Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill

Overview

The Bill would mean health boards must provide forensic medical services. These services are for victims of sexual offences.

It would mean health boards will have to offer a self-referral service for victims. The Bill will make this process clear for victims and to health boards.

This lets any person self-refer without first having to report an incident to the police. Any evidence collected is stored while the person decides if they want to report the incident to the police.

If the person decides not to report the incident, they can ask to destroy the stored evidence. If they decide to report the incident Police Scotland will keep the evidence.

If the incident is not reported after a set time the evidence will be destroyed. It's still possible to report an incident after this time but no forensic medical evidence will be available.

Police Scotland already refer victims to health boards for forensic medical examinations. This Bill will also put that practice into law.

This Bill also applies to people who are the victims of harmful sexual behaviour by children under the age of criminal responsibility.

You can find out more in the Explanatory Notes document that explains the Bill.

Why the Bill was created

The Scottish Government believes that victims of sexual offences should have access to forensic medical services.

It’s important so that:

organisations providing the service know what is expected of them
people using the service know what they are entitled to

The Scottish Government expects that the Bill will improve services by making the responsibilities of health boards clear. It will also support working between health boards and the police.

The Bill will let victims refer themselves to their health board for an examination. They will not have to go to the police first. This gives them time to decide if they want to report an incident without losing any evidence needed.

The Bill supports recovery health services for anyone in Scotland who has experienced:

rape
sexual assault
child sexual abuse

You can find out more in the Policy Memorandum document that explains the Bill.

The Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill became an Act on 20 January 2021

Bill is at Introduced stage.

Introduced (26 November 2019)

Bill is at Stage 1 stage.

Stage 1 (1 October 2020)

Bill is at Stage 2 stage.

Stage 2 (10 November 2020)

Bill is at Stage 3 stage.

Stage 3 (10 December 2020)

Bill is at Act stage.

Act

Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill as introduced

Related information from the Scottish Government on the Bill

Why the Bill is being proposed (Policy Memorandum)

Policy Memorandum Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill Policy Memorandum Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill

Explanation of the Bill (Explanatory Notes)

Explanatory Notes Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill Explanatory Notes Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill

How much the Bill is likely to cost (Financial Memorandum)

Financial Memorandum Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill Financial Memorandum Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill

Opinions on whether the Parliament has the power to make the law (Statements on Legislative Competence)

Statements on Legislative Competence Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill Statements on Legislative Competence Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill

Information on the powers the Bill gives the Scottish Government and others (Delegated Powers Memorandum)

Delegated Powers Memorandum Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill Delegated Powers Memorandum Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill

Scottish Parliament research on the Bill

Have your say

The deadline for sharing your views on this Bill has passed. Read the views that were given.

Committees involved in this Bill

Lead committee: Health and Sport Committee

Delegated Powers and Law Reform Committee

Who examined the Bill

Each Bill is examined by a 'lead committee'. This is the committee that has the subject of the Bill in its remit.

It looks at everything to do with the Bill.

Other committees may look at certain parts of the Bill if it covers subjects they deal with.

Who spoke to the lead committee about the Bill

First meeting transcript

The Convener (Lewis Macdonald)

Welcome to the seventh meeting in 2020 of the Health and Sport Committee. We have received apologies from Miles Briggs. I ask everyone to ensure that mobile phones are off or in silent mode, and not to use them for recording proceedings or for photography.

The first item on the agenda is a panel evidence session on the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill at stage 1. We have received apologies from the chief medical officer, who is unable to attend because she is required at Cabinet. I look forward to hearing from the witnesses on her behalf and in relation to the bill. The evidence will give us an opportunity to hear about the work of the task force for the improvement of services for adults and children who have experienced rape and sexual assault, and to hear about the bill’s provisions.

The CMO is unable to be with us because of the coronavirus. The committee will not discuss the virus today, but we recognise that it is of central importance to us, to Parliament and to our constituents, and it is a matter to which we will return.

I welcome Dr Edward Doyle, who is a senior medical adviser in paediatrics; Greig Walker, who is the bill team leader; Tansy Main, who is unit head of the CMO’s rape and sexual assault task force; and Katy Richards, who is a solicitor from the legal directorate of the Scottish Government. Tansy Main will make an opening statement.

Tansy Main (Scottish Government)

I am the head of the unit within the CMO directorate of the Scottish Government that has responsibility for the CMO’s rape and sexual assault task force and for the Forensic Medical Services (Victims of Sexual Offences) Scotland Bill.

I will not cover the bill itself, but Greig Walker will be happy to answer any questions about the bill process and about what the bill’s provisions do. I will provide a brief overview of the strategic context for the work and will then briefly highlight some of the task force’s key achievements to date.

I understand that you met survivors last week. The CMO and I have also met survivors and have heard similar, if not identical, accounts. Their experiences were distressing and, frankly, unacceptable. Indeed, it was feedback about the quality and consistency of the services that they received that prompted Her Majesty’s Inspectorate of Constabulary in Scotland to undertake a strategic review.

The inspectorate’s report, which was published in March 2017, highlighted significant gaps and disparities across Scotland and made 10 recommendations to improve those. In April 2017, the CMO was asked by the then Cabinet Secretary for Health and Sport and the then Cabinet Secretary for Justice to chair a task force to provide national leadership for improvement of those services. The task force vision is for consistent person-centred and trauma-informed services across Scotland. Our ambition is to ensure that the shortcomings of the past are not repeated. The chief executive of Rape Crisis Scotland makes an important contribution to that work and helps to ensure that the voice of lived experience is always front and centre of everything that we do.

In order to deliver against the HMICS recommendations under the remit of the task force, the CMO published in October 2017 a five-year high-level work plan. That set out actions to be taken across a range of issues between now and the end of 2022. The Scottish Government has committed £8.5 million to support that ambitious programme of work.

In December 2018, HMICS published a progress review that recognised the joint strategic leadership across health and justice but highlighted that challenges remained. At the time of that review, the CMO commented that the work of the task force was at a tipping point. Considerable progress has been made since then.

We know that having access to a female doctor is important for anyone who requires a forensic medical examination following a rape or sexual assault. Improving that was an early priority for the task force. Funding has been provided to NHS Education Scotland since 2017 to provide specific training for doctors, with the aim of increasing the number of women available to undertake the work. The training has also been adapted to allow participation by nurses who are involved in providing trauma-informed care for victims of rape and sexual assault.

So far, 118 doctors, 70 per cent of whom are female, and 68 nurses, 97 per cent of whom are female, have been trained. A further 10 doctors and 21 nurses were due to attend the NES training today, but NES decided late last week to postpone that due to the Covid-19 situation. That training will be rearranged as soon as it is practical to do so.

Baseline workforce data indicates that, now, 61 per cent of sexual offence examiners in Scotland are female. That is an increase of around 30 per cent on the indicative figure in the HMICS report, but we are not complacent. The availability of a female sexual offence examiner is the first quality indicator underpinning the Healthcare Improvement Scotland standards and the work to continuously improve that remains a top priority for the task force and for health boards.

Task force funding has also been provided to recruit more forensically trained nurses to be present throughout an examination and to help to ensure that an individual receives appropriate follow-up healthcare and support. In addition, the task force is supporting a new initiative to develop the role of nurse sexual offence examiner in Scotland. That was a key recommendation in the HMICS report.

09:45

Funding is being provided to train a cohort of community pharmacists to look for indicators of rape or sexual assault and to provide a trauma-informed response to any disclosure. We have also begun work with the Scottish Courts and Tribunals Service to pilot sexual offence examiners giving evidence remotely in rape and sexual assault cases.

Another key HMICS recommendation was that dedicated healthcare facilities should be established across Scotland. Task force funding is being invested in each of the 14 territorial health boards to develop their sexual assault response co-ordination service, in line with a national service specification. Funding is also being provided to develop regional centres of expertise to support those locally delivered services.

All examinations that were previously carried out in a police station are now carried out in an appropriate healthcare setting, and funding has been provided to ensure that all health boards that require a colposcope are able to purchase one. In addition, the fact that a national decontamination protocol has been published and is being implemented by health boards addresses another HMICS recommendation.

A package of resources has been developed to ensure a consistent national approach to the recording, collation and reporting of data in relation to these services. That package includes the final Healthcare Improvement Scotland quality indicators that underpin the standards that were published in 2017, as well as a new national form to consistently capture information that is obtained during a healthcare assessment and forensic medical examination. That form has been agreed by all key partners to ensure that it meets the respective needs of the healthcare and criminal justice systems. The package also includes national data sets to monitor health boards’ performance against the quality indicators as they progress through their improvement journey; the first national clinical pathway for adults who present following rape or sexual assault; and a summary clinical pathway for wider healthcare professionals who might be the first to respond to a disclosure of rape or sexual assault.

You will appreciate that we want to ensure that all health boards are appropriately supported to understand how those resources knit together and what their role is in ensuring a successful nationwide roll-out. As such, my team held roadshows in NHS Shetland and NHS Orkney just last week, and four more were scheduled for the remaining health boards over the course of this week and next to explain what the change in practice means for them.

However, in light of the current Covid-19 situation, we are mindful of the unprecedented pressure on the national health service to prioritise its response to the pandemic, so we are considering when it would be appropriate to ask chief executives to implement the new measures. The cabinet secretary will write to the convener about that as soon as the position has been clarified. In the meantime, we can provide copies of all relevant documents, if that would be helpful.

As we announced in the policy memorandum for the bill, a new sub-group of the task force has been established to develop detailed protocols for health boards on the provisions of the bill as they relate to self-referral. The sub-group’s work is already well under way.

The task force is now halfway through its five-year plan. Although we still have much more to do, the impact that we are having is tangible, and the bill will be an important anchor that will underpin everything that we plan to achieve.

We would be happy to answer any questions that members might have.

The Convener

Thank you; that was helpful.

The recommendation was made that what was sought was a victim-centred and trauma-informed way of working. I hear what you say about the provision of more female examiners and the carrying out of examinations on health board premises, which are obviously important, but over the piece, how do you think that the work of the task force is contributing to the aim of having a victim-centred and trauma-informed approach?

Tansy Main

As I said, we have a lot more to do, but we have come a long way. Prior to the existence of the task force, health boards in many areas already delivered such services under the memorandum of understanding, but in many places they were delivered in a police station, and many staff were not trained in trauma-informed care. Colposcopes were not always available.

In the work that we have done over the past few years, our first priority was to ensure that we moved services to an appropriate healthcare setting. I mentioned the national specification document that has been published; it sets out the requirement for age-appropriate person-centred surroundings. Although the procedures take place in a healthcare setting, the emphasis is on ensuring that the setting is as homely and person centred as possible in order to minimise the feeling that it is a clinical environment.

As you will appreciate, the suite for the forensic examination is understandably clinical to an extent, because it has to be decontaminated, but the other rooms and spaces in the suites are being designed to ensure that the environment is as comfortable and supportive as possible for people.

The other key aspect is to ensure that there is a multi-agency approach to the setting. Health colleagues have been working closely with Police Scotland, local rape crisis centres and other key partners to develop that multi-agency approach so that a survivor can have their forensic medical examination, meet their rape crisis advocacy worker and give their recorded interview to the police in the same setting. They can also shower and get fresh and clean clothes—little things that we know from feedback from survivors are really important. Things such as having a cup of tea and something to eat and some time and space to talk to someone before they leave all help to make a big difference.

Health boards are at different stages in that regard but, overall, we have made considerable progress. One of the chief medical officer’s first asks of the chief executives was to ensure that all doctors who are involved in providing the care have undertaken the NES training, which was specifically designed around the principles of the trauma training framework. The majority of the doctors and nurses who are involved in providing the care have done that training, which will make a big difference to the person-centred care that is provided.

The Convener

It is clear from what you have said that the views of and feedback from survivors are informing the work of the task force. Is there a formal read-through from the survivors of rape and sexual assault?

Tansy Main

Sandy Brindley, who is the chief executive of Rape Crisis Scotland, is a key member of the task force. We have a survivor reference group, and she has kindly taken a number of issues to survivors in order to talk to them about the task force’s work and to get their views and opinions. A recent example concerns the generic name for services in Scotland. You might be aware that, in England, services are called sexual assault referral centres—SARCs. We thought long and hard about what would be an appropriate name in Scotland and, based on feedback from survivors, the agreed name is now sexual assault response co-ordination services, with the emphasis on the response and the co-ordinated, multi-agency aspect of the service that we are trying to provide. We also sought survivors’ views on the service specification that I mentioned, which describes the creation of that person-centred environment.

In addition to that formal channel to engage with survivors, Catherine Calderwood has met survivors directly, as I have, and their stories and experiences, which have been invaluable, are our touchstone that we always come back to. In my early days in my post, I met a survivor who had had an appalling experience. She very bravely spoke about that and explained that the process that she was involved with was not person centred or trauma informed at all. We keep coming back to such stories and thinking about how what we are doing will make a difference for people so that those things are not repeated.

Sandra White (Glasgow Kelvin) (SNP)

You talked about healthcare settings, but the evidence that we have received suggests that the actual practice does not match what you said is available to people. We have been told about people having to sit in police cars or offices and being unable to change clothes, get a drink of water or even go to the toilet, and all of that is recent. How many of the healthcare settings that you talked about are in place, with the on-going support that you mentioned? Is there a timescale for them? When are they likely to be in place and providing services to survivors?

Tansy Main

We work closely with all 14 territorial health boards. Each board has a dedicated nominated lead whom we liaise with directly, and we also work closely with chief executives.

I will summarise the position by region. In the north region, prior to the creation of the task force, there were no on-island adult services for forensic medical examination. That is no longer the case, because there is a dedicated healthcare suite in the new hospital in Orkney and there is a dedicated suite in Shetland. The Western Isles service was in a general practice surgery but has now moved into a hospital setting, for which we supplied some funding. NHS Grampian has dedicated healthcare facilities in the Aberdeen community health and care village, which were there before the task force was established. We have provided funding to NHS Tayside to move its suite out of a police station and into NHS premises.

In the south-east, there are dedicated new facilities in NHS Fife and NHS Forth Valley. They were previously located in a police station, but we provided funding to ensure that they were moved into an appropriate healthcare setting. In NHS Lothian, there is a suite in the Astley Ainslie hospital in Edinburgh and another suite in the civic centre in Livingston, which is a multi-agency centre with a dedicated healthcare suite. We recently provided some funding to make improvements there as well. In Edinburgh, we are providing a significant amount of funding for a new regional centre of expertise that will, hopefully, open in the summer. NHS Borders is progressing work for its local facility. Unfortunately, we had word recently that it has had to pause that because it needs the space for patients with Covid-19, which is the priority.

In the west, NHS Greater Glasgow and Clyde has its service at Archway, which is a healthcare facility. We have also provided funding for a new regional centre of expertise in Glasgow that will increase capacity and will be a multi-agency facility with more space so that police can also do their interviews and so on there. I visited the new NHS Lanarkshire suite just a couple of weeks ago and I believe that it is due to open at the end of April. NHS Ayrshire and Arran has a lovely new suite in Prestwick in a dedicated NHS facility, which I visited. The NHS Dumfries and Galloway facility was in a police station, but we provided funding to create a new suite in the Mountainhall treatment centre, which has been open since last June, with locally trained staff providing the service.

I do not know the timescales regarding the experiences of the people Sandra White heard from, but certainly no examinations should take place in a police station any more.

Sandra White

Thank you.

The Convener

Can you tell us what the process of evaluation will be when the task force has completed its work?

Tansy Main

Yes. As I said, we are working very closely at the moment with health board chief executives and we get quarterly returns from each board for performance against HIS standards. Going forward, the package of resources that I mentioned in the opening statement will ensure that data on health board performance against the quality indicators is collected and reported against. Those reports will be published and will be publicly available.

We are also looking to establish a managed clinical network for the services. MCNs exist for children’s and young people’s services just now, but we want to create one that brings together the adult and sexual abuse element of the child MCN so that we have an overarching body to oversee how services develop, monitor performance against indicators and identify where improvement might be needed. We are working with Healthcare Improvement Scotland to develop that quality assurance process to ensure that issues that arise can be dealt with appropriately. We envisage that that would also be part of the health board annual appraisal process and so on.

The Convener

Thank you.

Alex Cole-Hamilton (Edinburgh Western) (LD)

Good morning, panel. We appreciate your being here today.

The “Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill: child rights and welfare impact assessment” states:

“The Scottish Government considers that the best approach is to align the Bill with the general age of legal capacity (16) and the ‘age of consent’”.

That means restricting self-referrals to those who are 16 or over. Obviously, rape is the antithesis of consent and there is no connection there. Why was it felt that the age of 16 is appropriate? In particular, if a child or young person aged 13 or 14 who has the mental capacity to understand self-referral is raped by a family member, it might be very difficult for them to find somebody to come with them to report that rape, given that they might be in quite a coercive family relationship to begin with. Will you explain your thinking there?

10:00

Tansy Main

I ask Greig Walker to cover that point from the perspective of the bill.

Greig Walker (Scottish Government)

Another relevant factor is that 16 is the age that is applied at the existing self-referral services—the Archway facility in Glasgow and the facility in Tayside.

I will ask Dr Doyle to comment on the paediatric clinical element, the children and young people expert group and the work that he is doing on the future children’s pathway. However, it is right to recognise that a range of evidence has been submitted to the committee. Some stakeholders have asked whether the minimum age for accessing self-referral could be lower, although there is no guarantee that anyone who is above the age will always be able to access it. With evidence coming from the National Society for the Prevention of Cruelty to Children and Social Work Scotland, there are also those who are asking whether there is a case for upping the age. It will be interesting for the Government to see the committee’s assessment of that in due course.

The child rights and welfare impact assessment, which Alex Cole-Hamilton mentioned, is where we have set out in the most detail the rationale for the age of 16. Following the 2019 consultation, the key pieces of legislation to be considered seemed to be the Sexual Offences (Scotland) Act 2009 and the Age of Legal Capacity (Scotland) Act 1991. It is also relevant that the mental health and incapacity legislation, including the Adult Support and Protection (Scotland) Act 2007, defines an adult as someone who is 16 or over. That is all the subject of a live review by John Scott QC, of course, and we do not want to pre-empt that.

It is important to focus on section 3 of the bill, which refers to professional judgment. I am not sure that that point has been fully understood by everyone who has read the bill. The reference to professional judgment is there because we recognise that there will be very difficult cases and that clinicians and paediatricians are well placed to work through those. In many ways, the bill does not give rise to new issues, because young people in those difficult situations will be phoning Rape Crisis Scotland, accessing community pharmacies or going to genito-urinary medicine services.

Alex Cole-Hamilton

Before you continue, I have a supplementary question. I am sure that Dr Doyle will have a view on this, as well. I understand all that and I am not saying that I have a problem with it. We are all quite new to this landscape, but many of the acts and thresholds that you mention are about rights and responsibilities and the choices that children make, whereas this is about a service that they can receive. In the current set-up—and the future set-up, if the age remains at 16—what happens if a 15-year-old presents at the Archway? Are they turned away if they have just been raped?

Greig Walker

No. Everyone already has the right to access healthcare under the National Health Service (Scotland) Act) 1978. As I think we may have said in the policy memorandum, no one will be turned away. If people cannot access self-referral for one reason or another, rather than our disempowering them by saying, “We’re calling the police, whatever you think”, best practice is for their situation to be explained to them.

We now have the rape crisis advocacy project and the trauma-informed workforce. Ideally, young people who are under the cut-off age and vulnerable adults will be put in a situation where they understand their position under the child protection reporting guidance and so on and are empowered to make the decision themselves. Giving people access to healthcare is the function of the bill, as I am sure Tansy Main will agree.

Another relevant factor is that it is quite rare for a young person to access a forensic medical examination, because child sexual abuse is generally disclosed quite some time outside the seven-day forensic window. We have tried in the bill to accommodate a situation where someone seeks forensics but it is not relevant to them. Section 4 has a focus on healthcare needs, which are an absolute priority even if no FME goes ahead. I note again that section 3 is about professional judgment. We are offering legal clarity and underpinning the task force and the health boards, but we do not want to overlegislate and be inflexible.

New voices have come into the debate since the 2019 consultation closed, so it will be interesting to see the committee’s assessment. Will there be different options for the bill? The cut-off at 16 could in theory be left to professional judgment, as is the case in relation to vulnerable adults, or a different cut-off age could be introduced. It is interesting that some of the written evidence suggests that the age should be kept at 16 for now and changed in the future. Perhaps a delegated power would be an option in that regard.

As I said, I will be interested to see what the committee makes of that. I believe that you have a panel of children’s stakeholders coming up.

The Convener

We do indeed.

Dr Edward Doyle (Scottish Government)

There is no intention that anyone who needs healthcare will be turned away. A strong view came through in the work that we did—

Alex Cole-Hamilton

I am sorry to interrupt, but I want to clarify my question, because it is important to get this right. I accept that and I do not expect that anyone who needs healthcare would be turned away. I am really talking about somebody who wants access to justice—someone against whom a crime has been committed, who does not have anyone to support them and does not want to go straight to the police. That is the issue that I am talking about, rather than healthcare.

Edward Doyle

The provision there would be for the professional who sees the young person to make an assessment of risk and vulnerability and, either with the young person’s consent or potentially without it, to involve other agencies and invoke the mechanism that we call an interagency referral discussion. That is the key decision point in child protection procedures. The legal situation is that child protection procedures apply to children and young people up to the age of 16. A child or young person who was in that situation would clearly receive healthcare, but the input would not be limited to that. There would be an assessment of risk and vulnerability.

To widen that out a bit, I note that that would always be the situation with other forms of abuse—physical abuse as well as sexual abuse, emotional abuse and neglect. This is core business for many of the professionals that we are talking about. In this case, the detail would be restricted to child sexual abuse, but the concepts are well understood and widely practised, and the responsibilities, as well as being part of the legal framework in Scotland, are embedded in professional responsibilities with the regulatory bodies.

The Convener

How have you sought to ensure that the bill reflects the principles of the barnahus model, which is used in Iceland?

Greig Walker

The aim is that the bill should be barnahus-ready, but barnahus is about much more than forensic medical examination and sexual abuse. The Scottish Parliament information centre briefing acknowledges that it does not necessarily involve having FME done on the premises—in some international barnahus models, it takes place in a separate hospital. It remains to be seen where Scotland is going with that.

I cannot remember it off the top of my head, but there is definitely a stakeholder organisation—it is possibly the Scottish Children’s Reporter Administration—that sees the bill as a step towards barnahus, while other stakeholders are unsure. This is not a barnahus bill, but we want to be barnahus-ready. That is very much in the spirit that my colleague talked about. Although the bill legislates for health boards to deliver the legal clarity and underpinning that Her Majesty’s Inspectorate of Constabulary in Scotland is looking for, it is intended to work in a multi-agency context where the police and social care have their due roles, the third sector has its role and everything comes together under the national performance framework, which is the glue that binds it all together.

Tansy Main

The service specification that I mentioned refers to the fact that services should be designed to ensure that there is an age-appropriate environment. We have been clear that our facilities that are used by adults, children and young people need to be designed with the principles of barnahus in mind. That approach is about creating a child-centred environment that is appropriate for the age group. Some health boards have their FME facilities for all ages in one place, where there is the space to do that. In other health boards, child examinations will happen in a paediatric environment unit, which is existing practice. However, it is absolutely the case that the services have been designed with barnahus in mind.

Emma Harper (South Scotland) (SNP)

Good morning, everybody. I am interested in issues around the sex of the examiner. Tansy Main talked about the need to develop more female forensic medical examiners, and the SPICe briefing mentions that the policy memorandum proposes a nurse sexual offence examiner project so that it would not just be general practitioners who do examinations.

When I visited the Mountainhall centre in Dumfries last Friday, Wendy Copeland, who does a fantastic job, told me a lot about the plan to have a women-led service. It would be interesting to hear more about the proposals to widen access so that we have more women examiners.

Tansy Main

Is your question specifically about nurses or doctors, or is it about both?

Emma Harper

It is about doctors as well. Chaperones are female, and I heard last week that even men who are raped and assaulted choose female examiners. People might not be aware of that.

Tansy Main

In my opening statement, I touched on the work that we have been doing to increase the number of female doctors. As I said, our statistics show a 30 per cent increase since the HMICS report was published. However, it is still not 100 per cent. We recognise that there is a long way to go and we are working hard with health boards to continuously improve that.

We have had feedback on the NES training in relation to remote evidence to courts from female examiners, and particularly GPs who work in the north of Scotland. If they are called to the High Court to give evidence in a trial but they have childcare responsibilities and a clinic to run, that can disincentivise them from being involved in such work, so we are looking at facilitating remote evidence-giving in order to retain the female doctors that we have.

The key to ensuring that people who want a female examiner can have one is the nurse examiner model. That is not new. Sexual offence nurse examiners have existed in England for almost 20 years and they regularly undertake examinations and give evidence in court if they are required to do so. Since the HMICS report, we have done a lot of work to develop detailed proposals on how we can adopt that model in Scotland. We have approval from ministers and the Lord Advocate to undertake a test of change, and we are recruiting this month for two nurse examiners to do that work.

In England, in order to qualify as a nurse examiner, nurses have to undertake a postgraduate qualification in advanced forensic practice for a year, and they have to do a period of on-the-job shadowing before they fly solo. The nurses that we will recruit to the test of change will have the levels of qualifications, experience and knowledge that are required for the role. At present, only a couple of nurses in Scotland have the qualification, because only Staffordshire University in England offers the course.

In parallel with the test of change, which I will come back to in a moment, we are working with Queen Margaret University to create a new postgraduate qualification in Scotland so that the workforce here can access the training. That course is due to start in September this year and the Government is providing funding for 10 places. Priority will be given to boards in rural and island areas, where it is particularly challenging to have female examiners.

We hope that the test of change will start around June, and it will be hosted at the Archway service in NHS Greater Glasgow and Clyde. We have worked closely with the Crown Office and Police Scotland around that to ensure that they have in place the safeguards and reassurances that they require so that there is no risk to the criminal justice process. We are also working with Rape Crisis Scotland, which will be involved in the evaluation and in getting feedback from survivors on the impact of nurse examiners.

We see the model as being key to creating a multidisciplinary workforce. It will never be the case that it will comprise only nurses or only doctors. We want to increase the pool of people who are available.

A majority of the nurses who are interested in this work are female, which is understandable. There is a lot of appetite from health boards to send nurses for the training, and they are keen to do it. I hope that, when the test of change concludes, the first couple of cohorts will have come through the postgraduate qualification at Queen Margaret University and we will be ready to commence the work. We hope that that will be the landscape for the future.

Yes. The NES training happens in Scotland and has been adapted, so that it is portable and can be delivered in remote and rural locations.

The Queen Margaret University training is specifically for sexual offence nurse examiners. There is a year-long training programme to get that qualification, which is not currently available in Scotland but will be available.

Sandra White

That was my point. If we are pushing for the training, it is important to make the point that it has not previously been available in Scotland.

Tansy Main

Nurse examiner training was not available, but it will be.

Sandra White

We touched on healthcare needs. We heard lots from the witnesses who talked to us in private about their needs and the psychological trauma that they had gone through. Even 10 years later, if they were going for a particular examination, it brought it all back. People had had no support whatever.

You talked a lot about healthcare needs and the terminology in that respect. I have two quick questions—well, they might be quick, depending on how people want to answer them. What does “health care needs” as set out in the bill mean? Will there be guidance on that? Is it anticipated that the two big issues of mental health needs and psychological support will be included under the healthcare needs umbrella?

Tansy Main

Let me give a brief answer and then pass the question to Dr Doyle, who chairs the clinical pathways sub-group for the task force.

The clinical pathway that has been developed is very much about a holistic healthcare response. Forensic medical examination, which, as we know from feedback from survivors, can be the most traumatic part for people, is actually a small part of the services that should be provided. There should be wraparound care involving an assessment of people’s psychological and emotional wellbeing, their safeguarding needs and what referrals they may need to other services, such as mental health services or Rape Crisis Scotland services.

Through the task force, the chief medical officer has asked the board chief executives to ensure that they have nurse co-ordinators in place. That may be the same nurse who attends the examination, but in some boards it will be a different role. In some places, the role is embedded in the gender-based violence service or sexual health service. That person’s role is to ensure that, after the forensic medical examination, the victim is not left to navigate their own way round the health system, and that they are supported to access the on-going care and support that they need. As I said, some health boards already have that approach in place and others are working towards it. That will make a big difference by ensuring that people have a single point of contact for support as they progress on their recovery journey.

Dr Doyle

We use the term “health care needs” as a broad umbrella term. For example, the situation might start with managing an acute injury, such as control of haemorrhage, and then we would have the actual forensic examination. In the clinical pathway, we have tried to give practitioners a structure to work through. As well as dealing with acute injuries and forensic examination, they are prompted to think about things such as emergency contraception, vaccination for hepatitis B and HIV prophylaxis—there is guidance in the pathway about that. Practitioners are also asked to think about whether the person should be referred to sexual health services and, in the medium term, they might think about drug and alcohol services.

We are also mindful of the need for on-going mental health support in its widest sense. That might not be psychiatry; it might be psychology or counselling. We have done quite a lot of work on how that would look for people after the acute episode, including for children and young people. We are working on some tests of change in the west to inform further developments in that regard. The expert group on children and young people has done an awful lot of work on how we provide consistent and high-quality therapeutic support for young victims across the piece in Scotland. We are mindful of that issue.

With any affirmative instrument, the committee will ask us what consultation we have done. We are actively thinking about that.

Tansy Main

The fact that Sandy Brindley, who is the chief executive of Rape Crisis Scotland, is a key member of the task force’s self-referral sub-group will ensure that survivors’ voices are heard in all our deliberations. Sandy also chairs a group that sits underneath the sub-group, which is looking at how survivors access services. We are very much seeking to ensure that survivors’ voices are front and centre in those deliberations.

10:30

The Convener

Emma Harper has a supplementary question.

Emma Harper

When you mention evidence being retained for two years, are you talking about physical evidence such as DNA? Other types of evidence, such as photographic evidence, could last for ever. Does the two-year period relate specifically to physical evidence such as DNA?

Greig Walker

I clarify that that is not Government policy. I was simply pointing out what is in the UK Faculty of Forensic & Legal Medicine guidance. At present, however, that is not fully adhered to across the UK.

The bill proposes that victims will have control of all types of evidence that are provided by them, including samples, clothing and colposcope images. If they instruct deletion, the evidence will be gone. If they instruct its transfer to the police, it will be seized by the police and become a criminal production. However, the bill recognises that, in addition to the retention period, the nature of what is retained will be open to clinical judgment and subject to what the victim consents to, depending on what they think is best for them. Again, the self-referral sub-group is actively thinking about that.

David Stewart (Highlands and Islands) (Lab)

Last week, as the panel will know, we met 10 women survivors, and among the key issues that came up were lack of support and the need for independent advocacy. Was consideration given to those in development of the bill?

Greig Walker

In the policy memorandum, we reference the Rape Crisis Scotland advocacy project. Perhaps you will hear from Sandy Brindley later about how the situation feels to Rape Crisis Scotland, but we would not want Parliament to overlegislate and say that other bodies should do this or that, because the advocacy project already exists and is working quite well. It could have a particularly important role to play in relation to self-referral, which will be a new proposition in most parts of Scotland and is perhaps not in many victims’ minds at present. Tansy Main might have something to add.

Tansy Main

I do not have a great deal to add. The funding for the Rape Crisis Scotland national advocacy project comes through our equality and violence against women and girls colleagues. The Government is committed to the project and to ensuring that people can access those advocacy services.

David Stewart

I understand the point about not overlegislating. However, I think that, in the harrowing meeting that we had last week, we were all struck by how nightmarishly horrible the women’s experiences were, and I am sure that that is replicated throughout Scotland for other victims. There is clearly demand for advocacy services within rape and sexual abuse services, including in the Highlands, in my region. I am not convinced that I would use the word “overlegislating” in relation to the bill. I believe that there is a huge gap here and that such services are vital. Is anything being done at this late stage to change that?

Greig Walker

That is ultimately a matter for the committee. In relation to what the bill does to dovetail with advocacy services, I note that section 4, which is essentially on victims’ rights, says that people must be given information ahead of the examination. I understand that you heard last week that it was not made clear to victims what was going on, why things were being taken or what would happen next. Section 4(2)(b) says that information must be explained, which could be done by the health board’s trauma-informed workforce, working in partnership with others.

Do we need changes and improvements to examinations, to ensure that people are truly able to give informed consent?

Greig Walker

I would say that that is current best practice and is what is being delivered on the ground.

David Stewart

Thank you.

The Convener

Just before we move on, in response to a question from Brian Whittle about retention, Greig Walker referred to the victim of a sexual offence having control over the evidence. Is the implication of what you said that, once evidence was passed to the police, witnesses did not have control over it?

Greig Walker

The bill legislates for health board responsibilities. It legislates for the interfaces in police referral cases, where a constable brings a victim to a facility. That is the usual model in Scotland, and a sexual offence liaison officer handles the matter; police processes have improved a lot. The bill also picks up on the point that the constable takes the evidence away.

The wider justice process is legislated for separately. Parliament recently passed the Scottish Biometrics Commissioner Bill, which is part of the mix of the law that applies on the criminal justice side. As Katy Richards said, we recognise the important role of the Victims and Witnesses (Scotland) Act 2014, which is partially applied to the bill, where relevant. The Patient Rights (Scotland) Act 2011 is the most relevant rights act in relation to healthcare and is fully applied, including the wording about trauma-informed provision of healthcare. The victims code for Scotland under the 2014 act applies fully to victims after they have made a police report. There is also the appropriate adult service.

A number of reforms have been made to put in place measures for victims once they are in the justice system, but the bill has to accommodate the possibility that the victim chooses never to go there.

The Convener

David Torrance (Kirkcaldy) (SNP)

What consideration was given to including a provision in the bill to require monitoring and reporting by health boards?

Greig Walker

I imagine that you are aware that the Law Society of Scotland raised that point.

The package of resources that Tansy Main mentioned in her opening remarks would include consistent national data collection, to allow for modelling assumptions to be replaced with real data, to make it much easier to plan.

An assessment must always be made about what a bill needs to cover and need not cover. There is much good stuff in the task force’s work that we felt was adequately covered. For example, we did not feel that the arrangements on the national form, quality assurance and how the information is collated and reported back needed to be statutory. I imagine that the committee will take its own view on that.

David Torrance

How will data collection on forensic medical examinations drive improvement in the service?

Tansy Main

As I said in my opening remarks, the package of resources includes a national form, to ensure that information is recorded consistently. Each health board will provide data to the Information Services Division, to demonstrate its performance against the Healthcare Improvement Scotland quality indicators. That information will be used as part of a quality assurance process that we are developing with HIS, to ensure that the improvement of services is always under consideration, through, for example, the health board annual appraisal process and the managed clinical network that I mentioned.

Brian Whittle

I want to consider the areas that are not in the bill. The memorandum of understanding between Police Scotland and health boards covers more than forensic medical services for victims of sexual assault and rape. Police Scotland pointed out that the wider provision of forensic medical examinations continues to remain outside the legal framework in the bill.

In its submission, the NSPCC said that the examination of children and young people who are alleged to have been involved in sexual assault and abuse is not included in the bill, although

“many children suspected of perpetrating sexual offences are subject to forensic examination in police custody.”

The NSPCC went on to say that it would support the bill’s provisions being extended to cover the forensic examination of all children, on a statutory basis, and to cover the provision of therapeutic interventions.

How will the arrangements in the MOU that are not in the bill be continued? Will the MOU be revised in light of the bill?

Greig Walker

I will answer the points that I can answer and ask Dr Doyle to talk about the paediatric practice element.

Forensic services is a wide concept, and Scotland has very little legislation on forensics. Even if we narrow it down to forensic medical services, we are still looking at a wide concept, including toxicology, dentistry and all sorts of things. In the 2019 consultation, we asked whether there was a consensus on the need for legislation to deliver the clarity and scope that HMICS was looking for.

Ninety-one per cent of responses endorsed the consultation proposals, which were focused on addressing the HMICS report and the sorts of issue that you have heard about from survivors. I suppose that we made the assessment that we could make relatively quick progress on specific legislation, in the context of the MOU remaining in place for everything else.

It is fair to put on record that the NSPCC and Children 1st also made that point last year. We recognise that. We take the view that, whether someone accesses FME under the bill or under the MOU, there will be no second-tier service. There could be situations in which an FME is accessed on both bases. We have the trauma-informed workforce, the Patient Rights (Scotland) Act 2011 and so on.

In essence, FME for children is rare, because of when things are reported. In the rare instances in which FME is needed in the context of non-sexual child abuse, the basis for that is the MOU; I will ask Dr Doyle to explain how, in essence, the practice is the same.

Dr Doyle

There is very little difference in practical terms between a paediatric forensic examination for suspected sexual abuse and one for abuse. Such examinations tend to be done by the same people, in the same facility.

The bill was not created in a vacuum. There have been standards, guidance and training in paediatric forensic examination for a long time. We have had the three managed clinical networks for child protection in Scotland for some years now; they set standards, gather data and report through their own governance structures.

The fact that non-sexual abuse is not legislated for in the bill will not be detrimental to the service for children and young people in the context of other forms of abuse.

Greig Walker

The barnahus concept encompasses all forms of child abuse. The bill would not limit the approach to FMEs for sex crimes.

Brian Whittle

Has consideration been given to including in the bill children who are alleged to have perpetrated sexual abuse, or do such children sit outside the approach?

Greig Walker

In its report, HMICS made a recommendation about child suspects that was directed to Police Scotland and health boards. The issue is currently being considered through a police care network, so we did not see a need to address it in the bill. However, I understand that the Age of Criminal Responsibility (Scotland) Act 2019 will be the legal basis for alleged perpetrators under the age of 12 providing samples.

Tansy Main

The police care network has been developing standards for the examination of children and young people under the age of 12 who are suspected of sexual crime. The HMICS recommendation was that that does not happen in a police setting, because the suspect is still a child, albeit that they are suspected of a crime. The draft standards that are being considered will embed the principle that an IRD will always take place to determine the most appropriate place for the examination to happen and that that should be a healthcare facility, where at all possible. Protocols will need to be in place between the health board and the police, to ensure that a suspect is not in the same location as the victim at the same time—they must be dealt with separately. The principle of a child who requires an examination being in a healthcare setting rather than a justice environment is very much at the centre of the approach.

The Convener

You referred to an IRD; will you spell that out for us?

Tansy Main

Sorry. It was mentioned earlier; it stands for interagency referral discussion.

The Convener

Serious sexual assault and severe forms of child sexual abuse are sometimes associated with socioeconomic disadvantage. Are the work of the task force and the bill designed to make it easier for victims in such circumstances and those who live in the poorest areas to come forward and seek support?

Greig Walker

We published a number of impact assessments with the bill, including a full fairer Scotland duty assessment, which you can read.

We recognise that there are socioeconomic and other equalities dynamics. The bill talks about people—that is modern drafting practice and you will also see it in the clinical pathways. Everyone is entitled to the same service, but how the boards offer the service from a position of equity is something that they will think about through implementation that is co-ordinated through the task force.

Impact assessments are being done not just for the bill but for the package of supporting documentation that Tansy Main mentioned

Tansy Main

The task force undertook an options appraisal in 2018 to look at the model and configuration of services in Scotland. It was a rigorous process, which involved all our key stakeholders. The preferred model is very much one in which services are delivered as closely as possible to the point of need. That is why we have been developing local services in each of the 14 territorial health boards. Some boards have more than one local service, and there is support from the regional centre.

It is important that people do not have too far to travel to access the service. That is why we focused on there being a local service as far as possible.

The Convener

I thank the bill team and all the witnesses who have given evidence this morning. I am sure that we will talk about these matters again. If witnesses think that it would be helpful to provide further points of information arising from our questions this morning, feel free to do so.

I suspend the meeting for a few minutes, to allow for our round-table evidence session to be set up.

11:01 Meeting suspended.

11:12 On resuming—

The Convener

We resume with our next evidence session as part of our scrutiny of the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill at stage 1. We are joined by Sandy Brindley, who is the chief executive of Rape Crisis Scotland; Anne Robertson Brown, who is the vice-chair of Angus violence against women partnership; Gwen Harrison, who is manager of Rape and Sexual Abuse Service Highland; and Jen Stewart, who is centre manager of the Rape and Sexual Abuse Centre Perth and Kinross.

This round-table session will involve members of the committee asking for your views, opinions and experience, but it is more informal than the session that we have just had with the Government witnesses, which you might have watched. Feel free to ask us questions if you think that that will help the dialogue. Do not feel that you have to answer every question—just come in when you have something that you want to add. We are a little spread out, but that is appropriate in the circumstances.

I have a question for any of the witnesses that relates to the discussion that we have had today and informally in the powerful and moving evidence session that we had last week. Which aspects of the examination service are most important for those who have been victims of rape and sexual abuse?

Sandy Brindley (Rape Crisis Scotland)

The feedback that we have from survivors is that the most important issue is access to a female doctor. The lack of access to a female doctor is what causes the most trauma.

Another significant issue, which came up at the closed session that we had with survivors last week, is delay. We cannot overstate how much distress is caused by having to wait hours or even days for a forensic examination after being raped or sexually assaulted, which means that victims cannot wash. That can cause huge distress for people. Those are the two key issues.

There are also broader and more general issues. There is a lack of trauma-informed practice. At the closed session last week, one survivor spoke about how the male doctor who examined her did not say a word during the examination. That is clearly not trauma-informed practice. That is a cultural issue, but it is also about how medical staff who are involved in examinations are trained.

11:15

Jen Stewart (Rape and Sexual Abuse Centre Perth and Kinross)

I reiterate that the issue of access to a female examiner has come up consistently, as has communication. That comes under the heading of trauma-informed practice. It is important that examiners are clear about what they are doing, when they are doing it and why. Survivors have told us what a difference that makes.

A non-judgmental approach is vital. In Tayside, we have SARN—the sexual assault referral network—which supports survivors and connects them with a rape crisis worker from the beginning. They are met by the worker and a nurse. Follow-up support work has also made a significant difference.

Gwen Harrison (Rape and Sexual Abuse Service Highland)

Survivors also tell us that people should be able to pause the process to get the information that they need and take stock before they decide how to proceed. People tell us that that would make a huge difference.

In Highland, there are big concerns about travel and how people access services. We have had instances of people being transferred from one police car to another because it is time for a change of shift, or because they are going from one area to another. That can be retraumatising, as part of that journey.

Anne Robertson Brown (Angus Violence Against Women Partnership)

I echo what has been said. Our area is semi-rural, so we have issues with travel, too.

We asked specialist agencies to hold focus groups before we responded. One key idea that came through was about victims being given back some control and being able to pause so that they can say when, how and how fast the process goes ahead.

The Convener

One thing that shocked me in the session that we had last week—because I was not aware of it—was the situation in which somebody who wanted to report a rape on a Sunday night found that the service was so much poorer than it would have been on a Monday morning. Is it important for victims for there to be an out-of-hours or 24/7 service?

Sandy Brindley

Absolutely. No matter when somebody is raped or when they choose to access health or forensic services, they should be able to access the service when they need it. It should not be a two-tier service in which someone who is raped out of hours or at the weekend has to wait overnight, without washing, in the clothes that they were raped in. It is inhumane to expect that of people in those circumstances. The services should be resourced 24 hours a day.

It is different if the offence is historical and there is no immediate need for a forensic examination or for a health response, but if somebody has just been raped they should not wait days for an examination.

Alex Cole-Hamilton

It is great to see you all here. I reiterate our thanks for the services that you provide. The testimony that we heard last week will stay with me forever.

One thing that struck me in the stories that we heard was that there is sometimes a lack of consent in rape examinations. One example that stuck with me was about a situation in which there was a female healthcare professional, but she said, “We’ll just do your smear test now.” She did not ask; she just did it. That seemed horrifying. I would like to think that that is the exception rather than the rule, but can you give us an understanding of that?

Jen Stewart

Particularly in the past two years, the feedback on the forensic medical examiners has been very positive. Survivors in our area have fed back that, in their experience, things have been explained and the process has been more trauma informed. Many experiences have been shared with us where that has not been the case, but we have definitely seen progress at local level.

