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HC/S2/05/16/A

Health Committee

16th Meeting, 2005 (Session 2)

Tuesday 31 May 2005

The Committee will meet at 2.00 pm in Committee Room 2.

1. Subordinate legislation: Rhona Brankin, Deputy Minister for Health and Community Care, to move motion S2M-2850—

That the Health Committee recommends that the Food Protection (Emergency Prohibitions) (Amnesic Shellfish Poisoning) (West Coast) (No. 4) (Scotland) Order 2005 be approved.

2. Smoking, Health and Social Care (Scotland) Bill: The Committee will consider the Bill at Stage 2 (Day 3).

Simon Watkins

Clerk to the Committee Room T3.40

Email: [email protected]

HC/S2/05/16/A

The following papers are attached for this meeting:

Agenda item 1 the Food Protection (Emergency Prohibitions) (Amnesic Shellfish Poisoning) (West Coast) (No. 4) (Scotland) Order 2005 Agenda item 2 Marshalled list Groupings Scottish Executive amendment briefing

HC/S2/05/16/1 HC/S2/05/16/2 HC/S2/05/16/3 HC/S2/05/16/4

http://www.opsi.gov.uk/legislation/scotland/ssi2005/20050260.htm

http://www.opsi.gov.uk/legislation/scotland/ssi2005/20050260.htm

Smoking, Health and Social Care (Scotland) Bill

3rd Marshalled List of Amendments for Stage 2

The Bill will be considered in the following order—

Sections 9 to 36 Schedules 2 and 3 Sections 1 to 5 Schedule 1 Sections 6 to 8 Section 37

Long Title

Amendments marked * are new (including manuscript amendments) or have been altered.

Section 24

Rhona Brankin Supported by: Mr Andy Kerr

74 In section 24, page 20, line 24, after second <of> insert—

<(ya)>

Shona Robison

57 In section 24, page 20, line 28, leave out from <; and> to end of line 29


75 In section 24, page 20, line 29, at end insert <;

(za) persons who—

(i) became infected with the hepatitis C virus by transmission of the virus by means specified in the scheme from a person who before 1st September 1991 was treated anywhere in the United Kingdom under the National Health Service by way of the receipt of blood, tissue or a blood product and as a result of that treatment became infected with the hepatitis C virus;

(ii) were at the time of transmission in a relationship mentioned in subsection (1A) with the person from whom the virus was transmitted; and

(iii) did not die before 29th August 2003>


76 In section 24, page 20, line 29, at end insert—

<(1A) The relationships referred to in subsection (1)(za)(ii) are—

(a) spouse or civil partner;

SP Bill 33-ML3 Session 2 (2005)

1

(b) person who was living with the person from whom the virus was transmitted as husband or wife or in a relationship which had the characteristics of the relationship between civil partners (or if the person from whom the virus was transmitted was in hospital immediately before death, had been so living when that person was admitted to hospital);

(c) other cohabitant (whether or not of the same sex as the person from whom the virus was transmitted);

(d) where the person from whom the virus was transmitted was a mother, a son or daughter of the mother;

(e) such other relationship as the scheme may specify; and the scheme may specify or elaborate the meaning of relationship for this purpose.>


77 In section 24, page 20, line 31, leave out <question> and insert <questions>


78 In section 24, page 20, line 33, leave out <is> and insert <; and

( ) a person became infected with the virus by transmission of it by means specified in the scheme from a person who became infected as mentioned in sub-paragraph (i),

are>

Shona Robison

58 In section 24, page 20, line 36, after <died> insert <either—

( )>

Shona Robison

59 In section 24, page 20, line 37, after <Scotland;> insert <or

( ) the person’s sole or main residence is or was outside the United Kingdom but, immediately before acquiring such sole or main residence, the person’s sole or main residence is or was in Scotland;>

Dr Jean Turner

79 In section 24, page 20, line 37, after <Scotland;> insert <or

( ) the person’s sole or main residence is or was outside the United Kingdom but, before acquiring such sole or main residence, the person had at some time had a sole or main residence in Scotland;>

Shona Robison


<( ) provide for a right of appeal against the determination of such claims>

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Shona Robison


<( ) provide that a claim may be made in respect of a dead person, without such a claim having to have been made prior to that person’s death>



<( ) specify conditions for eligibility for the making of a claim by another person under the scheme in respect of a person falling within subsection (1)(za) who has died without having made a claim under the scheme;>

Shona Robison

62 In section 24, page 21, line 6, leave out from <(but> to end of line 8

Section 26



<( ) In section 37 (right to make representations to Commission under Part 2 as respects conditions), for subsection (2) substitute—

“(2) Where a notice to which this section applies has been given—

(a) the Commission may not decide to implement the proposal until (whichever first occurs)—

(i) where the local authority to whom the notice was given make such representations as are mentioned in subsection (1) above, it has considered those representations;

(ii) the local authority notify the Commission that such representations will not be made;

(iii) the period of fourteen days mentioned in that subsection elapses without such representations being made and without the Commission receiving such notification; and

(b) where the circumstances are as mentioned in paragraph (a)(ii) or (iii) above, the Commission shall implement the proposal unless it appears to it that it would be inappropriate to do so.”.>

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After section 26


1 After section 26, insert—

<Frequency of inspection of care services under the 2001 Act

(1) The 2001 Act is amended as follows.

