PPC/S4/14/4/A

PUBLIC PETITIONS COMMITTEE

AGENDA

4th Meeting, 2014 (Session 4)

Tuesday 18 February 2014 The Committee will meet at 9.00 am in Committee Room 1. 1. Consideration of a current petition: The Committee will consider—

PE1453 by Caroline Wilson, on behalf of the Evening Times and Kidney Research UK (Scotland), on an opt-out system of organ donation in Scotland

and take evidence, via videoconference, from— Mark Drakeford, Minister for Health and Social Services, and Pat Vernon, Head of Policy for Organ and Tissue Donation Legislation, Welsh Government.

2. Consideration of a new petition: The Committee will consider—

PE1504 by Kathie Mclean-Toremar on party litigants – civil appeals to the Supreme Court

and take evidence from—

Kathie Mclean-Toremar, and Gordon Mclean. 3. Consideration of current petitions: The Committee will consider—

PE1319 by William Smith and Scott Robertson on improving youth football in Scotland; PE1412 by Bill McDowell on bonds of caution; PE1499 by Robert Watson, on behalf of the What About Us? campaign group, on creating suitable respite services for younger disabled adults with life-limiting conditions; PE1493 by Peter John Gordon on a Sunshine Act for Scotland; PE1495 by Rab Wilson, on behalf of Accountability Scotland, on the use of “gagging clauses” in agreements with NHS staff in Scotland;

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PE1463 by Lorraine Cleaver on effective thyroid and adrenal testing, diagnosis and treatment.

4. Inquiry into tackling child sexual exploitation in Scotland: The Committee will consider next steps.

Anne Peat

Clerk to the Public Petitions Committee Room T3.40

The Scottish Parliament Edinburgh

Tel: 0131 348 5186 Email: Anne.peat@scottish.parliament.uk

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The following papers are attached for this meeting— Agenda item 1 PE1453 Note by the Clerk PPC/S4/14/4/1 PRIVATE PAPER PPC/S4/14/4/2 (P) Agenda item 2 PE1504 Note by the Clerk PPC/S4/14/4/3 Agenda item 3 PE1319 Note by the Clerk PPC/S4/14/4/4 Scottish Football Association Letter of 18 October 2013 PE1319/OO Scottish Football Association Email of 23 January 2014 PE1319/QQ Petitioner Letter of 12 February 2014 PE1319/RR PE1412 Note by the Clerk PPC/S4/14/4/5 Scottish Government Letter of 12 December 2013 PE1412/L Petitioner Letter of 31 January 2014 PE1412/M PE1499 Note by the Clerk PPC/S4/14/4/6 Muscular Dystrophy Campaign Letter of 10 January 2014 PE1499/A COSLA Letter of 10 January 2014 PE1499/B Midlothian Council Letter of 10 January 2014 PE1499/C Scottish Partnership for Palliative Care Letter of 23 January 2014 PE1499/D Scottish Government Letter of 31 January 2014 PE1499/E Petitioner Letter of 10 February 2014 PE1499/F PE1493 Note by the Clerk PPC/S4/14/4/7 SPICe briefing on Sunshine Act legislation and proposals PPC/S4/14/4/8 BMA Scotland Letter of 18 December 2013 PE1493/B Community Pharmacy Scotland Letter of 18 December 2013 PE1493/C General Pharmaceutical Council Letter of 19 December 2013 PE1493/D NHS Dumfries and Galloway Email of 19 December 2013 PE1493/E Royal Pharmaceutical Society Letter of 20 December 2013 PE1493/F Royal College of Nursing Letter of 20 December 2013 PE1493/G UNISON Scotland Email of 20 December 2013 PE1493/H General Medical Council Letter of 9 January 2014 PE1493/I Petitioner Letter of 18 January 2014 PE1493/J NHS Greater Glasgow and Clyde Email of 30 January 2014 PE1493/K NHS Tayside Letter of 30 January 2014 PE1493/L

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Scottish Government Letter of 22 January 2014 PE1493/M Petitioner Letter of 10 February 2014 PE1493/N NHS Forth Valley Letter of 31 January 2014 PE1493/O PE1495 Note by the Clerk PPC/S4/14/4/9 Letter from the Cabinet Secretary for Health and Wellbeing to Neil Findlay MSP of 16 January 2014 NHS Lothian Letter of 23 December 2013 PE1495/A Audit Scotland Letter of 10 January 2014 PE1495/B Petitioner Letter of 20 December 2013 PE1495/C The State Hospital Email of 14 January 2014 PE1495/D NHS Grampian Letter of 14 January 2014 PE1495/E NHS 24 Letter of 15 January 2014 PE1495/F NHS Tayside Letter of 15 January 2014 PE1495/G BMA Scotland Letter of 15 January 2014 PE1495/H NHS Dumfries and Galloway Letter of 15 January 2014 PE1495/I NHS Ayrshire and Arran Letter of 15 January 2014 PE1495/J Scottish Health Council Letter of 15 January 2014 PE1495/K General Medical Council Letter of 14 January 2014 PE1495/L UNISON Scotland Letter of 16 January 2014 PE1495/M Scottish Government Letter of 16 January 2014 PE1495/N NHS Greater Glasgow and Clyde Letter of 17 January 2014 PE1495/O Royal College of Nursing Letter of 17 January 2014 PE1495/P Public Concern at Work Letter of 23 January 2014 PE1495/Q Dee McHaffie Letter of 24 January 2014 PE1495/R NHS Fife Letter of 3 February 2014 PE1495/S Petitioner Emails of 26 and 28 January 2014 PE1495/T PE1463 Note by the Clerk PPC/S4/14/4/10 Eric Pritchard Letter of 7 October 2013 PE1463/X Dr Henry Lindner Letter of 18 October 2013 PE1463/Y Susan Flack Email of 7 November 2013 PE1463/Z British Thyroid Foundation Letter of 14 November 2013 PE1463/AA Kilmer McCully MD Email of 9 December 2013 PE1463/BB Julie Cameron Letter of 22 March 2013 (published 19 December 2013) PE1463/CC Petitioner Letter of 19 December 2013 PE1463/DD Christina Icke Letter of 20 December 2013 PE1463/EE Julie Cameron Addendum to Letter of 22 March 2013 (published 16 January 2014) PE1463/FF Health and Social Care Alliance Scotland Letter of 24 January 2014 PE1463/GG John Charville Letter of 24 January 2014 PE1463/HH Scottish Government Letter of 5 February 2014 PE1463/II Petitioner Letter of 6 February 2014 PE1463/JJ John Charville Email of 7 February 2014 PE1463/KK Eric Pritchard Email of 10 February 2014 PE1463/LL Dr John E Midgley Letter of 6 February 2014 PE1463/MM

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Public Petitions Committee

4th Meeting, 2014 (Session 4), Tuesday 18 February 2014

PE1453 on an opt-out system of organ donation in Scotland

Note by the Clerk PE1453 – Lodged 1 November 2012 Petition by Caroline Wilson, on behalf of The Evening Times and Kidney Research UK (Scotland), calling on the Scottish Parliament to urge the Scottish Government to introduce an opt-out system of organ donation in Scotland to help save more lives. Link to petition webpage Purpose

1. The Committee last considered this petition on 1 October 2014 and agreed to

invite Mark Drakeford AM, Minister for Health and Social Services, Welsh Assembly Government to give evidence at a future meeting. Following the videoconference evidence session with the Minister, the Committee is invited to agree what action it wishes to take on the petition.

Background

2. Currently, the law across the UK maintains the opt-in system for cadaveric1 organ donation2. However, the Human Transplantation (Wales) Act received Royal Assent on 10 September 2013, which introduces a soft opt-out system for consent to deceased organ and tissue donation in Wales from 2015.

3. The UK Organ Donation Taskforce (ODT) established by the UK Government

argued that a move to an opt-out system, while potentially offering real benefits, carried significant risk if not introduced carefully and with due consideration. It made 14 recommendations intended to offer a mechanism for increasing organ donation without the need to move to an opt-out system.

