Joint Inspection of Children's Services and Inspection of Social Work Services (Scotland) Bill: Stage 1
The next item of business is a debate on motion S2M-3629, in the name of Peter Peacock, on the general principles of the Joint Inspection of Children's Services and Inspection of Social Work Services (Scotland) Bill.
I thank members and, in particular, the Education Committee for agreeing to consider the bill under an accelerated process. Despite that timescale, the committee has given detailed scrutiny to the bill, and the depth of its questioning is a credit to the Parliament and the way in which it conducts its business.
We have considered the committee's report, the evidence that the committee received and the results of the widespread consultation on the proposals for joint inspection. They all demonstrate overwhelming support for the principle of joint inspection as a critical component of ensuring that all children's services are delivering effectively. Within child protection, the joint inspection process will evaluate whether local services are working together to keep children safe and protected. It will provide the third-party, objective evidence that children, the community and Parliament want and require.
It is fundamental to the purpose of joint inspection that we ensure that the child's experience is central to the process. Inspections will consider an area's strategic planning, leadership arrangements and operational delivery, but they will be marked out by an evaluation of the services from the child's perspective and based on the child's experience. That is why it is crucial that, in addition to talking to children and young people about the services that they receive, a sample of case files is considered and a child's journey through the various services that they have received is evaluated.
There appears to be no disagreement about that methodology. Indeed, most respondents to the committee's request for evidence welcomed it. The methodology was tested, initially in the dry run of the joint inspection of child protection services in Tayside last summer and later in two pilot joint inspections that were completed in April.
Each individual inspectorate has powers to access personal information, and we thought that the inspectorates could use their existing powers collectively during joint inspections. That assumption was borne out by the Tayside dry run but, as a consequence of one of the ways in which the pilots operated, we received advice that joint inspection teams needed to be given specific powers to access and share personal information for the purpose of inspecting children's services together. As soon as that advice was clear, we moved quickly to provide inspection teams with the necessary powers. The review of existing powers led us to conclude that the Social Work Inspection Agency needed clear powers to inspect general social work services in the way that we want it to, and we have taken the opportunity to provide those in the bill.
None of those matters has given rise to significant concerns among the key interests involved with services to children. The two outstanding issues of principle that were raised in committee are the requirement to seek consent to access an individual's records and the need to ensure that personal information is handled confidentially.
We have no difference with those who say that it is best practice to seek consent. However, the way in which consent is sought must differ and be treated sensitively, in line with the nature of the inspection. On the child protection joint inspections, we share the view of all the inspectorates and most of those who work with children on child protection matters, which is why we have chosen the route of implied consent. However, we understand that the matter is complex.
The British Medical Association in particular has raised concerns about confidentiality. How will the minister address those concerns?
I ask Mike Rumbles to bear with me. I intend to set out some of that, because we are being careful about how we deal with such issues.
We respect and share the view that the process of seeking consent must be carefully applied. That is why we have developed draft regulations and a draft protocol in tandem with the bill. The protocol describes in detail how inspection teams will work with professionals and children to gather and consider information sensitively. The inspection team is collating the comments that have been received on the protocol and I have asked it to meet again with all relevant groups to develop the protocol to reassure them further and identify how they can work together as child protection joint inspections proceed.
I come to the point that Mike Rumbles raised. The committee has asked us to consider the case for including an opt-out in the bill for a child or young person who does not consent. I agree that the protocol should deal with such circumstances on a case-by-case basis. However, in child protection cases, it would be the parent who could opt out on behalf of the child and, in some circumstances, that might not be in the child's interests. I understand the concerns of some health professionals in that regard, which is why our regulations specifically address the way in which confidential health information must be handled and why the matter has been built into the protocol.
However, a variety of agencies—not just health agencies—hold sensitive personal information on individuals. The bill will ensure that all confidential information should be treated with sensitivity and in full compliance with the Data Protection Act 1998 and the European convention on human rights. I am therefore not minded to agree to a blanket opt-out in the bill. However, a further protocol will be developed to fit the wider approach to the joint inspection of children's services. It will address how consent will be sought in line with the particular services to be inspected and it will consider whether the principle of seeking consent should be applied differently to reflect the age and stage of the development of the children involved.
I welcome the Education Committee's interest in the importance of the protocol. We will introduce an amendment at stage 2 to strengthen the approach by ensuring that the inspectorates are bound by a duty to have regard to protocols in the conduct of inspections. Further, I recognise the committee's interest in parliamentary scrutiny of the protocol and I can confirm to Parliament that we will consult the Education Committee on the draft protocol before it is approved by ministers. The protocol will be created within the framework that Parliament will approve for it by regulation. I hope that that demonstrates that we are happy for parliamentary scrutiny of the draft protocol to take place, while retaining flexibility to adapt protocols as experience develops.
I thank the minister for his suggested amendments, but will he clarify the point that he made about the protocol being subject to regulation?
On the way in which we will draft the protocol, the regulations set out that we will seek the approval of Parliament. We will not seek approval of the protocol itself, but the regulations will create the framework for it.
I undertake to consult the committee on any significant changes that we seek to make to the protocols in the light of experience—that would apply over time to both protocols: for child protection and for wider children's services.
Although I am not a member of the Education Committee, a local general practitioner has raised concerns with me on the amount of consultation that took place before the legislation was introduced. I noted that, in its report, the committee asked for the protocol to be open to public consultation, partly as a result of the perceived lack of consultation. Is that the way in which the Executive plans to go forward?