Sandy Brindley

We are seeing progress nationally, too. We have a feedback protocol when we get referrals from Police Scotland. Through the national helpline, we ask people questions, which they can choose to answer, about their experience of the police and the forensic process. That means that we get quick and on-the-ground feedback about what is happening. It is fair to say that, over the past six months in particular, the feedback has started to improve. We are starting to see the impact of the work of the CMO’s task force on those issues, which is definitely being reflected in the better feedback that is coming through from survivors who are in contact with us.

However, delays, which cause a lot of distress, continue to come up. The two issues that still come up in the feedback that we get are delays and the lack of female examiners.

The Convener

Is there anything in addition to those two points that you would like to see in guidance to health boards on examinations?

Sandy Brindley

The point about links to advocacy services was well made earlier. Rape Crisis Scotland runs a national advocacy service in partnership with all our local rape crisis centres. The feedback from survivors is that it is a life-saving service, but there are real issues with capacity and funding. Some of our advocacy services have to operate waiting lists, which is not acceptable for services of that nature. We need to consider how to properly fund the health response as well as the services that should go alongside it.

On the issue of resourcing the health response, we should not look only at the number of additional cases through self-referral; we are asking the health service to transform its response to rape and to survivors of rape. Doing that properly will require a significant injection of resources above that which is required for the number of self-referral cases.

For me, the bill has two key functions. One is self-referral and the other, which is just as important, is about making it clear that the health service has a responsibility to respond to the needs of rape survivors. That has not necessarily happened to date, because it has been focused on the old model of provision of the actual forensic examinations rather than the wraparound care. If we are to get the services to a stage where they are not an embarrassment to us as a country, significant investment will be required.

David Stewart

The issue of advocacy has been highlighted. I agree with the points that have been made and echo that the meeting that we had last week was harrowing; the 10 women who came along were extremely brave.

I was certainly struck by the need for independent advocacy. Sandy Brindley was in the room earlier when I raised that point with the bill team. I still feel that the bill should be clearer about advocacy services. It is not enough that they are there; my sense is that they are still patchy and are probably underfunded across the country. Survivors or victims need to know about those services, and clearer emphasis in the bill would help in that regard.

The committee and individual members have a role in relation to amendments, so I would be grateful for the other panellists’ views on that. I gave Gwen Harrison’s service an advert earlier, so I ask her to respond.

Gwen Harrison

That highlights some of the capacity issues that we have in Highland, especially as a lot of forensic exams will be carried out more locally. If we have two advocacy workers in Highland, it will be really challenging to ensure that they can go to Fort William, Skye or Wick. We expect that the need for our service and for independent advocacy will go up. We are predicting that we will really struggle to continue to deliver the level of service that we provide at the moment.

Sandy Brindley

Advocacy support should be a core part of the clinical pathway that is being put in place and that lies underneath the provisions in the draft legislation. For that to work, it needs to be resourced properly.

Anne Robertson Brown

I echo some of the things that my colleagues have said. Support and advocacy must be part of the core pathway, but we also need equity across the country. For example, we need to consider issues of travel, rurality and low population density. We face a postcode lottery in the services that women access.

We also need to be mindful that rape can often happen within a relationship. Coercive control presents barriers to women coming forward, including concerns about what will be done with evidence and who will have access to it.

I go back to my point that women should have control over how they report, who they report to and when they go into a police investigation, but we should capture the forensic evidence so that it is there for when they are at that point.

Emma Harper

As an MSP for a rural area, I am interested in how we protect confidentiality in such areas. If we are establishing a standardised approach across health boards, somebody in Stranraer could go to Ayr rather than to Dumfries, for instance. Should there be a process whereby people can self-refer to a place of their choice, rather than being directed to a place within their NHS board catchment area?

Sandy Brindley

Yes, absolutely. Also, somebody might live in one area, but the incident might have taken place in a different area. In my view, where they access the service should be determined by their need and wishes, rather than by what health board area they live in.

Emma Harper is absolutely right to raise anonymity as an issue. Gwen Harrison might be able to say more about that. For example, there were particular issues on Shetland and Orkney before they finally moved to delivering the service locally there, because people were having to travel to the mainland for examinations. People in the community said that, if somebody was getting on a boat or a plane accompanied by police officers, everyone on the island knew that something terrible had happened to them. If that is not a deterrent to reporting rape, I do not know what is.

We need locally delivered services. People should not be travelling significant distances, say from Campbeltown to Glasgow, in the back of a police car. That is unacceptable, so I hope that those days are over as a result of the advent of more locally delivered services. At the same time, people should have some choice about where to go for self-referral. It should be what is comfortable and convenient for them while protecting their anonymity.

Jen Stewart

I echo the point about the challenges due to the geography of our country. If there is an incident in Kinloch Rannoch and the person has to get to Dundee, there are significant problems in supporting access to services. We definitely have a long way to go.

The Convener

So local delivery is important.

Jen Stewart

Yes.

Anne Robertson Brown

I echo what Jen Stewart said.

Angus is part of NHS Tayside, but we are finding that many services are located in Dundee, and that there is a movement back almost to the old regional approach. For women living up in the glens of Angus or rural parts of Perth and Kinross, public transport is horrific, never mind everything else, and everyone knows everyone. So I echo concerns about confidentiality, and I am keen for discussions to take place on what could be offered to protect women’s confidentiality, because violence against women knows no boundaries—it happens right across society.

Sandy Brindley

Access to public transport is an important point when it comes to self-referral. With non self-referral, the person is often taken in a police car to where the examination is carried out, whereas, for self-referral, people generally make their own way there, unless they are being supported by, for example, one of our advocacy workers. That is why locally based services that still protect people’s confidentiality are important. Somebody should not have to travel on three buses followed by a long walk to get to a service of that nature. Such services must be locally based.

Sandra White

That was an interesting aspect of the topic; I am sure that the committee will discuss it afterwards.

I want to take you back a wee bit, to training for examiners. The evidence that we heard from survivors was horrific. We have just questioned the civil servants, who gave good answers about the bill, and we were absolutely told that there were female doctors. However, one of the horrific things experienced by the survivors who spoke to the committee was when there were no female doctors, and the male doctors had no empathy, were very dismissive and did not speak or anything.

11:30

They are now looking at training, wellbeing and that type of thing. Does the panel consider that the health boards will have appropriate guidance? That is why I was asking about legislation and guidance—I will certainly look up what is in the bill. Funding is also important, to ensure that there is a well resourced and trained workforce and that people do not have the sort of experience that happened before. Is there enough in the bill to ensure that the examiners will have guidance, that they will adhere to the guidance, and that they will be well resourced and trained?

Gwen Harrison

We have been discussing the need to make sure that, as we move towards more trauma-informed training, people are implementing the training and working in that way. We do not want the training to become a tick-box exercise that people complete without then working in that manner.

A whole team of new forensic nurses started in NHS Highland a few months back and we were asked to train them on the kind of trauma-informed care that we do from day to day. They found that quite powerful, because our training made the approach real. There may be a need for that sort of training, as well as the guidance.

Anne Robertson Brown

I echo some of Gwen Harrison’s points. I would love it if in Scotland we stopped talking about trauma-informed care and moved towards trauma-responsive care. We should be delivering trauma-responsive services at the point of need.

There absolutely must be training for the NHS. Why are we not making use of the expertise on the ground? You said that the committee had heard from survivors. They are the experts with the lived experience. How do we get the golden thread of that lived experience pulled through the training? My suggestion is to involve the specialist agencies on the ground in either writing or delivering the training.

Sandy Brindley

The Scottish Parliament information centre briefing refers to a woman who went through the forensic service and, very bravely, took the time to make an audio recording of what was most difficult about the experience for her. We have used that in training forensic service doctors and staff. It is important to make sure that the people who are delivering the services hear directly from survivors about what was difficult and what made things a bit easier, which includes things that people might not even think of.

In the podcast that I am referring to, the survivor talks about how distressing it was to go into the forensics room and see that it was obviously also used for child examinations, because there was a mobile hanging from the ceiling above the examination bed. Trauma-informed or trauma-responsive practice means thinking about the bigger things, but also the smaller things that could be really upsetting to somebody at such a time. That includes making sure that the physical environment is appropriate.

Although it is starting to change, a lot of feedback that we have previously had included a sense that care was not given to people’s wellbeing. Somebody might be there for quite a time without being offered a drink or anything to eat. That is not how to get the best evidence from somebody, for a start, but it also conveys a lack of care. In those circumstances, people need a sense that somebody is looking after their wellbeing.

Some of those are broader issues. The bill is one part of a wider package of work, particularly around the clinical pathways and the specification of the services that will be set up across the country. We should be asking not only what the bill can achieve, but what else needs to be put in place and how we can make sure that once it is in place, the work continues and is funded and delivered properly.

Sandra White

Thank you. That raises other questions. I think that Gwen Harrison asked how we will know that the work will continue. We will have to look at the evidence, as people have said, which will mean asking the women and men who go through the service whether it is satisfactory. That type of thing should be put in the guidance. We need to consider that and consider asking you and others who have experience of such work or are survivors, to give the training.

I am talking about giving both information and training. I also want to ask about information for victims, which is a huge issue. We have heard that victims do not really know what they will go through. In particular, I am talking about providing information before an examination.

I have two straightforward questions. Should information be provided to victims prior to and after forensic medical examinations? Section 4 of the bill, which is on “Information to be provided before examination”, has been mentioned. Is there anything else that you would like to see in that section?

Those are big questions. I am sure that you can also write to us about them.

Gwen Harrison

There is probably quite a lot of opportunity for independent advocacy in those areas. If an independent advocate is a port of call for people, the options can be laid out and the advocate can ensure that people have all the relevant information. That advice would not be linked to services, and people could decide whether they wanted to report to the police or to self-refer. People would be given information in advance of that.

I agree that, as things come into play, how we ensure that people are aware of them will be crucial. A lot of survivors who come to us have real concerns about speaking to the police, for example, simply because they have never done that before. Obviously, there will be a lot of changes, and how the messages go out will be really important.

Jen Stewart

All the professionals who are involved in the process need to give consistent messages. The point about reporting is really important. If somebody is spoken to prior to a self-referral, for example, and they are told about being able to make a decision on reporting in their own time, to give them some space, it is very important that every professional who is involved communicates the same messages. People opt for self-referral because it gives them space, and it is quite concerning that there is sometimes feedback that they then feel a certain amount of pressure.

Sandy Brindley

People also need written information. Professionals need to be well informed to talk people through things, but we heard clearly from the survivor session that people were simply not in a place to take in information. That will maybe happen in the hours that immediately follow a rape or sexual assault. A person is likely to be traumatised and in shock, and they will not take in a lot of information.

I go back to the point about feeling that there is some level of control. How can we create some sense of control throughout the process for a person who has had all control taken away? We must ensure that they get enough information in order to give informed consent to a forensic test beforehand, and that should be written information. That is being developed through the work in the CMO’s task force. There should also be information that can be taken away on what has happened, what will happen next, and the samples that have been taken. With the best will in the world, a person will not take in the information that they have been told at the time, or they are unlikely to retain it. There must be lots of different leaflets. They will not be able to remember who gave them what or what is going on.

At Rape Crisis Scotland, we are doing work on the Government producing an information booklet that pulls things together for people immediately after a forensic examination. It is really important that people have clear information that has been informed by what survivors have said about what information they needed, and that is written in an accessible way. We can meet information needs through that approach, combined with training for professionals who can talk things through.

Anne Robertson Brown

I absolutely agree with my colleagues, and I will add one thing. We already have an example with the Domestic Abuse (Scotland) Act 2018. Information went out and flow charts were created. Police Scotland put an awful lot of information out there so that people knew the procedures and timelines ahead of requesting a disclosure. I suggest something similar.

We should not wait until a woman has been raped. With regard to the process, the timelines and who would be involved, we should use the KISS principle—keep it simple and straightforward. Social media is a massive influencing platform. We should use all the media possible to make sure that everyone is getting a consistent message about what is involved. That could also be part of an overall communication strategy that includes the content of the training and so on.

Sandra White

Thank you.

David Stewart

I will ask a wider question at this juncture. We know from the statistics and the discussion that we had last week with victims that there are low reporting and conviction rates for sexual offences. I am interested to hear from the panellists whether anything in the bill would affect those factors positively. I appreciate that the bill is a health bill and not a justice bill, but the point that I made earlier was that the Government should apply joined-up thinking across the portfolios, so it would be useful to hear the views of today’s panellists on that point.

The Convener

Certainly, although only briefly as we need to discuss other areas. However, it is an important question.

Sandy Brindley

One of the issues, and the reason why we are so behind in our forensic and health response to sexual crime, is that there is a gap between health and justice. The matter has fallen into that gap, so we need to be really careful that that does not happen again. I think that the bill will help, because it will place a clear responsibility on health boards.

The bill has the potential to deal to some degree with the levels of underreporting. Currently, if somebody does not feel able to report to the police, they cannot get a forensic examination, unless it is in the Archway centre in Glasgow, or in the NHS Tayside area. The bill will mean that there is no postcode lottery. People will be able to access a forensic examination anywhere in Scotland without reporting, which means that evidence will not be lost, which in turn may lead to more reporting. I do not think that we are talking about significant numbers—there is a lot of data from many countries that have self-referral about how many of the people who self-refer actually go on to report to the police. We should be realistic about what the bill will achieve; however, even if it involves small numbers in terms of reducing the level of underreporting of rape, the bill is very important, because everybody across the country should have access to self-referral. The bill will also put a clear responsibility on health boards to co-ordinate responses, which is one of the strongest aspects of the bill.

Anne Robertson Brown

I echo everything that Sandy Brindley has just said. I will put my day hat on for a second. I am here as the chair of Angus violence against women partnership, but my day job is as executive director of Angus Women’s Aid. A significant number of women disclose to us, and to every other women’s aid service across the country, the level of rape and sexual assault that they experience as part of domestic abuse. The bill will allow such women to self-refer and, as a country, we will get a better idea of the scale of sexual assault and rape.

Like Sandy Brindley, I do not know how many of the self-referrals in Scotland will convert to prosecutions in the short or medium term, but we would have a better idea of the social issues that we need to deal with.

Jen Stewart

I work in an area that has self-referral. It might not be the case that significant numbers of survivors go on to report, but some have gone on to do so and have got justice. It is about giving people choices.

Brian Whittle

I echo my colleagues’ sentiments about the evidence that we heard last week, which was harrowing. It was brave of those victims to speak and it was necessary that we heard their evidence.

I also echo what David Stewart said. We are discussing a crime that is underreported and has low levels of conviction, so the importance of getting the bill right cannot be overstated. There are serious health implications for mental and physical health that arise from women’s or men’s ability to be heard. It is not as simple as separating justice and health—they are intertwined.

I want to ask about people’s ability to self-refer when they have additional support needs—I include within that category children, older adults or individuals with mental disorders or an intellectual disability. Are there issues with their ability to self-refer?

11:45

Gwen Harrison

I think that there will be issues, but I also think that we need to consider the definition of a vulnerable adult, because that might be different. Someone who has previously been traumatised by something and has now been retraumatised by an assault will have issues in terms of how they process that, but they might not necessarily be someone who is recognised as being a vulnerable adult. We need to think about that. I do not know how we support such individuals better, but I think that it probably involves ensuring that they have somebody beside them on that journey to make sure that they have truly independent support.

Sandy Brindley

I will deal with children first, because there has been quite a lot of discussion about whether the bill has got it right by setting the minimum age for self-referral at 16. Some people have suggested that it should be 18 while others have said that it should be under 16. I am sympathetic to the arguments about extending it to under-16s, but I think that the bill has got it right by setting the minimum age at 16.

Alex Cole-Hamilton is absolutely right. We are talking about vulnerable people’s access to services. Obviously, children are vulnerable and we do not want to exclude them from accessing something that might assist them in these circumstances but, in reality, in almost all circumstances in which somebody under the age of 16 self-refers, the clinicians would decide that they needed to call an interagency discussion, which would mean that the process would not constitute self-referral. I am wary about us offering young people a meaningless right. There is no point giving a right if it is not meaningful, and, as I said, in almost every such case, the clinicians would feel that they had to notify social work, who would notify the police.

Alex Cole-Hamilton

Would you lower the minimum age for self-referral?

Sandy Brindley

On balance, I think that the bill has got it right by setting the minimum age at 16. If clinicians could assure us that they could offer self-referral in a meaningful way to people under the age of 16, that would be different, but, if they cannot do that, there is no point in lowering the minimum age.

We need to think about how we provide services to young people who are experiencing sexual abuse. There is a huge gap in relation to support and advocacy for young people. Our support and advocacy services for children who have been sexually abused work with children over the age of 12, but there is a huge gap for children under that age, particularly with regard to the court process, as well as the process that we are discussing.

A lot of important related work has been done around the barnahus approach, and I know that it has been considered in work that is running alongside the bill. However, the bill has quite a narrow focus: it is about making it clear that the provision of forensic medical services in these circumstances is the responsibility of health boards, and introducing self-referral. Those are my views with regard to the age limit.

On capacity more generally, I think that we should not be restricting access to self-referral unless it is absolutely essential that we do so. We need to be careful not to be paternalistic and not to make decisions on behalf of people unless they are genuinely unable to consent to a medical procedure. Clinicians are experienced in assessing whether someone has the capacity to consent to medical procedures. That experience is even more important in these circumstances. I think that the role of support agencies can be helpful with regard to helping people to navigate the process—I am thinking about services such as ours, as well as ones such as People First, which works with people with learning disabilities.

Anne Robertson Brown

As I said, I am here today as chair of the Angus violence against women partnership, but we shared our response with the Angus child protection committee for comment. It was in favour of having a stage 2 of the process at which the issue of under 16s could be considered, for some of the reasons that have already been outlined.

One of the things that we are concerned about is the number of young women—those around the ages of 14 or 15—who are disclosing but not reporting rape and other sexual assaults in their relationships. That is why it is our view that there should be a stage 2 to this change of process. At that point, we could look carefully at how to guarantee that what was happening was a self-referral and that child protection guidelines were being followed. We could also bring Gillick competencies into the discussion. We should not do that yet, at stage 1. However, we could possibly do it later, because it might be a ticking time bomb.

The Convener

Am I right to think that you are talking about a second piece of legislation?

Anne Robertson Brown

Yes. A second stage: a follow-up.

The Convener

Okay. That is understood.

Sandy Brindley

It is also important to look at why young people and women in those circumstances are not reporting. I do not know that self-referral alone will fix that, because there is a wider issue about cultural attitudes toward sexual violation, what is happening in schools, the messages that young people are getting and whether certain behaviour is normalised and acceptable.

It is also about whether people have confidence in our justice system. Looking at how people are treated, the conviction rate and how many cases never get to court, we can understand why young people say that going through that process is not for them. That is beyond the scope of this committee. Self-referral is important, but we must also be realistic about what else needs to happen to reduce underreporting. That will not all be dealt with by the bill.

Brian Whittle

The other point that has been raised is about the implications of socioeconomic deprivation. Anne Robertson Brown was right to say that this kind of crime is perpetrated across society. Therefore, we have to be careful that we do not pigeonhole it. However, I want to know whether we should have the ability to target better, based on socioeconomic deprivation.

Sandy Brindley

I am not aware of any evidence that sexual crime is any higher in working-class communities than it is in middle-class or upper-class communities. Therefore, for me, it is about ensuring that the services are available and accessible to everyone.

We should be proactively looking at how we can remove barriers to the service. One way of doing that is to look at the practical barriers to people in general society and to those who are in poverty. For example, if someone has to travel to get to the service, is returning their travel costs or arranging taxis facilitated? Barriers are often financial. However, they might be childcare barriers—what do people do with their kids when they come to get the examination? It is important to think about what we can put in place to ensure that there are no financial barriers to people accessing the services.

Anne Robertson Brown

I echo what Sandy Brindley said, and add that one of my colleagues made a point about confidentiality. We need to ensure that the services are accessible to all women.

Gwen Harrison

I echo that. We must look at how we can remove barriers to people accessing services—we spoke about people sometimes not coming forward because of cultural differences—and at how we can ensure that people are more aware of the service.

I had a chat with some of my colleagues about people whom they have supported previously, including homeless people, who are assaulted regularly but are limited in how they can access services. Often, they do not have a phone, so they cannot phone the service. We need to ensure that there are different access routes for people, and that they are supported through that.

Emma Harper

We have covered wraparound and complete support. I know that the clinic in Dumfries is planning to relocate its sexual health and psychology services next to the sexual assault centre, so that there is a properly engaged wraparound service. There are major challenges in rural areas. We have covered the fact that there needs to be access to psychology and that the service has to be wider. If engagement is better, self-referral rates might improve.

Last week, we heard from some witnesses that it might be useful to record something in the case notes so that if someone was to have a smear test, there would be a red flag to say whether they were a rape survivor. That would mean that they would not have to retell their story every time. For example, if someone was going for a blood test, the case notes could say that the person was afraid of needles. Has there been further feedback about what needs to be in a person’s medical record? Who should access that information? How do we protect confidentiality? In rural areas, everybody knows everybody.

Gwen Harrison

I completely agree. There are real confidentiality issues in relation to rural communities, depending on who can access the information. People who work in the service might know the perpetrator. We should recognise that it is not just about knowing the survivor who has been for the examination; people might also know the perpetrator who has been involved. There needs to be clear consideration of how people access such information and of what information is relevant to be stored. The system would also be much more powerful if people did not have to retell their story every time.

Sandy Brindley

Part of the difficulty is that people either do not know what to do or are not going to inform themselves about what to do until they are in those circumstances. I think that an awareness-raising campaign is important, but it will probably have a limited impact. The most important thing to do is probably to make sure that the services that people go to straight after being raped—if not the police—know about self-referral and how it is accessed.

12:00

If people do not go to a service such as Rape Crisis Scotland, they will go to somebody such as their GP. One of the most common routes is through front-line healthcare workers, with people presenting either at accident and emergency departments or at GPs. We have to make sure that those staff know how somebody can access self-referral.

We also have to look at online provision. At the moment, if you go on to any health board site or NHS 24 and type “rape” into the search box, I do not think that anything comes up at all. That is because rape services have not been a core part of health service delivery up until now.

They need to know in advance. It is not acceptable for someone to get a call out of the blue saying that everything will be destroyed next week. People need to know and have in their mind what timeframe will be applied in their case, so that they can process what that might mean and make a decision. There will be negotiation at an appropriate point about what people want to happen. Some might say that they do not want to be contacted at all and that the samples should just be destroyed if they have not got in touch. Others might definitely want to be contacted, because they will want support with the decision.

Alongside that, if advocacy workers or rape crisis workers are part of the clinical pathway, we can provide support for people to allow them to reflect on what they feel about the issue in a way that does not feel like pressure.

Gwen, what do you think?

Gwen Harrison

I was just going to say that, if people have an advocacy worker, that can help them to navigate the journey and discuss such issues. If the advocacy worker has been part of the process and is aware of the timescales, they can almost prepare the person to start to think about making that decision.

It all comes back to giving back control to the survivor. They have come through a situation where they have lost all control, so it is important to ensure that they are informed and can give consent and permission on how their information is stored and for how long. If people have an advocacy worker throughout that—or a forensic nurse as a named person—that might provide better support.

Emma Harper

It sounds as though Women’s Aid and Rape Crisis Scotland are absolutely essential. We do not want to take away advocacy workers and say that we now have the new forensic nurses, who are the new named nurses. There has to be continued engagement with whichever service people choose to engage with.

Gwen Harrison

As we have said, it is about giving people choice. Somebody might decide that they do not want support from Rape Crisis Scotland or Women’s Aid but that they are happy to have contact with the nurse and that is their preferred route. However, if individuals have chosen Rape Crisis Scotland, that could be the route. It is important to give back choice to people.

Anne Robertson Brown

I echo that point about choice. There is also a point about the survivor having a loop back with the contact and having the right to say, “I have reflected and decided that I do not want to report, so destroy my samples now.”

The Convener

That is clear.

Brian Whittle

There will obviously be a cost to implementing the bill. The financial memorandum states that

“There are no direct costs to local authorities”

and that third sector organisations will

“play an important part in raising awareness of self-referral”,

but that

“costs on the third sector to support the Bill’s implementation will be modest.”

There are aspects to that that concern me. One aspect is the phrase

“no direct costs to local authorities”,

which implies that there will be a cost somewhere or other. The other word that I do not like is “modest”.

The third sector is of huge importance to what we are discussing this morning. Given the financial pressures that the sector is already under, what are your comments on the financial memorandum suggesting that the costs to the sector of supporting the implementation of the bill will be “modest”?

Gwen Harrison

RASA Highland does not think that the costs will be “modest”. If we have to extend our support to people in more rural communities, our geography alone will mean that there will be increased costs in travel and staff time. They will be much more than modest. We have some real concerns about what the costs will mean for delivery of our service.

Jen Stewart

I agree. I do not necessarily think that the costs will be modest, and I wonder what that would look like.

We have been such close partners in self-referrals so far. We definitely want to keep that going and be one of the key partners in the future, but we would need additional resources, because our capacity and what we can do are limited. The pilot has been done within existing resources, so it has been a significant challenge.

I think that somebody talked earlier about the importance of people getting a hot drink and access to clean clothes. We can provide those things because we approached one of the local supermarkets and it donated to the service to enable us to do that. We need to be creative about how we resource services.

Anne Robertson Brown

I am very interested in the definition of “modest”—exactly what does that mean? I think that it might be somewhat optimistic. Angus has no dedicated rape crisis service, and that is true of many parts of Scotland. The implication of that is not modest in cost terms.

We have something that I am sure that many other parts of Scotland have. RASAC in Dundee offers a short part-time outreach service to Angus. Women’s Aid works closely with that service and gives office space and what have you to reduce costs and so on. I think that the cost implications of the bill are significant as opposed to modest. It is not that I do not think the third sector is up for the challenge, but we cannot tackle the challenge without resources.

Sandy Brindley

It depends on the model of service delivery that we are talking about. If the model is designed to meet the needs of survivors of sexual crime, rape crisis support should be indicated in that model. That is what we are looking to do in Edinburgh. A new multi-agency centre is going to be opened that will respond to people’s needs immediately following rape or sexual assault, and an advocacy worker will be based in the centre.

Sometimes people do not care about who is delivering the service; they care that the service that they get is the right service, and it is for us to co-ordinate those services behind the scenes.

What I have mentioned is an urban model; the model would be different in rural and remote communities. However, we should be looking at the delivery of co-ordinated services, and at what the evidence tells us about how we meet the needs of somebody who has just been raped or sexually assaulted.

A video remote interpreting pilot on visual recording of statements to the police is being funded, but that is not being funded through this workstream.

12:15

If we are to create a model that integrates rape crisis support within the service, as we should be doing, and address the gaps in provision—Moray is the only part of Scotland where there is no advocacy worker—the costs will probably be more than “modest”. They will be more than modest for the health service, too, if it is to do this properly.

The Convener

What about costs to local authorities? Brian Whittle raised the issue of direct versus indirect costs. I am not sure whether there is expertise at the table from the local authority point of view.

Sandy Brindley

It is probably the health sector, the third sector and the police who will be involved in delivery of services.

Brian Whittle

I should clarify that we are discussing implementation of the bill. Emma Harper talked about the requirement for dedicated health professionals. Integration with the third sector is an issue, too. Resource for the whole system is really what we are talking about.

Anne Robertson Brown

There will perhaps be costs to local authorities to do with training, some of which might be one-off costs.

The Convener

Thank you.

As you perhaps heard, we asked the previous panel of witnesses about monitoring and evaluation of the changes that the bill will introduce, when they are in place. Do the witnesses have views on that? In particular, from the point of view of your organisations and victim support organisations in general, what information about the roll-out and the practical effect of the approach would be useful?

Sandy Brindley

The bill will implement—finally—the provision in previous legislation to allow people to choose the gender or sex of the examiner. That has never been implemented because we have never had enough female doctors and medical staff to do the work. It will be crucial to monitor implementation in that regard. We need to know how many times people are offered a female doctor and how many times they get a female doctor. That is the single most important issue that people raise with us. We will definitely need the data so that we can see whether the approach is working.

On a more general point about the CMO’s task force, we will need to know about delays and how long people are waiting for examinations. Monitoring that will be crucial.

We will also need rich information about self-referral. Where is it taking place? What are the timeframes for which people are waiting after making a self-referral? What is the conversion rate—that is, how many cases go on to become reports to the police? What happens to those cases? Is sufficient evidence collected?

The approach is relatively new for us in Scotland—it has been happening in Tayside and Archway, but the numbers have been small. We are introducing the approach nationwide for the first time and we need really rich information. The CMO’s task force has done a lot of the work on data collection, to put in place monitoring from the start and ensure that there is a clear review of the effectiveness of implementation.

Emma Harper

Last Friday, I heard that, depending on when events happened, 60 per cent of self-referrals can happen on a Wednesday between lunchtime and 5 o’clock—I thought that that wee nugget of data was surprising. The numbers were very small, though.

It is important that we monitor the data. I agree that there should be 24/7 support, because people might choose to self-refer out of normal hours. It will be interesting to consider when self-referral happens after incidents.

Sandy Brindley

The feedback from survivors at the closed session last week was that there seems to be a particular issue with reporting on a Sunday.

A lot of providers say that there is hardly any demand for an out-of-hours service. That suggests to me that something is going wrong in the system, because survivors are telling us that there is an intolerable wait for services. There is something about the process by which people access services that is not working at the moment.

Gwen Harrison

I wonder whether we need to collect more qualitative data on people’s experiences, so that we can make sure that their experiences are similar across the country.

In relation to Highland, the experience in Inverness could be different from the experience in Wick. It is about making sure that there is equity and that people are able to access the same service. Perhaps capturing that softer data would also be useful.

Jen Stewart

We have found it helpful to have regular meetings with the police and the NHS to look at the issue, to speak about people’s experiences and to reflect on that feedback.

The Convener

Would you want to continue that under the new arrangements?

Jen Stewart

Yes.

The Convener

Excellent. Thank you. Before we wrap up the session, is there anything that witnesses have not said but are itching to say? We will hear from a lot of people about the legislation as we progress.

Sandy Brindley

I have a comment on a question that was put to the previous panel of witnesses about whether the bill’s provisions should be extended to alleged child offenders. Although that is an important issue, my strong feeling is that it is not one for this bill. The bill is about victims of rape and sexual assault. It is important that the guidance on forensic integrity says that, wherever possible, the examination of the victim happens in a separate location and at a separate time from the examination of the alleged perpetrator.

The Convener

I thank our witnesses for their evidence today, which has been informative, helpful and much appreciated.

12:21 Meeting suspended.

12:26 On resuming—

17 March 2020

Second meeting transcript

The Convener (Lewis Macdonald)

Good morning and welcome to the 11th meeting in 2020 of the Health and Sport Committee. I thank members for their attendance in these unusual circumstances and thank our parliamentary staff, particularly the broadcasting office, for their hard work in setting up this remote formal meeting. We recognise the challenging times in which we are living and pay tribute to all the organisations in the health and care sectors for their continued dedicated service and hard work. I ask that all members ensure that their mobile phones are on silent.

Agenda item 1 is our second evidence session on the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill at stage 1. Scrutiny began in February and was subsequently delayed due to the pandemic. We will now take evidence during May and June, with the intention that stage 1 of the bill will be completed in the Scottish Parliament in autumn 2020, if it is approved.

Today’s session is to discuss a range of issues with national health service boards. I welcome Dr Anne McLellan, who is a consultant in sexual and reproductive health at NHS Lanarkshire. Thank you for joining us.

Due to the challenges of managing a virtual meeting such as this, we will take questions in a pre-arranged order. I will ask the first questions and then invite others to ask theirs in turn. I ask for succinct questions and answers. I ask those who speak to give broadcasting staff a few moments to operate their microphone before asking a question or providing an answer. I also ask members to indicate when they are on their final question, so that the broadcasting staff will be ready to move on to the next member.

Dr McLellan, we have heard a lot of evidence about examinations and how important an appropriate examination place is for those involved. Are appropriate facilities in place, or would they need to be put into place in order to implement the bill successfully?

Dr Anne McLellan (NHS Lanarkshire)

Boards have done a lot of work on establishing capital projects that will enable them to have suitable premises. Importantly, most of those will move the examination site out of police custody into healthcare facilities or into sites that are near to healthcare. In Lanarkshire, we are almost ready to open a facility in the grounds of, but not in, University hospital Wishaw, which I hope will be more user friendly.

I know that good work has been done in Larbert. I am not sure about the other boards, but most of them are moving to improve premises, which is a welcome step forward.

The Convener

You think that the boards are on board and are progressing plans on premises. What about the workforce? Are workforce plans in place? Is the workforce already there? What is the prognosis for development on that side?

Dr McLellan

The workforce is a challenge, particularly with regard to the gender of the examiner. That is going to be a challenge in the next year or two. However, the west of Scotland is making big steps to improve the workforce and increase the number of female forensic examiners. There has also been a good training programme nationally to encourage female forensic examiners to come together. The bill is a welcome improvement to the care of victims and survivors, but it would be good to have a network for female forensic examiners throughout Scotland.

Although the workforce is a challenge, there are ways that it can be facilitated. What I mean by that is that there are sexual health staff in every health board at the moment who are used to seeing patients who have experienced sexual assault but have not involved the police. There is a body of staff there who can be tapped into with the appropriate training. I think that that is the way forward.

In some of the quieter or more rural boards, it will still be challenging to maintain skills and provide a 24/7 service of high quality, but it is doable with a network and with remote training. In Lanarkshire, I anticipate that some of the staff whom we have put forward as eminently suitable to be forensic examiners may be working at a different site and not in the centre of excellence. However, they will be linking in with the centre of excellence for updates, or to do virtual training to keep them all skilled and to ensure a consistent approach. There are challenges, but I think that we can address them.

The Convener

If I understand you rightly, you are saying, essentially, that networking is the way to deliver a 24/7 service. Clearly, it would make a huge difference to those involved.

I think that you mentioned work that is being done at west of Scotland level. Do I take it from that that the north, west and east are already working on a regional basis to identify female forensic examiners and create the kind of network that you are talking about?

Dr McLellan

Yes. Most of my experience is in the west of Scotland, but there has been national training, and boards in other areas are linking in.

I am not worried about the rural issue. Obviously, forensic examiners do not see so many cases per year in a rural area, and there will be a mandate that someone needs to see so many cases to keep their skills up, but there is so much of a move now to remote and virtual working, partly because of the coronavirus, that people will become very familiar with remote consultations or remote supervision. There are ways in which we can get round the rural issue.

The Convener

That is very interesting—I am sure that it is something that we will follow up with the three regions. I am also interested to hear how the changes resulting from the coronavirus are already creating new possibilities for training and so on. That is very encouraging.

Sandra White (Glasgow Kelvin) (SNP)

Good morning, Dr McLellan. Among the many issues that have been raised is the retention—the recording and storage—of evidence and the cost of that to health boards. I think that your health board has raised that issue. How do you think that the retention service should operate?

Dr McLellan

We have to be sensible here. I am sure that, as a result of the bill, more people will come forward; more people may also self-refer. The problem will be the storage of large items such as a duvet or clothing. It is unrealistic to take all of that on board for an indefinite period. However, at the moment, the retention of samples from self-referrals is of swabs only. There is a compromise here. The timescale for retention is up for debate, but after three or six months—whatever is decided—the evidence can be destroyed.

The other thing is that we could opt to say that clothing, or large items such as duvets, should not be stored beyond a certain time, whatever happens, but that we would keep the forensic swabs, because the swabs are smaller. The swabs also require to be in a freezer. Freezer storage capacity will be needed.

The issue of sample ownership may be challenging but, again, I think that it can be worked through. We can agree that, if samples are taken on health board premises, they are health samples until they are destroyed. That will need to be managed properly. If a self-referral went down the police route, the samples would need to be transferred to Police Scotland, or to the Scottish Police Authority. I think that that is workable.

From a practical point of view, we cannot store loads of stuff for years, and certainly not indefinitely. We could limit storage to swabs only, and limit the time period.

It may be different for children or adolescents. I am not a paediatrician, but I can say that, although we keep sexual health records for most of the population for only eight years, we keep young people’s records until they are 25 in case something comes out later, so we may have to think about how long we store material that relates to the young people who come in. That would be for the paediatricians to decide, with the police—I am not a child forensic medical examiner; I do not examine people who are under 13.

Does that make sense?

Sandra White

Thank you—it does, and it opens up another avenue. You might call it a two-track approach to retention: swabs would be kept for longer, albeit not indefinitely, and bigger items would be kept for just a couple of months. That is interesting.

The issue of ownership is delicate, and includes the storage of data. It has been suggested by the Information Commissioner’s Office that perhaps we should look at a data protection impact assessment. Would that be a good way to go forward?

Dr McLellan

I find it a bit confusing myself, but I understand that the concern is that the swabs of another person would be retained without their knowledge. Advice on that would need to be taken from the Information Commissioner.

One solution for the larger items would be to photograph them, so that there would be at least some evidence. We would not have the DNA analysis, but the items could be photographed before being discarded. Once they were—

Sandra White

Thank you—

Dr McLellan

I am with you on that. I think that what it means is that, for example, for someone who presents nine days post assault, there is no point in a forensic examination to capture DNA. The person could demand a forensic examination, but it would be inappropriate because it would not capture DNA, so they could not have a forensic examination for DNA at that stage.

If a patient were to demand that they be looked at, and was bruised, our professional judgment would be that we would look at the bruise and document the injury, but we would not do the full swabs because they would not get DNA. That might change as DNA tests get better; some DNA tests pick up DNA up to 10 days afterwards. However, we are not quite there yet: throughout Scotland at least, it is seven days for DNA.

There are, in Scotland, channels through which such matters can be sorted out sensibly, without their going in front of a court. Some cases might need to go in front of a sheriff, but we would hope that most of the time in Scotland, through good working, having multidisciplinary teams and taking the right advice from the relevant professionals, we would not go in front of a sheriff unless we needed clarity.

10:30

The Convener

Thank you. I am sure that we will come back to those issues in a future meeting, when we hear from witnesses about legal rights and the justice system.

Alex Cole-Hamilton (Edinburgh Western) (LD)

Thank you for your evidence so far, Dr McLellan. Should self-referral be available only to people who are over 16, and if so, on what basis do you think that?

Dr McLellan

That is one of the most difficult areas. To be honest, we should encourage self-referral in 13 to 15-year-olds, because 40 per cent of last year’s 13,000 sexual assaults were on under-18s.

We see a lot of adolescents. One in four under-16s in Scotland is sexually active. There are a lot of challenging scenarios and it is not easy when an adolescent comes in but then refuses police involvement—that is the big challenge. We need to encourage those young people to come forward for clinical care. They should be supported by an advocacy worker—maybe a youth specialist.

Obviously, if there is a clear child-protection barn door, we have to involve the police. However, certain scenarios are difficult. For example, two 14-year-olds go to a party, they get drunk and go into the bushes, something happens and one of them wakes up with all their clothes on inside out and feeling sore down below. If we say that the police must be involved in all cases that involve under-16s, with no consideration of different circumstances, we will miss an opportunity to get adolescents to come forward.

Alex Cole-Hamilton

I share your concern about restricting self-referral to over-16s—not least, because if sexual abuse or assault happens at home, perhaps at the hands of an older family member, it will be much harder for the person to find an appropriate adult to come with them, or to talk to someone in their social network.

What happens at the moment if a 14-year-old who has been assaulted or raped appears at the Archway? What is the protocol when children try to self-refer?

Dr McLellan

Dr McLellan

Yes, I have concerns about the long-term funding. At the moment, following-up of patients who have been sexually assaulted can involve several visits back to the health service. The person might need to come back after one or two weeks for a sexual health screen and at three weeks for vaccination, and they might be put on post-exposure prophylaxis and have a month of anti-HIV drugs. Follow-up after a sexual assault can involve six appointments.

In self-referral, when the bill is passed the clinical workload will go up and the amount of follow-up work will go up. I suspect that the awareness raising that follows the bill and promotion of self-referral will also mean that the numbers will go up. The number of sexual assaults has gone up; there has been an 8 per cent rise in Scotland in the past two years.

It is difficult to cost all that. There will be a need for mental health services, child and adolescent mental health services, alcohol and drugs services and so on. The package of care will not be small, and that alone will require increased resources. Storage facilities—freezers—are also needed, which will have cost implications. Buildings will require to be maintained. Victims’ travel will have cost implications.

I am confident that we can tap into the nursing workforce, who can help. Sexual health nurses are working across services and can be used, but that will mean transferring resources from the things that those nurses are currently doing. We can transfer resources maximally, but there will still be financial pressures on boards to deliver the new approach, and resource will have to be redistributed if there is no additional resource—if that makes sense.

Emma Harper

It is good to hear about that wide range of issues. It is interesting that we are transferring some skills and services to the nursing workforce. Today is international nurses day, so it is good to hear that we are widening the workforce’s ability to support the forensics service.

Has sufficient consideration been given to the increased costs? You mentioned the increase in assaults; we are hearing about an increase in assaults during the coronavirus lockdown. Given all those issues, does further consideration need to be given to the financial implications?

Dr McLellan

Yes, absolutely—the financial modelling really must be thrashed out, because we do not want to open up a service that is not sustainable and that goes backwards. The cost modelling in the financial memorandum uses three predicted levels for the number of people coming in for self-referral. I think that you will have to go for the high one, which is an additional 90 cases per year.

The number of patients who might come forward if the bill is passed probably needs to be reconsidered. For example, just as an indicator, I have a report from 2019, which I am holding up. I do not know whether members can see it—you probably cannot. I can send it electronically. It gives data on how many sexual assault cases were seen at Archway last year. There were 66 from Lanarkshire, 61 of which were police referrals and only five of which were self-referrals. However, I think that people who might self-refer are not so willing to travel to Glasgow, so the figure will go up once services are delivered locally. Therefore, the financial memorandum needs to cost self-referrals at the highest level.

Only 66 people from Lanarkshire were seen at Archway last year. Yesterday, we ran a report quickly from our electronic records in Lanarkshire. My information technology person, who is shielding, did a quick snapshot and found that, in the past 12 months, of about 29,000 patients in Lanarkshire, 118 had said that they had experienced a forced sexual assault. I do not know whether those 118 include the people who attended Archway—we will need to look at that—but our records suggest a much higher number of people than are coming forward to Archway. The big risk with the financial modelling is that the number of cases could be much higher than the number that has been costed for.

Another issue is that the financial memorandum does not anticipate NHS Lanarkshire requiring to see any more patients because we already have self-referral to Archway. However, on a practical level, patients are not self-referring to Archway.

Also, Archway has been very understaffed for the past couple of years. The year before last, when it was using COMS—Custody & Offender Medical Services—for its out-of-hours service, there was no capacity for self-referrals after 5 o’clock, because COMS is employed by the police.

We have to be cautious—the figure for self-referrals might be an underestimate. For the financial modelling, we should err on the side of assuming that larger numbers will come forward. The trade-off is that not all those people will go down the court route. It is good that the costings are quite high for the justice process, but not all self-referrals will go down that route. More people might come forward who need forensic examination, but the knock-on effect might not be that 100 per cent go to court.

The Convener

Thank you very much. I will briefly go back to the questions that I asked at the outset. If a health board puts in place the facilities that it needs, and staffing is made available for 24/7 operation, how big a difference will it make to the costs whether there are 90 self-referrals, or a different number?

10:45

Dr McLellan

Do you mean 90 additional self-referrals per year?

The Convener

Some of the costs will be necessary in order to implement the bill, regardless of the numbers who come forward. How much of the extra costs that you have described will have to be incurred anyway, regardless of the level of future demand?

Dr McLellan

I am not sure how to answer that—I am sorry. My understanding is that the unit cost per patient is in the financial model, although I am not sure where the figures came from: they were, for example £3,000, £3,600, and £5,000, and the figure was £12,000 for Shetland.

If we were operating 24/7, we would need to look at staggering our patients, if that makes sense. I cannot answer the question, to be honest. That is partly because we have not had a fully staffed service, so we have not looked at that. We will, once we have a fully staffed service running.

I can, however, say that Archway is now doing much better, and that there are more in-house examiners, who operate until midnight. That is definitely helping. I think it will happen stepwise, but I cannot yet give you a figure for costs.

The Convener

The fact that that figure is not readily available is important, and is something that we will pursue with other witnesses.

Miles Briggs (Lothian) (Con)

Good morning, Dr McLellan. Thank you for joining us this morning.