4. This petition has emerged as a result of the Evening Times campaign calling for

an opt-out system for organ donation in Scotland. Alongside this, NHS Greater Glasgow and Clyde are also currently running a campaign – Respect My Dying Wish – which focuses on promoting the NHS organ donor register and encouraging people to let their family members know their wishes.

Scottish Parliament Action 5. In the current Parliamentary session, a Motion (S4M-04418) was debated in the

Chamber on 1 November 2012 on a move to a system of presumed consent (opt-out) in Scotland. The Official Report of this debate can be found here.

1 “Cadaveric organ transplant” (as opposed to living transplant) refers to the transplant of organs or tissue that takes place at the time of the individual’s death. 2 Payne, J (2008) Organ Donation. SPICe briefing. Available here

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6. There have been several other motions and parliamentary questions on the issue of organ donation, including Motion S4M-07258, by Drew Smith, welcoming the approval of the Human Transplantation (Wales) Bill by the National Assembly for Wales; and Question S4W-16412, by Aileen McLeod, on organ donation and transplantation rates.

Committee Consideration 7. The Committee considered this petition for the first time on 11 December 2012

and sought the views of several stakeholders. The Scottish Government referred to the work of the ODT and the implementation of further measures in Scotland. Some members of the Scottish Transplant Group were not supportive of a move to opt-out but the group did support the on-going work to improve donation rates.

8. The BMA “strongly supports a properly implemented soft opt-out system for

Scotland” and believes this would have a positive impact on donation rates. NHS Blood and Transplant does not believe that opt-out alone would increase donations rates but the approach should be multi-faceted and help raise awareness.

9. The Committee considered the petition again on 19 February 2013 and 14 May

2013, and agreed to await the publication of the new Scottish plan for donation and transplantation and the five year formal review of progress, as recommended by UK ODT.

10. Following this, the Donation and Transplantation Plan for Scotland 2013-2020

and Taking Organ Transplantation to 2020, the UK Strategy, were both published. The new provisions in Wales come in to effect in December 2015.

11. In relation to the petition, recommendation 2 in the Donation and Transplantation

Plan for Scotland 2013-2020 states: “The Scottish Government should await evaluation of the move to opt-out in

Wales before making any decision about the introduction of opt-out in Scotland.” 12. The Committee last considered the petition on 1 October 2014 and agreed to

invite Mark Drakeford AM, Minister for Health and Social Services, Welsh Assembly Government, to give evidence at a future meeting.

Action 13. Following the videoconference evidence session with the Minister, the

Committee is invited to agree what action it wishes to take on the petition.

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Public Petitions Committee

4th Meeting, 2014 (Session 4), Tuesday 18 February 2014

PE1504 on party litigants – civil appeals to the Supreme Court

Note by the Clerk PE1504 – Lodged 21 December 2013 Petition by Kathie Mclean-Toremar asking the Scottish Parliament to urge the Scottish Government to consider changing the current legislation regarding Civil Appeals from the Court of Session to the Supreme Court. In accordance with paragraph 1.8 appeals from the Court of Session to the Supreme Court, a party litigant does not have the same rights as a criminal, a murderer, a sex offender or another person making the same Appeal. Link to petition webpage Purpose 1. This is a new petition that the Committee is invited to consider and agree what

action it wishes to take. The Committee has invited the petitioner to speak to the petition.

Background – the following information is taken from the SPICe briefing 2. The petition relates to a legal dispute in which the petitioner was involved and

the rules which apply to party litigants (i.e. those without legal representation) who want to appeal Court of Session cases to the United Kingdom Supreme Court (Supreme Court).

The petitioner’s legal dispute 3. The legal dispute involved an insurance claim made by the petitioner in relation

to a fire which broke out in the hotel which she owned. The insurance company did not accept this claim and voided the policy. The petitioner subsequently sued the insurance company in the Outer House of the Court of Session1 and represented herself as a party litigant.

4. The Outer House found in favour of the defenders (i.e. the insurance company)2

and the petitioner appealed this judgment to the Inner House of the Court of Session (Inner House),3 again representing herself.4 The Inner House also found in favour of the insurance company. It appears that the petitioner then wished to appeal the judgment of the Inner House to the Supreme Court (i.e. the final court

1 The Outer House of the Court of Session hears cases at first instance (i.e. cases that have not previously been to court). For details see the Scottish Judiciary Court Structure guide 2 McLean or Toremar v CGU Bonus Ltd [2009] CSOH 78, para. 103 3 The Inner House is primarily an appeal court, hearing civil appeals from both the Outer House and Sheriff Courts. For details see the Scottish Judiciary Court Structure guide 4 McLean or Toremar v CGU Bonus Ltd [2012] CSIH 90

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of appeal for Scottish civil cases), but was unable to meet the procedural requirements to do so (see below).

Appeals to the Supreme Court Scotland 5. In Scotland the general rule is that civil appeals to the Supreme Court are of right

(i.e. without the requirement for the Inner House to grant permission – known as “leave to appeal”).5 However, Supreme Court Practice Direction 46 puts certain procedural limits on such appeals (including those brought by party litigants),7 providing that:

“In appeals where permission to appeal is not required (for example, in most Scottish appeals) the notice of appeal must be certified as reasonable by two counsel8 from the relevant jurisdiction and signed by them” (para 4.2.2).

6. Under Rule 19 of the Supreme Court Rules, the notice of appeal must be filed

with the Supreme Court within 42 days of the date of the order/decision of the court.9 For more details on Scottish Supreme Court appeals see paras 1.7–1.11 of the Supreme Court’s guide to bringing a case to The Supreme Court.

England and Wales and Northern Ireland 7. The rules for appeals to the Supreme Court from other UK courts differ from

those in Scotland. Leave to appeal from the Supreme Court’s Appeal Panel (Appeal Panel) is needed. According to Supreme Court Practice Direction 3.3.3 this will only be granted for applications that:

“raise an arguable point of law of general public importance which ought to be considered by the Supreme Court at that time, bearing in mind that the matter will already have been the subject of judicial decision and may have already been reviewed on appeal.”

8. In other words, for non-Scottish cases the Appeal Panel carries out a sift of

cases considered suitable for appeal. Petitioner’s arguments 9. It appears that the petitioner was not able to find two counsel who would certify

the appeal and so could not appeal to the Supreme Court.

5 Section 40 of the Court of Session Act 1988 as amended 6 The Supreme Court’s Practice Directions are forms of procedural rules issued by the President of the Supreme Court which are used to regulate minor procedural matters 7 See footnote 1 to Supreme Court Practice Direction 4 8 The term “counsel” is defined by the Supreme Court Rules and includes advocates and enrolled solicitors (i.e. solicitor-advocates) with a right of audience in the Supreme Court 9 This time limit can, however, be varied by the Supreme Court under Supreme Court Rule 5

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10. The petitioner argues that the rule that two counsel have to certify an appeal provides “insurmountable hurdles and barriers … for a Scottish party litigant to proceed to the Supreme Court”, and that it gives rise to an “inequality of arms” as it limits those who can appeal. The petitioner notes in particular that:

in her view, party litigants are not able to approach counsel directly to

request certification, but only through a solicitor;10

solicitors may not have experience of dealing with party litigants and may be confronted with conflicts of interest preventing them from acting; and

the 42 day period for filing a notice of appeal is too short.

11. The petitioner also appears to argue that the rule breaches Article 6 of the European Convention on Human Rights (ECHR) on the right to a fair hearing.

Scottish Government Action 12. The Scottish Government recently (May 2013) consulted on the treatment of civil

appeals from the Court of Session. The consultation paper contrasted the current system in Scotland with that which applies in the rest of the UK and proposed that the rule that two counsel have to certify an appeal to the Supreme Court should be replaced by a more general requirement for the parties to seek leave to appeal.

13. The Courts Reform (Scotland) Bill, introduced on 6 February 2014, builds on the

above consultation paper and proposes that the current provisions for appeals (i.e. certification by two counsel) be replaced with a provision requiring the permission of the Inner House, or, failing such permission, permission of the Supreme Court (see section 111 of the Bill). If this section of the Bill becomes law, the requirement that two counsel certify appeals would no longer apply. Instead leave to appeal would be needed.

