Chamber and committees

You should say that, through the Government’s funding arrangements, we will see a step change. I am certain of that. Dentists will still have to operate within the IPC constraints, so they will not be able to see as many people as they saw before the pandemic. Before omicron, activity levels in dental practices were beginning to rise, and as a result of the new funding arrangements that incentivise and reward NHS activity, those levels will rise even more.

It might be worth asking Professor Leitch whether he has anything to add, given his expertise in dentistry.

Yes, I will. I am somewhat surprised by the comment, because I meet the Royal College of Emergency Medicine regularly. I think that Dr Thomson gave evidence to you. I have met him in the past, and those meetings helped to inform our strategy. No doubt, that is why he welcomed it. A lot of the issues that he raised with me are core components of it. Of course, as we say in the strategy, it is an iterative document that will continue to develop and evolve as we make our way through the pandemic and into recovery.

Of course, I will meet the RCEM, as I do regularly. We consulted a number of stakeholders. I take on board what the RCEM said yesterday. The royal college can be assured that I am keen to meet with it early doors to get its further thoughts on our workforce strategy.

Good morning. I am absolutely fine with that approach and I welcome the opportunity to make some opening remarks. First, let me say that I hope that everyone on the committee is keeping safe and well.

Thank you for the opportunity to give evidence on two instruments under the Forensic Medical Services (Victims of Sexual Offences) Scotland Act 2021. When commenced on 1 April, the act will create a clear statutory basis for health boards to provide forensic medical examinations for victims of sexual crime. Health boards will also be required to provide consistent access to self-referral services. Self-referral will enable someone who is aged 16 or over to access healthcare and request a forensic medical examination without first having to make a report to the police.

First and foremost, I am extremely grateful to the survivors whose courage, bravery and honesty helped to inform the key principles of the act. I know that I can safely speak for my predecessor, Jeane Freeman, when I say that it was a moment of tremendous pride when the act was unanimously passed in December 2020.

I also thank the chief medical officer, Professor Sir Gregor Smith, for his leadership of the national task force for the improvement of these services, and I put on record my thanks to his predecessor, Dr Catherine Calderwood, for her efforts to improve forensic medical services across the country.

The task force has made significant progress against the five-year high-level work plan that was published in 2017, which was supported by a Scottish Government funding commitment of £11.7 million over four years. That investment has helped health boards to get ready for the commencement of the act. One of the most significant improvements is that victims no longer need to go to a police station for a forensic medical examination. Those now take place in an NHS healthcare setting known as a SARCS—a sexual assault response co-ordination service.

Healthcare Improvement Scotland has published national standards and quality indicators. There has been tangible improvement in health board performance against those. In the final quarter of 2021, 87 per cent of examinations were carried out by a female doctor, supported by a female forensically trained nurse. Nurse care co-ordinators are in post in every health board to help ensure the smooth pathway of onward care and support.

National clinical pathways for adults and for children and young people have been published and are followed by health boards. A national clinical IT system has been developed to ensure consistent recording and collation of data, and the system will go live on 1 April.

Task force officials are liaising closely with health boards to ensure that they are all ready to provide self-referral forensic medical services nationally from 1 April. Boards have been provided with detailed guidance and training, as well as additional funding to support implementation and readiness.

I turn first to the Forensic Medical Services (Self-Referral Evidence Retention Period) (Scotland) Regulations 2022. Section 8(1)(b) of the 2021 act enables the Scottish ministers to set, by regulation, the length of time for which health boards will be required to store evidence that is gathered during a self-referral examination. That is known as the retention period. Any evidence that is stored will be destroyed at the end of the period, unless the person examined has requested destruction of their evidence prior to that or has reported the matter to the police, in which case the police will request that the evidence be transferred to them.

The regulations, if approved, will set the retention period at 26 months. That period is based on the outcome of the Scottish Government’s public consultation and on evidence and best practice from across the UK and internationally. Just over half of the responses to the consultation agreed with that period, which seeks to strike the right balance between ensuring that evidence is held for a reasonable timescale and taking into account the practical considerations for health boards.

The Forensic Medical Services (Modification of Functions of Healthcare Improvement Scotland and Supplementary Provision) Regulations 2022, makes amendments to the National Health Service (Scotland) Act 1978 using the powers in sections 13 and 19 of the 2021 act. This technical instrument will give Healthcare Improvement Scotland functions similar to those that it currently holds in relation to wider health services. The functions include a general duty of furthering the improvement in the quality of services that are provided under the 2021 act and the provision of information to the public about the availability and quality of those services.

