 Ddy, maen nhw ychydig eich cyfleteithaeth i fynd amser oes iddo i ddechrau'r ddweud o düchel, mewn cyfleteithaeth a dychydig i ddweud o ddechrau eich cyfleteith i ddweud o gael, mae golau siettyn gyda hynny, maen nhw'n golygu ei chefnol'u epidermataeth ceg, hawl iechydig, olau brifau os y ddych chi'n gwella i ddweud o ddweud, ac mae'n gwella i ddweud o ddweud o ddweud o ddweud, ond mae gennych ddweud o ddweud. gyda'r minister i fynd i'r ffordd o'r instrumentau. Felly mae'r cwestiynau o'r cwestiynau, mae'n gwneud o'r ffordd o'r debate o'r ffordd. The first instrument that we are looking at today is the mental health absconding miscellaneous amendment Scotland regulations 2017 draft. I welcome to the meeting Maureen Watt, Minister for Mental Health, Ruth Walston, Senior Policy Advisor, Mental Health and Protection of Rights division, and Elsa Garland, Solicitor of Scottish Government. I invite a brief opening statement from the minister. Thank you very much, convener, and thank you for providing me with the opportunity to speak about the secondary legislation that the Scottish Government is bringing forward. This legislation is part of the implementation of the Mental Health Scotland Act 2015. That 2015 act makes changes to the Mental Health Care and Treatment Scotland Act 2003 to allow service users with a mental disorder to access effective treatment quickly and easily. The 2015 act also amends the Criminal Procedure Scotland Act 1995 and the Criminal Justice Scotland Act 2003 to improve processes and to introduce a victim notification scheme for victims of mentally disordered offenders. Implementation of the 2015 act is part of the Scottish Government's programme to streamline, simplify and clarify the system for efficient and effective treatment for people with a mental disorder. It does not seek to overhaul mental health law simply to make those changes that need to be made to further improve the operation of the law in this area. When the provisions of the 2015 act come into force, it will build on existing measures and the principles set out in the Mental Health Care and Treatment Scotland Act 2003 to help ensure people with mental health problems know their rights, are at the centre of decisions about their own care and are empowered to participate. Today, there are five affirmative statutory instruments to talk about. One instrument is about arrangements for patients who have absconded, free relate to cross-border matters, and the fifth is a clarification of holding powers for nurses. As each instrument is to be considered individually, I will use that opportunity to take a few minutes to explain those particular proposals, including our reasons behind them before taking questions. The development of policy in this area was done in consultation with stakeholders. The draft policy proposals for these instruments were discussed with stakeholders before those proposals were finalised. Given the complexity and technical nature of some of the processes, it was not practical to run a single public consultation. In order to maximise responses, two separate consultations were conducted. The aim here was to engage as fully as possible, whilst minimising pressure on stakeholders to consider several topics in one go. Policy officials also set up a reference group, which not only helped to shape the form of the consultations, but it also focused on the implementation of the 2015 act itself. The reference group consists of a range of stakeholders. This membership includes the Mental Health Tribunal for Scotland, Mental Welfare Commission for Scotland, professional group service providers, rights, advocacy and service user representation organisations. The group has had a key role in providing advice and recommendations. In summary, the Scottish Government considers that implementation of the 2015 act and introduction of these instruments will help to improve the care and treatment of people with mental disorder. I am happy to discuss the first instrument that the committee is to consider. Okay. Thank you. Can I invite any questions from members? Alex. Thank you, convener. Should I go on and just introduce the first order? That's what you're intended to do, yes. So the first order on the first instrument relates principally to the provision of medical treatment to persons who have sconded to Scotland from elsewhere. Those regulations have a dual purpose—firstly, to provide a process for return of patients who have absconded from another EU member state, and secondly, to allow for treatment of absconding patients pending their return. Sometimes when patients who are mentally disordered are detained in hospital, they leave without the agreement of staff or go missing. That can be a concern because many patients are detained in hospital in the first place because they are at risk of harming others or themselves in some way. What we propose is to make provision which follows the principle of least restriction and allows for that person to receive medical treatment for their mental disorder. It is envisaged that this would be used in circumstances where the absconding person is likely to be in Scotland for a short period before returning to their home jurisdiction once transport is arranged. At present, there is no provision in the mental health legislation which provides a framework to authorise the giving of treatment to a person who has absconded from detention in another jurisdiction and then taken into custody pending return. We therefore propose to replicate some of the provisions which allow treatment of patients detained in hospital in Scotland. Those regulations set out a clear process for considering treatment, which includes confirming that the absconding person is subject to measures that correspond to Scottish measures involving detention. In most cases, we hope that the person will be returned to their home jurisdiction within a few days. We have focused on what best meets the needs of the person and therefore it has to be established that the absconding person has a mental disorder and where they are not liable to be taken into custody under the absconding regulations, it would be necessary to detain them for treatment of that disorder. I appreciate that one stakeholder may prefer we take a different route, for example recommending that absconding person should be made subject to a short-term detention certificate. We have looked at the evidence in detail and officials have spoken about their concerns. They acknowledge that a short-term detention certificate may not be appropriate in all cases and we consider that additional provisions that they request are not needed. We are confident that the proposed regulations are a suitable and proportionate way of allowing a person to be returned to their home jurisdiction where that is appropriate and receive treatment for their mental disorder as required pending their return. During the consultation process, most respondents agreed with our proposals. The best interests of the person should be uppermost in any decision. The 2003 act contains the right to access support from an independent advocate to anyone in Scotland with a mental disorder as defined by the act. This means that any patient who comes under the absconding regulations would have a right to access support from an advocate. If it is likely to be a longer delay, it would be open to the medical practitioner responsible for the person's treatment to consider whether the person should be brought within the Scottish system. I am happy now to take questions on the proposals. Thank you for coming to see us. At the top of your remarks, you referenced the fact that the instruments were done in consultation with groups of stakeholders, and I absolutely accept that that may well be. However, it is clear from briefings that my fellow members of the committee have received since our age that not all concerns that were raised in that consultation process have been acted on. It is particularly around the regulations on absconding that I want to address some questions. First, in response to the draft regulations, it allows the RMO to authorise any person to take someone into custody. Arguably, that definition is very vague. It does not ensure that a person specified has appropriate qualifications or experience to fulfil those duties. Sam H has flagged this up during the consultation process. Can you tell us why you have decided to omit any qualification threshold for those people who can take the patient's into custody? Sam H has, in general terms, we are aware of Sam H's concerns. My officials met a representative of Sam H last week, and we thought that we had a lead on most of their fears and concerns in relation to those orders. However, once that person went back and discussed it with colleagues, it does not seem that that is the case. Perhaps more reassurance of other members of Sam H is required, but that change is needed because there is currently a difference between the list of persons who can take an absconding civil patient into custody and return them on the corresponding list for mentally disordered offenders. There is a list of people who can take people into custody. However, the new provisions now offer similar specified persons by including persons authorised by the patient's responsible medical officer. The policy objective is to make both provisions similar so as to allow an RMO to authorise a person to take a mentally disordered offender into custody and return them to the hospital or other place from which the patient absconded. The accompanying code of practice will make clear which factors an RMO should consider when specifying a person. I am grateful for that answer. Obviously, because this is subject to the affirmative procedure, we cannot amend this, so you are asking the committee to rub us down something that not all of us are entirely happy with. I am just concerned that I do not see what weakens the Government position by just amending this to taking this back, redrafting it and amending it to include even just the word qualified and then in that subsequent guidance delineating exactly what we mean by qualification for those people, because it does seem that it could be open to interpretation and may be misused. Qualified persons are already specified, such as members of hospital staff, mental health officers and constables. This addition allows the responsible medical officer to make a decision about the suitability of a person to take an absconding patient into custody and return them to hospital or another place that they have absconded from. The accompanying code of practice will make clear what matters an RMO should consider when specifying a person. With respect, just listing groups of people that can do it does not specify what qualifications they should hold or expertise or experience, so I am not satisfied that that qualification threshold has been met. I do not know if one of the officials wants to come in, but in terms of what happens at the moment, the RMO is always the person who is there and takes the decision at the end of the day. This is an addition that allows an RMO to use the judgment about who is best placed to take that person in custody and to fulfil that role, so they will look at who is best placed at that moment and find it from the prescribed list. It is a huge judgment element there that causes me concern, because without specifying and just saying that hospital staff, quote-unquote, can take somebody into custody, might then lead the RMO to infer that any member of hospital staff could perform that role. Given the distress that the person in question might be under, they might have been without their medication or usual treatment or support for some time, so it could be a particularly charged situation and may require a very finessed skillset. I do not think that we have covered that by just saying that it is up to the RMO and that it can be anyone from us. If I may just clarify what the amendment to those regulations is doing, it is simply replicating the system that we have for civil patients at the moment. We have that list at the moment of mental health officer, a constable member of staff of hospital, and any other person authorised by the RMO. We are simply replicating that for offenders who have absconded within Scotland. Therefore, we are leaving some flexibility for the RMO to consider who they think is most suitable at that time. I am absolutely all for giving the RMO flexibility, but I also want parameters around that flexibility. I do not understand what the problem is with just bottoming out within guidance and, specifically, the word qualified in the actual regulation, so that RMOs feel that they have the confidence to discharge that responsibility. Well, as Ailsa said, it is bringing it into line with what exists for the other patients at the moment. We are talking about very few people and we are talking about somebody who is in danger of being a risk to themselves or a risk to others. I think that you would agree that perhaps speed might be of the essence in some cases in order that we can quickly ascertain what the problem is and make sure that that person is given the best possible treatment as quickly as possible and returned to from whence they have come as quickly as possible. I do not question that speed. It is obviously important, but, at the same time, when you have to make speedy decisions, you can often make the wrong decisions. I just want to protect the RMOs and the patients that they are dealing with. If that is bringing it into line with how it is for the situation with domestic patients, perhaps the situation with domestic patients needs to be tightened up and more specified. I am still not quite happy with this. If I may clarify again, this is all just about domestic offenders, offenders who have absconded within Scotland, this particular amendment. We are implementing two different sets of regulations. It is replicating what we have in the civil system at the moment. RMOs are already making decisions about persons that they think are appropriate for civil patients. It is just creating a similar system. I am not sure whether we are aware that they are making those decisions at the moment for those civil patients, so we are simply replicating it for offenders. I do not think that we are going to reach agreement on this, but I am not satisfied that that qualification threshold has been met. Can I move on if I may convene it to the other problem that Sam H raised with us? That is about medical treatment for people who have absconded from jurisdictions outwith Scotland. As a regulation stand, the Government is proposing to treat people over several days without the same authorisation from mental health law that would be provided for someone resident in Scotland receiving treatment. People absconding into Scotland could be subject to prolonged detention and treatment without the right of appeal, which could be seen as an infringement of their human rights. I am in particular interested in the fact that this has come to the European Court of Human Rights before, from a case in Finland, whereby the judgment of that court said that forced administration medication represents a serious interference with a person's physical integrity and must accordingly be based on a law that guarantees proper safeguards against arbitrariness. In that case, those safeguards were missing. How confident would you be that such a case were brought before the European Court of Human Rights would not be found similarly wanting? Well, if we are mentioning the X versus Finland case, that involved quite a different set of circumstances and was not related to absconding. We are content that those regulations do provide significant safeguards for the treatment of those who have absconded to Scotland from another jurisdiction. I mean, such medical treatment can only be given where the absconding person is subject to a measure in their home jurisdiction that corresponds to certain Scottish measures involving detention, all of which contain safeguards for the patients involved. Additionally, the absconding person needs to be medically examined before treatment is given and it needs to be established that they have a medical disorder. That would need to be obtained for the purposes of giving them treatment and that without treatment there would be a significant risk to the safety and welfare of the absconding person or to others. On the safeguards, with no reason, our mental health legislation is rights based and we have sought to reflect that in these regulations. For some individuals, compulsory treatment is used to provide the person with medical treatment to alleviate suffering and for the protection of both the person and others. Compulsory treatment, as you know, is only allowed in very strict circumstances. Absconding patients are covered by the same safeguards. Going back to the Finland judgment, we cannot hypothecate what circumstances that would be applied in Scotland in terms of individual circumstances that might occur with patients who are absconding into Scotland under those regulations. You talk about mental health law and that it is based on mental health law. The problem with that is that there is no protection afforded to those patients under mental health law because, through their exclusion of provision of treatment by authorisation of 2,395 acts set out in those regulations, the Scottish Government proposes to provide treatment to patients without those protections. In other words, despite what you said about the work that was done and the agreement that was reached that a short-term detention certificate would not be appropriate, that is effectively what we are talking about here without the rights that are afforded in those regulations. I want to reiterate that the Scottish Government is completely committed to maintaining human rights within Scotland. There is a clear system within the absconding regulations. I do not think that it is quite correct to say that there are no procedures or safeguards simply because that is set out in regulations rather than in the act itself. There are a number of checks that need to go on through. For example, before somebody can be given medical treatment, it has to be established that they have got a mental disorder, that they were not liable to be taken into custody under the regulations, it would be necessary to detain them to give them treatment. That has to be all decided by a medical practitioner and they also have to consider whether, without treatment, there would be some risk to the safety of the patient or to others. There is then a process where certain sections within the 2003 act are applied and modified so that they work appropriately for absconding persons. I do not think that it is really correct to say that there is no scheme or system and no safeguards within them. It is all set out in some detail within the regulations themselves. My fundamental point is that they are not afforded the same rights and protections that Scottish citizens who are protected by statutory primary legislation would be. I do not see why we cannot take the regulation away and change it to give them the same protections. Our position is that, as I said, there is a clear system there for them. It does not mean that something is necessarily lesser just because it is in regulations rather than in the act itself. I take your point that they are not receiving treatment under the 2003 act. That is one of Sam H's issues. However, they would be receiving treatment in accordance with the conditions and requirements of the regulations. We feel that there is a clear system there. Just one final point is access to justice. That is the key. My anxiety would be that, if you are not protected by primary legislation and it is some hodgepodge under the regulations, you will not have the justice ability that you would if you were protected as Scottish patients are under primary legislation. I refer members to my registered interests. I am a registered mental health nurse. I am probably one of only two people around this table