Good morning. I welcome everyone to the Justice Committee’s 21st meeting in 2015 and ask everyone to switch off mobile phones and other electronic devices, as they interfere with broadcasting even when they are switched to silent. No apologies have been received.
Item 1 is our second evidence session on the Apologies (Scotland) Bill, which is a member’s bill that has been introduced by Margaret Mitchell. Standing orders prevent Margaret from being involved as a committee member in the scrutiny of her bill, but she can of course participate in evidence sessions as an ordinary member; that is why she has moved seats.
I welcome to the meeting the Minister for Community Safety and Legal Affairs, Paul Wheelhouse, and Scottish Government officials Professor Craig White, divisional clinical lead, healthcare quality and strategy directorate; Ria Phillips, civil law and legal system division; and Kathryn MacGregor, directorate for legal services. Good morning.
I understand that the minister would like to make a very short opening statement.
Just a short one. Thank you, convener. I thank the committee for inviting me to give evidence on the Apologies (Scotland) Bill.
The Scottish Government supports the aim of promoting and encouraging the giving of apologies by private and public bodies to achieve a better outcome for victims. However, a fine balance needs to be struck between promoting the general use of apologies in the public interest and protecting individuals’ access to justice. We are concerned that the bill, as drafted, does not strike that balance.
Our concerns are detailed in the Government memorandum and have been raised directly with Ms Mitchell. In the main, they relate to the definition of “apology” and the application of the legislation, if enacted. In my view, evidential problems could arise if an apology is defined as including an admission of fault and fact. That concern appears to be shared by a number of key stakeholders, who have questioned whether “apology” should be defined in legislation at all and, if so, whether the proposed definition is too wide in scope. In considering how apologies could be put on a statutory footing, many consider section 2 of the Compensation Act 2006 to be a favourable alternative approach.
We also have concerns about the intended application to all civil proceedings with the exception of fatal accident inquiries and defamation actions. Our view is that, if the bill is to be progressed in its current form, consideration should be given to removing public inquiries, tribunals and arbitration proceedings from its scope.
The interaction between the provisions on the duty of candour in the Health (Tobacco, Nicotine etc and Care) (Scotland) Bill and the Apologies (Scotland) Bill is relevant. Although it does not prevent an apology from being admissible in court, the intention of the Health (Tobacco, Nicotine etc and Care) (Scotland) Bill is that any apology or other step that is taken in accordance with the duty of candour procedure cannot be taken by itself to be an admission of negligence or a breach of statutory duty. The Apologies (Scotland) Bill risks substantially undermining the duty of candour provisions. Moreover, in the health context, there is provision in legislation and guidance that encourages cultural changes to the giving of an apology.
All that raises a question about the policy justification for an apologies bill. We would, of course, welcome a change in culture that supports the effective giving of apologies but, due to the lack of relevant empirical evidence, we remain unconvinced that legislation of the kind that Margaret Mitchell proposes would deliver that outcome without creating inadvertent injustice.
Margaret Mitchell suggests that the bill will provide legal certainty. That is an admirable aim, but it should not be done at the cost of restricting access to justice for potential pursuers in actions for damages. There appears to be merit in putting the common law on a statutory footing similar to that in section 2 of the 2006 act, as that would raise awareness of the common-law position that an apology cannot in itself be used to prove liability, which may in turn encourage more apologies to be made.
I am grateful to the committee for providing me with an opportunity to give evidence on the bill. I hope that my statement has been helpful. I would be very happy to follow up the session with a written summary of the Scottish Government’s concerns about the bill, if that would assist the committee.
We will find out, minister. I invite questions from committee members.
Good morning, minister. That was a fairly comprehensive opening statement, but there is one matter that I do not think you touched on: the Scottish Human Rights Commission’s argument that the apologies legislation might be important in relation to historical child abuse. Do you wish to comment on that?
