Chamber and committees

Research from the Royal College of Psychiatrists that was released today has shown that 58 per cent of people in Scotland think that mental health services receive too little of the healthcare budget. By the Scottish Government’s own measure, that 58 per cent are correct, aren’t they? The Government’s commitment that 10 per cent of the overall healthcare budget be spent on mental health is not being met. Currently, just 8.7 per cent is allocated. In cash terms, that means that we are £180 million a year short. Will the First Minister confirm whether that 10 per cent target for mental health spending is still a priority for his Government and, if so, how he personally will ensure that it is met?

I am not persuaded at all by the minister’s point. For example, we, in this Parliament, named the committee the Health, Social Care and Sport Committee for good reason: to reflect the span of the activities that are carried out and to have a particular focus on those interfaces, which are critical to patient safety.

I cite from my casework the recent example of an elderly patient who was subject to delayed discharge from an acute hospital into a social care setting, which jeopardised their safety to the point where, unfortunately, a hospital-acquired infection caused premature death. Such examples highlight an issue of patient safety that pertains to the interface of acute hospitals and social care settings, and it should be clarified in the bill.

The amendment is benign in its intent. The idea behind it is to clarify the definition. As a result, I do not think that it confuses things—it clarifies them.

I will therefore press the amendment, and I hope that members will support it.

It is very disappointing that the minister, having listened to the points that I made to clarify the purpose of amendment 14, is not minded to accept it.

It is clear that allowing only the commissioner to publish information on implementation is insufficient. That has been broadly recognised. I hear the point that the minister has sought to make. I have considered her position, but I do not think that what is currently in the bill is sufficient, and other stakeholders and groups who have communicated with us during the bill’s progress through Parliament agree. That is why I have brought my amendment back at stage 3.

I press amendment 14.

Amendment 13 is in my name. I thank Ms White for indicating that her party will support it.

At stage 2, I was keen to ensure that the work of the commissioner took into account the voices and concerns of groups of people who have perhaps not always been listened to by the healthcare establishment in the way that they should have been.

As I highlighted at stage 2, the evidence that the committee heard at stage 1 about the valproate and mesh patient safety issues that disproportionately affected women was particularly striking. Dr Arun Chopra of the Mental Welfare Commission for Scotland gave evidence suggesting that despite marginalised groups being predominantly affected by patient safety events, people from groups or communities including ethnic minorities are not well represented in patient safety data.

I am grateful to the minister for offering to work with me on amendment 13 to address those concerns at stage 3. The amendment reflects that collaborative work and would, in order to redress that clear imbalance, require the commissioner to give

“particular consideration to groups whose needs are, in the Commissioner’s opinion, under-represented or given insufficient weight in discourses around health care”

when consulting on formulation of the principles that are to inform how the commissioner carries out their functions, and the strategic plan that sets the course and focus of the commissioner’s work.

I am pleased to close the debate on the Patient Safety Commissioner for Scotland Bill on behalf of Scottish Labour. During the Health, Social Care and Sport Committee’s evidence on the bill, colleagues and I heard accounts of where patient safety had failed—quite egregiously in some cases, including in the cases of women who were impacted by transvaginal mesh and hormone pregnancy tests. Such cases dent public confidence in critical healthcare services, and the establishment of a patient safety commissioner is, therefore, an essential opportunity to ensure that people have a champion when patient safety has failed and who seeks to prevent further failure in the system.

Some of the more high-profile cases of patient safety failings disproportionately impact women, and I am therefore grateful to the minister for working with me to bring back my stage 2 amendment to ensure that underrepresented voices are consulted on the development of the commissioner’s principles, strategic plan and charter.

However, I am disappointed that the Government has chosen not to support my other amendments, particularly amendment 14, which would have given the commissioner the power to make a special report in line with the powers of the Scottish Public Services Ombudsman. That was a critical juncture in the legislative process and the Government has been found wanting. I thought that the member for Eastwood in particular spoke powerfully on that point. We should be giving the commissioner the ultimate power of recourse to highlight where implementation has not taken place or is not being taken seriously. We need to think carefully about the commissioner’s capacity to exercise their power appropriately.

