Зд Pip and welcome to the 2012 meeting of the Health and Sport Committee I ask everyone to switch off mobile phones so they can to hear the sound system you will see some of msp using tablet devices instead of hard copies. We have received apologies from the net millar and our convener so they cannot make it today but they sent apologies first item on the agenda yw'r prydysgfaith yw Professor David Clark. Thank you Professor Clark for coming along this morning on your report, International Comparisons in pallative care provision. What can the indicators tell us? This report was commissioned by the committee and will inform the committee's inquiry into pallative care. I want to record my thanks on behalf of the whole committee for the hard work that you've put into to this report. It's a substantial piece of work. I'm going to invite you to make a presentation to the committee for around 10 minutes so that we would find that helpful. Maybe just as a small but important aside as well, I think that the media coverage that your report got this morning and several members heard during Good Morning Scotland's early start this morning, Professor Clark, there's a real positive and constructive dynamic about how we acknowledge good work that happens in pallative care but not being afraid to tackle what the gaps are and drive forward change. We really appreciate the body of work that you've done in pulling some of those statistics together. Thank you very much Professor Clark for asking you to make your opening presentation. Thank you for that welcome and words of introduction. I'm delighted to have the opportunity to present the report and to introduce it this morning and answer questions on it. I'd like to begin in the spirit that you've already begun, which is to try and build on some of the significant achievements in Scotland and the wider influence of Scotland in the world of palliative care. I don't want to digress too much into a history lesson but it's not widely known that the first ever home for the dying that was established in the United Kingdom was created by a woman from Donside in Aberdeenshire, Francis Davidson, who moved to the east end of London and opened a home for the dying there in 1885. In the course of the 20th century, we've seen developments in hospice services in Scotland. We've seen the growth of interest and influence of some of the major charities—Maricuri and Macmillan in particular—and we've seen as well a very key role in the formation of what we call the modern hospice movement, that aspect of hospice care that is not just about the delivery of excellent care to people in need, but also about education and research and wider engagement with society. I would like to pay tribute to Dr Derek Doyle, who was the first medical director of St Columbus Hospice here in Edinburgh and who was instrumental in gaining the recognition for palliative medicine as a medical specialty in Britain in the 1980s and went on to be a major advocate for palliative care around the world. I think that there is quite a lot to celebrate in terms of the contribution that's been made in Scotland to the field of palliative and hospice care and also in terms of the kinds of resources that we currently have available to deliver care to people in our country. The situation that we have in Scotland really is quite different to the wider global context, where I've been trying to, over time, analyse the development of palliative care in all the countries of the world and, as you've seen from the report, we estimate that there are really only 20 countries in the world that have an advanced level of palliative care development. While we're referring to things like the availability of the appropriate drugs for pain and symptom management, the provision of services in acute and community settings, the provision of education programmes, the existence of a body of research and, perhaps most importantly, underpinning policies and strategy on the part of governments to support the delivery and development of palliative care. Really very few countries in the world that are kitted out, if you like, with those elements. Indeed, in a very recent estimate, the WHO, World Health Organisation, has estimated that probably only 14% of the world's population who are in need of palliative care get any kind of access to it. We live in changing times, so we have to continue to review what we're doing, even in countries with well-developed palliative care. I think that the key element of that discussion is that we're moving from hospice and palliative care being seen as the business of specialists of one sort or another, the people who've spearheaded the development of the field to hospice and palliative and end-of-life care becoming the business of everybody, more the business of generalists, but in a wider context, a concern that we should all engage with as an aspect of civil society and the wider society and communities in which we live. It's time, in my opinion, to take stock of where we've got to. There's lots of good things to acknowledge and to celebrate, but I think we need to ask the question how much palliative care are we delivering and are we properly resourced to do that. My report is really trying to set out how we go about exploring that question and the kind of indicators that we would need to have in order to provide some answers. Those are indicators about the supply of services, about the need which those services are oriented to meet, about the extent to which we have good access and complete coverage of all of those in need of palliative care, and perhaps most critically and most difficult of all, what we know about the outcomes of the care that is provided, how good is it, is it appropriate, is it well received by those to whom it's delivered and at what kind of quality? My conclusion is that we have problems in answering these questions and we're not alone in this. Scotland is really not alone in having difficulties in giving clear answers to questions of this type, but I've tried to offer some solutions that we might explore in order to be better equipped to address those issues when questions are quite reasonably put along the lines of how good is palliative care in our country. I think we need to be better equipped to deliver some fairly succinct but robust answers to questions of that kind. What I'm really recommending is a number of things which I'll be happy to elaborate on, but I think first of all we need a reasonably robust mapping exercise of the delivery of specialist palliative care in Scotland. As I've said in my report, we are unable to model palliative care delivery in Scotland against other countries because all of the reporting of it takes place in a context where Scottish data is buried within date of the United Kingdom as a whole, so I think that the time has come to create an atlas entry for palliative care in Scotland that would allow us to compare with other countries, for example of a similar population and type to our own. The second thing that I think would be worth doing and which was