 Good morning and welcome to the 13th meeting in 2016 of the Health and Sport Committee. I would ask everyone at this point in the room to switch off mobile phones as they can sometimes interfere with the sound system and certainly with the proceedings here this morning. I will also ask you to take note that some colleagues are using tablet devices and that that is instead of their hard copies of their papers. The first item on our agenda today is stage 2, day 1, of the Beryl and Cremation Scotland Bill. As agreed by the Parliament, this committee will consider amendments to those parts of the bill, which primarily relate to the disposal of ashes, the meaning of cremation, as well as arrangements for adults and children, and losses during pregnancy. Amendments to the rest of the bill will be considered by the local government committee at its meeting tomorrow. The amendments being considered today start at number 1,000. They are not, however, 1,000 amendments, but there is a lot. The numbering has been used to easily distinguish the amendments that will be considered by this committee from those that will be considered by the local government committee. We will start at section 36 of the bill. I now welcome Maureen Watt, Minister of Public Health, Simon Cuthbock Care, Bill Team Leader, Lindsay Anderson, senior principal legal officer and David McLeish, all from the Scottish Government. Everyone should have a copy of the bill as introduced, the marshal list of the amendments and the grouping of amendments. There will be one debate on each group of amendments. I will call the member who lodged the first amendment in that group to speak to and move to that amendment, and to speak to all other amendments in the group. Members who have not lodged amendments in the group but who wish to speak should indicate in the normal way to me. The debate on the group will be concluded by me inviting the member who moved the first amendment in the group to wind up. Only committee members are allowed to vote. Voting in any division is by a show of hands. I now move to call amendment 1001 in the name of the minister group with amendment 1044. Minister to move amendment 1001 and speak to both amendments in the group. Amendment 1001 provides greater clarity and certainty about what constitutes a cremation. The effect of the amendment is that cremation is the burning of human remains. Where any further processes are applied to the bones that remain, for example, if they are turned into ashes by cremulation, that is also part of the cremation. Importantly, the amendment means that, where burnt bones are not reduced to ashes, the process is still regarded as a cremation. The amendment also specifies that the meaning of ashes for the bill means anything that remains after the burning process, with the exclusion of any metal that remains. Amendment 1044 reflects the definition in the bill's interpretation section, so I move amendment 1001. It is really just to confirm what the meaning is. In the original act, cremation meant the reduction to ashes of human remains and the application and so on. I still think that there is a degree of ambiguity in the amendment that you have lodged today, because it could be taken to mean that the burning of human remains includes one of the following two things, or it could be infer that it may include another process. If it is the latter, I would have thought that it would be better to say in search that the burning of human remains and it may include, because I think that there is an ambiguity in the way that it is worded at the moment. It is not clear whether cremation has to include those additional processes or not, which was, of course, in the original bill that it had to include the additional processes. Here, I think that there is an ambiguity, so I think that it would be better to say and it may include and so on. I agree with what Malcolm Cain said. In evidence, we heard that some religious groups do not agree with cremulation, they agree with cremation. I think that maybe that is what the minister was trying to deal with, but I think that a bit of clarity, while supporting the amendment, is at stage 3 that it does not have to include if that would go against the beliefs of the family of the person who is being cremated. No other members? Minister, do you wish to respond and wind up? What I would like to say is that it was precisely because, in some cases, some religions, particularly Hinduism, do not want the cremulation process, which is why we changed the wording in the amendment. It says where a grinding process is applied, so it does not mean that it is always applied, it just says where that is likely to occur. I think that that is why we used the word where in the amendment. We now move to the question that is that amendment 1001 be agreed to, are we all agreed? The question is then that section 36 be agreed to, are we all agreed? We now move to call amendment 1002, in the name of the minister, group with amendments 1003. 1,004, 1,005, 1,006, 1,007 and 1,008. Minister, to move amendment 1002 and speak to all amendments in the group. Thank you convener. Amendments 1003 to 1007 place various duties and powers on cremation authorities and funeral directors in relation to how they handle ashes. Amendment 1003 specifies that a cremation authority must, before carrying out a cremation, take reasonable steps to ascertain what an applicant would like to be done with the ashes following the cremation. The amendment provides three options, which are that the ashes will be collected by the applicant, that they will be collected by a funeral director on behalf of the applicant or that they will be disposed of by the cremation authority on behalf of the applicant. Those are options that require the cremation authority to do something with the ashes on behalf of the applicant. The applicant may choose to collect the ashes from the crematorium themselves or arrange for the funeral director to collect them. The applicant may also agree with the cremation authority that the authority will dispose of the ashes at the crematorium. Amendment 1004 places a cremation authority under a duty to follow the applicant's stated wishes about what should be done with the ashes. Amendment 1005 sets out the procedure to be followed by a cremation authority, where an applicant or funeral director does not collect ashes as agreed. The cremation authority must take reasonable steps to ascertain the wishes of the applicant again. If the applicant responds and gives further instructions, the cremation authority will be required to comply with those wishes. If the applicant does not make known his or her wishes, the cremation authority may dispose of the ashes in a manner prescribed by regulations. Amendment 1006 sets out the procedure to be followed by a funeral director, where the funeral director has collected ashes from a crematorium on behalf of an applicant, and the applicant does not in turn collect the ashes from the funeral director. In this instance, a funeral director is required to take further steps to ascertain the wishes of the applicant. If the applicant gives further instructions, the funeral director is obliged to comply with those wishes. Where the applicant does not provide any further instructions, the funeral director may return the ashes to the crematorium where the cremation was carried out. Amendment 1007 sets out the procedure to be followed by a cremation authority where a funeral director has returned ashes to the crematorium as a result of the section that was inserted by amendment 1006. In this instance, the cremation authority must take reasonable steps to ascertain the wishes of the applicant about how the ashes should be handled. The applicant can either arrange to collect the ashes or ask the cremation authority to dispose of the ashes for them in a way that is set out in regulations. The cremation authority must comply with any such instructions. Where the applicant does not respond or give further instructions, the cremation authority may dispose of the ashes in a manner prescribed in regulations. This group of amendments provides a clear process for how ashes are handled. At each stage, the applicant will be made aware of his or her choices and what will happen if the ashes are not collected as arranged. At each stage, the applicant is given an opportunity to specify what he or she wants to happen to the ashes. While cremation authorities and funeral directors are under duties to attempt to contact the applicant at various points, they have a power rather than a duty to dispose of ashes where the applicant does not provide further instructions. That will provide cremation authorities and funeral directors with discretion about when they choose to dispose of ashes and when they choose to retain them. Amendment 1008 gives ministers a power to make regulations about the handling of ashes. Among other matters such as regulations may make provision for matters such as time periods for the collections and retention of ashes and notices that must be given to applicants about those processes. Finally, amendment 1002, a very small amendment, removes subsection 1C from section 37. The effect of that is that regulations made under section 37 will not include provision about the disposal of ashes by cremation authorities. Such provision is now placed on the face of the bill and supplemented by regulations under the section inserted by amendment 1008. At the moment, a lot of funeral directors have left with ashes for quite a long time. Is there any time limit to be put in regulations when the funeral director hands back the ashes? Welcome to the bill. Do you have an opportunity, minister, to respond in the winding up of the debate? I just want to welcome the fact that this amount of detail is being put on the face of the bill, whereas originally it was to be in regulations. I know that sometimes there are debates about what should be in regulation and what should be in the face of the bill, but in this case I think that it is desirable that it should be on the face of the bill. The other thing that I welcome is the centrality of the wishes of the applicant, which is repeated in almost all of these amendments. That is a very important principle, which will come up later this morning as well. Any other members? Minister, to respond in the winding up. I thank Malcolm Chisholm for his comments. We listened to all the committees and what they have said in their stage 1 reports. In terms of the length of time, there will be a limit, but that will be agreed in consultation with all the bodies involved in this. Thank you, minister. The question is then that amendment 1002 be agreed to, are we all agreed? I now call amendment 1047 in the name of Malcolm Chisholm group with amendment 1048. Malcolm Chisholm, to move amendment 1047 and speak to both amendments in the group. I am sure that everyone who has followed the course of the