What is your view on there being a public awareness campaign for self-referral, and how should it be co-ordinated?

Dr McLellan

A public campaign on self-referral would need to be pushed at people aged 16 and over. We could then look at how that went. I do not think that we should do a campaign on self-referral by 13-year-olds—we should focus on people aged 16 and over using a wide public awareness campaign. That could be done through the usual media—the police, television and an app. We would use health promotion teams around the country, which are well versed in delivering such messages. There is a specialist health promotion team in every health board, and a lead national group of health promotion specialists. It would not be a problem for them to deliver such a campaign.

Miles Briggs

Thank you.

From your experience, how could health boards, in implementing the legislation, take into account inequalities and ensure that it improves equity in access to services?

Dr McLellan

As you know, we have high deprivation in Lanarkshire, so we are familiar with targeting services at areas of deprivation. We are always looking at postcode data and data from the Scottish index of multiple deprivation. We should be capturing who is already coming to services; perhaps the data group is already doing that. If they are not, we could do that.

In Lanarkshire, we look at the postcodes of people who come to our young persons’ services. If, for example, we found a high number of people from Airdrie going to a service elsewhere, we would put more resources into Airdrie. Alternatively, if we found that nobody was coming in from Airdrie, we would address that. I think the situation would be similar; we would look at the data for postcodes and at data from the Scottish index of multiple deprivation.

We would also need to take advice from third sector organisations about where they would want services to be targeted. That is not just about where people live; we might, for example, want to promote the service through domestic abuse organisations.

In the west of Scotland, we have been considering a clinical pathway. We previously discussed the point that, sometimes, even with the best psychological support, people have pulled back by the time the court process starts. However, an advocacy worker can keep things going and can link the person with services that they need when the court trial starts or at times in the future when the person might be more vulnerable.

Ideally, the advocacy person should be engaged from the start and should see the person through the whole process. That is an essential component.

Brian Whittle

You are indicating that, to an extent, NHS boards are providing immediate and on-going psychological support to victims of sexual assault and rape. For me, the key point that you are highlighting is that there should be a continuing advocacy service, from start to finish. Where do things currently stand in that regard? How much do we need to upskill, and how well is the system prepared for handling the requirements?

Dr McLellan

The rape crisis centres are keen to help. People might be allocated at the start of the process, but it would be overwhelming if they had to see 20 people constantly for a year and a half. It might be possible to step in and out and to touch base with each person at three months, six months and nine months, for example.

From a psychological point of view, the general practitioner can be a good link for those who are linked into mental health services. There are differences: advocacy workers take people through the court process and provide support, and formal counselling services are separate. We do not have the arrangements for that clearly thrashed out, to be honest, but there is a need for both those services.

Brian Whittle

Another question springs to mind, on the impact of the third sector and how we utilise that sector and bring it into the fold. Where are we with that, and how important will it be to utilise the third sector?

Dr McLellan

The third sector is very important. We have good links, although they have been haphazard in the past. However, there is now a chance to create a more consistent service for everyone. We are working on a pathways approach in the west of Scotland. Rape Crisis Scotland is with us at the table and is keen to be involved.

It would be ideal if voluntary sector organisations such as Rape Crisis could be involved from the very start, when a person hits the service. What tends to happen is that a patient is seen and gets their forensic package. They will then go away, having been given information about rape crisis services. It would be better if they were linked in right at the start of the process for a face-to-face discussion. That is what we want to provide, although not everybody will want that.

The Convener

Thank you. That was very helpful.

You made a number of comments related to recruitment and staffing. You mentioned delays in Glasgow because of staffing over the past year, and difficulties in recruiting to Archway. We know about such things and have heard about them from other witnesses.

You mentioned networking and you talked about resources. What is the single most important thing that could come with the bill in order to make all that a reality? It is great to have legislation that strengthens the system, but it will clearly only be as good as the system can be made in practice. You have identified some existing practical challenges. What should the Government do to back up the legislation once it is in force?

11:00

Dr McLellan

We will need a strong clinical network that links with the police and brings in the voluntary sector, so that everyone, wherever they are, has the same care pathway. Networks are key, so that we know who the local police are and so that they know what is happening.

There is no time to train a batch of new young female doctors in time for the legislation. However, such training is happening anyway, and there are already a lot of female examiners who could be brought into the network. We should be bringing nurses into the training, too.

There has to be a network that people can link into. There also needs to be a multi-agency policy document on how to progress the legislation, with implementation being driven by lead people in sexual health services and the police.

I had not realised that, sometimes, people are signposted back to the 101 telephone number to report a rape, because not every police area has a dedicated team that deals with rape in that area. If we have information about the police’s teams, we will be better able to work together. Multidisciplinary working and improving the service need to be the focus, following the legislation.

The Convener

Thank you very much for taking part. It has been a very helpful meeting, and I know that all members have appreciated your answers. We might come back to you on one or two points; we will certainly be seeking comments from others on issues that you have highlighted.

That concludes the public part of the meeting. Our next meeting is provisionally scheduled for Wednesday 20 May. Notification will be given in the Business Bulletin and via the committee’s social media, as usual.

11:02 Meeting continued in private until 11:25.

12 May 2020

Third meeting transcript

The Convener (Lewis Macdonald)

Good morning, and welcome to the Health and Sport Committee’s 12th meeting in 2020, which is an online meeting. I ask all those who are taking part to ensure that their mobile phones are on silent.

The first item on our agenda is our third public evidence session on the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill at stage 1. Scrutiny of the bill began in February but was interrupted due to the pandemic. We are now taking evidence in May and June, with the intention that Parliament will be able to debate our stage 1 report in the autumn.

Today’s session gives us the opportunity to discuss the implications of the bill for forensic medical services for children, including the provisions that make self-referral available only to those over the age of 16.

I welcome to the committee Chloe Riddell, who is the policy manager with Children 1st. Thank you for joining us today. Due to the challenging nature of managing a virtual meeting, we will be a little less spontaneous than usual, and will take questions in a pre-arranged order. I will ask the first questions, and will then ask each member to ask questions in turn, to which I will invite you to respond. Once each member has asked their questions, I will invite the next questioner, and so on, until the evidence session is concluded. I ask all concerned to keep questions and answers succinct in order that we can cover all the topics that we want to discuss today. When you are called, please give the broadcasting staff a few seconds to operate your microphones before beginning to ask your question or give your answer.

I will start by asking you about your approach to the general principles of the bill. Some evidence that we have received from you and other organisations including the NSPCC mentions missed opportunities or things that might have been done in addition to what is in the bill. First, what is your view of the general principles of the bill as they relate to children and young people?

Chloe Riddell (Children 1st)

Good morning, committee. Children 1st welcomes the opportunity to give evidence today, and we appreciate the value that the committee is placing on progressing this important bill amid the pandemic. To begin with, it is important to be clear that Children 1st warmly welcomes the introduction of the legislation, which we consider to be an important step forward as part of the overall improvements to forensic medical examination for adult victims of sexual assault. The evidence that I will be providing on behalf of Children 1st today will focus on what we know from the experience of children and families in our services.

The most important thing to start with is to recognise the significant issue that the bill is trying to address, as was highlighted in the report from Her Majesty’s Inspectorate of Constabulary in Scotland, which found major issues for those who have experienced rape or sexual assault. We strongly agree with Rape Crisis Scotland and other organisations that there is a need for continued leadership and significant on-going investment to bring services up to the standards that survivors need and deserve.

The written evidence that we have provided has been really clear that there are significant issues relating to children that are different from those that affect adult victims. The majority of children do not disclose abuse during childhood. Only a small number of children disclose abuse, and only a small number of them disclose within the seven-day timeframe that is specifically required for forensic medical examination.

For Children 1st, the key questions are why that is the case and what we can do to ensure that there are wholesale improvements not just to small areas but to the entire system. For us, that means that there needs to be a rights-based response to make sure that children’s voices are heard and their physical and emotional needs are met, and that there is an interagency interdisciplinary response that takes into account exactly what a child who has experienced abuse needs to help them not just access justice, but recover from trauma.

I am sure that the committee has heard about the things that we have been speaking about, but Children 1st has called for a long time for a barnahus model in Scotland, which involves having everything in one place and a child-friendly approach to access to justice. In relation to the bill, we believe that there is real value in considering what forensic medical examinations look like for children and their families, but we want that to be wrapped up in an overall discussion about what is required for children in the context of a barnahus model.

Would you like me to comment a bit further on the specific things in the bill, or is that enough for the moment?

The Convener

That is certainly enough to get us started. I think that, broadly, you are saying that you support and welcome the general principles of the bill, but that there are areas where you would like to see a more holistic approach. Is that fair?

Chloe Riddell

Yes, I think so. For adult victims, it is a different conversation. In the consultation before the bill was introduced, Children 1st proposed that children should have a specific consideration, but we have not seen that in the bill. There are different areas that apply to children, and we need to ensure that we do not cut across the work that is going on in other areas around barnahus.

The Convener

Thank you. Your mention of barnahus model prompts me to ask Emma Harper to ask her questions.

Emma Harper (South Scotland) (SNP)

Good morning, everybody. I will ask a couple of questions about the barnahus model. Paragraph 34 of the policy memorandum on the bill says:

“The Scottish Government is committed to exploring how the Barnahus concept could operate in Scotland, which includes consideration of cases where the child may have suffered other forms of abuse than, for example, child sexual abuse. Barnahus provides Scotland with an opportunity to design a genuinely child-centred approach to delivering justice, care and recovery”.

Barnahus is therefore in the policy memorandum. I like the fact that it is “bairn’s hoose” in Scots, which shows how connected we are to our Nordic neighbours. Will you tell us a wee bit more about whether you believe that the bill supports the barnahus model?

Chloe Riddell

That is the central thing that I want to talk to the committee about today. I am not sure whether the committee is aware of this, but the barnahus model is recognised as a

“child-friendly, multidisciplinary and interagency model responding to child victims and witnesses of violence.”

According to the European standards, it is not specifically about child victims of sexual abuse. The model that we should be looking at in Scotland, which Children 1st is really clear that we would like to see, would adhere very closely to the European standards. Healthcare Improvement Scotland is working to develop Scotland-specific standards, but we hope that they will adhere to the European standards as far as possible.

The central point about the barnahus is that everything happens in one space. In other countries, in relation to forensic medical examinations, it is not always possible for children to attend a barnahus when there are acute needs, particularly when there is an issue about ensuring that evidence is taken within the seven-day timeframe. As far as possible, however, we would hope that children’s physical and medical needs would be met in the barnahus when the medical needs are not acute.

As is mentioned in the policy memorandum, the Government has been clear that the barnahus is the preferred destination for child victims and witnesses across Scotland and we are now considering carefully how that will work in practice. Children 1st has just received a £1.5 million award from the People’s Postcode Lottery to begin to pilot a child’s house in one of the localities in Scotland. We are at the early stages of planning what that would look like, but it is important for the committee to be aware that this is not a vision or a pipe dream—work on barnahus is happening.

We have some concerns about parallel processes going on. We do not want to be making small improvements in silos when what is needed is a wholesale change for children and their families.

The programme for Government commits the Government to exploring how the barnahus concept can operate in Scotland. As the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill was going through Parliament, the Minister for Community Safety was really clear about the Government’s support for barnahus.

We are concerned that this bill may inadvertently cut across some of that work and have unintended consequences and impact on the progress of the barnahus approach in Scotland. The child rights and welfare impact assessment for the bill states:

“The Bill supports multi-agency working and is therefore ‘Barnahus ready’”.

However, we are not clear how that will happen in practice. How will the bill align to the barnahus provision, particularly if a pathway is being developed that would go through the rape and sexual assault task force clinical pathways subgroup? Is there guidance around how that will apply to children in relation to the bill? We are looking for a holistic interagency model of support, whereas the bill looks at a specific area.

Emma Harper

When we took evidence at the round-table session on 17 March 2020, we spoke about the processes for supporting children who have experienced abuse, and Sandy Brindley suggested that we would need a separate approach or a separate bill. I might need to go back and check the Official Report to see what was specifically said.

On the issue of unintended consequences, is one of your main concerns that there will be some silo working or some working at cross purposes, which might not take into account the best model or the best processes for children?

Chloe Riddell

We recognise that this is a vital bill and it is particularly important for adult victims. For children, we have been talking about a different kind of approach. We do not want to create separate, parallel processes for children and we do not want to inadvertently invest in lots of state-of-the-art suites that are child friendly but sit outwith a barnahus process.

Our intention is to begin to pilot barnahus; it is not something that we are looking at doing in 10 years, although I hope that in 10 years, we will have something that works across the whole of Scotland. Our caution around some of the measures in the bill is about ensuring that the bill sits within a wider framework of what works for children.

David Stewart (Highlands and Islands) (Lab)

One of the key elements of the bill is self-referral for forensic medical examinations. Are you comfortable with 16 being the minimum age for self-referral for young people? If so, why?

Chloe Riddell

That is a good question. As we state in our submission, our understanding is that child protection processes would apply for the majority of children and young people under the age of 16. We agree with the evidence from Rape Crisis Scotland—we would not want to add in what Sandy Brindley referred to as “a meaningless right”, given the statutory duties and processes, and the option to involve child protection and the police where necessary. Of course, children and young people’s safety must be of paramount concern.

10:15

We note the evidence that the committee heard last week from Dr McLellan, who said that we do not want to miss opportunities to ask young people to come forward and that there are some cases that are not quite as clear cut. We have experience of that in our own services, particularly relating to children who have been victims of child sexual exploitation but who might not necessarily recognise that they are victims. On balance, Children 1st believes that a rights-based approach to this is needed, taking into account a child’s evolving capacity, in line with the United Nations Convention on the Rights of the Child. We acknowledge that there might need to be room for professional judgment and risk assessment. We also note that Social Work Scotland has submitted evidence about the complexities of the different pieces of legislation with regard to 16 and 17-year-olds and issues around legal capacity.

Children 1st’s central point goes back to what we were talking about earlier, when we spoke about understanding why we are having these discussions about self-referral. The vast majority of children who experience sexual abuse do not receive a forensic medical examination and do not report that they have been abused. Again, we agree with Rape Crisis Scotland that we need to be much more realistic about what else needs to happen to reduce underreporting. For Children 1st, the answer is not necessarily to have broader discussions about self-referral. We would go to a much higher level than that and look at the entire system and at what needs to change so that children and families are comfortable and are able to receive a multiagency response that allows them to access support as well as justice. Children have a right to recovery, but at the moment that recovery need is not being met. Our sense is that, if there was a much more holistic response and a system that allowed children and young people to speak out in a safe way, we would not need to discuss why people are not referring and what we can do to address that.

David Stewart

I generally agree with your answer, but there have been calls from organisations such as Victim Support Scotland for the age limit to be lowered to 13. Would lowering the age not help detection and prosecution of child sexual abuse, particularly within families, where it has been historically low?

Chloe Riddell

When we add in the complexities that I set out relating to child protection, issues to do with lowering the age limit are quite complex. I do not think that it would be possible for us to have a blanket statement on 13-year-olds, because of the interaction, duties and professional responsibilities to engage with child protection and the police. Further consideration needs to be given to what evolving capacity looks like and what would be necessary to make a lower age limit a realistic option. We would probably need to do a bit more thinking and have discussions with, for example, the police, Social Work Scotland and the child protection organisations, which would be able to talk about what happens in practice.

David Stewart

My concern, as someone who worked on the front line in social work and child sexual abuse for many years, is the low detection rate. If we are talking about rights, lowering the age to 13, with the proviso that any self-referral would require to go to the police, would seem to give more rights to 13 to 16-year-olds and would, hopefully, improve the detection rate of child sexual abuse.

Chloe Riddell

As I mentioned, Children 1st’s position on that is that a barnahus process or system in Scotland, which ensured that the needs of children and families—their physical needs as well as their emotional needs—were met in one place, would provide more of a wraparound service. We would be able to meet the needs of children who have experienced abuse in one place, which, hopefully, would mean that children would feel much more comfortable talking about what has happened and disclosing abuse. That would be one way of dealing with the very low rates of referral and the underreporting of abuse, and it would ensure that abuse became much more visible.

Alex Cole-Hamilton (Edinburgh Western) (LD)

I have a follow-up question to ask before I move on to my substantive question. It is also about the age of referral.

Without the barnahus model that you have described, young people who have suffered a sexual offence have to go through a traumatic process that the committee has heard about at first hand from those who have been through it. Can you explain the trauma that might be associated with the experience of presenting at somewhere such as the Archway and of having a forensic medical examination without the wraparound support of the barnahus model?

Chloe Riddell

The children and families that we work with have often experienced lengthy delays. Some children even say that their experience of the current justice system almost retraumatises them. It adds to the trauma that they have already experienced.

Yes. Children and young people have distinct needs, particularly when they experience abuse. As it stands, the bill does not differentiate between a child and an adult, and the provisions apply only to examinations that are carried out in relation to sexual offences. We have already talked a little about our concerns about narrowing the scope to that specific area and the possibility of creating a two-tier system.

10:30

The issue is much wider than only forensic medical examinations; it is a question of creating a whole-system response to any type of abuse that includes the justice, health, social work and education systems. Children do not separate each part of the process. They do not work in silos—we do—so we have to think about the whole framework. Children are not going to think, “This is my forensic medical examination, and that bit went really well. Now, I am going to move across to my interview”. We need a whole-system response.

We have always been really clear that any proposals to strengthen and improve forensic medical examinations must align effectively with wider child protection processes. Forensic medical examinations should form part of a holistic multi-agency approach to protection needs.

There are complexities that do not apply to adults. There are certain complexities around vulnerable adults, but for children there might be interactions with hearings, for example, and also wider health and safety assessments. There is potential for children to be looked after or removed from a home if there is a risk to their safety.

It is probably worth exploring that a little further. I am not able to comment in a lot of detail. The Scottish Children’s Reporter Administration and organisations such as Who Cares? Scotland might have a view on the particular needs of looked-after children and their interaction with services.

As I said, the bill is not specific on the interaction with child protection processes. I imagine that such issues might be dealt with in a pathway or guidance, and when an assessment is made, consideration will certainly need to be given to how to keep a child safe. That will involve consideration of where the child is living and how they can access appropriate support and justice while remaining safe in their current situation.

George Adam (Paisley) (SNP)

There is a debate about children and young people who are alleged to have perpetrated sexual assault and abuse, and different organisations have different opinions. The NSPCC commented:

“NSPCC would support the provisions in the bill being extended in order that the duty on health clearly covers the forensic examination of all children. We would equally welcome a statutory basis for the provision of therapeutic interventions to address children’s harmful sexual behaviour.”

However, Rape Crisis Scotland thinks that the bill should not be extended to cover child perpetrators. What is the opinion of Children 1st on that?

Chloe Riddell

There are practical considerations that would need to be taken into account. We and I think other organisations, including Rape Crisis Scotland, mentioned in our written submissions the importance of training and resources to ensure that there are secure, safe and appropriate spaces for children and young people.

There are practical considerations around ensuring that a child under 18 who requires an examination and is alleged to have perpetrated an offence does not come into contact with someone who is accusing them of a crime, by meeting them in a corridor, for example. Those practical issues need to be thought through.

Children 1st takes a rights-based approach and would consider the rights of the child in either situation, but further thinking is needed before I can give a definitive answer to your question. We must uphold the rights of the child in both situations. We must meet the recovery needs of a child who has or is alleged to have perpetrated a crime, as well as those of a child who has experienced a crime.

George Adam

Thank you.

Brian Whittle

At last week’s meeting, we discussed the length of time for which evidence and records should be retained. From your experience, and given the potential for a person to decide to act on the evidence much later in life, how long should evidence be retained in a multi-agency context?

Chloe Riddell

We have put some detail in our written submission. There are a number of issues around the safe storage of the information that pertains to children—and this goes back to our point about there being no specific recognition of children in the bill.

Specific issues for children need to be considered. We have experience of children who have decided much later in life to revisit a disclosure. I have mentioned children who have experience of child sexual exploitation. As the Parliament will have heard during the passage of previous legislation, and as we know through our work, children often do not initially recognise themselves as victims; that understanding may take a while.

A number of young people and adults have returned to us, years after previous contact, and shared that they recognised, at that point, and in a way that they were not able to understand or communicate when they were younger, that what they experienced was grooming or abuse.

It is not cut and dried. A lot of children and young adults do not subsequently want to make a further disclosure. However, it is important that the option should be there, as much as possible. For some children and young people, having the option—to think through whether it might be appropriate for them, or might help in their recovery journey—is really important.

The question goes back to what we talked about earlier: what would prevent someone, whose forensic medical evidence was stored, from wanting to access justice? We need to take a hard look at the justice system, and why it would prevent children and families from wanting to seek justice. There is a multitude of different reasons.

If we had a multi-agency response that was child centred and trauma informed, and that allowed children and young people to share their story in a way that was not traumatising, we might be able to increase reporting, or the number of convictions, because children and families would be much more willing to share their stories.

Miles Briggs (Lothian) (Con)

Good morning, Chloe, and thank you for joining us.

I want to pick up on some of your answers to David Torrance and to George Adam, with regard to supporting children. What does the bill need to include in order to support children who have additional needs or who are disabled?

Chloe Riddell

I am trying to find my notes on that.

As I mentioned, the bill does not specifically mention children. The policy memorandum says that the Government’s view is that

“the healthcare response must be sensitive to the specific needs and circumstance of children and young people”;

however, that is completely absent from the bill.

Our view is that children have the right to recovery. In Scotland, we are about to incorporate the UNCRC, so we must make sure that we are meeting children’s recovery needs in a way that is currently not happening. There is an absence of high-quality recovery support services for children.

As we have, the NSPCC has highlighted that the bill includes a statutory duty of forensic medical examination, but not of other aspects of justice and recovery for children. The bill deals only with sexual offences. There are wider issues about the recovery needs of children beyond those who have experienced sexual offences. We do not want a system that has in place statutory obligations around children’s recovery needs for sexual offences, but no similar statutory obligations for other areas. Section 4 of the bill includes the information that is to be provided to children before examination. Section 5 is about healthcare needs. Those are the obvious places where something could be added.

However, we need to give the matter further thought before we make amendments. Children 1st’s view is that there needs to be a whole-system look at the matter, and a complete redesign of the system for children. It is not simply about additional support for children’s recovery in relation to sexual offences or forensic medical examinations; it is about the system that is in place when a child discloses abuse and it is about their recovery needs in the round.

10:45

I know that some evidence suggests that there is a need for a second bill or a part 2 bill, as was mentioned earlier. The issue for us is that wraparound holistic support must accompany forensic medical examination, whether it is in relation to sexual offences or other offences, but the bill does not achieve that, at the moment.

Miles Briggs

Thank you. That is helpful.

On including support for children in the bill, what support would you like to be put in place—for example, involving youth work organisations to provide peer support—and what would best practice look like?

Chloe Riddell

I would use some caution. I know that I sound like a broken record, but I repeat that our concern is that legislating for specific support services for children who have experienced sexual offences will leave children who have experienced other types of offences without the support that they require.

There is a huge gap in therapeutic support—the type of support that Children 1st provides, for example, where we look at the recovery needs of the child and the non-offending parent, as well as the support that other third sector organisations can offer.

You are right to mention advocacy and peer support, but that support is not specific to forensic medical examinations; it is required to meet children’s recovery needs when they have experienced abuse. It is not limited to the support that they require around a forensic medical examination; it includes support to recover from their experiences.

Our issue is that putting something on children’s recovery needs in the bill and having guidance on how that would be implemented in a pathway document would mean that we have a process that is parallel to the barnahus process. It is absolutely vital that we make sure that children can access the support that they require, but I have concerns about inadvertently putting in place things that either contradict or that unintentionally run parallel to something that is happening in the wider context for children.

Miles Briggs

You touched earlier on reporting of cases. I believe that the Barnardo’s evidence suggests that the number of cases of sexual offences that have been committed by children against other children has doubled in the past four years. What other models around the world are you aware of? I know that work has been going on in this field in the indigenous populations in Australia and North America. Is there already a model in other legal systems?

Chloe Riddell

I am not sure whether I have mentioned the barnahus approach before. [Laughter.] That approach would be the starting point for us. There are a number of examples of how it can be used; in different countries, barnahus works in different ways.

As I have mentioned, Children 1st would like to ensure that we in Scotland adhere as closely as possible to the European standards. There is some room within that to consider what has worked in other countries and what has not. We have done a number of fact-finding missions to Iceland and other countries that use barnahus. We are part of the PROMISE exchange, which is a network of countries that have implemented a barnahus model, and we are able to draw on best practice there. You are right that there is a lot that we can learn from internationally.

Of course, because we are about to incorporate the UNCRC, we can do a lot of thinking about what that looks like for children who have experienced or are victims of crime or abuse, or for children whose recovery needs must be met elsewhere.

Emma Harper

I will continue on what you said about barnahus. The policy memorandum says that the Care Inspectorate and Healthcare Improvement Scotland have been

If we incorporate children’s rights into the bill, should the child have ownership of their data, including their forensic medical records? If the child is too young for that to be appropriate, should ownership be with an advocate? Having read your submission, my greatest concern is that perpetrators, or alleged perpetrators, could access information that they could use against the child. Many others share that concern.

Chloe Riddell

Without seeing any proposals, it would be hard to comment on the specifics. In some cases, it is appropriate for information to be shared with the court in order to secure a conviction. That is the case in relation to forensic medical examinations—we need to have all the information and the evidence. However, it must be gathered in a trauma-informed way that must take into account children’s rights, so that the process is not traumatising for them and they do not feel that they do not know what is happening.

That brings us back to the high-level broader discussion about a child’s whole experience—not just their experience of forensic medical examinations, but of court processes and interviews and how they all knit together in a trauma-sensitive way that leaves the child feeling that their recovery needs have been met. We know that some systems and processes are traumatising, but rather than fix small parts of the system, we need to look at it as a whole.

The Convener

Thank you for your evidence, which is extremely helpful to the committee. I am certain that we will be following up with others some of the issues that have been raised.

That concludes the public part of our meeting. Our next meeting will be at 10 o’clock on Wednesday 27 May, when we will discuss Covid-19 testing. Additional details will be made public in the Business Bulletin and via the committee’s social media, in the usual way.

11:00 Meeting continued in private until 11:19.

20 May 2020

Fourth meeting transcript

The Convener (Lewis Macdonald)

Good morning, and welcome to the 16th meeting in 2020 of the Health and Sport Committee. The first item on our agenda is our fourth public evidence session on the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill at stage 1. We will hear from two witnesses on the provisions of the bill, with questions on matters including the retention service and data protection.

I welcome first Gillian Mawdsley, who is the secretary to the criminal law committee of the Law Society of Scotland. Welcome, and thank you for joining us.

Due to the challenges of managing a virtual meeting, we will take questions in a prearranged order. I will start with the first question and will then ask each member in turn to ask their questions, then invite the witness to respond. I ask members and witnesses to be succinct. Members—please say when you are on your final question. It would be very helpful if everyone could, please, give broadcasting staff a few seconds to operate the microphones before you begin to speak.

I will start with the first questions, on the retention service and provision in cases of self-referral. Is the Law Society content that victims in such cases should be able to request that evidence that has been collected for forensic medical examination be destroyed?

Gillian Mawdsley (Law Society of Scotland)

The bill is very important because it intersects the interests of private law, public law and, obviously, healthcare. On retention, it is fundamental that the victim or the person from whom samples are being obtained is clear about what is being obtained, why it is being obtained and what it will be used for. Therefore, it is that person’s right to say what will be kept.

That is largely about information. Fundamentally, I have, as a criminal lawyer—which is what you know me best for—always been a believer in clarity. When someone is clear about what is being done, I think that they should have the right to say yea or nay, because they have self-referred. We are not talking about a case that has gone to the police, which would move it into the criminal sphere, where the interests and balance can be slightly different.

Is that what you were aiming at, Mr Macdonald?

The Convener

Yes—that is certainly helpful. Given some of the evidence that we have heard, when a victim in those circumstances has the right to request the destruction of evidence, should a cooling-off period be applied?

Gillian Mawdsley

My understanding is that, from a scientific perspective, there might be a limited period for which samples are live for the purposes of collecting evidence. That is a problem. You will have heard from experts who are much better placed than I am to answer, but my understanding is that that period is roughly seven days, depending on what has been collected.

However, I understand exactly where you are coming from. To say “a cooling-off period” is perhaps a bit graphic; the idea is to say, “Here’s the advice. Think about it.”

That raises the role of advocacy, which the committee will come on to. Who is there to support the victim? Who is the person who allows them to leave the room? When we obtain medical or other information that we do not understand, we often take somebody else with us and we go away, we think about it, then we come back. Therefore, there is an opportunity for that to happen. The trouble is that, with the person having self-referred in the first place, it might retraumatise them to come back. There is something be said for getting it over with. However, as we see, victims’ responses are very different, and until we are in that position, we cannot say how we would respond.

I understand about giving the person time to think, but perhaps it is as much about support as it is about time. No one should be badgered about whether they might, at some point, change their mind. This is the danger: if the person is told to go away for 48 hours to think about it, then come back, will they realise that after 48 hours the sample will be worthless? There is a finite period in which to act. There are many issues, but I stress the importance of the information and support that must be given at the first point of self-referral.

The Convener

Thank you. You mentioned the possibility that some evidence is of value, in terms of a criminal investigation, for only a limited period. Other evidence might be very bulky and take up a lot of space. When evidence that has been kept for a period is due to be destroyed, should victims be notified of that in good time? When should they be notified? Should they be able to request that samples be retained, even if they have not reached the point of saying that they want to pursue a criminal case?

Gillian Mawdsley

My understanding is that the proposal is to make secondary legislation to deal with retention periods. Various periods have been talked about. The problem is when the period ends and where the line is drawn. Samples could be retained for up to two years then automatically destroyed at the end of that period, if nothing has changed. An end point is needed, but that is my personal opinion.

The trouble for the person whose samples they are is that that refreshes their experience. Their getting a letter two years down the line to say that samples will be destroyed unless they say otherwise could raise complex issues. I think that there is a point when retention should end, provided that the period is sufficiently long and the process is guided by professionals.

The Convener

Thank you. I call Brian Whittle to ask his questions. I am sorry—it is George Adam. I have the running order back to front.

George Adam (Paisley) (SNP)

There is no difference between us, convener. One of us used to be an Olympic athlete, and the other one comes from Paisley. [Laughter.]

Good morning, Gillian. On storage of some items, we heard from Dr Anne McLellan, who said:

“The problem will be the storage of large items such as a duvet or clothing. It is unrealistic to take all of that on board for an indefinite period.”—[Official Report, Health and Sport Committee, 12 May 2020; c 3.]

Does the Law Society have a view on storage of evidence such as clothing and duvets? Should that be done by the health board? What should we do with that type of evidence, and who should store it?

Gillian Mawdsley

I am aware of the physical problem of storage of productions. It is necessary to consider what the item is and to look at the rule of best evidence for the purposes of criminal proceedings. On a number of occasions, productions have been retained that were not physically required in the future. We need to differentiate between something that is required for forensic examination and the item itself being physically required. On most occasions, the item itself will not necessarily be required for criminal proceedings. There is a very well-known case that involved a poached salmon; the question was whether it was required. A clear decision needs to be taken on why we would keep an item: are we keeping it because someone might want to examine it in the future, or have we extracted from it and retained every evidential part for analysis, be it on slides or whatever? That is the first question.

There is a question of law as to whether an item is required. Clearly, keeping large items in storage costs money and will become increasingly complicated. However, I am not sure that the number of self-referrals is so high that the number of productions would be great, or that the productions themselves would be so enormous that that would cause a problem.

The matter goes back to the guidance that accompanies the legislation—it is not part of the legislation—for those who would be involved in seizing and examining items. Furthermore, even when a case has not been reported, the prosecution authority can advise on whether something should be retained, or on whether photographs can be taken.

George Adam

Finally on that, should health boards be required to store that type of evidence? Is there a need for such evidence to be stored for any length of time?

Gillian Mawdsley

There is not a yes or no answer to that. Guidance to accompany the legislation will be needed to make it clear what questions health boards should be looking at when considering whether something needs to be retained. Advice could be sought on a one-off situation that is not clear-cut.

Generally speaking, some items might need to be retained, but I suspect that, in most cases, once the scientific evidence has been extracted, photographs should suffice, unless the item is unique and needs to be retained for the purposes of defence examination in due course, if there are to be criminal proceedings.

However, that comes down to guidance that will need to be drawn up by all those who are interested and involved, and it will require relevant legal advice, because fundamentally this comes back to the fact that one would not want to lose a criminal prosecution because an item was not there for examination by the defence when required. It is about the interests of justice, and that is a question that could be seen coming down the line. Therefore, there is not a yes or no answer.

The Convener

Thank you.

Brian Whittle (South Scotland) (Con)

Good morning, Ms Mawdsley. I want to discuss the timescale for retention. I am thinking specifically of cases of historical sexual abuse and how it can be decades later that a prosecution is brought to court. Does the Law Society of Scotland have a view on the retention period for evidence in cases of self-referral?

Gillian Mawdsley

We do not have a specific view on that; advice from scientists who are involved in forensic examination is needed. They understand the conditions under which it is necessary to keep items that might need to be examined in due course, and they understand what can be extracted from items to allow appropriate examination to be carried out. I have heard mention of periods of between two and three years. I am not a scientist; I have no reason to dispute that.

My concern, which perhaps ties in with Brian Whittle’s question, is that it is important that the bill be future proofed. We are aware that advances in science might in the future make examination possible, or could mean that it might later become possible to obtain some aspect of DNA or biometric data, so there is a balance to be struck.

However, the trouble with a lot of historical sexual abuse cases is that—for example, for a self-referral now that is reported for criminal proceedings only many years from now—there is a limit on the efficacy of the actual product and the actual examination. Therefore—to come back again to the clarity that I stressed—there is an advantage to having a clear period, but that could be looked at again. The period could be kept under review, such that if scientists were to say that samples would last longer, that might be an appropriate stage at which to consider a longer period. However, that would be some way down the line.

This legislation is important, at this stage. We stressed in our evidence the need for monitoring and for taking account of all the other areas of law that are dealt with by the Parliament. For example, the Scottish Biometrics Commissioner Act 2020 has just been passed. All the legislation needs to come together.

Does that help?

Brian Whittle

Thank you—yes. I do not want to put words in your mouth; I want to be absolutely clear about what you are saying. My understanding is that, if scientists said that, for example—I do not want to be too graphic—fluids could be frozen and kept indefinitely, they could be retained. Does the Law Society have a view on that?

09:15

Gillian Mawdsley

If the scientific advice was that what was being retained could be kept indefinitely, or for the foreseeable future, I certainly do not think that the Law Society would object, provided that the victim was told that and the information was clear. We have to be guided by scientists about how long items remain effective.

Yes—thank you. I am sure that the committee would be grateful for that. Perhaps you could discuss the matter with one of your committees and drop our committee clerks a line.

My next question is probably related to the previous one, so it might get the same answer. What is the Law Society’s view of DNA samples being analysed without the victim reporting the offence?

Gillian Mawdsley

That is a difficult one, because it very much depends on the facts and circumstances of each case. We are aware that the person from whom DNA might have been extracted might not need to be a witness in a criminal proceeding. The interests of justice might override that factor in certain circumstances, but decisions would be taken on a case-by-case basis.

David Stewart

The national police care network said:

“in certain circumstances, some information may have to be handed to the police in the wider public interest—for eg. In the case of stranger rape, where”

I am not the best person to ask, because I do not represent groups of vulnerable people; people who do so would be best placed to answer your question about whether that category of client would come forward for self-referral. Vulnerable people could have concerns because of social work involvement or because of language difficulties and lack of cultural understanding arising from their background or community. A vast range of issues, including those around family members and so on, could prevent people from self-referring. It would be good to ask people who represent vulnerable groups what prevents people from coming forward; I think that myriad factors are involved.

The important point to stress is that people must be adequately supported, in whatever way they come forward. I would not want to see anyone in the system failing to give adequate support, including lawyers, when they are involved. It is important to be aware that one size does not fit all and time must be taken to ensure that vulnerable people get appropriate care and attention. In our submission, we referred to education. Not only must awareness be raised but there must be education for everybody, including those in my profession.

Sandra White

That is fine. Thank you.

David Torrance (Kirkcaldy) (SNP)

Good morning to Gillian Mawdsley. My question is about sharing best practice and continuous improvement. The Law Society of Scotland commented on section 11 of the bill, which sets out the requirement for co-operation between health boards

“in relation to the planning and provision of ... services ... with a view to securing, across Scotland, adequate provision and continuous improvement in the delivery of those services.”

What is the Law Society’s view on the sharing of best practice between NHS boards?

Gillian Mawdsley

Again, I am probably not the best person to ask about that. It goes back to a point about education that I have always raised, which is that, for best practice to prevail, there must be communication among those affected. A number of territorial boards will be involved in implementing the bill’s provisions, and I am aware that some of them were ahead of others in doing bits of work previously. The boards involved must therefore have a forum for sharing experiences.

That is why we talked about monitoring the bill’s provisions after they are implemented. I do not know how monitoring will be done, but there must be opportunities for health boards to meet and exchange experiences. I have no doubt that all that information will be pooled and distilled down as doctors, nurses and others who are involved share practices and ensure that those who are trained in the required processes get the benefit of innovative and creative methods that the territorial boards develop. I am not an expert in this area, but I know that boards will have ways of sharing, through conferences and so on. Monitoring will be useful, to see how the provisions are working and how effective they are, given that the aim of the bill is to make the situation better for the people whom the legislation serves—that is, the victims and therefore us, as the public interest.

09:30

David Torrance

How could or should continuous improvement be facilitated by legislation?

Gillian Mawdsley

Once legislation has been passed, an opportunity for review and monitoring is needed to look at whether the laudable aims of the bill, as they were set out, are being achieved. This bill involves healthcare, aspects of criminal law and other areas of law, and its purpose is to make the system clearer and better for victims and to ensure that it is easier for victims to get support and help. It is essential to monitor and review the situation and to report on how well the approach is working, in whatever period of time this committee and the Parliament feel is appropriate.

This is important legislation. Members might touch on whether it should, in due course, involve children. There are mixed views on that. It will be important to see whether and how the legislation is working before you extend it to other areas.

Miles Briggs (Lothian) (Con)

Good morning, Ms Mawdsley. Thank you for joining us today. The Law Society of Scotland’s submission states that

“absent from the Bill seems to be any provision as to ongoing monitoring and reporting of how well the delivery of these statutory functions are being achieved.”

Of course. Technology is a wonderful thing, if it works.

I was asking about the timescale for retention, which, as things stand, is not included in the bill. It will be down to the Scottish ministers to decide, through an instrument that is subject to affirmative procedure, how long that timescale will be. Does that concern the Law Society? Should there be more clarity in the bill, given what it is trying to achieve?

Gillian Mawdsley

No. Usually, we would very much promote inclusion in primary legislation, but I understood from the policy memorandum that there was not a consensus. I was happy enough that the issue would be agreed to through affirmative procedure by Parliament after appropriate consultation of the relevant parties. I see that as a perfectly appropriate use of affirmative procedure. Again, I would stress that, once the period of retention has been agreed, that very much needs to be communicated. I do not know whether what you are getting at is that there could be a review of the period of retention at some point—that is certainly the sort of thing that could be included in primary legislation. In these circumstances, though, secondary legislation by affirmative means would be appropriate.

The Convener

I thank Gillian Mawdsley for her evidence, which has been extremely helpful and was well focused on the issues that the committee will have to consider. She has given us some very clear pointers to areas on which we will want to take a lead.

We will now move to questions for Police Scotland. I welcome to the committee Detective Superintendent Filippo Capaldi. Thank you very much for joining us. I think that you will have heard the previous evidence session. We will follow a similar format in your case.

One of the issues that has caught our attention is the estimate in the Scottish Government’s financial memorandum of the potential increase in demand as a result of the new provisions in the bill in relation to self-referral. Does Police Scotland believe that those estimates of the increase in demand are reasonable?

Detective Superintendent Filippo Capaldi (Police Scotland)

Good morning, convener. The estimates that have been used are highly subjective. I know from personal experience of the self-referral process that is operating in NHS Greater Glasgow and Clyde and NHS Tayside that the numbers are very low. I think that the situation is highly dependent on the number of people who come forward for self-referral, and it is difficult to properly assess and articulate that. I have looked at the methodology, and the numbers appear reasonable. However, at present, the actual numbers for self-referral are low.

The Convener

You will know from your own sources that the Covid pandemic and lockdown have resulted in an increase in domestic abuse. We know that Scottish Women’s Aid and other organisations in that field have raised concerns about that. In your view, would that have an impact on the estimates of the potential impact? Is it a reason to reconsider the estimates?

Detective Superintendent Capaldi

In terms of reporting during the Covid pandemic, over the past 11 weeks, we have seen significant decreases in the numbers of sexual crimes and rapes that are reported to Police Scotland. The numbers are down by about a quarter on what we would usually experience, if we compare them with the numbers from this time last year. That will be a blip, so to speak. Without being blunt about it, I think that the figures will increase. We know that those crimes have not gone away and, when things settle down and we return to some normality, the reporting will increase again.

Detective Superintendent Capaldi

That work is on-going as part of the work of the self-referral sub-group of the chief medical officer task force. It is considering a number of options around the promotion of the self-referral process. For anyone who has not come to us directly, we would advise that there is an option of self-referral, through media campaigns or in the literature that we display or give out to potential victims.

09:45

Alex Cole-Hamilton

I have a couple of questions about storage and collection of evidence by health boards. Is Police Scotland confident that the evidence that is collected and stored by health boards in self-referral cases will be robust enough for your standards?

Detective Superintendent Capaldi

I think that extensive additional discussion is required on what measures, protocols and procedures health boards have in place.

It is difficult to ask doctors to make decisions on secondary evidence and on what samples should and should not be taken. In our submission to the committee, we are clear that samples that are obtained by doctors should be limited to forensic samples obtained at medical examinations.

We heard from Gillian Mawdsley in response to previous questions on the storage of certain items. That is problematic to say the least, particularly in relation to the conditions in which those items should be stored, how they are packaged and what medics seize at the time from the victim. Should we limit that to clothing? Should we extend it to bottles, cans and cups? There is the potential for DNA to be obtained from all or any of those items.

There are significant concerns about the range and nature of what should be seized and what should be stored, but I do not think that the issues are insurmountable in terms of providing advice on that and ensuring that health boards are aware of the required procedures to store, properly package and retain the evidence.

Alex Cole-Hamilton

Does your organisation share the concerns of the Faculty of Advocates that health board professionals may lack training in handling forensic samples and reports, which would potentially lead to the integrity of samples and reports being compromised? Do we need to underpin the standards and training that we would expect in guidance?

Detective Superintendent Capaldi

I suppose that the short answer is yes—we share the concerns of the Faculty of Advocates. I have read its submission. It shares the same concerns not only as Police Scotland, but as the Crown Office and Procurator Fiscal Service and the Law Society of Scotland. Again, I do not think that the issues are insurmountable, and adequate training and the provision of the correct information could achieve what is required. Forensic examiners routinely retain medical samples in the correct conditions and packaged in the correct way.

You asked about the need for guidance. I referred to the self-referral sub-group. I know that that work and those discussions, particularly on the storage and retention of samples, are on-going.

Emma Harper (South Scotland) (SNP)

I am interested in issues to do with the retention service, which we have touched on with Alex Cole-Hamilton’s questions. Does Police Scotland have any concerns about the type of evidence that should be collected and retained by health boards in self-referral cases? In recent evidence sessions, we have heard about the collection of duvets and even mattresses, and you have just given other examples, including drink cans.

Detective Superintendent Capaldi

We are quite clear in our submission that the items to be collected should be limited to forensic samples obtained during a forensic medical examination. Seizing and retaining other items might be problematic. There have to be very good reasons for doing that. That includes items such as underwear, where there may be opportunities for forensic recovery.

As I mentioned, we would have to have those on-going discussions. However, asking forensic medical examiners to make an assessment of whether an item might yield additional specific evidence probably blurs the lines between investigation and the role of the forensic medical examiner.

Emma Harper

We know that the optimal time for the collection of evidence is between day 1 and day 7, and that it is better for forensic evidence such as cells, fluids and samples for DNA analysis to be obtained as early as possible. However, photographic evidence is also critical, and bruising and bite marks can develop over days. Could important evidence be lost if health boards are not able to store it? There are alternative ways to store evidence—for example, through the use of photographic evidence.