Scottish Parliament Action 14. The Scottish Parliament does not appear to have conducted investigations into

the specific issues raised by the petitioner. Action 15. The Committee is invited to agree what action it wishes to take in respect of the

petition. However given that the Courts Reform (Scotland) Bill has recently been introduced and the Justice Committee is presently considering its approach, it is suggested that this petition be referred to the Justice Committee now to consider in the context of its scrutiny of the Bill.

10 In contrast, in its response to the recent Scottish Government consultation on the treatment of civil appeals from the Court of Session, the Faculty of Advocates suggests that party litigants can approach the Faculty directly for assistance in this regard (see pages 3–4)

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Public Petitions Committee

4th Meeting, 2014 (Session 4), Tuesday 18 February 2014

PE1319 on improving youth football

Note by the Clerk

PE1319 – lodged March 2010 Petition by William Smith and Scott Robertson calling on the Scottish Parliament to urge the Scottish Government to investigate the (1) legal status and appropriateness of professional SFA clubs entering into contracts with children under 16 years; (2) audit process and accountability of all public funds distributed by the Scottish Football Association to its member clubs; (3) social, educational and psychological affects and legality of SFA member clubs prohibiting such children from participating in extracurricular activity; and (4) appropriateness of ‘compensation’ payments between SFA member clubs for the transfer of young players under the age of 16 years; and to (5) increase the educational target from 2 hours curricular physical activity to four hours per week; and (6) develop a long-term plan to provide quality artificial surfaces for training and playing football at all ages across all regions. Link to petition webpage for written submissions, written questions asked, SPICe briefing and previous consideration. Purpose 1. This petition was last considered by the Committee on 26 November 2013. At

that time the Committee noted that following the establishment of a formal working party involving the SFA, the SPL and the SFL “to review the existing system of training compensation for youth players that is currently applied with senior Scottish football” , a paper had been approved by the SPFL Board and was awaiting approval by members at a general meeting in January. The SPFL membership has now approved the new arrangements which will come into effect in June 2014. The Committee is invited to decide what action it wishes to take on the petition.

Background

2. The 2010 SPICe petition briefing provides some background information on this petition that has been carried over from Session 3. The previous Committee heard evidence from the petitioner and wrote to the Scottish Government, the Scottish Football Association, the Scottish Football League, the Scottish Premier League, the Scottish Amateur Football Association, Scottish Youth Football Association, STUC, Scottish Child Law Centre, Scotland’s Commissioner for Children and Young People, KNVB (the Royal Dutch Football Association), a range of Local Authorities and the DWP seeking their views on the issues raised in the petition.

3. In its response of May 2010 (PE1319/F) the SPL suggested that many of the concerns in the petition and raised during the Committee’s discussion arose from misunderstandings. The SPL response was supported by the SFL. In general

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terms, the SPL did not think any action was necessary as “SPL regulations did not permit a club to have any onerous hold over a young player.” In June 2010 (PE1319/G) the SFA said—

“Registration forms for age groups 10 to 14 are for a maximum of one season and lapse automatically at the end of each season. The registration form at age group 15 can be carried forward by the club into age group 16 and age group 16 can also be taken forward in age 17 by the club”

4. However in a letter to the Committee of May 2010 the then Scotland’s Commissioner for Children and Young People (PE1319/E) said—

“Registration agreements as they stand appear to offer very little flexibility and few opportunities for the child or young person to be released of their own accord. In addition, it appears that both parents and children have a very limited understanding of the scope of these agreements at the point of registration. In particular they lack an awareness of the penalties that may be involved in trying to free themselves from such an agreement at a later date.”

5. At the Public Petitions Committee meeting on 5 October 2010 Henry McLeish, Chairman of the Scottish Football Review Committee, gave evidence. He drew attention to his report and advised that work was already underway in the SFA to consider the concerns raised.

6. In January 2011 Shona Robison MSP, Minister for Public Health and Sport; Stewart Regan, Chief Executive, Scottish Football Association, Neil Doncaster, Chief Executive, Scottish Premier League; Tam Baillie, Scotland’s Commissioner for Children and Young People; Jim Sinclair, Director of Youth Development, Rangers Football Club; and Chris McCart, Head of Academy and Youth, Celtic Football Club all attended and gave evidence to the Committee.

Session 4 consideration

7. By way of re-cap, the petition originally called for the Scottish Government to investigate 6 areas in relation to youth football. These are not all the responsibility of the Scottish Government. Points (1), (3) and (4) are primarily matters for the SFA.

Point 1 – “contracts” with children under 16

8. The issues of contracts and compensation payments were discussed with the SFA at the evidence session on 11 January 2011.

9. In 2012, the SFA formed a working party, chaired by Scottish FA President Campbell Ogilvie “to review the existing system of training compensation for youth players that is currently applied with senior Scottish football.” The evidence received by this Committee and its predecessors was passed to the chair of the working party to be taken account of as part of its review. In October 2013 the SFA advised that new proposals had been approved by the SPFL Board and would be put to the general meeting of all 42 clubs in January.

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10. The SPFL membership has now approved the new arrangements which will come into effect in June 2014. The new arrangements were set out in the following communication:

PE1319/00 Paper by the SFA 18 October 2013

Point 2 – accountability of public funds

11. The SFA has access to two main sources of public funding; (1) from sportscotland, received by the SFA in its role as a Sporting Governing Body, for a variety of programmes that meet sportscotland’s objectives and (2) from the Scottish Government’s Cashback for Communities Programme. sportscotland and the Scottish Government are responsible for ensuring any grants they pay are spent appropriately.

12.sportscotland public funds are invested in governing bodies according to clear investment principles and on the basis of robust plans with specific outcomes. Public funds are not invested in member clubs.

Point 3 – prohibitions on children participating in extra-curricular activity

13. In November 2011 the SFA advised that it “has agreed a policy for young elite players to still play for their school, even if signed for a professional club”, although those children who train several times a week and play matches at weekends would be excluded.

Point 4 – “compensation payments”

14. The new arrangements as detailed in paragraph 12 refer.

Point 5 – Increase target to 4 hrs curricular physical activity / week

15. The Scottish Government’s curriculum framework provides “opportunities for children and young people to participate in a wide range of sport and physical activities in and around the school day” but is does not propose to increase its target to 4 hrs curricular physical activity / week.

Point 6 – provision of quality artificial playing surfaces

16. A Scottish FA Facilities Forum was established in December 2011. The Forum aims to bring together the professional and non-professional game to develop a national pitches and facilities strategy. sportscotland is a member of the Forum.

For discussion

17. At the last meeting, in relation to the issue of training compensation, the Committee indicated that it intended to convene another round-table discussion once the outcome of the general meeting of all SPFL clubs was known. The clubs approved the new arrangements at the meeting last month. The petitioners have also now written to the Committee. The following were mentioned at the last meeting as possible invitees to the round table event: Scotland’s

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Commissioner for Children and Young People, Malcolm MacGregor, Advocate, Andrew McKinlay, Director of Governance and Regulation, Scottish FA and a selection of youth heads from professional clubs. It may be that the Committee would also wish to include Campbell Ogilvie, Scottish FA President (who chaired the Working Party).

Action

18. The Committee is invited to confirm that it wishes to convene another round-table discussion on the issue of training compensation for young players and to indicate who it wishes to issue invitations to.