who have worked with the legislation in practice. I clarify with you one of the patients that we are referring to who have of scondi, who are now under care in a Scottish mental health facility. What rights do they have in terms of accessing advocacy, in terms of making complaints to the mental welfare commission and in terms of general rights? Of course, Alex Cole-Hamilton has raised his concerns there. Can you please clarify what they are and how they currently stand? The 2015 act builds on the rights and duties in the 2003 act that grants the right to access support from an independent advocate. The new provisions will require local authorities, health boards and the state hospital to provide information to the mental welfare commission on how they exercise their duty to collaborate and secure advocacy services for people with a mental disorder and how they plan to do so in the future. That will help to ensure that information on the provision of advocacy is easily accessible and will help to ensure that independent advocacy is provided as it should be. The Scottish Government will continue to work with the mental welfare commission on the implementation of the new provision. It should be said that the mental welfare commission, as far as I understand it, is broadly in agreement with the SSIs. We see for anyone who is detained under the mental health act in Scotland that they have additional support in terms of whether a mental health officer is there and who oversees the process, is there any plans to have mental health officers oversee any part of the regulation? There is no statutory role for an MHO under the regulations as they are not being detained under the 2003 act. However, best practice will be set out in the statutory guidance. On how a clinical team will engage with social work. Obviously, Alex Cole-Hamilton has raised concerns about RMOs deciding who would go to bring someone back into custody. I have personal experience of fulfilling that role. My understanding is that for the vast majority of cases it would be RMOs and nurses who are working in the ward that that patient has absconded from, or part of their wider clinical team, in terms of perhaps some of the community staff who have been involved in working with that particular patient. Do you see any difference with the regulation coming in that would you envisage that it would be similar to people who would be involved with similar experience and similar levels of qualification? I think that it would be absolutely the same and I bow to your practical knowledge in this field. I think that you are absolutely right. Obviously, under the current process, if someone requires further treatment over a longer period of time, doctors are required to issue short-term detention certificates at the point that Alex Cole-Hamilton has raised. That is the current system. What are the disadvantages of maintaining the current system? By making a patient subject to a short-term detention certificate, you are effectively bringing them into the Scottish system and then to transfer them back to their home jurisdiction. They would have to go through the cross-border transfer process, which may involve more of a lengthy process than might otherwise be the case, whereas allowing for medical treatment under the absconding regulations is still, as I said, a clear process for that treatment to be given and conditions under which it can be given. When that patient is in a medically fit to return to their own country, that can be done without any delay. How many people are we talking about? You are required to change the current process. How many people are you referring to? The minister said very few, so we are dealing with very few people, but you are required to change the current system for how many people? No official statistics have been kept, but you will see from people's evidence and from our evidence gathering that we are talking about limited numbers. I think that we just need to be clear that at the moment there is no provision for medical treatment and this is what the regulations are doing. We are introducing that provision at the moment. People have been doing a work-round and that is why the STDC has came into play. However, as Ails has pointed out, one consequence of putting people in an STDC is that they will largely be in Scotland for a longer period of time. I have been listening to the discussion with interest, but I am still not entirely clear how the minister will ensure that the person authorised by a responsible medical officer to take someone into custody will have the appropriate experience and qualifications. I am still not clear why we do not have that prescribed list. What it really does concern me is that one of our foremost mental health organisations has such reservations about what you are proposing. They have also provided follow-up evidence to the committee saying that they remain concerned that the regulations that are currently drafted do not include an appeals procedure and provide no access to a mental health officer for people who will not be familiar with the law here. Could you perhaps address some of those questions, minister? What are we looking at? All patients will have a right to an independent advocate. As part of the access to that service, the advocate will make sure that the patient is aware of the rights, as well as the treating clinician has a role to ensure that the person is aware of what has happened to them and what their rights should be. Is it your view that you do not believe that there should be a prescribed list? I cannot quite understand why you do not agree with what Sam H is asking for. There is an existing list that has prescribed categories of people and all we are doing is adding a new line that allows an RMO to say who is the best person in that circumstances and who is the most qualified in that moment of time to take the person into custody. As Ailsa said previously, we are just equaling up what already happens in civil cases to those for mentally disordered offensers who are likely to have scond during a transfer process. Why is it the case that Sam H is concerned by the legislation? I think that you are raising a couple of different issues there for me. The first one is to do that has been, we have discussed already, is to do with RMOs and them being able to authorise somebody. In addition to the people that are already set out in regulations, they can themselves authorise somebody that they think is suitable to take an offender into custody. There are separate issues that Sam H has raised about, for example, given the example of the Finnish human rights case that we have discussed as well, where they have said that there is a lack of a proper process. What we are saying is that there is a process set out in the regulations and that we feel that that is a sufficient process and also lies in those circumstances, somebody to be returned fairly speedily to their home jurisdiction, which is probably going to be the best for them in the circumstances, rather than being in a country that is not their own. There are two different issues there. Depriving somebody of their liberty is a huge step. For me, the issue is that that word any person is the problem that a number of us have, and I think that the Government needs to reflect on that. Do you see it as being a problem? There are two different issues that are getting amalgamated into one. The RMO issue is about simply adding to the list of people who can take an offender into custody for the purposes of returning them. Those are absconding offenders within Scotland. For absconders from other jurisdictions, we are extending the existing regime for the taking into custody and return of the absconding persons. We are extending those to people from other EU member states and also to allow for medical treatment, which is not currently provided for in the 2003 act. We are using powers that have been used to expand the regulation making powers in the 2015 act, so that we can make specific provision for the two different categories of the people coming from the EU and also to apply to all absconders the ability to give them medical treatment. It has been as well fully debated within the bill's process. I would submit to doing anything that is particularly unusual in looking at the new powers that we have as revised in the 2003 act. The second element that I have concerns about is the fact that for those absconding to Scotland, there is no legal right to challenge treatment and no right of appeal. I have a fundamental problem with that. However, would anyone like to? Some Hs are suggesting that regulations are off the possibility of deprivation of liberty for an arm-limited period without appeal. We have no reason to expect that that would be the case. Our intention has been clear from the outset that the absconding regulations are subject to specific conditions and any treatment should only be given for a short period of time. In most cases, we would hope that absconding persons would be returned to their original jurisdiction within a few days. We have consulted on this issue. There was no clear consensus from respondents regarding what the relevant time period should be. I will come back to your question about a short-term detention certificate. There is a range of variables involved, for example whether the person is well enough to travel and what transport arrangements have been put in place. Each case would be different and there would have to be a clinical decision on what is best for that particular person. That will be supported by guidance to determine the best course of action. That is why we are saying that it would be inappropriate for the regulations, for example, to specify a time limit. Those are absconding people who are subject to measures equivalent to Scottish detention in their own home jurisdiction. It is not that we are taking them into custody as an initial measure of somebody who is already subject to measures in their country. They have come to Scotland and it has been established that they have absconded and that they are being taken into custody for the purposes of return. I accept that this is extremely complicated, especially since most of us were not involved in the 2015 act. If the committee would like, we could have an informal briefing to set out in more detail and perhaps answer more questions about this. Thank you for the offer and we will consider that. Are they okay in terms of their contributions? Take it away rather than see this go down, obviously, because that is not going to help anybody in terms of the act. Do you want to withdraw? I have only heard from very few members as to what they feel about the regulations. I am about to move on to the debate on the SSI. At this point, we can have the discussion and then it is up to yourself whether you move it or whether you withdraw. I will move on to agenda item 2, which is the formal debate on the affirmative SSI in which we have just taken evidence. I remind the committee that members should not put questions to the minister during formal debates and officials must not speak in the debate. I invite the minister to move the motion. I am grateful for the clarity that ministers and officials have sought to bring, yet it has not given me satisfaction that the concerns that are addressed by fellow committee members and Sam H and their briefing to us have been met. I do not think that an informal briefing around the technical aspects of the 2015 act would assuage that any further. I do not think that what is being asked of the Government in respect of taking these instruments away and redrafting are particularly onerous. I do not think that they will jeopardise the thrust or the spirit of what the Scottish Government is trying to do. I think that, if anything, they will improve the instruments and will offer protection for staff and patients in respect of the observance of human rights and not leave us open to future litigation at a European level. I am obviously speaking to this with the background of professional knowledge. I hear the concerns that some of my fellow committee members have, but we would offer them the reassurance that professional judgment in all areas of looking at the patient is the centre of all care and mental health, is this how all healthcare professionals practice? That this is not as a different change to legislation as perhaps they might feel that it is. That, in actual practice, this is looking at as expediting patient care and providing potentially better safeguards for patient care if we have people practicing outwith guidance currently. Anyone else? Alison? I cannot help but think that this could be improved. There have been concerns raised by the committee this morning about the fact that the RMO can authorise anyone to take an absconded person into custody. Clarity around that prescribed list would be helpful. We have also heard concerns about safeguarding people's rights, no appeals procedure outlined, no access to a mental health officer and no mention of independent advocacy. Other members have also raised concerns about the issue of short-term detention certificates, so I feel that that could be brought back to committee in an improved form. Thank you, convener. Thank you. Anyone else? Johnson said that today we have worked hard to make sure that all legislation is built around rights-based. I just have a feeling that this does not feel right in the sense of rights and the two points that you raised, convener, with regard to challenging treatment and the right to appeal. Those are two areas that we would all appreciate if the SSI was rewritten to take into those two points into account. Anyone else? Minister, in reflecting on what the committee has said, do you still wish to pursue the motion today? I think that Alex Cole-Hamilton is perhaps wanting the whole act revisited and we are not in that position. It is subordinate legislation to bring the act into place. As has been said by myself and my officials, it is absolutely rights-based legislation. Further details will be set out in the code of practice. We are very short of time today. I really need to get you to decide whether you want to withdraw your motion or whether you want to pursue it. I will press the motion. The question is that motion S5M-05753 be approved. Are we agreed? No. There will be a division. I see those for the SSI. Please put your hands up, very obviously. There are seven votes against, two votes for and three for abstentions. Six votes against, two votes for and three for abstentions. Could I suspend briefly to allow the change of officials to accompany the minister? Agenda item 3 is the second instrument that we are looking at today, mental health cross-border transfer patient subject to requirements other than detention Scotland regulations 2017 draft. The minister is now joined by Eleanor Stanley policy officer, Nicola Patterson, head of protection rights unit, mental health and protection of rights division and Fraser Goff parliamentary council, all Scottish Government. I am introducing three instruments covering cross-border issues, two related to cross-border transfers and the third related to cross-border visits. The overall aim is to amend the regulations to reflect the changes in the 2015 act and in the case of the cross-border transfer regulations to improve the operation of the regulations. The 2015 act introduces a requirement that regulations related to the cross-border transfer of patients detained or otherwise in hospital make provision for the named person to appeal against a decision to transfer a patient from Scotland. There are also changes in the 2015 act allowing certain persons to act where there is no named person. Those changes are reflected in those regulations alongside introducing certain other appeal rights and notification requirements based on feedback from stakeholders and the public consultation. The 2015 act also allows for provisions in all three sets of regulations to be extended to patients subject to measures in other EU member states. Currently, there is no process under the regulations for transferring a patient to Scotland from outwith the UK. By way, for example, this would include a situation where somebody from Scotland is taken unwell and detained under mental health legislation whilst in an EU country on holiday and would want to return home to Scotland. By extending those provisions, we aim to fulfil the intention of the 2015 act in providing parity of treatment under the law for patients subject to measures in other EU member states. Similarly, changes to cross-border visits legislation will extend the ability for an escorted visit by a patient, for example, to visit an unwell relative to patients subject to measures in other EU states. In addition to that, there are adjustments to the process when Scottish ministers make a decision to grant a warrant to transfer a patient from Scotland. That includes introducing a fast-tracked transfer process where the patient and any named person agree to such a transfer. That is based on feedback from stakeholders that it would be of benefit to any patient who agrees to a transfer, is eager to transfer quickly and does not intend to appeal the transfer. That change would avoid unnecessary delay where the patient is in agreement with the proposed move. I have set out the most significant changes in the regulations. The bulk of the changes are to the transfer of patients who are detained or otherwise in hospital. Corresponding changes are made where relevant to the regulations concerning the transfer of patients subject to community measures. The changes across the regulations, in particular the cross-border transfer regulations, will improve the effective operation of those regulations to the benefit of individuals who are transferring. Thank you. Any questions from members? No, thank you. We now move on to agenda item 4, which is the formal debate on the affirmative SSI, in which we have just taken evidence. Can I remind the committee and others that members should not put questions to the minister and officials who may not speak in the debate? Could I invite the minister to move motion S5M-05951? Moved. Thank you. Any members wish to contribute? No. The question is that motion S5M-05951 be approved. I will agree. The motion is therefore agreed. Agenda item 5, subordinate legislation, is a third instrument. We are looking at today mental health cross-border transfer patients subject to detention requirements or otherwise in hospital. Scotland amendment regulations 2017 draft. I invite an opening statement from the minister. The statement from the minister. It was covered across the board. It was covered by that previously as well, so let it be. That's fine. If we could make that clear, then that would be helpful. Any questions? No. We now move on to agenda item 6, which is a formal debate on the affirmative SSI in which we have just taken evidence. Can I remind the committee and others that we should not put questions to the minister during formal debates and officials who must not speak in the debate? Can I invite the minister to move the motion? Moved. I invite any members to contribute to the debate. Minister, do you wish to add anything? No. The question is that motion S5M-05950 be approved. I will agree. Okay, thank you. Next item is agenda item 7. That's the fourth instrument that we're looking at today. Mental health cross-border visit Scotland amendment regulations 2017 draft. Again, has that been covered in your statement? Thank you. Any questions from members? No. We now move on to agenda item 8, which is a formal debate on the affirmative SSI in which we have just taken evidence. Again, members should not put questions to the minister and officials who must not speak in the debate. Any contributions from members? Can I invite the minister to move the motion? Moved. Any contributions? No. The question is that motion S5M-05752 be approved. I will agree. Thank you very much. Agenda item 9 is the fifth. Oh, sorry. You've got new officials coming in. Sorry. Suspend to