can support people who are under 18.

Such organisations also provide support to people who are over 18. Are you suggesting that the support that you provide is a substitute for participation in the national confidential forum? It could be said that adults do not need a forum, because you provide support. However, the forum is not intended to work in that way. It is about engaging with and challenging the authority that allowed the abuse to happen. People will go to the forum to get a weight off their shoulders and inform the authorities what happened, and they will expect some acknowledgment or apology as a result of the process.

I was not suggesting that what other organisations provide is a substitute. The question was about whether young people would be just turned away or referred elsewhere for support. That is why I talked about other organisations.

I agree that, in those situations, the forum would provide nothing additional but merely try to assist people who have nowhere else to go. That would be the situation currently for the group of people who will not be able to benefit under the bill. Therefore, my simple question about the eligibility requirements is this: why do we not just say, “If you are currently being looked after, you cannot use this process because there are other facilities available to you to discuss such matters and to raise your concerns”? Why do we not do that rather than specify an age? That sort of eligibility requirement would not be a difficult thing to do.

I do not know that I can add to what I have already said. The idea was to use the opportunity of primary legislation to be clear about eligibility. As I have said, in looking at an age threshold, we looked at different options and we chose 18 because it is more likely that at that point people’s experience of care will be in the past. That is the focus of the national confidential forum. Mostly, that is articulated at the other end of the spectrum in historical abuse from decades previously. However, we wanted to ensure that younger people could have access to the forum. For that reason, we discounted setting the threshold at 21 and set it at 18. Rather than look at the issue from a perspective asking, “Why not 16?”, we looked at the option of setting it at 21, but we thought that that might exclude younger people with more recent experiences of care. Our judgment call was that the threshold should be set at 18.

On that point, I note that the confidential committee in Ireland set its age limit at 18. Is there any evidence about that from Ireland, or is it too early to see the impact? Could the forum in Northern Ireland perhaps provide guidance on why it picked 18?

I do not know the specific reasons why that threshold was chosen. We have liaised closely with our Northern Ireland colleagues as they have taken their legislation through and set up their acknowledgement forum. It is probably reasonable to assume that their reasons were similar to ours. I think that the confidential committee in Ireland also had an age threshold of 18.

Is it too early to ask for evidence about that from Northern Ireland and from Ireland? Would that be asking too much, given that those are recent happenings?

I think so, yes. There is a lot of evidence from the experience of the different elements of the commission in Ireland. That was one of the main jurisdictions from which we drew experience to inform our approach in Scotland.

I think that Gil Paterson’s point was whether the experience in the Republic of Ireland could provide evidence about the exclusion of 16 and 17-year-olds. Is there any evidence on that issue that our committee could consider as part of our consideration of the bill? Has the Government seen any evidence from the Republic of Ireland on the exclusion of 16 and 17-year-olds? I do not ask for an answer on that today, but perhaps Louise Carlin could come back to the committee on that. It might be beneficial if we could find out whether there are any examples of that.

We are not aware of any such evidence, but we can certainly go away and look at that again if that is helpful to the committee.

Does Nanette Milne have a final question?

No.

Are there any other questions from committee members?

Do the witnesses have any issues that they want to leave us with that have not been brought out in our questioning? I am not putting people on the spot, but if people have any message in their head that they want to leave us with, they should feel free to say so. If, as often happens, on the bus going home you think, “I wish that I had said that,” there is still the opportunity—although not necessarily in this forum, as that is not always easy—to tell us. If, on reflection, you want to come back to us about something, feel free to email the committee clerks. Indeed, we also ask you to take note of our previous and future evidence sessions. If you have strong views in support of what has been said or if you have concerns about what has been said, please feel free to communicate those to us. We will take those into account in our final conclusions before we report.

If committee members have no further questions and if the witnesses have nothing further to place on record, I thank the witnesses for their attendance and for the evidence that they have provided. We look forward to hearing from you throughout the process.

12:00 Meeting suspended.

12:04 On resuming—