Yes. We intend to consult on the protocol as widely as we can and, because of what I have just said, we would bring that protocol to Parliament in draft form, so that it will be seen to be scrutinised in public by the parliamentary committee with responsibility for it. My clear intention is to take people with us on the protocol. I do not seek to do anything other than that.
Will there be the opportunity to suggest amendments to the protocol?
We took the code of practice on the Education (Additional Support for Learning) (Scotland) Act 2004 to the Education Committee; in the same spirit, we would be mindful of the committee's suggestions on the protocol. The intention behind taking the protocol to the committee would be to hear its views. We want to get the protocol right and, through that process, to respond to as many concerns as we can. We would certainly listen to what the committee had to say.
The second important principle raised by the Education Committee is the suggested amendment of the bill to include a duty of confidentiality on the inspection team, to which I am sympathetic. All members of an inspection team are already bound by their various professional codes and terms of employment to respect confidentiality. However, I recognise that a duty would help to provide further reassurance. I am taking advice about how that might be achieved. If I can give effect to the suggestion, I will seek to do so, and I will keep the committee advised of the position right up until stage 2, as best I can.
I welcome the Education Committee's request for a review of the legislation and the protocol prior to the introduction of the joint inspection of wider children's services and I will work with the committee to ensure that the review is conducted satisfactorily. I will also write to the committee addressing all the points raised in its stage 1 report that I have been unable to deal with in the debate. Further—and I mean this genuinely—I signal to all in the chamber my willingness to listen to and to discuss any thoughts on amendments prior to stage 2, both to ease the passage of the bill and in a genuine spirit of co-operation.
In March 2004, our proposals for joint inspections received a universal welcome. That support has continued during consultation on the proposals and during the pilots. When the problems that we are addressing in the bill became apparent, we received full support in seeking to put them right very quickly.
There is no debate about whether joint inspections should be introduced. The significant challenge that they have to meet is that of ensuring that the joint inspection process contributes to improved outcomes for children. Enabling joint inspection teams to consider the information that they need is an essential part of that process, and the bill enables them to do that in full compliance with the Data Protection Act 1998 and the ECHR.
The teams need to use their powers sensitively and transparently. That is why the protocols that will be used will be fully consulted on. In that way, I am confident that any outstanding concerns can be addressed and resolved to the satisfaction of most of those involved.
I move,
That the Parliament agrees to the general principles of the Joint Inspection of Children's Services and Inspection of Social Work Services (Scotland) Bill.
This bill is probably one of the most important that we will deal with, even though it is being rushed through and has been given very little parliamentary time this afternoon. Politicians, whether national or local, have no greater responsibility than dealing with child protection.
Joint inspections are recognised by all across the chamber and in wider society as a means of driving forward best practice. Unfortunately, we know from tragic cases that, time and time again, the lack of interface and problems between different organisations—social work, health organisations and the police—cause difficulties and give rise to tragic circumstances.
Lack of access to health records was a stumbling block that meant that the roll-out of joint inspections had to be curtailed. Therefore, the Scottish National Party is happy to co-operate with the progression of the bill, although I wish to point out that the need for such legislation was foreseen by the Education Committee during its inquiry into child protection last year. Wendy Alexander and I intimated to the minister that there might be a need for legislation, and that since child protection was one of the most important areas in which legislation might be required, we should act. However, we recognise that we are where we are, and we have to go forward on that basis.
I know that my time is limited, but I will pull out some of the key areas—my colleagues may do the same. There is an issue about confidentiality and about access to individual health records in particular. People are concerned that although the bill has two parts, it covers three areas. Part 1 covers child protection and children's services as one element. Part 2 has implications for the Social Work Inspection Agency, and covers access to medical records—but only by a medical practitioner. There is concern that there seem to be two sets of standards. The committee is right to ask the minister to address and clarify that issue. The BMA and GPs raised specific concerns about access to information by children's services.
The bill is about the inspection of past cases. We know that the minister and the chief medical officer have written to all those involved in children's services to say that child protection trumps any other issue in live cases—that is the norm. At issue is the introduction of processes for retrospective checks. We have to look at the logic of the Executive's approach. I understand the concerns of the BMA and GPs that openness in the inspection of children's services generally may lead to an expectation that social work and education inspectors will check services willy-nilly. Those concerns are mistaken. We need to clarify that the bill allows very specific inspections to take place when information about individual cases can help to illuminate previous problems.
There is a further lack of logic in the Executive's approach. We support joint inspections, and the committee recognises that by looking at broader children's services we may identify vulnerable children who do not receive the services that they deserve because they are not on the at-risk register. Sometimes it is easier to track children who are on the at-risk register and the services that are provided to them than it is to track children who are not on the at-risk register, but who also have problems.
The committee raised concerns that England is much further ahead on the inspection of children's services than Scotland is, although England started the process after we did. The committee heard that that is because Scotland is examining child protection in more detail and more robustly. It was argued that it is only by examining children's services in the round that we can identify failures in connections, but the fact that the Scottish Executive has chosen to focus only on child protection gives the lie to that point.
It is perfectly true that England is ahead of Scotland in relation to children's services but, by the same token, England is looking specifically at child protection services. Indeed, some inspectors from England have been sent up to Scotland to look at what we are doing. There is an interplay; it is not a question of two different approaches. Both England and Scotland recognise that child protection services are central. The question is how best we can focus on the matter within the broader spectrum of children's services.