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Public Petitions Committee

18th Meeting, 2013 (Session 4), Tuesday 12 November 2013

PE1412 on bonds of caution

Note by the Clerk PE1412 – Lodged 14 November 2011 Petition by Bill McDowell calling on the Scottish Parliament to urge the Scottish Government to amend the law of succession to end the requirement for a Bond of Caution by an executor-dative when seeking confirmation of any intestate estate. Link to petition webpage Purpose 1. This petition was last considered by the Committee at its meeting on 12 November 2013. The Committee decided to write to the Scottish Government to ask its view on the suggestion by the petitioner that the categories of executor for which a bond of caution is required be restricted and for an update on its work on succession law. The Scottish Government’s response has been received and the Committee is invited to agree what action to take on the petition. Background – the following information is taken from the SPICe briefing 2. The law of succession is concerned with the distribution of the property of a person who has died. It is divided into two parts – intestate succession (covering the situation where no will is left) and testate succession (where a will is left). 3. An “executor” is the person responsible for gathering in the property of the deceased person and then distributing it to those entitled to inherit it. An executor appointed by a will is an “executor-nominate”, an executor appointed by a sheriff (as occurs when someone dies intestate) is an “executor-dative”. 4. Before being confirmed by the court, an executor-dative is required to take out a “bond of caution”.1 A bond of caution is an obligation by a third party, “the cautioner”, to indemnify any creditor or beneficiary of an estate against loss caused by maladministration, negligence or fraud on the part of the executor. It is usually provided by an insurance company, although it can also be provided by a private individual. 5. A bond of caution provides protection in those cases where suing the executor would not provide an effective legal remedy, for example because the executor has disappeared or is unable to meet the legal claims arising. However, where the insurance company is providing caution, the estate will bear the cost of the associated premium. Only two insurance companies currently provide bonds of caution (Zurich SGS and Royal & Sun Alliance (RSA)) and it has been suggested

1 SPICe has referred to the term in lower case, reflecting the Scottish Law Commission’s publications on the topic. ‘Caution’ is pronounced to rhyme with ‘nation’.

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that monopoly of provision has a negative effect on the quality of service, as well as the level of premium charged.2 6. The Scottish Law Commission (SLC) undertook a detailed review of the law of succession (including bonds of caution) publishing a Discussion Paper (DP 136) in 2007 and a final Report (Scot Law Com No 215) in 2009. In the final report, the SLC made a number of recommendations relating to bonds of caution. In particular, after an “overwhelming response” in support of such a move (SLC Report, para 7.11), the SLC recommended abolition of the requirement on an executor-dative to obtain caution before obtaining confirmation (recommendation 66). The SLC further recommended that this change should only take effect in relation to deaths occurring on or after the implementing legislation in question comes into force (recommendation 78). Scottish Government Action 7. In November 2011 Scottish Government officials set out the petition as follows:

“The Scottish Government has undertaken a period of pre-consultation dialogue on a number of the potentially contentious recommendations contained in the Scottish Law Commission’s Report on Succession. This included discussion on the abolition of the requirement for caution by executors-dative and on how to mitigate any risk to the estate. That dialogue will inform consideration of how best to take this, and other issues, forward in a public consultation which would precede any reform of the law.

Progress on this work has been slower than anticipated because of the need to respond to other pressures.”

Scottish Parliament Action 9. A public petition (PE1134) was submitted in March 2008 by the current petitioner calling for an end to the requirement for a Bond of Caution. That petition was closed in April 2008 on the grounds that the Scottish Law Commission was at that time considering responses to its Discussion Paper on its review of succession law and was not due to report on this until early 2009. The Public Petitions Committee forwarded the petition to the Commission for information as part of that review. Committee consideration 10. The Scottish Government advises that there is no agreement on the way forward. In any event, changes to the law on bonds of caution would require primary legislation. The requirement for an executor dative to obtain a bond of caution is contained in the Confirmation of Executors (Scotland) Act 1823. The Act does not include powers to abolish the requirement for caution by subordinate legislation. Without such a power changes can only be effected by primary legislation.

2 Scottish Law Commission, Discussion Paper on Succession (DP 136), pages 110–111.

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11. The Minister has not been able to give a timeframe for any decision on whether and which issues around succession law could be progressed separately. Primary legislation will be required and this is not currently a priority of Scottish Government. For decision

12. The Scottish Government has made it clear that it does not intend to prioritise this work. In its view there is no clear agreement on the way forward on this and a number of related issues. For these reasons it intends to consult when other priorities allow. The Committee is invited to agree what action to take on the petition. It is suggested that further action be deferred until the end of the year.

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Public Petitions Committee

4th Meeting, 2014 (Session 4), Tuesday 18 February 2014

PE1499 on creating suitable respite services for younger disabled adults with life-limiting conditions

Note by the Clerk

PE1499 – Lodged 24 October 2013 Petition by Robert Watson, on behalf of CHAS Young Adult Council (YAC), calling on the Scottish Parliament to urge the Scottish Government to work with charities to help create suitable respite facilities to support younger (aged between 21 and 45) disabled adults with life shortening conditions. Together, they should be working with other hospices and care providers to see if some could provide facilities for younger adults, or better still they should be committing funds towards creating new purpose built facilities for this age group. Link to petition webpage Purpose 1. The Committee considered this petition for the first time on 26 November 2013

and agreed to write to the Scottish Government, the Scottish Partnership for Palliative Care, Health and Social Care Alliance Scotland, a selection of local authorities, NHS Scotland, the Muscular Dystrophy Campaign, COSLA and relevant Cross-Party Groups. The Committee also agreed that it may seek time in the Chamber to debate the issues raised by the petition. A number of responses have been received and the Committee is invited to agree what action it wishes to take on the petition.

Background 2. Respite care is a service intended to benefit a carer and the person he or she

cares for by providing a short break from caring tasks1. Hospice services in Scotland for children and young people who have life-shortening conditions for which there is no known cure are provided by the charity Children’s Hospice Association Scotland (CHAS). CHAS runs two children’s hospices, Rachel House in Kinross and Robin House in Balloch, and a home care service called CHAS at Home. In May 2013, CHAS announced that it will no longer be able to provide services for young people aged 21 or above2 from 2016.

3. In its report Palliative Care for Young People Aged 13 – 24 the Joint Working

Party on Palliative Care for Adolescents and Young Adults noted that:

1 Respite Care Scotland 2013 reported that in 2012/13 there were 205,810 overnight and daytime respite weeks provided in Scotland for a variety of conditions. Of these 23,910 were provided for people aged between 0 and 17 years and 75,170 were for people aged between 18 and 64 years. 2Third Force News (2013) Children’s hospice charity sets age limit

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“adequate provision of respite care is essential to minimise the effects of illness/disability and improve quality of life. Yet for young people over the age of 18, there is very little suitable respite provision.

Scottish Government Action 4. Living and Dying Well: Building on Progress sets out the next phase of actions

required by NHS Boards working with stakeholders. It reports the work of the short-life working group 6 which considered the service configurations necessary to meet the palliative care needs of adolescents and young adults.

5. In the report Recommendations for service configurations for adolescents and

young adults with palliative and end of life care needs (2010) the short-life working group highlighted the importance of “facilitated access to planned short breaks at facilities where there is very good holistic nursing and medical care, so as to provide respite for adolescents and young adults with illnesses with long disease trajectories, and their families”3 (p13).

6. The Scottish Government advised in November 2013 that it would shortly be

carrying out a review of a sample of local authorities (with partners) to assess progress with support to carers and those they care for. The review was to include questions on short breaks/respite, including in relation to young adults4.

7. In November 2012, the Scottish Government published a Framework for the

Delivery of Palliative Care for Children and Young People in Scotland5. This framework aims to ensure that there are recognised pathways for palliative care from the point of diagnosis. In relation to transition it states that health boards should develop local pathways for transition of young people with palliative care needs to appropriate adult services.

8. In July 2010, the Scottish Government announced funding of £1 million per

year over five years to support the provision of additional short breaks and respite care6. The Short Breaks Fund is open to voluntary sector organisations who can apply for grants between £5,000 to £50,000.

Public Petitions Committee Consideration 9. The Committee considered the petition for the first time on 26 November 2013

and agreed to seek views and also to consider seeking time in the Chamber to debate the issues raised by the petition. A number of submissions have now been received.

10. The Muscular Dystrophy Campaign is fully supportive of the petition, highlighting

the survey it conducted and its view that health boards have a role in funding an alternate provision for services previously provided by CHAS.

3 http://www.scotland.gov.uk/Resource/Doc/924/0105556.pdf 4 Scottish Government personal correspondence 13 November 2013 5 http://www.scotland.gov.uk/Resource/0040/00408254.pdf 6 http://sharedcarescotland.org.uk/short-breaks-fund.html

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11. The Scottish Partnership for Palliative Care is that there the unmet need for transition services extends beyond the decision by CHAS to introduce an upper age limit for its services. The responses from COSLA and Midlothian Council recognise the importance of respite services but are unsure of the proposal to build new dedicated facilities.