bill and indeed all the events that preceded it will realise the centrality of the issue of ashes for everyone, but those amendments, of course, particularly refer to loss during pregnancy. It may be that I should have specified that in those amendments, but certainly that was the issue that we were looking at in this particular committee. The parents who had endured suffered losses during pregnancy. The main issue obviously that came up was the fact that they wanted to recover the ashes and they wanted that whole process of ashes being maximised in terms of the collection of ashes. The First Amendment relates to what is written on the forms. There was a lot of debates about what should be on the application forms, whether they should be a standard form or various forms. Everybody who gave evidence was most concerned that the policy memorandum referred to the fact that ashes might not be recovered. There was unanimous agreement that there should be wording to the effect that it is expected that ashes will be recovered. I thought that it was desirable to put that on the face of the bill following the same principle that the minister followed in relation to the previous amendments. That was to address a concern that was raised with us on several occasions during the oral evidence. The second issue, in a sense, is related to that. How do we ensure that the maximum amount of ashes is recovered? I was struck by one of the written submissions that we received. It was sent in anonymously, but perhaps I can read a little bit from that submission. The person, whether it be a man or a woman, said that we believe that standard processes and equipment, including specialist infant cremator, should be used in every crematorium to give a consistent chance of recovering ashes from each cremation in every part of Scotland. We understand that there is still no guarantee of ashes, but the knowledge that an approved approach has been applied would remove doubt and provide reassurance. The proposal here is that there should be something in the code of practice that relates to that. I believe that the minister herself has amendments to abolish the section of the bill that relates to code of practice and substitute it with codes of practice in various parts of the bill. To get around that problem, the amendment was couched in the form that it is in. It is a new section, rather than an amendment to the section that is currently there on codes of practice. The parents who gave evidence to us would, in general, be supportive of those two amendments, because both of them are seeking to ensure that the maximum amount of ashes is recovered. Dennis Roberts My understanding is that the inspector of cremations would carry out an inquiry or investigation in respect of a case where no ashes were recovered to ascertain why that was the case. I do not know whether that would help to answer the issue for Malcolm. It really is just that, on those rare occasions where ashes may not be recovered, my understanding is that the inspector would find out the reason for that. No other members. Minister Thank you, convener. Amendment 1047 seeks to expand the enabling power in the bill, which will allow ministers to make regulations about applications for cremation. We believe that the bill already provides sufficient powers, which will allow ministers to make provisions about the duties of cremation authorities, including how they are managed, operated and maintained, as well as the form of applications for cremations. Dennis Robertson is correct that the inspector of crematoria will be involved if no ashes are available. The policy memorandum has been superseded by new policy, including a code of practice issued recently. The expectation is that all ashes will be recovered. In what Malcolm Chisholm said, we now see trees, baby trees and a higher temperature of cremations to make sure that the ashes are recovered. Amendment 1048 is unnecessary because the Scottish ministers have already issued a code of practice dealing with this very matter, recommending methods of maximising the recovery of ashes. Further tomorrow, I will be inviting the local government and regeneration committee to agree to my amendment 91, which would require future codes of practice for cremation authorities to be laid before and approved by the Parliament before being issued. I would ask members to reject both amendments. I thank the minister for those words. In a sense, I was laying the amendments in order to get those particular issues highlighted. I think that the fact that the substance of 1048 is already in the code of practice according to the minister does reassure me. In relation to amendment 1047, I think that that is already in the code of practice that I am reassured by. There is always a balance between what is on the face of the bill and what is in regulations, or indeed a code of practice. I am not entirely clear what the status of a code of practice is in terms of what its legal status is in terms of what happens if somebody does not obey the code of practice. I suppose that that is the only remaining question that I have and why it might be preferable to have it on the face of the bill. However, I will leave it at that point as far as the committee goes and may introduce something but probably not at stage 3. The member is seeking to withdraw amendment 1047. Does any member object? No. As I have withdrawn, I will move to call the next amendments, which are amendments 1003, 1004, 1005, 1006, 1007 and 1008, all in the name of the minister and all previously debated. I invite the minister to move amendments 1003 to 1008 on block. Does any member object to a single question being put on amendments 1003 to 1008? No member has objected, so the question is that amendments 1003 to 1008 are agreed, are we all agreed? We now call amendments 10048 in the name of Malcolm Chisholm, no, it is not moved, it was not moved. We still have to call the amendment, do we? We call amendment 1048 in the name of Malcolm Chisholm, which is already debated with amendment 1047. The member is not moving. Does any member wish to move the amendment? No, thank you. The question is then that section 46 be agreed to, are we all agreed? I now call amendment 1099 in the name of the minister group with amendments 1010, 1011, 1012, 1013, 1014, 1015, 1016, 1017, 1018, 1019, 1020, 1030, 1045 and 1046. Minister, to move amendment 1099 and speak to all amendments in the group. Amendments 1099 to 1016 are minor amendments in nature and remove any reference to stillbirth or stillborn child from section 47 of the bill. This is a result of discussions with NHS colleagues and following further policy development in respect of the way in which arrangements for stillborn children are made. Those amendments mean that section 47 of the bill now refers only to children and other amendments will introduce new sections on stillbirth. Amendments 1017 to 1020 insert new sections into the bill to set out the procedures to be followed following a stillbirth or a post-24-week termination. Amendment 1017 is about in the case of a post-24-week termination. The woman who experiences the termination may choose to make her own arrangements or authorise the health body to make them on her behalf. Subsection 5 of the new section allows the health body to make arrangements for the disposal of the remains. That subsection has effect where the woman informs the health authority that she does not want to make the arrangements herself, is unable to make a decision or does not inform the health authority of a decision. The effect of that subsection is to ensure that the health authority may make the arrangements for the burial or cremation of the remains, even where the woman has given no indication of her wishes. Amendment 1018 provides the process for making the arrangements for the burial or cremation of a stillbirth. Where a stillbirth occurs, the bill provides that the nearest relative of the stillbirth has the right to instruct the disposal of the remains. The amendment sets out a list of nearest relatives for this purpose. In the first instance, the nearest relative is defined as a parent of the stillborn baby. If neither parent is able to make a decision about the disposal, the right then moves to the next nearest relative on the list and so on until a person is able to make a decision. As well as making the arrangements themselves, the nearest relative is also able to authorise the health body to make the arrangements. The amendment requires the health body to record prescribed information in the way prescribed under this section. The amendment sets out the process by which the right to instruct the disposal will move from one nearest relative to the next, including specifying circumstances in which a nearest relative is to be discounted, for example, where he or she is under 16 years of age. The amendment also defines a health body for the purposes of this section. Amendment 1019 sets out the steps a health body must take, where it is authorised to make arrangements for the burial or cremation of a stillborn child by virtue of the new section that was inserted by amendment 1018. A health body may make arrangements for the remains to be buried or cremated. In the first instance, the health body must wait seven days between being authorised and making of the arrangements. That is to allow the person who authorised the health body to change their decision. However, the amendment allows the person who authorises the health body to indicate that they do not wish to wait seven days. That means that there will be no delay where burial has to take place quickly for religious or cultural reasons. Amendment 1020 provides health bodies with a general power to make arrangements for the burial or cremation of the remains of a stillborn child where it appears that no other arrangements are being made. Other amendments provide a process for making such arrangements, but in cases where, for whatever reason, no arrangements are made, the amendment allows a health body to make those arrangements. Amendment 1030 and 1046 reorganise the definitions of health authority, health board and independent healthcare service by removing them from section 50 of the bill and putting definitions for those last two expressions into section 75. The bill's general interpretation section, the definition of health authority, is no longer needed. Amendment 1045 changes the meaning of fetus to include embryo. That will ensure that provisions relating to pregnancy loss include those at the embryonic stage. I move amendment 1099. Thank you minister. No member wishing to enter that debate. Minister does not want to add anything. The question is then, amendment 1099 be agreed to, are we all agreed? Thank you. I now call amendments 1010, 1011, 1012, 1013, 1014, 1015, 1016, all in the name of the minister and all previously debated. I invite the minister to move amendments 1010 to 1016 on