Item 2 is to take evidence from the Scottish Government bill team on the financial memorandum to the Health (Tobacco, Nicotine etc and Care) (Scotland). I welcome to the meeting Claire McDermott, Craig White and Dan Curran. Members have received copies of the briefing notes and all the written evidence that has been submitted. I will start with some questions and then open it up to the rest of the committee.
In paragraph 10 of the financial memorandum, you suggest that health boards are expected to incur “modest costs”, which you estimate
“could range from £10,260 to £41,064”.
What assumptions are those figures based on?
The figures were provided by NHS Greater Glasgow and Clyde based on the provision that it had put in place at one of its hospital sites to promote compliance with its smoke-free grounds policy, which is an entire grounds policy.
Those are the figures for each site. Obviously, there are quite a number of sites across Scotland. How many sites are there?
We estimate that there are about 149 sites, which excludes mental health and specialist hospitals.
So the range for the total cost would be between about £1.5 million and £6 million.
Yes.
I do not really see that upper figure in the financial memorandum.
Forty thousand pounds would be on the more expensive side. The estimate for that was based on a large site at NHS Greater Glasgow and Clyde.
The Scottish Government provides £10.5 million a year for NHS boards to deliver the tobacco control strategy. That includes providing cessation support. However, it is difficult to disaggregate the figures for the additional cost to NHS boards as they all operate entire grounds policies at the moment and have different levels of provision in place for promoting compliance with those policies.
The Government is expected to incur costs
“in the region of £300,000”
in relation to raising awareness about smoke free areas in hospital grounds. The financial memorandum states that
“this is subject to a fairly high degree of certainty, as it is based on recent ... campaigns”.
However, my local health board, NHS Ayrshire and Arran, has expressed doubts about whether the sum is sufficient given the large sums spent on previous high-profile media campaigns. How does it compare?
I am not sure where that confusion has come from. We contacted NHS Health Scotland, which was involved in preparing the green curtain campaign for NHS smoke-free policies. The £300,000 in the financial memorandum is based on the figure for that campaign.
The submission from NHS Ayrshire and Arran has expressed concerns that it has bespoke signage already and that, because you intend to do something nationally, that will impact on its existing ability to deliver smoking cessation services. If the health board already has bespoke signage, is there an intention to replace that, or would you be happy to allow the board to retain it? If the health board has to replace it, there will be a financial impact on it. If that is the case, will the Scottish Government pay for the new signage?
We have said that we would meet the costs for the statutory signage. NHS boards have an entire grounds policy. We are proposing a perimeter around hospital buildings. There would need to be statutory signage to make people aware that smoking was an offence in that area rather than a policy. However, we would see that as complementing the signage that health boards already had in place. The wording for the signage would be a matter for regulation. I think that it would be possible to work with health boards to ensure that the signage aligned. For example, the statutory signage might say that the grounds are smoke free but it is an offence to smoke within a certain perimeter. That would allow the two sets of signage to work together.
Part 2 of the bill relates to a duty of candour. The bill will introduce a duty on organisations providing health and social care to ensure that, where death or harm has resulted from an unintended or unexpected event, people are notified, an apology is made and actions are taken to keep people informed of a review of the events and of further steps taken. What sort of events are we talking about here?
The sorts of events that are likely to come within the scope of the duty of candour are unintended or unexpected incidents that result in death or significant harm. The bill which, as you know, is currently being scrutinised by the Health and Sport Committee, includes definitions of significant harm such as permanent lessening of bodily functions or
“changes to the structure of the person’s body”.
It would be very significant and serious levels of harm resulting from systems and process failures in the health and social care system.
Negligence, in effect.
Negligence would be determined by a legal process. The duty of candour procedure, as proposed, would be applied on the basis of the incident having occurred. In some cases, it may be an incident that is subject to future legal scrutiny and to a claim being made for negligence, but the duty of candour procedure itself is silent in relation to determining the negligence.