I appreciate the minister's point, but the issues need to be aired.
When we were presented with the bill and when we first heard evidence on it, particularly from Her Majesty's Inspectorate of Education, we were told that it would allow access to records without consent. However, I detect that the minister is moving towards the use of implied consent. There is an important difference between no consent and implied consent, and it is important to articulate the change to GPs, many of whom do not know of the existence of the bill. I hope that, when they are made aware of the bill, that will be done on the basis of the minister's movement towards adopting implied consent.
The committee recognises that the Scottish Executive has agreed the code of confidentiality—which will bring in the concept of implied consent—with the Scottish general practitioners committee of the BMA. I am not sure how many people read the notices in GPs' surgeries but I suspect that putting the notices up might be more a matter of convenience than a matter of import. The committee received strong evidence from ChildLine, from GPs and from people who work in sexual health advice services about cases in which people want to provide support to their children who are misusing drugs. In such circumstances—for example, in a case in which someone's 17-year-old daughter has used drugs in the past—confidentiality is important to practitioners in the field, and the involvement of the police in joint inspections could throw up a load of issues. The committee made some important points about that.
I am conscious of the time. The public do not know much about the bill—it has not grabbed the headlines—and I fear that GPs do not know much about it either. It would be helpful for information on the progress of the bill and the changes that have developed to be communicated to a wider audience before the bill is considered at stage 2 in January.
I must compress everything that I have to say about the bill into four minutes, so I will try to make every word count.
In my view, the Executive was entirely right to introduce a bill to protect children; the protection of children should be a paramount consideration. However, that does not alter the reality that a balance has to be struck between protecting children and maintaining patient confidentiality. I believe that an appropriate balance can be struck that will meet the test of time, but it will be necessary to seek a number of commitments at stage 2.
First, the minister promised a firm review, but the question is whether the requirement for that review should be in primary legislation in order to give the maximum reassurance to organisations such as the British Medical Association that have serious reservations about the bill. I have already floated the idea of a sunset clause. If I remember correctly, the minister did not say yes or no to that idea. It may be that a sunset clause is not the best way to proceed, but in view of the accelerated procedure that is being undertaken in the interests of child protection, a powerful case can be made for the review being enshrined in the bill.
Secondly, we must address the question whether there should be a duty of confidentiality in the bill. I ask the minister to confirm a point that arises from that. Will the protocols supplement the existing code of guidance, rather than displace it? Also, will appropriate references be incorporated into the primary legislation? The medical profession, in particular, does not want the principle of patient confidentiality to be seriously compromised or eroded and we should be sensitive to the profession's practical needs and concerns. The problem should not be insurmountable.
There is also the question whether a sanction should be applied following a deliberate breach of confidentiality that is contrary not only to best practice but to the code of confidentiality. Clearly, such a breach would be improper. There should be some sanction, such as making such a breach an offence or possibly subject to disciplinary procedures. Otherwise the issue may not be treated with the careful consideration and strict discipline that it merits.
Finally, I have had the good fortune to work for many years with HMIE. I know that the inspectors are extremely able, dedicated and selfless professionals whose interest is the public interest and, in particular, the protection of children. I have no doubt that they would not wish the medical profession to be unnecessarily alarmed and that they would wish their profession to adhere to the highest standards. In a letter of October 2005, the minister gave the
"necessary reassurance that sensitive, personal information will be protected under clear rules of confidentiality by the joint inspection team in full compliance with legal requirements."
On the basis that appropriate safeguards can be incorporated into the legislation during stage 2 of the bill, we will vote for it. I hope that, in return, ministers will show their good faith by considering seriously and sympathetically the concerns that have been raised.
Presiding Officer, I appreciate your co-operation in allowing opening speeches to be slightly longer than is normal in a debate of this length. However, I put on record my concern that a stage 1 debate should be curtailed, as that makes it difficult for members to discuss all the issues that arise. I hope that business managers consider that point, certainly with regard to the length of time that is available to opening speakers.
The bill's passage has been accelerated, so I would like to thank the committee's clerking team for putting together a robust report in the available time. I thank Eugene Windsor and Mark Roberts in particular for their work.
At the start of the process, the committee asked the minister to justify the accelerated timetable. It is justified. Fiona Hyslop mentioned the fundamental importance of child protection. The joint inspections are a clear way of ensuring that child protection procedures in Scotland are robust and that children are properly protected. It is important to bear in mind that the bill does not introduce new policies; the principle of child protection through joint inspections has already been accepted. Indeed, the bill has come about not because of a new policy but because problems were found when the policy was piloted. There were particular problems in identifying whether there was an adequate legal basis for the joint inspections and for their having access to health records. It is important to have on record that we are not rushing this through without prior consultation or discussion; the principle of the bill has been part of public policy for a considerable time. Indeed, the 2004 report "It's everyone's job to make sure I'm alright" highlighted the way forward for that policy. Under my august predecessor, Robert Brown, the Education Committee was certainly strong on ensuring that the issue of joint inspections was taken forward.
It is important to bear in mind that the primary purpose of joint inspections is to ensure that agencies that have a role in child protection have the systems and procedures in place to ensure that children are protected. The purpose is not to usurp or replace the roles of the various inspectorates, such as HMIE, SWIA, the Scottish Commission for the Regulation of Care and Her Majesty's inspectorate of constabulary for Scotland, and the respective services for which they are responsible. Those inspectorates will continue to carry out the inspections of the services for which they are responsible. The primary purpose of the joint inspections is to ensure that we have robust procedures to make sure that children are adequately protected.