block. Does any member object to a single question that we put on amendments 1010 to 1016? No. No member has objected. The question is then, that amendments 1010 to 1016 are agreed to, are we all agreed? Thank you. The question is then, that section 47 be agreed to, are we all agreed? Thank you. I now call amendments 1017, 1018, 1019 and 1020, all in the name of the minister and all previously debated. I invite the minister to move amendments 1017 to 1020 on block. Does any member object to a single question that we put on amendments 1017 to 1020? No member has objected. The question is then, that amendments 1017 to 1020 are agreed, are we all agreed? Thank you. I now call amendment 1021, in the name of the minister, group with amendments 1022, 1023, 1024, 1025 and 1026. The minister to move amendment 1021 and speak to all amendments in the group. Thank you minister. Thank you convener. The overall effect of amendments 1022 to 1024 is to amend section 48 so as to require a person who is making a decision about the disposal of the remains of a deceased person to have regard so far as is known to the person to do the deceased's religion or beliefs when choosing burial or cremation. Section 48 already requires the person to have regard to any wishes about the method of disposal expressed by the deceased as far as they are known to the person. Amendments 1021 and 1025 make minor drafting adjustments of sections 48, 1 and 49, 1 b of the bill. Amendment 1026 removes references to making applications to a sheriff. Those are no longer relevant because of changes to the process brought about by the Court Reform Scotland Act 2014 by summary application. I have no members wishing to participate at this point. Minister, nothing further to add. The question is then amendment 1021 be agreed to. Are we all agreed? Thank you. I now call amendments 1022, 1023, 1024, all in the name of the minister and all previously debated. I invite the minister to move amendments 1022 to 1024 in bloc. Move done bloc. Does any member object to a single question being put on amendments 1022 to 1024? No objection. The question is then amendments 1022 to 1024. Are we all agreed? Thank you very much. The question now is that section 48 be agreed to. Are we all agreed? I call amendment 1025 in the name of the minister, already debated with amendment 1021. The question is then that amendment 1025 be agreed to. Are we all agreed? I now call amendment 1026 in the name of the minister, already debated with amendment 1021. The question is then that amendment 1026 be agreed to. Are we all agreed? The question is then that section 49 be agreed to. Are we all agreed? Thank you. I now call amendment 1027 in the name of the minister, grouped with amendments 1028, 1029, 1031, 1032, 1033, 1034, 1035, 1036, 1049, 1037, 1050, 1038, 1039, 1040, 1041, 1042 and 1043. Can I point out at this point that if amendment 1036 is agreed to, I cannot call amendment 1049. Minister, to move amendment 1027 and speak to all amendments in the group. Thank you, convener. The overall effect of this group of amendments is to strengthen the process a health authority must follow when a woman experiences a pregnancy loss of 24 weeks gestation or less. Amendment 1027 adjusts the drafting of the bill to make clear that this section applies in the case of pregnancy losses occurring up to and including 24 weeks gestation. Amendment 1028 ensures that where a woman who experiences a pregnancy loss authorises another person to make arrangements for the disposal of the remains in a particular way, that person must make the arrangements in the way specified by the woman. Amendment 1029 ensures that as soon as a woman makes a decision about what she would like to be done with the remains of a pregnancy loss, a health authority must record that decision and take reasonable steps to secure the woman's signature in relation to the decision. Amendment 1031 relates to situations where a woman changes a decision that she has made under section 50. The effect of this amendment is to provide legal certainty that the new decision that the woman makes is to be treated as though it were a decision made under section 50. Amendment 1032 addresses a potential gap where a woman authorises a person to make the arrangements for the disposal of the remains and that person then asks a health authority to make the arrangements. The effect of this amendment is to require the person to specify that the health authority must make the arrangements in the way specified originally by the woman. That will ensure that the woman's wishes are carried out. Amendment 133 ensures that where a woman chooses to make her own arrangements for the burial or cremation of the remains of a pregnancy loss, the health authority will give her the remains. Similarly, where a person authorised by the woman to make the arrangements wishes to make his or her own arrangements, the amendment ensures that the health authority will give them the remains. Amendment 1034 makes a drafting change to provide clarity about the process that a health authority will carry out, replacing a reference to disposing of remains with a reference to making arrangements for their disposal. The adjustment better reflects the actual process where the health authority will make arrangements for the disposal but not carry out the disposal itself. Amendment 1035 allows a person who authorises a health authority to make arrangements for disposal to specify that they do not wish the seven-day waiting period to apply before arrangements are made. That will allow the remains to be buried or cremated as soon as possible and ensure no unnecessary delays where burial is required to take place quickly for religious or cultural reasons. The amendment will not require a person to indicate why they do not wish the seven-day period to apply. Amendment 1036 allows a health authority to take various steps when no arrangements have been made at the end of the six-week period from the date of a pregnancy loss. Subsection 2 places the health authority under a duty to consider whether it would be in the woman's best interests to contact her to try to ascertain what she wants to happen to the ashes. The amendment is structured in this way to reflect the wide variety of circumstances that might have led to this point. For example, a woman may not yet have been able to reach a decision about what she would like to happen to the remains. In this instance, the health authority may continue to support the woman to make a decision. The amendment does not place a timescale on this outcome. In other circumstances, however, a woman may have given no notice of what she would like to happen to the remains and have had no contact with the health authority since the loss occurred. In this instance, the health authority may conclude that the woman has indicated that she does not want to be involved in the process and may therefore choose to make arrangements for the disposal of the remains. Subsections 2e and 2f provide the health authority with the power to make arrangements for the disposal of remains where no decision has otherwise been made. The amendment places considerable emphasis on the health authority's judgment of a particular situation, in particular where the health authority has an on-going relationship with the woman and knows that she is still trying to reach a decision about what should be done with the remains. The health authority is under no obligation to make arrangements for the disposal of the remains. The health authority will have been involved since the loss occurred and it is appropriate that it is given flexibility to act according to a variety of situations that might occur and require different responses so that the best outcome is achieved in each instance. Such decisions will be based largely on the health authority's relationship with the woman. The Scottish Government will provide guidance to health authorities to support the operation of the process. Amendment 1049, in the name of Malcolm Chisholm, seeks to allow a health authority to make contact with a woman who has experienced a pregnancy loss about arrangements for the disposal where arrangements have not been made within the initial six-week period. It would require a health authority to seek a woman's use about disposal and to give her more time to make the decision about arrangements for disposal should she request it. I accept the principle behind this amendment, which is why I brought forward my amendment 1036. It is built around a woman's best interests, which will ensure that health authorities have to seek a woman's views where arrangements for disposal have not been made after pregnancy loss and to give her time to come to a decision about it. As a result, amendment 1049 is necessary and I invite the member not to move the amendment. Amendment 1037 allows a health authority to discuss options with a woman where it is known that a pregnancy loss will occur but has not yet happened. It can be beneficial for the woman to consider what she would like to happen to the remains before the loss occurs. This amendment allows a health authority to discuss these matters before a pregnancy loss occurs but does not require that it does so if it does not believe that it would be in the woman's best interests to do so. Amendment 1050, in the name of Malcolm Chisholm, requires that registers kept by health authorities in relation to pregnancy loss must be kept electronically. I fully accept the principle behind this amendment. I have brought forward amendment 128, which will be considered by the local government or regeneration committee tomorrow. That will have the same effect as amendment 1050 but will also go wider by requiring that all information to be kept under the bill must be stored in electronic form. Amendment 1050 is therefore, I do not think, necessary and I invite the member again not to move the amendment. Amendment 1039 and 1041 remove the power to create offences from the regulation making power in section 55. Amendment 1043 sets out offences in relation to registers kept by health authorities in relation to pregnancy loss on the face of the bill by inserting a new section after section 55. Amendment 1040 inserts a new provision to require health authorities to keep registers about pregnancy losses indefinitely. This is consistent with the approach taken to other registers made under the bill. Amendment 1042 provides a definition of health authority for the purposes of this section. Amendment 1038 inserts the word or between subsections 2a and b. This is a drafting adjustment and provides drafting consistency with other parts of the bill. Amendment 1027 Thank you, minister. Malcolm Chisholm, to speak to amendment 1049 and other amendments in the group. I will deal with amendment 1050 first because I think that has been dealt with by the minister in terms of her own amendment being lodged tomorrow. Assuming that that is