12. In its response, the Scottish Government details the funding available for respite

breaks and advises that the provision of respite care will become more accessible with further integration of health and social care. The Cabinet Secretary has undertaken to “explore the issues raised by the petition and the potential solutions with COSLA and other stakeholders.”

13. The petitioner’s view is that the introduction of Self-directed Support should not

be used as a justification for not investing in dedicated facilities. He disagrees that there is not sufficient demand for such facilities. The petitioner suggests that the Prince & Princess of Wales Hospice, with funding, could be one option for a dedicated facility.

14. No responses were received from four of the local authorities, the Health and

Social Care Alliance Scotland and the Cross-Party Groups. Health and Sport Committee Consideration 15. The issue of transition between paediatric and adult services will be the subject

of a one-off round-table evidence session at a Health and Sport Committee meeting in March.

Action 16. The Committee is invited to agree what action it wishes to take in respect of the

petition. Options include—

(1) To follow-up with those who have not responded and consider the petition again at a future meeting following the Health and Sport Committee’s evidence session on transition services next month; (2) To write to the Prince & Princess of Wales Hospice to seek its views on the petition;

(3) To take any other action that the Committee considers appropriate.

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Public Petitions Committee

4th Meeting, 2014 (Session 4), Tuesday 18 February 2014

PE1493 on a Sunshine Act for Scotland

Note by the Clerk PE1493 – Lodged 17 August 2013 Petition by Peter Gordon calling on the Scottish Parliament to urge the Scottish Government to introduce a Sunshine Act for Scotland, creating a searchable record of all payments (including payments in kind) to NHS Scotland healthcare workers from Industry and Commerce. Link to petition webpage Purpose 1. The Committee considered this petition for the first time on 12 November 2013

and agreed to write to the Scottish Government, the British Medical Association Scotland, the Ethical Standards in Health and Life Sciences Group, the Royal College of Nursing Scotland, the General Medical Council Scotland, a selection of NHS boards, NHS Scotland, UNISON Scotland, the General Pharmaceutical Council Scotland, the Scottish Pharmacy Board, Community Pharmacy Scotland and the Department of Health. The Committee also agreed to seek further information on examples of legislation similar to that proposed in the petition introduced or being considered in other countries. A number of responses have been received and the Committee is invited to agree what action it wishes to take on the petition.

Background 2. Whilst there is no central register of any payments between health service staff

and industry, there is UK legislation prohibiting the taking of bribes and professional regulatory guidance that would need to be adhered to. In addition there is guidance made under the auspices of the Scottish Government.

3. Healthcare professionals subject to statutory regulation are required to adhere to

standards of ethical and professional conduct set by their regulatory bodies. For example, as part of its role in regulating doctors, the General Medical Council publishes advice which outlines the standards that are expected of doctors. Further specific guidance on these matters is contained in ‘Financial and commercial arrangements and conflicts of interest’ (2013).

Scottish Government Action NHS Circular MEL (1994) 48 4. This circular, entitled ‘Standards of Business Conduct for NHS Staff’, specifies

the general standards which should be maintained by all staff working in the NHS. It covers all health professionals including independent contractors (e.g.

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General Practitioners) and locum practitioners working under NHS terms and conditions.

5. The Circular contains a number of principles of conduct. It states it is the

responsibility of staff to ensure they do not: abuse an official position for personal gain or to benefit their family or friends; and, seek to advantage or further their private business or other interests, in the course of their official duties.

6. There is also a section providing guidance on declaring conflicts of interest. In

this NHS Boards are encouraged to: ensure staff are aware of their responsibilities; consider keeping registers of all such interests and making them available for inspection by the public; and to develop a local policy for implementing the guidance. Thus, local implementation is a matter for NHS Boards themselves. For example, the Code of Conduct (2013) at NHS Greater Glasgow and Clyde makes reference to the Bribery Act 2010 and relevant guidance, and has established separate registers for gifts and rewards and declaration of interests.

Guidance on Joint Working between NHSScotland and the Pharmaceutical Industry 7. The Scottish Government recently published ‘A Common Understanding 2012 –

Working with Together for Patients’. This is a revision of previous guidance published by the then Scottish Executive in 2003. It sets out a set of principles and processes under which joint working between the NHS in Scotland and the pharmaceutical industry should take place. In the document, a distinction is made between “joint working” and “sponsorship”, emphasising how, under the former, the NHS and the industry both contribute knowledge, skills and resources to support an activity that will benefit patients. The principles set out in the document cover a range of areas, including:

The interests of individual patients must be protected, and joint-working

should not undermine or conflict with the ethical requirements of any healthcare professional, including the duty of clinicians to provide the treatment considered to be clinically appropriate. Collaboration between NHSScotland and the pharmaceutical industry should not be represented as endorsement by NHSScotland of any specific medicine or technology.

The pharmaceutical industry must comply with the relevant code of practice at all times. All NHSScotland staff/independent contractors must comply with NHS (and relevant professional bodies’) codes of conduct.

Healthcare professionals should not achieve any personal financial benefit from joint-working.

NHS Boards should establish monitoring arrangements to ensure accountability. An official register of interests should be established as part of the monitoring arrangements and all relevant individuals must subscribe to this. This register should be published on the websites of all the Boards involved.

Other relevant information 8. The Association of the British Pharmaceutical Industry (ABPI), which is a

member organisation representing the pharmaceutical industry has its own code

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of practice, which covers a range of matters, including joint working with the NHS. It is administered by the Prescription Medicines Code of Practice Authority, which is a self-regulatory body, at arm’s length from the ABPI.

9. In addition, there is joint guidance on collaboration between health care

professionals and the pharmaceutical industry, which was produced by representatives of the pharmaceutical industry and the healthcare community. This contains a series of “do’s and don’ts” for the industry and individual healthcare professionals. It was reviewed regularly by the Ethical Standards in Health and Life Sciences Group1 (ESHLSG).

10. However, following the Committee’s decision to write to the ESHLSG, the clerks

received notification that this group has ceased “to exist in its current form – and the scope and membership of the group that will replace it is yet to be decided.”

11. Prior to this announcement, the ESHLSG recently undertook a consultation into

the public disclosure of payments to health professionals. The results show that 77% of all respondents supported the public disclosure of payments through a single, searchable database. Support was particularly strong in the healthcare community and across life science companies.

Committee Consideration 12. The Committee considered this petition for the first time on 12 November 2013

and agreed to seek views. Since that meeting, the following submissions have been received—

PE1493/B: British Medical Association Scotland Letter of 18 December

2013 PE1493/C: Community Pharmacy Scotland Letter of 18 December 2013 PE1493/D: General Pharmaceutical Council Letter of 19 December 2013 PE1493/E: NHS Dumfries and Galloway Email of 19 December 2013 PE1493/F: Royal Pharmaceutical Society Letter of 20 December 2013 PE1493/G: Royal College of Nursing Scotland Letter of 20 December

2013 PE1493/H: UNISON Scotland Email of 20 December 2013 PE1493/I: General Medical Council Letter of 9 January 2014 PE1493/J: Petitioner Letter of 18 January 2014 PE1493/K: NHS Greater Glasgow and Clyde Email of 30 January 2014 PE1493/L: NHS Tayside Letter of 30 January 2014 PE1493/M: Scottish Government Letter of 22 January 2014 PE1493/N: Petitioner Letter of 10 February 2014 PE1493/O: NHS Forth Valley Letter of 31 January 2014

1 On its website, ESHLSG states that it is a multi-stakeholder group consisting of 20 healthcare organisations, with representation from the medical community and the pharmaceutical, medical device and diagnostic industries in the UK.

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13. The NHS Boards that responded are broadly supportive of what is being sought in the petition, stating that this would be an extension of existing policy. However, NHS Dumfries and Galloway highlight that this would widen the gap between disclosure arrangements for NHS staff and independent practitioners such as GPs.