Detective Superintendent Capaldi

10:00

Detective Superintendent Capaldi

That is a very difficult question. When we process items at our lab, we have DNA extraction and a DNA profile. Loading that on to a database would probably necessitate a search against the national database. If we subsequently get a hit on that DNA for a named individual, what do we do with that? Where do we go with it?

Although there are benefits, there are ethical issues around the storage and retention of that information for individuals, and it might cause more problems than it would solve. It would be very beneficial for us from an intelligence-gathering point of view, but we would need to look at how we would act on that intelligence and progress that aspect of the inquiry.

Miles Briggs

I have some questions on advocacy, which you touched on in response to Emma Harper. Does Police Scotland believe that advocacy services should be available for victims? What model do you currently use?

Detective Superintendent Capaldi

Yes, is the short answer. Since the establishment of Police Scotland in 2013, we have developed close links with Rape Crisis Scotland. At the point of reporting, we offer advocacy to victims of serious sexual crime, which has significant benefits. [Inaudible.]—engage with them or stay engaged throughout the process. It is one aspect of the overall package of provision to individual victims.

With Rape Crisis Scotland, we operate a model of self-referral at the point of reporting. We offer that to every victim of rape and serious sexual crime and, to date, we have found it to be very beneficial. However, a concern that has been highlighted with the self-referral process is that we are asking a lot of medics—doctors and/or nurses—if we are asking them to provide that initial advocacy support as well as look at the evidential requirements. Are we really asking that of doctors and medics? Are we asking them to focus on the health and wellbeing of potential victims, or are we asking them to provide that early evidence capture as well as the on-going healthcare and treatment?

Police Scotland certainly supports advocacy for self-referral cases.

Miles Briggs

That is helpful. One area that we have not been able to pursue in the bill is same-sex victims. From your experience, what is the current level of such victims in Scotland? Is the same advocacy provided to them?

Detective Superintendent Capaldi

I do not have the stats on the reporting of that to hand. We know from a recent look at our statistics for rape—[Inaudible.]—per cent of victims were female and 4 per cent were male. That is the kind of breakdown that we have at the moment. However, we know that such crimes are vastly underreported for a variety of reasons, so we do not know the true numbers. There is no differentiation—[Inaudible.]—female, gay, bisexual or lesbian. Any victim of a sexual crime is offered services via the advocacy support route. No distinction is made on the basis of someone’s sexuality.

The Convener

Thank you. Does Miles Briggs have a final question?

Miles Briggs

I do. The sound was breaking up during the evidence on statistics, so maybe Detective Superintendent Capaldi could provide them to the committee after the session. Wider information would be useful.

Would Police Scotland welcome the inclusion in the bill of a statutory right to independent advocacy, or do you think that it is already in place, so we do not need to legislate?

Detective Superintendent Capaldi

I do not think that there is a requirement to legislate—[Inaudible.] Existing agreements and alliances with the third sector, particularly advocacy support services, are sufficiently robust. It is probably more for the health boards to have an on-going discussion about the provision of advocacy support at the point of self-referral. I am relatively comfortable with what we have in place for—[Inaudible.]—but there might be a small gap when it comes to self-referral. We have identified that gap, so we should put provisions in place to fill it.

The Convener

Thank you. Emma Harper has a brief final supplementary.

Emma Harper

I will pick up on the importance of advocacy. The Rape, Abuse & Incest National Network in the USA reported the statistics that 45 per cent of rape is perpetrated by a person with whom the victim is acquainted and 25 per cent is perpetrated by a current or former partner. I assume that that makes it challenging to prosecute; it also shows how important advocacy is in supporting the victims.

Detective Superintendent Capaldi

I would not disagree with those figures. From my experience, familial sexual abuse is a significant problem and is vastly underreported. [Inaudible.]—close relationships is also, unfortunately, too common in some of the reports that we get. Ultimately, we would encourage people to come forward; some will require more support than others, and advocacy will play a key role in ensuring that people have the confidence and faith in the police and the justice system—[Inaudible.]—these matters.

The Convener

I thank Detective Superintendent Capaldi very much for his evidence.

I apologise to people who have been following proceedings for the fact that, at times, the sound quality has been poor. We will check the Official Report when it becomes available—I am sure that both our witnesses will do the same—to make sure that there are no gaps in what has been said. However, we have certainly found the evidence of Gillian Mawdsley and Filippo Capaldi extremely helpful.

That concludes the public part of this morning’s meeting. The next meeting of the committee will be next week and will be notified in the Business Bulletin and via the committee’s social media.

10:08 Meeting continued in private until 12:00.

9 June 2020

Fifth meeting transcript

The Convener

The fifth item on our agenda is a final public evidence session on the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill, at stage 1. We have discussed a number of issues with witnesses in previous evidence sessions, and the committee has also received significant written evidence. This meeting is an opportunity to discuss the Scottish Government’s position on the issues.

I welcome Jeane Freeman, the Cabinet Secretary for Health and Sport. She is accompanied by Dr Gregor Smith, who is the interim chief medical officer, Greig Walker, who is the bill team leader, and Tansy Main, who is the unit head in the CMO’s rape and sexual assault task force. I thank you all for joining us.

We will ask questions in a prearranged order. I remind members and witnesses to keep questions and answers succinct and, please, to give broadcasting staff a few seconds to operate the microphones before you begin to ask a question or provide an answer. Members should, please, indicate when they are on their final question. I invite the cabinet secretary to make a short opening statement.

The Cabinet Secretary for Health and Sport (Jeane Freeman)

Thank you, convener, and good morning to you and colleagues. I offer my apologies for the technical problems that we had at our end, which have held you up.

Thank you for continuing your scrutiny of the bill at what is a uniquely challenging time. The progress of the bill sends the important message that we are committed to improving the experience of victims of sexual crime in the health and justice systems.

I record my appreciation for all the staff who work in those services, notwithstanding the fact that they have also been addressing the challenge of the pandemic. I give my grateful thanks to Dr Gregor Smith, the interim chief medical officer for Scotland—who, as the convener said, has joined me this morning—for providing continued national leadership of the task force that is overseeing improvement of the relevant services across the country.

This is an important and focused bill that we, as a Government, have chosen to prioritise. It will underpin the work of the task force, which has firmly positioned forensic medical services first and foremost as a healthcare response. All health board chief executives have committed to delivery of sustainable trauma-informed services, in line with national Healthcare Improvement Scotland standards.

Transformation in the response to rape and sexual assault is already well under way through the work of the task force, and is supported by Government funding of £8.5 million over three years. Together, the work on the bill and the task force address recommendations in Her Majesty’s Inspectorate of Constabulary in Scotland’s report from 2017.

As I set out in my letter to the committee on 5 May, a comprehensive package of resources has been developed to ensure consistency in the approach to pathways of care, as well as to recording, collation and reporting of data in relation to services. Implementation of the clinical pathway, national documentation and national data sets for adults has been delayed due to Covid-19, but plans are now being developed to deliver virtual training for health boards to prepare them for implementation of a wider package of resources covering all age groups before the end of the calendar year.

Other important improvements are also being progressed over the next 12 months, including development of the role of nurse sexual offence examiners, implementation of a national clinical information technology system, and preparation of health boards for commencement of the bill.

I welcome the committee’s having spoken to survivors of rape and sexual assault; the Government shares the committee’s commitment to learning from people with lived experience. I was heartened that Sandy Brindley of Rape Crisis Scotland acknowledged in her oral evidence that improvements to victims’ experiences resulting from the work of the task force are beginning to bed in, particularly in recent months.

The bill will enshrine in law an holistic healthcare and recovery focused model, and will provide access to self-referral consistently across Scotland. That will mean that when a person who has experienced rape or sexual assault does not want to tell the police straight away, or is undecided, the health board will be able to obtain certain forensic evidence and keep it safe. If the person decides not to tell the police, the evidence will be destroyed after a period, or on request. That choice being available to people after a significant trauma is vital to giving them control over what happens to them at a time when control has been taken away.

I emphasise, however, that the principles of trauma-informed and person-centred care will apply whether or not a police report is made. The bill supports the delivery model of a co-ordinated multi-agency service to ensure a smooth pathway of care for the person. In that regard, I consider the bill to be barnahus ready.

A number of issues have been raised with the committee, and the committee will have a number of questions. I and my colleagues look forward to answering your questions.

The Convener

Thank you, cabinet secretary. As you said, the committee heard directly from survivors of rape and sexual assault. We heard from Sandy Brindley in person, as well as in writing. She put on the record that the single most important issue for survivors is access to a female doctor or examiner. How confident is the Scottish Government that, through the bill and the other changes that you have described, victims of rape and sexual assault will have a real choice about the gender of the examiner?

09:45

Jeane Freeman

I am confident about that, based on the following. I say first that I agree completely that people should have that choice; it is particularly important in circumstances such as we are discussing.

Now, some 61 per cent of sexual offence examiners are women, and 70 per cent of the doctors who have completed NHS Education for Scotland’s essentials in sexual offences forensic examinations foundation training are women. In addition, introduction of the role of nurse sexual offence examiner improves availability of choice, and work to maximise choice across the country will continue.

There are clearly some restrictions to that. For example, where a team of sexual offence examiners is predominantly male, those individuals will be on contracts, so we have to find other ways to add to the number in order to offer choice. The task force has that work well in hand. The 61 per cent figure is, however, a significant improvement and illustrates the commitment to ensuring that choice is available.

The Convener

We heard from Dr Anne McLellan from NHS Lanarkshire about the work that is being done at regional level, with what are, in effect, recruitment networks. She spoke about the potential benefit of a national network for recruiting female examiners. Do you envisage recruitment causing a difficulty? Are there, for example, issues in recruitment of paediatricians for instances in which a paediatrician would be appropriate? What is your view of the mechanism for identifying and recruiting female examiners, and networking in that regard?

Jeane Freeman

There are two points to make in response to that. With your agreement, I will ask Dr Smith to contribute on this.

Again, I might ask the chief medical officer to comment, but I am cognisant of the debate, the different views on the issue and the many strongly held opinions and powerful points that have been made. I am open to discussion of whether there is a case to be made for us supporting a lower age. As I said, consensus was reached on the age of 16. As I have noted, other arguments favour an age limit of 18, but it seemed to us that 16 would fit in with the age of majority in other areas of life in Scotland. We are happy to have a further discussion on that aspect.

Gregor Smith might want to add something on the process that was undertaken to reach the position in the bill.

Dr Smith

The age threshold is an important area for discussion. As the proposals were developed, there was a great deal of discussion with stakeholders, in particular about whether, on balance, the age for self-referral should be 13, 16 or, as the cabinet secretary mentioned, perhaps even 18. The strongest view among the clinical community in particular, which balanced the aims that self-referral is intended to achieve with the need to ensure that we safeguard young people, was that 16 is the right cut-off point.

We have always adopted a position of being open to further discussion on the matter, but we should recognise that the current clinical consensus, which balances all the needs that relate to young people, sits with the age of 16.

David Stewart

As I said, there is no straightforward yes or no answer. We would certainly not want healthcare facilities to bar individuals who are alleged perpetrators but, equally, I understand that there will be circumstances in which it would not necessarily be appropriate for such facilities to be used.

Brian Whittle

I will move on to a question about retention services and the retention periods for evidence that is collected from forensic medical examinations. I should probably declare an interest in that I have been working with a constituent over the past couple of years regarding historical sexual abuse. The case, which goes to trial tomorrow, is from 40 years ago. You will therefore understand my interest in this line of questioning.

We heard in oral evidence that there is a lack of consensus on the matter between organisations, and I can understand that. What progress has been made on seeking a consensus about the appropriate timescale for the retention of evidence?

Jeane Freeman

Quite a lot of work has been done on that, and my colleagues may wish to add to what I am about to say. A group that is part of the task force’s self-referral sub-group is working to develop a national protocol under which the provisions of the bill would be implemented.

At the moment, the sub-group that is developing the protocol is doing so on the basis that the evidence that will be retained will be, as it is now, in accordance with the guidance published by the Faculty of Forensic and Legal Medicine, which sets out what forensic examples should be obtained following a rape or sexual assault. That guidance applies in both police referral and self-referral cases.

At the moment, the sub-group considers that biological samples will be retained, which might also include images from a colposcope from an internal examination and, if relevant to the case, underwear, sanitary wear or condoms. The clinician will be able to judge what is required, on the basis of the information that the complainer has provided to them. In the rare circumstances where there is evidence of ejaculation on clothing, the clinician would make a decision about whether to retain that item. If they were in any doubt, they could contact the lead scientist at the Scottish Police Authority, who is on call 24/7, to check whether they think that retaining that item would provide an opportunity for a DNA analysis and have some evidential value.

The two health boards in Scotland that currently provide self-referral are of the view that when we have a national protocol, all health boards should take the same approach, which should be limited to the evidence that I have just set out: biological samples; underwear and so on, if required; and, in exceptional circumstances, another item of clothing. However, there is no proposal at the moment to retain large or bulky items, or anything that might be within the scene-of-crime remit, which is very much investigative territory that resides with Police Scotland.

Sandra White

On the SPA analysing samples in the way that Ms White described, I cannot see the value of that. We should remember that we have properly trained sexual offence examiners, whose training includes not only how to secure samples with evidential value, but how to know where those samples might be and how to go about that exercise. I am therefore not entirely sure where the value might be in bringing in the SPA. Who would decide that and what would that add to the process? I could be wrong, and the committee might want to say more to us about that but, at this point, I do not see what the value of that might be.

Sandra White

I must admit that I agree with you. I think that that would go against the grain of the bill.

There has been talk about anonymous databases. Has the Government considered establishing an anonymous DNA database?

Jeane Freeman

The most recent written evidence from Police Scotland and the UK Information Commissioner’s office cautions against any anonymous DNA databases, and the Crown Office has been clear that a proposal to do that would need how that would operate to be fully defined before it would comment on it.

I know that the issue has arisen in the stage 1 evidence, but it has not been consulted on. The existing national UK and Scottish DNA databases, which contain DNA profiles of people who are suspected or convicted of having committed a crime, are subject to pretty rigorous legal and governance controls. We have not considered the matter, but if the committee wants to make any points to us about it in its stage 1 report, I will, of course, consider them along with any other points that it makes.

Emma Harper

Good morning, cabinet secretary and witnesses. I thank you for the work that you have done so far.

I am interested in the process for raising public awareness of self-referral and signposting services. How do you envisage people being made aware of self-referral services?

Jeane Freeman

A workstream that is chaired by Rape Crisis Scotland is undertaking a feasibility study and an options appraisal to consider how individuals will access self-referral services—in other words, how they will be made aware of their existence—and is looking across to see what other partners might help in the delivery of that. A national awareness-raising campaign is being considered, and the group is consulting other stakeholders, including deafscotland, the Royal National Institute of Blind People, People First (Scotland) and Young Scot, as it progresses that work to try to ensure that it captures as many contributions as possible before it determines how we will raise public awareness and perhaps target specific groups of people to ensure that they know that the services exist.

Emma Harper

I am sure that there has been consideration of targeting the black, Asian and minority ethnic community in a national public awareness campaign. Can you touch on that a wee bit?

Jeane Freeman

I did not name that community, but it will, of course, be part of the range of stakeholders in the group of consultees in the workstream that is led by Rape Crisis Scotland. We want to be able to reach a range of groups, such as young people, the BAME community, of course, and the Traveller community. The messages that are conveyed should be consistent, but the means by which those messages are channelled will differ, depending on the group.

I am sure that the sub-group of the task force will come back with some key pieces of information that it wants to ensure that people receive and, I suspect, a range of methods by which that should be promulgated. That should be consistently followed up, because there is no point in just doing a big “Ta-dah!” moment at the point when a service becomes available—we want people to be consistently aware of it. Of course, we want to ensure that other important partners such as Police Scotland have information that they can pass on to individuals who might benefit from the service.

Emma Harper

I should have also mentioned that persons with additional support needs should be considered.

Dr Smith

Advocacy is becoming increasingly important in all aspects of healthcare, and the bill should be no different. The Rape Crisis Scotland advocacy project has been helpful in informing, through the task force, the approach that we should adopt.

David Torrance (Kirkcaldy) (SNP)

How will health boards be encouraged to co-operate with one another and share best practice? How will that be overseen and monitored?

Jeane Freeman

The CMO may want to add a few words to what I have said on the implementation of the national clinical pathway.

Our health boards are heavily involved in the work of the task force, and the bill will underpin that work. The national service, protocol and standards are designed to involve our health boards but not be open to local interpretation. It is a national service that boards are required to deliver and report on, according to various quality standards. Underpinning that is the clinical approach—the CMO may want to add a few words on that.

Dr Smith

I emphasise to the committee the degree of co-operation that has taken place, not just in the clinical community but between the clinical community and the wider group of stakeholders, in relation to the aims of the task force and what we are trying to achieve with the legislation.

There are various ways in which we can start to achieve consistency of approach across the country. The first of those is through the specialty organisations—the Faculty of Forensic and Legal Medicine, for example—that are associated with this area of work. There are also the clinical networks that have formed between forensic medical examiners throughout the country, which have broadened over time to include other disciplines and professions.

I could also point towards the co-operation that has occurred between boards to develop regional approaches to care, all with the aim of achieving much greater access, and quality and consistency of service. Underpinning all that are the national clinical pathways that are being developed and the national quality standards that were developed by Healthcare Improvement Scotland, which were launched first on an interim basis and then more fully in March 2020.

All that points towards different vehicles that we can use to maximise the enthusiasm and eagerness to continue to improve care, and to harness the broader clinical communities in a way that gives them something to wrap their approach around.

We continue to explore different ways that we might continue to enhance that in future, for instance through the emergence of a managed national clinical network. As I say, though, we have a variety of approaches to ensure that there is consistency in the quality of services across the country.

David Torrance

Jeane Freeman

I wondered why you had not asked me anything about technology, Mr Whittle—I thought that it might have been a first, but there we go. If you do not mind, I will ask Tansy Main to respond in detail to that question.

Tansy Main

The package of resources that the task force will introduce before the end of the current calendar year includes new national forms to ensure that information and data from forensic medical examinations are collated consistently across Scotland. The forms will initially be paper based, but we are already working on a national clinical information technology system for the whole of Scotland, which will mean that the forms will be online and the information can then be transferred to the analysts in Public Health Scotland, who will use the data to assess health board performance against the Healthcare Improvement Scotland quality indicators. Part of that clinical IT system will provide the functionality to enable things such as colposcope images to be retained securely on file.

I am not sure what Brian Whittle means when he asks about how long information will be kept. The clinical IT system will contain a mechanism to ensure that, when the end of the retention period is reached—whether or not that is determined to be two years and two months—the forensic information will be deleted from that record, and only health information will be retained.

The Convener

I thank the cabinet secretary and her officials for taking part in the meeting. That concludes our formal evidence session, and we now move into private session.

10:45 Meeting continued in private until 11:35.

23 June 2020

17 March 2020

12 May 2020

20 May 2020

9 June 2020

23 June 2020

Health and Sport Committee Committee's Stage 1 report

Find out what else the Health and Sport Committee is doing.

Delegated Powers and Law Reform committee

This committee looks at the powers of this Bill to allow the Scottish Government or others to create 'secondary legislation' or regulations.

Read the Stage 1 report by the Delegated Powers and Law Reform committee published on 31 January 2020.

Find out what else the Delegated Powers and Law Reform Committee is doing.

Debate on the Bill

A debate for MSPs to discuss what the Bill aims to do and how it'll do it.

Stage 1 debate on the Bill transcript

The Deputy Presiding Officer (Christine Grahame)

I have completed the cleaning process up here, which is why there was a delay.

Our next item of business is a debate on motion S5M-22884, in the name of Jeane Freeman, on the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill. I invite members who wish to take part in the debate to press their request-to-speak button now.

14:59

The Cabinet Secretary for Health and Sport (Jeane Freeman)

I am pleased to open the stage 1 debate on the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill. At the outset, I repeat my thanks to the Health and Sport Committee for continuing its scrutiny of the bill at a uniquely challenging time for our country. I also extend my thanks to the Finance and Constitution Committee and the Delegated Powers and Law Reform Committee for their work on the bill at stage 1. I hope that the progression of the bill by the Parliament at a time when we have necessarily had to reduce areas of our planned legislative programme sends the very important message that we are collectively committed to improving the way that the health and justice systems support victims of sexual crime. Finally, I thank the staff who have continued to deliver high-quality services to victims of sexual crime throughout the pandemic.

As the Health and Sport Committee has recognised, the bill puts the holistic healthcare needs of victims first. The bill will enshrine in law the fact that the service is a health board responsibility; it will provide a legal framework to ensure consistent access to self-referral across Scotland; and it will deliver on two of the key recommendations in the strategic review that was published by Her Majesty’s Inspectorate of Constabulary in Scotland.

Self-referral means that, if a person who has experienced rape or sexual assault does not want to tell the police straight away or is undecided, the health board can obtain certain forensic evidence and keep it safe. If the person decides not to tell the police, the evidence will be destroyed after a period of time or on request. Having that choice available to people after a significant trauma is vital to giving them control over what happens to them at a time when control has been taken away.

David Stewart (Highlands and Islands) (Lab)

The cabinet secretary will know that there was some debate in the committee about the age of consent. Will she undertake to keep under review the age at which young people should make a decision about that?

Jeane Freeman

I undertake to keep that under review, and I am sure that we will return to that issue when we get to stage 2. I note that Rape Crisis Scotland and the Law Society of Scotland support the position that we have taken at this point in the bill process. However, as with other matters, we should be open to further discussion and to keeping that under review.

It is important to be clear that the principles of trauma-informed and person-centred care will apply whether or not a police report is to be made.

There has been very strong support for the bill’s objectives, with 91 per cent of respondents to the 2019 consultation agreeing with the proposals in the bill. The chief executive of Rape Crisis Scotland welcomed the bill and said that it was a “significant ... step” that had

“the potential to transform how forensic services”

are delivered.

I am pleased that the committee’s stage 1 report welcomes the bill. It recognises that the bill will help to improve the experience of victims of sexual crime across Scotland.

The bill will underpin the work of the chief medical officer for Scotland’s rape and sexual assault task force, which was set up in April 2017 to provide national leadership for the improvement of services in response to the 2017 report by Her Majesty’s Inspectorate of Constabulary in Scotland. I put on record my sincere thanks to our former chief medical officer, Dr Catherine Calderwood, for her support and leadership in driving that work forward.

A five-year work plan that was published in October 2017 set out actions across a range of issues, and the bill is one important part of that. Through the work of the task force, and supported by funding of £8.5 million, the transformation of the national health service’s response to rape and sexual assault is already well under way. Healthcare Improvement Scotland published national standards in 2017 to ensure consistency in the approach to healthcare and forensic medical services and to reinforce the high-quality care that everyone should expect. All health board chief executives have committed to working towards the delivery of sustainable trauma-informed services, in line with those standards. Quality indicators underpinning the HIS standards were published in March this year, and health board performance against those standards is being closely monitored.

Another key recommendation was the establishment of dedicated healthcare facilities across Scotland. Funding is being invested in all 14 territorial health boards to enhance existing, or to create new, sexual assault response co-ordination services across the country, in line with the national service specification. All examinations that were previously located in a police station have now moved to an appropriate healthcare setting, which paves the way for a national model of self-referral. Funding is also being provided to develop regional centres of expertise to support those local sexual assault response co-ordination services.

We know that having access to a female sexual offence examiner is very important for anyone who requires a forensic medical examination following a rape or a sexual assault, and improving that access was an early priority for the task force. Since 2016-17, funding has been provided to NHS Education for Scotland to provide specific training for doctors, with the aim of increasing the number of female examiners who are available to undertake that work. That training is also open to nurses who are involved in providing trauma-informed care for victims. In response to Covid-19, NHS Education for Scotland is now delivering key elements of that course virtually to ensure that demand for the training continues to be met.

Baseline workforce data indicates that 61 per cent of sexual offence examiners in Scotland are now female, which is an increase of around 30 per cent on the indicative figure in the 2017 HMICS report. The task force is committed to developing the role of nurse sexual offence examiners, as recommended by HMICS. For the first time in Scotland, two appropriately qualified and experienced nurses are currently being recruited to that role, which will mean that they can undertake the forensic medical examination of a victim of rape or sexual assault and give evidence in court, as doctors currently do. I am grateful to the Lord Advocate for his willingness to explore and evaluate that important initiative.

I am also delighted to announce that we are funding 20 priority places on a new postgraduate qualification in advanced forensic practice at Queen Margaret University, in Edinburgh. Those funded places bring the total funding allocated to the task force to develop the role of the nurse sexual offence examiners in Scotland to £250,000. The QMU course, which starts in January next year, will offer the first qualification of its kind that is available in Scotland. Enabling access to that training is vital to developing a multidisciplinary task force and a workforce for the future, so that health boards are better placed to offer a female examiner if that is the person’s preference.

Other important improvements that are being progressed include the development of a national clinical information technology system, which is due to go live in spring next year. Before the end of the calendar year 2020, the task force will launch a comprehensive package of resources to ensure a consistent national approach to the recording, collation and reporting of performance data on those services.

The package includes Scotland’s first national clinical pathway for adults as well as for children and young people, which the committee has recognised will sit alongside the bill. Work is also well under way to develop a robust protocol for health boards on how to maintain the chain of evidence in a way that meets the requirements of the Scottish criminal justice system; to prepare for a public consultation on the appropriate retention period for evidence that is obtained from a self-referral examination; and to progress plans around how individuals will access self-referral services. That work is being carried out together with a national awareness-raising campaign, so that people know about the options that are available to them. All that preparatory work will help to ensure that health boards are ready for the commencement of the bill.

In my remaining time, I will briefly address the Health and Sport Committee’s recommendations in its stage 1 report. The committee has delivered a fair and full report, which was no small challenge given the wide range of oral and written evidence that was provided to it, which, in some respects, offered quite different perspectives on key matters. The Government’s response to that report was published on 25 September, and I hope that members will have had an opportunity to review that ahead of the debate. I am pleased that we can support a number of the committee’s recommendations, particularly those concerning a new delegated power to modify the minimum age for accessing self-referral, a statutory annual reporting requirement and a revised data protection impact assessment for the bill.

On the first of those recommendations, I consider it prudent that the minimum age for accessing self-referral remains prescribed at age 16, in line with current clinical practice and the most relevant and applicable legislation, while we are keeping open the possibility of that age changing in the future should wider changes to law and guidance make that appropriate.

Alex Cole-Hamilton (Edinburgh Western) (LD)

Does the cabinet secretary recognise that, when children are sexually assaulted or even raped, that can often happen at the hands of somebody they know? Does she recognise that, by setting the minimum age of self-referral at 16, a problem can be created for children who might otherwise come forward for forensic examination but cannot do so with a parent?

Jeane Freeman

I recognise the point that Mr Cole-Hamilton raises. As I said in response to Mr Stewart, I am open to further discussion at stage 2, with the committee and others, of what we might do to begin to address some of those concerns. We can tease some of that out in full at that point.

Although the Government has not been able to support the committee’s other recommendations for stage 2 amendments at this point, I hope that the Government’s response demonstrates that the matters that are highlighted are recognised as being important; that significant non-legislative work is already in train through the work of the chief medical officer’s task force to address them; and that, as I have said, I remain open to further discussion with the committee and members at stage 2.

Sandy Brindley, the chief executive of Rape Crisis Scotland, is one of the many stakeholders who have supported and influenced the development of the bill. Ms Brindley indicated to the Health and Sport Committee that improvements in service delivery are bedding in and making a real difference to survivors.

I invite the Parliament to endorse the bill, to complete the journey from a policing model of forensic medical services to a model in which the wellbeing and recovery of victims are, rightly, our prime considerations.

I move,

That the Parliament agrees to the general principles of the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill.

The Deputy Presiding Officer

Thank you very much, cabinet secretary. I can see from my screen that only one member has pressed their request-to-speak button—just as I say that, a few faces have appeared on my screen.

I call Lewis Macdonald, the convener of the Health and Sport Committee, to open on the committee’s behalf.

15:11

Lewis Macdonald (North East Scotland) (Lab)

As the convener of the Health and Sport Committee, I am pleased to speak to our report on the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill.

We support the objective of putting people first, so let me start by thanking all those who assisted the committee with our scrutiny: those who responded to our call for views, those who gave evidence in person or online, and, not least, the committee clerks and other Parliament staff who enabled our report to be made despite Covid-19 and the circumstances that it caused.

I particularly thank those women who had suffered rape or sexual assault who spoke to us back in March, facilitated by Rape Crisis Scotland. We were truly grateful for the insights that they offered, as well as deeply impressed by their courage in doing so.

As we have just heard, the bill will require national health service boards to provide forensic medical services to victims of sexual offences and will allow victims over the age of 16 to refer themselves to the NHS for forensic examination before deciding whether they want to report to the police.

The committee supports those changes and, more broadly, we support the general principles underlying the bill. Those principles are that victims should be given choice, through the power to consent, and control—the very things that were denied to them by the perpetrators. Placing a duty on NHS boards to provide those services and allowing victims to self-refer to the NHS gives individuals the opportunity to decide whether and when they want to report a sexual assault to the police. That gives them the choice, first and foremost, to get the medical and healthcare support they need, which may help to reduce future psychological trauma. At such a time, the victim’s health and wellbeing must be the top priority. The decision on reporting to the police and undergoing the process that follows that can be a secondary and separate choice for the individual to make.

Self-referring for a forensic medical examination allows victims to make decisions about what happens going forward. Section 4 of the bill details the information that individuals must receive before an examination takes place, which allows them to give their informed consent to what happens next. Under the bill, individuals should have the right to control what happens next, after they have self-referred. They can control whether and when they enter the criminal justice system; they can control the timing of reporting an incident; and, if they choose not to report an incident to the police, they can request that the collected evidence be destroyed and any clothing or belongings returned to them.

We support the legislation in principle, as a step forward in putting victims’ needs and rights first and improving access to forensic medical examinations. Those are things that the victims of such offences told us were greatly needed.

Our report concentrates on areas where we think that the bill, as it is currently drafted, might not quite achieve its three fundamental objectives; where we think the bill needs to be strengthened to make sure that everyone gets the support they need; and where we need to make sure that its laudable rights and principles will work for all those who need to access such services.

People will benefit from the right to self-refer only if they know the right is there. By its nature, the bill and its provisions might not be widely discussed. Many people will not consider the process until after they are victims of sexual assault, and, in those circumstances, it is understandably difficult for victims to be clear about what to do next. Self-referral will benefit victims only if they are, or someone they confide in is, aware that it is an option.

We believe that there needs to be a focus on raising public awareness of the principles, rights and choices in the bill by making information readily available and easily accessible to everyone. There also needs to be an early and on-going public awareness campaign as the law comes into force. It should be accompanied by local online content, and actual information should be made available in healthcare and police settings.

The Government’s response is that it will achieve that by providing dedicated sexual assault telephone lines as the first point of contact. That is welcome, but I ask the Government to consider the risk that such a service might be visible only to those who have already taken the first step of presenting and to consider what more can be done to reach those victims who simply do not know that such dedicated phone lines exist. Likewise, those who present to the NHS to access self-referral services need clear information to allow them to make informed choices.

Psychological and physical trauma following an incident can have devastating effects on individuals. We are, therefore, delighted to see the Scottish Government’s commitment to trauma-informed care and that it has informed the bill, but we think that it is important that the bill explicitly requires NHS boards to deliver trauma-informed care. That is another of the committee’s recommendations.

That should go hand in hand with a statutory right to independent advocacy. If people are to have the choice and control to make informed decisions, they might well need support to do so, especially if they are suffering from psychological trauma. We do not believe that advocacy should be offered on a case-by-case or opt-in basis; it should be a right that is provided to everyone as standard across every service. Individuals must be given the choice and the opportunity to accept, to decline or to opt out of receiving such support if they so wish.

Advocacy support should be on-going from the moment of engagement, through interaction with the health service, once the individual has returned home, and through all subsequent interactions with Police Scotland and the court process. We look forward to hearing how that can be achieved consistently across Scotland.

We will undoubtedly reflect on the Government’s response that this is, first and foremost, a health bill. That might well be true, but it is also a justice bill, and the portfolio heading should not be what decides the provision of vital support. Much of the point of the bill is about services being joined up and the provision of support throughout the whole experience of examination, reporting and, ultimately, prosecution.

In the spirit of delivering trauma-informed care, we believe that the bill should seek to eliminate any potential for further trauma in the process itself. Victims of rape and sexual assault, as well as organisations that are working to support them, were clear on two priority areas. First, we need to ensure that there are no delays in forensic examinations, thereby minimising the psychological impact on victims who are unable to shower or change following an incident. The second priority is that we give victims the opportunity to choose the gender of the person carrying out the examination. I was pleased with what the cabinet secretary had to say on that matter. Many of the women who are victims of rape or sexual assault say that guaranteed access to a female examiner would be the most important single improvement to the current system.

We have, therefore, recommended that the bill should be strengthened to require a 24/7 forensic medical examination service and to guarantee victims the right to choose the sex of the examiner. Those recommendations are vital to support and give choice and control to people who have experienced such crimes.

Again, I note the Government’s response and the intention to report when delays exceed three hours. The risk could be that three hours becomes by default an “acceptable” time to wait. Reporting on the operation of the service should therefore also have a strong focus on actual waiting times, to encourage the service to do everything possible to meet the needs of those who are seeking assistance.

For the bill to deliver on its fundamental principles and its main policy objective of improving the experience of people who have been affected by sexual offences, there also needs to be robust monitoring, evaluation and learning from experience. We have, therefore, further recommended that IT systems should be in place to collect, store and access data from services across Scotland, alongside an annual reporting requirement on NHS Scotland to evaluate and drive forward service improvements. Joined-up and effective online health records have been called for by the committee in report after report this session. I hope that the cabinet secretary will agree that this is one of the many areas in which achieving that objective could make an enormous difference to service users.

In conclusion, the committee unanimously supports the general principles of the bill while seeking further clarification on the issues and concerns that we raised in our report. I am sure that the cabinet secretary will reflect further on our report, this debate and the concerns that were raised by witnesses in the committee’s inquiry, and that the bill will, as a result, be even better and stronger after stage 2.

The Deputy Presiding Officer

We have some time in hand, so I will be light on timings—to an extent. I have made Mr Cameron smile.

15:20

Donald Cameron (Highlands and Islands) (Con)

I refer members to my entry in the register of interests as a member of the Faculty of Advocates.

I welcome the opportunity to open for the Scottish Conservatives in this important debate at stage 1 of the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill. We will support the bill at stage 1 and we welcome its long-overdue introduction. It is another step forward in delivering a system that ensures that victims are put first—something that Conservative members have long advocated.

I am delighted that not only my colleague Brian Whittle, who sits on the Health and Sport Committee with me, but Liam Kerr, our justice spokesman, and Margaret Mitchell, who was for a long time the convener of the Justice Committee, will be speaking for us today. As Lewis Macdonald pointed out, there is a cross-portfolio element to the bill and I am pleased that the Scottish Conservative speakers reflect that.

I pay tribute to all my colleagues who sit on the Health and Sport Committee and to the clerking team for their work in drafting the report. Although I now sit on the committee and was among the MSPs who signed off the report, I was not a member for the evidence sessions. However, I have had the opportunity to read through some of those representations and, obviously, the report. I pay tribute to the people who gave evidence, particularly the survivors of sexual offences, many of whom gave evidence themselves while others gave evidence through organisations such as Rape Crisis Scotland and local support groups. It is clear that their experiences have been a key driving force in getting the bill to this point.

As we all know, the bill was brought forward in response to a report from Her Majesty’s Inspectorate of Constabulary in Scotland in 2017 on the provision of forensic medical services to victims of sexual crime. That report found that the quality of services offered to victims was unacceptable and it concluded, quite starkly, that victims are being let down. It highlighted a lack of leadership and governance, a lack of audit or inspection of services, a lack of female forensic physicians, equipment—

David Stewart

I agree with the member’s points. Does he share my view, which is based on my experience in social work going back many years, that there is a huge problem with low reporting rates and with low conviction rates of perpetrators? Does he feel that anything in the bill will turn that trend around?

Donald Cameron

I hope so. I fully agree with David Stewart that there has long been an issue around conviction rates in relation to sexual offences, particularly rape. That is a longstanding problem that we require to correct.

The HMICS report highlighted the lack of overnight and weekend provision and the practice of medical examinations taking place in police buildings in many areas of Scotland. It also referred to the lengthy journeys that were often faced by victims and noted that victims were being asked not to wash for a day, or more, after an assault, which is something that Sandy Brindley of Rape Crisis Scotland spoke about during the committee’s evidence taking, when she said:

“We cannot overstate how much distress is caused by having to wait hours or even days for a forensic examination after being raped or sexually assaulted”.—[Official Report, Health and Sport Committee, 17 March 2020; c 29.]

From my perspective, as a Highlands and Islands MSP like David Stewart, I was horrified to read an article from 2017 that noted that rape victims in our island communities were forced to travel to the mainland for an examination, unwashed and hungry, due to a lack of island-based facilities. In no society should that level of degradation be acceptable, least of all ours.

Of all the aforementioned issues that the HMICS report raised, those issues need to be dealt with urgently, especially given their scale. The most recent figures available show that in 2018-19 Police Scotland recorded 13,547 sexual crimes, of which 40 per cent of the claims relate to a victim under the age of 18. That is a very high proportion, and such figures should concern us all. Although the bill sadly cannot prevent such crimes from happening, it can help to drastically improve the experience of victims of such crimes.

I will make a few general points on key elements of the bill. The Scottish Conservatives fully welcome the work that has been carried out to develop a vision for what trauma-informed care could look like in the context of the bill. As I said, the committee heard from victims of rape and sexual assault who had experienced physical and mental trauma as a result of medical forensic examinations. It was acknowledged that trauma-informed care recognises the impact of trauma on an individual’s health and their social and emotional wellbeing, and aims to deliver services that minimise the risk of further trauma. The committee recommended that the bill should explicitly state that as a requirement.

That issue also relates to other elements of the bill. Many statements from witnesses at the committee noted the need for greater access to female doctors as a means to reduce trauma. Rape Crisis Scotland said that that is the single most pressing issue that requires to be addressed to improve survivors’ experience.

Another aspect that the Scottish Government should consider further is the provision of out-of-hours services, which was raised on several occasions by various witnesses. They spoke of the delays that victims have experienced while undergoing forensic examination, and they mentioned in particular the psychological impact on those who, as I said earlier, were unable to wash or change their clothes. I hope that the Government will consider that issue as the bill progresses to stage 2.

Other members have referred to the provision that seeks to make forensic medical examination available on a self-referral basis for people who are over the age of 16. That would mean that victims of sexual abuse and rape would be able to access a forensic medical exam without first reporting the incident to the police. That is important, and it has been broadly welcomed by Victim Support Scotland and Rape Crisis Scotland, which both said that it is an advantageous provision. However, Rape Crisis Scotland highlighted that the provision must be consistent across the country and available 24/7.

Alex Cole-Hamilton has already referred to one concern that was apparent during committee evidence: that restricting self-referral by age may unintentionally act as a barrier to prevent younger or vulnerable victims from coming forward. As other members have said, the Law Society’s view is that the age limit needs to be kept under review, but, in the view of the Scottish Conservatives, there is an issue here. It is plain that there is further work required, and a debate to be had, around that part of the bill.

I could have spoken about many more issues, and I hope that other members will cover them during the debate, given the extensive nature of the bill. The Scottish Conservatives will support the bill today at stage 1 and scrutinise it further as it makes its way through stages 2 and 3. It is a positive and welcome step forward to ensure that victims’ needs are prioritised. Survivors of sexual offences have waited long enough for this legislation and the changes within it, and it is now down to the Scottish Government to listen to the concerns that have been raised; to respond positively and proactively to the committee’s report; and to make the necessary changes to ensure that the bill meets all the needs of those whom it is intended to support.

15:28

David Stewart (Highlands and Islands) (Lab)

As a member of the Health and Sport Committee, I am pleased to contribute to this important debate. I am glad to say that Labour will support the general principles of the bill, and I am convinced that parliamentarians across the political divide will recognise that the bill makes victims of sexual abuse a key priority for forensic medical services.

As I touched on in my intervention, many years before I joined Parliament I worked for over a decade running a very busy child protection team in an area of social deprivation. However, that comprehensive experience did not prepare me for the round-table event that Health and Sport Committee staff organised with survivors and victims. The survivors and the organisations that represented them spoke of the horror and anguish that they faced after reporting their attack.

There was an underlying consistency in their messages: that

“criminal procedure re-victimises the victim”,

that

“Forensic examination opens up the horrors of the attack”,

that the

“System does not function correctly,”

and, in particular, that there was a

“Lack of support for victims.”

A strong theme was the need for change, particularly of self-referral for forensic medical examinations and for independent advocacy and psychological support. I am glad that the cabinet secretary and other members echoed those important points, on which I wish to concentrate.

As other members, including the cabinet secretary, have said, we all know that the overall aim of the bill is to require health boards to make forensic medical examinations available on a self-referral basis to people over 16. That means that victims would be able to undergo a forensic examination without any requirement to report the incident to the police.

Donald Cameron has already touched on some of the history of that. Her Majesty’s Inspectorate of Constabulary in Scotland closely examined the provisions for healthcare and forensic medical services, and it drew out three key points, which I wish to emphasise. The inspectorate said, first, that there was a need for increased innovation, especially in relation to island and rural areas; secondly, that there was potential for more collaboration among boards to share specialist staff; and, thirdly, that there was a gap in service provision in cases where a victim of a sexual crime sought support and medical attention but did not wish to report it to the police.

We have already touched on the important issue of self-referral, but I would draw the Parliament’s attention to the fact that section 2(4) of the Age of Legal Capacity (Scotland) Act 1991 states:

“A person under the age of 16 years shall have legal capacity to consent on his own behalf to any surgical, medical or dental procedure or treatment where, in the opinion of a qualified medical practitioner attending him, he is capable of understanding the nature and possible consequences of the procedure or treatment.”

Many respondents to our committee’s call for evidence for the inquiry believed that self-referral should not exclude children and young people under 16. Victim Support Scotland considered that it would be detrimental to restrict under-16s from the self-referral process. VSS wrote:

“Due to their age and the potential nature of the harmful sexual behaviour, especially in instances that may involve a family member, they are likely to feel less comfortable seeking a forensic medical examination through the police and prefer an alternative setting for their initial steps towards seeking the involvement of criminal justice agencies.”

There was other evidence that I found very interesting, from the rape and sexual health centre in Perth and Kinross. As the cabinet secretary will be aware, it reported that one fifth of survivors accessing the centre’s services were aged between 13 and 15. The view of the centre was that self-referral should start at 13. The Royal College of Nursing also supported self-referral for younger children.

A number of members, including the committee convener, have raised the issue of public awareness, which I agree is important. Self-referral will benefit victims only if they are aware that it is an option. The RCN was right to say in its submission that there needs to be a focus on ensuring public awareness of the provisions of the bill.

I would be grateful if the cabinet secretary, in her closing remarks, could specify the Government’s strategy for public information and education. We will all support the bill at 5 o’clock but, if we do not have public information and awareness, the bill will not be worth the paper it is written on.

Particular thought needs to be given to equality of access to information and services for those with learning disabilities and for same-sex victims. The committee made a strong recommendation on that point. The key is informed consent and equality of access, taking into account travel, rurality and low population density.

It is important that vulnerable young victims, who are likely to be shocked and traumatised, have a statutory right to independent advocacy across Scotland.

I agree with the comments made by other members that it is crucial to have female practitioners. Rape Crisis Scotland noted:

“The feedback that we have from survivors is that the most important issue is access to a female doctor. The lack of access to a female doctor is what causes the most trauma.”

The committee recommended that the bill be amended to guarantee an individual’s right to choose the gender of the examiner. I know that the cabinet secretary will say that the Scottish Government’s response is that section 9 of the Victims and Witnesses (Scotland) Act 2014 ensures that people who access forensic medical examinations can request a female examiner. However, we perhaps need to strengthen the bill in that respect.