done in Ireland recently is to conduct a systematic review of research that has been done in Scotland on palliative care to assess its quality and to get more lessons and action points out of it than we currently do. There is good work going on in our universities. Some of it is not very well known. I think that by reviewing it systematically we could do a lot more to learn from that work and to disseminate the results more widely. It's not uncommon if you're involved in research in this field to be somewhat disappointed when you talk about work that you've done which you thought was well known to other people but to where some of the intended audience is still, for no fault of their own, still unaware of it. A systematic review and a wide dissemination of the work that's been conducted in recent years would be extremely useful. I also think that we need more investment in measuring the ways in which we identify people who could benefit from palliative care. I've made the distinction in my document between that question as a public health issue, how many people need palliative care but also as a clinical issue, how do we identify those people when we're in front of them and when we're referring them to appropriate services. And as I've highlighted, there is a good measure that's being developed by colleagues here at the University of Edinburgh and in the Lothian region, the SPICT. But it's still at a relatively early stage of its development and I think more work needs to be done on refining measures of that kind that will enable clinicians quickly and accurately to identify patients and families who would benefit from palliative care and could be referred to it, whether that be specialist care or that which can be provided by general physicians, general practitioners and the wider health and social care team. And then finally I think we need to agree on the appropriate quality indicators that we would like to have to assess the robustness of palliative care of all stripes as it's delivered in Scotland and then to invest in the measures that will allow us to gather the data to support those indicators and to disseminate them and to learn from them. Thank you. Thank you very much Professor Clarkton. I should have given you a full title at the start. You are the Welcome Trust Investigator School of Interdisciplinary Studies University of Glasgow. My apologies for not giving you your full title. Thank you. As we always like to say, that is the record, absolutely. We'll move to our first question, which is from Malcolm Chisholm. Thanks very much first of all for your report. I'd like to start really with definitions and numbers and perhaps definitions has to come first. I suppose a lot of people don't quite get a lot of people think of it very much as end of life care but obviously palliative care has a different definition but I suppose I'm partly wondering if we have an agreed definition of that because some people might say in terms of a lot of people living with pain chronic conditions, you might want to stretch the definition because people are always going to try and palliate people's pain and suffering even if it's so. Is there quite a clear definition in the context of what we're talking about or could it actually become so stretched that we're not quite sure what we're talking about? I didn't want to muddy the waters too much on this although it is an interest of mine. There are many definitions around a recent systematic review of definitions of palliative care in English and German and came up with 56 variants. My own position is that I think we would need some persuading to depart from the definition of the WHO. Most recently published, it's produced two definitions. I think though that there's an awareness that what we mean by palliative care is changing when hospice and palliative care first began to develop the focus was very much on people with cancer at the end stage of their disease and where the trajectory was relatively short and fairly predictable and hospice and palliative care came in at that point. Over the years the WHO and many others have advocated for earlier intervention on the part of palliative care and that is raising some complex debates, not least in the United States where it's tied up with reimbursement issues as well. There's a strong argument among the palliative care leadership in the United States that we should drop all references to end-of-life care, death, dying, bereavement and describe palliative care as an extra layer of support, which helps people through the inevitable stresses, strains and challenges of their illness at all stages of that illness trajectory. I think that here in Scotland and in the rest of the UK we still see palliative care as closely associated with end-of-life care and the broad reference point for end-of-life care is people in the last 12 months of their lives, but as I've often said it's easier to say who those people are with the retrospective scope than it is with the any any kind of prospective approach and we are challenged to know when people are in the last year of life and how best we can respond to them in that context but there's no doubt that palliative care has a place to part to play at earlier stages of disease progression. I think as we age as a society, as people grow older and live longer, some of us will be challenged by multiple morbidities not just cancer but other chronic conditions and I think it's well accepted that palliative care has a role to play as you say in the palliation of some of the problems associated with those conditions. In terms of the numbers and you give some estimates in your report, is the issue there that services aren't available or is the main issue that people are not being identified and I suppose related to that is we have these GP registers, is there a problem there and is it through more effective use of them that we deal with that problem or how do we manage to identify those who are not receiving the palliative and end-of-life care that they might benefit from? The registers are a very good start, they have been changing character, we've had palliative care registers for some time and then newer more recent approaches being introduced in Scotland, still at a fairly early stage and we haven't done the studies yet, I think some of them are under way that would tell us whether these registers are reaching all the people that are in need, they seem to be quite effective in logging people with cancer, less effective in people with non-malignant conditions and in both cases there's still some evidence that they are only registering people towards the end of their lives so we'd like to see wider coverage but also earlier registration. I think this is an all systems issue where we're really seeking to raise awareness across the health and social care sector about the need to be vigilant about identifying people who have palliative care needs and might benefit from palliative care. As the committee may know I published a paper with colleagues in 2014 where we showed that on any given day in