change your officials. Agenda item 9 is the fifth instrument that we're looking at today. The criminal justice and licence in Scotland act 2010 consequential provisions order 2017 draft. Ministers are now joined by Ines V, team leader mental health and protection of rights division and Lindsay Anderson, solicitor of the Scottish Government. Could the minister make a brief opening statement? Thank you, convener. This remaining affirmative instrument, which I present today relates to an amendment to the 2003 act. This provision will help to clarify that nurses are able to use their power to hold patients for up to three hours to allow an examination to take place if the patient is in hospital for treatment as part of a community payback order. The 2015 act will simplify the nurses holding power to support practitioners and help patients know their rights in this situation. The power is currently available in respect of patients in hospital by virtue of a probation order with a mental health treatment requirement. The community payback order was introduced by the criminal justice and licensing Scotland act 2010 and has largely replaced the probation orders. The mental health treatment requirement is rarely used by the courts when making community payback orders. However, it was considered helpful to put beyond doubt that persons in hospital for mental health treatment by virtue of a community payback order can also be detained in this way. To be clear, this instrument does not extend the reach of the nurses holding power provision. It simply clarifies it to reflect the fact that probation orders have been largely replaced by community payback orders. Thank you. Any questions, Alison? Yes, if I may convener. Can I ask the minister, as community payback orders, where the result of legislative change arising from the criminal justice and licensing act in 2010, why there has been such a delay? Well, the 2015 act provisions simplifying the nurses holding power is due to come into force in June 2017. The power is currently described as being available in respect of patients in hospital by virtue of a probation order with a mental health treatment requirement. So the community payback order was introduced by, as I said, the criminal justice and licensing act 2010 and has largely replaced the probation order. So, while the law operates in such a way that the power can already be interpreted as covering the new community payback orders, it was considered helpful to clearly state on the face of the legislation that persons in hospital for mental health treatment by virtue of a community payback order can also be detained in this way. Can I ask what training and training materials will be made available for mental health officers when those regulations come into force? The regulations represent improvements to support practitioners, and not wholesale changes, as they might have seen with the introduction of the 2003 act, for example. Officials have been working with the Scottish Association of Social Workers and Social Work Scotland on the implementation of the 2015 act, including those instruments. We have been providing content and information to support updates to local training, because I think that that is the best environment for the changes to be introduced to practitioners. We now move on to agenda item 10, which is a formal debate on the affirmative SSI on which we have just taken evidence. Can I remind the committee and others that members should not put questions to the minister during formal debates, and officials may not speak in the debate? Can I invite the minister to move the motion? The question is that motion S5M-0594-9 be approved. Are we all agreed? Agenda item 11 is subordinate legislation, and we have four negative instruments. They are a mental health tribunal for Scotland practice and procedure number two amendment rules 2017, mental health conflict of interest, Scotland regulations 2017, mental health patient representation, prescribed persons, Scotland regulations 2017 and mental health certificates for mental medical treatment, Scotland regulations 2017. Any comments from the minister on these instruments? The Delegated Powers and Law Reform Committee has not yet considered these instruments, and the committee will therefore consider the instruments again at its next meeting following that committee's report on the instruments. Could I suspend to allow a change of panel and thank the minister for attendance this morning? Agenda item 12 on our agenda is an evidence session with the Cabinet Secretary for Health and Sport on integration authorities' engagement with stakeholders and the draft budget 2017-18. I welcome to the committee Shora Robison, Cabinet Secretary for Health and Sport, Jeff Huggins, director of health and social care integration and Christine McLaughlin, director of health finance of the Scottish Government. Can you invite the cabinet secretary to make an open statement? Thanks, convener, for the invitation to speak to you today. I welcome the committee's interest in the integration of health and social care and this opportunity to discuss integration authorities' engagement with stakeholders and the budget setting process in more detail. The budget setting process is important, at least because integration authorities now manage more than £8 billion of resources that used to be managed separately by NHS boards and local authorities. A big amount of money, yet at the same time a limited amount of money that we recognise needs to be used more effectively and efficiently. By that, we need to shift resources to more preventative activity and reduce the reliance on reactive hospital-based care, providing the right care at the right time in the right place, which I hope is often as possible in someone's home. However, integration should not be seen to be just about budgets or it is also about improving outcomes for people. That is why I particularly want to focus on stakeholder engagement. That was at the heart of our legislation to integrate health and social care, putting service users at the centre, along with service providers, to make sure that their voices are heard and that they are fully involved in decision-making and planning. We should recognise that integration is still at a very early stage and is still evolving. I think that we have seen a lot of progress on ensuring proper engagement of key stakeholders rather than tokenistic involvement, but acknowledge that we still have some way to go. I think that that was recognised at earlier evidence sessions. For example, the Coalition of Carers noted that they have seen a lot of improvements in best practice development at the same session. Voluntary action in South Lanarkshire highlighted their involvement in strategic commissioning. The strategic planning group in each integration authority, along with locality planning arrangements, is where engagement is particularly important. Those people who know best how services should be delivered will be those who receive those services and those who provide them. This empirical evidence must be supported by data, data that must be readily available and accessible to stakeholders. We are working with NHS National Services Scotland to further develop a link to data set of health and social care data, known as SOURCE, which I understand that my officials have demonstrated to the committee. That will be key to informing future decision-making. Clearly, the open sharing of data will need trust between and across sectors. We are already seeing where that can work with improvements to home care in Highland, where the local Scottish care representative co-chairs the strategic planning group. I am happy to take any questions. I very much appreciate the tone of the cabinet secretary's contribution there, because it is clear that there is still work to be done around stakeholder engagement. Amy Dalrymple of Alzheimer Scotland, in her submission, noted that she attended a meeting of an umbrella group of organisations and spoke to a chief officer of a health and social care partnership. When she was suggesting the important contribution that third sector organisations could make, she said that the response that I got was that it would be very welcome if we were to help communicate why certain decisions had been made, rather than being involved in that decision-making process. Andrew Strong of the Health and Social Care Alliance states that, at the IGB governance level, the relationships between the statutory sector and third sector, the independent sector and people who use supporting services are inherently unequal. He goes on to mention the nature of voting rights and the number of people on the board. Is local co-production achievable if organisations such as the Alliance are suggesting that those relationships are inherently unequal? As I said in my opening statement, there are examples of good practice, but Alison Johnstone has highlighted a few examples of not-so-good practice. Across a number of fronts, given that the life of the integration authorities is still at a fairly early stage, what we are seeing is good practice across a number of fronts within many integration authorities, but it is fair to say perhaps a further journey to travel for others. I think that, in terms of the level of engagement that is the case, and I think that where there has been good practice, that has put stakeholders very much at the centre of planning and decision-making, and it certainly should never be seen as just a route or a method of communicating decisions made by others, that is not the spirit of what was intended at all. Work in progress would be the first to acknowledge that. In terms of the Alliance, the Alliance are a very important partner in working to build the capacity of communities and third sector organisations around this agenda. When the Parliament passed the legislation on integration, it considered carefully some of the structural issues. There was a long debate about, for example, the voting rights of individual members of the board, and its conclusion was that it is only proper for voting rights on the use of such significant public budgets to be held by those members of the boards who are publicly accountable, i.e., the elected members of councils and non-exec members of health boards. That is important. However, that should not mean that the roles of stakeholders are limited to providing the communication channel of decisions made by others. That was not neither was that the intention or the spirit of the legislation. It is important, as the legislation lays out in considerable detail, that IJBs engage fully with stakeholders and partners, and that was made very clear. It is also important that third sector partners who can come from a disparate range of organisations organise themselves effectively to engage in the process. A lot of work and support, and a lot of resources have been put into helping that to be the case. In summary, work in progress, but there are some really good examples of good practice, and what we would want to do is to help to roll out that good practice and to help to address some of the less than good practice. Clare Cairns of the Coalition of Carers States is about other barriers to being involved in that process fully. Some of them are about cash and transport and access to meetings. She says, We hope that Carers would get all their transport and replacement care costs reimbursed, but that is not always the case. Some Carers use their own direct payments when they attend meetings, and that reduces the short breaks that they get themselves. Those are other issues that are stopping people from being fully involved. Perhaps the cabinet secretary could address the question of where should resources and support come from to enable stakeholders to fully participate in local service planning? There is funding available for third sector interfaces, as we call them, that have been resourced. It is about £8 million to the end of March 2018. We would expect integration authorities to ensure that those who are participating are able to do so without detriment. I would be concerned if that is the case. That is something that we would certainly want to pick up with the Coalition of Carers, because people are giving off their time, and if they have responsibilities that make it more difficult for them to do that, they should not be disadvantaged. Jeff, do you want to add in? It is certainly something that we can pick up with chief officers, and we can act on the basis of that to understand how they are meaningfully engaging people. We can certainly work through that. As the cabinet secretary said, there is more than £8 million available for third sector interfaces to March of next year, and then a further £4 million to September. Beyond that, we will need to see how we continue to take that forward. Can I just say something on the first question that you asked as well? Is the £8 million in the £4 million for? That is to support the third sector interface organisations in terms of the local to support to the third and voluntary sector in terms of the engagement with integration. It is for that purpose. A number of the commentators that commented on engagement were national organisations. One of the things that we have seen is the challenges of national organisations that have a Scotland-wide remit engaging with 31 integration authorities, and in terms of what that means in practice. Each of the chief officers has had multiple applications from many of those organisations to spend time. What we are seeing is, particularly with some of the work that we have done through the living wage, though, is that chief officers through the commissioning of local services with local providers, whether they are voluntary or independent, are having to get into quite a different place around strategic partnership and different types of engagement to deliver on things such as the living wage commitment. You may find that the experience will be variable, as you say, but the experience between local, third and voluntary sector organisations might be different from the nationals. Again, that is part of the working through of integration. A key component of that is the localisation of the agenda, the idea that you are building services within communities, not simply building a national idea of what the service is and rolling it out, because the needs of different communities and individuals are very different. It might be helpful to get a bit more under the skin of the local experience, because that will not always be the same as the national experience of an organisation like Alzheimer's Scotland, which are well connected or indeed the alliance. Thank you, convener. Good morning. We still have a very quick supplementary cabinet secretary. You referred to IA's being evolving, and I think that we all recognise that. We took evidence some time ago, I think, where it was made reference to in Highland, and with the lead agency model, it really took five years for some of the fruits to start to show. I just wonder in terms of actually moving towards a genuine co-production, how long you would expect that to take? We want that to happen as quickly as possible, but in reality, there will be those who are already in that space of co-producing and the true sense of it. We have heard a lot of good practice, and some of that has been shared with the committee. In the case of others, they are on a journey, and that will take longer. Our role in the role of the ministerial strategic group, which oversees, is to try and share the best practice and to help to push that agenda. We can do that in a number of ways, through guidance, through resources, through data sharing, through extolling the benefits of co-production. Inevitably, not all partnerships will be at the same speed of achieving that. I guess that, as soon as possible, we will have the short answer, Geoff. I think that the other issue with it is that different challenges require different types of solutions. If you think of some of the things that appear in Glasgow's plan for this year, and I was looking at it in the last few days, they are looking at an assess to admit service in Glasgow hospitals to assess people at the point at which they present. They are probably not going to co-produce that other than with staff. At the same time, if you are thinking about some of the work that we are seeing on the ground around isolation and loneliness, around people's access to a wider range of services like leisure and recreation, at that point you are beginning to have different types of conversation about how people live their lives. You need to think about when you are applying the idea of co-production rather than seeing it as a solution to everything. We are seeing that, because chief officers, maybe slightly more across the rural landscape, are trying to tap into other assets and capabilities within communities and to think about how they can use those to support people, rather than simply thinking of another statutory or independently delivered service, thinking differently about how we meet people's needs. You are seeing a mix of things out there. I wonder if I could ask in relation to the timescales. Time is a flexible phenomenon these days. A generation used to be a long time, but it is not any more. At this point, the development of the new authorities is still at a very early stage, but we have had a year of shadow for two years. What kind of timeframe do you think we need to get all the different integrated authorities up to speed in terms of how they develop alongside the stakeholder? I think that a lot has been achieved within a relatively short space of time of a new organisation, bringing together two large organisations and different cultures. When you think about what has been achieved, for example, let's take the big issue of delayed discharge, where you have a number around a third now of partnerships having achieved delay into single figures. If you take a big issue like that, that is quite an enormous achievement in a fairly short space of time. That is a hard data measurement. Of course, the reports are coming out in the autumn, which will show progress across a number of the key outcomes of which that is one and reducing unschedule hospital admissions. However, you then have the hard data outcomes, but things like the level of co-production that we would want to see captured in the reports in terms of progress made involving stakeholders in a meaningful way that is around shared decision making. I guess it is how do you measure success? The hard data measurement of success will be against those outcomes, but there is a whole range of other things that are perhaps not as hard-edged but are as important in terms of the culture and the way that integrated authorities go about their business. We would expect, as I understand, for some of that to be captured in the reports that are coming in the autumn. We would expect to see that. The other thing that has been interesting when I have been on the ground talking with chief officers and talking with senior managers is in looking at how they are thinking about the community and primary and social care landscape. Conversations with a couple of the chief officers in terms of how they are thinking across how a range of different services provided by different professionals operate across the landscape. I asked one of the chief officers three or four weeks ago when I was out. Who did this job that you are doing about coordinating that landscape before? The answer was actually nobody did. You had a social work department that was managing the social work component of it. You had a primary care commissioner who was managing the primary care and you had a community health commissioner who was doing that. They were effectively operating down lines in terms of the provision of... That is not particularly visible. You should see the fruits of that as time goes on. However, the idea that they are thinking across the landscape about how the different services interact together and the ability to