The purpose of the sample cases, which much of the debate to do with health records has been about, is not to second-guess the professional judgments of those who dealt with those cases at the time, but to ensure that procedures were in place for health visitors and others in the health service, in social services and in education and were being followed in such a way that children were properly protected.
I welcome the minister's assurances, which he gave us in his opening remarks, in response to the Education Committee's report. The bill is being dealt with in a spirit of co-operation both between the Executive and the Education Committee and among the members of the Education Committee because we all recognise its importance. However, I must stress for the Official Report that that does not mean that we will not adequately scrutinise the bill. Our report shows that, despite the accelerated timetable and our co-operation to ensure that the bill is passed, the committee is not letting up on its important scrutiny role.
I thank the Executive in particular for agreeing to a request from the committee for more time for stages 2 and 3. It was originally proposed that the bill should complete its passage by December, but there is now a little extra time for the important amendment stages.
I want to raise three key points from the report, which other members and the minister have already touched on. The key issues that have arisen that we must address at stage 2 include confidentiality. I welcome the minister's response to the committee's request for a duty of confidentiality on the inspectors to be included in the bill and his comment that there will be a duty on the joint inspectors to follow the protocol. I also welcome the minister's agreement that the protocol will be subject to full parliamentary scrutiny. The Education Committee will have an opportunity to consider and comment on it before it comes into play. Those are extremely important matters.
There is an issue relating to confidentiality that we have still to address and on which the minister must come back to us at stage 2: the position of Her Majesty's inspectorate of constabulary and the role of serving officers in the joint inspection teams, who may have a different common-law responsibility if, for example, a criminal offence is identified in a health record. That is an important issue with respect to confidentiality and health records. Problems might arise if young people do not feel confident about going to their general practitioners with issues to do with sexual health or drugs because their health records could be accessed by joint inspection teams. We must ensure that young people are not discouraged from going to their GP because they are afraid that something that could lead to a criminal prosecution might come to light in a joint inspection. That is an important issue. We must ensure that we have robust answers to such problems in the bill or the protocols.
Secondly, there is the issue of consent. There are no easy answers to the problems that are involved. The bill and the regulations must make it clear that implied consent should be clear and unambiguous. People should not say, "Well, nothing has been said and therefore consent is implied." There must be a clear statement, as there is in the GP contract about access to records for the purposes of audit of GP services, that consent is implied and that records can be examined for this purpose. That is needed in the legislation.
We must also consider how we should address what I think will be the very small number of cases in which somebody, for reasons that are not genuine, wishes to withhold consent, and how the protocol should be dealt with. That is an important issue that is not easy to address.
Paragraph 41 of our report mentions the dichotomy between what the British Medical Association and the Executive want. However, it is important to bear in mind that the Royal College of Paediatrics and Child Health thinks that urgency is needed and that the form of implied consent is important.
I will deal briefly with the final point that I want to raise, as the minister has acceded to it. Whatever processes we put in place for child protection joint inspections, those processes should be reviewed before there are full children's services inspections, which are scheduled for 2008, in order to ensure that the procedures for wider children's services inspections, as opposed to those that are primarily aimed at child protection, are correct.
The Liberal Democrats support the bill and I commend the committee and the ministers for the way in which it has been handled at stage 1.
Back in 2004, the Education Committee reported on progress on "It's everyone's job to make sure I'm alright". At that time, we acknowledged the complexity of the task of multidisciplinary inspections and expressed concern about the length of time that was being taken to develop the inspections and put them into practice. Officials did not then think that there would be a need for legislation. In response to Fiona Hyslop's point about the committee's views, I will quote what the Minister for Education and Young People, Peter Peacock, said to the committee then. He said:
"If we think that there is a need to legislate, then we will legislate. We are not going to let anything get in our way on this issue. We think that we can achieve our aims and do what we need to do by administrative means, but I will not rule out the possibility of legislation if that is what we ultimately conclude is necessary. … if we think that new powers are necessary, we will undoubtedly take them."—[Official Report, Education Committee, 26 May 2004; c 1469-70.]
At that point, the minister showed his willingness to learn from the pilot scheme and to legislate if that turned out to be necessary. Therefore, it is unfair of Fiona Hyslop to say that the committee suggested at that point that legislation was necessary and that the minister ignored our advice.
Fiona Hyslop also referred to the situation in England. We must make it clear that the inspections in England are inspections of children's services, consequent to the Children Act 2004, in respect of their success in meeting the five key outcomes of children being healthy, staying safe, enjoying and achieving, making a positive contribution, and achieving economic well-being. The Office for Standards in Education has said, regarding proportionate inspection in those terms:
"we cannot and nor should we attempt to inspect everything. … One of the key tasks for us in judging where to put our inspection time and activity is to get to the right places".
Ofsted recognises that the inspections in England will be fairly limited. I was pleased to hear from the Deputy Minister for Education and Young People that the inspectors in England are interested in what we are going to do in Scotland. On child protection, we are ahead of our colleagues south of the border.
The committee expressed concern over the length of time that it has taken to get this far. Although we acknowledge the restraints on consultation that were caused by the tight timescale, the committee agrees that the bill should be progressed as soon as possible. We are grateful for the increased time that has been made available for its consideration at stage 2, which will enable us to consider the proposed amendments in more detail.