I will make a point that I do not think others have raised. It is important to stress that the bill does not give an individual the right to a forensic medical examination; examinations are carried out on the professional judgment of a healthcare professional. As the stage 1 report made clear,

“professional judgment can include both clinical and non-clinical elements supported by guidance from the Faculty of Forensic and Legal Medicine.”

The fairer Scotland duty assessment of the bill notes that

“women in lower socioeconomic groups are more likely to be the victim of sexual offending and are thus more likely to benefit from the objectives of the Bill.”

NHS Lanarkshire, for example, uses data collection along with advice from third sector groups to target resources in areas of deprivation. That reflects the committee’s recommendation to require all health boards to capture analysis and publish data addressing equity of access.

This is an important bill for protecting the healthcare needs of victims of sexual offences, and we must listen to the voices of survivors. We need a criminal justice system that puts victims squarely in centre court, does not revictimise or repeat the sin and where victims are listened to, respected and supported. As one survivor said,

“Violators cannot live with the truth: survivors cannot live without it.”

I support the general principles of the bill.

15:36

Alison Johnstone (Lothian) (Green)

As a non-member of the committee, I begin by thanking the committee, the clerks and in particular the witnesses who gave the evidence that has brought the bill to this stage. I welcome the debate and I thank the Royal College of Nursing and Rape Crisis Scotland among others for their excellent briefings.

The Scottish Greens support the general principles of this important bill, which seeks to deliver equity of access to healthcare for those hurt by rape and sexual crime. Crucially, it would enable people to access trauma-informed healthcare services without first having to make a police report. The RCN and others support a statutory duty for health boards to provide forensic medical examination to victims. Placing such a duty on health boards would also ensure that the clinicians undertaking those examinations could refer to other NHS specialties without barriers, which would enable the provision of more holistic care to victims of sexual assault. As the committee report notes, victims would be able to access and be signposted to other key services, such as sexually transmitted infection testing, emergency contraception and mental health support, while their forensic examination takes place. Clearly, a healthcare environment is more suited to caring for someone who has just experienced a physically and psychologically traumatic event.

Health and social care integration also has an important role to play as, when an individual is accessing forensic services in a healthcare setting, they can be signposted to community services that can continue to support them. I am particularly interested in how the bill may allow health boards to take a more preventative approach. The mental trauma experienced by some who have experienced sexual assault is not always immediately apparent and may manifest later in time, but if people can access or be signposted to mental health support when attending an examination, that may prevent or lessen such trauma before they reach crisis point.

It is entirely appropriate that victims of sexual assault should access forensic examinations in healthcare settings. Rape Crisis Scotland cites examinations taking place in inappropriate and unsuitable locations, including police stations, as a major flaw in the current system. It is important to note, as colleagues have done, that further physical and mental trauma can be caused by forensic examinations. The bill has an important role to play in lessening any further harm and ensuring that victims can access the support that they need in an appropriate environment, without having to make an extremely difficult decision about whether they want to go to the police when they may still be in shock.

The decision to inform the police of a sexual assault can often be difficult, for many reasons, and no one should feel pressured into reporting as a means of accessing forensic examination. Self-referral is therefore an extremely important aspect of the bill that has the potential to transform and improve sexual assault victims’ experiences when accessing help.

However, as the committee report notes—and as others have mentioned, as it is clearly a major point—self-referral will be of benefit only if victims are aware of its existence. I have been contacted by constituents who were retraumatised by their experiences when reporting their assaults, largely because they did not know what choices were available to them.

Health boards and the Scottish Government have a responsibility to ensure that the public is aware of those services and of how to access them. I support the committee’s call for a public awareness campaign about the changes to the law that are contained in this important bill.

There should also be a multitude of pathways for people to access forensic examination services. We must ensure that barriers to access are removed or minimised. Some victims may not be aware of the self-referral service or of how to access help, and may even be unaware that what they have experienced is a crime.

Other healthcare services should be able to direct victims to forensic examination services. In its response to the committee’s consultation on the bill, Community Pharmacy Scotland stated the need for a recognised pathway for people who seek help in the first instance at a pharmacy. I support that call.

Once victims have accessed forensic services, it must be made clear to them—by people who have been trained to deliver the message—what their rights are, what the self-referral service is for and how it can help them. The report makes the point that, if victims are not fully informed, they may not be aware that other evidence pertaining to their case, such as closed-circuit TV footage, might be lost if they do not promptly report to the police.

Victims are also impacted by a lack of available staff. The Rape Crisis briefing tells the heart-rending story of a woman who was left unable to shower for two days after a sexual assault. We cannot allow victims to continue to be retraumatised when they report sexual assault. Rape Crisis Scotland says that a lack of female doctors is exacerbating long delays, a point that colleagues have raised already. I am glad that the bill contains a provision for victims of sexual offences to be given the opportunity to request that the person who is to carry out a forensic medical examination be of a specified gender.

The changes will result in increased demand for those services. The evidence suggests that that will be the case: the Scottish Government estimates an increased service demand of 10 per cent following the introduction of self-referral. Future workforce planning is key to delivering equity.

Rape Crisis says that we must proactively ensure that there are sufficient female doctors who are able to undertake the role of forensic examiner. Rape Crisis also notes a major issue when the role requires doctors to cover custody cases as well as undertake forensic examinations, and states that to make that a dedicated role would have a significant and positive impact on the availability of female doctors. I would be grateful if the cabinet secretary would respond to that and outline how she plans to address the issue.

The RCN has worked to develop the role of nurse sexual offence examiners to enable them to undertake forensic medical examinations and to give evidence in court. Enabling expert nurses to undertake that work will improve access and will support the provision of trauma-informed and person-centred care.

I know that there has been some debate about the decision to place an age limit on access to self-referral. The RCN questioned the restriction to over-16s, as did my colleague Alex Cole-Hamilton. The bill should reflect the sad reality that significant numbers of children are victims of sexual crime. If children could self-refer, that would provide another important route towards help and safeguarding. I note and appreciate the cabinet secretary’s openness to amendments at stage 2.

15:43

Alex Cole-Hamilton (Edinburgh Western) (LD)

It gives me great pleasure to speak in favour of the bill. I pay tribute to the victims and witnesses who gave such compelling evidence during stage 1. Their testimony will stay with me for life and members of the committee will recall that I was rendered almost incapable of moving on to the next piece of business after hearing that testimony.

I am sure that I echo the thoughts of colleagues in the chamber when I say that, because that evidence was so powerful, I feel a sense of grave responsibility, not only to speak to ensure that the bill fully serves its purpose, but also to use this platform to give voice to those who have been silenced for so long.

The recommendations contained in the HMICS report must be urgently addressed. There has been some progress in the intervening years, but the scale of the challenge should not be underestimated.

There has been a long-term upward trend in sexual crime in Scotland since 1974. Sexual assault, rape and attempted rape have increased significantly in the past 10 years. At the same time, reports by victims of rape and of sexual assault have consistently shown that the criminal justice system is a traumatic arena for victims.

The Scottish crime and justice survey for 2017-18 reported that only 23 per cent of respondents reported the most recent or only incident of forced sexual intercourse to the police. Evidence heard throughout the committee’s consideration of the bill confirmed much of what was already known about the lack of trauma-informed care. That aspect was harrowingly described in Dr Lesley Thomson QC’s “Review of Victim Care in the Justice Sector in Scotland” of January 2017, which stated:

“Victims often speak of feelings of re-victimisation or secondary victimisation once they enter the criminal justice arena. In the course of this Review, a victim of rape described the trial experience as worse than the crime itself.”

That is truly unacceptable and a failure of our duty to those women.

I believe that the bill’s ambitions are good in attempting to alleviate, at least in part, the trauma of post-sexual-crime forensics. There are, however, hurdles in the bill that we must overcome for it to reach its full potential. Self-referral offers the chance to help stop victims being pulled into a system that they are not ready for; it will give people time and space to consider whether they want to report an issue to the police; and it will offer some sense of empowerment in a situation where people have been made to feel utterly powerless. At the same time, the opportunity to seek prosecution is not lost. As the Crown Office and Procurator Fiscal Service said in its evidence, the bill will also enable

“potential evidence to be obtained and preserved at the outset, thereby potentially strengthening any subsequent investigation and prosecution should the person decide to report the incident to the police at a later stage.”

Making sure that important evidence is not lost is vital. Conviction rates for rape and attempted rape remain the lowest for all criminal prosecutions, with only 39 per cent of cases being successful. One of the largest declines in conviction rates in the past 10 years is that for sexual assault.

What makes the bill so important is the opportunity that it will provide for those who suffer from rape or sexual assault to seek help and secure justice. My concern, however, is that the bill fails to do that for children and young people—I intervened earlier on the cabinet secretary about why I believe that the bill’s minimum age of referral makes that the case. The bill proposes that the minimum age of self-referral should be 16, which would mean that those under the age of 16 would require to be accompanied by an adult. I understand that the logic of that is to ensure child protection, but I am afraid that it is not that simple. Victims of sexual assault who are under the age of 16 are most likely to be sexually assaulted by a parent or another adult whom they know, so the lack of autonomy given to young people in the bill would disadvantage them in accessing the bill’s full benefits.

Representatives from Children 1st spoke to the committee and to me directly, laying out concerns about how the bill as introduced risks inadvertently excluding children from the support that the bill seeks to offer. Children’s recovery needs are inherently different from those of adults. Children do not naturally compartmentalise their experiences, so they often need to address a multitude of experiences when recovering from a sexual crime. If, as the Government has stated, there will be no practical difference from meeting the needs of children who have experienced other types of abuse, it is not clear what the role of the associated clinical pathway is. Both of the concerns expressed by Children 1st highlight how important it is that any pathway developed alongside the bill must set out clearly how it will meet the forensic, medical, recovery and justice rights of all children.

Further to the issue of accessibility, I am concerned that certain areas of Scotland risk being disadvantaged by the bill as introduced. The Scottish Government’s assurance about a consistent approach being taken to accessing self-referral services needs to be more than just words. My colleagues in the northern isles of Orkney and Shetland have pointed out before that those from the islands face unacceptable hurdles in accessing the specialist support that an incident such as sexual assault or rape demands. We heard about some of that from a Conservative member earlier in the debate.

Jeane Freeman

I completely agree with the sentiment that Mr Cole-Hamilton and other members have expressed about the unacceptability of victims who live in our island board areas having to travel under the circumstances described. I am therefore sure that Mr Cole-Hamilton will welcome that every island board now has its own healthcare facility where forensic medical examinations can take place.

Alex Cole-Hamilton

I accept that, and it is highly welcome, but we need to be sure that every aspect of the bill is island-proofed so that every citizen in our islands receives exactly the same kind of service as everybody on the mainland.

The bill’s ambitions should be praised, as it has the potential to at least in some way alleviate the terrible trauma that the criminal justice system can inflict on victims of sexual crime. However, in order for it to do so to its full potential, it must be completely inclusive for all demographics, irrespective of age, gender or postcode.

15:50

Sandra White (Glasgow Kelvin) (SNP)

I, too, thank the clerks, the many groups and individuals who came to the committee in person or who provided written submissions and the organisations that have sent briefings for today’s debate.

I also want to thank in particular the women whom the Health and Sport Committee met in private to hear about their experiences, which Alex Cole-Hamilton summed up well. It was an emotional meeting, and I congratulate them on their courage in coming to speak to us. They were very brave and their tenacity was fantastic. I hope that, through this debate, and as we move through stages 1, 2 and 3, the bill, once passed, will do justice to all the victims who spoke to us and to all those who we have not heard from.

As the Law Society of Scotland’s briefing for the debate said,

“The Bill’s main policy objective is to improve the experience of people who have been affected by sexual crime.”

That is an important point. We must all remember that the bill will, I hope, achieve that.

The committee covered many aspects of the bill. There are too many to cover, but I have picked out a couple. One is the health-led approach that is taken in the bill. That is really important. We know that the reporting of sexual crimes falls between the two stools of the health and justice systems. The victims we spoke to—this was brought out in the recommendations that were sent to the committee, too—felt that they were badly let down by that. By ensuring that the approach is health service led, the bill gives an assurance to victims that they will be treated with compassion and empathy.

We covered that aspect in great detail with the women we met in private. I know that this has been mentioned, but it was appalling how some of those women were treated. They had to wait for hours, and sometimes for days before they were examined. Some of them sat in a cold police room. They were not given tea or coffee, they were not allowed to drink anything and they were not allowed to change their clothes.

We should be proud of moving to health-led forensic services once we pass the bill. All victims must get compassion and help. They must be given an assurance that they have done the right thing when they report an offence and they must be treated with compassion.

That brings me on to the issue of self-referral. That very important part of the bill has been mentioned. Other members have spoken about the age of referral. We heard evidence on both sides of the argument. Alex Cole-Hamilton and others are right. People younger than 13 have been victims of sexual abuse. Maybe, as the cabinet secretary said, the current provisions will be kept, but we will consider the issue and see where we can go with it, perhaps at stage 2, or further down the line in the bill process.

We have to remember, as I am sure that we do, that the victims of sexual abuse and crime are sometimes in shock and they do not always realise that they have been victims. There are a multitude of reasons why they might not report what has happened straight away. It is difficult for someone to recollect such a crime within 24 hours when they have to sit in a room in a police station—or even, as we heard about in the case of one lady, in the back of a police car. It is hard for them to recollect exactly what happened to them, so being able to access a self-referral system will be important.

As has been mentioned already, we must also ensure that, when such a crime is reported, health-led services are available. Advocacy and support have not been mentioned so far, but having someone there to support victims is very important. There is no point in introducing such a bill if we do not have the resources to cover those aspects. The Cabinet Secretary for Health and Sport has mentioned that resources will be made available, and I am sure that they will be. However, as the bill goes through its parliamentary stages, we will need to ensure that such aspects are not only considered but delivered. In delivering the self-referral system, we must also provide information, advocacy and support. We need to have provision on those aspects in place in the bill before we can make progress.

Another issue that has been mentioned by previous speakers is the need for victims to have access to female doctors. As Donald Cameron and others have mentioned, and as Rape Crisis Scotland has said, the single most pressing issue that requires to be addressed is the lack of access to female doctors. That also came across very clearly from the women to whom committee members spoke in private.

I welcome the cabinet secretary’s announcement of extra funding for 20 places on a dedicated course at Queen Margaret University. The fact that 61 per cent of sexual offence examiners in Scotland are now female is also fantastic. However, Rape Crisis Scotland went on to say:

“We note that this is not currently a single-sex role. Replacing the word ‘gender’ for ‘sex’ in the bill is not going to address the barriers to survivors being able to access female doctors.”

I ask the cabinet secretary to address that point either in her closing remarks or at stage 2, if the bill progresses. It was one of the most pressing aspects of the evidence that the committee heard. I do not decry the approach of most male doctors, but we heard that, in certain cases, empathy and compassion were not shown when they were treating female victims of sexual abuse. We must remember, although I think that we all know, that the vast majority of sexual crimes are perpetrated by men on women.

We must be absolutely certain that, when we promote the self-referral system, as it is important that we do, by telling people how they can access it, we ensure that we also offer them access to female doctors. We cannot deny them that. I know that achieving that might be difficult, but for me and others that lack of access was one of the main driving forces behind wanting the bill to progress. I feel that changing the name from “sex” to “gender” is not—[Interruption.]

Thank you very much, Ms White. You are a wonder.

15:59

Liam Kerr (North East Scotland) (Con)

For full transparency, I remind members that I am a practising solicitor and hold a practising certificate from the Law Society of Scotland.

I have not had much involvement in the bill’s development so far, because it has come within the health and sport rather than the justice portfolio—and rightly so. Rape Crisis Scotland made a good point when it said:

“this is a health issue and therefore falls under the responsibility of Health”.

However, I heard the Health and Sport Committee convener’s remarks that the justice portfolio must play a role in this and I am pleased to have the opportunity to speak and to welcome what will be a critically important piece of legislation. I say that because, looking back, I can see that the bill is a response to the powerful and damning 2017 HMICS report on the provision of forensic medical services to victims of sexual crime. Many of the recommendations, including the establishment of a system of self-referral for examination, of which more later, have made it into the bill. That is all good and that is why I will strongly support the principles of the bill at decision time.

Listening to the debate so far, I have some thoughts that may be useful for the committee as the bill progresses. First, I listened when a number of speakers talked about the bill making forensic medical examination available on a self-referral basis for people over the age of 16. That is one of several positive aspects of the bill and reflects a call in the HMICS report.

Setting the age of self-referral at 16 is interesting. I worry about the argument that restricting self-referral may unintentionally act as a barrier to younger vulnerable victims coming forward. I think that the committee, the Scottish Children’s Reporter Administration and Children 1st are right that that is the correct age currently, but let us recall Donald Cameron highlighting the recorded crime in Scotland figures, which show that at least 40 per cent of the 13,364 sexual crimes recorded in the last year related to a victim under 18. That being so, I think that the committee is right to recommend keeping the age of self-referral under review. I thought that David Stewart and Alex Cole-Hamilton spoke particularly persuasively in that regard and I was pleased with the cabinet secretary’s response to David Stewart’s intervention. I wonder whether, in closing, the cabinet secretary could give an indication of the timescale of when and how that would be assessed.

The cabinet secretary also raised the issue of data collection. I note from the committee evidence that the Faculty of Advocates highlighted possible issues around the integrity and security of samples collected when a constable is not present.

David Stewart

Apologies for not being in the chamber for the start of the member’s speech.

In light of his background, what is the member’s view on the creation of an anonymous DNA database, which is particularly useful in relation to repeat offenders? As the member will know, that happens quite regularly in the States—the Federal Bureau of Investigation has managed to locate lots of serial offenders. To be clear, the committee did not recommend that, but I think that there is some work to be done in this area to pursue it.

Liam Kerr

The member makes a good point. There is something to look at here. The member would not expect me to give a commitment one way or the other, because he is right—this is a huge area, which we need to look at, but there are a lot of issues inherent in it that need to be explored in some considerable depth.

To go back to the evidential point, I was talking about the Faculty of Advocates expressing concern about the integrity and security of samples and I notice that the Law Society submitted a note earlier on, stating:

“We continue to have concerns over the ambiguity in the Bill as to how data is processed, stored and transferred”.

The collection and storage of evidence could have a significant impact on the evidential basis for a subsequent prosecution, so I acknowledge the preparatory work that the cabinet secretary alluded to earlier.

The committee raised concerns that healthcare professionals may be required to make decisions on what should or should not be stored. The committee believed that it would be a matter for Police Scotland. I note the committee recommendation that the Government set out in regulations what is to be stored by health boards and I also note that the cabinet secretary accepts that a revised data protection impact assessment needs to be undertaken. One would hope that that is prioritised in order to give sufficient time for stage 2.

The final thought that occurs is one that Rape Crisis Scotland’s submission made me think on. It stated that this legislation

“has the potential to transform survivors’ experience”,

but it caveated that by adding

“if implemented properly”.

That is a crucial point and something that I think Sandra White was getting at, because what is clear from the committee’s report and the various submissions that have been received is that the bill provides a framework but it is what is ultimately put in place around it that will determine whether the bill is successful in achieving that transformation.

From going through the report and the various submissions, I can see that the success of the bill and its principles hinges on various moving parts, such as the duty on each territorial health board to provide or secure the provision of an examination service, to provide victims with information on what will happen with any evidence that is collected and to identify and address the healthcare needs of the victim, even where a forensic medical examination did not take place.

The bill’s success also hinges on whether it mandates trauma-informed care, as I think it should, and which I presume requires training. It hinges on the recommended consistency of approach across all health boards and on public awareness. The committee noted:

“Self-referral will only benefit victims if they, or someone they confide in, are aware this is an option.”

Like David Stewart, I hope that the cabinet secretary might respond to that in closing the debate.

The bill’s success also hinges on the advocacy and mental health support that the committee convener rightly focused on. Success also requires the Government to put in place a national clinical information technology system as soon as possible, as the committee has urged, and access to female doctors. According to Rape Crisis Scotland, that is the single most pressing and important issue that requires to be addressed. I believe that that is the case, but that needs training and resources. At this stage, it is only fair to acknowledge the cabinet secretary’s remarks about the 20 priority places.

Overall, all those measures are good and right, but they are all expensive. The financial memorandum contains the Government’s estimate that the bill will result in a 10 per cent increase in forensic medical examinations. I have no idea whether that will prove to be correct, but I do not see equivalent provision for those other aspects that the committee has referred to. That concerns me because, logically, what is not resourced will not be provided. Perhaps that will be revisited as a result of amendments at stage 2.

Jeane Freeman

Will the member take an intervention?

Liam Kerr

I am over my time by a long way.

All that having been said, I reiterate my support for the principles of the bill, and I look forward to voting for it at decision time.

16:06

Annabelle Ewing (Cowdenbeath) (SNP)

I am pleased to speak in the stage 1 debate on the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill, which is a vital piece of legislation that is very much to be welcomed. As we have heard, the bill is designed to improve the experience of victims of sexual offences by dealing with the state’s role. I hope that, in turn, that will have a positive effect on recovery for victims and will perhaps facilitate better engagement with the justice process.

The backdrop is that, incredibly, in the not-too-distant past, many victims of sexual assault were required to be forensically examined in a police station. It is very difficult to imagine how traumatic that would have been—it was simply adding trauma upon trauma. Even though we have seen a welcome shift in the intervening years, with such examinations being transferred to a health setting from a police setting, the whole process has still been seen very much through the prism of the justice system rather than that of the health service.

The bill will correct that, for it sets forth the overarching principle that forensic examinations are a health issue and not a justice issue. The bill will place on a statutory footing the current arrangements that are set forth in the non-binding memoranda of understanding between health boards and Police Scotland. In fact, the bill will impose a legal duty on health boards to provide forensic medical services for victims of sexual offences and, crucially, it will require health boards to ensure that the healthcare needs of such individuals are addressed at the same time. Taken together, those key provisions represent a major step forward and reflect the compassionate country that Scotland strives to be.

A key issue in that regard, which has been referred to already, is the clear preference for female victims of sexual offences to be examined by a female doctor or by one of the new female nurse practitioners who are trained especially for that purpose. I welcome the cabinet secretary’s announcement in that regard this afternoon. I support the Health and Sport Committee’s recommendation in its stage 1 report that the bill should be expressly amended to make it absolutely clear that the victim should be able

“to choose the sex of the examiner.”

If we conflate gender with sex in this instance, I do not believe that we will discharge our obligation to put the interests of the victim first.

As we have heard, another of the bill’s key provisions concerns the self-referral process. That process will enable victims of sexual offences who are 16 or over—I note the on-going debate about that issue—to self-refer for a forensic medical examination without having first reported the matter to the police. Given that that is not possible—with a few limited exceptions—at present, the new provision will give the victim more choice and more control, which is absolutely fitting.

A number of technical but important issues have been raised. Those include the arrangements for the retention of samples and other physical evidence, and the length of time for which data can be retained. I am pleased to note that a debate is taking place with the Scottish Government about how those matters can be satisfactorily resolved.

On the important issue of independent advocacy support, which was mentioned by my colleague Sandra White, I consider that the arguments in favour of putting a requirement to provide such support on a statutory footing as a matter of principle are strong. I would welcome clarification from the cabinet secretary, when she winds up the debate, of what would be practically feasible in that regard, further to the committee’s clear recommendations on the matter.

Finally, I want to bring to the chamber’s attention an example of where such arrangements are working well in practice. The state-of-the-art forensic medical suite that was set up by NHS Fife at the Queen Margaret hospital in Dunfermline opened in June 2019. It was the culmination of many years’ hard work, including on the part of members of the Fife Rape and Sexual Assault Centre. They worked extremely hard to convince a host of people that the unit should be set up. I believe that it is running very well indeed, so I congratulate them and NHS Fife on being in the vanguard of the work in this area.

I am happy to support this important piece of proposed legislation at stage 1, as I believe that it will ensure that victims of sexual offences will get the care, understanding and compassion that they are absolutely entitled to.

16:12

Mary Fee (West Scotland) (Lab)

I welcome the opportunity to take part in the stage 1 debate on what I know to be an important and essential bill.

First, I thank the Health and Sport Committee for its thoughtfulness and diligence in producing its stage 1 report on the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill.

Secondly, I am very grateful to the individuals and organisations that provided such valuable insight into the issues surrounding the bill, including the victims of sexual assault and rape who showed incredible strength and courage in helping to shape the bill. Their input will be essential as the bill progresses through Parliament.

As my colleague David Stewart has already stated, Scottish Labour supports the bill. I hope that, as a Parliament, we can produce a strong and effective piece of legislation that will support the health needs of victims of rape and sexual assault.

Many of the provisions in the bill are long overdue, including those on self-referral, although I am aware that two health boards already provide such a service. The bill will ensure that all victims of sexual offences in Scotland have the same access to the healthcare that they need.

We are all too aware of the pain and the misery that sexual violence causes victims. The option of self-referral, with or without criminal justice involvement, is a major step forward in reducing the barriers that exist to seeking the right physical and psychological support. Wraparound, trauma-informed support is vital, and improvements are required if we are to consistently deliver the trauma-informed care, information, advocacy and holistic healthcare services that victims need.

The committee’s report highlights several areas of concern, and I welcome the Scottish Government’s commitment to ease those concerns and strengthen the bill at stage 2.

I note that there is a difference of opinion on the age of self-referral, which the bill sets at 16. Although that falls in line with the age of consent, I worry when I see statistics that the Rape and Sexual Abuse Centre Perth and Kinross has provided, which show that 20 per cent of survivors who access its services were between 13 and 15 years of age when their abuse started, and a further 27 per cent were under 13. Those are worrying figures—and each case is one that should not have happened, regardless of age.

The Scottish Children’s Reporter Administration and Children 1st have highlighted that children and young people are automatically considered within child protection procedures. However, concerns have been raised that restricting self-referral for under 16s may act as a barrier to younger victims, especially where the abuse involves a family member. I sincerely hope that the Scottish Government will closely monitor the age of self-referral in order to better support all victims of rape or sexual abuse when access to services is sought.

It is important to ensure that all victims are aware of their healthcare rights, and I back the Royal College of Nursing’s call for public awareness of the bill. As well-intentioned and well-resourced as the eventual act will be, we will require information to be spread as widely as possible to all parts of Scotland.

The mental trauma of rape and sexual abuse can last significantly longer than the physical injuries that are suffered. However, mental health services are stretched at present, just as they were pre-Covid. A guarantee of access to appropriate mental health services must be delivered as part of any wraparound, trauma-informed care, and it must be delivered with the right degree of advocacy. I know that many fantastic, essential organisations are providing such advocacy in all parts of Scotland.

Scottish Labour supports the calls for 24/7 forensic medical examination services but, again, they must be available consistently across the country.

I believe that the bill has the potential to support all victims of sexual offences by removing barriers to healthcare and ensuring that the decision to become involved in the criminal justice system is in the hands of the victim. In my time as a member of this Parliament, I have heard the range of emotions, including anxiety and fear, that individuals face when reporting sexual assault. Although the vast majority of people who experience sexual assault are women, we must remember and be mindful of the fact that men and boys can also suffer sexual assault.

The bill will rightly put the victim at the centre of their treatment and recovery, with or without the added pressure of police and court involvement. I support the general principles of the bill.

16:19

Margaret Mitchell (Central Scotland) (Con)

I very much welcome the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill, which will place on health boards a statutory duty to provide forensic medical services for victims of sexual offences. At present, such examinations can, for the most part, be carried out only after an incident has been reported to the police, and following a referral from them.

The bill balances health and justice issues. Crucially, it includes a self-referral provision that will be available to individuals aged 16 or older, and which will ensure that individuals who have been sexually assaulted can access the healthcare that they need, and that evidence is collected for possible future proceedings without the immediate pressure of having to involve the police.

The police support the self-referral provision, which was one of 10 recommendations that was made in the damning 2017 report by Her Majesty’s Inspectorate of Constabulary in Scotland on provision of forensic medical services to victims of sexual crime. The report was scathing about medical examinations being conducted in police buildings. In effect, the self-referral provision will give the individual control over the situation, empower them when they feel powerless, and give them time to decide whether they want the evidence to be collected and transferred to the police.

In the time that remains to me, I will focus my remarks on how the bill will impact on children who have been sexually abused. A visit to Oslo with the Justice Committee in 2018 provided the opportunity to see first hand how the barnahus model deals with child sexual abuse cases. It provides wraparound support to child victims of sexual abuse and child witnesses, using a trauma-informed multidisciplinary approach to children who have been sexually assaulted, and a forensic examination that secures the best evidence. Crucially, that is all provided under one roof in a child-friendly environment.

I would be grateful for the cabinet secretary’s assurance that the bill will consolidate Scotland’s journey towards a full barnahus model, and will not create a separate parallel approach for children, which Children 1st was concerned about. I would also be grateful if, in her closing remarks, the cabinet secretary could provide an update on the work of Healthcare Improvement Scotland and the Care Inspectorate on developing Scottish standards for a barnahus response to child victims and witnesses of violence, which I believe were due this summer.

I turn to the self-referral provision and the fact that it applies only to individuals aged 16 years or older, which has been one of the more contentious aspects of the bill. It means that for people under the age of 16, child protection processes apply. Consequently, if a child presents to a health board, the health board is duty bound to report what has happened to the relevant authorities, including the police.

The Royal College of Nursing argued that allowing children under 16 to self-refer would offer another route for them to seek help and care immediately, and would offer children the same benefits of self-referral as adults have. Mary Fee and Dave Stewart referred to the sobering statistics from the Rape and Sexual Abuse Centre Perth and Kinross, which outlined that over the past 5 years, a staggering 20 per cent of survivors who accessed its services were in the 13 to 16 age group, and a further 27 per cent were under 13 years of age.

Other local groups have argued that the age limit should be 13 in order to address concerns that making it 16 could prevent young vulnerable people from coming forward. That is a valid concern that was recognised 12 years ago, when the cross-party group on adult survivors of childhood sexual abuse had the privilege of hosting the launch of a booklet entitled “See us—Hear us!”. The booklet was produced by the charity Eighteen and Under with support from Barnardo’s, and was edited by Dr Sarah Nelson. It contained young people’s comments, as well as recommendations for schools that work with sexually abused young people. It revealed the need for a safe space for an interview when young people disclose; the need for more time to be given before their confidence is broken and the police or parents are informed; the need for young people to be assured that they are believed and taken seriously by professionals; and the need for children and professionals to be prepared for what comes next in child protection and the justice system.

Given that the vast majority of child sexual abuse is not committed by strangers but by family members and people who are in positions of power and trust, and given the unpalatable fact that, during lockdown, child abuse incidents have spiralled, I firmly believe that the exclusion of under-16s from the bill’s self-referral provision needs further consideration. In conclusion, I ask the cabinet secretary, please, to ensure that we do not let those young people down again by denying those who are aged 13 and over the prospect of early intervention, which access to the self-referral forensic medical examination could provide.

In the meantime, I welcome the bill and support its general principles.

16:26

Emma Harper (South Scotland) (SNP)

As the deputy convener of the Health and Sport Committee, which is the lead committee for the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill, I welcome the opportunity to speak in this stage 1 debate. I support the bill’s general principles.

The Scottish Government introduced the bill in November 2019. It proposes to place a duty on health boards to provide forensic medical services to victims of sexual offences, and the duties in the bill place the responsibility for delivery and improvement of the services with health boards rather than with the police.

As we have heard from colleagues, the bill proposes that persons who have been raped or sexually assaulted can self-refer for a forensic medical examination without having to go to the police first. As we have heard from colleagues, we welcome that principle. That is extremely important, because the main policy objective of supporting the psychological and physical aspects of the process will improve the experience.

In relation to forensic medical services, we know that there is underreporting of offences. The fact that we are progressing the bill should, in itself, raise awareness and improve reporting of sexual offences and rape.

The committee held five evidence sessions, including a session with victims of rape and sexual violence. Perhaps a better word to describe those women—which they used—is “survivors”. It was a very emotional evidence session. I thank the women for their bravery, and I thank Sandy Brindley from Rape Crisis Scotland, who helped to support and co-ordinate that powerful and informative evidence session with the survivors.

The committee’s stage 1 report made a number of recommendations. I will not reiterate all of them. I will not rehearse or reinform members about issues relating to age or the barnahus model, which I will be interested in, as we take the bill forward, but I will talk about a couple of issues that came out in committee scrutiny.

Trauma-informed care was highlighted as being crucial in delivering the best healthcare and follow-on care and treatment for persons who are affected. That was explored in an informal meeting—in particular, in relation to HIV post-exposure prophylaxis and the current lack of co-ordination of continued care and follow-up appointments. The principle of trauma-informed care is included in the bill, and the committee was informed that that would be delivered using multi-agency services. The committee recommended that trauma-informed care be on the face of the bill. I am interested to hear more views on that.

The chain of evidence is an important issue. I helped to write a chain of evidence policy for when bullets had been removed from gunshot victims, so I would be interested to know how that process will be secure; how evidence will be collected and stored; how long it will be stored for; what will happen if a case is not taken forward; who will own and dispose of evidence; and, of course, what will happen with data, which others have mentioned. I note that that is in discussion already.

Another concern that was expressed in evidence sessions was that victims need to be informed about and, where appropriate, given access to advocacy and support. We heard that in current practice, information is provided by various means, including by forensically trained nurses at Archway in Glasgow and by rape crisis support workers in NHS Tayside. The need for adequate and consistent information led the committee to make the recommendation that

“all health boards, alongside Police Scotland, should follow a consistent approach to the provision of information about self referral. This must include clear information allowing for individuals to make informed decisions.”

I would appreciate further information from the cabinet secretary on that recommendation.

In my constituency work and in learning about the bill and preparing for scrutiny of the bill, I visited the rape crisis centre in Dumfries to hear from its manager Jill Cochrane and her team about their direct experience and what they want to see in the bill. They welcome the bill’s proposal to change provision of the forensic medical service from provision by the police to provision by health boards, and they agree that a self-referral process will allow for choice and personal control for rape survivors. I imagine that we will see more people reporting offences as the bill proceeds and the process around self-referral moves forward, and as people come to know more about self-referral and health board engagement. Through that and the chain of evidence, perhaps we will see more convictions, which have not been the highest, so far. I thank Jill and her team for the vital work that they do and the support that they have given me.

I also visited the Mountainhall treatment centre’s forensic medical suite in Dumfries. Wendy Copeland met me there and gave me a detailed tour, and a walk-through and description of the holistic trauma-informed process that is already being provided. We spoke in particular about supporting persons who have been raped or sexually assaulted who live in rural areas, such as Dumfries and Galloway in the South Scotland region that I represent. That also came up during the committee’s evidence sessions. Rurality poses challenges in access to services, forensic or otherwise.

Having a 24/7 service and being able to choose the gender of the person undertaking the forensic examination were also raised as rurality concerns. The calls for a 24/7 service and choice in the gender of the examiner are potential challenges in rural areas. A 24/7 wraparound service and the need for adequate staffing were supported by the Royal College of Nursing.

I was pleased to hear from the cabinet secretary about the extra funding that has been allocated for training additional forensic medical examiner nurses. I welcome the fact that Dumfries and Galloway already has a commitment to having a women-led forensic medical service.

Areas with smaller populations might have issues with protecting confidentiality, which could mean that a person who is living in Stranraer should attend a forensic suite outside Dumfries and Galloway. A procedure is already in place so that people from Stranraer can be treated outside their area.

Finally, I say that I welcome the stage 1 debate and look forward to stage 2 and seeing the bill make progress. I thank everyone for their input so far, and look forward to hearing the cabinet secretary’s closing remarks.

The Deputy Presiding Officer (Linda Fabiani)

We now move to the closing speeches. I have a little time in hand. Claire Baker has a generous six minutes.

16:33

Claire Baker (Mid Scotland and Fife) (Lab)

I am pleased to have the opportunity to speak in the debate. This is an area of healthcare and justice policy that has needed to be addressed for some time, as the system has been failing too many survivors of rape and sexual assault. The care and attention that are given to someone who has experienced a sexual assault is critical to how they respond to the trauma they have experienced, their ability to take control of a terrible situation and the recovery that they can go on to experience.

The initial treatment of someone who seeks help after an assault can have a lasting impact on them, and I welcome the changes that the bill aims to bring about. It is an important piece of legislation, and I very much welcome the work that the committee has done to scrutinise the proposal, make suggestions for how the bill can be effectively implemented and provide suggestions for the cabinet secretary to consider. However, I want to recognise even more than the contributions of MSPs the contribution of the Rape Crisis Scotland survivor reference group, whose members shared their experiences with the committee. Their openness and honesty have had a significant impact on the bill.

As an MSP, I have worked with Rape Crisis Scotland on issues of forensic examination. We all know that the service for victims has not been good enough and that, at times, it has been completely unacceptable. At the time of the report by the Inspectorate of Prosecution in Scotland in November 2017, which Margaret Mitchell mentioned, I raised the case of a young woman who spoke to me about her experience of the forensic service following a rape. Her description of the care that she received was heart-breaking, and she was not alone in having this experience. She told me:

“Think, just think, how it felt at the time of the assault, how it felt being in a barren environment where basic needs were only just being met (heating, water, food), where the male Forensic Medical Examiner did not have the tools to do the job.”—[Official Report, 21 November 2017; c 9.]

At the time, I asked for urgent action to be taken to address the clear deficiencies in how forensic examinations were carried out, and I recognise that some initial progress has been made. However, the legislation that is before us is an important lever in enabling us to deliver significant improvements across Scotland, and it is important that it is properly resourced and implemented.

The environment in which victims are being examined is not appropriate. Although there has been some progress, there are still situations that are uncomfortable and undignified. Rape Crisis Scotland highlights the unacceptable waits that women have had to go through in very recent months before they have had an examination. The situation has been unacceptable.

There is another reason why I wanted to speak in the debate, in relation to which I welcome Annabelle Ewing’s contribution. Last year, NHS Fife opened a dedicated suite for forensic medical services at the Queen Margaret hospital in Dunfermline. It has transformed the service that is offered in Fife. Developed in partnership with the Scottish Government chief medical officer’s task force, the Fife health and social care partnership, NHS Fife, the police, third sector agencies and local organisations, the suite contains a consulting room, a sitting room and a medical examination room. A holistic approach has been adopted, with additional staff available to provide support, and it is led by a care co-ordinator who will work with victims of rape or sexual assault to ensure that there is follow-up care and that access to additional services is co-ordinated. Jan Swan from the Fife Rape and Sexual Assault Centre has described it as a “massive milestone”, and it shows what can be done.

As others have said, the responsibility for forensic medical services has often fallen into the cracks between justice and health, and those services have not been prioritised or centred on the needs of the victim. The bill makes it clear who has responsibility. It is right that that will be health boards, and we need to ensure that they are supported and resourced to deliver.

The committee emphasises the importance of 24/7 provision and the need for consistency across the country while understanding and addressing the challenges of rurality and inequalities. All those issues will need to be addressed and the response to them strengthened in the implementation of the bill. I note that some health boards are advancing their preparations, and I encourage them to look at the good practice that has been developed in Fife.

A number of issues were raised in the stage 1 report, and members have explored both the evidence that was laid before the committee and the recommendations that have been made.

The introduction of self-referral is a welcome and sensible policy. It recognises the reality of people’s response to sexual violence and the fact that survivors are often in shock and might need time to decide whether they want to report the crime to the police. Making the change to self-referral will mean that evidence can be collected and stored, and it will then be available to a criminal case if the decision is made to raise one. The committee has made points about the need to raise awareness of the service and to build in future proofing around the age of self-referral. Members made a very good point about raising awareness. It is important that, once the legislation is passed, people are aware that it exists and know how to access the service when they are in need.

Women who experience rape and sexual assault routinely ask for a woman doctor, and I am pleased that, since 2017, following the report of the Inspectorate of Prosecution into the investigation and prosecution of sexual crimes, we have seen an increase of 30 per cent in the number of female examiners after a concerted effort to bring them into the service. I also welcome the number of doctors and nurses who have received NES training.

I note the committee’s recommendation to replace the term “gender” with “sex”. The cabinet secretary will need to reflect on that.

I would like to raise a point that Rape Crisis Scotland made in its briefing, on access to female doctors. It describes such access as the single most pressing and important issue that needs to be addressed, but it argues that key to that is ensuring there are sufficient female doctors to undertake the role. It identifies the requirement for doctors to cover custody cases as well as forensic examinations as a potential barrier, and it proposes introducing a dedicated role for forensic examinations, which would have a positive impact on the availability of female doctors. I hope that the cabinet secretary will consider that.

I support the proposal to establish a statutory right to independent advocacy. In designing the system to deliver forensic medical services, health boards should include independent advocacy services and work in partnership with them from the point of self-referral. There are examples of good partnership working already, and putting it into the bill embeds the role of advocacy and recognises its value, which then attributes a worth to it. Although I accept that there has been investment in independent services, they are often under pressure and have more referrals than they can cope with. A statutory right would underline their importance and deliver for survivors.

I welcome the legislation, and I believe that it can make a difference for people who are going through a very difficult experience. It recognises the need for compassion and that it is not always a case of coldly gathering evidence—there is a person here who needs respect and support. I hope that the bill dramatically improves how people are treated at a traumatic time in their lives.

16:42

Brian Whittle (South Scotland) (Con)

I am pleased to be closing the debate on behalf of the Scottish Conservatives. I thank those who gave evidence, the clerks and my fellow committee members and, as many of my fellow committee members have done, I offer my thanks and admiration to those women who gave evidence about their journey following a rape or sexual assault. It was compelling and moving, as Alex Cole-Hamilton and others have said, and it will follow us for a very long time.

The bill is incredibly important because it starts the process by considering the plight of the victim first and foremost. I purposely say “starts the process”, because it is but one point of many that need to change if we are truly going to change the way in which victims of sexual crimes are treated. The bill can be a message to those who have suffered that Parliament, the law and society are prepared to start listening to and believing them, and are ready to set out a path that will begin to tackle the issue of retraumatisation.

I have written to John Swinney and Humza Yousaf about the issue of retraumatisation and asked specifically for a meeting. As some members know, for the past three years or so I have been working with a constituent whose continual retraumatisation is shocking, to say the very least. She has just managed to get her alleged abuser charged and into court after 44 years. The number of times that she has had to tell and retell her story to so many agencies is, without question, secondary victimisation. Neither cabinet secretary has responded to me so far and I do not intend to let it go, so I would gently say to them that we can speak about the matter in private and perhaps help to develop other legislation, or we can debate it in the chamber. Either way, we will be discussing it because we cannot allow the system to continue to treat victims in such a callous way.

Why is the bill so crucial? A meta-analysis of 28 studies of women and girls aged 14 and over who had had non-consensual sex through force, threats, or incapacitation found that 60 per cent of them did not acknowledge that they had been raped. It is common for victims to need time to acknowledge what has happened to them. It is a gradual process and an indicator of post-traumatic stress disorder in avoiding reminders of the trauma. Giving people the ability to self-refer without initially reporting a crime while they are assimilating what has happened to them is, I think, a significant positive step.

I want to highlight two issues. The first is the debate around record keeping and the retention of samples. I start with the cabinet secretary’s admission during the evidence session that records would be kept in a paper format, at least initially, which is incredible. I do not understand. That would hamper the ability to cross-examine data. What century are we living in?

However, that aside, I want to discuss the arbitrary timescale for the destruction of evidence, which is sitting at two years and two months. When we looked at the retention of samples, many respondents called for consideration to be given to the length of the retention period, but there was no consensus on what that timescale should be. The two months is presumably included to avoid the destruction of evidence on the two-year anniversary of the incident. However, many members of victim support groups suggested that the period should be much longer.

I am not clear why the Cabinet Secretary for Health and Sport suggested that there was consensus around that period. No rationale seems to have been provided for setting that two-year period and it does not take into account the points included in the draft report, which could be summed up as “one size does not fit all”. In my mind, when I am looking at that period, I am thinking of the abuse of a 16-year-old who is then asked about the evidence being destroyed at the age of 18, when they are still very young and unlikely to have processed what has happened to them.

Retention periods must be based on the purposes for retention. The bill states that the retention service is for evidence that

“has not been transferred to a constable”

and

“The purpose is the preservation of the evidence for use in connection with—

(a) any investigation of the incident which gave rise to the need for the examination,

(b) any proceedings in relation to the incident.”

That is, it is for the maintenance of examination evidence held by health boards to support possible future investigations and related proceedings in relation to the incident.