bring together teams that operate differently because they are no longer subject to those single siloed ways of saying things. That is actually quite exciting and quite interesting. It is not visible unless you get under the skin and actually get on and talk to people about how things are different. It is maybe a line in a report but it is of fundamental importance, so what is that different way of thinking about things? There is undoubtedly going to be what there is. We know what huge financial pressures are on the new authorities, so when they are making decisions over services, clearly, given those financial pressures, there is going to be significant service change. How do you see that public consultation and public engagement happening during that period? Is it fair that those organisations are starting on their journey effectively with such financial pressures on them? Therefore, they will take the brunt of any kickback from the community when they largely cannot do anything about the budget that they have been handed to? First of all, the total budgets under the control of integration authorities, covering social care, primary care and unschedule hospital care, are £8.29 billion. Of course, health boards are required to maintain funding at 16, 17 levels plus the additional £107 million funding for social care. The global budget there is not insignificant. That is a big resource, but the important thing about it is how that is spent. In terms of shifting the balance of care, we have been very clear with integration authorities as they have themselves in their own discussions about how you make the best use of those collective resources that can keep people out of hospital by building up community health services and to really see a change in the way that our services are delivered. For the first time, we are seeing real inroads into developing services that can avoid people ending up in hospital in an unschedule care basis. That is a very positive development. They are starting life with a fairly significant resource. I would be the first to acknowledge that in the financial climate that we all live within, it is about making sure that every part of the public sector makes best use of those resources. I think that it is a more efficient and effective way of spending resources to keep people out of hospital when they do not need to be there. We have the best chance of achieving that through the new world of integration. Where service change is required—obviously, not all of that will be in the domain of major service change—some of it will just be about doing things in a different way, developing some of these community services that are demonstrated and have the evidence space that they work. They prevent people ending up in hospital. That is not necessarily in the domain of a major service change. Where there is major service change, the processes for that are well laid out. We would expect the public to be fully engaged with them, but we would also expect the public to be fully engaged with some of the new development. Some of the services that are working to keep people out of hospital have come about through the engagement of local communities and people who are receiving those services. We know that they work very efficiently, whether it is the LC service in East Lothian, where it is being very effective at triaging people and avoiding them going anywhere near an acute hospital by providing those services within someone's home. There has been a lot of public engagement around the testing of those services to make sure that they are meeting people's needs, that they are effective, that they are safe and that they are providing a good quality service. The problem that we are finding as a committee is identifying whether there is a shift in the balance of care and identifying whether actions that are being taken are efficient. It is very difficult for us to find evidence from that. We have heard that time and again from different authorities that they will tell us anecdotally what they are doing, but to try and get them to put figures on things and put numbers on things is extremely difficult. I accept that that is difficult. It is also a very difficult thing to do. We have been talking about it for many years, but, as I said earlier, I think that through the integration authorities we have the best chance of doing that. We have set ourselves some very ambitious targets around the percentage of spend being in community services. That means that the growth of spend in community health services will be at a greater level than those in acute services. We have the annual performance reports and the data that they have agreed to put out there in terms of showing some of that shift in spend. The visibility around that will be greater, but the resources that we have allocated from the Scottish Government is in a direction of travel that will help with the momentum of that, because more money is going into primary care, into social care and into mental health at a higher rate and a higher pace than that that is going into acute services. I acknowledge what you said. It has been difficult to get that level of evidence through clear, straightforward reporting to show that. We are doing a lot of work with the NHS and integration authorities to look at how we can start to see those shifts coming through, not just in funding but in the direction. Feedback is that there is more clarity about the direction that the cabinet secretary has mentioned, but we need to see that flow through in expenditure. From 17.18 onwards, we will be looking closely at how we can look at spend in acute sector in primary care, community care and areas such as prescribing, so that we can understand when there starts to see that shift and if it is at the level that we would expect to see on an annual basis. I agree with you that a lot of it is what people are saying is happening, but I would expect to have better clarity of that through 17.18. Therefore, at the moment, much of that is assertion. It is asserted through funding, if I could put it that way. It is an assertion that that shift is happening and that it will make it better and more efficient because we do not have the actual evidence that it is happening. Would you have some, if I can clarify? I think that probably all of us around the table and probably everyone in this Parliament thinks that that is the right way to go. The problem is that we do not have evidence that it is working. A couple of things I would say that we have set up to be able to do that. By doing things like giving direction about maintaining spend, I think that that is more than just an assertion, because maintaining spend in health and social care integration means that we would expect to see that flow through in this financial year. Just by the very nature of how that needs to be managed to deliver that, there would require to be some shifts in this year. I think that it is more than an assertion that that happens. By putting money into primary care transformation and having investment in new models come through, then that is clearly money that is going to be spent in those areas that would be spent in the acute sector. I think that there is sufficient building blocks for that shift to take place. As we go through 2017-18, we will see the expenditure in those areas and the exact value of it. However, I do not think that it is just an assertion, because I think that there has been enough of a shift in the direction about funding. That is really what I am trying to think about. The money can be shifted. What we do not know is that it is being used more effectively, that is what we do not know. Obviously, we have set the ambition by 2021-22 that we expect to see more than 50% of front-line spending to be in community health services. You are right in that budgets can be set, and we see the budgets being set this year moving in that direction. We then need to track the actual spend. That is the bit that needs to follow. We are absolutely aware of that. The vex issue of care home pledges and public engagement. I know that Mr Huggins will be aware of several in Argyll and Bute. We are feeling around so high that a petition came first to the Petitions Committee and then to this committee about it. The issues are ones that we are all well aware of. There is often a sense that decisions are predetermined. There is a sense that consultation is superficial. There is a sense that information is lacking. To be fair to the IJB, it will take lessons on board, but there remains a gap between the buzzwords of locality planning and co-production and what is actually happening on the ground. The fact is that there is not the public support that we all want if these changes are right and correct and need to go through. One of the witnesses gave evidence to the committee and spoke about real culture change. My fear is that, although integration will take time, things are moving very slowly. How do we achieve that culture change? That must happen. I will hand over to Geoff in a setting that has been far closer to this than I have. I spent a fair bit of time over in our Gail and Bute meeting those directly involved. Even if something that I indicated authority believes what they are putting forward is the right thing, it is important that that is explained properly and why. Time is taken to go out and properly consult, not just say that this is what we are doing, take it or leave it. More importantly than that, to demonstrate what the new services are going to replace what is being replaced are. To be honest, health boards have not always been as good at doing, so integration authorities need to look at the best practice in terms of being able to demonstrate what new services will look like and feel like for those who are receiving them. It was right that they took more time to look at the proposals. Clearly, there are difficulties in terms of the service provision in the care home sector in that area. Geoff, do you want to say a little bit about your involvement? We are talking particularly about some of the services in Campbelltown, aren't we? The Campbelltown one is particularly interesting because what we had there is a care home that has got significant under-occupancy. At the time when I was last over talking about it, it had something like 12 or 13 places occupied out of about 30. Significant issues in respect of the ability of the home to have appropriate staff in place, both because of issues in terms of recruiting within the area but also because of poor ratings that the home had received previously. What we had was a situation where, probably in other circumstances, what would have happened is that the care home operators would have simply given notice to quit and indicated that they intended to close the home and then pass the problem to the integration authority to find rehousing for the 12 or 13 people in the area. That was clearly undesirable for all parties in that that would have required those people from Campbelltown to be moved from Campbelltown and to receive care elsewhere. The integration authority in that space stepped in to have a conversation about how they would find a solution that met better the needs of the people in Campbelltown. That is the point at which things become difficult, because the solution there, which was initially seen as the desirable one, was to find 17 more people to go into residential care in Campbelltown to occupy that and make it value for money. In the same way that we have a desire to shift the balance from hospital to community, we have a desire to move shift the balance from residential to care at home. In that context, the idea that we would simply want to enhance or increase the amount of residential care being offered in an area was not particularly desirable. We have worked through the process with the partnership, but some of the public expectations within that space are not in the same space as the expectations that you said are here for the Parliament of more community. There is an expectation of more residential in that case that had to be worked through. We have identified a solution, the partnership with the assistance of both the council leader and the local MSP have worked through the process to identify how to resolve the issues within Campbelltown to find an appropriate solution that meets the needs of the people there, while also not requiring people to transfer externally. The change that we had on this was, rather than simply having a notice to quit, what we had was a process that resolved this, albeit with some trickiness in that people had different views, but that is part of the process. I do not think that effective and constructive engagement will be that every time something happens, everybody says that that is great that we are doing it. I think that there will continue to be the need to work through different views on things, and we have to be careful not to identify the working through different views and different perspectives as meaning that engagement is not working, because in the end, engagement has worked there. To be fair, there has been a temporary resolution over the course of a year, but I was more interested in a slightly higher level, which demonstrates to me that engagement has to be meaningful with communities. In these instances, I do not think that it has been, and what happens is that the public hear that their local care home is closing and there is a media campaign, et cetera, and it does not work for anyone, to be frank. I am just interested in your lessons that can be learned from those experiences and how we affect this culture change that we all require to take place. Probably the main thing would be earlier engagement when sometimes things happen, sometimes a care home or whatever will find themselves in difficulty, and that can create a whole range of knock-on effects and triggers. It is then about trying to have early engagement when there is a foreseeable problem and to do that in a way that is not about dealing with a crisis and actually have the time, because some of these processes have taken time, but it has been important to take that time to try and reach a better solution. Whether it is the private sector, whether it is the public sector or the voluntary sector, early discussion about potential issues and problems is really important to try and do that in a way that is not about responding to a crisis. The other thing that came out of it was a move away from saying that the change process is being about individual components of the overall service. This is the conversation that we have been having with our Gall impute more generally, is to lift it and think a bit more about how services are applied across geographies. At the point when we are simply talking about this unit of service or this particular component of the service, people who, the community and the public, do not get the full picture of how a range of changes will provide effectively a better or a more cost effective or a more sustainable or a more deliverable service over time. Part of the learning there was about some of the context. The home that we are talking about was one of two homes within the area. Some of the issues also related to how they might be able to employ more people to work in care at home rather than in the residential sector and also about the quality and nature of training and upskilling in the area. We had a series of things that all of which took the solution from simply being about the one particular property to being a decision about the wider environment. That is part of the learning that we have taken from our Gall impute and which we are using elsewhere. It also was about the importance of earlier engagement with elected members and MSPs, because, to be fair, they are the ones who will tend to have the impetus to decide a campaign to retain something. That appears to be something that is common across the piece. It is the challenge to make the case against such campaigns in that situation. Can I just ask one quick follow-up? Moving to changes in medical or clinical care, do you think that medical professionals should have a greater role in stakeholder engagement? Do you think that that is helpful? I think that clinical voices are really important in explaining why sometimes decisions are made. Let's take decisions that are sometimes made on patient safety grounds. I think that the best people to explain that are the clinical voices. When service changes are proposed, clinical voices not just medical voices but clinical voices across the piece are an important component of that, because in explaining how services will be different and, in many cases, will be delivered in a different and better and enhanced way, it is important that that is explained by those who will be delivering the services. If a service is going to be delivered in the community, for example, through primary care or community health services that had previously been delivered in a different way, it is really important that public assurance is given about the quality of that service and therefore those delivering the services are quite often the most powerful voices explaining what it will look and feel like. I think that we do not always utilise those voices in a way that we could. I think that it is important that those voices are heard along with others. That is where some of the problems arise with the realistic medicine agenda, because I think that some people in the community might be willing to put up with a lesser service that is local, rather than a centralised service that, in the eyes of clinicians, is better. That is equally from the public's point of view and the patient's point of view, realistic medicine as well. I think that that is part of the dilemma of this agenda that is being put forward. Inevitably, those tensions will always be there. I would argue strongly that often the services that are being developed will be of better quality and that should always be the driving force. Again, it depends on what kind of service we are talking about. If it is a once-in-a-lifetime thing that someone will receive or once or twice in a lifetime procedure, for example, then I think the arguments are different from something that someone will want to receive on a weekly basis that you would see the difficulties in someone having to travel further for that. Actually, what realistic medicine says alongside the national clinical strategy is that we have the opportunity to deliver a lot of services more locally if we get that right. A lot of services being delivered within primary care, within community health services, in a way that avoids people perhaps having to travel to the hospital. If you look at diabetic care, for example, a very good example is that a lot more of that is now delivered within local community health services that people previously had to travel to hospital to receive. It is a two-way process, but we need to explain the rationale and what the service looks like far better than we do at the moment. We also have a number of questions on the budget issues, so we will move on to that if everybody is okay with that. Colin Smyth. It is a good morning to the panel. When a local authority sets its budget, they set a balanced budget by a certain date and they identify specifically where the savings are going to come for the year ahead. Obviously, a large part of what was previously council budgets are now part of IGBs. A number of IGBs still have not set a budget for the year ahead and a number have set budgets with savings targets, with no detail whatsoever as to how they are going to meet those savings targets. Do you think that that is a satisfactory position and why do you think that IGBs are having difficulty identifying their savings if they are simply efficiency savings? Just to reiterate, we are talking about a total of £8.2 billion of resources at the disposal of the integration authorities. Sometimes it is important to focus on the pot of money that is to be spent rather than just the efficiency savings that are required