We have heard, powerfully, through the convener of the Citizen Participation and Public Petitions Committee, how critical the patient voice was through that committee. That voice should not be stymied when a commissioner is able to undertake such investigations. I hope that the minister will give some comfort to those who are concerned by that lack of support for amendment 14. Patient safety groups were clear to me that there must be accountability, and opposing amendment 14 is a missed opportunity to empower the commissioner with an escalation route.

I understand that the minister had concerns about my stage 2 amendments that sought to give the commissioner the power to compel private medical providers to share information and to clarify the remit on social care. I took those amendments away and worked on the drafting to address the minister’s concerns, which led me to lodge amendments 15 and 19. I am disappointed that her position has not changed in that regard.

I pay tribute to my colleagues on the Health, Social Care and Sport Committee, the clerks, and the legislation team for its constructive and collaborative approach throughout in helping to try to get the bill in the best place possible to serve the people of our country.

My colleague the member for Dumbarton, in particular, has spoken very powerfully to her amendments today, which sought to reset the balance between public bodies and bereaved families, particularly in memory of Milly Main, who died after contracting an infection at the Queen Elizabeth university hospital in Glasgow while recovering from leukaemia.

Although Government support for some of those amendments is welcome and will go some way toward giving bereaved families such as Milly’s a voice when patient safety is not upheld, it is, indeed, regrettable that the Government was not able to fully support all those amendments to give full effect to a Milly’s law. That remains unfinished business, sadly. We will continue to advocate persistently to fully address the intent of Milly’s law in this Parliament.

Labour supports the legislation. We have sought to engage constructively with the Government throughout the legislative process to strengthen the power of the commissioner through our amendments, although we note the important point that a number of members made in the debate this afternoon about the general planning of this Parliament with regard to the scope and remit of commissioners in the round.

Although Labour is supportive of the establishment of a patient safety commissioner, it is regrettable that the minister has not supported some of our key proposals to improve the bill. However, we will continue in our efforts to ensure that bereaved families are never an afterthought in the medical establishment.

Amendment 19 seeks to include social care services in the definition of healthcare under section 21.

When I lodged a similar amendment at stage 2, I made it clear that it would not widen the commissioner’s remit to include social care in its entirety but would instead enable the commissioner to consider social care in their investigations only when those services intersect with the elements of healthcare that fall within the commissioner’s remit.

The minister could not support my amendment at stage 2. Instead, she confirmed on the record that there is nothing in the bill that would prevent the commissioner from dealing with healthcare provided in a social care context. I welcomed that clarification and withdrew my amendment. However, on reflection and having consulted with stakeholders, I think it important, for the avoidance of any doubt, that the clarification be in the bill.

As the minister previously suggested that my earlier amendment might cause doubt as to whether the bill’s reference to healthcare included healthcare provided in contexts other than social care, I have worked on this amendment to address her validly raised concerns. In the light of that effort, I would welcome the Government’s support in clarifying the remit of the commissioner in the bill.

I move amendment 19.

Amendment 14 would give the commissioner the power to create a special report in the event that it appears that recommendations that were made in the initial formal investigation report

“have not been, or will not be, implemented”.

A special report would be sent to the persons or organisations to which the formal investigation report was sent in the first instance, and a copy would be laid before the Scottish Parliament. Furthermore, the report could be made public, if the commissioner considered that to be appropriate.

Bodies cannot be left to mark their own homework on patient safety. There must be an option to escalate matters if recommendations are dismissed or ignored. That seems to be obvious to me and to other members in the chamber. All that we need to do is listen to people with experience. Marie Lyon, from the Association for Children Damaged by Hormone Pregnancy Tests, told the Health, Social Care and Sport Committee that

“Up to now ... people have tended to get away with it. There has never been accountability and there have never been consequences.”—[Official Report, Health, Social Care and Sport Committee, 7 February 2023; c 22.]