Scotland 29% of all inpatients in hospital are in the last year of life and that 9% of all inpatients in hospital will die on that admission. The point about that study is it provides a wonderful opportunity for hospitals to think more actively about the identification of patients who are in their care at any given moment who unequivocally have end-of-life needs but we haven't yet got simple measures that will enable those people to be more readily identified at scale. Last question because I know others want to follow that up but if we were successful in identifying all those people I mean is the way forward as I think you suggested in your opening statement that basically it has to be taken on board by a larger number of people generalists and so on or do you think there is scope for the expansion of what you might call the specialists the people who work in hospices or in community teams around hospices I mean I mean how would you see that unmet need being addressed as it were. I'd like to do a proper modelling exercise of the specialist provision that we have in Scotland based on the guidelines of the European association for palliative care that would enable us to assess whether we've got our specialist provision more or less right I think we then would have an evidence-based approach to that but whether or not that is the case we certainly need to make palliative care more the business of a lot of other people and I think perhaps one of the difficulties has been that there is still perhaps a perception of palliative care that it's something that comes into right at the end and that it's something that involves giving up other things so if I pass my patient to palliative care services I'm losing my involvement with them I'm losing the opportunity to go on actively treating their disease as members of the committee probably know this is exactly the way in which hospice care is funded in America at the moment although it is about to change but to go on to a hospice program in the US you must have a prognosis of less than six months to live and you must give up all active treatment this isn't a desirable position it's not one that we would want to see here but I think maybe in within the mindset there's still on the part of some clinicians a feeling that there is a transition to palliative care that involves giving up certain things in order to access it and that's something we need to work on right from the very beginning with our medical students our nursing students and to try and promulgate more widely that part of care has this integrated role within the spectrum of care that we deliver to a person. Thank you Malcolm Professor Clark I'm just wondering in terms of identifying those in receipt of palliative care or those in need of palliative care one of the things that this committee is working on at the moment is the carers Scotland bill in terms of working with young people to have a young carer statement or with older people to have an adult carer's assessment now I would suspect as people make their I think through our own family experiences we'd be aware of this as well as people make a transition towards palliative care there are family and friends and loved ones actively involved in care and there's a piece of legislation through this Parliament which seeks to capture every individual in that caring process might that be an opportunity in terms of identifying those in society who are making that transition towards palliative care because I know we want to go on to talk about how we support people better but we have to obviously identify where those in need of additional support are before we can resource and provide that additional support as best we can might that be an opportunity I think it definitely is I've tended to be using a rather medical language at the moment talking about patients and their needs but of course the key thing about palliative care is that it's supporting carers and families and others directly affected by the the illness and impending death of a person and seeks to assess the needs of families and carers in delivering care so what the kind of example that you have just given affords I think is an opportunity to seed thinking about language about ideas about information evidence about palliative care across a spectrum of other policy instruments guidelines and statements from government and I think that's what we badly need well at the moment there's looking around the world palliative care still very much in a kind of early advocacy stage where it's trying to draw attention to what it is help people to better understand it the next step is then to get those ideas integrated more widely across the health and social care system of any country and that means seeing that language in the documents that appear from government thank you convener convener was going down the line that I was going to pursue but perhaps me before I continue on that line professor and I'm going to say that I was listening to you early this morning I think about 6 40 this morning you were in gms and you mentioned specifically about the the specialists and how you then maybe have the sort of generalist approach I just want to maybe tease out a wee bit more about the sort of generalist approach including the maybe the allied professionals and as the convener has stated this morning the friends and family because when we do evidence at in when we were looking at the assisted suicide bill one of the things that came out very clearly is that culturally in Scotland we don't face death very well we don't talk about dying we don't make provision for is this a barrier I think it's an important issue and the palliative care community in Scotland is doing some excellent work to try and address it we've seen a number of examples of that in the last few years death on the fringe the good life good death good grief initiative the absent friends initiative all promulgated by the Scottish partnership for palliative care I think they and others myself included I write regularly on a blog and we run death cafes and the like are trying to create a wider conversation across society about mortality and death my own experience of the death cafe phenomenon is it's remarkably easy to get people to talk about death once you've brought them together and given them the opportunity the notion that it's a taboo is quickly unpacked when you sit people down and with a cup of coffee and an opportunity to talk about these things so I think there's a great deal of work that could be done there I would like to see a wider conversation I'd also like to see our major institutions taking these issues more seriously the universities the business world the faith groups I think they all have a significant part to play in a wider conversation about care at the end of life and perhaps the limits of medicine what can we really expect from our healthcare system and at what point do we acknowledge that the focus is really on on palliation on comfort on dignity at the end of life these are things which are relatively intangible somewhat