My question is about the regulations on nicotine vapour products. I note that the financial memorandum estimates that the regulatory costs will be £1 million to £1.5 million. However, the estimate from the Convention of Scottish Local Authorities is £2 million. Will you comment on whether the £1 million to £1.5 million is proportionate? If you consider that COSLA is overestimating, will you say why?
We have not yet had a breakdown of the £2 million from COSLA. We continue to work with COSLA. The financial memorandum highlights that the fact that the market for NVPs is evolving quite quickly makes it difficult to estimate the cost. COSLA is working to break down the figures and say how the £2 million is made up. We remain open. Our figure—£1 million to £1.5 million—is based on the best data that we have available to us about the number of additional retailers that COSLA would be expected to manage for enforcement purposes. However, we continue to work with COSLA to assess its figures.
So it is possible that, because there might be overlap in the case of existing tobacco retailers who begin to stock NVPs, there might be a double-counting exercise rather than new money being required, because those premises would already be subject to regulation.
Yes.
Glasgow has requested in its submission that, when the funding is allocated, rather than it being subject to the traditional funding formula, it is based more specifically on the number of premises that each local authority would be expected to cover. Is the Scottish Government open to that, or would it need to be determined with COSLA?
That is something that we could consider. We have not set exactly what the enforcement requirements will be because there might be a lower level of enforcement than is currently expected for tobacco. That would be commensurate with the lower level of harm that NVPs present. Perhaps it would be a matter for the local authority funding distribution group to decide how that money is distributed to local authorities. However, there are certainly two approaches that we could put forward for consideration.
I have a couple of points. I want to follow up what the convener said about hospital grounds in effect being split between a bit that has statutory regulation and another part that has just the local regulation. I think that it has been suggested that having that split in itself costs extra money, and one suggestion is that it would be simpler to have a ban in the whole area. Will you explain why that is not the case?
Yes. We considered that. When we consulted, we considered a number of approaches, including non-legislative measures to support NHS boards to enforce their smoke-free grounds policies. However, in considering what legislation would be appropriate, we had to take into account the different sizes of hospital grounds. For some people, there might be a very short distance to walk to get outside the grounds, but for others the distance could be a matter of miles.
We wanted to provide a proportionate and consistent approach across NHS boards, and we think that a perimeter approach captures the highest volume of traffic of people. The ultimate aim is that people do not have to walk through clouds of smoke to get into hospital. That approach captures where the main traffic of people is around hospitals.
The hospitals that I know are quite varied. Glasgow royal infirmary is almost all in one building, whereas Stobhill hospital is spread out over umpteen buildings. Are you happy that the costs will cover both situations?
Yes.
On the duty of candour, I am struggling to see what is new that should not be happening already and therefore why there are any extra costs. The bill talks about “unintended or unexpected” events, but does the NHS not deal with those all the time?
You are right to highlight that. Some elements of the duty of candour procedure are already part of good practice, particularly in the NHS, although we know from work that has been undertaken that there is still variation, particularly in relation to staff support, support for people who are affected by unintended events that result in death or harm, and training for staff. The resources that are outlined in the financial memorandum as they relate to the NHS therefore focus mostly on the training and support elements of the duty of candour procedure.
Some other health and social care providers, which are perhaps smaller organisations, that will come within the scope of the duty may not, because of the rarity of such events, have developed procedures and approaches that encapsulate all the elements that the bill outlines—disclosure, review and apology, and training and support.
I can understand that. If a nurse works in an accident and emergency department, I presume that he or she will deal with such things all the time because of his or her training or experience.
Even for front-line nurses and medical and care staff who deal with difficult and traumatic events, having to deal with an episode of unintended or unexpected death or significant permanent physical injury is not that common. We know that some of the challenges that that presents to individual staff require specific training and support. Staff deal with such things day to day, but we are talking about the sorts of harm that result from systems and process failures, which staff do not always feel confident to deal with.
Thank you.