The instrument will also extend the inspection power of HIS to any service that is provided under the 2021 act. That serves as a backstop power that is likely to be used only in the event that a significant issue of continued concern has not been resolved through existing health board governance and assurance processes. However, the Government considers it prudent for it and HIS to have those powers in reserve, as is the case for other healthcare services.

In summary, the CMO’s task force has made significant progress over the past five years, and Scottish Government officials are working closely with health boards to ensure that they are ready for commencement of the 2021 act. This secondary legislation is an important anchor to that work and helps to underpin the continued improvements that we plan to deliver with our NHS partners.

As always, I am happy to take questions.

Thank you.

I thank Emma Harper for making those important points. She is absolutely right about why we have a 26-month period and not, for example, 24 months, which would seem a more natural time period. The reason why we avoid 12, 24 or 36 months, for example, is that those would be anniversaries of when the medical examination had to happen, which I imagine can be a traumatic period in a survivor’s journey. We avoid those anniversaries for good reason. That is the feedback that we got from the likes of Rape Crisis Scotland and others.

On Emma Harper’s point about consensus, it is important for me to say that, although the 26-month period was backed by the majority of respondents to the consultation—just over 50 per cent—there was not consensus on what the retention period should be among the remaining group of just over 49 per cent of respondents. Some thought that it should be shorter than 26 months and some thought that it should be longer. It would be remiss of me not to say that the survivor reference group favoured a longer retention period. However, we wrote to the reference group about the 26-month period and it has not pushed back on that.

I think and hope that the reference group understands our reasons for trying to balance important factors: retaining the evidence for a long enough period while ensuring that evidence is not held for a disproportionate amount of time, given the sensitivity of the data.

We looked at evidence from across the UK and found that in the London centres—the Havens—the average time between self-referral and police referral was three months. In other UK centres the average time between self-referral and police referral, for cases that go on to police referral, seems to be between three and six months. Therefore, 26 months seems adequate.

Good morning, convener; I hope that you and the committee members are keeping safe and well.

I thank you for the opportunity to speak to the committee about the proposed amendment to the Community Care (Personal Care and Nursing Care) (Scotland) Regulations 2002 (SSI 2002/303).

I am sure that members are aware that the draft amendment regulations that are before the committee make a routine annual increase to the rates for free personal and nursing care. Those payments help to cover the cost of services for self-funding adults in residential care. Historically, the payments have increased in line with inflation. However, emerging evidence—including from the Scottish care home census—clearly shows that the cost of providing care has increased.

To help redress that, last year we made an above-inflation increase of 7.5 per cent to the rates of payment, which was a significant increase on the inflation rate that was previously used.

We feel that it is again appropriate to make an above-inflation increase to the rates this year, and the amendment regulations that are before you propose a 10 per cent uplift for 2022-23. That will mean that the weekly payment rates for personal care for self-funders will rise from £193.50 to £212.85, and the nursing care component will rise from £87.10 to £95.80.

It is estimated that that increase will cost around £15 million in the next financial year, which will be fully funded by additional provisions within the local government settlement, as outlined in the recent 2022-23 Scottish budget.

The most recent official statistics show that more than 10,000 self-funders receive free personal and nursing care payments, and they should all benefit from those changes. I am happy to take questions from the committee.

Thanks very much for the opportunity to speak to the committee, convener. I hope that you and all your committee colleagues are keeping safe and well.

You will know that the Scottish Government lodged a legislative consent memorandum on 31 August for the provisions in the bill which extend to Scotland. At the time of lodging, and in my appearance at this committee on 5 October 2021, I advised that the Scottish Government was not in a position to recommend consent to any of the provisions, despite—as I said a number of times to your committee—being broadly supportive of the policy intentions.

The bill is a skeleton bill; it has nine Henry VIII powers to amend primary legislation through secondary legislation. The UK Government’s reluctance to include appropriate consent requirements was, to me, a direct threat to devolution.

As you may recall, in the previous evidence session in October, I stressed just how important it is to secure the consent of Scottish ministers on devolved matters. It is an integral pillar of the devolution settlement and our respective officials are currently discussing how parliamentary scrutiny of a decision to consent to any such statutory instruments can be achieved. I am therefore pleased to inform the committee that I have successfully negotiated consent requirements for key provisions within the bill. I am now in a position to recommend that the Scottish Parliament grants consent to the following clauses: medicine information systems; information about payments and so on to people in the healthcare sector, which is known as mandatory reporting; food labelling; reciprocal healthcare; professional regulations; the powers of the secretary of state to transfer or delegate functions in relation to arm’s-length bodies; and virginity testing and hymenoplasty offences.