(2) In section 25 (inspection of registered care services), after subsection (5) insert—

“(5A) The Scottish Ministers may, after consulting the Commission and thereafter such other persons (or groups of persons) as they consider appropriate, by order amend—

(a) subsection (3)(a) above by substituting for “twelve months” in either or both sub-paragraphs (i) and (ii) a different period (being a period which is not less than twelve months);

(b) subsection (5) above by substituting for “twelve months” in either or both paragraphs (a) and (b) a different period (being a period which is not less than twelve months).

(5B) An order under subsection (5A) above may make different provision for different purposes.”.

(3) In section 78 (orders and regulations), in subsection (2)(b), after the word “3” insert “or 25(5A)”.”>

Section 30


70 In section 30, page 25, line 19, leave out <a person> and insert <an individual>


72 In section 30, page 25, line 20, leave out from <who> to end of line 21


73 In section 30, page 25, line 22, at beginning insert <who satisfies such requirements as may be so prescribed>

Mrs Nanette Milne

81 In section 30, page 25, line 40, leave out from beginning to end of line 5 on page 26

Mrs Nanette Milne

82 In section 30, page 26, leave out lines 9 to 15

4


71 In section 30, page 26, line 15, at end insert <;

( ) after subsection (10) insert—

“(11) In subsection (1A)—

“dental practitioner” has the same meaning as in section 108(1) of the National Health Service (Scotland) Act 1978 (c.29);

“ophthalmic optician” means a person registered in either of the registers kept under section 7 of the Opticians Act 1989 (c.44) of ophthalmic opticians.”.>

After section 30


63 After section 30, insert—

<Appeals under Public Health (Scotland) Act 1897

Amendment of Public Health (Scotland) Act 1897: appeal against certain orders etc.

After section 156 of the Public Health (Scotland) Act 1897 (c.38), insert—

“156A Appeal to sheriff or sheriff principal in certain cases: sections 54, 55 and 96

(1) Any person in respect of whom—

(a) an order under section 54(1) (for removal to a hospital) or under section 54(3) (for transfer to another hospital) (referred to in this section and section 156C as a “section 54 order”);

(b) a direction under section 55(1) (for detention in a hospital) or under section 55(3) (for removal to another hospital) (referred to in this section and section 156C as a “section 55 direction”); or

(c) a decision under section 96 (for removal to a hospital) (referred to in this section and sections 156B and 156C as a “section 96 decision”),

is made, or any person having an interest in the welfare of the person in respect of whom the order, the direction or, as the case may be, the decision is made, may appeal under this section against the order, the direction or, as the case may be, the decision.

(2) An appeal under this section against—

(a) a section 54 order or a section 55 direction by a sheriff may be made to the sheriff principal;

(b) a section 54 order or a section 55 direction by a justice may be made to the sheriff principal of either of the sheriffdoms mentioned in subsection (3);

(c) a section 96 decision may be made to the sheriff of either of those sheriffdoms.

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(3) The sheriffdoms are—

(a) the sheriffdom in which the person (in respect of whom the section 54 order, section 55 direction or section 96 decision in question is made) is resident immediately before it is made;

(b) the sheriffdom in which the hospital (in which that person is detained pursuant to the section 54 order, section 55 direction or section 96 decision in question) is situated.

(4) An appeal under this section may be made on either or both of the following grounds—

(a) that the section 54 order, section 55 direction or section 96 decision in question was based on an error of law;

(b) that the section 54 order, section 55 direction or section 96 decision in question was not supported by the facts found to be established by the sheriff or justice who made the order or direction or, as the case may be, the local authority who made the decision.

(5) An appeal against a section 54 order, section 55 direction or section 96 decision may be made before the expiry of the period of 21 days beginning with the day on which the order, the direction or, as the case may be, the decision is made.

(6) An appeal against a section 54 order or section 55 direction by a justice or a section 96 decision is to be made by way of summary application.