At stage 2, the minister suggested that the amendment that was lodged then was superfluous, because the bill as drafted allows for the commissioner to publish information on implementation. However, I argue that publication of information and production of a special report are two different things.

Amendment 14 is not a radical amendment. It seeks to bring the powers of the patient safety commissioner broadly into line with those of the Scottish Public Services Ombudsman, who, under section 16 of the Scottish Public Services Ombudsman Act 2002, can lay a special report before Parliament if, following the making of a formal report,

“it appears to the Ombudsman that the injustice or hardship has not been, or will not be, remedied”.

At stage 2, the minister also cited her concern that the commissioner could be at risk of defamation claims, should a special report be created about recommendations that they believed would not be implemented. However, the language of amendment 14 is in line with that of the 2002 act.

Furthermore, I note that section 18 of the bill includes a number of protections from defamation actions. It states that

“any statement in the Commissioner’s report on an investigation has absolute privilege,”

and that

“any other statement made by the Commissioner has qualified privilege.”

In committee evidence, patient safety groups were absolutely clear that there must be accountability and the option to escalate. In moving amendment 14, I urge all members, including the minister, to support it, please, in order to give the commissioner the necessary teeth and capacity to ensure that recommendations are implemented.

I move amendment 14.

Amendment 15 seeks a solution to the lack of clarity in section 12 around whether the powers of the commissioner to compel persons or healthcare providers to provide information will also apply to private companies. At stage 2, I lodged a similar amendment, which the minister was not able to support because of concerns about the broader regulation of medicines and medical devices being a reserved matter, despite agreeing with me that manufacturers and suppliers of such items should be included. With the minister’s concerns in mind, I lodged a revised amendment, which would allow the Scottish ministers to add people to or modify the description of people on the list of those from whom the commissioner can require information under section 12.

Further, the proposed section 12(3C) in amendment 15 expressly draws attention to providers of medicine or medical devices in the text. That would allow the Scottish Government time to consider how best, within devolved competence, to include manufacturers and suppliers in the remit of the commissioner’s information compelling powers.

Labour members will support Ms Mochan’s amendment 6, which seeks to add the professional regulator and the Health and Safety Executive to the list of bodies that the commissioner can compel to share information. I can also confirm that Labour will support the technical changes that are set out in amendments 5 and 8, in the minister’s name.

I hope that the revisions made to amendment 15 provide the minister with ample assurance about devolved competence, and I would welcome the support of the Government and members across the chamber for the amendment.

I move amendment 15.

Although Labour is minded to support the Government’s amendments in the group, it is disappointing that the Government is not minded to reciprocate on what I think are very reasonable, rational and logical adjustments to the bill that would make it clear and provide reassurance to a number of stakeholders who are deeply concerned about the potential for their genuinely held sense of injustice to be addressed.

Members of the Health, Social Care and Sport Committee, and those members of the Citizen Participation and Public Petitions Committee who are in the chamber, will be alive to those concerns, certainly in the case of mesh implants. The very nature of the concerning complaint is about the manufacture and testing of the product by the manufacturer. Therefore, putting that in the bill would provide great reassurance to those individuals who are affected that there will be capacity to look at that.

Although the minister seems to have stood back from her points about devolved competence and has provided some degree of reassurance that there will be scope to draw in individual organisations during the course of investigations when the primary focus of them will pertain to manufacturers, in the instance of mesh manufacture, for example, it seems obvious and logical to have that in the bill. Similarly, where there are clear interfaces with regulatory bodies, such as the General Medical Council, to have that stated explicitly in the bill would be reasonable.

I press amendment 15.

Gillian Mackay was right to mention how crucial visits are to rehabilitation and wellbeing, but it is also crucial that that support network continues when prisoners approach release.

The Dick Stewart Service, in Glasgow, has provided support and accommodation to male ex-offenders and their families for more than 20 years, but it is set to close in December due to council cuts. I know that the cabinet secretary believes in the importance of community-based support and rehabilitation, so will she personally commit to exploring all available options to prevent the closure of the Dick Stewart Service in Glasgow?