Those provisions touch upon several different policy areas and, of course, I am always supportive of measures that seek to enhance and improve the health of the people of Scotland. It is, however, exceptionally important to note that the delivery of healthcare in Scotland is devolved and I will always challenge the UK Government on any perceived overreach into NHS Scotland.

I must also notify the committee that I was unable to resolve the competence dispute on the advertising of less healthy food and drink provision. I remain supportive of any measures that are designed to tackle obesity, and it is with regret that I note that the UK Government maintains that the matter is entirely reserved.

I am happy to take any questions that you may have.

Thanks, convener. That is an exceptionally important question from my point of view. The basis of my answer is that wherever we can include some level of parliamentary scrutiny we will do so. I mentioned in my opening remarks that I am keen that my officials continue conversations with the committee clerks and elected members, where appropriate, to discuss what that scrutiny will look like. It can only be to our advantage to have that scrutiny.

You asked a specific question about regulations that are made in devolved areas where there is no consent requirement, such as the food labelling provision and reciprocal healthcare provision, which confers concurrent powers on Scottish ministers. The concurrent powers in reciprocal healthcare in relation to regulations made by the UK Government are subject to the terms of the SI protocol 2 that you mentioned and, therefore, take account of parliamentary scrutiny. Where Scottish ministers make regulations, the Scottish Parliament will be notified by way of a Scottish statutory instrument.

The medicine information systems provision includes a consultation requirement. That will be underpinned by a robust memorandum of understanding that outlines the principles of engagement. The MOU has not been finalised yet, but my officials are collaborating with the UK Government to ensure that, prior to the drafting of regulations, consultation takes place in a meaningful and timely fashion. I stress those words—it has to be meaningful and it must not be last minute. I will write to the committee to provide an update on that when the consultation process has concluded.

The competence dispute on the advertising provision was not resolved. The UK Government maintains that it is entirely reserved and that there is, therefore, no specific requirement for the UK Government to consult Scottish ministers before making any secondary legislation in relation to online advertising of less healthy food and drink. There is, however, a requirement placed on the secretary of state to consult persons that they consider appropriate. As I consider that the online advertising provisions are at least in part devolved, I will write to inform the committee of any UK Government consultation that takes place.

Your second question was about how the committee can scrutinise the Scottish Government position in respect of proposed UK Government regulations that are in devolved areas where there is a consent requirement but SI protocol 2 does not apply. I do not think that there are currently any UK Government regulations in devolved areas where consent is required but an SI protocol does not apply. My officials are in discussion with the Scottish Parliament about how parliamentary scrutiny of a decision to consent to any such SIs could be achieved, but I think that I am right in saying that it does not currently apply in any protocols.

I can be relatively brief in answering that. Your question gives me the opportunity to thank my officials, who are on the line. They and their teams have worked incredibly hard behind the scenes trying to ensure that UK Government officials and their counterparts could see that we were not being obstructive or trying to be difficult for its own sake but that we had a genuine concern.

When I came to the committee last October, it was well understood by committee—I think that there was a lot of agreement around the table about this—that the substance of the policy was not necessarily the issue and that it was the lack of consent in areas that were clearly in devolved competency that was the cause of great anxiety.

On the discussions that took place, there was a fair bit of correspondence to and fro; there were also meetings, telephone calls and so on. As I said to Dr Gulhane, I am grateful to Sajid Javid, the secretary of state, for personally intervening. When he and I had a conversation a couple of weeks ago, that is when we began to see movement.

The conversations will have to continue. There is the unresolved issue that Dr Gulhane asked about a moment ago, and there is the issue of the implementation of a number of the provisions, should the House of Commons pass the bill. Discussions will also have to continue on the MOU, which has yet to be finalised. I would expect to come back to the Scottish Parliament with a further update on that.

The short answer to that is that we should do that, because of what I have just said to Stephanie Callaghan. We are unable to gather evidence around whether virginity testing or hymenoplasty is happening. That is not to say that it is not happening; if it is happening in England and other parts of the UK, I do not doubt that it might be happening in Scotland. That is why the second point that I made to Stephanie Callaghan is important. It is vital that we do that work by involving ourselves in the communities where we think that it could be happening. We have to work with and empower those communities to root out those practices which, as we all accept, are a form of violence against women and girls.