going to be passed then I certainly have no need to move amendment 1050. I am not so sure about 1049. My starting place for this was a paragraph in the minister's speech in the stage 1 debate, which I am sure she will not mind me reading out. In setting out what will happen after a pregnancy loss, the bill ensures that the woman who has experienced the loss is at the centre of the decision making process. That is the first principle. That is my words there. I intend to lodge a stage 2 amendment to further support an even more person-centred approach to deciding what should be done with the remains of a pregnancy loss. That will ensure that no woman is ever rushed into making a decision and will provide extra flexibility where a woman needs more time to decide what she wants to happen. The more time issue for me is the second principle. I heard what the minister said but I was struggling when I read her amendment 1036 to find any specific reference to a woman expressing the need for more time. I remain to be persuaded about that. In my particular amendment, I made it quite clear that if the woman informs the appropriate health authority that she requires a further period to make a decision, the authority must take such steps, as it considers necessary, to accommodate that request. I do not see that dealt with in the minister's amendment, because the principle here is quite rightly that the minister lodged 1035 to ensure that everything could be finalised in less than seven days, if that is what the woman definitely wanted. I welcome that amendment. The other side of the coin is that it should be longer than the six-week period if the woman wants more time. That was the first point. The second point is that I have some concerns about the words about the best interests of the woman. Obviously, we all want to act on the best interests of the woman, but who is to decide that? I think that people always get a bit suspicious when people are seen to be acting on behalf of others without asking them. That came up in a different context in the bill last week in terms of the duty of Canada, in making sure that people are always asked rather than assumptions made in a paternalistic fashion. I am just a bit suspicious of the wording about whether we will contact the woman if we think that it is in her interest to be contacted. I think that it is a bit more straightforward to say that the woman will be contacted. One of three things is arrangement for the disposal of the remains in accordance with her wishes. If she does not express a wish to have an influence on that, it can be done without regard to her position since she does not have one. Thirdly, she is asking for more time. I think that my amendment deals with the fundamental principles of the centrality of the woman's view and explicitly allowing for a longer period of time if that is what the woman wants. I remain to be convinced that all that has dealt with in amendment 1036, so I will move amendment 1049. Any other amendment? The name is Mellon, and then Bob Doris. Just to say that, when I came to this meeting, I couldn't really distinguish between the two amendments very clearly, but having listened to what has been said by the minister and by Malcolm Chisholm, I do think that Malcolm Chisholm's amendment is really more explicit and makes sure that the woman is contacted. I think that I would rather support Malcolm Chisholm's amendment. Bob Doris. Facts, convener. I wasn't good at the contribution about whether the minister's amendment or Mr Chisholm's was preferable. I suppose that my take on that would be I would support the Government amendment and there is still a stage 3 process if there is greater clarity to be needed, so I would support the Government amendment at this stage. The substantive contribution, but a brief one, convener, I wanted to make was in relation to amendment 137, which refers to where a pregnancy is expected to be unsuccessful in the early stages and having a conversation with the parents about how they would like their unborn child to be disposed with. I think that through constituency case work that I have had and experience that I have had with family and friends, that is a significant step forward in how we deal sensitively with the early pregnancy loss and I very much welcome that. I think that I would also put on record that it is a tough shift being NHS front-line staff but there is always a need to reinforce the sensitivity that is needed when there is a pregnancy that is deemed to be failing and people go to accident emergency or wherever they go with front-line NHS staff and it is not always early pregnancy clinics and it is not always maternity services and just the need that when we pass this legislation to make sure that we have also got the awareness-raising level with NHS front-line staff for how they should deal with that situation as well but I think that that is a significant step forward what we have from the Scottish Government here today dealing particularly sensitive with these situations. Thank you convener. I think that we just need to remember that this section applies in relation to women where the relevant period has expired. Throughout the amendment, I notice that it is always saying the best interests of women, the best interests of the best interests of the women and it is based on the authority's relationship with the women and where the woman is still involved in the process, it is based on her view entirely but the woman may have indicated that she does not want to be involved or has not given a view and it may be in the best interests of the woman, it might be too painful that she is contacted again and I think that this amendment reflects that. The question is then that amendment 1027 be agreed to, are we all agreed? Now call amendments 1028, 1029 and 130, all in the name of the minister and all previously debated. I invite the minister to move amendments 1028 to 1030 on block. Does any member object to a single question that we put in the amendments 1028 to 1030? No member has objected, the question is that the amendments 1028 to 1030 are agreed to, are we all agreed? The question is now is that section 50 be agreed to, are we all agreed? Now call amendment 1031, in the name of the minister and all previously debated with amendment 1027. The question is then that amendment 1031 be agreed to, are we all agreed to? 1, suits 1, agreed to, agreed. Amendment 1032, in the name of the minister, is already debated with amendment 1027. The question then is, will amendment 1032 be agreed to, agreed? The question then is that section 50 is agreed to, agreed? I now call amendment 1033, in the name of the minister, already debated with amendment 1027. Minister to move formally. Moved. Thank you. The question is then that amendment 1033 be agreed to, are we all agreed? Yes. Thanks. I now call amendment 1034, in the name of the minister, already debated with amendment 1027. Moved. Thank you. The question is then that amendment 1034 be agreed to, are we all agreed? Yes. I now call amendment 1035, in the name of the minister, already debated with amendment 1027. Minister to move formally. Moved. Thank you. The question is then that amendment 1035 be agreed to, are we all agreed? Yes. The question now is that section 53 be agreed to, are we all agreed? Yes. Thank you. I now call amendment 1036, in the name of the minister, already debated with amendment 1027. Can I remind members that if amendment 1036 is agreed to, I cannot call amendment 1049. Minister to move formally. Moved formally. The question is then that amendment 1036 be agreed to, are we all agreed? Yes. No. The committee is not agreed. We need to move to a division. Can I have a show of hands please for those in favour of amendment 1036? Those against, those for the amendment 5, those against the amendments 4, there were no extensions. The amendment is therefore agreed to. We now move to, are we the question now is that section 54 be agreed to, are we all agreed? Yes. Thank you. Call amendment 1037, in the name of the minister, already debated with 1027. Minister to move formally. Moved formally. The question is then that amendment 1037 be agreed to, are we all agreed? Yes. Thank you. I now call amendment 1050, in the name of Malcolm Chisholm, already debated with amendment 1027. Malcolm Chisholm to move or not move? Not moved. The member is not moving the amendment. Is there any other member who wishes to move the amendment? No. No, okay. Thank you. We now move to call amendments 1038, 1039, 1040, 1041 and 1042, all in the name of the minister and all previously debated. I invite the minister to move amendments 1038 to 1042 on block. Moved on block. Thank you. Does any member object to a single question being put on amendments 1038 to 1042? No. There is no objection. The question therefore is that amendments 1038 to 1042 are agreed to, are we all agreed? Yes. Thank you. The question now is that section 55 be agreed to, are we all agreed? Yes. Thank you. Now call amendment 1043 in the name of the minister, already debated with amendment 1027. Minister, to move or not? For amendments. Thank you very much. The question is that amendment 1043 be agreed to, are we all agreed? Yes. Thank you. Now call amendment 1044 in the name of the minister, already debated with amendment 1001. Minister, to move or not? For amendments. Thank you. The question is that amendment 1044 be agreed to, are we all agreed? Yes. Thank you. I now call amendment 1045 in the name of the minister, already debated with amendment 109. Minister, to move or not? For amendments. Thank you. The question is then that amendment 1045 be agreed to, are we all agreed? Yes. Thank you. Now call amendment 1046 in the name of the minister, already debated with amendment 1099. Minister, to move or not? For amendments. Thank you. The question is that amendment 1046 be agreed to, are we all agreed? Yes. Thanks. That ends consideration of amendments at stage 2 of the bill by the Health and Sport Committee. Members should note that the bill will not, at this stage, be the printed and electronic version of the bill will be produced this afternoon, which will show the amendments that are being agreed by the Health and Sport Committee. Thank you very much. We now suspend at this point, and before we move to the next item on our agenda, thank you very much. We now move to... Sorry, don't move. I'm not suspended. We've not got all our witnesses yet. With your agreement, I'll temporarily come off the agenda. We'll get back on to agenda item number 2 when we find our witnesses, but agenda item number 3 is subordinate legislation, and we have five negative instruments to dispose of today. The first instrument is the National Assistance Assessment of Resources, Amendment Scotland, number 2, Regulations 2016, SSI 2016-80. There has been no motion to annul the delegated powers, and Law Reform Committee has not made any comments on the