That is certainly a very important issue. I have discussed it with Margaret Mitchell, and we both agree that we wish to tackle historical child abuse and to help its survivors. The concern is that, in the absence of other forms of evidence, an apology or admission of wrongdoing on the part of an organisation will potentially be the only evidence other than the person’s own testimony that might be relied on to prove what happened.
As has already been raised in evidence to the committee, some organisations have felt prevented from giving an apology in the past because of the role of the insurers, who might previously have said that giving an apology might constitute an admission of liability. That undermines the ability of organisations—which I will not name, for obvious reasons—that feel genuinely apologetic about what has happened on their watch and which wish to say so to those who have been affected. There might be a risk that they are not able to do that. There is still some uncertainty, which the committee may well pick up on, about the role of the legislation in relation to the insurance industry.
On the issue of cultural change, Mr Adamson of the Scottish Human Rights Commission said that he did not think that the bill would be a panacea, although he suggested that it would be of assistance in helping to change the culture. Is there anything further that you can say on the eventual legislation impacting on cultural change?
I reiterate a point that I made in my opening statement. I am very sympathetic to the aim that Margaret Mitchell is trying to achieve of effecting a cultural change. In public services, things go wrong in all sorts of aspects, and we have to admit that. It would be good if there was a culture in which people could genuinely apologise. Often, that is the only thing that people are looking for. They are not looking for compensation or anything else—they just want it to be recognised that wrong was done to them, and they want an apology.
We have a concern about the potential that, in giving an apology, we may remove access to justice for some individuals. The apology might be the only evidence or the key piece of evidence that might be admissible in court under the provisions of the 2006 act. It is still possible to use that evidence in a court case. Not having that ability could take away an important plank of a case for compensation that an individual could take up.
That could have an impact on those involved with historical child abuse, given the length of time that we are talking about in many cases. That abuse goes back to periods when the people concerned were very young. There will clearly be evidential difficulties for those affected by historical child abuse, and there is therefore a question as to whether the rights of the individual who is giving the apology are in a sense trumping the right for evidence to be provided and used in the courts on behalf of the person who has survived historical child abuse.
I hope that I have correctly picked up the point that Mr Campbell is making.
Yes.
He seems content.
I am content. Thank you, minister.
It is a good start to the day for us if Roddy Campbell is content.
It is always a good test.
In your opening statement, you mentioned the Compensation Act 2006 and the Health (Tobacco, Nicotine etc and Care) (Scotland) Bill, which I think was introduced just last week, with its proposed duty of candour. I presume that that would apply only to the health service, whereas the Apologies (Scotland) Bill has a wider application. Am I correct about that?
That is correct. My understanding is that the duty of candour provisions would relate only to the healthcare sector.
You indicated that you have some concerns about the bill as it is drafted. Do you think that it is possible for the bill to be amended to take on board the points that you made? If so, how do you think that it should be amended? Would it be a case of amending the definition or of transposing some of the provisions of the Health (Tobacco, Nicotine etc and Care) (Scotland) Bill into a more general bill?
That is a good point. Professor White is here to deal with the detail of the duty of candour provisions but, in principle, they are based broadly on what is in the Compensation Act 2006. Therefore, a similar approach is being taken to tackling the issue of liability and how giving an apology will impact on the liability or otherwise of individuals. I guess that it will be left to the courts to determine, taking into account all the evidence and the apology that has been given, whether the health professionals concerned are liable.
As I said, the approach to giving an apology under the duty of candour is aligned with that of the 2006 act, in that an apology that is given or another step that is taken in accordance with the duty of candour procedure cannot itself be used to prove liability but can be admissible in court. Given that we understand that one of the main reasons for the Apologies (Scotland) Bill is to enable apologies to be made more freely in the health sector, that suggests that a similar approach could be adopted here. That supports the view that legislation similar to section 2 of the 2006 act but going beyond health and covering other aspects of public services might be a more effective means of delivering the aims of the bill, which are entirely laudable and of which I am not in any way critical.
