Meeting of the Parliament 03 March 2016
First, I thank the staff of the Health and Sport Committee, the legislation team and all the others who helped with the bill process, as well as all those who came to the committee to give evidence in person and who submitted evidence in writing, which helped us to scrutinise the bill.
The bill is a bit cobbled together. As a piece of proposed legislation, it covers many different areas and it has appeared to confuse some issues by linking them together as part of the same thing. That has been unhelpful.
Provisions to control nicotine vapour products and to stop smoking outside hospitals make a link between the two issues, and that has caused confusion, as did introducing a duty of candour in the same place as wilful neglect was being criminalised. That confused the issue at times by drawing links that simply are not there.
We are a long way from having the last word on nicotine vapour products. Evidence is sketchy with a new product, so legislation will change as more becomes known about NVPs. However, the evidence strongly suggests that they are much safer than cigarettes and that they could save lives as an alternative to smoking. Therefore, any negative suggestions in the bill that discourage people from moving from cigarettes to NVPs would not be helpful.
However, we cannot say that NVPs are safe, either. There is little legislation that covers the chemicals that are included in the various brands. NVPs do not all have the same chemicals in them, and it is therefore difficult to assess any harm and legislate for that. Neither is it clear what the health effects of some of the chemicals are. Some products contain nicotine, but that is not always the case. Although we encourage smokers to move to NVPs, it would be foolhardy to suggest that non-smokers should take up vaping.
In addressing smoking on hospital grounds, the bill has tended to cause confusion about the position of NVPs; it does not include NVPs at all in that respect. Many of the provisions on smoking in hospital grounds will be delivered through regulations, which will require to be scrutinised. It is difficult to imagine how the eventual legislation will work in practice, given the different locations that the regulations will cover.
It was clear to the committee that windows and doorways should always be clear of smoking. However, how that can be ensured when windows and doorways face a street is a different issue.
There were concerns about staff having to enforce the legislation and the possibility that, if they did not, they would find themselves at odds with the law. There were also concerns that staff could commit an offence by assisting patients to get outside if they wanted to smoke. The minister assured us that that will not be the case and that the only staff who will enforce the legislation will be those who are employed specifically for that purpose, which means that there will be no conflict between policing the legislation and the needs of a patient or the duty of patient care.
The bill introduces a duty of candour for health, social care and social work organisations. That means that, if a patient or client is accidentally harmed by treatment, they need to be told about that. However, the bill legislates for that only when the harm is significant. There is a reporting procedure, as well as a procedure for an apology to be given.
I maintain that a duty of candour should run through all actions and errors, so that we have open and transparent services. People should be informed of all aspects of their treatment, as well as mistakes that might be made. That would build confidence in the service and lead to a patient-centred approach. Although it would be time consuming—indeed, impossible—to surround all that with a bureaucracy, it should be part of the information that patients can access at all times, unless they do not wish to have that information, as Malcolm Chisholm suggested when he spoke about his amendments earlier.
The bill deals with wilful neglect, which was sometimes confused in discussions with issues around the duty of candour, because people believed that the issues were on the same spectrum. That is absolutely not the case. The duty of candour is about informing patients of unintended consequences and genuine mistakes, whereas wilful neglect is just that: wilful and intentional neglect and mistreatment that comes about through direct malice towards a patient or client or because an owner or manager does not provide adequate resources to ensure a reasonable quality of care. When a carer cannot provide an acceptable level of care because they have not been given the time or resources, they are not liable, but their employer is. However, if they neglect or mistreat a service user, they will be personally responsible.
Most people who are in a caring profession are compassionate and provide selfless care—we all pay tribute to them—but a minority of people who choose to enter the profession do not really care about the treatment of vulnerable people. It is only right that they should feel the full force of the law, and I am really pleased that anyone who is convicted under the bill will have that conviction remain so that they will never be in a position to treat people in that way again.
At stage 2, the Government lodged an amendment that added a section on the provision of communication equipment. That was welcomed by everybody in the committee and beyond. The amendment was down to the work and dedication of Gordon Aikman, who has campaigned tirelessly for that measure and for better services across the board for people with disabilities. He is an amazing man who has achieved much in a short time.
We can only imagine what losing the ability to speak would be like. It would be devastating. Therefore, communication equipment is a lifeline that allows people to express wishes and continue to be part of their social network. How frustrating it must be to be able to listen, surrounded by people, but not to be able to contribute. When that contribution is about someone’s life, circumstances and care, the feeling must be even worse. A right to communication equipment is therefore necessary and is a welcome addition to the bill.
We will support the bill tonight because it will make a difference to our constituents’ lives.
15:09