difficult to measure but not necessarily particularly costly to deliver this pathway this journey maybe towards palliative care for some people moving from someone who's being cared for and this could sort of be across all ages in some respects but someone moving from requiring care to maybe requiring nursing care and then perhaps palliative care how do we how do we actually how do we identify when the patient requires that palliative care in that transition period and how do the the families the not just the medical professions but those allied professionals as well how do we then I suppose that's recognised that we're at that stage for palliation yeah I think there are a number of triggers that can be identified but which need to be put together in a conclusion reached but there are things like repeat admission into hospital there things like prolonged unrelieved symptom difficulties or pain even when the concurrent care for the condition appears to be optimal there are things like dwindling mood a depressed affect there are lots of things that we can do that the difficulty is that sometimes these things perhaps particularly for families they're they're they creep up on us slowly and they're difficult to identify day by day but I think the clinicians role is to try and put these things together in a bundle and say look this there's a light flashing here we need to be thinking differently we need to be having a conversation you're absolutely right I mean families and other carers sort of become they adjust because it's with them 24-7 and perhaps don't recognise so are you saying that really it is down to clinicians to be able to identify when it's moved on that journey towards the need for palliative care I think they are key but again if I could use the American example there's a lot of work going on trying to encourage service users themselves to self monitor and then to ask for palliative care I think that's an interesting model so these are some of the aspects that we can attend to I was very very impressed listening to the wreath lecturer from last year Atul Gwanda who gave the key lecture at the Royal College of Physicians in Edinburgh in November of last year where he talked about the kinds of simple questions that people should be thinking about putting in this context what do you understand by your condition at the moment what are the limits on the things that are acceptable to you what would you most like to happen what do you not want to happen basic questions that if asked and put to a person will often result in very very good information but they're not routine and there's one notion around that you should have these kinds of questions built into your system just as routinely as you ask them are you allergic to penicillin you know I think that's quite an interesting analogy that we're routinely thinking of those questions in the way that we might about allergies and how important is this awareness for the health and social care agenda that we're moving into at the moment how important is it that we become fully aware just as the world health assembly said 2014 about this requirement to have it as part of an integral part of our services within all our health boards you made the point earlier about the social dimensions of this and for most people dying isn't a medical event it's a social and personal one and the personal and social services are critical to this but again they've tended not to be prominent in the dialogue about how we deliver end of life care I think integration of health and social care gives a wonderful opportunity to address this more actively to reduce inequalities to promote equality but also to build on the assets that exist in communities already I began by talking about the assets that we have in specialist palliative care but we have huge assets in our families and communities that we can build on if we can properly support those who are able to give help thank you thank you Professor Clark Mike McKenzie to be followed by Rhoda Grant thank you convener um Professor Clark I was very interested in and disappointed actually that in your suggestion that we don't have the data necessary to fully understand the current situation with regard to palliative care in Scotland I'm not quite sure if that's because of a lack of data overall or because of an inability in disaggregating the data at the Scottish level compared to the UK level and I noted in your report and I think I'm correct in saying that you weren't able to detect any significant correlation between availability and quality of palliative care with inequality so there appears to be no difference between the you know those who are better off and and worse off in their society in terms of availability of palliative care I wonder though if you've noted any regional variation and what I mean by that is that Scotland is a country with a larger rural population than the UK as a whole and I wonder if there are particular problems in delivering palliative care in rural and remote rural areas or do we just not have the data to know that well we it's a fairly weak answer but we don't have the information it isn't because data can't be got it's just that we haven't committed to getting it and to systematically analysing it and sifting it over time I don't think it's too difficult a job to be done but we do need a commitment to do it and we need some resources to support that I would like us to see us do that to build up a clearer picture of if you like the quantum of palliative care that's been delivered at the very least of specialist palliative care across the country and what if any issues arise there in in relation to access by not only where you live but your age your ethnicity your diagnosis we need some more robust data on all of those areas if we're to properly understand how palliative care functions in Scotland thank you very much that's I mean you've answered the question and no further questions could be enough thanks Mike Rosigrant just a quick question on the data and information it seems that the Scottish data is all wrapped up in the UK data and that's quite hard to extrapolate why is that given that we've got had different health services for before the Parliament I don't know why why that is the case but when I look across the piece we have some academics who are interested in this issue in Scotland we don't have a Scottish network or centre for palliative and end-of-life care studies where those people are working together in a coordinated way and a resource appropriately we don't have an end-of-life observatory that's routinely collating information of this kind we have a relatively small group of people who are doing studies and many of the studies important though they are they're based on small samples and local populations and I've been advocating for a while that we need more population based data about the need for delivery of palliative care in Scotland and I do have a role in trying to assist Scottish Government now in the preparation of its strategic framework for action for palliative and