14. The British Medical Association Scotland supports the aim of the petition.

However, the Royal College of Nursing Scotland is of the view that there will be sufficient regulation in place at a European level from 2016 onwards regarding disclosure of financial payments.

15. UNISON Scotland is generally supportive of transparency in public affairs, and

outlines some of the measures that are already in place to address the concerns raised by the petitioner. The General Medical Council also sets out the guidance that is already in place and states that any compulsory register would require legislative change. It also questions whether there would be consequences to a change in regulation exclusively in Scotland, as opposed to the whole of the UK.

16. As outlined above, the Ethical Standards in Health and Life Sciences Group

announced that it would no longer exist in its current form. The Royal Pharmaceutical Society, which was a member of this group, supports, in principle, the establishment of a register of payments made to healthcare professionals from commercial organisations. However, it is also of the view that for Scotland to have a standalone database “would not be sensible.”

17. Community Pharmacy Scotland is supportive of the principle that such financial

payments should be transparent and declared. The General Pharmaceutical Council outlines the standards that are already in place but does not provide a view on a publically available register.

18. The Scottish Government has sought confirmation from each NHS Board in

relation to how they have established a register of interests, and will share this information once received. The Scottish Government has also indicated it would consider any recommendations from the Committee on this issue.

19. A response has yet to be received from the Department of Health. However, it

has indicated that it does intend to provide one. 20. At the meeting at which this petition was first considered, the Committee also

agreed to seek further information on examples in other countries of legislation similar to that proposed in the petition that had either been introduced or was being considered. The examples in the paper provided by SPICe broadly seek to address the issue by requiring companies to disclose payments, as opposed to requiring the individual recipient (or health board if this were to be considered in Scotland or the UK) to disclose or record this information.

Action 21. The Committee is invited to agree what action it wishes to take in respect of the

petition. Options include—

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(1) To write to the Department of Health to seek its response to the Committee’s previous request for views; (2) To write to the Scottish Government to clarify exactly what information it has requested from NHS Boards and confirm that all health board responses will be forwarded to the Committee for consideration as written evidence; (3) To take any other action that the Committee considers appropriate.

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SUNSHINE ACT LEGISLATION AND PROPOSALS

United States

The US Physician Payment Sunshine Act came into effect on 1 August 2013. The American Medical Association (AMA) notes the Act requires manufacturers of drugs, medical devices and biologicals (relevant organisations) that participate in US federal health care programs to report certain payments and items of value given to physicians and teaching hospitals. The key provisions are discussed below.

Financial Transfers that are Subject to Reporting There are two types of transfer that will need to be reported under the Act – Direct and Indirect. Direct transfers are where relevant organisations make any direct payments of a value $10 or more to physicians and/or teaching hospitals. Examples1 of direct payments include: gifts, travel expenses, charitable contributions, education, consulting fees, grants, and investment interests. However, there are 12 exceptions where a direct payment or transfer of value is not subject to reporting. These include product samples and educational materials that directly benefit patients.

Indirect transfers are those not made directly to physicians. There are two categories:

Third party transfers are those where a physician does not receive the payment or transfer. For example, a physician (or someone acting on their behalf) may specify that a transfer of value should be given to another person or entity, such as a preferred charity.

Other types of indirect transfers occur when an entity transfers value to a physician indirectly by way of a third party or intermediary. A good example would be when a pharmaceutical company makes a payment to a physician organization and then requires, instructs, or directs the payment or transfer of value to be provided to a specific physician or intended for physicians (in the latter case without regard to whether specific physicians are identified in advance).

Relevant organisations will need to keep their own record of those transfers or payments made with a value of less than $10, as when these reach an aggregated value exceeding $100 they must be reported.3

1 Silverman, E (2013) Everything you need to know about the Sunshine Act. BMJ 2013;347:f4704.

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Ownership

Manufacturers and group purchasing organisations participating in federal health care programs will have to report certain ownership interests held by physicians and their immediate family members. However, there are certain ownership interests which are not reportable ownership interests.

Review & Public Reports

The majority of the information contained in the transparency reports will be available on a public, searchable website, which will be administered by the Centers for Medicare and Medicaid Services (CMMS). By statute, physicians are provided, at a minimum, 45 days to review their own consolidated transparency report and make corrections before the report is made public. Physicians have additional time, cumulatively two years, to dispute reports even after the reports are made public. If a physician utilises the dispute process, the public data will be marked as disputed in the public database.

Timescales3

Between 1 August and 31 December 2013, drug and device makers were required to start collecting and tracking payment and ownership information, and are now required to report the data for each full calendar year. The physician portal is expected to be opened in January 2014, which will; allow physicians to receive notice when reports are available for review.

By March 2014, drug and device makers are expected to report 2013 data to the CMMS and by June 2014, CMMS is expected to provide physicians access to individualized and consolidated reports for 2013.

Going forward, it is expected that in the June of each year reports for the prior year are will be made available, and by September 2014, CMMS is expected to release the data on the public website.

Administration and Costs

As noted above the CMMS is the body responsible for administering the programme. Despite requests for information on the programme and its associated costs, no reply has been forthcoming at the time of writing

France

Introduction of the French Sunshine Act

The French Law on the Strengthening of Health Protection for Medicinal and Health Products (known as the French Sunshine Act) was adopted on 29 December 2011, with the decree implementing the law being issued on 21 May 2013. The aim of the legislation is to specify the scope of disclosure obligations, which affect all agreements concluded between health care professionals (HCPs) and companies, as well as every benefit in kind or in cash exceeding €10.

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Legal firm McDermott Will & Emery has published an article on the new law, and a partner from the firm has provided additional information. Scope

The law affects a range of health care companies manufacturing medicines, medical devices and biologicals. The disclosure obligation affects any agreement concluded between companies manufacturing or distributing these products and French health care professionals (HCPs), or any benefit provided by those companies to French HCPs, including on:

Research and development contracts e.g. clinical trials and observational studies

Hospitality at conventions, e.g. invitations from individual HCPs to scientific or medical events, with the HCP paying incurred expenses such as travel costs, registration fees, etc.

Other consultancy agreements e.g. speaking positions Any benefit in cash or in kind provided to French HCPs exceeding €10

(incl tax) The only exceptions to the broad scope of this disclosure obligation are:

Commercial sales agreements of goods and services concluded between companies and HCPs.

Agreements concluded by companies manufacturing or distributing non-corrective contact lenses, cosmetic or tattoo products, as long as these do not relate to the conduct of health and safety work assessments and biomedical or observation research on these products.

Failure to comply can lead to a range of penalties, including a fine of up to €45,000. Disclosure Process

Companies must disclose the following:

The name and address of the parties to the agreement. The qualifications and medical specialties of the parties. The date and subject matter of the agreement. The program of the event that is the subject matter of the agreement.

All companies must also publish the following information on benefits provided to HCPs that exceed €10 Euros including tax:

The identity of the recipient and companies providing the benefit. The value of the benefits rounded up to the nearest Euro. The date and nature of every Euro received during the relevant period. The six months during which the benefit was granted.

Information regarding agreements should be passed on to the responsible authority (i.e. the Ministry for Health) within 15 days of the signing of each agreement. The information on benefits granted and agreements entered into should be provided to the responsible authority no later than 1 August for benefits granted and agreements entered into during the first half of the year and no later than 1 February for those granted and entered into during the

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second half of the preceding year. The authority will publish this information no later than 1 October and 1 April respectively.

Initially, the information on agreements has been published by companies on their own websites and transmitted to national boards for them to disclose the information on their own websites. However, the intention has always been that disclosure and publication would take place though a free public website, which would negate the need for publishing the information on company and other websites. A Ministerial Order specifying the how the website should function came into force on 20 December 2013, though the website may not be fully accessible to companies until 1 April 2014. Administration and costs

As noted above, the Ministry for Health is the body responsible for the legislation. However, cost information concerning the scheme as a whole or in part (e.g. the public website) has not been published.

Australia

There have been two recent initiatives taking place in Australia, which have sought to arrive at a similar goal. However, one is based on statute and the other is based on industry regulation.