There is the potential for a rolling review of that retention period, with alleged victims being asked whether they wished the evidence to be retained for a further iteration of that time period. David Stewart made the profound point that having an advocate to support the victim would help with that—it would help victims to make the decisions that were right for them at the time. I was heartened to hear the cabinet secretary raise that matter in her opening speech.

The evidence that is retained is very specific and when developing a robust framework for the implementation of the legislation we will need to consider how that evidence will be managed, which should be in such a way that it can be linked to other records relating to the same incident, which will almost certainly be held by other organisations, and so that the value of DNA evidence relating to the alleged incident can be used in identifying a multiple offender in the future—another point that was made by David Stewart.

There is an opportunity for the bill to set a precedent for getting records retention and wider records management requirements right within legislation. A key aspect of compliance with and implementation of legislation, and the exercising of people’s rights as set out within legislation, lies in the creation and retention of records. Standards relating to that aspect of legislative content are varied and there is an implicit requirement to create and retain records to a detailed prescriptive list.

Explicit retention periods are rarely included and tend to state a minimum period, with the obvious exception of data protection, which specifies a maximum period but requires to be considered case by case.There is a need to balance a number of often conflicting factors and it is therefore open to wide interpretation. I recommend the input of records management expertise via a memorandum of understanding with the keeper of the records of Scotland when drawing up new legislation and amendments to existing legislation.

My second point concerns limiting the age of people who can self-refer to 16 and above. I do not think that there is a standard level of maturity for a 16-year-old to start with, and in my opinion the bill may fall foul of United Nations Convention on the Rights of the Child legislation. GIRFEC is about getting it right for every child and the bill does not follow that ethos. If it is not in this bill, I ask the cabinet secretary what the Scottish Government proposes to bring forward to afford appropriate rights for under-16s. That cannot be an afterthought.

Alex Cole-Hamilton noted the dilemma of someone who is under 16 being assaulted by a family member. That is very similar to what happened to my constituent, who was 12 when she was allegedly assaulted.

The Deputy Presiding Officer

I ask the member to come to a close now.

Brian Whittle

I will finish where I began: by stating that the bill is a crucial and important piece of legislation, not only because of its content but because of its potential as a statement of intent to those who have suffered trauma and sexual abuse. As Desmond Tutu once said:

“If you are neutral in situations of injustice, you have chosen the side of the oppressor. If an elephant has its foot on the tail of a mouse and you say that you are neutral, the mouse will not appreciate your neutrality.”

There has, for a long time, been an injustice in the way that victims of sexual abuse have been treated by the system. Let us not miss the opportunity to right those wrongs.

16:50

Jeane Freeman

I am grateful for and pleased at, but not surprised by, the consensual nature of the debate. I think that we all want to right the wrongs of the past—as they have rightly been described—and create the best legislation that we possibly can.

I hope that any survivors who are following the debate, and the organisations that support and represent them, welcome the support that we have heard from members on all sides of the chamber and across parties and committees.

The bill is ultimately intended to improve the experience of victims and to consign to the past practices that do not put victims’ healthcare and recovery front and centre in forensic medical services.

David Stewart

Will the cabinet secretary take an intervention?

Jeane Freeman

No—I am sorry, but I have a great deal to get through, including responding to some of the points that Mr Stewart made.

It is important to recognise that although the bill is important, it is only one part of a suite of work that has been under way since 2017, led by the task force, which has significantly improved many of the aspects that we are trying to address. Members have commented on some of those improvements, not least the fact that facilities are now significantly improved, and the days of victims being examined in police stations are now over.

There has been a full debate on our position on stage 2 amendments; I have listened carefully to all the points that have been made and noted them all down. We want to deliver the best bill possible, and I have not closed my mind to any suggestions from members that might improve and clarify the bill during the remaining part of its parliamentary process.

I will address some of those points—I hope that members will forgive me if I do not have the time to touch on all of them. On behalf of the Health and Sport Committee, Lewis Macdonald talked—as other members did—about how people need to know about the rights and choices in the bill, and about the importance of ensuring that information is clear and is made widely and consistently available in a range of formats. I could not agree more with him on that.

My previous experience as Minister for Social Security has served me well with regard to understanding the full range of accessibility needs in order to ensure that information is widely available. I am happy to commit to do much more work on that and to discuss it further with the committee as we go forward.

Lewis Macdonald also made the point, as the committee report did, about putting trauma in the text of the bill. The bill already legislates for a healthcare focus on trauma-informed care, but I have no particular reason not to discuss that further with the committee, and I would be happy to do so.

Lewis Macdonald and others made a point about advocacy. There is already appropriate statutory underpinning for advocacy. As Rape Crisis Scotland made clear, advocacy services do not necessarily need to be underpinned by legislation, but I will be happy to look at that aspect further and discuss it with the committee when we get to stage 2.

Sandra White and many other members mentioned a guarantee for victims of the right to choose that their examiner will be female, if that is what they wish. In my opening remarks I mentioned the 61 per cent increase in the number of women doctors who are now trained and ready—a considerable increase of 30 per cent since this work began. The key thing is our multidisciplinary approach, which allows us to ensure that the right to a female forensic examiner is there for every victim, if that is what they choose. That is why the work being done with nurses and the new places at Queen Margaret University that I mentioned are so important. We will continue to do that work so that we can offer—consistently and across the country—what I personally consider to be a very important right.

Mr Cameron spoke about a number of issues, many of which are already being addressed by the task force, and I take this opportunity again to thank the task force, which was drawn from many different disciplines and types of experience, for the work that it has undertaken over a very short space of time and for the achievements that it has secured. I recognise that the bill is just one part of that work.

I made this point before, but I want to repeat it: it is important to recognise that all island boards now have on-island services, and no adult needs to travel outwith their islands unless they choose to do so.

On a particular point that Mr Cameron rightly made, and which I think his colleague Mr Kerr also made, we recognise the cross-portfolio nature of the bill. The Cabinet Secretary for Justice launched the consultation in 2019 and is a co-signatory to the bill itself.

On the point about the age of 16, at which self-referral is possible, which was made by Mr Stewart and a number of other members, the bill is consistent with the Age of Legal Capacity (Scotland) Act 1991, as we have specifically clarified in the policy memorandum to the bill, but we are persuaded of the need for an additional delegated power to keep that under review. We will discuss that further.

On the point that Mr Cole-Hamilton made, the issue is not one of the person under 16 being accompanied by a parent or guardian, which is not necessary; the issue, which I think was touched on by Ms Mitchell, is about whether clinicians would be obliged to report sexual assault on a young person under 16, as is current practice. We can consider whether there are any ways around that or what else we might do. That is one of the many reasons why the children and young people’s pathways—to which Children 1st is a key contributor—are so important. We can consider how we bring those two things together.

For Mr Cole-Hamilton’s benefit, I should say that we have published an island communities impact assessment, which was welcomed by his colleague Mr McArthur.

Mr Kerr also made a point about finances—indeed, he made some very important points in that respect. We can pass legislation, but we need to be sure that we can implement it. Mr Kerr has my personal assurance that I am not interested in legislation unless I can be sure that we can implement it—I see no point otherwise. In my opening statement, I made a point about the additional resources that have been given to health boards to ensure that they can do that and that they can put the services in place. Of course, we have to be very sure—through Healthcare Improvement Scotland quality indicators and through the monitoring of all that—that those services are actually delivered, and delivered to the level that we require.

As regards the integrity of the justice system, I point out that the Crown Office and Procurator Fiscal Service is involved in the task force. As Ms Harper and Mr Whittle pointed out, it will be the Lord Advocate who will approve the final protocol on how we secure evidence and on the processes for that. On the matter of retention of evidence, we are now consulting on a timescale, and that will have survivor input so that we can ensure that we get it right.

Many important points have been made in the debate, and I am grateful to members for the thought that they have given to the matter and the points that they have raised, and we will take them all away. I look forward to further constructive discussion with the Health and Sport Committee and with other members, if they wish to take me up on the offer.

Rape and sexual assault are among the very worst experiences that any one of us can face in our life, and their impact lasts—there is no question about that. The bill is one part of the work that we have to do to ensure that we put the victim first and look after their healthcare, their trauma and their recovery as best we can. We will not do that alone; we will do it with many partners across the public sector and third sector, but we always need to listen to the views of victims, survivors and the organisations that represent them. I hope that as we move forward, the Parliament will stand as one to endorse the bill, and I look forward to the stage 2 proceedings when we will continue to improve what is already a very good start to the legislation.

The Deputy Presiding Officer

That concludes the debate on the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill.

1 October 2020

Vote at Stage 1

Vote at Stage 1 transcript

The Deputy Presiding Officer (Linda Fabiani)

There are three questions to be put as a result of today’s business. The first question is, that motion S5M-22884, in the name of Jeane Freeman, on the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill, be agreed to.

Motion agreed to,

That the Parliament agrees to the general principles of the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill.

The Deputy Presiding Officer

The next question is, that motion S5M-22654, in the name of Kate Forbes, on a financial resolution for the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill, be agreed to.

Motion agreed to,

That the Parliament, for the purposes of any Act of the Scottish Parliament resulting from the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill, agrees to any expenditure of a kind referred to in Rule 9.12.3(b) of the Parliament’s Standing Orders arising in consequence of the Act.

The Deputy Presiding Officer

The final question is, that motion S5M-22913, in the name of Graeme Dey, on parliamentary recess dates, be agreed to.

Motion agreed to,

That the Parliament agrees, further to motion S5M-17943 and under Rule 2.3.1, that the parliamentary recess dates of 10 to 25 October 2020 (inclusive) be replaced with 10 to 25 October 2020 (inclusive) with the exception of 15 October 2020, on which date business may be programmed by the Bureau.

The Deputy Presiding Officer

That concludes decision time. Please take care on leaving the chamber that you observe social distancing measures.

Meeting closed at 17:03.

1 October 2020

MSPs agreed that this Bill could continue

Changes to the Bill

MSPs can propose changes to a Bill – these are called 'amendments'. The changes are considered then voted on by the lead committee.

The lists of proposed changes are known as a 'marshalled list'. There's a separate list for each week that the committee is looking at proposed changes.

The 'groupings' document groups amendments together based on their subject matter. It shows the order in which the amendments will be debated by the committee and in the Chamber. This is to avoid repetition in the debates.

How is it decided whether the changes go into the Bill?

When MSPs want to make a change to a Bill, they propose an 'amendment'. This sets out the changes they want to make to a specific part of the Bill.

The group of MSPs that is examining the Bill (lead committee) votes on whether it thinks each amendment should be accepted or not.

Depending on the number of amendments, this can be done during one or more meetings.

First meeting on changes

Documents with the changes considered at the meeting that was held on 10 November 2020:

Meeting on changes transcript

The Convener

We resume the meeting in public session. The next agenda item is the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill at stage 2. Members should have a copy of the bill as introduced, the marshalled list of amendments that was published on Thursday, and the groupings of amendments, which set out the amendments in the order in which they will be debated.

It might be helpful to explain the procedure briefly. There will be one debate on each group of amendments. I will call the member who lodged the first amendment in the group to speak to and move that amendment and speak to all the other amendments in the group. I will then call any other members who have lodged amendments in that group.

Members who have not lodged amendments in the group but who wish to speak should indicate that by placing an “R” in the chat box.

If she has not already spoken on the group, I will invite the cabinet secretary to contribute to the debate just before I move to the winding-up speech. The debate on the group will be concluded by me inviting the member who moved the first amendment in the group to wind up.

Following the debate on each group, I will check whether the member who moved the first amendment in the group wishes to press it to a vote or to seek to withdraw it. If they wish to press ahead, I will put the question on that amendment. If a member wishes to withdraw their amendment after it has been moved, they must seek the agreement of other members to do so. If any member present objects, the committee immediately moves to the vote on the amendment.

If any member does not want to move their amendment when called, they should say, “Not moved.” Please note that any other member present may move such an amendment. If no one moves the amendment, I will immediately call the next amendment.

Thank you for the clarification, convener.

The Convener

I see no “Ns” for “Norway”. I therefore take it that we are all agreed on the amendment.

Amendment 1 agreed to.

Amendments 2 and 3 moved—[Jeane Freeman]—and agreed to.

Section 1, as amended, agreed to.

Section 2—The examination service

The Convener

Amendment 30, in the name of Margaret Mitchell, is grouped with amendments 5, 31 and 32.

Margaret Mitchell (Central Scotland) (Con)

Thank you, convener, and my thanks to the committee for giving me the opportunity to speak to my amendments in this group.

The bill seeks to strike a balance between the health and justice aspects of a forensic medical examination following a sexual offence. Under the bill, the age of self-referral is 16, and that is ostensibly based on three factors. First, it reflects existing services provided by NHS Greater Glasgow and Clyde and NHS Tayside; secondly, it aligns with the age of consent under the Sexual Offences (Scotland) Act 2009; and thirdly, it recognises that child protection measures apply to those under the age of 16.

However, under the Age of Legal Capacity (Scotland) Act 1991, anyone

“under the age of 16 years shall have legal capacity to consent on”

their

“own behalf to any surgical, medical or dental procedure or treatment where, in the opinion of a qualified medical practitioner”,

they are

“capable of understanding the nature and possible consequences of the procedure or treatment.”

Amendment 30 therefore reduces the age of self-referral from 16 to 13. That helps to give effect to the views of Dr Anne McLellan, who is a consultant in sexual and reproductive health at NHS Lanarkshire, who gave evidence to the committee at stage 1, stating:

“we should encourage self-referral in 13 to 15-year-olds, because 40 per cent of last year’s 13,000 sexual assaults were on under-18s.”—[Official Report, Health and Sport Committee, 12 May 2020; c 10.]

Here is the challenge. At present, we actively encourage children and young people to attend local young persons’ clinics to ensure that they are able to make healthy decisions about their sexual relationships and access care for sexually transmitted diseases and pregnancy. In fact, we reassure children and young people that they can engage confidentially with sexual health services, while confirming that those under 16 years of age who might share information will, if a member of staff considers the child or someone else to be in danger, have that information passed on and disclosed to other agencies.

However, as has been stated, providing confidentiality in relation to the disclosure of child sexual abuse or exploitation is problematic, as protection service procedures will automatically apply. Consequently, that deters many young victims from coming forward to disclose such abuse and to seek the medical treatment that they need.

Amendment 32 seeks to address that problem. It states that

“Ministers must issue guidance to health boards about … child protection … and confidentiality”

so that boards can best support children to access forensic medical examinations. That should include ensuring that professionals are informed about the child protection process and how to talk to children about what happens next, thereby helping to ensure that those children feel that they are part of the process.

Ultimately, however, it will be for ministers to determine what the guidance will say. I hope that, in doing so, they will consider the getting it right for every child principles that are set out in the “National Guidance for Child Protection in Scotland 2014” document. The guidance states that the GIRFEC approach

“puts children’s needs first; ensures that children are listened to and understand decisions that affect them; and … that they get the appropriate co-ordinated support needed to promote, support and safeguard their wellbeing, health and development.”

Research has confirmed that, if staff who provide childcare are allowed a degree of confidentiality in relation to anything else that children aged between 13 and 15 who self-refer for a forensic medical examination may disclose, that creates the safe space that is necessary to enable the child to feel more in control.

Such an approach would result in three important and potentially positive outcomes. First, children and young people would be encouraged, and would be more likely, to present for a self-referral forensic examination. Secondly, the best evidence from that examination would be captured as early as possible and retained as necessary in due course. Thirdly, and most importantly, a child who may at present be deterred from coming forward would have access to the physical medical healthcare, as well as the mental health support, that they need.

As members of the cross-party group on adult survivors of childhood sexual abuse have come to understand from listening to many brave survivors of such abuse, children need to be assured that, if they disclose sexual abuse, they will still retain some degree of control over the situation and that will not be totally taken away from them when child protection services come in.

I turn to amendment 31. As it stands, the bill makes no special provision for children and young people and their distinct needs have not been addressed. Amendment 31 defines a “relevant child” as someone aged between 13 and 15 who refers for a forensic medical examination, and that includes a child who is referred for an examination by the police. The amendment provides that they receive the individual age-appropriate support that they require, and that

“the forensic medical examination”

must take

“place in a setting that is appropriate for the … child having regard to”

their

“age and maturity”.

11:00

In her evidence to the committee, the cabinet secretary stated that she considered the bill to be barnahus ready. That is hopefully where Scotland is heading, and the absence of a physical building to provide the appropriate wraparound services under one roof does not mean that we cannot aspire to achieve the barnahus principles.

Amendment 31 therefore also provides for an appropriate adult to be assigned to the child who will be responsible for co-ordinating the necessary support and the assistance that is required as a result of the incident that gave rise to the need for the forensic examination. That adult would also be responsible for explaining to the child what further steps, from both the health and justice perspectives, will take place; meeting the child as soon as is reasonably practicable after the forensic medical examination is requested and before the medical examination can begin; co-ordinating any process that follows from the incident; and, crucially, explaining any child protection procedures that follow from the examination.

In an article to The Scotsman last month, Dr Sarah Nelson OBE explained that one of the reasons that adult survivors of childhood sexual abuse give for waiting until they are 16 to report the abuse is that they are afraid of control being taken away from them due to the rigid and inflexible child protection procedures, which can often see authorities rush into a situation before it has been properly assessed.

To recap, the intention of amendment 30 is to ensure that children feel that they have that crucial control over what is happening through the support that they receive, and that they have their fears addressed. That will, in turn, help to ensure that, rather than being deterred from accessing vital healthcare, such children are instead encouraged to access it.

I turn to the cabinet secretary’s amendment 5. Although I acknowledge and welcome the fact that the Scottish Government has taken on board the committee’s recommendation that the bill be amended to allow ministers to amend in the future the age of self-referral, I firmly believe that there is an opportunity now, in the bill, if amendments 30 to 32 gain the committee’s support, to address the confidentiality issue and allow 13 to 15-year-olds to self-refer, thus providing another opportunity to encourage those children who have experienced child sexual abuse or child sexual exploitation to come forward. That must surely be a good thing.

I move amendment 30.

The Convener

I call the cabinet secretary to speak to amendment 5 and the other amendments in the group.

Jeane Freeman

There has, rightly, been strong interest shown in children and young people issues in the bill’s progress. Important context for the current group of amendments was provided in the children’s rights and wellbeing impact assessment for the bill, which noted that forensic medical examination is not relevant to many victims of child sexual abuse because offending is often not disclosed within the seven-day DNA capture window. Access to healthcare and support for recovery are, of course, vital—irrespective of when child sexual abuse is disclosed.

I listened very carefully to what Ms Mitchell said on what she seeks to achieve with her amendments, and I have sympathy with what she said. I will address those issues in a moment. First, however, I will speak to amendment 5, which is lodged in my name.

The committee recommended in its stage 1 report that the minimum age of 16 for accessing self-referral should become the subject of a delegated power, which would allow it to be varied in the future, should that become appropriate. That was a sensible recommendation from the committee, and one that I welcomed and was happy to accept. Amendment 5 delivers on that commitment.

Amendment 5 proposes that the age must be no lower than 13 and no higher than 18. Thirteen is the age under which the Sexual Offences (Scotland) Act 2009 rightly says any sex with a child is rape, which means that a child of that age is taken to lack any capacity to consent to sexual activity. Maturity among children of the same age varies, of course, but it is reasonable to think that, in general, children under 13 would not have sufficient capacity to self-refer.

At the other end of the age range, 18 is the age at which the United Nations Convention on the Rights of the Child says a child becomes an adult. I look forward to the Delegated Powers and Law Reform Committee’s scrutiny of the new power, should amendment 5 be agreed to.

I confirm that for the purposes of initial implementation of the bill next year—should the Parliament pass it—the Government intends that the minimum age for self-referral will remain at 16, as is provided for in the bill, in line with current self-referral practice in Scotland. The arrangement is referenced in the revised national child protection guidance that the Government has recently issued for consultation, which I highlighted to the committee in my letter last week.

I hope that there is consensus to support amendment 5. I encourage members and stakeholders, who strongly hold the view that a lower or higher age than 16 should be prescribed, to review and respond to the child protection consultation that I mentioned, so that a full range of voices can inform finalisation of the new national child protection guidance.

I turn to Ms Mitchell’s amendments. I welcomed her contribution in the October stage 1 debate, and know from her work as convener of the Justice Committee that she has a long-standing interest in children’s rights in the justice system. That interest includes, but is not limited to, support for the barnahus concept, which the Government also supports.

I understand the positive objectives that Ms Mitchell’s amendments aim to achieve. We all want to ensure that victims of child sexual abuse have access to age-appropriate and trauma-informed healthcare and recovery. I am conscious that the committee expressed in its stage 1 report the view that no specific amendments are required to support the Barnahus concept, or otherwise to make special provision for children and young people. I have consistently made clear the Government’s position that the bill, although it is not a barnahus bill, is in all respects barnahus ready.

Amendment 30 goes against the grain of the committee’s recommendation in paragraph 49 of its stage 1 report. The function of the proposed new delegated power is to allow a change, in the future, of the minimum age for access to self-referral from any age below the age of 16—from 13 to 15 years old—and any age above the age of 16 up to 80, but only following endorsement through affirmative regulations. Such regulations would, naturally, be consulted on widely, and a further children’s rights and wellbeing impact assessment would inform them. I am grateful for the support of the NSPCC, which has written to me and the committee to oppose amendment 30, arguing that it could put services under strain and even, potentially, put children at risk.

I am afraid that against that background I cannot support amendment 30, although nothing in my amendment 5 would prevent a reduction to 13 of the minimum age for access to self-referral, following consultation on regulations, should they ever be appropriate.

Existing health, social work and Police Scotland practices already deliver much of what amendment 31 seeks to achieve. To be of assistance to the committee, I have written to provide an advance copy of Scotland’s first-ever clinical pathway for children and young people who have experienced sexual abuse, which will be implemented in our health boards on 24 November, in advance of the formal launch in early December. As is set out in more detail in my letter, the chief medical officer’s task force developed the pathway in close collaboration with a broad range of key stakeholders, including the three regional child protection managed clinical networks across Scotland, paediatricians, Police Scotland, Social Work Scotland and, of course, our third sector partners.

The aim of the pathway is to ensure a consistent national approach to provision of child-centred and trauma-informed healthcare, following a disclosure of sexual abuse. The pathway describes the requirement for close working across all key agencies to ensure an holistic healthcare response at every step.

In that regard, the pathway, like the bill, is in keeping with the barnahus principles. I consider it to be unnecessary to legislate for work that is already in hand or which is covered by the existing child protection responsibilities of public bodies and professionals. The provisions of the bill deliberately leave the details of health board practice to guidance and the professional judgment of skilled and experienced healthcare professionals. I am grateful for the support of the NSPCC, whose view is that amendment 31 is not necessary.

Although I would never object to an amendment wholly based on technical issues, I should flag up to the committee that the proposed role of the appropriate adult, in the sense of the professionals who support the processes, would be unprecedented in the healthcare system. That could have unpredictable practical and financial effects.

The Rape Crisis Scotland national advocacy project, which is fully funded by the Scottish Government, exists to provide appropriate advocacy support to children over 13. In its briefing for the stage 1 debate, Rape Crisis Scotland acknowledged that the approach does not require a statutory underpinning. I emphasise the Government’s strong support for Rape Crisis Scotland and the advocacy project.

Nonetheless, amendment 31 has prompted me to reflect on what more the Government might do to support child victims to access services under the bill. Although I cannot support amendment 31, I undertake to give thought to how we can further support the NHS to implement the clinical pathway for children and young people, including through provision of on-going care and support for children and families, to aid recovery.

Amendment 32 proposes statutory guidance on matters that are outwith the remit of the chief medical officer’s task force. I mentioned the live consultation on the national child protection guidance, which contains specific guidance on child protection and forensic medical examinations. Guidance on confidentiality is most appropriately provided by employers and professional bodies such as the General Medical Council and the Nursing and Midwifery Council, so it would be inappropriate to give the Scottish Government a statutory role that would cut across that.

Moreover, the committee rightly sought views from the Information Commissioner’s Office on data protection matters; I fear that the proposal in amendment 32 also risks cutting across the ICO’s role. Therefore, I cannot support amendment 32.

In summary, I reiterate that I agree with the sentiments that inspired Ms Mitchell’s three amendments in the group, but I invite the committee to reject the amendments, for the reasons that I have given. I look forward to hearing comments, but I ask Ms Mitchell not to press amendment 30 and not to move amendments 31 and 32. If the amendments are pressed, I ask the committee to reject them and to support amendment 5, which specifically addresses the committee’s stage 1 recommendation.

The CMO task force is advancing preparations to implement the bill next year, should the Parliament pass it at stage 3, and I am concerned that Ms Mitchell’s amendments could have the unintended consequence of delaying commencement of the bill and of the time when the advantages of self-referral for victims can be realised.

The Convener

A number of members want to contribute to the debate on the group.

David Stewart

I congratulate Margaret Mitchell on her comprehensive amendments and on her speech. As the convener knows, I have a background in child protection management, from many years ago. I agree with Margaret Mitchell, in that I have always been concerned about the low level of reporting by victims of abuse.

Having said that, I note that I read with interest the recent reports by Children 1st and the NSPCC, which oppose amendment 30 on the basis that children under 16 will automatically be considered under the child protection pathway, to which the cabinet secretary referred.

There is also a wider picture; we need to be aware that incorporation of the UNCRC into Scots law is on the horizon. That will be significant for the rights of children, and will increase reporting by victims who are under 16. The child protection guidance that is currently out for consultation is very important, so I encourage organisations to take part in that consultation.

11:15

At stage 1, I looked sympathetically at the change, and I understand many of the arguments for it. However, having read the cabinet secretary’s amendment 5, on the change to delegated powers, I think that the Government is keeping the door open for a possible change in the future. That is the right way to go. There is a lot of common ground between Margaret Mitchell, the cabinet secretary and me: we all share the same objectives. However, given the reports that I mentioned from Children 1st and the NSPCC, I am not confident that we should support amendment 30. On that basis, I urge Margaret Mitchell not to press amendment 30, and not to move amendments 31 and 32. I support amendment 5 in the name of the cabinet secretary, which makes sense and reflects the arguments at stage 1.

I am very sympathetic to Margaret Mitchell’s objectives and I know that she has a lot of expertise in the subject. My concern is primarily about timing. I hope that her sentiments will be followed through when the bill is changed in the future, under delegated powers.

Brian Whittle

As you know, convener, I have a specific interest in the matter. I should also declare that I am working with a constituent who was in the relevant age bracket when an offence happened some 44 years ago, and is only just now getting to court. That process has given me more information than most people might want to have on such a crime. I have been very struck by the fact that the individual had nowhere to turn because the appropriate adult was one of the people who allegedly committed the crime.

I am also struck by the fact that the NSPCC now runs, in all primary schools, abuse courses that include sexual abuse. Our children are much better informed about what constitutes abuse. For that reason, the NSPCC says that they should speak to an appropriate adult.

I listened carefully to what the cabinet secretary had to say. I know that she is thinking along those lines by leaving the door open for a future change. That is much appreciated. It strikes me, however, that there is still a gap that we can fill with the bill. I do not accept the argument for not including 13 to 15-year-olds in the self-referral provision. Margaret Mitchell makes a strong case for including them. I am disquieted by my experiences with my constituent and by the fact that there is a gap. What happens if the appropriate adult is the one who has committed the crime? Where does the child go, then?

I will support amendments 30, 31 and 32. If they fall, I will lend support to the cabinet secretary’s amendment 5, which intends to leave the door open. I ask the committee to consider what happens to someone who is between 13 and 15 years old, who in all likelihood knows the abuser who might be the appropriate adult that we are asking them to go to. I hope that the committee will consider that point in deciding on Margaret Mitchell’s amendments.

Donald Cameron

I, too, express my support for Margaret Mitchell’s amendments. I do not have much to add at all, given how eloquently and persuasively she made the arguments.

I also acknowledge the constructive way in which the cabinet secretary has responded to the amendments. I do not think that there are huge divergences of opinion, but I was persuaded by Margaret Mitchell’s argument about age, particularly in relation to legal capacity in Scotland. The Age of Legal Capacity (Scotland) Act 1991 says that anyone under the age of 16 has the “legal capacity to consent” to any medical or surgical procedure.

I think that Margaret Mitchell’s points about needing to encourage children under 16 are important, too. Through amendment 5, the Government acknowledges that “no lower than 13” is the age at which a person could self-refer. Therefore, it seems to me that this is a question of timing, as David Stewart put it. The Government appears to accept that such a change might happen in the future. Given that the Government has conceded that, the question is why that should not happen now. If one accepts that 13 to 16 is a potential age range, not making the change now would be incorrect.

I will deal briefly with amendments 31 and 32. It strikes me as eminently sensible for guidance to be issued to health boards on matters of confidentiality. Those are difficult legal questions, so it would be a wise move for the Government to issue guidance to health boards and I support amendment 32.

Amendment 31 would allow control by the individual involved, by giving them a supportive figure who would be trained and supported by the Government. That would truly implement the barnahus concept through the legislation.

For those reasons, I will support the three amendments in the name of Margaret Mitchell.

George Adam

David Stewart’s argument was powerful and persuasive, as always, and I find myself agreeing with him on the issue. Let us consider NSPCC Scotland’s comments about amendment 30 and lowering the age of self-referral. In its written submission, NSPCC Scotland said:

“We do not support this amendment. Given the sheer level of complexity in the lives of many children who experience sexual abuse, any change to the age of referral which potentially separates the forensic medical response from statutory child protection response, must be underpinned at the very least by comprehensive research into need, whole systems review and substantial resourcing for services, to allow them to cope with increased demand.”

I read that out because I consider it to be important. We get information constantly from third sector organisations and those who work in the sector. To not listen to what they have to say would not be the place that we would all want to be in. I understand where Margaret Mitchell is coming from, but I find NSPCC Scotland’s argument persuasive.

On amendment 31, NSPCC Scotland admits that the

“intention of this amendment is welcome. It clearly recognises that a lack of co-ordination and support for a child in their journey through complex and at times disparate systems ... However, the scope of the amendment ... clearly illustrates the critical need to radically reform the response to children who experience sexual abuse.”

NSPCC Scotland more or less wants to work to find a way forward. I think that we are on that road, given what the cabinet secretary has produced. Furthermore, we mentioned in our stage 1 report that we want to go down that route. For those reasons, I will not vote for amendment 31.

Emma Harper

I understand why Margaret Mitchell has introduced the amendments. However, I have listened to the cabinet secretary and considered the information that has been presented to us about the CMO’s task force and the children and young people’s clinical pathway. Those are the best ways for us to approach the issue, because the door might be open for further amendments.

I would like the work of the children and young people’s clinical pathway to be delivered in a timely way. Professionals from multiple disciplines have worked together to produce a pathway that applies to the care of children and young people up to the age of 16 and even, if a young person is vulnerable, up to 18.

The cabinet secretary’s letter says:

“The aim of the pathway is to ensure a consistent, national approach to the provision of child centred and trauma informed healthcare and forensic medical examination following a concern raised or disclosure of sexual abuse.”

The committee took evidence on the barnahus model being implemented. I support a wider holistic and child-centred approach. I do not support amendments 30 to 32, but I support the cabinet secretary’s amendment 5, so that we can implement the child-centred principles through the clinical pathway that has just been developed, which will be rolled out and monitored. That is how I would prefer to proceed.

Sandra White

For the sake of brevity, I will not go through everything, but I concur with what my colleague Emma Harper said about the clinical pathway and the number of professionals, including those from the third sector, who have been involved in developing it. The cabinet secretary’s amendment 5 supports a stage 1 commitment to the committee that the door would be left open, which is the proper way to proceed. I support amendment 5, but I do not support amendment 30.

On amendment 31, I have worked with Margaret Mitchell many times and I know that she is passionate about the subject, which I thank her for giving us the opportunity to debate. The cabinet secretary said—she can clarify this if I picked her up wrongly—that she is sympathetic to the amendment and will perhaps look at further support. I will go with her words; I do not support the amendment.

Amendment 32 would cut across the work of professionals whose job is to look at the situation, which is tragic for everyone involved and particularly the kids—as Brian Whittle said, that can apply in later years. I am sure that we are all sympathetic to that.

I support amendment 5; I do not support amendments 30 to 32.

Willie Rennie

I am persuaded by what the cabinet secretary said about lowering the specified age, but I will press her on a couple of points. She referred to demand for services. I understand the point about having a joined-up system that is not in conflict with child protection measures, but I do not understand why the proposals would increase demand for services. In some ways, surely an increase would be good, if it meant that more people were coming forward. Perhaps I have misunderstood, so more clarity would help.

If the cabinet secretary is open to lowering the specified age below 16, I press her on the timescale for that. When does she envisage that happening? Does she have an idea from the services of when they would be ready for the age to be lowered? When could such work commence?

The Convener

I exercise my discretion to invite the cabinet secretary to comment briefly on those points, if she so wishes, before we return to Margaret Mitchell, who moved the lead amendment in the group.

Jeane Freeman

Convener, as you have invited me to make a few points in response, I will do so. Before I say anything further, I repeat that I am very sympathetic to the intention behind Ms Mitchell’s amendments. However, I urge the committee not to support them.

11:30

Mr Stewart has summarised large parts of what would have been my argument more eloquently than I could have done.

I also completely understand Mr Whittle’s point, and have addressed such issues with my own constituents. However, in my experience—from the great number of years that I spent as a member of the Parole Board for Scotland, which considered such matters from the other side; from seeing the consequences for perpetrators of sexual abuse and other crimes of early sexual abuse; and from listening to victims—the long-term, almost irreparable damage that such abuse does to children is just as important.

I say to Mr Whittle that the Rape Crisis Scotland advocacy project fills the gap that he mentioned—and does so with the significant experience, compassion and real learning that it has acquired over many years. That is one of the reasons why the Scottish Government supports it so strongly; it is also why Rape Crisis Scotland itself has taken the view that it has.

As for the amendment on guidance, Ms White is absolutely right. I have made the point that the requirement for confidentiality means that the responsibility for guidance on such matters is properly given to the professionals involved by the General Medical Council and the Nursing and Midwifery Council, which are not only professional but regulatory bodies. It would be wrong for the Government to cut across that and in any way to attempt to superimpose additional guidance on professionals. As Ms Harper will know, and as I know from my experience many years ago, the views of the Nursing and Midwifery Council are absolutely to be followed through by those whom it regulates.

However, the substantive point in all this is the one that is being made on age. If I understand the arguments that are being made about self-referral at an age lower than 16, the question that is being asked is: why not do that now? I strongly encourage members to refer to the view of the NSPCC, which Mr Adam referenced earlier and which has expressed the point much more eloquently than I could have done. It says that

“the sheer level of complexity in the lives of many children who experience sexual abuse”

means that any

“change to the age of referral, with potentially separate forensic medical responses from statutory child protection response must be underpinned at the very least by comprehensive research into need, whole systems review and substantial resourcing for services to allow them to cope with increased demand.”

In answer to Mr Rennie’s questions about when changes could be made, I think that the two aspects, which are the implementation of the clinical pathway—I wrote to members about it, enclosing a copy—and the conclusions, go hand in hand. The national child protection guidance consultation will provide us with significant further information and data so that, should it make the case strongly for a younger age, we will already have provided in the bill the opportunity to make such a change. Without research, underpinning and wider work having taken place, particularly with our key professionals and those in our stakeholder groups, this is not the time to make that change. However, it is right to have the door open. Perhaps it will happen in the very near future—but it is certainly a matter for the future.

The Convener

I invite Margaret Mitchell to wind up and to press or withdraw amendment 30.

Margaret Mitchell

I thank committee members for their comments.

In order to put my amendments into context, it is important for us to remember that the vast majority of child abuse is committed not by strangers, but by family members and those who are in positions of power and trust. Worse still, we know from charities and agencies that support children who have been abused, that during lockdown incidents of child abuse have rocketed and spiralled. There is a pressing need to address the issue now.

I understand that people, including the cabinet secretary at stage 1, have referred to the complexity of how to do that, given that child protection obviously kicks in and there is the question of how we would involve clinicians—whether they would be obliged to report sexual assault on young people in that age group. However, the way forward that I suggest in amendment 32 is based on what already exists in the health service in the context of young people in the same age group: 13 to 15-year-olds have access to medical health services in respect of sexually transmitted disease and pregnancy.

We know that a key factor preventing young people who are abused and exploited from coming forward is the loss of control and the breach of their confidentiality. Therefore, what amendment 32 proposes would give them that safe space of a little bit of time to come to terms with and understand what will happen before it does. If there is a risk that they will continue to be abused, that will most certainly be reported and acted upon. Crucially, amendment 32 puts in place a provision that gets over the complexity and encourages those young people who are presently falling through a gap and not getting the medical and mental health support that they need to access that support.

Turning to amendment 31, I have noted what members said about the clinical pathway and what the cabinet secretary said, but Children 1st’s concern was that we should have a barnahus model and not create within the bill a separate, parallel approach for children. I rather fear from the comments that that is exactly what we are en route to doing. Amendment 31, were it agreed to, would clearly set out the wraparound support for victims of childhood sexual abuse—the trauma-informed, multidisciplinary approach for children who have been sexually assaulted—and ensure that someone will take the lead in looking at a 13 to 15-year-old’s case so that they do not have to repeat their story, time and again, to different health professionals.

For all those reasons, I hope sincerely that the committee will think again and agree to the amendment for 13 to 15-year-olds now. If it may happen sometime in the future, I do not think that it is sufficient to say that it is all too difficult now, especially given my comments about the escalating incidence of child abuse during lockdown.

Therefore, I press amendment 30 and hope that there is the political will to support it.

The Convener

The question is that amendment 30 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Cameron, Donald (Highlands and Islands) (Con)
Whittle, Brian (South Scotland) (Con)

Against

Adam, George (Paisley) (SNP)
Harper, Emma (South Scotland) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
Rennie, Willie (North East Fife) (LD)
Stewart, David (Highlands and Islands) (Lab)
Torrance, David (Kirkcaldy) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)

The Convener

The result of the division is: For 2, Against 7, Abstentions 0.

Amendment 30 disagreed to.

The Convener

Amendment 4, in the name of the cabinet secretary, is grouped with amendments 20 and 29.

Jeane Freeman

At stage 1, there was a debate as to whether the definition of “evidence” in the bill was appropriate, and I committed the Government to developing a revised data protection impact assessment on the bill, which was duly prepared by my officials in consultation with the Information Commissioner’s Office. I sent the impact assessment in its final form to the committee last week, and it was published on the Government’s website this morning for wider scrutiny by stakeholders.

As highlighted in the revised impact assessment, the Government became persuaded that the definition of “evidence” in the bill should be refined. Amendment 20 will therefore insert an improved and more detailed definition of “evidence” into the bill. Subsection (1) of what will become new section 12A gives a non-exhaustive list of the types of things that may be considered to be evidence. In particular, the description of “notes or other records” now makes it clear that such notes can record matters that concern matters beyond the victim’s physical condition, such as their psychological state.

Subsection (2) in the proposed new section will ensure that evidence that is collected may transfer to the police only when it is needed for the purposes of investigation or prosecution of the incident, which means that records that contain notes of wholly unconnected health information will not be considered as evidence and will not be subject to transfer or destruction.

Subsection (3) is included in order to allow evidence to be stored even in the event that a victim does not decide to proceed with a full physical examination, thus allowing the health board to store initial non-intimate samples such as blood and urine that may be taken before a full physical examination is performed.

Amendment 29 is consequential and removes the existing definition of “evidence”.

Amendment 4 is a technical amendment that concerns the definition of “forensic medical examination” in the specific context of the bill. Although this point was not raised in stage 1 scrutiny, the definition of “forensic medical examination” is of equal importance to the definition of “evidence”. Amendment 4 clarifies that a forensic medical examination in the particular context of the bill is predominantly a physical medical examination. That distinguishes the subject matter of the bill from wider types of forensic medical examination, such as forensic mental health capacity assessments.

I move amendment 4.

Amendment 4 agreed to.

Amendment 5 moved—[Jeane Freeman]—and agreed to.

11:45

The Convener

Amendment 6, in the name of the cabinet secretary, is grouped with amendments 7 to 9.

Jeane Freeman

The amendments in this group clarify that sexual assault response co-ordination services are available to victims under the bill irrespective of whether the incident took place in Scotland. Legislating to clarify the position in relation to incidents occurring outside Scotland will ensure that people who wish to access a sexual assault response co-ordination service can do so, regardless of where the incident took place.

Police Scotland already has well-established links with other police forces to transfer or receive evidence, when appropriate, under existing cross-border arrangements. In order to deliver the policy that I have mentioned, amendments 6 and 7 amend the definition of “sexual offence” in section 2(4) of the bill to clarify that it includes acts committed outside Scotland that would count as offences in Scots law if they were committed here.

Amendment 8 makes an equivalent amendment to the definition of “harmful sexual behaviour” in that section. Amendment 9 is consequential on amendment 8 and clarifies that the age of criminal responsibility in Scotland is the relevant one for the purpose of establishing whether an incident amounts to “harmful sexual behaviour”. That ensures that all behaviour elsewhere is caught according to whether it would be an offence of harmful sexual behaviour in Scotland, regardless of how it would be treated in the jurisdiction where the incident took place.

I move amendment 6.

Amendment 6 agreed to.

Amendments 7 to 9 moved—[Jeane Freeman]—and agreed to.

Section 2, as amended, agreed to.

After section 2

The Convener

Amendment 31, in the name of Margaret Mitchell, has already been debated with amendment 30. I ask Margaret Mitchell whether she wishes to move or not move amendment 31.

Margaret Mitchell

[Inaudible.]

The Convener

We will try again. I see that Donald Cameron wishes to move the amendment instead.

Amendment 31 moved—[Donald Cameron].

The Convener

The question is, that amendment 31 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Cameron, Donald (Highlands and Islands) (Con)
Whittle, Brian (South Scotland) (Con)

Against

The Convener

The result of the division is: For 2, Against 7, Abstentions 0.

Amendment 31 disagreed to.

Sections 3 to 5 agreed to.

After section 5

Proposed subsections (1A)(b) and (1B) to (1C), which amendment 16 also proposes to add to section 8, deal with situations in which the victim requests the destruction of evidence or the evidence is due to be destroyed at the end of the period specified under section 8(1)(b), but a police request for the evidence to be transferred to it is made at around the same time. The request for transfer of the evidence to the police takes precedence unless it is not possible to stop the destruction of the evidence.

Amendment 12 is the other main amendment in the group, and it addresses the rare or exceptional situation in which a self-referring victim requests the return of their property but it is not in the public interest for the item to be returned to them. The amendment makes provision to ensure that the health board is not under a duty to make that return in those circumstances. Proposed subsection 2A(a), which would be added to section 7 along with proposed subsection 2B, allows a health board to refuse to return an item that is stored as evidence if, at the time that the victim requests the return of the item, the health board has some doubt about whether the item belongs to the victim. Amendments 10 and 11 are consequential.

Current CMO task force policy is that, apart from samples, only underwear and relevant outerwear would be stored as evidence. I therefore expect questions of ownership to be an extremely rare occurrence, but amendment 12 may become more relevant if there are any future changes to forensic science guidance about what items should or could be retained in a forensic examination.

Proposed subsection 2A(b), along with proposed subsection 2B, allows the health board to refuse to return an item that is stored as evidence if there is a safety reason why that item should not be returned to the victim. There could be exceptional circumstances in which an item has become biologically hazardous and it would be unsafe for it to be returned to the victim—for example, if there were remnants or traces of a date rape drug on the item. In both the above scenarios, the victim may be unsure why they cannot have the item returned to them, so provision is included in proposed subsection 2B(b) to ensure that the health board explains the reason.

Finally, proposed subsection 2A(c), along with proposed subsection 2B, provides that the health board must refuse to return an item that is stored as evidence if the victim has made a police report. That will have initiated a police investigation, and the items will be awaiting collection by the police. Health boards require clarity about what to do should the victim appear to request the return of items that have become the primary responsibility of the police. However, I must emphasise that the victim’s right to the return of property under the Victims and Witnesses (Scotland) Act 2014 is unaffected; the nuance is that they must request the return of the property from the police and not from the health board.

Amendment 17 amends section 9 to make it clearer that the police cannot request a transfer of evidence that has already been destroyed or returned to the victim. Although that is implicit, the greater focus on those issues introduced by the other amendments in the group means that the point being made more explicit will assist.