I was not convinced by the BMA's evidence. Some of it was a little precious and some was contradicted by evidence that we received from paediatricians and others. There is an issue about consent and the genuine concern of individual GPs that their relationships with patients could be compromised. I am glad that the Executive has agreed to look at implied consent, but we must bear in mind the fact that child protection has to override other considerations.
The committee also discussed whether the police should have access to medical records when evidence of an individual's previous offence or an unrelated offence is uncovered and whether that could lead to prosecution. I am pleased that the minister has agreed to consider that.
I was convinced by Jacquie Roberts of the care commission when she pointed out to Ken Macintosh that there are children who are not in the child protection system who need to be. Unless we are able to inspect children's services in the round, we will not find out about such children and whether systems are in place in children's services generally to enable those services to identify effectively the children who are at risk. That is why we need to have sections 1 and 2 in the same bill.
The bill is one of a train of measures that have been put in place after the murder of one of my constituents, Kennedy McFarlane, by her stepfather. Lack of communication between the agencies was identified as a key factor in the failure to prevent that tragedy. I therefore welcome and support the bill as one of the tools to prevent such a tragedy from happening again.
I will concentrate on what is clearly the controversial part of the bill—the access, for inspection purposes, to health records. For the record, I declare that I am a former community paediatrician and that I remain a member of the British Medical Association. I thank the committee for its stage 1 report, although I echo the concern that other members have expressed about the rushed timescale, which has made things difficult for members who are not on the committee.
I fully support the call for a system to evaluate our child protection services not only to be in place but to be working effectively. I agree that health records should be included in the inspections; the challenge is to do that while respecting patient confidentiality and to do it meaningfully. The national health service currently has no inspection system like that which exists for our schools; there is no NHS inspectorate with skills and experience that are similar to those of HMIE. I would not go as far as some health professional bodies, which say that it will have to be a doctor who looks at health records, but I believe that it should be a health professional. My preference would be for that person to be a nurse with child protection experience.
Although I agree that there should be joint inspections of child protection services, I am concerned that the bill grants a blanket permission to inspect all children's services. There is a clear difference. In child protection cases, confidentiality has, in a sense, already been breached for the good reason that that was necessary and in the interests of the child. That has been the normal, expected course of action for some years. Professionals accept it and the public expects it.
However, it is a bit different for other children's services. I agree that the bill tries to address the fact that, for example, children who have special needs receive services from many agencies and that it is essential that those agencies work together. That often means that information must be shared but, at the moment, that is done through consent. Indeed, it is often done in forums such as multidisciplinary meetings in which the parents and the children, if they are mature enough, play a crucial role. I agree that there is a need for some sort of inspection system to ensure that all those services are working together.
Although the issues seem to concentrate on child protection, I make it clear that there is no intention to override consent when we are dealing with children's services.
I thank the minister for that reassurance. I think that explicit consent should be required for the inspection of health records in cases other than child protection cases. I would be happier if the bill were confined to child protection. That is the only point on which I do not agree with the committee's recommendations, because that is what I thought was the original intention of the bill, and that is what the pilot looked at. At the very least, the review that the minister said will take place before the inspection system is extended to other services is important.
There are several details about the bill that I will not have time to talk about. A basic one is the definition of a child. The arbitrary use of the age of 18 does not fit in with other usage. I am not sure that it is acceptable that a 17-year-old's health records can be examined without the person being consulted in advance.
The big issue for me is confidentiality. It is even more of an issue when the child has not been in the child protection system and their records have not been breached for any reason. If confidentiality is to be breached during an inspection, it should be done with explicit consent.
I came to the chamber thinking that I would abstain in the vote because of my concerns. I am a bit more inclined to support the bill now that I have heard the minister's reassurance about a review taking place before inspections are extended to services beyond child protection. I will probably vote for the bill, although I will decide after listening to the minister's summing-up.
I congratulate the Education Committee on producing a succinct report for those of us who are not members of the committee. It accurately summarises the main parts of the bill and, perhaps more important, points out where the main difficulties lie. Like other speakers, I want to address those main difficulties this afternoon,
No one is in any doubt that we want there to be a better system for the inspection of child protection services and wider children's services. For too long we have had to listen to report after report, stretching away back almost 40 years to the tragic deaths of Jasmine Beckford and Maria Cauldwell in the early 1970s, in which the common theme has been a lack of adequate communication and information sharing by the relevant agencies. Some individuals in different parts of different organisations had small pieces of the jigsaw, but they never saw fit to—or were not able to—share those pieces and fit them together to create the whole picture.
If we are examining our children's services, whether they be child protection or wider children's services, we should be able to contact every single agency that has affected a child's life to make sure that they are adequately sharing the information that they should be sharing. That is quite important.
The issue of confidentiality is clearly incredibly important. Nothing will cause people more concern than unauthorised access to records—of whatever description but perhaps to medical records most of all. However, we have to acknowledge who will be looking at the records and their purpose in doing so. It is very important, particularly for those who are not necessarily in the formal child protection system but who should be, that we should be able to examine all the records. They might well tell us how those children slipped through the net. That would help us to protect other children in future.
For that reason, I disagree with the point that Eleanor Scott has just made. It is important that the bill's provisions on the sharing of information should not be restricted to information on children within the child protection system. It is not always easy to define which children are within the child protection system, as some children who are on the margins of the formal child protection system should properly be within the system. If we are to learn how to do things better in future, we need to learn how those youngsters were missed out from inclusion within the formal system.