(7) In an appeal under this section against a section 54 order, section 55 direction or section 96 decision, the sheriff principal or, as the case may be, the sheriff may—

(a) confirm the order, the direction or, as the case may be, the decision;

(b) direct that the order, the direction or, as the case may be, the decision ceases to have effect;

(c) make such other order or direction as the sheriff principal or, as the case may be, the sheriff thinks fit.

156B Further appeal to sheriff principal: section 96 decision

(1) Where, in an appeal under section 156A against a section 96 decision, the sheriff confirms the decision, the person in respect of whom the section 96 decision was made, or any person having an interest in the welfare of that person, may appeal to the sheriff principal against the decision of the sheriff in the appeal on either or both of the grounds mentioned in subsection (2).

(2) The grounds are—

(a) that the decision of the sheriff in the appeal under section 156A was based on an error of law;

(b) that that decision was not supported by the facts found to be established by the sheriff in the appeal.

(3) An appeal under this section may be made before the expiry of the period of 21 days beginning with the day on which the decision of the sheriff in the appeal under section 156A is made.

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(4) In an appeal under this section, the sheriff principal—

(a) may allow the appeal and when doing so must direct that the section 96 decision ceases to have effect;

(b) may refuse the appeal and confirm the decision of the sheriff;

(c) may make such other order or direction as the sheriff principal thinks fit.

156C Further appeal to Court of Session: sections 54, 55 and 96

(1) Where, in an appeal under section 156A against a section 54 order or section 55 direction, the sheriff principal confirms the order or, as the case may be, the direction, the person in respect of whom the decision in the appeal is made or any person having an interest in the welfare of that person may, with the leave of the sheriff principal, appeal to the Court of Session against the decision of the sheriff principal on either or both of the following grounds—

(a) that the decision of the sheriff principal in the appeal under section 156A was based on an error of law;

(b) that that decision was not supported by the facts found to be established by the sheriff principal in the appeal.

(2) Where, in an appeal under section 156B against a decision of the sheriff in an appeal under section 156A, the sheriff principal confirms the decision of the sheriff in the appeal under section 156A, the person in respect of whom the decision of the sheriff principal is made or any person having an interest in the welfare of that person may, with the leave of the sheriff principal, appeal to the Court of Session against the decision of the sheriff principal on either or both of the following grounds—

(a) that the decision of the sheriff principal in the appeal under section 156B was based on an error of law;

(b) that that decision was not supported by the facts found to be established by the sheriff principal in the appeal.

156D Effect of appeal in relation to section 54 order, section 55 direction or section 96 decision

A section 54 order, a section 55 direction or a section 96 decision may be given effect notwithstanding that an appeal may be or is made against, or in relation to, it under this Act.”.>

Schedule 2


64 In schedule 2, page 36, line 13, at end insert—

<Public Health (Scotland) Act 1897 (c.38)

In section 157 of the Public Health (Scotland) Act 1897, for the words “the preceding section” substitute “section 156 or as provided in sections 156A to 156C”.>

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<(1A) In section 2(1) (Health Boards and Special Health Boards), in each of paragraphs (a) and (b), for the words “under this Act” substitute “relating to the health service”.>



<( ) In section 4 (Scottish Dental Practice Board)—

(a) in subsection (1A)—

(i) in paragraph (a), for the words from the second “to” to “he” substitute “or body corporate entitled, by virtue of section 43 of the Dentists Act 1984 (c.24), to carry on the business of dentistry to submit to the Board, in relation to treatment which he, or as the case may be, it”;

(ii) in paragraph (b), after the words “a dental practitioner” insert “or such a body corporate”;

(b) in subsection (1B), after the words “dental practitioner” insert “or body corporate”.>



<(1C) In section 10(3) (Common Services Agency), for the words “under this Act” substitute “relating to the health service”.>



<( ) In section 17C(2A)(b)(ii) (other Part 1 services which may be included in arrangements for the provision of personal dental services), after the word “Part” insert “(but not pharmaceutical care services).”.>



<( ) In section 17D (persons with whom agreements may be made)—

(a) in subsection (1)(b)(vi), for the words “an individual” substitute “a person”;

(b) in subsection (2)—

(i) in paragraph (b)(v) of the definition of “NHS employee”, for the words “an individual” substitute “a person”;

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(ii) in paragraph (c)(i) of that definition, for the words from the beginning to “or” substitute “a dental practitioner or body corporate whose name is included in the first part of a list prepared under section 25(2) of this Act or in a list prepared under”;

(iii) in paragraph (c)(ii) of that definition, after the word “who” insert “, or body corporate which,”;

(iv) in paragraph (b) of the definition of “qualifying body”, for the words “which, in accordance with the provisions of Part IV of the Dentists Act 1984, is entitled to carry on the business of dentistry” substitute “entitled, by virtue of section 43 of the Dentists Act 1984 (c.24), to carry on the business of dentistry”;