to be made. In terms of the budget-setting process, a couple of things are a lot better and a lot of progress has been made on last year in terms of time frames and the number of budgets that have been successfully set. There remains some issues, so the six partnerships within Greater Glasgow and Clyde, for example. There remains a legacy issue of £7.8 million of non-recurring funding to be resolved from 2016-17. To put that in some context, those authorities have about £2 billion to spend between them, so £7.8 million to £2 billion remains an issue, but it is an issue that is being resolved in very positive discussions. I am confident that those discussions, with support from the Scottish Government, will deliver resolution to that very soon indeed. The only other one is the Fife partnership, where there are issues around the set-aside budget, which again is being worked through and I am confident that it will be resolved. That is a significant improvement from 2016-17, when 11 of the 31 IJBs had agreed a budget by the end of April. We are now in a position where all have bar the seven. Those seven are working through the issues that they have to work through. In terms of efficiency savings, the public sector as a whole is used to and has for many years, whether it is local authorities or indeed health boards, have delivered efficiency savings. The level of efficiency savings that we are asking integrated authorities to deliver is around 3.5 per cent. Again, we would expect them to be using the opportunity to reform, to deliver service changes in terms of shifting the balance of care, in terms of how they prioritise and resource services that are going to shift that balance, keep people at a hospital, reduce unscheduled care admissions to hospital and the plans that integrated authorities are developing. We are confident that we will deliver that direction of travel. Cabinet Secretary, do you make any reference to those IJBs that have set budgets that have savings targets but no detail whatsoever as to how they are going to meet at least part of those savings targets or simply have figures in their budgets? Why are those IJBs not able to identify those savings having set a budget if those are simply efficiency savings? The savings that integrated authorities will deliver, and some of those will be in-year savings and they will be working through those savings as they progress. Chris Dean is closer to the finance officers who are working through those budgets. She can say something about that, but we are confident that the integration authorities will deliver those savings, some of which will be in-year savings. I think that it is partly the factor that the NHS does not treat the years as entirely standalone, so it is a rolling programme of savings. If you look at the history over the past three or four years, there is always a component of savings that is one of savings, as well as you refer to efficiency savings when you are making a change to a service and that is something that you will have on a recurring basis. Typically, that has run on average a quarter of the total savings, so that situation is not a new one. If you look at that history, both have been able to, in the NHS, achieve those savings in-year, but it is a nature of the way in which services are and budgets are defined that there can be swings on areas that are pressures in-year in areas where the actual expenditure is an improved position on the budgets that you set, given that the budgets are a target that you set at the beginning of the year. It is important to see it in that context. I do not think that there is any integration authority that has a position where they have absolutely no plans to back up those savings that they have got in place, but to not have everything completely and fully identified at the beginning of the year is not an uncommon situation. It is not of itself an indicator that there will not be balance, but it does mean that there is more work to be done in-year to identify those savings. That is where we focus our efforts, is to understand the extent to which there is at the level of risk with those unidentified savings. Also, to work hard on looking at where there are national things or regional actions that can be taken beyond the boundaries of an individual integration authority or an NHS board or a local authority. Can we look then at the actual process that IGBs follow when budgets are set? I mean, the theory behind the budget setting process is that IGBs agree a strategic plan and effectively identify what resources are required to meet that plan and align resources to outcomes. However, what you get in practical terms is that local authorities decide how much they are going to give to the IGB, health boards then decide how much they are going to give to the IGB and then the IGB simply take that money and decide what they are going to spend that money on. Now, do you think that that is a satisfactory process and how would you improve that process? The process has certainly improved over the last year. If you look at some of the issues that were being raised in terms of the budget setting process last year, a lot of work through guidance—Christine has worked very closely with finance officers—to get the budget setting process more into the former than the latter. There is definitely more evidence of integration authorities through the chief officers and chief finance officers being more engaged with the NHS boards and local authorities as part of that budget setting process. What I would say in this financial year is that because we set that clear direction at the beginning about the need to maintain spend, it took away a lot of that negotiation that was there in the first year. That is why it feels like that has been one of the most positively received steps in the 17-18 budget and the development of it, because there is no negotiation of taking off an efficiency saving before you hand over a budget to the integration authority. We are very clearly saying that we expect, in cash terms, to spend as a minimum to be the same as it was in 16-17. My view would be that that took away a lot of what you saw in that first year. I suppose that the other thing that we are seeing is some of the interdependencies between integration authorities and the residual NHS services. If the expectation in 17-18 is a reduction in unscheduled care, which is clearly signalled in the delivery plan, decisions by the integration authority—we would not want them to take them without proper and full discussion with the residual health board on the basis that it is simply saying to the chief executive of NHS Lothian—by the way, we are going to give you 20 per cent less this year. Can you just get on and sort that out? We are not going to quite tell you how we are going to manage your demand for you. We are saying that we are having to work through some of the complexities of the interdependencies because the decisions that are made by the integration authority have implications for the NHS boards in respect of their other services in terms of the composition of what goes on within a hospital, but also just having confidence that, if there is an intention to reduce attendances or admissions, that that can actually be sustained across the year. Having resolved all of those issues in advance of the start of the financial year is probably beyond either boards or integration authorities, and it is more of a continuing conversation as to how they resolve those issues through the year. I think that it is important to see it in that way. We are still working through the process of moving beyond simply seeing resources as continuing to be earmarked on the basis of their historical source or what they were previously allocated for. We had this conversation last time. We were hearing about the expectations from different interests that money that we used to be spent on pharmacy continues to be spent on pharmacy. We are seeing, as part of the process of change, conversations that go beyond simply an efficiency, which is doing something faster or cheaper to actually deciding what you might do less of or where you can take failure demand out of the system. Again, we are also seeing different styles of solution going into the process. Where we are this year in respect of efficiencies is not that different to where we were last year. The consequence of that was that during last year the efficiencies were delivered. We reached the end of the year in the financial state, in the integration landscape that we wanted to do so. It shows that, rather than artificially pretending that you can resolve all those issues before the year starts, resolving some and then continuing to work through the others has been quite an effective methodology. That is fair to say that a lot of it is non-recurring in terms of the same things made very late in the day. In what way improvements have been made, for example, one of the issues raised was that it is okay to put in a figure for savings without identifying where it is because you are doing it on an annual basis. Why are we not in a position where we are allowing IGBs local authorities to have three-year budgets, with the Government setting a three-year budget so that they have the certainty that they can set out a budget over a longer period of time? Why are we not moving in that particular direction? How else do you see the budget process improving? You talk about giving IGBs some more certainty by effectively defining how much local authorities can cut the budget allocation to and where the £107 million, for example, goes to. Does that mean that you see more central direction coming towards IGBs and how they set their budgets? On the three-year budget setting, those are obviously discussions that we will continue to have about how we can give more longer-term certainty. To be blunt, there have been challenges because of the whole Scottish budget setting process was quite late for all the reasons that we understand in terms of the Scottish Government understanding its budget from the UK Government and so on and so forth in terms of the knock-on consequences of the Scottish Government's budget setting timeframe. That has a knock-on effect to those receiving resources. You make an unreasonable point about looking to a longer-term timeframe. That is something that we would want to do and something that we will continue to discuss with partners. We are moving to the longer-time period. I think that part of the guidance is to move to a rolling three-year cycle with integration authorities, which is not dissimilar to the NHS. Similarly with local authorities, although you set a rolling budget for a longer period of time, it is always the first year that is your real target budget and then you would expect to refine years two and three as you go. That is absolutely the direction that we are headed in. Part of that balance needs to be to the extent to which there can be clear assumptions from Scottish Government about the high-level funding that is available. The way that we do that with the NHS is that we agree on a reasonable set of assumptions that the NHS works to. I do not think that it is unreasonable to have a three-year rolling budget for integration authorities, but we all need to recognise that there will be changes to certainly years two and three as we take that kind of process forward. The more that we see of that, the better for everybody. The other thing that I would say to you is that we have good working relationships with the integration authorities, not just to the chief finance officers, but we take feedback from them. It is in our gift to do things like give more direction or less direction where it is helpful to do so. I would like to hear back from the integration authorities about the things that they feel are obstacles to good longer-term planning and areas that they see that they could improve. We will take that on board as we develop the budget for 18-19. However, there is nothing that is really significant that has been raised with me other than the extent to which you can give greater certainty about funding from Scottish Government, but we will continue to work on reasonable assumptions with integration authorities as we go through that. I will touch on the issue of the living wage. Are we yet in a position where people who carry out sleepover shifts are being paid the real living wage, or are IGB's local authorities simply adhering to the HMRC guidance on the national living wage? The commitment that we have given is that, during this financial year in 1718, the sleepover rates will be paid at the real living wage. However, work is on-going, as I am sure you are aware of, around some of the complexities of that with service providers. Some of the service providers have made the point that we need to take time to enable them to, in some circumstances, actually make quite fundamental changes to the way services are delivered. They were concerned about services potentially falling over if that time was not taken. That is why ourselves, with COSLA and the service providers, have taken a cautious approach and a planned approach to making sure that delivering that living wage for sleepovers, as it will be delivered during 1718, is done in a planned, careful way that did not impact on not just the service providers but, more importantly, the service users who rely on those services. Jeff, do you want to add anything? I suppose that the work that we have done, both around living wage and around sleepovers, has revealed a lot about what is going on within the system that we have not perhaps been aware of before, both in terms of the structure and the differentials that apply between different areas across the country. First of all, I think that we have not been entirely aware of how many people were subject to sleepovers and the structure of the care packages that they have had. Some of the work that we have been doing with partners, chief officers and others, is to look at whether the service models in some places are the best service models, so whether sleepovers are being used inappropriately or in ways that could deliver a better quality of service. We have a change programme around that, looking at appropriate service models, thinking about the use of technology but also ensuring that people for whom sleepovers is the appropriate thing get that in a quality way. As we have worked through the process of what the implications are to pay it at the £8.45 level, what we then see is questions coming back to us. We think that we are going to find it more difficult to recruit people to do waking hours if we are prepared to pay people £8.45 to effectively be available on a sleepover basis. Questions about issues around recruitment come out of that, so we are again having to work through how we understand these challenges with providers as well, because at each point where we think that we have resolved something, something else develops as a challenge within it. We will continue to do the work. We have said that we will come back to the outcomes of that work later in the year, but we will look to find a result that meets the needs of both, meets the commitment, but also meets the needs of provider organisations, meets the needs of people but also works within the integrated landscape and the wider social care reform process. I am happy that resources aside for this and have left the door open for additional resources if those resources are shown to not be adequate to meet the commitment that is being made. Those discussions are on-going. I am presuming that the £10 million allocated realistically will not be sufficient to pay the real living wage. That work is on-going. If it is not, more resources will be made available. Part of the work that Geoff has described is the financial costing around that as well. The £10 million was a starting point based on some assumptions. As Geoff said, the complexity of it is more work is done around this issue. It shows that we will guide whether those assumptions were accurate or not accurate, but the door has been left open for additional resources should those be required. That was part of the reason for the structure of the arrangement for 2017-18 when we tried to unpick the data to identify what the marginal cost was. It became quite complex both because of some of the initial work that had gone into meeting HMRC, but also because of different expectations around the structure of service, but also simply being able to cost and evaluate the difference between what was previously like almost single payment packages of maybe £35 or £40 for a night and converting that into an hourly rate. We came into this year with the data-looking distinctly fragile in terms of our ability to say that it will cost that to deliver the 16-17 service in 2017-18 at £8.45 an hour for sleepovers, but we have so many moving parts in that that assessing the full cost is quite difficult. In practical terms, it could be that the amount that has been allocated for 2017-18 is sufficient, but then 2018-19 would be different. When that is achieved, when we have that, can you write to the committee and advise us of that? That would be helpful. Andy, I would like to come in. Miles. Mike, a small point. With children's services not being part of IJBs, what works going on potentially to include that in the future and what impact potentially is there around the pressures that we are hearing with adult services on children's services? Some IJBs cover children's services, so I think that it is about a third. Nearly all integration authorities have children's health services, largely because they are largely provided through primary care, but a third has social care services as well, so it is a mixed picture for other night, a single picture for those. I think that what we would want to do is to work with the integration authorities and certainly within the ministerial strategic group to look at what the benefits or downside and benefits of including children's services have been. If there are advantages that are clearly demonstrated of including children's services, I think that we would want to evidence that and to look at what lessons that might show for those who currently do not. We have not mandated it, but it is something that we would want to continue to work to look at the relative benefits of including children's services. What is the timetable that we are talking about? The analysis is on-going. We will see from the annual reports that the integrated authorities are going to be submitting in the autumn. Those who have children's services within them will do some analysis of what the benefits of that are demonstrating, and we would probably want to do that through the MSG. You asked particularly about financial pressures, and I think that what is instructive is that those areas that children's services have seen additional financial pressures on the children's side, which have then squeezed the services for adults and elderly. If we are thinking about learning disability and autism, a number of the integration authorities that are children's services have had to find additional resources from elsewhere in the budget to support the children's services. I think that you have got to see this as being a set of issues that flow both ways. We had a conversation yesterday between officials about the integration of children's services. It is complex because in many areas, while people are generally in favour of integration, many areas are thinking about integration between children's services and education, as opposed to between integration of children's services and health. There is a question there as to whether either the Parliament or the Government wants to mandate a template or whether it wants to allow for continued local decision as to how they best want to structure, but with a general commitment to working across boundaries, whether those are service-level boundaries or geographical boundaries, to get better value and to get more effective. We are seeing a number of dynamics in there, and it is