Does the member accept that issues of confidentiality arise in cases that involve the inspection of the health records of a child on whom information has not previously been shared with other agencies? That is somewhat different from child protection cases, in which the information will already have been shared.
The question should be turned round, as questions of confidentiality always arise. As I recall, when I started out on my social work career 20 years ago, we had interminable debates on confidentiality and on whether information that was confidential to the social work service could be shared. We had exactly the same debate as we are having today.
As Elaine Murray pointed out, the evidence from some—albeit not all—medical practitioners sounded a bit precious, in that they seemed to say that medical information should not be shared but it is okay for the information of other agencies to be shared. We should be very careful about going down that road. If we are serious about providing adequate services for all our children and—more important—adequate child protection services for those children who need them, we must ensure that all agencies that have a part to play in the child protection jigsaw are open to scrutiny so that we can ensure that they are doing exactly what they should be doing.
Although I understand the need for the bill to be passed as speedily as possible, I also acknowledge the fact that many organisations have raised concerns about the extent and adequacy of the consultation on the bill and the speed with which it has been introduced. However, I welcome the minister's assurances that there will be consultation on, and scrutiny of, the protocol on joint inspection.
Confidentiality and consent are major issues of concern, as has been highlighted not only by members today but in the submissions of many organisations. The BMA is concerned that the bill will be detrimental to the doctor-patient relationship. The Royal College of Nursing has echoed those concerns and, as it did not have adequate time to consult its members, has expressed concerns about the truncated consultation process. Not only does the RCN have serious concerns about widening the scope of inspections to other children's services, it believes that introducing such a development at such speed will leave many health professionals who work in the field poorly informed about the changes.
Given that it is our job to ensure that everyone is all right, we need to ensure that those children who are not on the at-risk register are protected too. I fear that the Executive may be complacent in failing to include within the scope of the bill all the services and agencies that provide for young people. For example, as I have mentioned in Education Committee meetings, homelessness teams are crucial to protecting young people. Children who have chaotic lifestyles because their parents misuse alcohol or drugs can be on the round of temporary accommodation in hostels, whereby they require to be housed over and over again by homelessness teams.
Scrutiny of such services is key to ensuring that such young people are provided for adequately so that they do not fall through the net. We need to scrutinise the degree to which dialogue takes place among the social services, the school, the parents and the agencies that support the parents. I believe that big gaps exist, so I would like some answers from the minister because I believe that scrutiny is key to protecting children. For example, if young people are housed in a bad area where they are away from grandparents and need to move school yet again, they are simply being set up to fail. Sometimes nobody knows where those children are. I hope that the minister will examine that issue, as it concerns me greatly.
Another concern is that not all such children will be on an at-risk register. I hope that the minister will also give us some answers on that. I realise that it is not a key part of the joint inspections, but it is an integral part of ensuring that we protect children. I hope that we will do that.
We will support the bill, although we have some concerns, which I have raised. I have many concerns about resources that I do not have time to express. One of my concerns is that, despite inspections, if there are not enough social workers in place and children turn up at children's panels with the duty social worker instead of the social worker who works with them, we will not be doing the job that we need to do.
We tentatively support the general principles of the bill. Everyone has worked hard to get it to this stage. I am glad that the minister is listening, and I hope that we can address some of the issues at stage 2.
I start by saying how much I welcome not only the bill and the Executive's proposals to improve our child protection framework but the open, responsive approach that the minister has taken in order to make the bill work and to get it right in the constrained circumstances that many members have flagged up. To be fair, for the most part the Opposition has adopted a constructive attitude. I am optimistic that together we can support a bill that will give families and the wider community the reassurance that we all seek.
As nearly every speaker has indicated, the most contentious part of the bill is the provisions that relate to the confidentiality of medical records. I, too, will restrict myself in the main to that issue. Both the committee and the Executive agree that a balance needs to be struck between the rights of children to be protected from harm and their rights to privacy in respect of their health. The submission from the BMA was not the only evidence that we received from medical professionals. Elaine Murray pointed to the opinion of paediatricians, in particular, which did not support that of the BMA. That said, several organisations—especially the BMA—believe that the measures in the bill represent a fundamental erosion of the principle of confidentiality between patient and doctor. That is an important concern. In reducing the risk to vulnerable young people, none of us wishes to damage what can be one of the most important relationships in ensuring a child's welfare—their relationship with their GP.
I believe that two points should be borne in mind when we reach a judgment on the issue. First, the principle of confidentiality is not absolute. Doctors are already under an obligation to report to the appropriate authorities concerns about the welfare of children in their care. The powers retrospectively to examine medical records in the context of an inspection programme not only go no further than that existing duty or obligation but are nowhere near as extensive a breach of medical confidentiality. We are not pushing back the boundaries, as has been suggested elsewhere.
Does the member agree that, in the case of child protection, the breach occurs in the child's interests? By the time an inspection takes place, the child concerned may be an adult or outwith the child protection system. The difference is that the breach takes place for the good of the services, rather than for that of the individual.
I am not saying that there are no issues relating to confidentiality. There is a particularly strong argument for incremental changes to be made to the relationship between patient and doctor, which can change. However, given that, under the current system, the patient knows that if they tell their doctor a certain fact, the doctor has a duty to report it, I do not think that the proposals are as devastating as some people have made them out to be.