(v) in the definition of “section 17C employee”, for the words from “by” to the end substitute “by a person providing services in accordance with the arrangements”.>


39 In schedule 2, page 36, line 28, leave out from <“section> to end of line 29 and insert <the words from “has” to the end substitute “means—

(a) the first part of a list prepared under section 25(2);

(b) the first part of a list prepared under section 26(2);”>



<( ) In section 64(5) (permission for use of facilities in private practice), in paragraph (b), after the word “provide” insert “dental,”.>


22 In schedule 2, page 37, line 29, at beginning insert <in subsection (1)—

( ) after the definition of “dispensing optician”, insert—

““Drug Tariff” means the Drug Tariff required to be prepared, maintained and published by the Scottish Ministers under section 17VA of this Act;”;>



<( ) after that subsection, insert—

“(1A) References in this Act to “carrying on the business of dentistry” are to be construed in accordance with section 40 of the Dentists Act 1984 (c.24).”>

9



<( ) In Schedule 8, in paragraph 8(2)(b), for the words “disqualification, conditional disqualification or declaration of unfitness” substitute “disqualification or conditional disqualification”.>


42 In schedule 2, page 38, line 15, at end insert <;

( ) in subsection (2)(b)—

(i) after the words “dental practitioner” insert “or body corporate entitled, by virtue of section 43 of the Dentists Act 1984 (c.24), to carry on the business of dentistry”;

(ii) after the word “his” insert “or its”>



<National Health Service (Primary Care) Act 1997 (c.46)

(1) The 1997 Act is amended as follows.

(2) In section 1 (pilot schemes)—

(a) in subsection (3)(b), after the word “services” insert “nor pharmaceutical care services”;

(b) in subsection (8)—

(i) in the definition of “personal dental services”, after the words “dental practitioner” insert the words “or body corporate”;

(ii) at end, insert “;

““pharmaceutical care services” has the same meaning as for the purposes of Part 1 of the 1978 Act.”.

(3) In section 3(3) (persons with whom pilot schemes for personal dental services may be made)—

(a) in paragraph (b) of the definition of “dental list”—

(i) after the word “Scotland,” insert “the first part of”;

(ii) for the words “section 25(2)(a)” insert “section 25(2)”;

(b) in the definition of “NHS employee”—

(i) in paragraph (b), after the words “dental practitioner” insert “or body corporate”;

(ii) in paragraph (c), after the word “who” insert “, or body corporate which,”.

(4) In section 17(5) (the Dental Practice Boards)—

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(a) after the words “dental practitioner” insert “or body corporate”;

(b) after the word “he” insert “or it”.>


44 In schedule 2, page 38, leave out lines 20 and 21 and insert—

<( ) for paragraph (b) substitute—

“(b) dental practitioners or bodies corporate undertaking to provide, and persons approved to assist in providing, general dental services;”;>



<The Scottish Public Services Ombudsman Act 2002 (asp 11)

In paragraph 14 of schedule 4 to the Scottish Public Services Ombudsman Act 2002, for the words “17P, 25(2), 26(2) or 27(2)” substitute “17F, 17P, 17W, 25(2) or 26(2)”.>

Schedule 3


46 In schedule 3, page 39, line 5, column 2, at beginning insert—

<In section 17C(6), the words “by a general dental practitioner”.>


14 In schedule 3, page 39, line 5, column 2, leave out <25(4) and> and insert <25(3) to>


47 In schedule 3, page 39, line 6, column 2, at end insert—

<In section 28B(6), the words “Subject to section 25(3),”.>


48 In schedule 3, page 39, column 2, leave out line 7 and insert—

<In section 29A, subsection (2) and in subsection (5), the words “(including provision modifying the effect of this Part)”.>

11



<Health Services Act 1980 (c.53) Section 20(2).

In Schedule 6, paragraph 4.

In Schedule 7, the entry for section 25(3) of the 1978 Act.>



<Health and Social Services and Social Section 16(a).

Security Adjudications Act 1983 (c.41)>



<Dentists Act 1984 (c.24) In Schedule 5, paragraph 12.>


52 In schedule 3, page 39, column 2, leave out line 44 and insert—

<Section 40.

In Schedule 9, paragraph 19(6), (7) and (8).>



<National Health Service (Primary Care) In section 1(8), the words “by a general dental

Act 1997 (c.46) practitioner”.

Section 27(2).

Section 28(2).

Section 29(2).

In Schedule 2, paragraphs 43, 44 and 45.

In Schedule 3, the entry concerning section 25(2)(c) of the 1978 Act.>



12

<Health Act 1999 (c.8) Section 56(3) and (4).