instrument. Do members hear of any comments? No. There are no comments from committee members. It is agreed in that we would make no recommendation. Thank you for that. The second instrument is the National Assistance, sums for personal requirements, Scotland, number 2, Regulations 2016, SSI 2016-87. There has been no motion to annul, and the delegated powers and law reform committee have not made any comments on the instrument. Do any members hear of any comments? No. There are no comments from committee members. I therefore take it that we are agreed to make no recommendations. Thank you. The third instrument is the country of origin of certain meets Scotland Regulations 2016, SSI 2016-84. There has been no motion to annul. However, the delegated powers and law reform committee did provide some comments on the instrument, and the DPLRC drew the attention of the Parliament on the regulations to the general reporting ground that some of the terms that are defined in the instrument are superfluous as they are not used elsewhere within the instrument and should have therefore been omitted. It is to be said that the Scottish Government has advised that, whilst those words have no effect, they will be removed at the next convenient legislative opportunity. Do any members wish to comment on the instrument? No comment. Is the committee therefore agreed to make no recommendation? Thank you. That is agreed. The fourth instrument is the National Health Service Pension Scheme, which is a new instrument in Scotland, amendment regulations 2016-84, SSI 2016-97. I see some people in the public gallery bristling there when they are to sat up straight at that point when the pension scheme was mentioned, but I better push on to the formalities here. There has been no motion to annul and the delegated power and law reform committee has not made any comments on the instrument. Is there any comment from members? No. Is the committee agreed to make no recommendations? Right. Thank you. That is agreed. The fifth and final instrument before us today is the National Health Service Superannuation Scheme, amendment regulations 2016-96, SSI 2016-98. There has been no motion to annul and the delegated power and law reform committee has not made any comments on the instrument. Do committee members wish to make comment? No. Is the committee agreed then to make no recommendations? Right. That is agreed. Thank you. Thank you for that. Make some progress. We can now get ourselves to agenda item number two, which is oral evidence on one negative instrument, healthcare improvement Scotland delegation of functions order 2016-86. This is an instrument that looks to give healthcare improvement Scotland the power to direct health boards to close hospital wards to new admissions where it believes that there is a serious risk to life, health or wellbeing. Can I welcome again this morning Maureen Watt, Minister for Public Health, Elizabeth Saddler, Head of Planning and Quality Division Scottish Government, Ilsa Gardland, Principal Legal Officer Scottish Government and Robbie Pearson, Interim Chief Executive of Health Improvement Scotland and Jackie McRae, Head of Quality of Care Healthcare Improvement Scotland. Welcome to you all. I invite the minister to make a short opening statement and thereafter move to questions. Minister. Thank you for providing me with the opportunity to explain the rationale behind the healthcare improvement Scotland delegation of functions order 2016. Tackling and reducing healthcare associated infection and containing antimicrobial resistance remains a key priority for ministers and the Scottish Government. Since 2007, latest figures show that cases of C difficile in patients aged 65 years and over have reduced by 84 per cent and cases of MRSA have reduced by 88 per cent. Although that demonstrates significant progress, the challenge is to look at ways to continue this reduction to drive down HAI rates. Incidents of key HAIs have seen a plateauing over the past two years. We need to work even harder to ensure that those figures move in the right direction as we continually strive to ensure appropriate and updated advice is accessible to all those dealing with infection prevention and control. This Government will continue this work to drive forward improvements across NHS Scotland as we work closely with Healthcare Improvement Scotland, Health Protection Scotland and the Scottish Antimicrobial and Healthcare Associated Infections strategy group to reduce further infection rates. We will also support health boards to deliver further improvements for the safety of healthcare staff, patients and the public. In relation to the specific measures contained within this SSI, the Scottish Government fully accepted all the recommendations made in the report of the Vale of Leven hospital inquiry. Recommendation 1 in Lord McLean's report was that the Scottish Government should ensure that the healthcare environment inspectorate HAI, which is part of Healthcare Improvement Scotland, has the power to close award to new admissions if the HAI concludes that there is a real risk to the safety of patients. In the event of such closure, an urgent action plan should be devised with the infection prevention and control team and management. The SSI implements that recommendation by giving his the powers to give directions to boards to close a hospital ward to new admissions, where he considers that without the direction to close, there would be a serious risk to life, health or wellbeing. Those powers will not be limited to reasons of cleanliness and would be applicable if other safety reasons such as staffing levels and other non-medical reasons. They are designed to ensure patient safety, and it is therefore right that those powers cover all circumstances where there is a serious risk to life, health and wellbeing. His has, in conjunction with the Scottish Government and other interested stakeholders, developed an escalation procedure, which includes arrangements regarding powers to direct closure of wards to new admissions. The draft procedure was shared with health boards on 3 March for their views, and I have asked that a copy of the final paper be sent to the committee for your information. I should stress that closing a ward to new admissions is intended as an option of last resort and one that we hope is never needed. I would assure the committee that his will work with NHS board, particularly chief executives and medical directors, to address any concerns raised as a result of an inspection of any hospital. My officials have confirmed that the escalation procedure will provide a clear, transparent and consistent process to manage the identification and escalation of serious issues facing NHS service delivery, quality and safety of care and organisational effectiveness. The escalation process will ensure clear communication paths across all stakeholders, clarity of roles and responsibilities and an explicit record of actions undertaken in partnership with boards to secure a timely resolution and consistent and effective communication between his and board officials will be crucial to achieving this resolution. In summing up, convener, this SSI meets our commitment to implement recommendation 1 of the Vale of Reven report. It gives his the power to give directions to boards to close a hospital ward to new admissions, where his considers that there is a serious risk to life, health or wellbeing. The draft escalation process, published by his, makes clear that this power would only be used very rarely and as a measure of last resort. It is, however, an important additional tool to safeguard patient safety. I am happy to answer any questions, convener, if any members do that. Thank you minister. For the grant, our first question is one. The minister has said that she does not believe that the power will be used very often. I want to ask what kind of circumstances she would see that happening. What would be the process, because we know that health boards can close wards to new admissions at the moment? What would be the process if his word was doing that rather than the health board? It would only be in a very unusual situation. There are powers in the NHS Service Scotland 74 act for ministers to take actions where certain bodies, including health boards, are failing to carry out their functions. We do not envisage a situation where those powers would be used given the close understanding and co-operation between ministers and boards. However, it would be in a very unusual situation. I do not know if anyone wants to add anything. Mr Pearce, thank you, convener. In terms of health improvement, Scotland's role in this, we are quite clear that this sits within a broader escalation framework. That framework is already in place ahead of those powers and is used in our inspections when we meet a concern on the ground about ward staffing levels, infection control. The key part of the existing escalation process is about local resolution of those concerns. In the vast majority of instances in my personal experience, having been director of scrutiny and insurance for four years, those issues are addressed and resolved at the local level with the intervention of our inspectors and staff on the ground. In instances whereby those powers would be applied, it would be, as the minister described, a last resort, and it would be in the instance of escalation to the chief executive of Healthcare Improvement Scotland and in discussion with the chief executive and the accountable as the accountable officer for that health board about the concerns and seeking that chief executive of that health board, that health organisation, to take steps to prevent admissions into that ward environment. If the chief executive of Healthcare Improvement Scotland and that chief executive fail to reach agreement that that was the most appropriate action, the action and steps in those powers would be for Healthcare Improvement Scotland to instruct that health board to stop all-in-year admissions into a ward. It is important for the committee, convener, that the escalation algorithm is at the very pinnacle of an escalation process and needs to be seen within that context. Rhoda Grant. Obviously, this is about closing the ward to new admissions. If it is for infection control purposes, that makes sense because you would be isolating those who may already have been infected as well and not moving them to the hospital. If it is about patient safety and staffing numbers, then surely the patients that are left in the ward are still in danger. What steps would you be taking to deal with the dangers if it was not infection control, which is more easily understandable? Gavira Cynansola. In terms of if it was ward staffing levels, then clearly a reduction in the number of admissions going into that ward would be beneficial in terms of the actual cohort of available staff to manage a much reduced number of patients