I welcome Jackie Baillie to the committee and to the meeting. This is her first meeting as a full member of the committee. She has replaced Malcolm Chisholm, who was a very diligent member of the committee. I invite Ms Baillie to declare any interests that are relevant to the committee’s remit.
I have nothing relevant to declare, but I hope to be just as diligent as Malcolm Chisholm.
Thank you. Coming here on time would be a good start. [Laughter.]
Come on. Allowing for traffic from the west coast of Scotland to here is sometimes a challenge.
The convener is not interested in excuses.
I look forward to the Government improving the road network.
There are trains.
09:45
Trains, indeed.
Okay, Jackie—your questions.
Thank you very much, convener. I am really looking forward to being on the committee.
I want to concentrate on the duty of candour. The Scottish Public Services Ombudsman thought that there would be a rise in the number of complaints. Does it not follow that there is likely to be a rise in the number of negligence claims—something that the convener also raised? Has there been any assessment of what the value of those could be?
I will start with the ombudsman’s suggestion that there might be a rise in the number of complaints. To take the NHS as an example, the feedback is that when there have been such events and there is early disclosure, support, engagement and involvement of the people affected, and there is a commitment by the organisation to review and learn from what has happened in a way that actively involves the people affected, the result is often that a complaint is not made. People are satisfied that the organisation is taking things seriously, keeping them involved and letting them know the outcome of a review. That is reflected consistently in feedback that we receive about the handling of adverse events.
That is also something that we have had feedback on in relation to negligence claims. Many people embark on a legal process because there is no dialogue with the organisation and they are not getting answers to the questions that are keeping them awake at night. When those people are spoken to, they will say that they do not want a similar thing to happen to someone else and that that is their primary motivating factor for engaging with the organisation.
There is some international evidence that, when healthcare systems implement new policies and procedures that support disclosure and apology, the number of claims can reduce. Therefore, those are elements where we would expect there to be a positive impact as a result of the duty of candour procedure, although the number of claims and complaints will be monitored closely in the initial months and years of implementation.
On the basis of that monitoring, will there be flexibility to respond should the number of claims increase?
In the NHS, the central legal office will have factored that into its on-going planning in relation to claims. That office has discussed with the policy team the possible impact of the implementation of the duty of candour; it is part of its planning assumptions. There will be regular engagement and feedback around the early observations, if and when the procedure is implemented.
Other organisations will need to be considered. I am thinking of smaller organisations that are not likely to have claims very often, given the extreme nature of the events that come within the scope of the procedure. Some of the training and support resources that have been identified will be focused on helping those organisations to plan and think about the impact of the two issues that have been raised.
I want to ask about the enforcement of smoke-free areas in NHS grounds. Does the Government acknowledge that there is likely to be a short-term increase in the demand for enforcement?
The Scottish Government currently provides £2.5 million a year to local authorities to enforce smoke-free legislation that has been in place since 2006. It is estimated that 149 hospitals will be involved, extending the smoke-free legislation modestly, I think. We have not had any breakdown of costs from COSLA; that is part of our discussions with COSLA. We will probably consider that alongside the funding that local authorities already receive to implement smoke-free legislation.
You are saying that the Government view is that there might be a short-term increase. Does the Government have a view on the likely size of that short-term increase, or do you just acknowledge that there is likely to be an increase?
We remain open minded at the moment. We have not yet had any breakdown of the figures from COSLA on a national basis, albeit that COSLA does not cover all local authority areas. We will be open minded when considering what COSLA puts forward.
You are saying that, if evidence is provided by COSLA or others, the Government is open minded about funding this, at least in the short term.
Yes.
There are no further questions from the committee, and no further points from witnesses, so I will wind up the session. Thank you very much for answering our questions this morning.
I am now going to call a recess until 11 o’clock—
That is very generous.
Sorry. I call a recess until 10 o’clock to enable our other witnesses to be seated.
09:50 Meeting suspended.
10:00 On resuming—