In Schedule 4, paragraphs 49, 51(d) and (g), 52(c) and 53.

In Schedule 5, in the entry concerning section 32A of the 1978 Act, the words “and, in subsection (6)(a), “prepared under this Part of this Act””.>



<Community Care and Health In schedule 2, paragraphs 2(6)(c), (7), (8),

(Scotland) Act 2002 (asp 5) (9)(b), (10)(b) and (11).>



<Mental Health (Care and Treatment) In schedule 2, paragraph 4(3)(b) and (6)(b).

(Scotland) Act 2003 (asp 13)>



<Primary Medical Services (Scotland) Section 5(3)(a).

Act 2004 (asp 1) In the schedule, paragraph 1(8), (10), (11)(a), (13) and (16)(a).>

After section 4

Margo MacDonald

33 After section 4, insert––

<No-smoking premises: further provision for licensed premises

(1) This section applies where, by virtue of regulations under section 4(2), licensed premises are no-smoking premises.

(2) The owner of, or person who holds the licence for, the licensed premises may apply to the Licensing Board within whose area the premises are situated for the premises to be treated as if they are not no-smoking premises.

(3) The Licensing Board may grant applications under subsection (2) only exceptionally and in determining such applications must have regard to—

(a) the views of any employees who work in the licensed premises;

(b) the adequacy of ventilation in the licensed premises;

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(c) the number and capacity of other licensed premises in the locality in which the licensed premises are situated in respect of which applications under subsection (2) have been granted; and

(d) the level of public demand for licensed premises which are not no-smoking premises.

(4) Where the Licensing Board grants an application under subsection (2), the licensed premises are, for the purposes of sections 1, 2 and 3 and despite any regulations under section 4(2) by virtue of which the premises are no-smoking premises, to be treated as if they are not no-smoking premises.

(5) Licensed premises which are to be treated as if they are not no-smoking premises by virtue of this section may advertise that fact.

(6) The Scottish Ministers may by regulations make further provision about the making and determination of, and the effect of granting, applications under subsection (2).>

Section 37


31 In section 37, page 32, line 5, leave out <and 35> and insert <, 35 and (in so far as it relates to paragraph 1(1A) and (1C) of schedule 2) 36>


32 In section 37, page 32, line 5, after <schedule 1> insert <and paragraph 1(1A) and (1C) of schedule 2>

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Smoking, Health and Social Care (Scotland) Bill

Groupings of Amendments for Stage 2 (Day 3)

For debate on Day 3: Skipton Fund: infection by secondary transmission 74, 75, 76, 77, 78 Skipton Fund: commencement date 57 Skipton Fund: residency in Scotland 58, 59, 79 Skipton Fund: right of appeal 60 Skipton Fund: posthumous claims and eligibility requirements 61, 80 Skipton Fund: taking payments into account in other proceedings 62 Right to make representations to care commission 69 Frequency of inspection of care services 1 Persons who can authorise medical treatment for adults with incapacity 70, 72, 73, 71 Extension of mental incapacity certificates to 3 year duration 81, 82 Appeal against forcible detention under Public Health (Scotland) Act 1897 63, 64 For debate on subsequent days (subject to any additional amendments lodged): Ability of Scottish Ministers to confer their health functions on Health Boards and the Common Services Agency 29, 30, 31, 32 Minor and consequential amendments relating to dental services and bodies corporate 36, 38, 40, 42, 43, 44, 46

SP Bill 33-G3 Session 2 (2005)

1

Exclusion of pharmaceutical care services 37 Consequential amendments and repeals relating to listing provisions 39, 45, 50, 51 Consequential and miscellaneous amendments 47, 49, 52, 53, 54, 56 Removal of age limit on Mental Health Tribunal membership 65 Provision for licensed smoking premises 33 NOTE: THE FOLLOWING AMENDMENTS HAVE ALREADY BEEN DEBATED— With 3 – 13, 14 With 15 – 22 With 34 – 41, 48, 55

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Agenda Item 2 HC/S2/05/16/4 31 May 2005

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SUBMISSION FROM THE SCOTTISH EXECUTIVE ON SMOKING, HEALTH AND SOCIAL CARE (SCOTLAND) BILL: EXECUTIVE STAGE 2 AMENDENTS (DAY 3) AMENDMENT GROUP 1: Skipton fund: infection by secondary transmission AMENDMENT NOS: 74, 75, 76, 77, 78 (amendment 80 also refers but is not in this group)

• These amendments will allow claims to Skipton fund from Scottish claimants in respect of individuals (secondary infectees) infected by contact with an individual infected with hepatitis C as a result of NHS treatment (the primary infectee). A number of conditions must be satisfied in order to permit such claims and these amendments set out what these conditions are.

o Amendment 74 is a technical drafting amendment; o Amendment 75 provides a statutory basis for Scottish Ministers to

make payments through the Skipton Fund Scheme to secondary infectees;

o Amendment 76 sets out who is eligible to claim and specifies which relationships are recognised;

o Amendment 77 is a technical amendment required to introduce amendment 75;

o Amendment 78 establishes two key requirements. Firstly, that the secondary infectee must have become infected with the hepatitis C virus and, secondly, that the person from whom they have acquired the infection, must have themselves acquired it through NHS treatment prior to 1 September 1991; and,

o Amendment 80 clarifies that a claim must be submitted when a person is alive.