within that ward environment. That would be an immediate action. The important point to make clear to the committee is that boards already take action at present when they are concerned about, for instance, staffing levels or infection control and take actions in a norovirus outbreak to prevent admissions into a ward environment if there are concerns about patient safety and about life and wellbeing of individual patients on that ward. That would be an important step in the context of staffing levels, but there is a range of scenarios that the committee would be aware of and which those steps may have to be taken. Mr Pearson, we are not necessarily aware of the range of areas that would fall into serious risk to life, health or wellbeing. We have established that there is a couple where there is already remedies in place in terms of infection. We have heard that it might include staffing levels or staffing mix. What other scenarios would you place in that general area of the use of those powers? It could, for example, be in a theatre where somebody notices that the cleanliness is not up to standard. It could be in that situation. I do not know if you want to have any others. Theatre, situation and staffing levels mix? In terms of other examples, Jackie McKeith might wish to add, but an example might be in the context of extreme pressure at the front of a hospital in terms of the numbers of A and E attendances and the patient is required to be seen in an assessment unit. That might have an impact on safety and demand in that hospital environment, overall hospital and how patients are managed in the flow of that hospital. That would be another example, but Jackie McKeith wishes to add a few other instances. That would be the other example, but I suppose that it is to reiterate that boards would generally, in our experience, take immediate action to resolve the issues taken into the context of the safety of patients in the whole system rather than just at that individual point of concern. It is just about what it gives you. I can see it in an infection. I can see it in an accident. There has been an accident. There has been a major accident. Emergency planning comes into place. People are sent to other hospitals within an immediate area. I can see that. That happens. Infection. We know that happens. We read about it. We hear about it. So, what does this give us in terms of powers for yourselves that we do not already have? When do you decide? When would it be your decision? Who would decide that the health board has failed to act in the interest of risk or life or health and wellbeing towards the people? I cannot see... Having difficulty about seeing where this would be relevant and what additional powers it gives us that we have not already got. It was because Lord McLean in his report specifically asked that this was one of his recommendations that the Scottish Government ensured that healthcare improvement Scotland had the power and it was not just left to health boards because in his inquiry he felt that there was perhaps a gap there. It specifically comes from Lord McLean's recommendation on the veil of leaving inquiry. There is a wider point about whether Health Improvement Scotland is a part of the health service. Is that what he was getting at? The broader recommendation and the broader consideration of Lord McLean's inquiry was that he did not feel as chair of that inquiry that there was a need for additional powers beyond those within that first recommendation. Also, in terms of the inquiry report, it made clear that there was sufficient independence in separation at present in terms of the role of healthcare improvement Scotland. I have got supplementaries, I think. One more from Rhoda, and I have got supplementary on this theme. Are you on this theme? I have got Dennis, who wishes to get in. Rhoda, supplementary from Mike, Dennis and then Bob. I am not totally satisfied with the answer to my previous question about if it were down to patient numbers and staffing numbers and that being seen as unsafe. Closing the word to new admissions would mean that that pressure did not escalate, but it does not do anything to remove that safety pressure. One would assume that unless you suddenly start discharging patients, you cannot assume that patients are going to be discharged because you do not know the nature of the ward. They could be long-term. How would you deal with that safety risk for existing patients in the ward? Hospitals already deal with that. If there is an example, as we stated, an outbreak of norovirus, for example, it can not only affect patients, but it can affect staff as well. That is why a ward would be closed to new admissions and staff would be moved from other parts of the hospital to make sure that those patients who were already in that ward, who are not fit to be discharged, are still looked after. What powers in the instrument are there to ensure that staffing levels would be increased to deal with the patient's safety concern, rather than just stopping admissions? It would be something that would be discussed with all the partners involved, because, as we have already said, it would not be taken by his alone, it would be taken by his in conjunction with the health board, with the senior management, and, indeed, if necessary, Government ministers. I wonder if I could interject. The order itself is very much restricted to simply giving the power to his to give the direction to close the ward. My understanding, I do not know if others want to come in, is that the whole escalation procedure involves discussing measures to help improve the situation in hand, so that would be part of that wider procedure is what to do about this situation that has led to this direction to close the ward. Mr Pearson, does this regulation give you greater power in your relationship with health boards to get quicker action or in that discussion or negotiation? Does it help? Yes, it does, convener. Obviously, having that power does allow us a degree of direction and formality and legal power that we do not have at present. I think that the important point, is that it does not take away and disturb the accountability that exists for chief executives of health boards to deliver safe services to their respective populations, so they still remain accountable for the safety, wellbeing of patients that are within their care and, obviously, the mix of services in which they provide and which includes the workforce and staffing levels, for instance. Mike Mackenzie, a supplementary on this. Yes, thank you. Mr Pearson, it's a question for Mr Pearson. You mentioned that an algorithm would be used in the decision making process and that thought fills me with concern. Will the decision be made by a human being or will it be made by a computer? I'm sure you could understand the public concern if a question of the computer says no. I'm interested to find out a wee bit more about this algorithm. I wonder if you could share that information in writing with the committee. Will the algorithm take into account geographical circumstances and capacity situations that you might find in places such as Orkney, Shetland or the Western Isles? Will it take into account the prevailing weather conditions that might mean that it's impossible to evacuate patients to alternative facilities in the mainland? Yes, please. Thank you, convener. On the algorithm I can assure the committee that this is not some remote computer generated yes, no answer. It will be informed by clinical and professional judgment on the ground. The senior inspector is working with staff in delivering those services. It's about professional judgment and about the management and appropriate management of risk. To emphasise that point the algorithm can only guide and obviously influence the number of steps within it but within each step is a professional judgment to be made about risk and about the impact on the quality of care for patients. As regards the operating context the general point about remote areas and rurality is that that would be part of the risk assessment in assessing the situation on the ground and obviously it varies vastly across Scotland the delivery and pattern of health services and a key thing to take into account is that operating context and understanding the distribution and mix of services. For instance, there may be a different response in these situations when you're dealing with a hospital environment that has a large number of single rooms versus an open plan ward environment and again that would be quite different again how you might respond in these situations. Mr Pearson, you just pre-empted but it's just clarity with regard to single rooms a ward may comprise of a number of single rooms so therefore you may not wish to close the ward but isolate individual rooms and I'm just wondering if you can give a greater clarity on that. That's an important point in terms of new hospitals such as the Queen Elizabeth hospital which is single rooms is a different response for other environments in which you may be a more traditional open plan nightingale ward environment and again it comes down to a careful assessment of risk for individual patients and how that is mitigated on the day and to ensure as quickly as possible that new admissions are re-admitted to the ward but convener Jackie McRae wish to add more detail in that respect. I suppose that it is very much about the individual context and I suppose just to bear in mind the timescales around which some of these things might happen and then how the decisions would be taken to the open area so you're right if it's a ward area that has predominantly single rooms it may be possible to say for example isolate deep clean a very specific area so that the impact is as minimal as possible on the service that's being provided whereas in a completely different context if it's a Florence Nightingale type ward with longer term admissions of the issues around staffing levels it may be a longer period of time before things can be put in place so that we have that assurance that the situation is safe enough again to open patients so it's really context specific I was really just looking for a degree of clarification especially with some of the new hospitals that the single rooms could be isolated and you weren't actually going to close a ward per se but in some of those circumstances even in the Nightingale where there's a mixed Nightingale and single rooms there's a potential to move people from the Nightingale into a single room so therefore you're isolating the patient too and it was just that degree of flexibility that I wanted to tease out from you and I acknowledge that it is last resort Thanks Dennis I've got Richard Yes, thank you Again it's not on the same vein but slightly we've mentioned about staffing levels we've mentioned about concerns about how to close a ward but I notice from the submission from the Royal College