Therapeutic Goods Amendment (Pharmaceutical Transparency) Bill 2013

This Bill was introduced in the Australian Senate but did not progress past the second reading stage as it lapsed at the end of the last Parliament. The Bill had sought to amend an existing piece of legislation to place restrictions on the way that pharmaceutical companies may interact commercially with doctors, and create a requirement for more transparent reporting of such interactions. The Bill’s proposals included:

Making it an offence for a pharmaceutical company to arrange or sponsor a conference or educational seminar for Australian doctors that takes place overseas. This was intended to curtail the possibility of hosting an educational event in a tropical or otherwise exotic location which may act as an inducement.

Specifying that the company could only spend $100 per head on catering and entertainment (this could be raised through regulations), which was intended to otherwise place limits on overly lavish hospitality.

Specifying that a pharmaceutical company could not pay for a medical practitioner to attend a conference or seminar, including travel or accommodation costs, unless that medical practitioner was a representative of the company sponsoring the event. In the event that a company did provide travel, accommodation or other recompense to a medical practitioner to attend the event on their behalf, that compensation was a reportable payment.

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Clarifying what it meant for a sponsoring company to make a payment to a registered medical practitioner, including paying for a practitioner to attend an event, paying a fee, paying for research, making a donation or giving a gift.

Specifying that regulated corporations, i.e. pharmaceutical companies would be required to prepare an annual report and make it public, and to provide for timescales for these to be published and what it should contain.

Detailing which payments constitute reportable payments. This would have included: any fee or honorarium paid to a medical practitioner or their employer; providing a service; paying travel or accommodation; providing funds to be used for research; making a donation to charity or giving any gift with a value over $25.

The documents accompanying the Bill did not make reference to the financial implications of the proposal.

Medicines Australia Transparency Working Group

In August 2012, Medicines Australia established the Transparency Working Group to develop measures and policies that would further enhance transparency of payments and other transfers of value between healthcare professionals and the pharmaceutical industry. The working group has developed a Transparency Model, which is based on a series of principles, is largely based on the scheme developed in the United States through the Physician Payments Sunshine Act. The working group did not reach a consensus of every part of the model, but has been published as a basis of discussion as part of the wider consultation on Medicine Australia’s Code of Conduct Review. The consultation began in July 2013.

Medicines Australia in a submission on the Therapeutic Goods Amendment (Pharmaceutical Transparency) Bill 2013, believed that initiatives such as the Transparency Model, which were based on existing industry self-regulation, were the best way of dealing with such matters rather than using legislative means.

20 January 2014

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Public Petitions Committee

4th Meeting, 2014 (Session 4), Tuesday 18 February 2014

PE1495 on the use of 'gagging clauses' in agreements with NHS staff in Scotland

Note by the Clerk

PE1495 – Lodged 2 October 2013 Petition by Rab Wilson, on behalf of Accountability Scotland, calling on the Scottish Parliament to urge the Scottish Government to ban the use of confidentiality, or so called ‘gagging’, clauses in compromise agreements with NHS staff in Scotland, which may prevent staff speaking freely about matters that affect patient safety and quality of care, as well as employment issues such as workplace bullying. Link to petition webpage Purpose 1. The Committee considered this petition for the first time on 26 November 2013

and agreed to write to the Scottish Government, Public Concern at Work, NHS boards, the Scottish Health Council, UNISON, the General Medical Council Scotland, the Royal College of Nursing Scotland, the British Medical Association Scotland, the UK Government and Audit Scotland. Most responses have been received and the Committee is invited to agree what action it wishes to take on the petition.

Background 2. The recent debate on the use of gagging clauses and whistleblowing more

generally followed the publication of the ‘Final Report of the Mid Staffordshire NHS Foundation Trust Public Inquiry’ (The Francis Report) in February 2013. The Inquiry heard of the use by organisations of contractual terms to prevent or inhibit disclosure by employees or former employees of information critical of the organisation. This led to recommendation 179 of the report, which stated:

““Gagging clauses” or non disparagement clauses should be prohibited in the policies and contracts of all healthcare organisations, regulators and commissioners; insofar as they seek, or appear, to limit bona fide disclosure in relation to public interest issues of patient safety and care.”

3. Legislating in this area is reserved to the UK Parliament. The Public Interest

Disclosure Act 1998 (PIDA), amended the Employment Rights Act 1996 (ERA), to “protect the public by providing a remedy for individuals who suffer a detriment by any act or any deliberate failure to act by their employer for raising a genuine concern, whether it be a risk to patients, financial malpractice, or other wrongdoing”. Under the ERA such concerns are known as “qualifying disclosures” (also known under PIDA as “protected disclosures”).

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4. As well as protection from victimisation in making a disclosure internally, PIDA also provides protection to individuals making disclosures to prescribed external regulatory bodies. For Scotland, and in relation to health, such bodies include Audit Scotland, Healthcare Improvement Scotland, the Care Inspectorate, the Health and Safety Executive, and the regulatory bodies of health and social care professionals.

5. As regards gagging orders, section 1 of PIDA inserted new section 43J into the

ERA, which provides that any clause in a contract that seeks to “gag” an individual from raising a protected disclosure is invalid.

6. The petitioner makes reference to the pronouncements made by the UK

Secretary of State for Health, Jeremy Hunt MP, concerning the use of gagging orders. In March 2013, in answer1 to a parliamentary question in the House of Commons, the Parliamentary Under Secretary of State for Health, Dr Ian Poulter MP, stated that nothing within an employment contract or compromise agreement should prevent someone from speaking out about issues such as patient care or safety in accordance with PIDA. He added that PIDA also covered former employees, and that if any gagging clause had been used it was void. However, he also stated that the UK Department of Health had not banned confidentiality clauses per se (as there can be legitimate reasons for having one) as long as there is nothing in it that seeks to prevent or has the effect of preventing, someone being able to speak out in the public interest.

Scottish Government Action 7. The Scottish Government has stated that NHSScotland does not have any

policies which would prevent, or condone the prevention of staff from raising concerns about safety, quality, or malpractice. It added that compromise agreements do not contain any clause which seeks to prevent an individual from raising a protected whistleblowing disclosure, which it states would be both illegal and unenforceable.

8. In addition, in April 2013 the National Confidential Alert Line for NHS Scotland

employees was launched. The service is run by Public Concern at Work, and was developed so that NHS staff who feel that they may be victimised as a result of whistleblowing, can obtain support and advice on raising concerns about patient safety and malpractice. During the quarter to end of September 2013, 128 NHS Scotland staff had contacted the line, of which 74 were public interest cases, and of this 35 concerned patient safety. The full breakdown can be accessed here.

Media Coverage 9. Since the petition was first considered by the Committee, there have been a

number of articles in the media on the issue of ‘gagging clauses’, most frequently

1 HC Deb 26 Mar 2013 c1092-3W. As provided through Personal Communication with the House of Common Library, 14 October 2013.

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in The Herald. Some of these related to the case of Dr Jane Hamilton, which was the subject of a question to the First Minister on 9 January 2014.

10. Following this, the Cabinet Secretary for Health and Wellbeing wrote to Neil

Findlay to clarify the points that were raised during First Minister’s Questions. The Cabinet Secretary’s letter was forwarded to the Public Petitions Committee for its information.