I move amendment 10.

Amendment 10 agreed to.

Amendments 11 and 12 moved—[Jeane Freeman]—and agreed to.

Section 7, as amended, agreed to.

Section 8—Destruction of evidence

Amendments 13 to 16 moved—[Jeane Freeman]—and agreed to.

Section 8, as amended, agreed to.

Section 9—Transfer of evidence to police

Amendment 17 moved—[Jeane Freeman]—and agreed to.

Section 9, as amended, agreed to.

After section 9

The Convener

Amendment 18, in the name of the cabinet secretary, is grouped with amendment 28.

12:00

Jeane Freeman

The principle of trauma-informed care runs through the bill and drives the work of the chief medical officer’s task force. In that context, the bill enshrines the principle of trauma-informed care, writing it into the law for the first time in Scotland.

The existing wording on trauma-informed care appears in the schedule to the bill. However, given the principle’s importance, I am minded to give it more prominence. Amendment 18 therefore inserts improved wording on trauma-informed care in the main body of the bill. I am grateful to NHS Education Scotland colleagues for their support to help to expand and improve the wording on trauma-informed care in the amendment.

There are a number of different interpretations of what is meant by “trauma informed”. Without any reference in the bill to what is meant by “trauma informed” or “retraumatisation”, many may feel that they are already providing trauma-informed care without having an understanding of retraumatisation or of the importance of identifying and avoiding it.

Amendment 28 is consequential on amendment 18 and simply deletes the existing wording on trauma-informed care from the schedule.

I move amendment 18.

Sandra White

[Inaudible.]—who worked on this particular issue, which is one of the most important issues that we need to consider.

The trauma that had been experienced by the women whom the committee met and spoke to was horrific, and it was very moving to hear from them. I am pleased that the amendment will put the wording on trauma-informed care in the main body of the bill.

I have one question for the cabinet secretary. Page 24 of the policy memorandum, which sets out the Scottish Government’s policy intent behind the bill, lists five asks. The second of the bullet points under ask 2 refers to the need to ensure that

“A female doctor and nurse chaperone are available 24/7 ... where a victim”

“requests.”

Progress on that is marked as “ongoing”. Will that element be included in amendment 18? Is it to be part of the approach to ensuring a lack of trauma for, and retraumatisation of, victims? I would like clarification on that.

The Convener

As no other member has indicated that they wish to speak, I call the cabinet secretary to wind up.

Jeane Freeman

I have nothing further to add, except to respond to Sandra White’s question. The content of amendment 18 is clearly set out, and that is what it will say. I agree completely with Ms White that it is important that we have moved the wording on trauma-informed care from the schedule to the main body of the bill. With regard to the linked aspect of her question, the two areas—trauma-informed care and the provision of a female examiner or nurse chaperone—go hand in hand.

Ms White will be aware of the new course for forensic nurse examiners that has commenced at Queen Margaret University. That is an important step along the road, in addition to what we have already done, to ensure that we provide 24/7 access to female examiners should that be what an individual wants.

Amendment 18 agreed to.

Sections 10 and 11 agreed to.

After section 11

The Convener

Amendment 19, in the name of the cabinet secretary, is in a group on its own.

Jeane Freeman

The committee recommended in its stage 1 report that there should be a statutory annual reporting requirement, and the Government accepted that recommendation. Amendment 19 requires Public Health Scotland to produce annual reports on the implementation of the legislation should it be passed by Parliament.

Public Health Scotland is the body that is best placed to discharge that new statutory duty, as it had already agreed with the CMO task force the report on health board performance against the March 2020 Healthcare Improvement Scotland quality indicators. I am grateful to Public Health Scotland for agreeing that its work should have a statutory underpinning and for its approval of amendment 19 in draft form.

I do not believe that an indefinite statutory reporting requirement is proportionate, so the amendment provides for a long stop that—[Inaudible.]—reports must be produced on a statutory basis. I should emphasise that nothing in the policy prevents further non-statutory reports or post-legislative review by the Government, the Public Audit and Post-legislative Scrutiny Committee, the media, academia, or any other person.

I move amendment 19.

Amendment 19 agreed to.

Section 12 agreed to.

After section 12

Amendment 20 moved—[Jeane Freeman]—and agreed to.

Schedule

The Convener

Amendment 21, in the name of the cabinet secretary, is grouped with amendments 22 to 24 and 27.

Jeane Freeman

Paragraph 1 of part 1 of the schedule makes important consequential amendments to the National Health Service (Scotland) Act 1978. That is to ensure that the pre-existing NHS Scotland legislation and the bill will dovetail and interoperate properly.

Amendment 22 adds to the consequential amendments to the 1978 act so that ministerial intervention powers in sections 76, 77, 78 and 78A of the 1978 act are available, should they ever be needed. I emphasise that those powers are not new and ministers have always treated them as powers of last resort. Nevertheless, to enshrine the principle that forensic medical services under the bill are mainstream board functions, it is appropriate that all relevant 1978 act measures are applied to them just as they are to other health board services.

Amendments 21, 23 and 24 are purely consequential on amendment 22.

Amendment 27 concerns the clinical negligence and other risk indemnity scheme, which is established by regulations; the scheme is sometimes known as CNORIS, although I think that it is best known by its full title. Amendment 27 updates the wording of the regulations to cover forensic medical services that are provided under the bill. The regulations already cover forensic medical services under the memorandum of understanding between Police Scotland and health boards by virtue of wording that was inserted by amendment regulations in 2014. Amendment 27 reflects the new statutory basis for the delivery of services.

I should highlight, as I did in my recent letter to the committee, that further technical consequential amendments might be made at stage 3. It is too early to confirm that that will be the case or what those amendments might be, but I do not envisage that any consequential amendments that the Government lodges at stage 3 will contain any substantive policy; they will be purely technical and consequential so that existing legislation dovetails with the bill’s provisions.

I move amendment 21

Amendment 21 agreed to.

Amendments 22 to 28 moved—[Jeane Freeman]—and agreed to.

Schedule, as amended, agreed to.

Section 13—Interpretation

Amendment 29 moved—[Jeane Freeman]—and agreed to.

Section 13, as amended, agreed to.

Sections 14 to 16 agreed to.

Long title agreed to.

The Convener

That ends stage 2 consideration of the bill. I thank Margaret Mitchell, the cabinet secretary, members and all those who have assisted in the proceedings.

Meeting closed at 12:11.

10 November 2020

Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill as Amended at Stage 2

Additional related information from the Scottish Government on the Bill

Revised explanation of the Bill (Revised Explanatory Notes)

Revised Explanatory Notes Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill Revised Explanatory Notes Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill

More information on how much the Bill is likely to cost (Supplementary Financial Memorandum)

Supplementary Financial Memorandum Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill Supplementary Financial Memorandum Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill

More information on the powers the Scottish Parliament is giving Scottish Ministers to make secondary legislation related to this Bill (Supplementary Delegated Powers Memorandum)

Supplementary Delegated Powers Memorandum Forensic Medical Services (Victims of Sexual offences) (Scotland) Bill Supplementary Delegated Powers Memorandum Forensic Medical Services (Victims of Sexual offences) (Scotland) Bill

Delegated Powers and Law Reform Committee's Stage 2 report

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Debate on the proposed changes

MSPs get the chance to present their proposed changes to the Chamber. They vote on whether each change should be added to the Bill.
Documents with the changes considered at the meeting on 10 December 2020:

Debate on proposed changes transcript

The Presiding Officer (Ken Macintosh)

The next item of business is stage 3 proceedings on the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill. In dealing with the amendments, members should have the marshalled list and the groupings of amendments.

I remind members that the division bell will sound and proceedings will be suspended for five minutes for the first division of the afternoon. The period of voting for each division will be up to one minute. Members who wish to speak in the debate on a group of amendments should press their request-to-speak buttons as soon as possible after I call the group. Members should now turn to the marshalled list of amendments.

Section 2—The examination service

The Presiding Officer

Group 1 is titled “Self-referral age and support for under 16s undergoing forensic medical examination: reports on exercise of power to change age for self-referral and pilot scheme”. Amendment 1, in the name of Margaret Mitchell, is grouped with amendment 7.

Margaret Mitchell (Central Scotland) (Con)

Amendments 1 and 7 relate to the provision of support for children in the 13-to-15 age group. At the outset, I thank the cabinet secretary and her officials for taking the time to meet me yesterday to listen to why I lodged the amendments, and for the extremely worthwhile discussion that took place.

By way of background, I note that I lodged the amendments taking into account the welcome Scottish Government amendment at stage 2 that provided an ability to include the age group in the bill’s provisions for self-referral for forensic medical examination at some point in the future. The two amendments in group 1 are therefore different from the ones that I lodged at stage 2.

I lodged amendments 1 and 7 having listened carefully to the comments that the cabinet secretary made at stage 2, when it became clear that the Scottish Government has extensive work in progress in the form of the development, in partnership with the chief medical officer’s task force, of the children and young people’s clinical pathway.

The aim of the CYP clinical pathway is to ensure that there is a consistent national approach to the provision of child-centred, trauma-informed healthcare and forensic medical examination following a concern being raised or disclosure of sexual abuse. In addition, other barnahus work is being undertaken and a child protection consultation is under way. I welcome that and pay tribute to the Government for getting to this stage and for the extensive and very positive work.

My amendments do not cut across or hinder that on-going work. Rather, they provide a mechanism by which we can keep the issues to the forefront and future-proof the bill, especially given that it has come at the end of the current parliamentary session.

Amendment 1 will require the Scottish ministers to publish a statement annually on whether they will produce regulations, as per section 2(3A), to change the age of self-referral. In addition, ministers must outline what support is being or will be provided to a person aged under 16 who has been referred by a constable for a forensic medical examination. The aim of the amendment is to ensure that ministers regularly consider the age of self-referral and that consideration is given not only to the lowering of the age but to the support that will be provided to those under-16s who undergo a forensic medical examination as a result of any change. I thank the cabinet secretary for the confirmation that she is minded to support that amendment.

16:30

Amendment 7 gives ministers the power to introduce a pilot scheme whereby those 13 to 15-year-olds can self-refer for a forensic medical examination and details that certain arrangements are to be made for children and young people as part of a pilot scheme. It is important to put the amendment in the very sobering context in which it has been lodged. We know that child sexual abuse has increased dramatically during lockdown, as, sadly, there have been greater opportunities for child sex abuse in the home. Reporting such abuse has always been difficult, but it has been even more difficult during the pandemic period, as opportunities for disclosure have been fewer. The acknowledgement of the need to create a safe space is crucial in order to give those children who have been sexually abused the confidence to disclose.

Self-referral offers another mechanism by which a young person can disclose and, even more importantly, can access the health and mental health care that they need. A lack of access to physical and mental health care can have a devastating impact on a survivor’s life, often causing them to use alcohol and drugs to self-medicate.

The amendment therefore includes certain arrangements that are to be included in a pilot scheme, such as assigning to a relevant child an appropriate adult who must meet with the relevant child as soon as is reasonably practicable after the forensic medical examination, as requested. They must also ensure, before the medical examination can begin, that the relevant child has been provided with information about any child protection procedures and health procedures that will be followed, and they must continue to co-ordinate support to the relevant child throughout any process that follows as a result of reported incidents. That includes co-ordinating support to the relevant child in any steps that are taken to meet the relevant child’s healthcare needs as a result of the reported incident. Those provisions provide the safe space that is necessary to encourage disclosure.

The level of detail in the amendment might appear—indeed, it is—prescriptive, but it is included deliberately to form a checklist for assessing how the various aspects of the clinical pathway, child protection and the barnahus approach are operating in relation to supporting children and young people who are the victims of child sexual abuse and other sexual offences.

If ministers arrange for a pilot scheme, they are required to lay before the Parliament a statement describing the scheme and how they intend to evaluate its outcomes. Once the pilot has ended, ministers must lay a report before Parliament setting out their findings and whether they intend to do anything regarding the age of self-referral. Alternatively—this is crucial—if ministers choose not to introduce a pilot scheme, they must explain to Parliament why they have chosen not to.

As I stated previously, I very much welcome the work that is going on in Scotland to ensure that children who are victims of childhood sexual abuse receive the support that they need through the clinical pathway and the barnahus approach that Scotland has ambitions for, as well as the work that is being done on related issues such as getting it right for every child, adverse childhood experiences and the United Nations Convention on the Rights of the Child.

However, without the creation of the safe space that is necessary to give 13 to 15-year-olds the confidence to disclose, the problem of the fear of reporting sexual abuse will continue. As a consequence, those vulnerable young people will not have the access to the health and medical care that they need and deserve.

I move amendment 1.

Donald Cameron (Highlands and Islands) (Con)

I have little to add to what Margaret Mitchell has just said. Amendment 1 places a duty on the Government to consider annually the question of the age of self-referral. Everyone who has discussed the issue of age in this regard, either in committee or in the chamber, will be cognisant of what a difficult issue it is. In my view, the amendment would allow the Government to consider that difficult issue regularly, and I hope that the Government will support the amendment.

The only point that I wish to add about amendment 7 is that it would simply give ministers the power to introduce a pilot scheme if they chose to do so. There would be no obligation to do so—it would not be mandatory—despite the prescriptive terms of the scheme, to which Margaret Mitchell alluded. Ultimately, the amendment would give ministers a choice—the scheme would be optional. For those reasons, it seems eminently reasonable. It offers a practical solution to the Government in allowing it to trial such a scheme if it wishes to do so.

I hope that members will support both amendments.

The Cabinet Secretary for Health and Sport (Jeane Freeman)

There has been considerable interest in the parliamentary process to date on the minimum age for self-referral. The final draft of the bill will state that the minimum age is 16, in line with current practice, but a delegated power was added at stage 2 to allow the minimum age to be varied in the future by regulations if that becomes justified in the light of future changes to guidance, practice or legislation.

I am very grateful to Margaret Mitchell for meeting me yesterday to discuss and explain her amendments. I listened carefully to what she said then and what she said today. I thank her and recognise her interest, which has been long standing, in supporting child victims in the stage 2 proceedings, at yesterday’s meeting and in the chamber today. Too few child victims disclose abuse, and I know that Ms Mitchell and I share a desire to tackle that issue.

Against that background, I am pleased to support amendment 1. However, having considered the matter carefully, I cannot support amendment 7. It would be disproportionate to have a pilot scheme that offered self-referral for forensic medical examination to a child or young person under 16, as that would be at odds with existing child protection guidance, which healthcare professionals need to follow in all cases of child sexual abuse. I also worry that operating a pilot scheme in just one part of the country could unintentionally confuse young people and the multi-agency professionals supporting them about what services were available to them. That could add to the difficulty of the situation that the young person already faced.

In yesterday’s meeting, my officials and I explained that the children and young people clinical pathway, which was published by the chief medical officer’s task force last month, together with the revised national child protection guidance, which is currently out for public consultation, needs time to bed in. My view is that legislating to the level of detail that is proposed by amendment 7 would not deliver on the ambition.

We know that children and young people who have experienced sexual abuse can face many complex barriers to disclosure, and work is taking place across Government to address those barriers. I urge any member or stakeholder with an interest in the field to be mindful of the difficult balance to be struck between a young person’s autonomy and the need to protect them and to respond to the revised child protection guidance consultation.

At stage 2, we debated different amendments that Margaret Mitchell had lodged. In opposing those amendments, I undertook to give thought to how we could further support the national health service to implement the new clinical pathway for children and young people, including through the provision of on-going care and support for children and families to aid recovery. I can now let members know that an additional £0.5 million has been provided to improve the NHS response to child sexual abuse through the development of child and family support workers across Scotland and to support the implementation of the children and young people clinical pathway. The total funding of £0.5 million includes £0.1 million that has already been allocated to the west of Scotland region to test the child and family support worker model. Learning from that will inform how services will develop across the rest of the country.

I give a commitment to ensure that each of the matters that are prescribed in amendment 7 is given due consideration by the Government and the task force in the implementation of the bill, should Parliament pass it at decision time.

I have confirmed my support for amendment 1. I invite Margaret Mitchell not to press amendment 7 in the light of our meeting yesterday and what I have announced and committed to today.

Margaret Mitchell

I welcome the additional funding that the minister has announced. I make it quite clear that, although the Government would be under no obligation whatsoever to introduce the pilot, it would most certainly be under an obligation to address all the issues in the pilot as a checklist to see how much progress had been made with the pathway and whether the crucial issue of underreporting was being addressed adequately—and, if it was not, whether other measures in the pilot could be used to address that. The amendment would make sure that the Government would have to report to Parliament why those measures were either not necessary or inappropriate.

The cabinet secretary and I clearly both share the same objective that the legislation should do the very best that it can to protect vulnerable children. However, my concern is about ensuring that those issues continue to be considered by the Scottish Government—whatever its political persuasion—in succeeding years and that underreporting and the resulting gap in mental health and health provision for young people is kept in view.

Amendment 7 contains measures that could be considered in order to put in place a safe space for 13 to 15-year-olds that would give them the confidence to disclose sexual abuse. It would ensure that that discussion took place, meaning there would be a much greater chance that those 13 to 15-year-olds would access the healthcare that they needed. Early intervention would help them to turn their lives around early on.

That is why, in case there is even the slightest chance that amendment 7 could be passed, I will press it.

The Presiding Officer

We will come to amendment 7 shortly.

Amendment 1 agreed to.

Section 4—Information to be provided for examination

The Presiding Officer

Group 2 is on cases where only preliminary evidence gathering takes place. Amendment 2, in the name of the cabinet secretary, is grouped with amendments 3, 4, 5, 12, 13, 14 and 15. I call the cabinet secretary to move amendment 2, and to speak to all the amendments in the group.

Jeane Freeman

Group 2 concerns preliminary evidence gathering, which is sometimes referred to as early evidence taking. Early evidence can be crucial, since urine, blood or hair clippings that are taken properly ahead of a forensic medical examination might demonstrate that a victim was, for example, so intoxicated that they could not have consented to sexual activity. Victims have a fundamental right to determine what aspects, if any, of a full forensic medical examination proceed. Early evidence might be particularly important to any future criminal investigation.

A number of sections in the bill refer to

“the need for the examination”;

to examinations being “carried out”, or to a person undergoing or a person who underwent an examination. Therefore, references to a forensic medical examination having been carried out would potentially read as requiring a full physical examination.

To support the early evidence practices that are mentioned, amendment 15 adds additional interpretive provisions to the interpretation of section 13, including subsection (4), which will act as an interpretive clause to the references that are in sections 6, 7, 8 and 9 of the bill. When an individual is referred for, or requests, forensic medical examination, but the physical examination does not go ahead for whatever reason, the health boards can competently store evidence, and such evidence can be transferred to the police, if and when the victim so wishes.

Amendment 14 is consequential, and amendments 2 to 5 make related amendments to section 4 of the bill.

Lastly, amendments 12 and 13 address a minor inconsistency in section 12A—the new definition of evidence that was added at stage 2—so that references in all its subsections refer to things that are collected or created during, or in connection with, the examination.

I move amendment 2.

The Presiding Officer

No members have indicated that they wish to contribute on the group, so we will go straight to the question.

Amendment 2 agreed to.

The Presiding Officer

I call amendments 3 to 5 and invite the cabinet secretary to move those amendments en bloc.

Amendments 3 to 5 moved—[Jeane Freeman].

The Presiding Officer

Does any member object if I put all three questions en bloc?

Members: No.

Amendments 3 to 5 agreed to.

Section 5—Health care needs

The Presiding Officer

We turn to group 3, on the integration of bill functions with functions under the National Health Service (Scotland) Act 1978. Amendment 6, in the name of the cabinet secretary, is grouped with amendments 17 and 18.

16:45

Jeane Freeman

Amendments 6 and 18 address the nuance that a health board’s duty to provide certain services under the National Health Service (Scotland) Act 1978 legal framework has a residency-based element, whereas the provision of health services under the bill should, at least for the immediate healthcare of forensic medical examination needs, be open to everyone that seeks them. That is in line with the existing duties that health boards have to provide accident and emergency treatment to people regardless of their residential status. It is appropriate that long-term healthcare needs, such as access to on-going psychological therapy or support, are addressed by the healthcare system of the place where the victim is ordinarily resident.

Amendment 6 will amend section 5(1) of the bill and amendment 18 will amend paragraph 2 of the schedule to the bill, which amends article 2(1) and 3 of the Functions of Health Boards (Scotland) Order 1991, so that the policy mentioned can be given effect to in the 1978 act’s legal framework. As the wording of amendment 18 specifically highlights, it is appropriate that a survivor who has accessed support under the bill can return

“at the request or on the recommendation of the”

relevant

“health board, for follow-up care”.

For example, that might be to check up on any injuries.

Amendment 17 makes final consequential amendments to the National Health Service (Scotland) Act 1978, which is sometimes known as the 1978 act. I flagged to the Health and Sport Committee in the course of stage 2 proceedings that technical amendments of this nature might be lodged at stage 3 so that existing NHS Scotland legislation dovetails with the bill’s provisions. Amendment 17 modifies sections 2(5), 2B, 10H and 17A of the 1978 act in consequence of the bill, and builds on modifications already contained in the bill

I move amendment 6.

The Presiding Officer

No member has indicated that they wish to contribute on amendments in group 3.

Amendment 6 agreed to.

After section 5

Amendment 7 moved—[Margaret Mitchell].

The Presiding Officer

The question is, that amendment 7 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

This is the first division of the afternoon, so I suspend Parliament for five minutes to summon members to the chamber.

16:47 Meeting suspended.

16:59 On resuming—

The Presiding Officer

I remind members that we are on group 3. We move to the vote on amendment 7, in the name of Margaret Mitchell. This will be a one-minute vote.

The vote is now closed. If any members believe that they were not able to exercise their vote, please let me know.

For

Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Ind)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Bowman, Bill (North East Scotland) (Con)
Boyack, Sarah (Lothian) (Lab)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Griffin, Mark (Central Scotland) (Lab)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harris, Alison (Central Scotland) (Con)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Macdonald, Lewis (North East Scotland) (Lab)
Marra, Jenny (North East Scotland) (Lab)
Mason, Tom (North East Scotland) (Con)
McArthur, Liam (Orkney Islands) (LD)
McNeill, Pauline (Glasgow) (Lab)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Rennie, Willie (North East Fife) (LD)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Sarwar, Anas (Glasgow) (Lab)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Elaine (Central Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, David (Highlands and Islands) (Lab)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)
Wishart, Beatrice (Shetland Islands) (LD)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greer, Ross (West Scotland) (Green)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wightman, Andy (Lothian) (Green)
Yousaf, Humza (Glasgow Pollok) (SNP)

The Presiding Officer

The result of the division is: For 58, Against 65, Abstentions 0.

Amendment 7 disagreed to.

Section 7—Return of certain items of evidence

The Presiding Officer

Group 4 is on minor amendments. Amendment 8, in the name of the cabinet secretary, is grouped with amendment 16.

Jeane Freeman

Amendment 8 ensures that the drafting of the bill accurately reflects the policy intention that dry evidence—in other words, non-sample evidence—would never be stored by health boards without, as an absolute minimum, some forensic notes also being taken. The wording in section 7(1) that refers to evidence that

“comprises or includes an item”

is therefore too wide. “Comprises” means the entirety of something so, where there will always be other evidence, the stored evidence will never comprise solely items of dry evidence. “Includes” is therefore sufficient on its own, which is why amendment 8 removes the words “comprises or” from section 7(1).

Amendment 16 amends section 15(1) so that section 12A, on the new definition of “evidence”, which was added at stage 2, is included in the sections of the bill that will come into force automatically on the day after royal assent. That reflects the fact that the substance of section 12A was previously contained in section 13, which has always been listed in section 15(1) as a section that will commence automatically. It is standard that the interpretative provisions in bills commence automatically.

I move amendment 8.

Amendment 8 agreed to.

Section 9—Transfer of evidence to police

The Presiding Officer

Group 5 is on the self-referral forensic medical examination of persons below self-referral age. Amendment 9, in the name of the cabinet secretary, is grouped with amendment 10.

Jeane Freeman

We debated the minimum age for accessing self-referral examinations in the first group of amendments. The amendments in this group seek to address a scenario that could arise, irrespective of the minimum age. First, I emphasise that the Government does not envisage that such a situation should arise often or, indeed, at all, given that there are no indications that the situation has arisen in existing self-referral services in Scotland or the rest of the United Kingdom. However, a self-referral examination might be offered in good faith to a young person who was thought to be of or over the minimum age, but it might later transpire that they were under the minimum age at the point of examination.

As members of the Health and Sport Committee will know, forensic medical examination is time critical and the DNA-capture window is only seven days. The requirements of trauma-informed care, which are now enshrined more prominently in the bill, also align with the Healthcare Improvement Scotland standard that examinations should take place within three hours of a referral for an examination being received.

Very often it will be swift and straightforward for a health board to determine from their NHS Scotland records the age of a young person who is seeking to self-refer. However, I cannot discount that there could be rare cases in which it is not so straightforward—for example, those that involve a trafficked young person. Those are not entirely new scenarios in the forensic medical examination context or otherwise.

The bill recognises that experienced paediatric and other clinicians can be trusted to exercise appropriate professional judgment in difficult cases. However, the new clinical pathway for children and young people who might have experienced sexual abuse, which was published in November this year, will be updated ahead of the commencement of the bill’s self-referral provisions to provide further, specific guidance on that point in the context of the new child protection guidance that is currently out for consultation.

The self-referral protocol that is being developed by the chief medical officer’s task force—it will be submitted to the Lord Advocate for his approval prior to publication—will also provide guidance for clinicians on what to do in those rare scenarios.

We all know that this is important legislation for all victims of sexual violence and we recognise that that continues to be a crime that is perpetrated overwhelmingly by men on women. The legislation seeks to take practical steps that will be trauma-informed and will allow victims of sexual violence to take back control and to have the power of consent, following horrific experiences in which they have been denied both.

To give some context to the consideration of amendment 28, I have a long-term interest in this field. I sat through the stage 1 debate and cannot overstate the impact that it had on me. I was moved and affected by the quality of the cross-party agreement, the powerful speeches and the substantial nature of the recommendations.

Committee members spoke about the courage of survivors who had given evidence at a meeting facilitated by Rape Crisis Scotland. It was evident that those survivors had had a huge impact on members. I have no doubt that their testimony shaped the committee’s thinking and its thoughtful recommendations.

Amendment 28 seeks to give force to the recommendation agreed unanimously by the committee, which says:

“We consider the definition of gender could be ambiguous in the bill, which has the potential to cause distress to individuals undergoing forensic medical examination. We recommend the bill be amended to guarantee an individual’s right to choose the sex of the examiner.”

No one spoke out against the recommendation during the stage 1 debate; a number of people spoke explicitly in its favour. No group or organisation spoke against the stage 1 report or any of its recommendations when it was published in September, or when it was debated on 1 October. Amendment 28 therefore simply reflects a recommendation in a stage 1 report that was thoughtfully considered. At that point, it did not seem to be problematic and there was no evidence that people had concerns.

17:15

To be clear, if members do not agree that women survivors of violence and rape should be able to ask for a woman examiner, they should say so, and we can have that debate. However, members should be clear that, as Rape Crisis Scotland said, that is what women survivors explicitly sought. If members agree, we should do all that we can to make that wish a reality.

Those who are now expressing concern about the amendment make a number of points, and I want to address those. I will, of course, take the opportunity to address further points as they are raised.

First, the point has been made that there are not enough female examiners, so the amendment is meaningless. However, to argue that is to argue that the provision is meaningless, not the wording. If the provision is meaningless, the logical position would be to argue for its deletion instead of resisting a change in wording. What a counsel of despair! Are we simply to give up because we do not have enough examiners? Survivors of abuse are not fools—of course they are not. The legislation can and should drive change, translating a real difference in provision through workforce planning and spending. Is that not why we, as legislators, are here?

Secondly, we are told that there is no reason to change because the words “sex” and “gender” are interchangeable. If they are interchangeable, why resist an amendment that uses a term that is defined in law? If it does not matter, why fear clarity?

Of course, these terms are no longer interchangeable, as I have come to realise. How do I know? I know because, in various statements, Fiona Hyslop, a Government minister, has said that we would not conflate sex and gender. Shirley-Anne Somerville, a Government minister, has said that we should not conflate sex and gender. Humza Yousaf, a Government minister, has said that we should not conflate sex and gender. Among other groups, Engender, Rape Crisis Scotland and Zero Tolerance have, at various points in recent times, sought definitions of gender that are explicitly not interchangeable with the word “sex”, a word that is defined in the Equality Act 2010.

In giving people rights, in giving women victims of rape and sexual assault rights, and in giving all survivors of sexual violence rights, we need to be precise. Sex is defined in law; gender is not. A right is not a right if it is unenforceable. We owe it to survivors to listen to them and to treat them with respect.

In summary, survivors showed great courage in shaping the bill. The committee showed great integrity in responding to the evidence and unanimously agreed the recommendations, to which this simple amendment responds. There is a direct, traceable and powerful course from the testimony of survivors to our decision on the amendment here and now. I could put it no clearer than the statement of one member of the committee, who said:

“I feel a sense of grave responsibility, not only to speak to ensure that the bill fully serves its purpose, but also to use this platform to give voice to those who have been silenced for so long.”—[Official Report, 1 October 2020; c 59.]

That is our challenge now. If we applaud survivors for their courage, if we are moved by their testimony, it is our responsibility and duty to respond. It is what we are for, and I trust that members will agree and vote for my amendment.

I move amendment 28.

Sandra White (Glasgow Kelvin) (SNP)

I thank Johann Lamont for lodging the amendment. The bill is important. Yes, it is emotional, but it is also really important for the survivors of sexual abuse.

I go by the evidence that those courageous women gave us. I also go by the evidence that the committee took from organisations. As Johann Lamont said, the committee unanimously supported the recommendation at stage 1.

I also raised the issue at stage 2, and was comforted by the cabinet secretary’s words to me and to the committee that, if a woman asked for a female examiner, they would get a female examiner.

The ability to ask for a female examiner, a female doctor or a female nurse was one of the top priorities for the survivors who gave evidence. We heard very emotional contributions from the survivors. They felt uncomfortable—they were in trauma—about being examined by a male doctor, and that examination traumatised them further.

I thank Johann Lamont for introducing amendment 28, which could perhaps be described as a technical amendment. I support the amendment. The debate and the bill are far too important for us not to support the amendment.

Donald Cameron (Highlands and Islands) (Con)

The Scottish Conservatives will be supporting amendment 28. As others have said, we believe that the views of the Health and Sport Committee on the issue are important. The committee unanimously recommended that

“the Bill be amended to guarantee an individual’s right to choose the sex of the examiner”,

in preference to the word “gender”.

Of course, that does not necessarily mean that female victims will get to see a female forensic medical examiner, because there are staffing issues, which the Government needs to address urgently.

There is plainly a wider on-going, important debate about rights of gender and rights of sex. In my view, that is not what we are debating. The issue here is specific. If ever there was a practical example of an instance when the word “sex” should be preferred over “gender”, this is it. The time at which a victim of sexual assault requires a forensic medical examination is likely to be a moment of deep trauma and needs handling with great sensitivity. At that point, and in those specific circumstances, we believe that the choice requires to be one of sex and not gender.

There is one other issue to reflect on—it is a legal issue—which Johann Lamont mentioned. The Equality Act 2010, which is 10 years old this year, is the place where all protections against unlawful discrimination are located. The legislation uses the word “sex”, and it has a legal definition. Again, there is an important debate to be had about that and about whether the list of protected characteristics needs to be updated. However, that, too, is not for now.

For those reasons, and for the powerful and compelling arguments made by Johann Lamont, we will be supporting amendment 28.

Monica Lennon (Central Scotland) (Lab)

I strongly welcome the bill and pay tribute to Rape Crisis Scotland and other women’s campaigners who have campaigned for years to bring about the legislation.

On amendment 28, I fully support the principle that survivors of sexual violence should not just have the right to request a female medical examiner in the aftermath of a sexual assault, but should have that right realised in practice. However, it would be misleading to give anyone the impression that the amendment and the passing of the bill in themselves will ensure that survivors get timely access to a female forensic examiner.

It is a sad fact that the bill, by itself, will not lead to a material change in circumstances for many survivors. As we have heard, there are simply not enough female examiners in the profession to meet the demand. Therefore, beyond the bill, our collective focus must be on increasing the representation of women forensic examiners.

Like many MSPs, I have received correspondence over the past few days asking me to support amendment 28. Although much of the content of those emails is genuine and sincere, unfortunately, some of the emails are blatantly hostile towards trans women and the trans community. That is troubling, as is some of the narrative, abuse and trolling that I have seen on social media. Clearly there are some people who want to exclude trans women from working with women and girls who have disclosed rape or sexual assault.

Some people believe that amendment 28, which would replace the word “gender” with the word “sex”, will help to achieve that. They are of the view that such an amendment would prevent trans women from carrying out such examinations. However, that is not correct because, by law, a trans woman who holds a gender recognition certificate is legally of the female sex.

Johann Lamont is correct to say that clarity is important. I, too, believe that it is important that any misinterpretation should be cleared up. I hope that all members will take the opportunity to assist with that process and to condemn any unacceptable abuse that they might see being expressed towards Rape Crisis Scotland and others. In its recent statements, Rape Crisis Scotland has simply said—correctly—that, by itself, amendment 28 will make no practical difference.

Finally, I again put on record my thanks for the work done by all staff and volunteers at Rape Crisis Scotland. The online abuse that I have seen being targeted towards it in recent days is unacceptable. There must be zero tolerance of that, and we should all call it out. It is thanks to that organisation’s work over many years that we have the bill that is before us, which will help many survivors of sexual violence.

I commend the Scottish Government for introducing the bill. I look forward to working with ministers on a strategy to address the underrepresentation of female forensic examiners and to work towards the eradication of gender-based violence towards all women and girls. I look forward to the bill being passed tonight and to us all focusing collectively on supporting survivors through our words and our deeds.

Andy Wightman (Lothian) (Green)

The debate is about the victims of very serious crimes—some of the most heinous crimes that can be committed against a person. As Rape Crisis Scotland has stated,

“The feedback that we have from survivors is that the most important issue is access to a female doctor. The lack of access to a female doctor is what causes the most trauma.”

I have thought long and hard about that, and here I speak in my own capacity. Victims of crime have told me directly how important it is that they should have access to a female examiner. I thank them sincerely for sharing their experiences with me. Their importance is beyond any doubt.

After considering the terms of amendment 28 earlier in this extremely busy week, I came to the view that the statutory interpretation of section 9 of the bill that became the 2014 act was clear. That is because the intention of the stage 2 amendment lodged by the then Cabinet Secretary for Justice, Kenny MacAskill, was to do precisely what Scottish Women’s Aid and Rape Crisis Scotland wanted at that time, which was to ensure that female survivors of such offences should be able to request a female doctor.

That followed a debate on what would become section 8 of the 2014 act, on the right not only to request to be interviewed but actually to be interviewed by a female interviewer. That provision was passed in order to implement European Union directive 2012/29, dated 25 October 2012, which established minimum standards on the rights of, support for and protection of victims of crime. Article 23(2)(d) of that directive states that

“measures shall be available”

that include

“all interviews with victims of sexual violence, gender-based violence or violence in close relationships, unless conducted by a prosecutor or a judge, being conducted by a person of the same sex as the victim, if the victim so wishes, provided that the course of the criminal proceedings will not be prejudiced.”

What became section 9 of the 2014 act was agreed as an extension to the then section 8 provisions. I am therefore not convinced that it is necessary to make any amendments to the 2014 act to secure its principal purpose of ensuring that victims have some say in the sex of their examiner and of their interviewer. The conflation of sex and gender in that context is not, in my view, particularly problematic: it is clear that the intention behind the 2014 act, and principally its sections 8 and 9, was indeed to provide access to a female doctor where a female victim requested it. To the extent that the courts will always interpret legislation in line with the intentions of Parliament, I think that those are fairly clear from that act and from the EU directive.

However, I am concerned that the use of the term “gender” in the 2014 act might, in the future, be open to greater ambiguity as a result of contemporary debate about the rights of transgender people. “Gender” and “sex” are distinct terms, with different meanings, but they were not so regarded in 2013.

Latterly, I was inclined to support Johann Lamont’s amendment, as I thought that it might put to rest any legitimate doubts that might exist. However, I am concerned at the tone of some of the debate. I am concerned that there has been no scrutiny of amendment 28 and that, for many people, this seems to be a debate about anything other than the victims of sexual assault.

17:30

In conclusion, I am concerned about the possibility of ambiguity; I invite the cabinet secretary to set out how that ambiguity might be resolved in future and whether the legislation that is already on the statute book needs to be clearer about the distinction in order to put any doubts to rest. With that, I will be voting against amendment 28.

Emma Harper (South Scotland) (SNP)

This is a very serious issue and access to a female examiner is extremely important. Work on that is on-going. The evidence that we heard in the committee was focused on promoting the best care for survivors of rape and sexual assault. We were focused on supporting all survivors of rape and sexual assault and on making forensic medical examination a process in which persons—mostly women—are supported in the best, most holistic way possible.

Currently, in the NHS Scotland patient rights charter, which is underpinned by the Patient Rights (Scotland) Act 2011, it states that persons already have the ability to express their preference about the gender of their medical practitioner. For the purposes of this bill, there has been a concerted effort by the NHS and the Scottish Government to increase the number of female forensic medical doctors and forensic medical nurses. There are now 118 forensic medical doctors and 70 per cent of them are female; 98 per cent of the forensic medical nurses are female. That training is on-going so that there are enough female forensic examiners.

When amendment 28 is passed—and I am sure that it will be, because words are very important and I know that there has been a lot of discussion about how we differentiate between gender and sex—I would like to seek some clarity that the law already exists that women have the right to express their preference over who attends, who examines or who interviews them. I will support amendment 28 and I would like to conclude by thanking everyone who participated in the bill process, including all the witnesses who contributed.

Jeane Freeman

As I have clarified at earlier stages of the bill, neither the word “gender” nor indeed the word “sex” appears in the bill. The reality is that changing the wording from “gender” to “sex” in section 9 of the Victims and Witnesses (Scotland) Act 2014 changes nothing about how the vital forensic medical services that the bill is about are delivered.

My focus and my energies are directed to dramatically improving the provision of those services and I will not be opposing the amendment. Should a woman be the victim of a sexual assault, she currently has the legal right to ask for a female examiner. That remains the case whether or not amendment 28 passes. All victims, irrespective of sex, gender identity or other characteristics, will be entitled under the bill to the same care and support. Importantly, further to a stage 2 amendment, the principle of trauma-informed care now has much greater prominence in the bill. The bill now specifically provides that health boards must seek “to avoid re-traumatisation”. Victims are no longer examined in police stations and the number of female sexual offence examiners on rotas has dramatically increased over the recent period.

However, we need to do much more and we need to go much further. In the second quarter of 2020, over 75 per cent of examinations were carried out by a female examiner and within the three-hour timeframe specified in national quality indicators. In nearly 90 per cent of cases, a forensically trained female nurse was present throughout the examination. I know that all members will welcome that progress, but the point about the bill that should not be lost is that it is about improving the situation even more.

It should be noted that the meaning of the terms “sex” and “gender” are not defined by the Victims and Witnesses (Scotland) Act 2014; the interpretation of those terms is already set out in law, including in the Equality Act 2010, which contains single-sex exemptions, whose use the Scottish Government has supported and continues to support where that is necessary and proportionate, such as in the case of forensic medical examinations. For that reason, changing the wording in the 2014 act makes no difference, as the amendment will not affect the operation of the underlying law or the already established rights of women to request a female examiner. For the same reason, whether amendment 28 is agreed to or not, that does not and indeed could not affect the rights of any other person who is involved in those vital services.

In establishing the Government’s position, I have of course consulted my cabinet secretary colleagues, most importantly Shirley-Anne Somerville, as the cabinet secretary responsible for equalities. We are of one mind, and we will not oppose amendment 28, because it does not and cannot change the existing and established law, rights and practice in the area, which we will uphold.

The Presiding Officer

I call Johann Lamont to wind up the debate and to say whether she wishes to press or withdraw amendment 28.

Johann Lamont

Obviously, I intend to press my amendment.

I thank the members who have contributed to the debate. My challenge to all members who have reservations about the amendment is that they have a responsibility to raise their concerns, so I appreciate those who have done so. I am more concerned about people who are not saying anything and who are not engaged in the debate but who at the same time are calling into question my motives and the motives of those who have asked me to take forward the amendment.

Alex Cole-Hamilton (Edinburgh Western) (LD)

I believe that Johann Lamont’s remarks are directed at me and my party. Our approach is in part down to the fact that we wanted to listen to the debate as it unfolded. However, I found Andy Wightman’s remarks and the range of propositions that he laid out compelling, so we will oppose the amendment.

Johann Lamont

I apologise—I actually quoted Alex Cole-Hamilton’s words in my speech at the beginning, because I found them so powerful. I was not talking about the Lib Dems—I recognise the pressure on time in the debate. However, I am concerned that there are people who will not engage in the argument, despite the seriousness of the issues. I make that as a more general point. Those people are content, away from the Parliament when we debate the issues, to make assertions and allegations that are simply not true.

No one in the Parliament or anywhere else pretends that the amendment will transform women’s lives; I wish that were true. I wish that by the stroke of a pen and by supporting the amendment, the pain of the women who spoke to the committee could be erased. Nobody pretends that any legislation on its own changes the world. However, our responsibility is not just to signal what we would like to happen but to will the means for it to happen. It is my profound belief that the amendment will make a difference, because it will shift us from saying that there are not enough female examiners to asking how we make sure that there are enough women examiners.

I will respond to my colleague and friend Monica Lennon. Forgive me if I focus on survivors. We should put at the centre the experience of survivors and ask what is right for traumatised women. They are not responsible for what people say on Twitter or Facebook or for those who choose to weaponise every single bit of politics that this country seeks to defend or argue. Those women—and men—are traumatised and over the years they have asked for things to change, as they have over time, and we should listen to them now.

If people want to debate the definition of what a man is and what a woman is, and if they want to look at the Equality Act 2010 and change it, I am more than happy to be party to that debate, but that is not the argument that we are having now. The bill deals with the current reality of what a woman is, what a man is and—oh my goodness—what abuse and violence are, and we owe it to survivors to reflect on that.

On the question of conflation, I have a huge amount of respect for Andy Wightman as someone who considers things in great detail. He made the point that the words “sex” and “gender” are no longer argued to be interchangeable terms in the way that they once were. I have already given evidence of that. What women need, what survivors need and what the law demands is clarity—not signals, but clarity.

Monica Lennon talked about the role of Rape Crisis Scotland. From the time when I was a young woman who began to understand what violence against women meant, I worked with and supported women who were far more courageous than me in establishing women’s aid refuges and rape crisis centres. We had to win the argument that it was right that those services should be provided only to women. It was not an easy argument, but we won it. We will find ourselves back in that argument if we are not prepared to say, as the Equality Act 2010 does, that there is the right to women-only spaces and women-only services, and that those will be protected.

Rape Crisis Scotland and rape crisis centres at local level have done immeasurable work to give voice to women. Those voices were heard in this debate. My contention is that in supporting amendment 28, which is only a small amendment, we are supporting the considered recommendation of a serious committee of this Parliament—a committee that heard the voices of survivors and insisted that there would be change. My amendment will not change everything, but it will give clarity on the right of survivors to ask, in their most traumatised moments, for support and for female examination, which might make that trauma a little less. I hope that colleagues in the chamber will support me in that regard.

The Presiding Officer

The question is, that amendment 28 be agreed to. Are we agreed?

The result of the division is: For 113, Against 9, Abstentions 1.

Amendment 28 agreed to.

Amendment 29 moved—[Jeane Freeman]—and agreed to.

The Presiding Officer

That ends consideration of amendments. At this point, as members will be aware, I have to decide whether, in my view, any provision of the bill relates to a protected subject matter—that is, whether it modifies the electoral system or franchise for Scottish parliamentary elections. In my view, no provision does that, so the bill does not need a supermajority to be passed at stage 3.

Before we move on to the next item of business, there will be a short pause. I urge all members to observe social distancing, wear their masks and observe the one-way systems in the rest of the building when leaving the chamber. Thank you.

10 December 2020

Final debate on the Bill

Once they've debated the changes, the MSPs discuss the final version of the Bill.