of Nursing Scotland that they also say closing a ward may be necessary because a systematic failing in a service may also be set heat standard that applies to one service and has an unintended consequence in another part the RCN would not want to see a situation where individual staff members working in wards are penalised because of a systematic failing from an unintended consequence of a health board's effort to meet a heat standard Can I have your views on that comic? Well, I don't think that would ever happen because a particular member of staff would be penalised that's not the intention and as we've said there's collective responsibility and I think perhaps that's a rather sort of negative view from the Royal College in that it's not about penalising anybody in particular in terms of meeting heat targets it really is not about that it's about making sure that the wellbeing and safety of all involved, whether it be staff or the patients or the public is paramount Thank you, I just wanted that comment on the record, thanks Bob Doris Thank you very much, convener Just at the start following the recommendation of the failed leaving inquiry I just want to put on record that my family have a record to pallative care for my mother in the outstanding service and they did very well by my mother and my family I want to put that on the record given the fact that that's the context which we'll look at those recommendations Moving on from that I also feel that if the witnesses in front of us have got a little bit of a short stroke you've been urged to think about cataclysmic scenarios where Hiss would have to use when there's issues around that so I can get it I suppose the point I would make is we didn't foresee what happened at the Vale so you never know when you might need these powers and I kind of get that so given the fact that we might not always know when we need to use them because you never know what tomorrow will bring or what is unforeseen which is the point of having these powers I suppose speed would be the theme that I would like to explore for a scenario I suppose what I'm asking for is the speed of any chain of events or process by which it's brought to the attention of his via whatever mechanism that there could be significant issues escalation process within Hiss and within the health board could take quite a bit of time and could be bureaucratic I suppose I would want a reassurance that it wouldn't be if there were real significant issues that I would like to explore Okay, can I thank Bob Doris for his comments about the Vale of Leven and of course Lord McLean's report made 75 recommendations 65 for the NHS 9 for the Scottish Government and 1 for the Crown Office all of which were accepted and if not implemented are being implemented but I think it goes back to Mr McKenzie's question about the algorithm and the algorithm really is a framework which provides a brief description of the roles and responsibilities for each national group and people within that and I think that by having that then we can speed up the process as Bob Doris suggests but I don't know if anyone else wants to come in on that That may convener just to say that speed is of the essence in this situation that our current escalation process is extremely fast I'm on your phone call away from Jackie and all the senior inspector team and decisions are made on the ground in real time in order to ensure that patient care is not compromised This escalation algorithm cannot be a bureaucratic process it must have the same degree of speed and if it's a continuation of the existing algorithm we need to make sure that decision making is done as swiftly as possible I'm glad we got within that answer I don't want to explore the algorithms I'll leave that to Mike McKenzie is the human touch aspect in terms of pick up the phone speak to the most senior person at the health board who is the chief executive, clear your diary let's have that meeting we have to chat, we have enforcement powers if they have to be used I suppose that's what I was looking to hear within those answers, I kind of got that but I got the algorithm as well so we'll not explore the algorithm any further I'm reassured by that, we'll pick up the phone and we'll chat immediately is kind of what I was hoping to hear we've got wonderfully NHS but you never know when things will go wrong such a vast organisation so there's always a situation where for the health boards without the enforcement powers may decide to close award to new admissions for example because of unforeseen events I would like to think that contingency planning takes place within NHS boards anyway so I've explored speed if it's somebody assurances in relation to that I suppose you never know where the need to use this power may manifest itself and I would like to think that health boards already have contingency planning in place for what would they do if it could be a fire alarm if it could be a fabric of the building aspect it doesn't have to be a clinical incident where wards may not be able to be used so does this have a role in relation to making boards have effective contingency planning do they have contingency planning anyway and what would be the mechanisms be around that we don't have a direct role in terms of contingency planning for health boards health boards clearly have a role in ensuring they have robust disaster recovery and contingency planning arrangements in place and chief executives are the accountable officer are there to test those plans to ensure they're robust and effective what we can be doing though is when we carry out inspections is to understand how those plans are understood by staff and how they would be deployed in certain situations so the example is in the healthcare environment inspections so we look at their plans for certain instances those inspections we look at what their arrangements would be in terms of staffing levels so whilst boards have responsibility and accountability for that we do take an interest in the robustness and effectiveness of those plans that's right and so if there were issues for example around fire regulations for example then we would be testing with staff their knowledge about for example how they would evacuate a building and invent off so their inspection programmes I suppose that my final question in relation to that would be and accept the contingency planning would be for the health board but if there were unless what you don't have to ever have these conversations immediate speedy conversations with a health board chief executive saying if this doesn't get sorted we will instruct you to eventually close the word to you admissions or whatever I don't want this to happen but we might do it in the next few days what are your contingencies would you be asking that question at that point? Absolutely and I think that that's important point is that we expect boards as of now to be responding to concerns we may identify in inspections even without those powers and I have to say in my experience that boards respond very quickly and very swiftly and we have follow-up mechanisms to ensure that the arrangements are effective and in place it's probably the lack of brevity in my question is the reason I'm clicking the answer and that is if you have I know Mr Robertson I'm not known around for it I hope the process of escalating that affairs is quicker than my questions so if you have that conversation the first time you have that conversation with the health board saying we might use these powers at that point do you say we must see your contingency plans Absolutely and that's the point of the powers that are in reserve and in the knowledge that the boards know that we have those powers then I think that's the nature of how boards then respond Much more difficult area though and I practically know what we're puzzling about you know if a place is going in fire or a disease I mean they're fairly obvious you smell this fault, the bell's ringing there are people being sent whatever but in the controversial area which has been mentioned this morning I suppose it's been controversial is the whole question of staff mix and staff levels now where is the role for and how do you escalate that quickly because you're not there in two or three shifts when the staffing levels are dip because it's taking us a pressure or whatever you're not there when there's only one senior nurse looking at a ward filled 20 odd people or whatever so how do you intervene reasonably in that situation and say and wag the big finger and say if you don't get that sorted out then you're potentially at risk of closing down that facility because you're not staffing it properly because the staff mix is not right so in areas like that because your relationship up to now with the health boards has been to seek improvement not conflict and the position of rules from outside but to give people time and they get lots of time to deal with some of the issues that you've identified in inspections they get weeks and months sometimes you trust them to tell you that they've dealt with that and you don't go back and inspect again for some time or whatever so how do you deal with an issue as complex as staff mixing levels Okay, community, there's a number of levels to this. I think firstly we do take an interest in staffing levels and increasingly so for instance in our older people's inspections and we ask to see the staffing rotas not just on the day of the inspection but in the previous weeks and what's projected over the next period of time so that's an increasing area of interest to us and as regards the timetable we do have fairly swift escalation of concerns within our existing algorithm but we also set in place for instance in our healthcare environment inspections requirements and we set timetable around the response of NHS boards to respond to those requirements based on the concerns and it can be an expectation when we are back next week or the following day we expect this to be in place but first a turn around on a broader issue convener of a May is we consulted last year and we're taking forward work under the quality of care reviews to look at more comprehensive assessments of healthcare and the things that impact on healthcare workforce and leadership is a fundamental component of that and obviously we've had bigger and broader reviews in that respect such as in NHS Grampian at Aberdeen and Royal Infirmary but we've had much more systematic and comprehensive assessment of workforce effectiveness and leadership in the future and that will then get into these more complex issues convener and this would help you to make progress in that area of establishing that it's an important power to have for us but I think the broader question is about how we take forward that deeper consideration of the factors that impact on the quality of care inspect and residential facilities focus on staff changes can cause failure