end-of-life care and the government has already identified this issue of measurement and data as a key one that the strategic framework will have to address. Okay and there have been some studies into the availability of palliative care for different conditions and I think it was McMillan that published a report saying that people with cancer were much more likely to access palliative care than people with other conditions and towards end-of-life how do we I suppose make that fairer so that people with all conditions can access palliative care? Well I think and I think I hinted at it a bit in the report that this cancer non-cancer distinction is becoming more blurred now. 10 or 15 years ago it was quite a stark comparison and you would find then as now that most specialist palliative care services are still predominantly dealing with people with a cancer diagnosis and for a time people would say that it was the passport to getting world-class palliative care to have that diagnosis and that those without it were excluded. But the nature of cancer itself is now changing it's becoming a chronic illness you might have cancer more than once in your life and you might have other conditions as well and I think it's that basket of conditions that we should focus on rather than the cancer non-cancer distinction and in particular in the context of older people you have to link it to issues about frailty as people live to advanced age and I think there's still a general acceptance that some of the barriers to accessing palliative care exist in this area and they also relate to age that palliative care has been historically rather better at responding to the needs of people with cancer in the slightly younger age groups and has not been so effective in delivering care to people in advanced old age who may have had cancer but may also have other kinds of problems this could be stroke or heart failure or orthopedic problems. So I think there's lots of opportunities there for geriatricians for orthopedic surgeons and services to be brought into the dialogue about their role in palliative care and I know that in some of our hospitals there's very good work going on where people are collaborating across specialties in this way but it's about getting this range and breadth for palliative care rather than the narrow focus of intervention. Do you think it's to do with patients being able to speak up for themselves? People with cancers who have a terminal diagnosis that is quite rapid are in reasonably good health when they're discussing palliative care and are maybe demanding of those services whereas elderly people who have maybe been in a much slower decline and people with illnesses that are in a much slower decline are maybe less able at the time when they actually need intervention to ask for that intervention and should have been doing it earlier. That's dry and I think there's an issue there about advocacy which is why I've tried to use that study that we did in the Scotland's hospitals as a platform for advocating for older people because what we found in the study was not just that 28-29% of all hospital inpatients die within a year but this figure rises very steeply with age and particularly for men so for the older men more than 50% of those in hospital will die within a year but they're not necessarily been advocated for they're not necessarily been signed posted for palliative care and this is where the involvement of some of these other specialties becomes very very important and of course the advocacy of the GP, of the social worker and of the nursing team. Thank you Rhoda, Collin Cure. Thank you convener and first of all before I ask a question just like to totally agree with your comments earlier about Dr Derek Doyle who did some remarkable work I'm not just saying that because I know of his work in terms of syncholumbus hospice and ongoing work after that but also in personal thing he would prior to moving on he was my GP so I'm absolutely delighted he's getting a degree of recognition here as he really is someone who deserves it after his lifelong work in this field. I think you've kind of answered quite a lot of what I wanted to ask through Rhoda Grant's previous question Mike Mackenzie's as well. I really wanted to go back a little bit and it's just to we've been dealing obviously with cancer care is probably the most common it's the most well known that members of the public will be aware of in terms of palliative care. I was thinking more in terms of the sort of really long term slow degenerative illnesses which seem to present a problem in themselves where they are highly depending on the speed of the individual's decline I suppose and the difficulties that we have in maintaining or going from the point of ordinary care through to palliative care and the specialisms that are required in say looking after someone would say Huntington's disease or Parkinson's disease something along those lines and is there a is there a general way that we look after people when we get to palliative care aspects or are there differences which would provide difficulties in providing the service throughout the country? Well there are some underlying principles which are probably common across all conditions. Principles of good pain and symptom management, good assessment, regular and continuous review, multidisciplinary approaches involving other colleagues, attention not just to the patient but to the family and the wider social context. I think all of those are general principles that play out in any context but there will be disease specific implications of the kind that you've highlighted, condition specific, one that you didn't mention was dementia for example. I think that although we were delighted in in our country to see palliative medicine recognised as a specialty in 1987 that perhaps it was a mistake to create a specialty with a full four year training programme of its own. What we've seen in other countries and most notably in the USA is that palliative medicine has become a subspecialty of other medical specialisations so when rather late in America part of medicine was recognised as a specialty it was of a subspecialty of about a dozen other fields so the idea being that you first of all trained in pediatrics, geriatrics, orthopedics, oncology in neurological conditions and then subspecialised for a shorter period in the palliative care of people with those conditions. So what we're seeing as a result of that is a body of knowledge and expertise building up about the specific palliative care needs sometimes complex and demanding as you've indicated of those with very particular diagnoses which need to be attended to by people who are caring for those patients in a specialist context but who are also practising these broader principles of palliative care and at the moment the difficulty has been over a long period of time that most of the focus has been on patients in the oncology setting with the diagnosis of cancer. We have got some palliative medicine services that now subspecialise to a degree in looking