If the definition of “apology” that is provided in the bill remains as it is, we are of the view that apologies that are given in the context of the duty of candour should be excluded from the bill. If it is the Parliament’s will that the bill should proceed to stage 2, we believe that one important change that should be made is that apologies that are given under the duty of candour in a health sector context should be removed from the scope of the bill.
If the bill were amended in the way that you suggest, do you feel that the same exceptions should apply? What do you think about the fact that the bill will not apply to fatal accident inquiries?
We certainly believe that the exceptions should include public inquiries that are held under the Inquiries Act 2005, arbitration and tribunals. There is an issue as regards the potential impact on reserved tribunals, particularly if they go to appeal in the Court of Session. In that situation, they could fall under the remit of the bill, which we think would be unhelpful.
There are a number of issues with the coverage of the bill and the exceptions for which it provides, as well as some drafting issues, which we have already raised with Margaret Mitchell. I believe that those concerns have been shared, but we can come back to the committee in more detail if that would be helpful. A number of things could be done to the bill that would mean that we could support it, but we would have difficulty with it as it is drafted.
Do you have an issue with how the bill would interact with the General Medical Council’s professional rules?
I will bring in Professor White, because he is more of an expert on that issue.
I understand that, at the committee’s previous evidence session, concerns were expressed that information that was provided under the bill might be used as part of the GMC’s regulatory and investigatory process. We considered that in relation to the drafting of the duty of candour procedure, in the context of not only disciplinary and regulatory processes but employment practice. There are issues that would need to be considered in the context of the legislation on the regulation of health professions, which, as you know, is a United Kingdom matter, but I understand that the GMC would be content to discuss addressing such issues through guidance for its members and its processes.
Would that guidance apply to the Apologies (Scotland) Bill, as it will apply to the duty of candour in the Health (Tobacco, Nicotine etc and Care) (Scotland) Bill?
Yes.
Good morning, minister.
On the point that has just been made, does that mean that, when we talk about regulators such as the GMC, we would not have a problem with reserved issues if the bill were enacted?
That would be partly down to the drafting of the bill. The Compensation Act 2006 already applies in England and Wales. If a similar approach to defining and dealing with an apology were adopted in the bill, whereby, in effect, the common law would be put on a statutory footing, there would be no change in the legal position, but the legal position would be formalised and people would be given greater clarity on what was and what was not possible in relation to giving an apology. That might be helpful in providing a level playing field.
There are particular issues with reserved powers in relation to reserved tribunals. Although I am sure that Margaret Mitchell has done her best to take account of those, we do have a concern about the appeals that might go to the Court of Session. I do not know whether I have confused matters with my response to Mr Allard’s question. Perhaps Professor White can come in on the issue, with the GMC in mind.
09:45
The proposed duty of candour procedure relates to organisations providing health and social care in Scotland. It is clear that the focus is on the organisation, although in reviewing an unintended or unexpected incident that results in harm, matters relating to individuals may be raised or reviewed. The proposals have been drafted very much in recognition of the fact that someone may wish to pursue a compensation claim; it will be explained to them that there is a regulatory procedure if they have concerns about the practice of a nurse or a doctor and they will be signposted to separate legal processes if they wish to seek compensation. The duty of candour procedure has been drafted with that in mind. It is an organisational duty, but in the course of dialogue, individuals who are affected by the harm outcomes that are defined might benefit from signposting to other established procedures, some of which would include those GMC, Nursing and Midwifery Council and other legal processes.
That would address the point that insurance law is reserved. Is that the same with the GMC?
Mr Allard is absolutely correct that we have concerns about insurance. I guess that there are different regulators and it is a different situation, but financial services are still reserved to the UK Government. We are not sure that the bill will alter the position whereby insurers have clauses in the insurance policies that people sign requiring that they do not give an apology. Therefore it would not necessarily put people in any better a position than they are in currently. They might have the impression that, because an apologies bill is coming in, it is okay to give an apology but then find that they will invalidate their insurance by giving an apology. That is a genuine concern. I am sure that it is not the intention of the bill, but we are concerned that the effect of the bill might be to create an expectation among the public that, for example, if a driver has an accident and gives an apology, that is okay, when in fact they might have invalidated their insurance by doing so. Our concern is about reserved and devolved issues, but it is also about whether the bill will have the desired effect. It could remove access to justice and make it more difficult for people, who might find that they are unable to pay the cost to the person with whom they had the accident because their insurance has been invalidated.