very seductive for us to say it from our perspective on health, because other people are looking at the question from a completely different lens. On 30 May, we had a discussion about the distinction between efficiencies, savings and cuts in Mr McLaughlin. We will recall the exchange that we had previously on that. In that session, Keith Redpath, West and Batonshire said, There may be some aspects of efficiency in doing things a bit better that mitigate some of that, but the reality is that most people recognise him as potential cut to the level of service, that is why I use the term cuts. Katie Lewis of Don Freech said, There will be some things that we do that you might want to describe as cuts or budget reductions. Calwell Williamson of Shetland said, As budgets keep getting reduced, we might get to the position where we need to make cuts and reduce services. We have discussed the thesaurus used by chief officers in Scotland, which some say cuts, some say efficiencies, some say savings. Do you now recognise from those chief officers that there are cuts being made? I'm sorry, I'm asking Mr McLaughlin first. The overall budget is increasing and not reducing, so there are not cuts overall to health and social care and that's the point that we've been trying to make. Do you recognise what has been said by chief officers who are on the ground operating budgets that they are having to make what they call cuts in their services? They're having to move money around the system and the money has to go farther than it has before. You cannot bring yourself to say that there are cuts in services. I think I've tried to answer your questions transparently as I can. I think that if all budgets stay the same in every line then there'll be no change. Change is required and that will mean— No-one's arguing about change. No-one's arguing about change. What we're arguing about people has been up front with the committee and we have senior officers telling us that on the ground there are cuts being made. There seems to be a gulf between what they're saying on the ground in our communities and what our constituents are seeing day in and day out and what people at government level and senior civil servants are willing to accept. Why can we not just accept that this is going on in our communities? It isn't as black and white as that because some budgets are increasing and some services are having more money spent on them, so if you look at primary and community health services more money is going to be spent in primary care but there might be other services where there's less money. As I say if all budgets stay the same and there's no shift of money then you'll not see the shift in the balance of care. So by definition there will be some budgets that will be reduced and some budgets that will increase and efficiency savings are used in a way to drive that change by ensuring that the resources that are freed up can be invested in the areas that are priority areas because otherwise nothing will change. These are not efficiency savings, they are telling us their cuts to services. Well some services will be reduced and some funding for services will be reduced but other services will have increases in funding. So some services will be cut? Well if we're going to change services and put more money into some services as per the whole discussion we've just had for the last hour and a half and everybody is agreed that is a good thing then clearly other things will have to change and be reduced. You can't spend the same amount of money on everything and therefore that prioritises nothing. So some things will have to change and have less money spent on them in order to spend more money on other things and therefore the priorities in community health services in primary care will see more money being spent on them but other areas will see less money being spent on them and that will have an impact on people, on patients, on people who use the services on the ground. People will see their services delivered in a different way so less people having to go to hospital because more money is being spent in primary and community services I think that's a good thing having people going to hospital less because they're having their services in the community I think is a better service for patients and clearly that is why the direction of travel is in that that way because we want to make services better not worse but that requires us to keep people out of hospital to keep people in the community in their own home for as long as possible and the people will receive their services in a different way I think it'll be better though I don't I don't agree that that will be a detrimental service Of course time will tell whether that is better or not. Anyone else got any final points to make? Okay thank you very much for your attendance this morning and we'll suspend briefly just to change the panel. Agenda item 13 is NHS governance. This is the 13th item on our agenda today and we're going to look at whistleblowing. Can I welcome to the committee Sir Robert Francis QC, Cathy James, chief executive public concern at work, Kirsty Louise Campbell, senior manager of strategy and insight, City of Edinburgh council, Laura Callander, governance compliance manager, City of Edinburgh council, Robert Creelman, non-executive director, NHS Highland and Morag Brown, non-executive director and co-chair of staff governance committee and whistleblowing champion NHS Greater Glasgow and Clyde. I think you'll need a big business car to get all that on it. We're going to move to questions. We've got around an hour so could I please appeal to people to be sure we are questions and answers? Could I begin myself by just asking if you think the system we have in Scotland in relation to whistleblowing is fit for purpose? Who would like to start us off? Sorry, I meant to say that not everyone needs the answer of the question. Yes, Robert. To kick off, go for it. Robin, it is actually... Sorry, Robin, sorry. It's not fully developed yet. It's not fully in place yet. I think to judge it in isolation judges it wrongly. To me, whistleblowing is basically a lifeboat for the culture of the NHS. If the rest of your culture is in place, you should seldom require the lifeboat, but you must have the lifeboat. I'm comfortable with where we are in NHS Highland. We're still refining the system, making changes to it, but generally I'm comfortable with the direction of travel and I think it is very worthwhile. Anyone else like to comment at this point? I would agree that it's a journey that the NHS is going on, both in England and in Scotland, in the sense that a lot of the necessary parts are being put in place, but some of the progress is quite slow. For example, the national officer role is not in place yet, but it's coming. There's thought around the structure of that, so putting in some statutory footing for that role is in stark contrast to what's going on in England, where the role has been put in place as a test to see what best practice looks like, but that has its own problems. The slower progression is because there's planning around it, but I think work on whistleblowing will never be a finished job. It's something that is always going to need adaptation and review and consideration. That's why having a national role responsible for it is vitally important, because otherwise it gets lost in all the other requirements that are put on local organisations. Robin, you mentioned the lifeboat. Certainly my experience of dealing with constituency has come to me as that, as some of them try to clamber aboard that lifeboat, they're booted back into the water. Do you recognise that? I recognise that every system potentially can fail, but I think that we have to start from a position of recognising the differences between the systems in Scotland and England. Whistleblowing in Scotland really took off after the first Ayrshire and Arran about four years ago or so, very roughly speaking, where learning hadn't been shared and there was a lack of transparency in the system. As a result of that, Healthcare Improvement Scotland introduced the Adverse Events programme, which is a national standardised system of dealing with adverse events. That filled a huge gap in the system and greatly affected the culture. As a non-executive in Highland, I was very comfortable after that programme coming in to see our eyes in adverse events, because, to me, it demonstrated a more transparent, open culture where people were less afraid to speak up. We have other things like coming in next year, such as the duty of Canada being open. All those things contribute to the culture of the organisation, as the whistleblowing is the lifeboat. I recognise that some people think that there is confusion initially about differences between things that can be just grievances and things that are whistleblowing. In relation to adverse events, within your organisation, what would be the consequence of adverse events not being investigated? A number of cases, but the one case in particular that I have is where serious adverse events were reported and yet there was a culture of not investigating those adverse events and the person who reported them was absolutely hung out to try. That is the perfect storm of disaster scenario. I am very hesitant to say, because I think that Midstaff's got to where it got because nobody thought it could happen. I will never say that it cannot happen in our system, but I would be absolutely astonished. The people who do adverse events usually come through clinical governance. It is then a convention of about four, depending on the size of the thing, of four or five different experts who are involved. It is very difficult to hush up something like that. I would like to say that the question that you raised about people who have whistleblowns lived experience having been harmful or damaging. We need to recognise that, as Cathy said, that we are at an early stage and we are on a journey. We will seek to improve in our arrangements and significantly in our support to staff. The national officer role could be of great assistance in that, but we need to recognise that people are concerned about being subject of victimisation. They are also concerned that something is done about that. We have to work hard over the next period to earn that trust of staff and public confidence. In relation to the process, my understanding is that, if someone blows a whistle often, the issue is reported. That goes to the board that they work for and can often find its way to the manager that they might be blowing the whistle about. Is that the experience, or does that not happen? Clearly, someone in the organisation from which they work has to investigate that whistleblown. The process is defined in the whistleblowing policy. There is a range of options in the policy for the staff member. The policies that are based on the code of practice that is produced by the whistleblowing commission, which is public concern at work. The initial point of contact can be the line manager, or it can be a manager in a different place, or it can be a variety of people. Obviously, if it had to be done through line management, the process would be devalued. We have a unique arrangement in the City of Edinburgh Council around the governance of whistleblowing disclosures. We have an independent hotline provider who oversees the disclosures and reports that come in through whistleblowing, and they report directly to our scrutiny committee. In ensuring that the whistleblowing report or disclosure is taken seriously and that the investigation is carried out in full, that is our kind of check and balance to ensure that that comes into play. Two weeks ago, when we first discussed this topic in committee, there was a heated discussion about the difference, or the spectrum, between raising concerns and whistleblowing. In the majority of cases, most NHS staff felt empowered to quote-unquote raise concerns, but whistleblowing feels like a different threshold, a different bar to be met. I just wondered if we could have the reflections of the panel on that spectrum, and at what point do they think that it becomes harder for staff to actually direct criticism and perhaps against a colleague or a set of practices over and above the normal day-to-day meeting? Does that feel right? Maybe we should do this differently kind of intervention. Well, if I can speak from my overall experience, as you may know, I'm very keen to try and get away from the term whistleblowing because it covers a huge range of things, some of which not everybody even well-meaning people think is appropriate, and it implies a barrier to speaking up. So, in the ideal world, everything should be a matter of speaking up, being listened to, seeing action being taken. Unfortunately, we know that's not the position. I think to have an artificial, I think any division between what you would call just speaking up and whistleblowing is likely to become productive. What we should be looking at, it seems to me, is what is the reaction to someone who speaks up? Is it at one end of the spectrum victimisation, no action, nothing done? At the other end, the positive end is welcoming of the issue, an investigation of the issue, an action taken, and then, as it were, a thank you to the person who raised the concern. If you are at one end of the spectrum, then clearly alarm bells should be ringing about the nature of the culture in a particular organisation. That would be my general answer. There is, of course, a spectrum, but if he's all speaking up, some people become victims of speaking up, others become the champions of what it is that they have spoken up about. The terminology is really crucial with this, and there is a lot of confusion, but I think the danger with getting rid of the term altogether because it's fraught with difficulty is that you end up endlessly entrenching that negative view about it. We weren't called the whistleblowing charity when we were set up 25 years ago. We were called public concern at work because of that sense that to be a whistleblower is to take a risk. My view is that I don't have a view on what it should be called as a process, but it's a process from the internal to an escalation process within the organisation that's very clearly set out and people are trained about it, and that's starting to change. The training piece around whistleblowing is really gaining momentum, both in the health sector and in financial services, interestingly. The two sectors where there have been huge scandals are starting to get some momentum around this issue, and the external, because of course sometimes it's the external that's seen to be the whistleblowing, and everything we do internally is soft and fluffy and works, but that's not the reality from our advice line. Most whistleblowers try once or twice internally, then they give up. If we want to see this as something that is in the interests of the NHS in Scotland to know about where the problems are, then we need to capture those people, listen to them, act on the concerns and make sure that they're protected. I don't think that the terminology matters that much, to be honest. If I give a fairly simple example, if you're in a clinical setting and someone doesn't wash their hands—one of the nurses or doctors doesn't wash their hands—another member of staff sees this, the normal process would be to record it on a system known as DATICS, which then goes to clinical governance within the health board and it's acted upon. However, if that person does that and nothing happens and the offender still doesn't wash their hands day after day, week after week, then there needs to be an outlet to raise the profile of that, which is currently whistleblowing. If I may convene it, as a Robert talked about those two ends of the spectrum, where there's a concern that somebody who wanted to blow the whistle might end up being victimised to the other end of the spectrum, where they're thanked at the end of the process and things improve and the rest of it. It also struck me that towards that there's a more negative end of the spectrum. There's also this idea—I think that we all have examples of not just in the NHS but in other walks of life as well—that an upward complaint might be met with either disbelief or in an action. If you've got these two barriers to taking action and putting your head above the parapet as they were in blowing the whistle, i.e. the concern of being victimised, which we know does happen, and the cynicism that you'll be believed or even listened to in that regard, how does the panel believe that we can mitigate those very significant barriers and what do we have in place right now and what do you think we could have in place that we don't currently? To start from a general perspective, I believe—and perhaps as I'm a lawyer you might think I would believe—that if someone raises an issue that is disputed, you must have a process that sorts out the facts. So often with people who speak up what happens is that it all descends immediately to personal. Who's to blame for what has been raised? If there isn't anyone, it must be the fault of the person who's raised the issue. We have to get used to the idea that there will be disagreement about what's right and wrong, but we need then to sort out what is right in an authoritative and fair and proportionate manner. Until you do that, you're never going to proceed very far in actually either improving the service or in looking after the person who's raised a no doubt genuine concern. I think we have to recognise that not everything staff raise will turn out to be correct, but they mustn't be discouraged from raising it, and if it is thought they're not correct, then a proper explanation should be given to them, which makes sense to everyone as to why there's a difference of view about it. So that's the process? Well so the process is invest that you have to have a process of authoritative investigation. What it is must depend on the facts obviously, but a process of authoritative investigation, and if it's a potentially serious matter, by people who have the authority to investigate and you are trained to do it. I'm afraid so often what happens is that things are looked into in an entirely impressionistic way, and when that happens and there is no action which satisfies the person who's raised the concern, that's when you begin to get the trouble, and the longer you leave that sore, uncured is it were, the more likely you are to have victimisation, and perhaps even if not more as importantly, a failure to correct the issue that was raised in the first place. So I absolutely agree with that. My concern I suppose is a little bit further upstream and to go in the old outage cultural strategy for breakfast, and my concern is those people who don't even get to the races in terms of actually getting into the process because the culture around them prevents them having the confidence or even intervenes to stop them making a complaint or raising something in the process. It's considering addressing that, is by ensuring that you have mechanisms where you collect the data about what staff feel about things. The NHS staff survey I think is becoming a very instructive tool in relation to staff telling the system we don't believe we will be treated fairly if we raise a concern, we're not listened to with matters of that nature, and those figures can be looked at on a quite individual organisational basis, and we need to get out of a culture in which 51% is thought to be a good result. And just one more, if I may. I mean, I absolutely agree. My concern is that those numbers are what's prompted us to take this on as a committee so we can measure it, but I'm not convinced that we're actively doing something about it. That I think is mine. Briefly on that point, on any of the points Alex has raised, sorry. Just from our experience we introduced our whistleblowing arrangements in 2014, and the point about culture I think is absolutely critical. Over that period of time, we've built a position where people