AMENDMENT GROUP 7: Right to make representations to care commission [see further background to amendment at annex A] AMENDMENT NO: 69

• The purpose of this amendment is to bring section 37(2) of the Regulation of Care (Scotland) Act 2001 (“the Act”) into line with the existing amendments made by the Bill to Section 16(2) of the Act.

• Under Part 2 of the Act, local authorities who seek to provide certain care

services must apply to the Care Commission to register that service. The Care Commission may impose certain conditions on local authorities on registration of such services. It is open to the local authority concerned to make representations to the Care Commission regarding the imposition of those conditions and to apply to the Care Commission for variation or removal of any conditions imposed.

• As with the amendments already made in the Bill to section 16 of the Act, the

amendment to section 37 will make clear that the Care Commission requires to consider any representations made by the care service provider, in this


2

instance the local authority, in relation to conditions placed on care service registrations under Part 2 of the Act before deciding whether to impose, vary or remove them (as the case may be).

AMENDMENT GROUP 9: Persons who can authorise medical treatment for adults with incapacity [see background to section 30 amendments at annex B] AMENDMENT NOS: 70, 71, 72 and 73 Amendment 70

• New section 47(1A) as inserted by the Bill defines the categories of persons who may issue section 47 certificates and authorise medical treatment. Amendment 70 ensures that people who are prescribed by Scottish Ministers in regulations made under new section 47(1A) must be individuals and so bodies corporate or partnerships may not do so.

Amendment 71

• This is a technical amendment which clarifies some of the categories of additional healthcare professionals who will be able to issue certificates of incapacity under section 47 of the Act. It does this by inserting a definition of ‘dental practitioner’ and ‘ophthalmic optician’ into section 47 of the Act. This amendment clarifies the existing policy intention.

Amendments 72 & 73

• These amendments ensure that of the specified groups of healthcare professionals, only those who have undergone prescribed training will be able to issue certificates of incapacity under section 47 of the Adults with Incapacity Act 2000 (“The Act”). The Bill at present does not insert into section 47 a requirement for the specified groups of health professionals (dental practitioners, ophthalmic opticians and registered nurses) to have undergone training on the assessment of incapacity. These amendments will ensure that the requirement for training, which is to be prescribed as a requirement under regulations, will apply to all of those health professionals.

AMENDMENT GROUP 11: Appeal against forcible detention under Public Health (Scotland) Act 1897 Amendments 63 and 64 – see background to amendments to the 1897 Act at Annex C.


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ANNEX A REGULATION OF CARE (SCOTLAND) ACT 2001 Purpose of Amendment The purpose of the amendment is to enable the Care Commission to move to a more proportional, targeted and risk-based system of regulation of care services. Effect of Amendment The effect of the amendment is to enable Ministers by order to vary (below but not above the current statutory levels) the minimum frequency of Care Commission inspection of care services. Particular details of the amendment are:-

• The power is capable of being exercised in different ways in respect of different care services. It would be possible to make an order for one or more particular care services whilst leaving the others unaffected.

• The statutory arrangements distinguish between the number of inspections to

be carried out in the first 12 months after registration and subsequent 12 month periods: the power is capable of being used in different ways in respect of those 2 periods. It would thus be possible to leave unaffected the inspection frequency for a newly registered service whilst varying the frequency for established ones.

• The power can only be exercised after consultation first with the Care

Commission and subsequently with appropriate persons or groups of persons.

• Any order made under the power is subject to affirmative resolution procedure.

Background to Amendment The Executive’s vision for care service regulation is continuous improvement in users’ experience of care services through transparent, proportional, accountable, targeted and consistent regulation. The current statutory requirements (in the Regulation of Care (Scotland) Act 2001) place constraints on the Care Commission’s ability to move to a more proportionate, targeted and risk based inspection regime capable of delivering that vision. The Commission is statutorily obliged to inspect all care services at least once a year (or twice a year, in the case of certain services) regardless of whether or not the Commission has any grounds for concern about the service. Within any given level of resources, this restricts the Commission’s ability to target regulatory effort on to those services where the need for improvement is greatest. It also places an unnecessary burden on good quality providers receiving inspection visits which may not be needed. In relation to costs, it establishes an unavoidable minimum amount of regulatory activity which has to be paid for through fees paid by providers and grant-in-aid from the Executive.