Except that the evidence that we have had is that people say that they are sorry all the time. They might not even be at fault—they are just sorry that the accident happened. I do not know whether that makes much difference to what happens after motor accidents.
I take that point.
I want to raise with you another point about the definition of an apology. Under section 3(b), the apology can also contain a statement of fact. I do not know whether you addressed that in your very comprehensive statement. The statement of fact in relation to the act could be, “I’m sorry. I’m Genghis Khan,” or, “I hit the wife and killed her.” I think that that was the example that we had. Obviously, that would be a criminal matter anyway, but it could not be used. Another example would be, “I’m sorry. I didn’t stop at the traffic lights and ran into the back of the car.” That is more than just saying that you are sorry. Is there an issue there? Would it be helpful if that provision was taken out?
It is certainly an area about which we have expressed some concern to Margaret Mitchell in the conversations that we have had. I have no doubt that Margaret has taken that on board. We are concerned about statements of fact being included as part of a protected statement, which creates a different situation. We believe that a potential injustice could arise in cases, such as cases of historical child abuse, where a statement of fact is the only means of demonstrating liability for the harm caused. That statement is protected and cannot be led in evidence as it is part of a statutory apology. If no other evidence of liability is available, a pursuer would be unable to succeed in an action for damages, which we contend cannot be a fair outcome.
In a case of historical child abuse, a survivor or a bereaved person might decide to seek damages in court for the harm that was the subject of the apology. They cannot rely on that apology and would have to find other evidence to support their claim. That might be extremely difficult, especially with the passage of time. We are concerned that survivors of historical abuse, who already face significant evidential hurdles when seeking to progress a court action, could inadvertently be prevented from taking forward a civil action. It is about removing that potential problem from the bill.
And not only for historical abuse—cases such as that exist across the spectrum.
Absolutely, and your other example about an accident was perfectly good.
I am content now. Margaret, would you like to round up the questions?
Good morning minister. I will press you a little more on the duty of candour, which will include an apology that is admissible. Have you sought directly the view of the Association of British Insurers on that proposal?
Perhaps I can bring in Professor White, as he has such knowledge of the bill.
I do not recall the ABI being one of the stakeholders that we consulted specifically, although we have consulted similar organisations. I will check and let the committee know.
Perhaps I can help you out; I have been in direct contact with the ABI. It is content not to comment on the Apologies (Scotland) Bill, which suggests that it is satisfied with it as it is. It has said that it reserves the right to comment on other legislation, and I thought that it was considering the duty of candour. Given the prescriptive nature of that duty, it may be that the apology and the cover that the Government seems to think it has introduced by incorporating section 2 of the Compensation Act 2006 might not cover the concerns of insurers. Under what circumstances do you envisage the bill complementing what the Government is trying to achieve with the duty of candour?
I would be keen to consider what the insurance industry has said; we will obviously hear its view. A firm commitment that the bill will not damage the interests of people who are insured would be helpful to our deliberations when coming to a formal position on the bill. We are still waiting to interact with Margaret Mitchell on some of the detail before we take a firm stance on that issue. Any show of willingness on the part of the insurance industry not to invalidate insurance on the basis of the bill would be helpful. Until I have seen the detail, it is difficult to comment further, but I would welcome the engagement of the insurance industry.
It may be that Professor White wants to comment on that, cabinet secretary.
Certainly.
Many elements of the duty of candour reflect the current approach of a number of NHS boards on disclosure, apology, review, learning and improvement. To my knowledge, there have been no negative consequences on insurance arrangements, where that approach has been applied within the NHS. Not only are there apologies; often, statements of fact are made about significant adverse event reviews that have been undertaken. In some cases, statements of fault are made as a result of that existing process.