Committee Consideration 11. The Committee considered the petition for the first time on 26 November 2013

and agreed to write to the Scottish Government, Public Concern at Work, NHS boards, the Scottish Health Council, UNISON, the General Medical Council Scotland, the Royal College of Nursing Scotland, the British Medical Association Scotland, the UK Government and Audit Scotland. Since that meeting, the following submissions have been received—

PE1495/A: NHS Lothian Letter of 23 December 2013 PE1495/B: Audit Scotland Letter of 10 January 2014 PE1495/C: Petitioner Letter of 20 December 2013 PE1495/D: The State Hospital Email of 14 January 2014 PE1495/E: NHS Grampian Letter of 14 January 2014 PE1495/F: NHS 24 Letter of 15 January 2014 PE1495/G: NHS Tayside Letter of 15 January 2014 PE1495/H: British Medical Association Scotland Letter of 15 January 2014 PE1495/I: NHS Dumfries and Galloway Letter of 15 January 2014 PE1495/J: NHS Ayrshire and Arran Letter of 15 January 2014 PE1495/K: Scottish Health Council Letter of 15 January 2014 PE1495/L: General Medical Council Scotland Letter of 14 January 2014 PE1495/M: UNISON Scotland Letter of 16 January 2014 PE1495/N: Scottish Government Letter of 16 January 2014 PE1495/O: NHS Greater Glasgow and Clyde Letter of 17 January 2014 PE1495/P: Royal College of Nursing Scotland Letter of 17 January 2014 PE1495/Q: Public Concern at Work Letter of 23 January 2014 PE1495/R: Dee McHaffie Letter of 24 January 2014 PE1495/S: NHS Fife Letter of 3 February 2014 PE1495/T: Petitioner Emails of 26 and 28 January 2014

12. All of the regional NHS boards agree that staff should not be prevented from

raising issues of patient safety or workplace bullying but highlight that there is nothing in compromise agreements that prevents this. There is broad agreement that where confidentiality clauses are used, it is in the interests of both parties.

13. These points are echoed by UNISON Scotland, the General Medical Council

Scotland, the Royal College of Nursing Scotland and the British Medical Association Scotland. The Scottish Health Council stated it was unable to provide a view.

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14. Public Concern at Work also highlights that any agreement that seeks to stop staff from raising concerns of public interest is not legally enforceable, stating that the issue is about “perception, public education and further support for individuals”.

15. The Scottish Government states that, whilst it does not support an outright ban

on their use, the revised confidentiality clause re-drafted by Central Legal Office in May 2013 stresses that “employees shall not be prevented from making a ‘protected disclosure’”.

Action 16. The Committee is invited to agree what action it wishes to take in respect of the

petition. Options include—

(1) To write to those still to respond to the Committee’s previous request for views; (2) To close the petition under Rule 15.7 on the basis that compromise agreements already explicitly state that employees cannot be prevented from making protected disclosures, and that the Scottish Government does not support an outright ban on the use of confidentiality clauses for the reasons highlighted in the evidence received and in the Cabinet Secretary’s letter of 16 January 2014 to Neil Findlay MSP.

(3) To take any other action that the Committee considers appropriate.

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Public Petitions Committee

4th Meeting, 2014 (Session 4), Tuesday 18 February 2014

PE1463 on effective thyroid and adrenal testing, diagnosis and treatment

Note by the Clerk PE1463 – Lodged 19 December 2012 Petition by Sandra Whyte, Marian Dyer and Lorraine Cleaver calling on the Scottish Parliament to urge the Scottish Government to take action to ensure GPs and endocrinologists are able to accurately diagnose thyroid and adrenal disorders and provide the most appropriate treatment. Link to petition webpage Purpose 1. The Committee last considered this petition on 1 October 2013 when it held a

round-table discussion with the petitioners and a number of other stakeholders. At that meeting, the Committee agreed to defer consideration of the petition to await completion of the work being undertaken by the Scottish Government. A number of submissions have been received, including an update from the Scottish Government, and the Committee is invited to agree what action it wishes to take on the petition.

Background 2. SIGN has not published any guidelines on the diagnosis and management of

hypothyroidism. However there are guidelines which were co-published in 2008 by a number of professional bodies1, and revised in June 20112.

3. The guidelines specifically address point 3 of the petition which relates to

alternative treatments to T4 alone, including the combined use of T3 (see footnote 3) and T4. It states:

“The RCP does not support the use of thyroid extracts or levothyroxine and T3 combinations without further validated research published in peer reviewed journals. Therefore, the inclusion of T3 in the treatment of hypothyroidism should be reserved for use by accredited endocrinologists in individual patients.”

Scottish Parliament Action 4. Elaine Smith MSP, who made a submission to the Committee, has lodged a

number of questions and a motion on this issue since 2010, most recently 1 Endorsed by the Royal College of Physicians, the Association for Clinical Biochemistry, British Thyroid Foundation, Society for Endocrinology, Royal College of General Practitioners, British Thyroid Association, British Society of Paediatric Endocrinology and Diabetes. 2 Royal College of Physicians (2011) The Diagnosis and Management of Primary Hypothyroidism [online] 3 T3 refers to triiodothyronine, another hormone produced by the thyroid gland.

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question S4W-15415 on the impact of the recent shortage of liothyronine (T3) medication.

Committee Consideration 5. Following initial consideration on 5 February 2013, a large number of

submissions (approximately 185) were received, the majority of which were personal accounts from thyroid and adrenal disorder patients, supporting the petition.

6. The General Medical Council stated that it was satisfied that the submissions

from the respective Royal Colleges in relation to the content and requirements of the curricula that cover thyroid and adrenal testing fulfil its standards. The Scottish Intercollegiate Guidelines Network confirmed that it has no guideline, or plans for such, on thyroid and adrenal disorders.

7. The Scottish Government acknowledged that consideration should be given to

exploring a mechanism to examine all published clinical evidence. Following its meeting on 16 April 2013, the Committee wrote to the Scottish Government recommending it establish a short-life working group to do this. In its response, the Scottish Government stated that it has already taken steps to inform its decision. This included requesting an evidence note from the Scottish Health Technologies Group at HIS which, if accepted, may take four to six months to complete.

8. The Committee considered the petition again on 28 May 2013, 25 June 2013,

and then 1 October 2013 when it held a round-table discussion with the petitioners and a number of other stakeholders. Following this, the Committee agreed to defer consideration of the petition to a future meeting to await completion of the work being undertaken by the Scottish Government.

9. Since that meeting, the following submissions have been received—

PE1463/X: Eric Pritchard Letter of 7 October 2013 PE1463/Y: Dr Henry Lindner Letter of 18 October 2013 PE1463/Z: Susan Flack Email of 7 November 2013 PE1463/AA: British Thyroid Foundation Letter of 14 November 2013 PE1463/BB: Kilmer McCully MD Email of 9 December 2013 PE1463/CC: Julie Cameron Letter of 22 March 2013 (published 19

December 2013) PE1463/DD: Petitioner Letter of 19 December 2013 PE1463/EE: Christina Icke Letter of 20 December 2013 PE1463/FF: Julie Cameron Addendum to Letter of 22 March 2013

(published 16 January 2014) PE1463/GG: Health and Social Care Alliance Scotland Letter of 24

January 2014 PE1463/HH: John Charville Letter of 24 January 2014 PE1463/II: Scottish Government Letter of 5 February 2014 PE1463/JJ: Petitioner Letter of 6 February 2014 PE1463/KK: John Charville Email of 7 February 2014

PPC/S4/14/4/10

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PE1463/LL: Eric Pritchard Email of 10 February 2014 PE1463/MM: Dr John E Midgley Letter of 6 February 2014

10. The British Thyroid Foundation has written to the Committee highlighting the

recent development of its ‘hypothyroidism care strategy’. It also provides responses to specific points raised by the petitioners.

11. In its submission, the Health and Social Care Alliance Scotland outlines its

“general support for the views expressed in the petition.” 12. The Scottish Government has provided an update on the work it previously

advised the Committee it was undertaking. Having received responses from the British Thyroid Association, the Scottish Clinical Biochemistry Managed Diagnostic Network and the Scottish Health Technologies Group, the Scottish Government’s view is that there is no evidence base to support the changes being sought in the petition, and states it has no plans to set up a short-life working group on this issue. However, it has highlighted its intention to “commission a piece of work to explore how patients understand and feel about their quest for a diagnosis and/or treatment in areas where the evidence is limited, the science is uncertain or disputed and/or where a condition is rare or obscure, or not widely recognised.”

13. Since the petition was last considered by the Committee, the clerks have

received notifications from Sandra Whyte and Marian Dyer stating that they no longer wish to be involved in the petition. Lorraine Cleaver has indicated she will continue as the sole petitioner for this petition.

Action 14. The Committee is invited to agree what action it wishes to take in respect of the

petition. Options include—

(1) To write to the Scottish Government to seek further details and a timescale for the work it has committed to undertake in relation to this petition; (2) To take any other action that the Committee considers appropriate.