Secondly, the inspection is not only retrospective but minimal and proportionate to the needs of the inspection team. The Executive has already drawn up a protocol to protect confidentiality in such matters. The Education Committee sought various reassurances and I was pleased to hear the minister's words earlier on a number of those points. The BMA suggests that GPs may feel threatened and we specifically asked the minister to respond to that on the record. He said that the power would not be used to second-guess the decisions of health professionals regarding their patients. On the other hand, if we expect and oblige doctors to share information and good practice and to work across professional boundaries with others in the field of children's services and child protection, it is only right that the inspection regime should buttress that notion of joint working with an effective examination of how it is put into practice.
One point that the BMA made in its evidence that is worthy of consideration by the Executive for inclusion at least in the protocol concerns the opt-out clause to which GPs currently agree as part of their new code of confidentiality. Under the code, patients are advised that their records may be accessed for audit purposes. They then have the ability to opt out—to signal their refusal to allow access for those purposes. I do not believe that a similar measure in the bill would undermine or jeopardise the impact of joint inspections. If it were included in the protocol, its impact could be kept under review.
I hope that none of those concerns obscures the overwhelming support for the principles of the bill that has been evident from nearly every witness or consultee. Joint working between social services, health professionals and others to ensure the welfare of our young people has been with us for some time, but professional barriers are still to be overcome. There is still a culture of retaining information in discrete organisations, which we need to challenge—the bill does exactly that. I hope that it will greatly reduce the number of cases of horrific abuse that we all find so distressing and that shake our confidence in those who should be looking after us.
I urge members to support the bill at stage 1.
It is a joy to follow Ken Macintosh because he is always extremely interesting when he is at his most persuasive.
Many important points have been made today about issues of concern. There is a powerful case for enshrining in legislation a review, not just because the points that have been raised today have illustrated the several complex elements to the bill that could have unforeseen consequences. I appeal to the minister that there should be scope to adjust the protocols in light of the consultations as well as scope to adjust the legislation after a review in due course.
I am still convinced of the need for a duty of confidentiality in the bill, which I hope the minister has accepted, and for the introduction of sanctions for an offence of deliberately breaching confidentiality.
The bill does not appear to contain powers of enforcement for the recommendations that are made by joint inspections although the power to direct is available to the minister through other powers in local government and social work acts. The Education Committee noted that position but considered that there remains a lack of clarity about whether the full range of required powers is available to ministers. It would be helpful if the minister would clarify that situation fully before the roll-out of the programme of joint inspections.
We will certainly give the bill a fair wind, but we look to ministers to make detailed improvements to the bill at the next stage, even if that means that we have to work overtime.
The SNP regrets the need for the Joint Inspection of Children's Services and Inspection of Social Work Services (Scotland) Bill, and regrets particularly that the normal consultation process had to be truncated to ensure that no further delays were encountered in multidisciplinary inspection of child protection services. If, as Elaine Murray said, we are being overly critical of the Executive and its lack of foresight regarding the need for such powers, she can hardly deny that the shortage of time that was made available is far from best practice, as the RCN and others have emphasised in evidence. That said, we accept the need for the bill so that the difficulties that the inspection process faces can be overcome, as the minister described.
We share the Education Committee's concerns that progress towards a complete multidisciplinary inspection of children's services and child protection has been too slow and will be completed only in 2008, some seven years on from the recommendation that was made in the report, "It's everyone's job to make sure I'm alright".
As most speakers have said, the key issues of concern in the bill centre on access to medical health information that is held on file; such access has hitherto been restricted by confidentiality between health professionals and their patients. As other members have said, access and confidentiality issues are not limited to an individual child's case file, which is sampled for inspection purposes. What about information from the health records of relevant third parties such as parents or other adult relatives? What about police involvement in inspection teams and the extent to which confidential information might be passed to them about activities that are not relevant to the child inspection process? As Fiona Hyslop, Iain Smith and others have said, access and confidentiality issues are of concern, so I welcome the minister's assurance that he will give them further thought. I have already mentioned the primary concern that the BMA in particular expressed, which is that the confidential relationship between doctor and patient might be undermined if access is allowed without consent. To address such points, the minister has undertaken today to consider lodging an amendment to the bill that would place a duty of confidentiality on inspectors. I welcome that.
The Education Committee has also asked the minister to consider applying a code of confidentiality similar to that which was negotiated with general practitioners for the purposes of auditing. Patients are made aware that health records can be used for inspection purposes and, unless they specifically say otherwise, their consent is implied. I assume that the draft protocol on which the minister intends to consult will introduce the idea of consent. However, I cannot see how that could be applied retrospectively, because inspectors will be calling as soon as the bill is enacted. Perhaps the minister will reflect on whether transitional arrangements are needed.
I reiterate our desire that the joint inspection process should make quick progress, not just for inspections of specific child protection services, but for wider inspections of children's services. As Scott Barrie, Fiona Hyslop and others have said, those wider services will reveal the extent to which children who are in need of protection are slipping through the net.
Given the importance of getting on with inspections, and given the welcome openness of the minister to the idea of introducing amendments to deal with the key issues of consent and confidentiality, the SNP supports the general principles of the bill.
This is a short but important bill and I am grateful to Parliament, the Education Committee and all parties in the chamber for the helpful and sensitive way in which the issues have been approached, and for members' understanding about the accelerated timetable. As Iain Smith rightly said, the timetable did not prevent the Education Committee from producing a robust report.