That point is pretty fundamental and will shape opinions on the bill and the duty of candour provision. Section 2 of the Compensation Act 2006 states that
“An apology, an offer of treatment or other redress, shall not of itself amount to an admission of negligence or breach of statutory duty”.
That allows an expression of regret; in other words, it allows for a partial apology. The evidence very clearly suggests that a partial apology does not satisfy persons who are seeking an apology and that a partial apology can, in fact, do more harm than good. It seems to me, particularly with regard to historical abuse victims who want not only an apology but, crucially, an acknowledgement of the wrong that has been done, that that would not be possible under the Compensation Act 2006, because it would be equivalent to an admission of fault.
If the Government is not minded to support the inclusion of admission of fault—that is, a full apology—that will not help and will not provide the restitution that survivors and, I imagine, the Government are seeking. Will you comment on that?
I share Margaret Mitchell’s concern for survivors of historical child abuse, and we want to help them to get what they need from the process. I acknowledge that some of the child sex abuse survivors with whom I have discussed the issue want apologies and an explanation for what happened to them.
However, although I understand Margaret Mitchell’s point, we do not want the inclusion in an apology of details of what happened to mean that it is no longer admissible as evidence. I realise that that would be an unintended consequence, but we believe that such an approach could harm access to justice for those individuals where that is, apart from their own testimony, their only evidence for making the case that they have been abused. As I said, I very much share Margaret Mitchell’s concern that people should receive the quality of apology that they are looking for, but the question is whether inclusion of the detail that she mentioned would mean that the apology could not be presented as evidence in court. It is not that we disagree with the need for people to receive good-quality apologies; rather, we are concerned that an apology would no longer be admissible as evidence and that the individual’s case for civil damages, if that was what they were seeking, would be undermined.
I will take things a step further by suggesting that without the protection of admission of fault there is likely to be either no apology or an apology that is so inadequate that it will aggravate the situation. Have you spoken to Professor Miller about his views on the bill and the Government’s proposal to restrict the provisions? I understand that he feels that the inclusion of admission of fault will be absolutely essential to ensuring that survivors receive the acknowledgement and recognition that they seek above all else.
As I suggested in my previous response, I certainly recognise the need for a good-quality apology and share Professor Miller’s concerns that people get the quality of apology—or, at least, the explanation and the apology—that they are looking for. Our concern is with how the bill as it stands would impact on the admissibility of that further detail. If there was a lengthy apology that brought in lots of facts—
I think that we have covered that.
—it is likely that people would face an access to justice issue and that they might not be able to use that as evidence.
As I said earlier, this is all about striking a balance between the right of the individual who is seeking damages in, say, a historical child sex abuse case to get an apology, which I am sure they would want, and ensuring that their right to take their case to the civil courts and to seek damages, if that is what they want and need to do, is not taken away from them. As I am sure Margaret Mitchell is aware, many of the individuals involved will have significant health and other needs, and might be seeking damages in order to cover the costs of meeting those needs.
Perhaps I can tease this out a little bit more. Are you prepared to look at the inclusion of admission of fault, which provides that crucial acknowledgement and recognition of the wrong that has been done, and to indicate at stage 2 some movement on the statement of fact provision, which might allay some of the access to justice fears that you have expressed this morning?
10:00
I am certainly more than willing to engage with Margaret Mitchell on amendments that could be drafted that would accommodate both interests and deal with the issue that she raises. We are not seeking to stop the bill according to any fundamental principle. We agree with the principle behind the bill, which is to create the ability to make an apology where that would help the public service provider and the individual.
Are you aware that one of the greatest obstacles to the medical profession is the fear that an apology is an admission of liability and, in fact, of negligence? There is quite a misunderstanding, even among some lawyers, about what actually constitutes liability leading to negligence. Given those circumstances, would a definition of “apology” and the ability to give a full apology help to solve that problem?