after the groups that you're describing but I don't think that's the solution to meeting their needs. The solution to meeting their needs comes from the specialist services that are already looking after them that need to be more attuned to the palliative care approach. Can I ask one final question in relation to this? I think it's back to where we started and about the definition of palliative care and the discussion about whether it's palliative care specialist or whether we all have responsibility to offer a degree of palliative care, whether it's family or friends or whether it's care staff coming into the home to support someone in their social care needs or whether it's someone in a residential care setting where under-pressure care staff have to provide a variety of needs perhaps for fairly elderly people who may have additional multimorbidities there or it's the nursing home. I'm just trying to tease out whether or not, as the Scottish Government develops its palliative care strategy and you're helping and assisting with that and this committee is doing an inquiry into that kind of thing about whether you would encourage us to look at the full range of social care supports. If someone's got trouble swallowing just a little bit of help in eating might come up look like a social care support but chances are it could be someone in their last year of life is part of palliative care support so would you urge us to broaden out our inquiry or focus in relation to specialisms? Definitely the latter. I've written about this elsewhere and not been in this report but I think that there are two facets to palliative care. One is the one that we've tended to dwell on this morning, seen as a kind of medical specialist service but there's also the notion of palliative care as everybody's business as a public health issue in the wider sense of public health in terms of health promotion, in terms of community assets, community engagement and I think we have a wonderful opportunity now in Scottish society to promote more discussion and involvement in that and these are things that could be found within the curriculum for excellence in our schools. We could be engaging some of these issues with our young people. We could be raising more awareness of end of life and palliative care needs across many of the subject areas we teach in university. Employers could become more sensitised, trade union members, faith groups, all kinds of community organisations have a part to play in this and I think there's a will on the part of some of the activists in palliative care in Scotland to see more of that and to recognise that the solution to those issues as the Scottish population ages and grows is not going to simply be met within the formal healthcare system and is an issue for the whole of society. I appreciate it. Given the nature of this discussion, we are at our time, I just want to check that none of my MSP colleagues want a final question. I'll give it a very brief professor. You mentioned at the beginning the work that was going on, I believe that it was with Edinburgh University. Is it a tool that they're using to try and assess the need for palliative care, that work that's being done at the moment? That's exactly it. It's work on a relatively simple tool that can be used in a lot of different contexts that would identify people who might benefit not necessarily from specialist palliative care but need greater attention given to their palliative care needs by those who are caring for them. Right across all professions, medical, allied health and carers. It's something that could be developed in that way but I have entered a slight note of caution in my report. We saw such a tool developed and rolled out in England and indeed over many many other countries in the form of the Liverpool care pathway. It wasn't well validated, it wasn't robustly tested and it ran into major problems. So whilst we're eager to see simple tools widely adopted, we need to invest the time and energy in making sure that they are robust, usable and reliable. Sorry, it was not a tool used by at Roxburgh House with Grampian, with the David Carroll consultant at that time, looking at how they measure the, more or less on a daily basis, I think it was, the patients that they had in the hospice at the time. Of course that would be a tool used with patients in a specialist setting. What's interesting about the SPICT tool is that it's about identifying people wherever they are in the system. Professor Clark, both your report, your presentation and answering questions have certainly helped this committee with the wrong-going inquiry into palliative care. I thank you for that and no doubt we'll keep the dialogue and communication going. Thank you for the work so far for the committee. That ends agenda item one. I'll just spin briefly as we set up for agenda item two, which is a round table. Thank you, Professor Clark. Okay, welcome back everyone. We now move to agenda item two, which is the health, tobacco, nicotine, et cetera, and Care Scotland bill, which is the second item on our agenda today. And it's our third evidence session on that piece of legislation. Now, when we do a round table, rather than me welcoming everyone to committee, we just do a round of introduction. So we'll start from myself and we'll just head round. I'm Bob Doris, an MSP for Glasgow and I'm deputy chair of the Health and Sport Committee. I'm Norman Proven. I'm an associate director of the Royal College of Nursing in Scotland. I'm Doug Watson. I'm the head of campaigns at Unison Scotland. Good morning, Dennis Robertson, MSP for Aberdeenshire West. Brenda Knox, health improvement lead NHS Ayrshire and Arran. Good morning, Colin Kear, MSP for Edinburgh Western. Good morning, Councillor Peter Johnson. I'm a Westwoodian Councillor, but I'm here in my capacity as the cause of a health and wellbeing spokesperson. Good morning, I'm Beth Hall and I'm an officer with COSLA. Good morning, Mr Lyle, MSP for Central Region. Good morning, I'm Donald Harley. I'm deputy secretary of the BMI in Scotland. Rhoda Grant, MSP for the Highlands and Islands. Okay, thank you everyone and you're most welcome. Now, in a moment, I'm going to ask both COSLA and RCN to give a brief two minute statement, which they requested to do. I just say before that that there's two main parts of this bill, and we've yet to hear evidence in relation to duty of candour and willful neglect. So the presentation is in your hands what you decide to give the presentations on, of course, the statement on, of course it is, but when we start our questioning, we're going to concentrate on that section of the bill first, and we will, of course, go to the other section of the bill. MSP colleagues, we don't have anyone agreed to ask the opening questions, so feel free to catch my eye once you're inspired by these two statements. Can I ask our COSLA representative to go first, who's doing the opening statement? I'm free, it's me who's done the show for this. Peter, on you go. Well, thank you for the opportunity to speak to you