feel they can contact our whistleblowing hotline and our whistleblowing service, be heard, be listened to, and if the concern is not a matter of whistleblowing within the policy or legislation, the matter is still investigated, and the person is giving feedback in a proactive, positive way, same manner for those who make a disclosure that it's anonymously or not, and I think building confidence through the good process that you put in place allows colleagues and staff to feel that their views are being heard more appropriately. Thank you. Alison, oh sorry, sorry, more I'll come before you. Just to say that in terms of what we were doing about it, I think the point culture is very important and the staff governance committee, which I co-chair, we've recently established a subgroup to look at culture because we wanted to address some of those issues and those concerns and the feedbacks from surveys and other areas. I think that we are certainly committed to reshape and refocus our culture and to have as one of our core principles that it's a good place, a good and safe place to work, and I think that that's really important. We're certainly developing a plan to look at what our new modular approach would be in respect of culture and also to learn lessons from where it's worked well because I think that's important and we'll be looking at places like Solford NHS Foundation Trust, which have seen some significant improvements in cultural change. In relation to whistleblowing, yes, we've taken forward a range of information sharing and encouragement through, if you like, through staff news, through insertion and pay, slips in for the future. We do want to look at extending that through roadshows and further sharing, but a couple of measures that I think are well worth exploring are how we share good practice, how we share the good news, where people have reported concerns and we have acted on them and I think that's important and certainly we've had two examples of good practice from my review of our whistleblowing cases this year that we're looking at how we can best share. In addition to that, I think that we need to give some consideration to systems and processes that are quite open and helpful for staff support and where there are a buddy system would be helpful for people or that they have a supporter because of the impact on the individual of taking a very serious concern through whistleblowing. I think that there are a number of areas that we are looking at but also ones for the future that we can take forward. There's a lot of work to be done to review internally. It isn't enough just to look at the numbers because the numbers won't be comparable across organisations. An organisation that has a very high reporting culture may well not have much end-game whistleblowing. An organisation that has no reports should be questioning why they have really low numbers or it might be that actually they've got the balance about right. So you need to look at the survey work, the kind of what's happening in other incident reporting processes, speak to staff about it, have focus groups and I think all too often there's quite a lot of resource involved in that and again when pressures are on the NHS to deal with all sorts of other priorities this can sometimes come to the bottom be at the bottom of the pile but it's where you're going to find out where the problems are so it really needs to be given priority. In terms of governance, as soon as a whistleblowing incident occurs I get notified of that. I get a monthly statement of where we are progress, who the investigating officer is, outcomes eventually, good practice learned, how it's shared. Sir Robert Francis, your freedom to speak up review referred to an NHS England staff survey in 2013 which showed that only 72 per cent of respondents were confident that it was safe to raise a concern and we had a lower figure here in Scotland. Do you think that things have improved? Would you expect that result to be better now with the national confidential alert line? You're testing my memories to what the staff survey result was in March this year. I don't think that it's much better, frankly, and we're still at an early stage in the process but the impression that I got at the time of my report was that the level of staff lack of confidence in the system was pretty dire compared with some other sectors which is slightly surprising but that seems to be the case and a lot of work, positive work needs to be done. One of the issues that I found really quite surprising was how difficult it was for me to find examples of good practice which would seem being successful to put in my report and the reason for that being it can't be that there are no were no examples is that just that the good places just shrugged their shoulders and thought what they would do was a matter of routine and that didn't bother to collect data about it even and I think that we do need far more at a local level of leaders recognising the value of what they hear from from their staff which will encourage not only their institutions but others as well. On the, you know, you suggested that we had to stop people becoming victims of speaking up and blacklisting has been raised as an issue what protections would you like to see put in place? Well I recommended that protection should be extended legal protection outside the particular organisation in which the individual was working so that people applying for jobs elsewhere in the national health service should it should be protected, so they shouldn't be discriminated against when applying for a job because they had a history of speaking up in somewhere else. Our national guardian has in her response to the draft regulations about this has suggested that this should be extended to all employers in other words a whisper going to the non NHS world world should also be bought within the regulations and that's more complicated obviously but I think that that wouldn't be a bad thing. So I recommended that the all said that the protection under the public interest disclosure actually be extended to trainees and students that's been done in part in the sense that in people who are the equivalent of an employer where the trainee is working have are covered by the law it's not clear that the training that the sort of bureaucratic central organisations health education England and so on are all are similarly covered but I think these are sort of technicalities that apply to England I don't know whether they apply to Scotland. Can I ask one more question? There seem to be specific key differences with the city of Edinburgh council model it's does sound quite positive I'd be I'd like to understand if the panel are aware of what is going on in Edinburgh and also if you believe that the national confidential alert line should have further powers to investigate cases. In the national confidential alert line is an alert is an advice line for staff so it's one part of the jigsaw I don't think it was ever commissioned on the basis that expo link which is the private company run the alert line or the reporting line it's actually a reporting line that Edinburgh have so the individual can report to expo link they can report it back into but but it's got an investigation arm as well is that right it isn't that organisation oh yes we have an independent hotline so colleagues are able to independently contact is actually run by a company called safe call they can contact that company directly and where there's a major disclosure for example something where there is a natural pda matter breach of legislation a health and safety or matter of significant concern that independent organisation under policy can step in to investigate and report via the corporate leadership team chief executive and scrutiny committee. So is it the the the the alert line that we run is an advice line so it's legally privileged it works on a on a basis of consent if the individual wants us to report something for them we can take pick that up on their behalf but ultimately what we're trying to do is help them to report it themselves and give them some independent advice so they're not making a disclosure to public consent at work to the alert line they are seeking advice in an absolute confidential space so it's a very very different model and is complementary to the kind of service that Edinburgh have in terms of being a reporting line because if you or a reporting line or an investigation line it's a different model and you need both probably I mean I wouldn't say that that one is better than the other in terms of a model in in financial services many organisations are now looking at reporting lines and advice lines as well so it's it's one part of the jigsaw as opposed to being an exclusive one size one model is better than the other model so this may be why then we have a petition and you know before parliament at the moment calling for a hotline rather than a helpline different and they're complementary I would agree that is a good idea and it's other industries meant more commercial sectors tend to have an external hotline which is says that the someone can speak to somebody in complete confidence and and there's a better as it were guarantee of anonymity whether that's necessary in the health service context depends a bit I need that something as large as the NHS in England you would like to think that it'd be possible to place the service within it but then to matter of opinion thank you I work I'm a member of the pharmacy profession and I am that's a profession which is regulated by the general pharmaceutical council and until very recently I worked in NHS Highland until last year when I was elected for 20 years during the time I worked as a clinical pharmacist I saw the culture within the NHS really transformed into a much more open culture and the duty of counter much more emphasised within the professions and I think that was not as a result when I raised this a couple of weeks ago as one of my colleagues said of there being more things to be concerned about isn't that genuinely was a cultural shift in terms of understanding from some of the really huge and terrible scandals that have hit the NHS of just how important it is for professionals to speak up when they have concerns what I'm wondering is what you think this duty of candor to all NHS staff will add because I wonder if the professions haven't already you know the professions do already have a duty of candor are the professions not speaking up and would extending that to all NHS staff make a difference what difference do you think that will make understanding is that the duty of candor which comes in I think April 18 is actually though the legislation defines a responsible person it's not actually an individual so in the specific case it would be NHS Highland rather than an individual employee would be the responsible person so it's really about I think the public getting total honesty from the organisation that they have an issue with I just say that I of course recommended a legal duty of candor there was already and has been for decades a professional duty of candor but I'm afraid that that didn't help the patients in mid staff at your eye met senior consultant I remember one in particular who would only see me in the confines of his own home in secret because he was so afraid of what he had to tell me when actually what he had to tell me I already knew because other people that told me the other point is that the professional duty of candor puts the entire burden on the individual whereas what is actually required is often an organisational response to the particular issue and the final point I make is that the duty of candor which we need to be careful what we're talking about the legal duty of candor is about candor to a patient about something that has gone wrong but I also recommended which is just as importantly a duty to be open and transparent on the part of the organisation about its work generally in other words that we shouldn't only be told by the board of a hospital the good news but also at a recognition of whatever the problems are that they need to solve and it seems to me that if you have that sort of culture amongst the leadership it becomes much easier for people elsewhere in the organisation to talk about and raise issues of concern I mean I would I would agree entirely and one thing that we see on the advice line is that sometimes that duty to report gets used against the whistleblower or adds to a culture of silence because if somebody doesn't is a bit worried or more than a bit worried is scared about reporting and there's a bad culture in an organisation one brave soul speaks up others then follow when it's clear that the organisation is listening but we've seen cases where because of a duty perhaps in the care industry that's put into a contract to report individuals have them been disciplined for failing to report in the context of a really really bad culture so I think we have to be careful of unintended consequences because it can be used as a stick and I really I really agree professionals definitely should have a duty but be careful about putting that and posing that on all staff across the entire system thank you very much that's really clarified things for me I'm very interested in this idea as you said not just of reporting to the patient when things have gone on but reporting up and I wonder what system is going to be in place to kind of collect and gather because I can only imagine that in some of these really bad scandals what what was happening was that people were speaking about it and reports were being you know concerns were being raised but somehow the big picture wasn't being put together absolutely correct in mid-staffleture many staff were reporting incidents and attributing them to for instance a lack of staffing and then the pushback would be to discourage them from using that as a reason for the relevant incident I think you can only seek to deal with this by by some sort of process of audit inspection or oversight because unless you get under the bonnet of the relevant organisation you're never going to find find find the truth in that regard so that's why you need the transparency to see that not only are they receiving reports but what on earth are they doing about them and that's that's a board responsibility in most places and can I add if I was going to criticise the Scottish system part of that is that numbers of reports to the advice line is what is being considered as whether the system is working that's not what should be looked at it's numbers going to people on the boards numbers that the boards are getting from their own staff numbers that their managers are dealing with and sometimes that can be difficult to track I mean I'm not in you know you can really over bureaucratise this you need your managers to have discretion to deal with things but how do you capture that really really good business as usual organisational operations and that's where a little bit of thinking about how you capture that how you do a review how you structure the review how you ask your staff will pay dividends in the long run and you know that's where the maybe the national officer will have some influence to help boards to do that work it isn't about what's going to an external organisation it's about what's going to the board in terms in terms of reporting to the board we will be getting quarterly reports to the board and periodically we're going to have an in committee session where we do a deep dive into an individual case where we can discuss things that can't be looked at in public because I forgot to mention it that our national guardian is starting this survey of all the local guardians and has just received actually the first so results have not been analysed properly yet but she's discovered that's 25 percent or thereabouts of all concerns that have got to the guardians which of course is only a fraction that one would hope of the total level of concerns are about patient safety and so she will as I understand it be analysing in future as we go forward hearing from the guardians about what has happened about these these concerns and therefore a pick and she is not I emphasise a regulator but she is someone who has access as it were to this information via the guardian network and that is a sort of less bureaucratic way perhaps and setting up an inspectorate to go around actually looking at things. I think there can be a challenge in bringing together a whole lot of information in a very complex and large organisation. I think it is important that we give careful consideration to how we bring together the instant reporting through our data system, significant clinical incidents, whistleblowing reports, complaints, ombudsman's reports, reflections that committees have on individual cases and how we bring together the work of staff governance and also clinical governance and that we get that bigger picture that can then be complemented by specific reviews or surveys or whatever so it's about I think being able to bring together that whole picture is really important. Okay can I ask one final very quick something that you mentioned there the data system and that was something I was very familiar with using when I worked in hospital I understand that that's not something that's used in primary care it's a different system and I just wonder how the two work together. My experience is more with the acute sector and the independent contractors have their means of recording incidents and will use measures but we do through our monitoring of independent contractors we do through clinical governance have access to that information that we certainly ask my colleague who leads on clinical governance to to provide information to the committee on that. Jenny. In terms of NHS culture Morag Brown you spoke about that at the start of your submission and how important that is in terms of developing a culture whereby folk feel they're able to speak out when they can. The committee previously took evidence from the Scottish Ambulance Service and only 20 per cent of staff there felt consulted about changes at their work from the staff survey. Nearly a half hadn't had a staff review in the past year but most importantly in terms of whistleblowing they had the lowest figures nationally in terms of NHS boards was only 31 per cent saying that they felt safe to speak up. So I really want to ask the panel if they're aware of any boards being tackled in terms of staff governance on those issues when it's flagged up in the staff survey. I know that's quite specific so are you aware of any action being taken in terms of these kind of figures? Sorry, not specifically in terms of the ambulance services. No, I know that's quite specific in terms of the ambulance services. It just feels to me that there was quite a disconnect when we took evidence from them previously so I suppose what's the point of carrying out that survey if there's not going to be action at the end of it? Certainly the information from our staff survey along with other indicators and other drivers is what prompted us in staff governance to set up the sub group to look at how we raise shape and refresh our culture. There's also the iMatter survey which certainly in our area and I think commonly across Scotland has had much higher response rates. I think we're at something like 64% response rate on iMatters and that's a much more responsive survey and higher responses. It's more responsive because it's much more immediate feedback to a team and it allows a team and management within that team to basically to reflect and test the temperature of their culture and to work together to change that. So those are the, so yes certainly the information we get from surveys helps us in the big picture large-scale cultural change but also as a matter of managing and responding to and creating open and discursive team cultures then the iMatter survey is very important to that. One of the real challenges for a board is actually knowing the temperature at the front line