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The amendment will enable Ministers, after consultation and with the approval of the Scottish Parliament, to vary the minimum frequency for particular specified services so as to enable the Commission’s resources to be more effectively deployed.


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ANNEX B BRIEFING ON SECTION 30 – AUTHORISATION OF MEDICAL TREATMENT Background 1. Part 5 of the 2000 Act came into operation on 1 July 2002. It gives a general authority to medical practitioners to treat patients who are incapable of consenting to the treatment in question. The authority is conferred by a certificate of incapacity, which can only be issued by a registered medical practitioner. 3. A Code of Practice, which had been the subject of extensive consultation, also came into effect on 1 July 2002. 4. The Code gives guidance on the operation of Part 5. It sets out the assessment process, which should be undertaken before a certificate of incapacity is issued. It makes clear that adults must not be labelled as incapable because of some other circumstance or condition. Rather, the assessment of capacity must be made in relation to the particular matter or matters about which a decision or action is required. Thus doctors, in assessing capacity, should bear in mind that they are assessing capacity in relation to a decision about the medical treatment in question. In assessing capacity, it is a statutory requirement to take account of the present and past wishes of the adult, so far as this can be ascertained by any means appropriate to the adult, including communication by human communication or by mechanical aid. It would be reasonable, in this regard, to use the help of the adult’s relatives, friends, social work, clergy or others, who may be in a position to assist. The practitioner’s own knowledge of the patient will also be relevant to the assessment process, as will the experiences of other health professionals - in particular nurses from their (often) close ongoing contact with the patient. The doctor should also ascertain whether it would be reasonable and practicable to seek the views of any existing proxy with welfare powers. 5. The Act currently provides for certificates of incapacity to last for a maximum of 1 year, from the date of examination on which it is based. 6. The Code was due for revision in July 2003, but, in the light of concerns expressed about the operation of Part 5, the Executive agreed to advance the review. In particular, general practitioners were concerned about the workload implications of the procedure recommended to be followed in the Code of Practice, especially the processes connected with the completion of certificates under Section 47. Dental practitioners were concerned that treatment for an adult with incapacity presenting at their surgeries could be delayed until a certificate of incapacity could be issued by a doctor. This is especially frustrating in the community dental service, where patients – and their capacity to consent or refuse – are often already well known to the dental practitioner. 7. A consultation exercise on the implementation of Part 5 was accordingly launched on 31 March 2003. This sought the views of a wide range of stakeholders on changes or improvements that might be made to the Code of Practice, and whether consideration ought to be given to amending the terms of Part 5 to assist its


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effective operation including (a) whether health professionals other than registered medical practitioners should be allowed to sign certificates of incapacity and (b) whether the maximum duration of certificates of incapacity should be extended. 8. A qualitative study of the implementation and early operation of Part 5 was also commissioned by the Executive in July 2003. A 3-stage process of data collection was employed across four case study areas of Scotland to focus on the experiences of those who had come into contact with Part 5. This process included a postal questionnaire with health and social care practitioners; 52 interviews with practitioners and representatives of relevant stakeholder organisations; and 4 interviews with carers of adults who had experienced the operation of Part 5 of the Act. 9. An analysis of the responses to these 2 initiatives was placed in the Scottish Parliament Reference Centre, with Bib.Nos.31350 and 32709 respectively. In addition, Executive officials met key stakeholders in February 2004, including the British Medical Association, Alzheimer’s Scotland, the Law Society of Scotland, the Scottish General Practitioners Committee, ENABLE, the Mental Welfare Commission, the Association of Directors of Social Work, CARE, the Society for the Protection of Unborn Child and the Scottish Council on Human Bioethics. Extending the Range of Health Professionals Who Can Issue Certificates of Incapacity 10. As the analysis of written submissions to the consultation records, the general consensus among respondents was that health professionals other than registered medical practitioners should be allowed to sign certificates of incapacity, subject to various qualifications including the need to ensure that health professionals are equipped with sufficient skills. This was also the view of the meeting with stakeholders in February 2004. 11. Accordingly, the Bill provides that, in addition to the medical practitioner primarily responsible for the medical treatment of the adult, the following may issue certificates of incapacity:

A person who is;

- a dental practitioner - an ophthalmic optician - a registered nurse - or a person who falls within such description of persons as may be prescribed by the Scottish Ministers, who satisfy such requirements as may be so prescribed,

and who is primarily responsible for medical treatment of the kind in question.