this morning. We begin by saying as a significant partner in the on-going campaign to reduce the number of people smoking in Scotland. COSLA has signed up to the existing tobacco control strategy in early 2013. We believe that most of the proposals set out in the bill provide the support needed to keep us aimed firmly at the national targets. The next period we believe will be particularly challenging in regard to the increasing popularity of e-cigarettes, which many people see as a means to help them quit smoking. We also recognise the risk that their popularity has the potential to undermine our efforts to denormalise smoking. We support the proposal to allow point of sale advertising. Our view is that smokers who wish to use e-cigarettes to help them quit smoking might benefit from point of sale advertising. We are concerned about the proposal to introduce legislation to ban smoking in hospital grounds. The NHS has only recently, since April 2015, extended the smoke-free area to outdoor areas and local authorities, likewise, in the process of doing the same by the end of this year. We believe therefore that there has not been sufficient time to look at the evidence base that comes from where we are currently before we should be moving to legislation. I would like to comment in respect of the duty of candour and then come on to willful neglect. With respect to the other parts of the bill, which deal with care, it goes without saying that COSLA fully supports the continuous improvement in relation to quality and safety across health and social care, and we recognise the need for disclosure and remedy of harm. However, we are uncertain as to whether more legislation is absolutely necessary to meet those objectives. We believe that this is especially the case in relation to the proposed duty of candour. The social care profession has a long history of operating with a culture of openness that supports frank discussion of potential harm and the management of risk within that context. It is not clear to us that a new duty of candour on providers of health or social care is the best or only way of securing a culture of openness and transparency across the newly integrated health and social care systems. Careful consideration of all other avenues for achieving this policy intent is, we believe, required, and it may be that securing the desired culture change should be a matter for guidance, training and bespoke improvement support rather than legislation. With regard to the part of the bill dealing with willful neglect, we would like to be clear that COSLA is committed to the principle that the state should take strong action against ill treatment or willful neglect and that people who receive health and social care services should expect to be safe from harm and be supported in an environment that respects their dignity. If we are to realise this policy intent, we believe that careful consideration of the evidence base regarding the most effective means of achieving those aims is required. Should the case be made that new legislation will aid prosecution, enhance deterrence and avoid criminalisation poor practice, we would recommend to our members that we would support the central thrust of the legislation. However, at this point, we are concerned that the likely interface between a new offence of willful neglect and a duty of candour could actually produce unintended consequences. For example, while a culture of greater openness and transparency is clearly desirable, the simultaneous introduction of a wider reaching criminal offence of neglect could be believed to mitigate against that culture. Thank you very much, counsel Johnson. I think that if you were in the chamber making that speech, the president officer might have cut you short. This certainly does myself when I go over my time, but, importantly, you put that on the record. Thank you very much. Norman, is it yourself? Indeed, yes. Thank you, convener. Good morning, members. I am pleased to be here today on behalf of the Royal College of Nursing in Scotland. The RCN is the UK's largest professional association in union for nurses, and we have around 39,000 members in Scotland. As you know, nurses and healthcare support workers make up the majority of those working in the health service in Scotland. I want to state at the start that the RCN would never condone the willful neglect or ill treatment of a patient. It goes against the very tenants of health and social care professionalism and the ethical duty of care that our members have towards their patients. However, we have serious concerns that the proposals in section 3 of the Bill will undermine efforts to encourage greater openness in healthcare professionals and organisations when something goes wrong. We also remain unconvinced that the wide range of sanctions that already exist are inadequate. There is no evidence that individuals or organisations are failing to be held to account when there are any failings in health or care delivery. We are concerned that the threat of criminal proceedings against individuals will be counterproductive to building a culture of transparency, learning and improvement within the NHS and outside the NHS. It is key for patient safety. I will leave my remarks there and I look forward to exploring the issue further today. Thank you very much for that, Mr Provan. I asked the member to catch my eye and it is very effective because Malcolm Chills has been waving at me for the last three minutes. I think that the opening question will be from Malcolm Chills. I know that we want to start with the duty of candour and offence of welfare and neglect. I really found the submissions really interested in that. I suppose particularly the contrast between the BMA and the RCN on the one hand and unison on the other. Obviously, we want to hear even more from the RCN and also from the BMA about their problems about that. I suppose that, by contrast, unison seems to be supportive of both. I suppose that the other dimension of that is quite interesting to me is to what extent we are talking about organisations and to what extent we are talking about individuals, because it looks as if unison is emphasising the organisational side of this, although presumably the offence of welfare and neglect will apply to individuals as well as organisations. However, it would be very useful for the committee if we could just draw out and try to establish the reasons why unison—obviously, a major health union—is supportive while the other two health unions, if the BMA wants, allows me to call them a union, are very much against them. I think that Donald Harley caught my eye initially. I think that Donald is useful for you to come in and say a few words on that and maybe follow by Dave Watson after that. Just a very short position which might help clarify for Malcolm and other members around the table and good morning to all. So, as you'd expect, the BMA naturally supports the principles of openness, honesty and transparency in NHS Scotland and the broad principles of person-centred safe care, which