so I think it's essential. I think this was touched on Sir Robert's report that in Highland we have a thing called the Highland Quality Approach which is a full fat version of lean methodology and it uses phrases like GEM but it's based on the Toyota working principles so part of that the non-executive directors and the board members are encouraged to go on the GEM but irregularly where you do have informal chats with front line staff and take time to actually just mingle with them and hear what they're saying you know it's not the answer but it does help to give you a feeling of the pressures at the front line. Just on that point thank you convener. Do you think there's perhaps capacity there to use that as an example of good practice and share it with other boards in terms of how folk can learn from that in terms of developing that culture that is supportive? Well you know I wouldn't claim that we're unique in that I think we're probably once we've taken it furthest we have seen your staff trained at Virginia Mason Hospital in the States and there's an interchange of staff there so I think we've probably taken a degree follow-on on us but I'm not suggesting for a moment that other boards are not doing something similar. Thank you to the panel for coming along today. The committee received a written submission quoting actually yourself Sir Robert calling into question the independence of whistleblowing champions who are employed by the authorities that the whistle is being blown on. If I can quote here that Sir Robert Francis and his freedom to speak up review following the mid-staff's inquiry stated that these appointments should be seen by all as independent, fair and impartial and that they should not be adept to existing posts. I wonder if the non-execs who are whistleblowing champions with NHS boards if they could maybe comment on how they reconcile their different roles and if they see there are any pitfalls to them being board members also. You know I think it's just implicit in the role of a non-exec. You know if I thought I was a board member to do what the executive board members think I should do then the whole systems failed. You know I'm there to form my own views about something and act on it. I think that that's right and we are appointed by the minister and we have that independence and we certainly should be able to speak up and to challenge it and I think we do. But I can understand why members of the public or people who have had bad experiences elsewhere or whatever could have concerns about that and why there's a public potential for public perception or concerns about independence. I think that the independent national officer can offer some assistance in reconciling with that and as much as there will be the new guidance there will be an opportunity I would think for the independent national officer to monitor and to benchmark boards performance and openness and transparency in relation to whistleblowing, produce perhaps national materials and training for whistleblowers. I think there's also been some consideration as to whether the independent national officer becomes a final stage in the whistleblowing process as a final independent stage and I think there could also be potential in that role to provide a forum for patients in the public around whistleblowing and how it's responded to and its independence when raising concerns but also a forum for staff who've got concerns or had experiences in that area that they would want to talk about. I think that that may well be an area to do that but I'm keen to explore a bit more about your role as a non-execut, non-aboard. How do you convince NHS staff that you are neutral, that you are not part of the system that perhaps they are part of the culture that perhaps they have concerns about? I mean, as Robin said, our appointment process would stress that independence but also in terms of how we are handling the business about how we, I mean, in terms of some of the issues that I've dealt with or some of the scrutiny I've raised the level of investigation, I've highlighted limitations in investigations and I think we have our own personal integrity in terms of being open and transparent and challenging systems. How does that transfer to staff on the ground or how is that message got to them? I think that we were talking earlier about how we develop our communications with staff through our various newsletters, through roadshows, through visibility of non-execut directors, visibility of senior managers and how we convey our openness in the system. I think that that possibly is... You've probably touched on something that does need a bit more explanation to staff. It is explained in the whistleblowing policies, which tend to be relatively standard across all boards, that the whistleblowing champion who's not named in the policy just mentioned they're not part of the investigatory process at all, so they're divorced from it. Our role is actually to oversee process. As part of that I do a kind of exit interview with any whistleblowers to try and find out how the system could be improved. I think that we probably do need to explain a little bit better to staff what are and to emphasise the independent nature of our view of it. How long have you been in that role? Just over a year, I would say. It is a relatively new thing altogether. For yourself, Maureen. Similar way, I think that that's right what Robin is saying as we also need to explain what we're not. We don't actually do the investigations or part of that process. It's an assurance role. That assurance role has only been there for a year? Yes. Well, the whole thing's only been there for a little bit over a year. Can I ask Sir Robert, as I quoted you at the start of this, if perhaps you could share your opinion on the appointment of non-executive directors at board level being the whistleblowing champions? I'm not going to speak about the situation in Scotland, but I'll speak more generally from England. I did not have in mind when I made this recommendation that it should be the same as the role of a non-executive director in terms of a whistleblowing process, because at the time I wrote my report, many trusts had a board director who had a whistleblowing, if you like, as part of their portfolio and oversight of the whistleblowing process. I recommended a guardian because what it seemed to me was you needed someone in every organisation who had the confidence of the staff, who had the confidence of the management and who was able to, where there were problems, unlock the right door to make sure there was a solution. Now, that could be in different organisations. There were going to be different solutions. This was a novel recommendation, so I didn't go very much deeper than that. Every trust in England now has a freedom to speak up guardian, and they come from a wide range of backgrounds. Some are non-executive directors. Time will tell whether that works or whether it doesn't. The concern some people have, and I think we have to look at this, is that, of course, a non-executive director has a corporate responsibility in relation to the running of the organisation, which may be seen by some as conflicting with helping or providing oil to the wheels as a system where that organisation is being challenged, and one can see that. I won't say it's impossible, and I think we need to work that out, but I would emphasise who is the right person to be a guardian may be as much of a matter of their personal qualities and the way they're respected throughout an organisation rather than what position they actually hold in it. I think time will tell. I think that the model in Scotland was deliberately different in that the whistleblowing champion is an oversight role, not an operational role, whereas the freedom to speak up guardian is an operational role. They are in a position where they are expected to help and protect the whistleblower and get the information and the wrongdoing or malpractice addressed and investigated and addressed, so it's a very different role, the freedom to speak up guardian, to the whistleblowing champion. I think there is confusion around where there is a case that hasn't, the perception is it's not been dealt with properly or it hasn't been dealt with properly, where is the top of the tree in the organisation? I think many NHS staff in any organisation would think, well, there's a whistleblowing champion, I'll go to them, and if they then get told, no, no, no, no, no, we can't deal with you, then that undermines the trust very quickly and there's academic research all over the world around this being about trust and it's so hard to build up that trust and so easy to lose it that whistleblowing systems need to be very flexible and have multi channels and not to have barriers and I think that sometimes that sort of protection of the senior person can create the barrier that undermines the system. Just for clarification then, because obviously if you have whistleblowing champions, the perception is that you guys then are the ones who oversee this, but I'm hearing that you don't oversee this, you have no operational responsibility for this, so what is your role? Is to oversee process and in the whistleblowing policies it is certainly in Highland and I think in other words it's quite clearly defined what the role is. So to oversee policy? No, to oversee, sorry, one of the simple, it's process. Oversead the process, sorry. So what authority do you have if the process isn't being followed and how do you know the process isn't being followed? Well, if I wasn't satisfied with process and I haven't been in a very, very few cases in Highland but I haven't been, I've suggested changes and I keep suggesting them that they're implemented. If I get general agreement, I discuss it with the staff governance committee, the chair of staff governance, the chair of the board and then I assume it's agreed and then we do it. So you keep suggesting them, suggesting until it's changed, sounds like there is some resistance to... Well it's a consensual change at the end of the day, so I keep trying to make my point, hoping that other people agree and then we do change the process. So as a whistleblowing champion then, what authority do you have? To try and influence change where I see the process isn't working properly. Two areas. Firstly, Jenny Gilruth mentioned the Scottish Ambulance Service and I have to say one of the most startling figures that I picked up from the papers was this, I think less than a third of staff feel it's safe to speak up and I wondered if anyone had any observations on that given the importance of the Ambulance Service. My other question was to return to the duty of candor and a legal duty of candor and to ask from a technical point of view how is that to be enforced in terms of sanctions and remedy for the people involved. One of the most interesting tensions, it seems to me, is the relationship between institutions or organisations taking responsibility and individuals and you've I think Cathy hinted at that but it strikes me that that's very difficult in terms of a board or some kind of organisation fronting up to a failing and an individual. I just wanted if that could be explored as briefly as possible. I mean I think we would say there is an absolute lack of accountability for those that have meted out retribution or retaliated against a whistleblower. We very rarely see any sanction against decisions that are made where whistleblowers have been treated badly and that can you know if you had a will within the senior leadership of an organisation to take that seriously and do something about it then you change that perception that nothing changes so but you know I don't have a magic bullet I'm afraid you know it is time and again in all of the scandals that we see that hit the public sector private sector accountability is what people see is missing and if we never see any accountability then people will endlessly fail to trust it the system. I think that that's such a big question that I don't think it could be answered if you had all the time in the day. There's also picking up what was said there there's also the issue of unintentional detriment if someone for all the best reasons raises a whistleblowing concern in a ward setting inevitably the relationships whether assuming it's not proved to be correct but it was done with good intention the relationship within that ward area if it was a ward breaks down and the person quite often has to be moved from that area now they have done nothing wrong so we have to find a system that allows us to understand some work is happening with health improvement in England just now to try and find a way of making that happen but we do need to address that situation as well. This is a re-employment scheme in England that's being worked through at the moment I think it's very much in pilot stages but it is it is actually operating. Accountability is important but can I just say one thing about the cultural matter though which is that this is actually about people making the right decisions in the interests of their patients and the NHS generally and clearly victimising a whistleblowing person who's raised a concern is the absolute antithesis of that sometimes they've done that almost because of legal advice there's a sort of adversarial culture that we need to get away from but I do think that we're at a senior level someone has actually proven to have acted in the way that I've just described then there should be a means of holding them to account and past the problem we have is that in our country managers of the NHS are not subject to the degree of regulation that healthcare professional registered healthcare professionals are and I do think in a general term that's perhaps something that needs to be looked at. To pick up on this specific question about people who are having you know whistleblowing aspect in actually looked into and how many people do you feel are currently NHS employees who have been suspended or signed off due to stress or who are on gardening leave and they haven't had that complaint actually looked into but are still being paid by the health service it's an area I've been trying to get numbers on but not had any luck and I wondered just how many people are suspended currently. I don't have specific numbers but we've done a piece of research that looked at the kind of whistleblows journey of a thousand of our cases and it was certainly the case that in the public sector and in the NHS specifically in the health sector more people were suspended in the private sector more people are dismissed now we're not looking at we're looking at a skewed sample because people are coming to us when they're in difficulty with this issue but that's that is a trend that we've seen from the statistics I don't have absolute numbers I'm afraid. Could you provide the committee a Scottish breakdown of that more? I suspect not very easily but I can have a go I'll have a look at what we've got in our system because we're not we're not a regulator anymore we're a small charity that advises individuals so we don't collect that data but I can have a look. Thanks. Questions I would like to raise at the end. Alison Johnston mentioned the issue of blacklisting I've been heavily involved in the issue of blacklisting in the construction industry and I am absolutely off the opinion that some form of this operates within the health service not on a formal basis like it did in the construction industry but if you look at the case of Dr Hamilton who gave evidence who provided evidence to us I was involved in her case she had an unblemished record in the health service as a psychiatrist who's very well respected until she blew the whistle and she eventually lost her job and despite there being a huge need for psychiatrists in Scotland and vacancies all over the place she cannot get employed in Scotland. Is that a coincidence? Are you seeing that happening elsewhere? I think that Scotland's a small place it only takes a HR official half an hour to phone round the 12 other boards or whatever it is and say what you think of this one oh don't take that nothing official nothing written down but the system could easily operate like that is that happening elsewhere? I can honestly answer no not to my knowledge but I can only speak for the board. The second part of that was important not to your knowledge. I can only speak for the board that I work in but you know your hypothesis implies a fairly large degree of collusion if we're talking about relatively senior clinicians here it won't be an HR person that appoints them so you're suggesting that the information on this person I'm not saying it's not happening you know I'm not dismissing what you're saying but it would have to be quite a sophisticated collusion because the appointment panel would usually be three or four people etc it's I find it hard to believe but I'm certainly not dismissing it by I certainly have no person. The example that I would give on that and this is only public domain so I'm not giving away any secrets but there was I think a number of vacancies in one health board area and when this person applied for those vacancies those vacancies suddenly didn't exist anymore. Now these things just lead you to all sorts of conspiracy theories and all the rest of it but clearly seems to be an issue there. I mean I think it does exist blacklisting if you get the label of a whistleblower it's a label of a troublemaker and that's why we've always campaigned to have the kind of provision that Sir Robert recommended around the same rights you have around discrimination, pre-employment you know to say that I've actually not been offered that job the problem with the legal protection is until you're in the job you don't get the right so and there is I think it has been changed or it's it's it's pardon it's on the way to being changed for health only and I imagine that applies to Scotland because it's the public interest disclosure act so it's a piece of it definitely applies in Scotland not in Northern Ireland but I don't see why that isn't applied across the entire piece of legislation the legislation protects all workers why would you say it's only a problem in health I think it's a problem in all sectors and I think there is one other point around the staff computerised records and there's certain niece and whistleblowers looking at how the back end of the staff computerised record is an unofficial way to record information that managers put on their systems I don't know whether it's just England I don't know what the system here is in Scotland but there's definitely a sense that information that is not subject to a subject access request is sitting in those databases that ends up being very detrimental to somebody who's looking for a job elsewhere. Can I just say this that if someone I do not know about the case you mentioned but if someone with that sort of experience was of colour and didn't get jobs there'd be an automatic question mark at least about whether that was racial discrimination and I believe that whistleblowing whatever you want to call it should be treated in the same way and where someone has been refused jobs by a public sexual organisation in particular then there ought to be a reverse burden of proof why is this otherwise perfectly qualified individual not kind of job. Can I ask a final point is there do you any evidence or has there been people whistleblowing who are actually members of boards? We get more the time. Yes. Do you? Yes. From not just health but across all sectors we get board members. I'm specifically talking about health. I would imagine so. I mean I'm talking I haven't got any specific case in my mind but we certainly get board. You're really senior level whistleblowers definitely. You can read my report about a whistleblower gave evidence to me from the board of the care quality commission quite effectively. Okay thank you very much for your evidence to be very interesting this one and we will suspend it. Oh sorry we're now going to private session.