I will bring in Professor White in a second. In principle, I identify with Margaret Mitchell’s point. A number of my constituents have had concerns and have felt that there was a culture in which it was difficult to get recognition of what had happened to them. I very much accept the principle. I am sure that health professionals would like to be able to apologise when they believe that something unsatisfactory has happened. However, they are uncertain. That is why the bill, with which Professor White is involved, is trying to provide a better platform from which such apologies can be given. I will bring in Professor White to finish that point.
We have concentrated on the medical sector, but the bill would have a huge relevance for public services more generally, when people just want acknowledgement that something has gone wrong and that the issue will be looked at to ensure that it never happens again. It is worth making that point, because the discussion has very much been in the direction of the medical sector.
That is certainly true. I accept that the bill is not focused entirely on medical cases. Indeed, we have discussed a good range of cases, including insurance cases, as the convener mentioned.
There seems to be a wealth of research on the positive effect that apologies can have, which we accept. We have no doubt that apologies are a good thing and should be promoted as such. However, research on the effects of apologies legislation in achieving that aim is less convincing. The majority of research in other jurisdictions seems to focus on healthcare settings, which is perhaps why the debate has centred on them. It is very difficult to draw meaningful conclusions from experiences elsewhere regarding the impact that the bill might have in Scotland. I believe that the convener made that point in last week’s meeting: it would be like comparing apples with pears.
I accept that we want to create a culture in which people believe that they will get an apology if there is a deficiency in a service. All that people are looking for in many cases is recognition that things could have been better and that problems will be addressed. I accept and support the principle of what Margaret Mitchell is trying to achieve; it is the detail on which we have to find agreement.
Since you have brought up empirical evidence, I will turn the question around: is there any evidence that previous apologies bills have caused any harm? I am not aware of any. That is an important thing to look at.
We have some concerns about what the bill, as drafted, might do. We do not want to road test the bill—
That is an apposite term.
It was inadvertent.
We do not want to put the bill to the test if we think it could have inadvertent implications that could harm those who require to put forward evidence. There is potential for us to work on the detail, which I am happy to do with Margaret Mitchell.
The Scottish Children’s Reporter Administration has said that certain proceedings under the Children’s Hearings (Scotland) Act 2011 should be added to the list of excluded actions. Do you agree, minister? You are back to being a minister. I have demoted you. If only you were cabinet secretary.
I am quite happy with my current role, convener.
I am happy to come back to the committee on the implications for children’s hearings.
I am sorry, Margaret. I thought that I should raise that because it had not been raised.
I think that Professor White wants to come in.
It is up to the minister. Does Professor White want to add anything?
If Professor White has knowledge on that issue I will happily bring him in.
The minister said, in his response to Ms Mitchell, that it may be helpful if I add some comments on her question about medical professionals’ fear of apologising. I will make two points in that regard.
First, all medical practitioners—in fact, all registered health professionals—have a professional duty of candour and should be apologising where there have been unintended consequences or harm. Secondly, in recognition that there is a culture in which, at times, there is a fear of apologising, the duty of candour provisions have been drafted so that there are not only provisions around procedures, but requirements on organisations that will come within the scope of the duty to provide training and support to staff. Part of that training and support will involve an understanding that there are separate tests around liability and causation. Indeed, the duty of candour procedure is very much focused on learning and improvement rather than on fear and blame.
I accept all that, but despite the training and all the other things, there is still a culture of fear. That is where the Apologies (Scotland) Bill spells out exactly what a person would be admitting to—that if they admit fault, that would not be equivalent to admitting liability, let alone negligence. That would go a considerable way towards providing reassurance and encouraging apologies. I ask that the minister reflect on that.
I certainly will, but I reiterate that we are using the Compensation Act 2006 as the basis for the duty of candour. We think that the provision would work in the context of the Apologies (Scotland) Bill.
We have exhausted the questioning. Thank you very much, minister. We shall have a short break while everyone settles down and gets their papers ready for the next agenda item.
10:06 Meeting suspended.