Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill – what’s happened in the Parliament so far?

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The Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill was introduced in the Scottish Parliament on 26 November 2019 by the Cabinet Secretary for Health and Sport, Jeane Freeman MSP.

This blog summarises the Bill and consideration at Stages 1 and 2, in time for the Stage 3 debate on 10 December 2020.

You can find out more about the different stages of the legislative process on the Parliament’s website.

The aim of the Bill is to place a duty on health boards to provide forensic medical services to victims of sexual offences (and victims of harmful sexual behaviour by children under the age of criminal responsibility). The Bill also seeks to make forensic medical examination available on a self-referral basis for people over the age of 16.

For further background, see the Bill pages.

Stage 1 scrutiny of the Bill

The Health and Sport Committee was the lead committee for the Bill at Stage 1. The Committee issued a call for views on the Bill and received 33 responses from organisations, including from:

  • disability organisations
  • women’s rights groups
  • health boards
  • local authorities
  • integration authorities
  • royal colleges
  • rape crisis services

Most of the respondents were in favour of the Bill, although a range of issues around the examination service, the retention service and the resource implications of the Bill were raised.

The Committee also took oral evidence and sought further written evidence from a number of organisations as part of its Stage 1 scrutiny.

The Committee supported the general principles of the Bill at Stage 1 but made a number of recommendations including that:

  • The Bill should explicitly refer to trauma-informed care which would be delivered through a co-ordinated multi-agency service.
  • The age limit of self-referral should be kept under close review and that the Bill should be amended to allow the age limit to be changed by super-affirmative procedure.
  • All health boards, alongside Police Scotland, should follow a consistent approach to the provision of information about self-referral.
  • There needs to be a greater focus on support for all individuals about making choices.
  • The Bill should include a statutory right to independent advocacy.
  • A 24-hour, seven day a week, forensic medical examination service should be available.
  • Individuals should be guaranteed a right to choose the sex of their examiner.
  • Health boards should capture, analyse and publish data on equity of access.
  • Further clarity is required in relation to storage of material.
  • There is a need for a revised Data Protection Impact Assessment.
  • A national clinical IT system should be established.
  • The rights of children are reviewed in relation to ownership of data.
  • The needs of alleged perpetrators are considered.
  • An annual report should be produced on the monitoring and evaluation of services and how improvements are being made and consistently applied.

The Scottish Government responded to the Committee’s report on 25 September 2020. The Stage 1 debate was held on 1 October 2020 and the Parliament agreed to the general principles of the Bill without division.

Stage 2 consideration

There were 32 amendments lodged at Stage 2.

Scottish Government amendments

Twenty-nine Scottish Government amendments were lodged in the name of the Cabinet Secretary for Health and Sport, Jeane Freeman MSP.

The Government amendments sought to:

  • Clarify that health boards must provide all forensic medial services in-house.
  • Clarify that services are available irrespective of a victim’s place of residency.
  • Create a new delegated power to allow the minimum age for accessing self-referral to be changed by regulations subject to the affirmative procedure. The new age cannot be lower than 13 or higher than 18.
  • Clarify that a forensic medical examination is predominantly a physical medical examination.
  • Improve the definition of evidence.
  • Clarify that services are available to victims irrespective of  whether the incident took place in Scotland.
  • Introduce a 30-day cooling-off period when a victim requests that items belonging to them should be destroyed. 
  • Move the wording on trauma informed care to the body of the Bill from the schedule and add additional wording about avoiding re-traumatisation to the health care principles set out in the Patient Rights (Scotland) Act 2011.
  • Require Public Health Scotland to publish ten annual reports on the implementation of the legislation.

The Government amendments were all agreed to without division.

Non-Government amendments

Three non-governmental amendments were lodged by Margaret Mitchell MSP, who is not a member of the Committee.

These amendments related to:

  • Lowering the age of self-referral to 13.
  • Support available to people aged between 13 and 15, including assigning an appropriate adult to coordinate support and assistance.
  • Guidance for health boards about child protection measures and confidentiality requirements when supporting a child.

During Stage 2 proceedings, the Cabinet Secretary for Health and Sport reflecting on the amendment on support (amendment 31) said:

“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”.

Discussing the Scottish Government’s amendment allowing the age of self-referral to be changed by regulations, subject to the affirmative procedure, (amendment 5) she noted that:

“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”.

All the non-government amendments were disagreed to by division (For 2, Against 7, 0 Abstentions).

Stage 2 was completed on Tuesday 10 November.

Lizzy Burgess. Senior Researcher, Health and Social Care

Featured image: The Meadows, NHS Forth Valley