Health and Sport Committee

Meeting date: Tuesday, October 29, 2019

Official Report 653KB pdf

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Subordinate Legislation

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Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Amendment Order 2019 [Draft]

Good morning, and welcome to the 24th meeting in 2019 of the Health and Sport Committee. We have received apologies from Sandra White: I know that the thoughts of all colleagues are with her.

I ask everyone in the room to ensure that their mobile phones are switched off or to silent mode, and that they are not used to photograph or record proceedings.

The first item on the agenda is subordinate legislation—consideration of an instrument that is subject to affirmative procedure. As is usual with such instruments, we will first hear from the relevant minister and his officials, following which we will have a formal debate.

With apologies for the slight delay in starting the meeting, I welcome to the committee Joe FitzPatrick, the Minister for Public Health, Sport and Wellbeing. He is accompanied by Claire Montgomery from the legal directorate; Lynne Nicol, who is the head of openness and learning at the Scottish Government; and David Leslie, who is a policy manager in the openness and learning unit at the Scottish Government. I invite the minister to make a brief opening statement.

Thank you, convener. I am pleased to join the committee to discuss the draft Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Amendment Order 2019.

Providing care with safety, compassion and dignity should daily be central to every health and social care interaction that happens throughout Scotland. However, there are rare occasions on which those who provide care betray that position of trust.

Part 3 of the Health (Tobacco, Nicotine etc and Care) (Scotland) Act 2016 contains provisions to allow the criminal justice system to hold individuals and organisations to account when they are responsible for serious and deliberate neglect or ill treatment in the course of providing health and social care services.

It is important to understand that those offences are not about pursuing organisations or individuals when mistakes are made. The offences are designed to deal with situations in which someone has intentionally set out to neglect or mistreat a person or persons in their care.

There are two main offences in the 2016 act: an offence that applies to care workers, as set out in section 26, and an offence that applies to care providers, as set out in section 27. The offences are intended to provide a penalty for the worst types of behaviours, such as those of the individuals who were convicted for abuse at Winterbourne View care home in Gloucestershire, where vulnerable residents were subjected to cruel and callous behaviour by staff who were supposed to be caring for them.

It is important that there is access to justice for victims when a care worker has wilfully neglected or ill treated people. It is also important that the disclosure regime contains sufficient protections, so that people who have a legitimate interest—such as potential employers in the health and social care sector—can access the information that they need in order to understand the background of a care worker who has been convicted of something serious.

The 2016 act made amendments to the state disclosure regime under the Police Act 1997, which mmeans that a spent conviction for ill treatment or wilful neglect by a care worker must be disclosed on a higher-level disclosure certificate that is issued by Disclosure Scotland, unless a sheriff orders otherwise.

The draft instrument will make changes to the self-disclosure regime to provide an added layer of security. Its main effect will be that when a person is required to disclose their spent convictions in applying for certain trusted positions or roles—work as a medical practitioner or work in provision of a care service—they must divulge that they have a spent conviction for ill treatment or wilful neglect, under section 26 of the 2016 act. That will be the case unless they have applied successfully to a sheriff for the spent conviction to be taken off their higher-level disclosure certificate.

The draft order will also have the effect of ensuring, when no such successful application has been made, that it is permissible to dismiss or exclude a person from certain trusted offices, professions, occupations and employment because of their spent conviction for the offence, or their failure to disclose it. That means, for example, that when a person is applying for a position of trust in a health or social care organisation, the organisation will have access to information that it needs from the applicant in order to decide whether it would be appropriate to employ them, and it will be able to take that information into account.

I consider that the instrument strikes a balance between protecting the public from risk from people who might reoffend and allowing people who have made mistakes in the past to be rehabilitated and to make a contribution to society.

I am happy to answer the committee’s questions.

Thank you very much, minister. It would be fair to summarise what you as being that the impact and purpose of the instrument is to make the law consistent across the board.

That is a fair summary.

Members have no questions for the minister or his officials, so we move on to the debate on the instrument on which we have just heard from the minister. The debate is a different stage. The minister will not answer questions, but will move the motion and, no doubt, sum up as appropriate at the end. Officials may not take part; this is simply an opportunity for the committee to consider and approve, or otherwise, the instrument.

Motion moved,

That the Health and Sport Committee recommends that the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Amendment Order 2019 [draft] be approved.—[Joe FitzPatrick]

As committee members have no comments, I ask the minister whether he wishes to add any final comments.

The words that I would use to summarise are the ones that you used, convener. The instrument is about consistency.

Thank you. I am glad that we are consistent.

Motion agreed to.

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National Health Service (Serious Shortage Protocols) (Miscellaneous Amendments) (Scotland) Regulations 2019 (SSI 2019/284)

The next agenda item is consideration of an instrument that is subject to negative procedure. No motion to annul has been lodged and the Delegated Powers and Law Reform Committee has not made any comments on the regulations. However, when we considered the regulations previously, we raised a question with the Government, to which we have now received a response. Do members wish to comment on that?

I raised the issue of bioequivalence and the definition that we are going to use. The Cabinet Secretary for Health and Sport’s letter has reassured me, as she states that we are using the European Medicines Agency’s definition in allowing drugs to be replaced.

I have concerns about bioequivalence because, in my previous work as a nurse, I had concerns about medicines such as anti-seizure meds, anti-psychotics and biological medicines such as Humira. I am satisfied that the cabinet secretary has given an appropriate response.

As members have no more comments, does the committee agree to make no recommendation on the instrument?

Members indicated agreement.

I suspend the meeting briefly.

09:57 Meeting suspended.  

10:02 On resuming—