12. It is envisaged that the Code of Practice will set out the circumstances in which it would be appropriate for nurses and other proposed signatories to issue certificates.


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13. It is important to note that these additional categories of potential signatories could only authorise treatment within their specialism. Thus, a dentist could only authorise dental treatment and a nurse could only authorise or carry out treatment, which was within his or her professional competence. Before issuing a certificate of incapacity, they would need to carry out the assessment procedure set out in the Act and the accompanying Code of Practice. Extending Duration of Certificates of Incapacity 14. The general consensus among respondents to the consultation was that the maximum length of certificates of incapacity could be extended, subject to various qualifications. For example, a number of respondents expressed reservations about extending the duration for adults, where capacity might fluctuate. 15. Accordingly, it will only be appropriate to issue a three year certificate for those patients who come within the conditions or circumstances prescribed by Scottish Ministers. Healthcare professionals will not have discretion to widen the conditions or circumstance. Any proposed changes to the conditions or circumstances will have to be subject to consultation, agreed by Scottish ministers and approved by the Parliament, by secondary legislation subject to negative resolution. 16. The Quality & Outcomes Framework of the new GP contract seeks to reward GPs who review their patient’s medication on an annual basis as part of improving the quality of the service. In the revised Code of Practice to Part 5 of the 2000 Act, which will be subject to consultation, the Executive plans to inform healthcare professionals that, in line with best practice, patients with a 3 year certificate should have their medication reviewed on an annual basis. A record confirming the review and outcome should be placed in the patients records, which is where the certificate of incapacity should also be retained. In that way patients living at home or in care homes should not suffer a reduction in patient care, and this will be carried out in a way that is not overly bureaucratic for GPs. We expect a similar review to be carried out by Consultants or, where appropriate, by doctors within their team for patients in long term hospital care. 17. In addition, the new Pharmacy contract will include chronic medication service as part of the core contract. This will allow patients to have their medication supplied, monitored and reviewed regularly as part of the shared care arrangement between the community pharmacist and the general medical practitioner. This will, in turn, add to the regular monitoring of patient on repeat medication. Conclusion 18. It is important to note that none of those bodies representing patients who would be covered by the provisions of the bill object to it. Alzheimer Scotland is content to support the proposals, Enable has no objection to it, and the Scottish Association for Mental Health is not opposed to the main provisions, subject to some conditions.


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19. The professional bodies affected by the proposals are all supportive of them. These include the Royal College of General Practitioners, the Royal College of Nursing, the British Dental Association, and Optometry Scotland. 20. In proposing these amendments to the 2000 Act, the Executive’s aim has been to find ways to help improve the operation of this important legislation, while at the same time maintaining its principles and ensuring the continuing benefits and protection it provides for this vulnerable group of adults. May 2005


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ANNEX C PUBLIC HEALTH (SCOTLAND) ACT 1897 Purpose of Amendment To provide a right of appeal against removal to hospital, detention in, or continuing detention in, hospital, for persons suffering from an infectious disease, as set out in sections 54, 55, and 96 of the 1897 Act. There is currently no appeal provision; indeed section 157 of the Act has the effect of denying any appeal or review of orders, directions or actions taken under the sections listed above. Effect of Amendment The provision of the right of appeal will mean that these sections of the Act are compatible with the European Convention on Human Rights. This in turn should ensure that where it is necessary to use powers under these sections in order to protect the public health, it is easier to do so because the judicial system is aware that safeguards are in place and individuals have a right of appeal. Background to amendment The Act dates from 1897, and various provisions have been amended over the years, but provision is clearly now required to provide for a right of appeal in respect of decisions made under sections 54, 55 or 96 in order to ensure compatibility with the European Convention on Human Rights. There have been problems in recent years in enforcing the 1897 Act powers to isolate people who knowingly put other people’s health at risk from life-threatening infections. In Glasgow, for instance, on at least two occasions, people with highly infectious cases of tuberculosis have refused to co-operate with treatment plans and despite having been advised of the risk they present to the community, have gone on to infect others. In these cases it has been necessary to seek orders for compulsory detention in hospital under sections 54 and 55 of the Act, to protect their families, households and the wider community. However, it has proved difficult to secure such orders, not least because there is no right of appeal. A similar problem arises with section 96 which allows a local authority to remove a person suffering from an infectious disease in a lodging house to hospital, on the certificate of a designated medical officer. In the light of the threats from infectious diseases such as pandemic influenza, ensuring compatibility with ECHR should assist in the use of the relevant sections of the Act, when necessary, to safeguard public health.

health committee tuesday 31 may 2005€¦ · 74 in section 24, page 20, line 24, after second ...

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