As Peter Peacock did earlier, I want to reassure members: we will study the Official Report of today's debate and we will come back to the committee on the issues that we have not picked up on and on the issues that we want to take further. We remain open to any approaches on particular aspects of concern.
The Education Committee's scrutiny of the bill has demonstrated the "overwhelming support", as the committee describes it, for the principle of joint multidisciplinary inspections of services for children. It is important to reiterate, as the committee does, that the purpose and rationale of the process is not to review individual health records but to audit and improve the processes that protect and support children. Elaine Murray and Scott Barrie were right to remind us why the child protection measures are so necessary, in the light of some very nasty cases over the years.
The bill will contribute to ensuring that joint inspections will be robust and that joint inspection teams will be able to report with confidence. Crucially, in the case of child protection services, teams will be able to report with confidence on whether or not services are working together effectively to ensure that children are safe and protected.
Adam Ingram asked about the timescale, which concerns us all. However, it is relevant to point out that the process for inspection arrangements in England will reach an end point at about the same time as ours does, in 2008. The difference is that child protection is the centrepiece for us. I stress that we want our measures to be extremely robust—what counts is not so much the timescale as whether the measures work. I am sure that all members would accept that.
Of course, we want to ensure that implementation of joint inspections proceeds with the full confidence of children, parents, service providers and all those who are interested in effective delivery of public services. We have to consider the difficult balance between the different but equally valid and important priorities of confidentiality and effective inspection. The potential conflict between accessing personal information and the duty of confidentiality between a patient and a health practitioner was rightly noted by the Education Committee.
We have heard various theories about expressed consent. Some representative bodies of health professionals want to ensure that people should operate without obtaining expressed consent only for very specific reasons. In the main, we agree—especially in the context of children's services. Consent is a fundamental principle that should be observed, but there are various forms and levels of consent. That, rather than the principle of consent, is what the debate has been about. Expressed consent is not necessary or desirable in every case.
Is the minister's view that when access to records is sought as part of the inspection of general children's services, best practice would be to seek consent?
Absolutely. A number of members made that point. There is a division that is difficult to define, which is why we got wrapped up in consideration of section 1 of the bill. It is important that we do not lose anything in that context, but the protocol for the inspection of children's services will be that expressed consent will be applied for.
However, different issues apply in child protection situations. Several members made the point that when it comes to professional practice and the inspection regime, child protection considerations override those of confidentiality and consent. I will dwell on that more as I develop my argument. We agree with the inspectorates and others that requiring that expressed consent be sought in child protection situations would be quite wrong. That is why we are proceeding on the basis of implied consent although, as a number of members have pointed out, child protection concerns will override that in some cases. It is not always possible to allow the parent, who might be involved in a variety of difficult situations, to refuse consent on behalf of the child. That is why consent on its own is not the whole story.
The principle of consent needs to be applied sensitively and in line with the purposes of joint inspection, the nature of the children's service that is to be inspected and the age and stage of the child. The draft protocol for joint inspection of child protection services is being redrafted to make that clear. I confirm to Lord James Douglas-Hamilton and others that the protocol will be kept under review in the light of experience and that there will be full consultation of Parliament about important issues as we move forward. The protocol is designed to be readily amendable.
Confidentiality is, however, central to our proposals. It is worth making the point that the bill will in effect widen what has been called the circle of confidentiality, which allows professionals to exchange information and to discuss matters confidentially as appropriate. The committee's suggestion about reinforcing the importance of that by including in the bill a duty of confidentiality is helpful. As Peter Peacock said, we will consider how we can respond to that as effectively as possible.
The committee also reflected concerns about whether a member of the joint inspection team who had been seconded from the police might be compelled to report an offence; some members have taken up that issue today. We recognise that reassurance is required. It may be that the inclusion of the duty of confidentiality in the bill will deal with that, but we will consider whether further measures are required.
A variety of points have been made but, because of time limitations, I will have to cut short my remarks. Eleanor Scott mentioned the age under which we define a person as a child. We could have chosen a number of ages: different ages are used for different purposes, but we chose 18 because doing so puts the bill in line with other legislation, not least the Children (Scotland) Act 1995, and with policy developments on looked-after children.
The committee has asked for a concerted consultation and communication effort to be made. The time that was available for consultation on the bill was shortened, but at the end of the day the bill is about the process rather than the principle of inspection and, as Iain Smith said, there has been wide support for that.
The methodology for joint inspections was launched last November, when many senior officials from a variety of agencies attended workshops that were held across the country and a revised paper on the proposed methodology was issued. The development of the methodology has been a continuing process in which many people have been involved.
The quality indicators that the inspectors used and the pilot joint inspections employed a range of methods to obtain the views of children and young people. That has not been mentioned in the debate, but it is important to us that young people's opinions are sought, so we will continue to develop ways of doing that. From the discussions that I have had with young people, I am conscious of just how important it is to listen to youngsters in such situations and how much value that adds to the process.
The process of parliamentary scrutiny has been welcome. It has endorsed the fact that our policy of joint inspection as part of our wider approach to developing integrated services is absolutely right, and it has usefully highlighted, through proper and helpful recommendations, areas in which we can give reassurance and improve the bill.
We now have a sound basis for moving forward that will benefit all those who are interested in better services for children and, more important, the children who most need our support. That is the central point about the bill; a number of members touched on it in their speeches. I beg members to support the bill.