but I will return to some of that later and some of our recommendations are coming out about working together and learning from each other on some of these issues I've got Malcolm Chisholm You haven't got the power at present to direct health boards to close words but in terms of the other steps in the co-operation process have you got the power in relation to each of those steps to direct words? Those steps are a moment about co-operation with NHS boards between healthcare improvement Scotland and ultimately the chief executive of that board so those are sufficient at present the final point in terms of that power to close award is obviously informed by that co-operative relationship in terms of escalation all the way up to that ultimate power there isn't a series of subsidiary powers underlying that but in terms of the legal director it might be able to confirm them using the language right to you I suppose some people might say why are you not being given a wider power obviously some people say you shouldn't be given this power but you could argue that if it's a step process why are you only given the power for the ultimate sanction rather than to have a directive power over the other areas as well I feel that the powers that we have in this ultimate sanction are sufficient without a whole series of other separate powers which might end up with a more bureaucratic debate and discussion at each of those steps I think that the key point is about the speed of this response at moments of concern and I think that's the critical thing rather than necessary a series of subsidiary pieces of legislation or powers underlying the overall sanction I mean, during the four years you've been director of scrutiny without naming the place as it were can you think of occasions when you would have found this power to be useful in honesty I believe that boards have responded without this power however I think it's an important power to still have in the context of where there may be significant service failings and to have that power there now I think it's an important step we have carried out 535 reviews and inspections since the establishment of healthcare improvement Scotland and we've formally escalated to Scottish Government matters of concern on five occasions so that reflects a number of things, I think the main thing though is about the quality of care but it's also about the fact that we have escalated whether informally at the local level or more formally to the chief executive that boards have responded and finally, I don't know if this is for you or the minister, given that the cabinet secretary already has the power to direct health boards I mean, why do you think you need it specifically rather than just going to the cabinet secretary and saying that this requires to be done well, I think the important point here is a few things is about the overall shape of accountability in Scotland it's quite a shallow hierarchy within the health service in Scotland and there's a very short escalation between a chair of a health board to ministers and to the cabinet secretary so the context for Scotland is important to think about and I think the second point I would make is that these powers also sit in a broader context of powers for ministers in the ladder of escalation and the powers that ministers can have to intervene in a health board and the cabinet secretary would be involved at all stages I mean, the information flow is very quick in terms of things like this Can I raise some of the questions to Malcolm's problems raised by the RCN about political interference and whether the independence if you feel that you've got to escalate this it's the wrong time of the year it's the wrong time of the political cycle it's proposing a closure of a high profile facility six weeks away from an election and ultimately the cabinet secretary whoever he or she may be can say I don't want that bad news at this particular time Convener, patient safety is paramount I mean, Elizabeth patient safety is the important paramount thing here and these powers are intended as a backstop to be used when all health has failed and actually giving the power to his to direct to order the clerk to ask the board to close the ward actually removes ministers from that direct decision and the post ministers will be kept informed because it's of wider interest to their responsibilities but the responsibility rests with his and it would be for his to take that decision in partnership with the health board Decision and forum rather than discuss with the cabinet secretary where you take that decision or not so you would take the decision it has that in your view and all the information received that that facility would have to close and you would inform the cabinet secretary of your decision rather than have a discussion with the cabinet secretary before you made that decision That is correct convener and the important point is about the powers that are vested in health improvements Scotland to make these decisions Malcolm I was just exploring different aspects of it and I actually think that it's a very good power to have so in just in case anybody misunderstands me No one I thought you were going to respond to Malcolm there No, I'm just making a comment Yeah, we're making a comment that time I've caught the net It's just that the RCN have suggested that this new power could potentially give you a conflict of interest given that you have sort of a dual role of scrutiny and improvement Do you agree with that comment or would you like to say anything about that? I don't agree with that I think that the important thing is how we utilise a mix and blend of expertise and skills and capability within Healthcare Improvement Scotland Indeed the Kings Fund published a paper just recently about improving quality in England and it's very much encouragement for England to study what's happening improving quality in Scotland and the work of Healthcare Improvement Scotland and the things that we have within our organisation such as the Scottish Health Council our evidence base, scrutiny and improvement What we do need to do is to make sure that when we scrutinise we're seen to be independent we act independently and provide recommendations without fear or favour but I think the bigger opportunity for us as our organisation is how we use the range of things within our organisation to make us more efficient, more effective than if we were having to transact with a range of bodies Thank you for that Richard Lyle To tie this up you're going to get an extra power which you may or may not use Do you have sufficient staffing levels in order to cope with this? I think that the staffing levels are not directly related to the power I believe increasingly as an organisation we've got an excellent group of inspectors within the team who come with a clinical background for instance in our older people's inspections what would be increasingly important on the point of workforce is that we'll never have all the skills and expertise within healthcare improvement Scotland and we'll be increasingly reliant on skills and expertise and professionals to come and join us and work with us whether it's in any part of our organisation or whether it's in inspections and that will be increasingly in demand on health boards to provide clinical experts for instance to carry out inspections Any other questions? I just want to touch on the context that the Health Improvement Scotland and Care Inspectorate operate and refer back to our report an inquiry in the regulation of care for older people and that was I think we reported in 2012 and at that time there was a big focus and agreement that we would have a set of national care standards in place that all of you would work to which included things, recommendations that report staffing levels, staff mix etc particularly in that inquiry and the residential settings in the community When are we all working on the development of national care standards in the context that the regulatory people work under? Do we now recognise that there are very similar arrangements as a result of the integration of health and social care that for people that's a pathway in a journey and how much are we learning from one another all of the agencies who work in this field and are we closely working together to develop a good practice across those agencies if not bringing them all together Minister There is yes but I'll leave it to give you the fuller version Thank you Minister What we're doing in several levels first in the national care standards there's been excellent consultation on the national care standards and the set of principles very much human rights based has been agreed, we now have detailed work working with ourselves jointly with the Care Inspectorate to now take forward more detailed national care standards which will be fundamental in supporting more integrated health and social care in communities and care settings so that's the first thing to say that's happening now Is there any of that information that can make public to we're looking at our legacy and it was an important recommendation your way back I mean the national care standards are now how old women are as reviewed? I think it will be about 2002 so work is now under way and taking forward those new How much information can be shared by the committee at this stage? So in terms of the work around the national care standards very happy to share that with the committee and the principles that have been agreed and we'll share that The next thing to say one of the key things from the review that the committee did was about the joint working more generally with the Care Inspectorate and we've been doing joint inspections with the Care Inspectorate for the care of older adults we've done quite a number of inspections now, probably around eight or nine inspections across Scotland and he's been really informative in looking at the different models of care and sharing good practice your point, convener we're now undertaking a review of that methodology, ensuring that it's fit for purpose in the context of health and social care partnerships and that work's been led by two non-executives from within healthcare improvement Scotland and the Care Inspectorate John Glennie and David Wiseman so as a piece of work jointly we're taking forward and again just emphasises the importance of the Care Inspectorate in healthcare improvement Scotland going with the grain in respect of service delivery in the individuals communities and we look forward to the additional information that can be provided to the committee is there any other questions for committee members if there's not can I express the committee's gratitude and appreciation for the minister our colleagues that have been here for quite a while this morning and our colleagues from health inspection service our improvement service thank you very much to you all suspend at this point