Final debate transcript

The Deputy Presiding Officer (Christine Grahame)

Members will be pleased to hear that the final item of business today is a debate on motion S5M-23646, in the name of Jeane Freeman, on the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill.

17:47

The Cabinet Secretary for Health and Sport (Jeane Freeman)

I am pleased to open this stage 3 debate on what is a very important bill indeed. Rape and sexual assault are among the very worst experiences that any of us can face in our life, and the impact lasts. There can be no question about that.

The Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill is one important part of what we have to do to make sure that, in all that we do, we put the victim first—that we recognise and understand the trauma, and embed that recognition, and the actions and approach that necessarily flow from that, in the healthcare support and the support for recovery that we provide.

Members may have watched a recent Scottish Television segment on the bill, where Katie Johnston and Lisa Walsh, two survivors of rape and sexual assault, bravely waived their right to anonymity and shared their experiences of forensic medical examination. To them and to the other survivors who have helped us so very greatly to get to this place, I say, “You have my undying gratitude for your courage and your honesty.” There is no doubt at all that too many experiences of forensic examination in the past were poor and retraumatising.

The chief medical officer’s rape and sexual assault task force has provided national leadership for the improvement of these services, following an important report by Her Majesty’s Inspectorate of Constabulary in Scotland. I put on the record my sincere thanks to Dr Catherine Calderwood, our former CMO, for her leadership in driving that work forward, and to Dr Gregor Smith, our current CMO, for continuing that focus.

To take just one extremely important example of improvement, victims are no longer examined in police facilities. I am pleased that Rape Crisis Scotland has recognised that a corner has been turned and that improvements are bedding in. The bill provides a legislative underpinning to ensure secure and continued improvements for the future.

Importantly, the bill makes it a requirement for all health boards to provide consistent access to self-referral across Scotland. That matters because we know from survivors that access to self-referral is important in giving people control over what happens to them at a time when that control feels like it has been—and has been—taken away. The bill ensures access to healthcare and a request for forensic medical examination without first making a report to the police.

The Health and Sport Committee’s scrutiny of the bill at stages 1 and 2 has unquestionably improved it. I commend the committee for its careful work in taking evidence not only from health stakeholders but from justice and equality stakeholders and from survivors. As a result of amendments recommended by the committee and agreed unanimously at stage 2, the bill now more prominently enshrines a requirement for health boards to provide trauma-informed care—care that actively works to avoid retraumatisation and is delivered to the national Health Improvement Scotland standards.

Nothing in the bill prevents victims of any age from accessing healthcare and support ahead of a police report. To support health boards in that regard, on 24 November, a package of resources was launched by the task force for the improvement of services for adults and children who have experienced rape and sexual assault. That package includes Scotland’s first adult clinical pathway and Scotland’s first children and young people’s clinical pathway, alongside new forms and datasets for all ages, establishing a more robust and consistent gathering of performance data than has ever been available.

A patient information leaflet has also been developed, setting out what people can expect during and following a forensic medical examination and making it clear to the individual that they are in control of the process. I am grateful to People First for its important help in developing the easy-read summary of the leaflet.

Key refinements to the bill that were prompted by the Health and Sport Committee also include a statutory requirement for Public Health Scotland to publish an annual report on the delivery of these services and, importantly, a new delegated power to allow the minimum age for accessing self-referral to be varied in the future, should that become justified by wider changes to legislation or guidance and should this Parliament agree.

In order to enable the successful implementation of self-referral services, the task force is advancing work on a robust self-referral protocol that will be submitted to the Lord Advocate for his approval. That protocol will set out the detailed procedures for how health boards will collect forensic evidence in a way that, again, gives control to victims, while securing the integrity of evidence, should the victim choose to report to the police at a later date.

In the earlier debate on Margaret Mitchell’s amendments 1 and 7, I announced an additional £0.5 million in this financial year to help to improve the NHS response to child sexual abuse, through the development of child and family support workers across Scotland and to support implementation of the children and young people’s clinical pathway. I am delighted to confirm that, in addition to that investment, and subject to the Parliament’s approval of next year’s budget, the Scottish Government will commit a further £1 million to support the implementation of the bill, should members pass it today. Those two announcements bring our investment in improving forensic medical services to £10 million over four years. That is in addition to the Scottish Government’s continued support for Rape Crisis Scotland and its national advocacy project, which will undoubtedly play an important role in the successful implementation of the bill.

Before I conclude, I want to share with the chamber some feedback from a survivor, which I have been given permission to share, on their experience of attending an NHS sexual assault response co-ordination service that is funded by the task force. The survivor said:

“The staff supporting us were both very skilled, professional and empathetic. They helped us as a family work through the medical and emotional process. We knew they were always there when we needed them.”

I want to enshrine in legislation NHS-delivered forensic medical services that are person-centred and compassionate and which deliver quality of care and support in every case.

I move,

That the Parliament agrees that the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill be passed.

17:55

Donald Cameron (Highlands and Islands) (Con)

I begin by stating our support for the bill, and I note the welcome financial commitments that the cabinet secretary laid out in her speech. As others have said, the changes that the bill will bring about will refquire financial underpinning.

I pay tribute to colleagues on the Health and Sport Committee for their work in getting us to this point, and to the committee’s clerks. I have been on the committee for only a short period—since September—and I was not present for the evidence-gathering process for the bill. However, I have read some of the powerful submissions that were received.

It was clear from the stage 1 debate on the bill and the stage 2 process in the committee that, although the bill deals with very difficult issues, it has nevertheless brought considered, measured and deeply held thoughts and views to the issues that it raises. It is an immensely important bill to help to support victims of some of the worst crimes imaginable, and we will certainly support it at decision time.

It is important that we do not stop here in our drive to improve the rights and experiences of victims of crime—particularly victims of sexual offences—because there are still injustices. However, many of those arguments are for another time.

I will turn to some of the remarks that I made at stage 1 and reflect on whether they have been properly considered as the bill has passed through the Parliament. At stage 1, I noted the comments in the committee’s report on trauma-informed care and the need to make it clear that the bill should recognise the impact of trauma on an individual’s health and social and emotional wellbeing as well as deliver services that minimise further trauma. I am pleased that the Scottish Government recognised the importance of that and made amendments to the bill to that effect.

I also noted in the stage 1 debate the need to consider out-of-hours care and how it is delivered, particularly considering the delays that many victims of sexual offences have experienced. I note that the cabinet secretary provided some clarity on how out-of-hours care would be provided, but the reduction of those delays must be prioritised if the bill is passed, as we expect it to be.

Consideration must also be given to how forensic examination services are provided to victims who live in rural and remote areas, such as our island communities. That can often be logistically challenging and involve days of travelling, with victims being unable to wash or change clothes. It is clear that that can cause significant trauma. I represent the Highlands and Islands, so that is a particularly pertinent point for me. I hope that the Government will look at that further if the bill is passed.

Many of the statements from witnesses have spoken about the need to increase access to female doctors as a means to reduce trauma. That was touched on in the amendment stage this afternoon. As Rape Crisis Scotland has noted:

“around 60 per cent of forensic doctors in Scotland are”

female

“compared to 30 per cent in 2017.”

That is plainly welcome. However, Rape Crisis Scotland went on to note that there are still not enough women carrying out forensic examinations for rape survivors to be guaranteed access to a female doctor. It seems to me that that is a hugely important point for the Government to acknowledge and to seek to change.

I do not intend to dwell on Johann Lamont’s amendment, which was agreed to. I am very glad that it was agreed to, and it accords with what the Health and Sport Committee stated in its report.

Finally, I turn to the amendments that were lodged by my colleague Margaret Mitchell, one of which was agreed to and one of which was not. At stage 1, we noted the need for self-referral to exist in a consistent way across Scotland. We also backed the calls to reduce the age of self-referral from 16 to 13 to encourage greater self-referral from younger people, given that 40 per cent of last year’s 13,000 sexual assaults were committed against under-18s.

We recognise the cabinet secretary’s position that changes to the minimum age of self-referral should be carried out through affirmative regulations as well as proper consultation, and we note her amendment at stage 2 to create a new delegated power to allow for a future review of the age of referral. We welcome that change. However, as Margaret Mitchell set out, we were also strongly of the view that that should be reviewed regularly and that there should be a reporting function in the bill. Therefore, we are glad that Margaret Mitchell’s amendment 1 succeeded in securing the agreement of members in the chamber. We are grateful for the support of others.

Regrettably, amendment 7 did not succeed. The point was made that it was a pilot scheme and that there was a choice, but I do not intend to rehearse those arguments.

I reiterate the Scottish Conservatives’ support for this important bill, and I look forward to hearing other contributions from colleagues across the chamber. The bill has been immeasurably improved at all parliamentary stages of its passage, and I hope that we have improved it further today, to the benefit of those who sadly may need to access such services in the future.

18:01

David Stewart (Highlands and Islands) (Lab)

I am pleased to open the debate for Labour on this important and significant bill. Labour will support the bill at decision time and I am convinced that parliamentarians across the political divide will recognise that the bill puts the needs of victims of sexual abuse as the key priority of forensic services.

If I were to encapsulate the benefits of the bill in one word, then it would be “empowerment”, in that it returns to the survivor some semblance of retaking control after the horror and humiliation of abuse, whatever unacceptable form it takes. Many years before I joined the Parliament, I ran a very busy child protection team in an area of social deprivation for over a decade. However, that comprehensive and front line experience did not prepare me for the roundtable event that was organised by Health and Sport Committee staff with survivors and victims.

The survivors and organisations that represented them spoke of the horror and anguish that they faced after reporting their attack. There was a wide range of comments, but there was an underlying consistency in their message that, in their words:

“criminal procedure re-victimises the victim;”

“forensic examination opens up the horrors of the attack”

and that the

“system does not function correctly.”

A strong theme was the need for change, particularly to self-referral for forensic medical examination and for independent advocacy and psychological support. As we have heard, the aim of the bill is to require health boards to make forensic medical examinations available on a self-referral basis to people who are over 16. That means that victims would be able to undergo a forensic examination directly, without any requirement to initially go to the police.

In 2017, there were calls by Her Majesty’s Inspectorate of Constabulary in Scotland to review the contract between Police Scotland and NHS Scotland for the provision of healthcare and forensic medical services. The review highlighted significant disparity in the forensic healthcare services that were being provided to the victims of sexual crime. The key findings were that there is a great need for increased innovation, especially in relation to the rural and island communities; that there must be more collaboration among boards to share specialist staff; and that there is a need to develop the role of specialist nurses to support victims of sexual crime.

However, there is a gap in service provision, where the victim of a sexual crime seeks support and medical attention, but may not wish to report the crime to the police. Both Children 1st and NSPCC Scotland support self-referral at 16, and argue that children under 16 will be automatically considered under the child protection pathway. In tandem with that, the UN Convention on the Rights of the Child will be incorporated into Scots law and the Scottish Government is preparing new child protection guidance to reflect that. In any case, in my assessment, the Scottish Government appears to be keeping the door open to reduce the age of self-referral in future through delegated powers as circumstances allow.

However, self-referral will benefit victims only if they are aware that it is an option. The Royal College of Nursing was right in its submission that there needs to be a focus on ensuring public awareness of the provisions of the bill. I ask the cabinet secretary in her closing remarks to outline the strategy for public information and education.

Particular thought needs to be given to equality of access to information and services for those with learning disabilities and for same-sex victims. The committee, of which I am a member, made a strong recommendation on that point—the key is informed consent and equality of access in relation to issues such as travel, rurality and low population density.

It is vital that vulnerable young victims, who are likely to be badly shocked and traumatised, have a statutory right to independent advocacy across Scotland. It is important to stress that the bill does not give the individual a right to a forensic medical examination and that they are carried out on the professional judgment of a healthcare professional. As the stage 1 report made clear,

“professional judgement can include both clinical and non-clinical elements supported by guidance from the Faculty of Forensic and Legal Medicine.”

Unfortunately, the shortage of female forensic examiners is a real practical problem and we need to have a goal of change through workforce planning, as Johann Lamont articulately stated when speaking to her amendment, which I welcome and support.

The fairer Scotland duty assessment on the bill notes that women, and indeed men,

“in lower socioeconomic groups are more likely to be the victim of sexual offending and are thus more likely to benefit from the objectives of the Bill.”

NHS Lanarkshire uses data collection along with advice from the third sector to target resources in areas of deprivation, which reflects the committee’s recommendation to require all health boards to capture and publish data addressing equity of access.

This is an important bill for protecting the healthcare needs of victims of sexual offences. We must listen to the voices of survivors. We need a criminal justice system that puts victims squarely on central court and does not revictimise and in which victims are listened to, respected and supported. As one survivor said,

“Violators cannot live with the truth: survivors cannot live without it.”

18:07

John Finnie (Highlands and Islands) (Green)

Legislation must be seen to make things better, and the bill clearly does that. My party is not represented on the committee, but I thank Her Majesty’s Inspectorate of Constabulary in Scotland for its report—the genesis of the bill. I thank, too, the Scottish Government bill team, the committee, the clerking team and all who provided evidence and briefings. I particularly thank the survivors for their private testimony—I know from my experience on the Justice Committee how humbling it is for members to receive such testimony and how informative it can be. I also commend the Scottish Government’s victims task force, which is jointly chaired by Rape Crisis Scotland and Scottish Women’s Aid.

I was taken by a briefing that we received from the Law Society of Scotland, which states that, as the bill reaches the final stage of its parliamentary process,

“it is important that in achieving its policy objectives, a balance must be maintained of the interaction of the various interests.”

It then goes on to list those interests, one of which is public law. We must increase the reporting of sexual crimes, and the self-referral provisions in the bill will help with that. We must also secure more convictions in sexual offence prosecutions, and the victim-centred approach that the bill encourages can only help.

The Law Society’s briefing also talks about

“private law in respecting the individual’s privacy and autonomy”.

Some fundamental individual rights are at stake here, such as the individual’s right to make choices in relation to reporting and their right to have their privacy respected.

I like the cabinet secretary’s phrase when she talked about individuals being “in control”, with reference to the timing and location of an examination. As someone who is familiar with cold police stations, I welcome the fact that respect is being shown to victims and that appropriate facilities are being provided. There is an obligation on the state, which the bill clearly addresses, to provide a humane regime that is capable of providing redress to the victims of crime.

Healthcare is another factor. Someone’s wellbeing is not simply to do with their physical health, and I welcome the increasing recognition across a lot of our discussions about the benefits of good mental health. Public agencies’ interaction with third sector partners in providing support for victims will be important. I also thought that it was very telling that the Law Society honestly mentioned the importance of training, including for the legal sector, in ensuring that all are aware of the bill’s provisions and the importance of support.

Previously, such work was carried out by police surgeons, but it was subsequently outsourced. That was a bad idea, and it disadvantaged rural communities. The memorandum of understanding does not completely remove the challenges of rurality that my colleague Donald Cameron referred to, and we must be aware of those challenges.

In the short time that I have, I want to say that the holistic approach to care will bring not only better results in terms of victims’ wellbeing, but a significant improvement in the number of successful prosecutions, which we really need. That will perhaps come about because complainers feel supported but also because of the provisions on the acquisition and quality of the evidence, and continuity in how that evidence is referred to in all the reports, which is hugely important.

I warmly welcome what the cabinet secretary referred to as “person-centred and compassionate” legislation. The Scottish Green Party will support it at decision time tonight.

18:11

Alex Cole-Hamilton (Edinburgh Western) (LD)

I begin my speech by paying tribute for a final time to the witnesses who came to our committee and told us of their personal experience in very harrowing terms. This may be the last time that I speak of their experiences in the context of the bill, but it will not be the last time that I think of them—I will carry their stories with me.

We did a lot of work in the foothills of the bill. It was necessary for us to do so, as the bill is a complex and technical piece of legislation. Since its inception, it has succeeded in its aim of giving a voice and rights to people who have been through some of the most horrific crimes imaginable.

In speaking on the bill in an earlier debate, I voiced my concerns about the minimum age for self-referral being 16, about which there been an on-going debate throughout the bill’s passage. I referred to the concerns of Children 1st that the bill excludes those under 16 from the vital services that the passing of the bill will provide. We know that children under 16 who are victims of assault are most likely to be assaulted by a family member or someone whom they know. Last year, 40 per cent of sexual assaults were against those under 18. I am sure that I echo the sentiments of all members when I say that those figures are devastating and deeply shocking.

A stage 2 amendment sought to reduce the minimum age for self-referral from 16 to 13. My party had a lot of sympathy with the amendment, but we reluctantly voted against it because we recognised the child protection concerns that the cabinet secretary put forward at the time and because she signalled that she was willing to give thought to the issue. I am glad that we have made at least some progress in that area today.

However, in order for us to make adequate progress and to realise the rights of all child victims—so that they, too, can have access to suitable clinical and forensic pathways—we need to properly implement an innovative, barnahus-led approach. The cabinet secretary has shown support for such an approach, not just at stage 2 of the bill, but in many other debates in the chamber. The Scottish Government claims that the bill and the associated clinical pathway are barnahus ready, yet it has still not offered a clear commitment, details or funding for the national roll-out of a barnahus-led scheme, similar to the pilot that Children 1st led in the west of Scotland. I would be grateful to the cabinet secretary if she could signal to members her views on how we might better support and fund that national barnahus initiative.

The bill is important. In many ways, it answers the challenges that were set out to the committee on that early Tuesday morning many months ago, when we met the witnesses, heard their testimony and were gripped by their candour, bravery and depth of feeling. The bill means that people will not be pulled into a system that they are not ready for and that they will have the time and space to consider reporting an assault to the police without losing vital evidence. It will offer autonomy to those who have suffered in a way that has seen them robbed of control of their bodies.

Sexual assault is one of the most horrific crimes in the world. It has happened to people who are very close to me. No victim should be excluded from receiving compassionate aftercare, especially not children and young people. The complex way in which children and young people process traumatic events requires an approach that is specifically tailored to their needs, and that is what barnahus offers.

I passionately support the bill and all its ambitions, on the basis that the Scottish Government has already made it clear that it is committed to ensuring that child victims of sexual assault are not excluded from the pathways and that we find an appropriate approach for them.

18:15

Sandra White (Glasgow Kelvin) (SNP)

As a member of the Health and Sport Committee, I welcome the opportunity to contribute to the final stage of the bill. Like others, I thank the committee clerks and the professional groups and organisations that gave evidence. Most of all, I thank the women who came forward to give evidence to the committee. As Mr Cole-Hamilton said, it was a harrowing experience—for them, obviously, but also for us. The strength, courage and bravery that they showed in giving their evidence enabled us to move the bill forward, and I sincerely thank them for that. I am sure that the bill will pass tonight, and that will be a testament and a tribute to their bravery.

The bill is hugely important. It confirms and delivers our commitment to improve the way that the health and justice systems support victims of sexual crime. The issue has been raised on numerous occasions, and it is pertinent that, during the consultation process, 91 per cent of respondents agreed that health boards should offer the service that the bill provides for—a holistic healthcare service that, importantly, puts victims first.

The bill enshrines in law the responsibility of health boards for the operation of forensic medical services, and it provides an important legal framework to ensure that access to self-referral is consistently available across Scotland. When addressing problems in the system, access to services must be first and foremost. That important point was raised by survivors.

The professionals involved in the system and the organisations that offer valuable and crucial support to victims raised a number of areas that are covered by the bill, two of which are particularly significant. One is access to female doctors, which was covered in the debate on amendment 28. The other is the need to have access to forensic examination as quickly as possible.

We heard evidence from a survivor who waited in a police office for hours on end, not being able to change their clothes, not being given support, not being able to have anyone with them while they were there, and not being able to get a cup of tea or coffee or anything else to drink. That evidence was quite harrowing. The bill means that victims will no longer have to go through that experience. It is a basic human right that victims should not have to sit in a cold, dark place. The bill will ensure that victims of these horrendous crimes do not have to go through that additional trauma.

A lot has been said about access to female examiners, and I welcome the progress that has been made. At the moment, we have 180 sexual offences examiners, of whom 70 per cent are women. I know that we are making further progress—for example, there will be 20 priority places on a new postgraduate course at Queen Margaret University in Edinburgh, which starts in a month’s time, in January 2021. That is good news. We must ensure that when a woman asks for a woman examiner, one is available to her. I suppose that that is a big ask—it is one of the biggest asks that was put to us during the committee stages.

I think that everyone believes that the bill is a fundamental step in ensuring that all victims of sexual assault and rape are treated with dignity, compassion and respect.

I thank everyone who will take part in the debate, and the committee and everyone else for considering the evidence that was provided.

18:20

Liam Kerr (North East Scotland) (Con)

I am very pleased to speak in favour of and, later, to vote to pass the bill. It is an important bill that seeks to make the process of medical examination easier for victims of sexual crimes and to transform survivors’ experiences of healthcare following sexual violence. It is long overdue and responds to the conclusions of the HMICS report that forensic medical services in Scotland have been patchy, inconsistent and, at times, arguably, traumatising. The report concluded that victims have been “let down”.

We all sincerely hope that the bill succeeds. Much of that will depend on resources. At stage 1, I flagged that the financial memorandum reflects the estimated 10 per cent increase in the number of additional forensic medical examinations. I have no idea whether that will prove to be correct, but I do not see similar provision for other aspects of the bill in the financial memorandum. There is only the rather throwaway line that

“The Scottish Government considers that costs on the third sector to support the Bill’s implementation will be modest.”

The supplementary financial memorandum deals only with the costs to Public Health Scotland of the annual report. That concerns me because, logically, what is not resourced cannot be provided. I fear that, if the bill is about a complete overhaul of the response to such matters, it will cost a significant amount of money on an on-going basis, which might not be provided for. However, I welcome the cabinet secretary’s remarks about the additional £1 million that will be allocated to the bill. I acknowledge that such issues are clearly in her thinking.

Many respondents flagged the lack of access to female doctors. According to Rape Crisis Scotland, that is the single most pressing and important issue that requires to be addressed. The bill contains provision for victims of sexual offences to be given the opportunity to request that the person who carries out their forensic medical examination be of a specified sex. I associate myself with Donald Cameron’s comments in that regard.

That is all well and good, but I presume that when someone who complains of rape, for example, asks for a female doctor, whether they get one will depend on whether one is on the rota at the time. I presume that, if there is not one on the rota, they will be given the option of going ahead with a male doctor or waiting until a female doctor is working.

I am sure that we all noted the evidence that was supplied to MSPs last night from HEAL, a survivors’ group. In one passage that I thought was particularly hard hitting, it suggests that

“survivors, who are unable to tolerate male examiners giving them an intimate examination when they are newly traumatised and wounded to the core of their being, often face long waits until a female examiner is available.”

My understanding is that, prior to the examination, complainants are strongly encouraged not to wash, drink or eat, as vital evidence could be lost, so what kind of choice is that?

The recruitment and training of female forensic doctors must be prioritised. In fact, as Monica Lennon said, increasing the numbers is where our focus must be. I accept that, in answer to Sandra White and in the stage 1 debate, the cabinet secretary referred to a new course and associated funding for forensic nurse examiners at Queen Margaret University. That is good, and it reflects the cabinet secretary’s stated aim to ensure that we provide 24/7 access to female examiners, should that be what an individual wants. Leaving aside the inevitable time lag until qualification and deployment, the question begged is whether that is sufficient. If it is not, when will that aim be met?

Perhaps, in closing the debate, the cabinet secretary could address how confident she is that there are sufficient places to address the need and achieve 24/7 access. Perhaps she could say whether she would agree to provide a regular report to Parliament on progress in recruitment and training in order to achieve that goal—perhaps through the Mitchell report that was agreed to today or the NHS Scotland report in section 11A.

In any event, I reiterate my support for the bill, and I look forward to voting for it at decision time.

18:24

Lewis Macdonald (North East Scotland) (Lab)

I am glad to speak in support of the bill as it nears completion of its progress through the Parliament. It is fair to say that there were times when such a positive outcome seemed a little less than certain. As convener of the Health and Sport Committee, I have had plenty of opportunities to consider the interaction of Government and Parliament over the past three years. This has, of course, been a year like no other.

In March members of the committee met survivors of rape and sexual abuse. It was both a sobering and a heartening experience. Women who had suffered sexual violence by men talked about being traumatised again by what happened when they reported the crime. Some felt that so strongly that they told us that they might not have gone to the police if they had known what would happen next.

The heartening bit was the courage and the commitment to help other victims come forward—informally and privately, but directly—to members of this Parliament to share their experience and ask us to make the system better.

This bill puts victims at the centre. It changes the forensic medical examination of victims from being a matter for the police service to one for the health service. It allows those who have been raped or sexually assaulted to refer themselves for examination without having to report a crime to the police first. It provides that women who are raped should be able to say that their forensic medical examiner should be a woman. It provides choice for all victims and requires services to all victims to be delivered in a trauma-informed way.

The women we met and the voluntary organisations that worked with them did not ask for change for its own sake; they asked for change for the sake of future victims, to make the system more sensitive and responsive to their needs.

Some women found police officers to be caring, compassionate and understanding, and some praised the skills and empathy of male medical examiners. But having women instead of men in those roles was still their strongest single demand, and focusing on the health and wellbeing of victims first was even more important than bringing the perpetrators to justice.

We took that evidence in March, at which point we also met some of the Government officials working on the bill. Then along came Covid-19, and for a few weeks the process of taking evidence on the bill was knocked sideways and its progress seemed in doubt.

The upshot of that uncertainty was that the bill did proceed. Like Parliament as a whole, the Health and Sport Committee went online to hear from expert witnesses in May and June, and it obtained fresh written submissions from other experts on the back of those online evidence sessions.

That progress of legislation in difficult circumstances is a credit to all those in the health service, the police service, the voluntary sector and elsewhere who were committed to the proposed change in the law and adapted to the new normal to make it happen. It is also a credit to the ability of Government and Parliament to work together in the face of adversity when there is a shared objective to be met.

I acknowledge the cabinet secretary’s personal commitment to this bill and the support across the chamber for long-overdue reform that will affect people’s lives.

As has been well said this afternoon, changing the law is not enough. There needs to be awareness of the new system on the part of those it can help and resources to make that change happen. However, a change in the law is a good place to start, and I will be delighted to vote for the bill today.

18:28

Emma Harper (South Scotland) (SNP)

The importance of this bill cannot be overstated. In Scotland, 4 per cent of women and 1 per cent of men have experienced serious sexual assault since the age of 16. The bill is a landmark piece of legislation; it is hugely important for survivors of sexual crime and allows far greater choice for survivors of sexual abuse.

As deputy convener of the Health and Sport Committee and someone who cared for and treated survivors of rape when I worked as a nurse, I welcome the opportunity to speak in this debate and I, too, thank everyone who has contributed to the bill for their work: the clerks, members of the committee, Rape Crisis Scotland, the chief medical officer’s task force and the survivors who powerfully and bravely spoke at our evidence session.

The Health and Sport Committee held seven evidence sessions on the bill—including with survivors of sexual violence—and we received 38 submissions in response to our call for evidence from survivors, their representative organisations and justice and legal service providers.

One of the key themes that we considered and agreed with the Scottish Government—as affirmed at stage 2—was the need for survivors of sexual offences to have improved access to forensic medical services. The bill will let survivors refer themselves to their health board rather than a police station for an examination. That is significant, because they will not have to go to the police first. That means changing from a law environment, which can be very frightening and intimidating, to a holistic healthcare environment, which will reduce stress, stigma, fear and anxiety.

That gives people who have gone through that horrible and traumatic experience time to decide whether they want to report an incident to the police without losing any vital evidence.

Donald Cameron mentioned the out-of-hours availability of forensic examiners and Sandra White spoke about early access to gather forensic evidence. I was given a piece of information by my local rape crisis team and raised it with the committee. I was told that self-referral numbers were higher on a Tuesday between 12 o’clock and 4 o’clock. Although it might be difficult to gather evidence, out-of-hours provision is vital to provide adequate staffing. I would be keen to hear whether self-referrals should be monitored according to their day and time, or whether what I was told while we were gathering information was merely an anomaly.

The steps to improve the overall experience for survivors of sexual offences are welcome and excellent. Evidence presented to the committee made it clear that female victims prefer female practitioners. We have heard about that, but it is worth repeating that more female forensic practitioners and doctors have been trained in the past couple of years. It is also great that 68 nurses have been trained to support the forensic medical examination process. We are moving in the right direction and I commend NHS Scotland, the Scottish Government and other partners for that positive action.

I was pleased to see the development of the new forensic medical examination suite at the Mountainhall treatment centre in Dumfries, in one of the rural areas that David Stewart spoke about. I was invited to see the suite last year and the whole process was explained to me. I also met Rape Crisis staff so that I could gain an understanding of the varied needs of people who have endured sexual assault and rape. The forensic medical examiners who work in that suite are trained in trauma-informed care and the team is working to ensure that victims of rape and sexual assault endure as little stress, stigma and anxiety as possible.

I support this significant bill. It is important for survivors of sexual crime and I encourage everyone to support it.

18:32

Pauline McNeill (Glasgow) (Lab)

This is an important bill for all women and men who have been the victims of rape and sexual assault. I thank all the members who have contributed to making this a stronger piece of legislation. The speeches by Emma Harper, Sandra White and Lewis Macdonald strengthened the quality of the debate.

It is a widely accepted reality that many sexual offences are not reported to the police. There are many reasons why people hesitate to report sexual assault: some fear having to relive the event; some are concerned that they will not be believed; many victims of rape and sexual assault blame themselves. Some victims feel guilty because they did not fight back. They may even blame themselves for trusting someone. But victims are never to blame.

There is a duty on us, as parliamentarians, to create the right conditions for victims, whoever they are. Men and women come forward to undergo necessary, intimate and harrowing physical examination to provide the evidence that will be required should they decide to take their case forward. That examination is traumatising and painful for many women and in many ways. The bill will make forensic medical examination available on a self-referral basis and, crucially, with no requirement to report it to Police Scotland. That is a significant development for our criminal justice system.

I was shocked when I read that 40 per cent of last year’s 13,000 sexual assaults were against people under the age of 18. More than 5,000 children reported being sexually assaulted last year. Scottish Labour welcomed the amendments at stage 2 that provided the option to lower the age of self-referral in the future. We must make victims aware of those provisions.

Amendment 28, which was lodged by Johann Lamont and has been agreed to, sought to change the wording of the Victims and Witnesses (Scotland) Act 2014 so that individuals undergoing an examination would have the right to choose the “sex” of the examiner as opposed to their “gender”—113 members agreed to that. The sex of the examiner was raised as an issue that was important to the victims of sexual abuse and rape at the beginning of the stage 1 process. The change in wording from “gender” to “sex” was one of the committee’s recommendations at stage 1, following evidence that we gathered from survivors about the re-traumatising nature of the examination and how the lack of access to a female doctor was the most important thing that needed to be addressed.

NHS Lanarkshire commented that the

“patient’s choice of sex of forensic examiner must be guaranteed by this legislation”.

Rape Crisis Scotland provided a briefing for MSPs today, which says:

“The single most common complaint we hear from survivors of sexual crime about their experience of the forensic examination is lack of access to female doctors.”

I agree with that. In the briefing, Rape Crisis rightly points out that changing the term from “gender” to “sex” will not guarantee a female doctor, but I still find it puzzling that the conclusion to be drawn is that there is no requirement to change the bill.

Like many other members, I have had emails on the subject, but I have to say that none of them have been abusive. I also want to point out that, when we talk about victims, we are talking about all victims, including trans women and trans men. However, most of the people who wrote to me were women and rape survivors, and they said that rape survivors need to know that, when they are torn and bleeding, they will not be pressured into accepting intimate touch from a strange male. HEAL, a survivors group, said:

“Even as survivors, we are met with accusations of bigotry and hatefulness, as well as threats of violence, when we express our need for female-only provisions publicly.”

We have removed that ambiguity in law and have provided clarity for those women.

This has been a dignified debate, and it is important that it continues to be a dignified debate. We all agree that the way forward is to increase the number of female doctors. We know that we have a long way to go on that, but that is what every single person in the debate has said, and that is what the Government has committed to achieving.

With that, I am delighted to support the bill this evening on behalf of Scottish Labour.

18:37

Brian Whittle (South Scotland) (Con)

I am pleased to close the debate on behalf of the Scottish Conservatives. As other members have done, I start by thanking all the victims of sexual abuse who bravely gave evidence to the committee. It moved us all and helped to shape this important bill.

The bill is incredibly important, and it is the start of a process of considering the plight of victims first and foremost, as Donald Cameron said in his opening speech. I talk about the start of a process because it is just one point among many that need to be addressed if we are truly going to change the way in which victims of sexual crime are treated. The bill can be a message to those who have suffered that the Parliament, the law and society are prepared to listen to them and believe them and that they will set out a path towards tackling the issue of re-traumatisation.

I note at this point that, next week, we will have a debate on the redress scheme for survivors of historical child sexual abuse in care homes. Again, that is the start of a journey towards recognising the serious flaws in the system for victims of sexual crimes. However, I will say again next week that the bill does not go far enough.

Why is the bill so crucial? A meta analysis of 28 studies of women and girls aged 14 and over who had non-consensual sex that was obtained through force, threat or incapacitation found that 60 per cent of those victims did not acknowledge that they had been raped. It is common for victims to need time to acknowledge what has happened to them; it is a gradual process with an indicator of post-traumatic stress disorder in avoiding reminders of the trauma. Victims being able to self-refer without reporting a crime while assimilating what has happened to them is a significant positive step forward.

I want to highlight a couple of issues. The first goes back to the debate that I talked about at stage 2 around record keeping and the retention of samples. I say again, as I said during that evidence session, when the cabinet secretary suggested that the records would initially be kept in paper format, that the issue needs to be addressed quickly. That aside, the setting of the timescale for the destruction of evidence at two years and two months is arbitrary. Victims and victim support groups suggest that the period should be much longer. Retention periods must be based on the purposes of the retention—for example, the linking of forensic evidence with related case records. I recognise the cabinet secretary’s acknowledgement that the issue will be revisited.

The bill could have set a precedent for getting records retention and wider records management requirements right in legislation. A key aspect of compliance with and implementation of legislation, as well as the exercising of people’s rights that are set out in legislation, lies in the creation and retention of records. At stage 2, I recommended the input of records management expertise via a memorandum of understanding with the keeper of the records of Scotland in relation to drawing up new legislation and amendments to existing legislation.

My second point, which addresses Margaret Mitchell’s amendments, is about limiting the age group of those who can self-refer to those aged 16 and above. I do not think that there is a standard level of maturity for 16-year-olds, to start with. I am of the opinion—others have also suggested this to me—that the legislation might fall foul of the United Nations Convention on the Rights of the Child. The getting it right for every child—GIRFEC—policy is about exactly that, but I am not sure that we are quite there yet. Nevertheless, I recognise and welcome the fact that the Government is moving to a regular review of the age at which self-referral will start. I also welcome the cabinet secretary’s commitment and investment in support to tackle child sexual abuse. We must afford appropriate rights to those aged under 16.

I will finish where I started, by stating that this is a crucial and important piece of legislation not just because of its content but because of the potential statement of intent that it makes to all those who have suffered the trauma of sexual abuse and to all those who fear stigmatisation that this Parliament is waking up to the fact that their journey is, in far too many cases, appalling and the fact that how the system is set up is largely responsible for the crimes going mainly unreported and for there being so few convictions. The bill is welcome, although I cannot help but feel that an opportunity has been missed to make a significantly greater impact, which future legislation will have to pick up and deal with.

Parliament should also consider how to connect up other legislation pertaining to a victim’s journey. We must accept that, for some, the victim’s journey falls well short of decency and that the support that is offered to victims is often unsatisfactory. If Parliament had been a tad braver, we could have made progress in how we deal with such abhorrent crimes.

The way in which victims of sexual abuse have been treated by the system has been an injustice for such a long time. The bill is a welcome start, and the Scottish Conservatives will support it. However, I cannot help but feel that an opportunity has been missed.

18:42

Jeane Freeman

I am grateful to members for a debate that has been full of powerful and important contributions. I will have time to respond to only one or two of them.

Before I do, I welcome, as I did in the stage 1 debate, the strong support for the bill across parties and committees. The Parliament is uniting and acting as one to signal that victims must have access to NHS-led healthcare and forensic medical services, whether they choose to report an incident to the police or not. I also believe that Parliament is uniting to send to victims of some of the worst crimes possible the clear message that they matter, that their voices count and that we care.

I turn now to points that members made. I would never say that we have finished making progress, but it is important to recognise some of the progress that has been made, partly through Government support but also, crucially, through listening to survivors and through the work of our NHS staff and boards.

Since 2017, we have made progress by increasing the number of female sexual offence examiners by 30 per cent. We now have two nurse sexual offence examiners qualified and experienced. As has been mentioned by others, we also have 20 priority places on a new important postgraduate qualification in advanced forensic practice at Queen Margaret University. The course begins next month.

All that is critical to ensuring the multidisciplinary approach that will allow us to ensure that the right to choose a female forensic examiner can be delivered. It is the case, as I said earlier, that in the second quarter of this year, 75 per cent of examinations were carried out by female examiners and within the three-hour timeframe that national standards require. That is progress, but it is not enough progress.

Donald Cameron and others rightly said that there is no point in such legislation if victims do not know about it. Right now, the task force is preparing a national awareness-raising campaign, and work is under way to establish national telephone access to self-referral, through NHS 24.

The Government has agreed that work on the barnahus standards, which was necessarily paused, will restart so that draft standards can be consulted on next year.

Public Health Scotland’s statutory annual report, the requirement for which is now contained in the bill, will provide important information that will allow scrutiny of progress on a number of issues on which members have legitimately and correctly expressed concerns, including the number of female examiners and how well we meet the three-hour timeframe.

In my remaining time, I repeat my thanks to the Health and Sport Committee, its convener, its members past and present, and its clerks for their thorough work on the bill, which we can all agree has improved it immeasurably. In particular, the committee’s scrutiny has resulted in greater prominence for the need for trauma-informed care that avoids retraumatisation. I also thank the Delegated Powers and Law Reform Committee, the Finance and Constitution Committee and the Scottish Parliament information centre for their work on the bill.

I thank Rape Crisis Scotland, the very many stakeholders who have inspired and helped to develop and improve the bill, and the healthcare professionals and wider staff of sexual assault response co-ordination services for all their hard work, which has led to much improvement. I repeat my earlier thanks to our interim chief medical officer, Dr Smith, for his continued leadership of that important work throughout the Covid-19 pandemic, and to all the members of his task force. Their expert advice has helped to shape the improvements that we are now seeing in health boards across Scotland.

Of course, I thank the bill team, who have been quite extraordinary in the thoroughness with which they approached their task, in the degree to which they have reached out to stakeholders far and wide, and in the quality of the information that they have given me, which has enabled me to understand so much of what we are doing and what we still need to do. As I said yesterday in a meeting with them, I am merely their frontwoman. All credit for the quality of the legislation should go to that team.

I extend my personal thanks most of all to the survivors who shared their personal experiences. In doing so, they have not only increased our understanding of the impact of such crimes, but have shaped the legislation. For me, one of the most important aspects of the bill is the enshrining of the principle of trauma-informed care.

If I may, I will quote from a book entitled “The Body Keeps the Score” by Dr Bessel van der Kolk, which was published in 2014. It says:

“trauma is ... remembered not as a story, a narrative with a beginning, middle and end, but as isolated sensory imprints: images, sounds, and physical sensations that are accompanied by intense emotions, usually terror and helplessness.”

The survivors experienced such trauma, but they had the courage and honesty to step forward and inform Parliament and its members about what is needed.

In the stage 1 debate, I said that I was not interested in legislation unless we are sure that it can be implemented. We now have a bill whose implementation in the course of next year will be led by the chief medical officer’s rape and sexual assault task force, backed by clinical pathways and other resources, and supported by the additional investment that I announced earlier. Most important is that it will be scrutinised, challenged and considerably improved as we respond in kind to the courage and honesty of those survivors.

I invite Parliament to pass the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill, to guarantee all victims in Scotland access to self-referral and trauma-informed care, and to confirm our collective agreement and commitment that, in Scotland, we will put the healthcare needs of victims first.

10 December 2020

Final vote on the Bill

After the final discussion of the Bill, MSPs vote on whether they think it should become law.

Final vote transcript

The Presiding Officer (Ken Macintosh)

The first question is, that motion S5M-23648, in the name of Graeme Dey, on the Scottish General Election (Coronavirus) Bill at stage 1, be agreed to.

Motion agreed to,

That the Parliament agrees to the general principles of the Scottish General Election (Coronavirus) Bill.

The Presiding Officer

The next question is, that motion S5M-23646, in the name of Jeane Freeman, on the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill, be agreed to. As the motion is on a bill, we must move to a vote.

I ask members to refresh their voting screens. The question is—[Interruption.] I will give members a few more seconds. If members refresh their screens, we will wait a moment. When I put the vote, that might change the screens, so we will try that.

The question is, that motion S5M-23646, in the name of Jeane Freeman, on the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill, be agreed to. I ask members to vote now. If they have any difficulty at this stage, I ask them to raise their hand to attract the attention of the information technology team, or raise an inquiry online.

The vote is closed. If any member thinks that they were not able to exercise their vote, please let me know.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Ind)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bibby, Neil (West Scotland) (Lab)
Bowman, Bill (North East Scotland) (Con)
Boyack, Sarah (Lothian) (Lab)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Davidson, Ruth (Edinburgh Central) (Con)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Harris, Alison (Central Scotland) (Con)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Marra, Jenny (North East Scotland) (Lab)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McNeill, Pauline (Glasgow) (Lab)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Sarwar, Anas (Glasgow) (Lab)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Elaine (Central Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Kevin (Aberdeen Central) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Whittle, Brian (South Scotland) (Con)
Wightman, Andy (Lothian) (Green)
Wishart, Beatrice (Shetland Islands) (LD)
Yousaf, Humza (Glasgow Pollok) (SNP)

The Presiding Officer

The result of the division on motion S5M-23646, in the name of Jeane Freeman, on the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill, is: For 122, Against 0, Abstentions 0.

Motion agreed to,

That the Parliament agrees that the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill be passed.

The Presiding Officer

The Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill is passed. [Applause.]

The final question is, that motion S5M-23466, in the name of Kate Forbes, on the Scottish General Election (Coronavirus) Bill financial resolution, be agreed to.

Motion agreed to,

That the Parliament, for the purposes of any Act of the Scottish Parliament resulting from the Scottish General Election (Coronavirus) Bill, agrees to any expenditure of a kind referred to in Rule 9.12.3(b) of the Parliament’s Standing Orders arising in consequence of the Act.

Meeting closed at 18:56.

10 December 2020

Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill

Overview

Why the Bill was created

Becomes an Act

Introduced

Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill as introduced

Related information from the Scottish Government on the Bill

Scottish Parliament research on the Bill

Stage 1 - General principles

Have your say

Committees involved in this Bill

Who examined the Bill

Who spoke to the lead committee about the Bill

First meeting transcript

The Convener (Lewis Macdonald)

Tansy Main (Scottish Government)

The Convener

Tansy Main

The Convener

Tansy Main

Sandra White (Glasgow Kelvin) (SNP)

Tansy Main

Sandra White

The Convener

Tansy Main

The Convener

Alex Cole-Hamilton (Edinburgh Western) (LD)

Tansy Main

Greig Walker (Scottish Government)

Alex Cole-Hamilton

Greig Walker

The Convener

Dr Edward Doyle (Scottish Government)

Alex Cole-Hamilton

Edward Doyle

The Convener

Greig Walker

Tansy Main

Emma Harper (South Scotland) (SNP)

Tansy Main

Emma Harper

Tansy Main

Sandra White

Tansy Main

Sandra White

Tansy Main

Sandra White

Tansy Main

Sandra White

Tansy Main

Sandra White

Tansy Main

Sandra White

Tansy Main

Dr Doyle

Greig Walker

Tansy Main

Sandra White

Greig Walker

Sandra White

Greig Walker

Sandra White

Brian Whittle (South Scotland) (Con)

Greig Walker

Tansy Main

Brian Whittle

Greig Walker

Tansy Main

The Convener

Emma Harper

Greig Walker

David Stewart (Highlands and Islands) (Lab)

Greig Walker

Tansy Main

David Stewart

Greig Walker

David Stewart

Tansy Main

David Stewart

Greig Walker