lie behind the proposals in parts two and three of the bill. However, as you've rightly noted, we do have concerns about some of the specific proposals and whether there's actually a need for legislation in these areas at all. And as has been noted really, there's a bit of a contradiction between the proposed new offence of willful neglect and ill treatment with the duty of Canada provisions, with the two working against each other, also working against the very important culture of openness and transparency that needs to lie at the heart of the NHS, which is something we need to build and sustain. I think we'd also be concerned that there's a potential for adverse impact on clinical decision making and whether that leads to risk avoidance at the margins of clinical practice. But fundamentally, if people have undue concern about consequences, whether they're going to be open to sharing information within the organisations across the NHS and helping build a learning developing NHS that I think we'd all want to see. And lastly, I think we would fundamentally need some clarity on how the apology is given under this legislation would work in practice with the UK-wide GMC standards and investigatory processes, because it's not clear to our members whether the safeguards within the bill would satisfy the GMC at a UK level. I guess the same would be true for the nursing and midwifery council, but the RCN may wish to speak to that as well. Mr Harley, I'm going to bring Dave Watson in a second, but I'm still not sure where he stands on the duty of Canada after all of that. Are you broadly supportive of it, but do you want to double check whether there's enough safeguards? It aligns with professional standards requirements at the moment in terms of duties, doesn't it? You're absolutely right. There are professional duties both within the GMC and within the nursing and midwifery council that make that incumbent upon health professionals, so there's just a real question mark about whether legislations are required on top of that and whether it creates an imposition of bureaucracy which would bear down on the edges at a time when we know that services are under real financial pressure and whether we want to add to administrative costs in the system when we know that every penny is needed for front-line care. I suppose that I apologize, Malcolm. You're opening question, but I suppose a consistent reporting and use of a duty of Canada across all health professionals via the health board would be a positive thing? In principle, I think it depends on how it's applied. Okay. I wasn't trying to lead you there. I'm just trying to establish where the being may have sitting. Dave, do you want to respond? Yes, thanks, Comedian. As much as we are broadly supportive of it, I mean we do say both in our evidence and in the submissions we made at the consultation stage that we do have, we share a lot of the concerns about the bill, about cost workload training, that there is some conflict between employment contracts and regulatory, and there is the potential at least for unintended consequences in terms of care. My bounce, we also recognise that the current system is weak in places, there is inconsistency of approach, and in some places is reluctance to Canada. I suppose if there's a difference in terms of the NHS, I think the evidence for legislation is probably thinner than it is in the social care area, and obviously we also represent large numbers of members in the social care field. As you will be aware, we've made the point particularly about the introduction of commercial pressures into social care. In our report, Time to Care, we set out the concerns of frontline staff who explain some of those commercial pressures, be that they work for commercial organisations or voluntary sector because there are contracts in place. You may have seen recently an employment tribunal case where a care manager reported in that case that she was told by her company to accept care packages even though she had no staff to deliver them, and I think all of these reflect some of the experiences we have. In that Time to Care report, I highlighted some of the focus groups for myself, staff who were clearly unwilling to report not just safety violations but care abuse as well. So there is an issue, I think, particularly in the social care sector around that. Now our view, therefore, has always been, and there's an issue of our consistency from our approach here, that we believe that legislation can drive culture change. It doesn't do so on its own. You need organisation support and other things as well. I think the evidence for that is to take drink driving, smoking in enclosed places. Of course, we've also argued the same point in relation to violence to staff, and I think if we've got a criticism, it's the Scottish Government that hasn't been consistent there. It says we need legislation here, but rejected legislation when it came to dealing with violence to staff, which we again believed would drive culture change. My argument is also correct, is that whilst there are a range of it, the important point for us in this is that the duty both in candor and certainly in the welfare and neglecting or treatment sections put emphasis on organisations as well. There's a real risk for this type of legislation to organise simply scapegoat staff, and we think the emphasis on organisations, as long as that's backed up in the guidance, the training and in the regulations, will be helpful to changing the cultures that we believe in these to be. I suppose that there's another dimension. I don't know whether those laws have been applied long enough in England or whether they're significantly different, but I wonder if any of the evidence from England—is there any evidence from England? I think that those two things are in legislation, perhaps not in the same form in England. I wonder if there's any evidence that would back up either side of that debate from England or is the legislation too different to be helpful? I don't think it's too different, it's just starting too early. There's no work being done. We haven't done surveys or our own members yet to see whether it's had any impact. Okay, anyone else be able to draw examples from England, as Malcolm was referring to? Okay, Rhoda, do you want to take the discussion out? Yes, I should put on record that I'm a UNISON member as in my register of interests. I was interested in what UNISON were saying about their disappointment about this covering only adult health and social care and that it should be extended to young people and wanting to hear other people's views on that and why they think that the Government has left out young people because they're a particularly vulnerable group as well. Only because we'll come back to you, Dave, absolutely, but Councillor Johnson will take it. On the particular issue that we're just discussing, we would support that. Given that a number of health and care partnerships, for example, are already looking to include children's services and go beyond the minimum requirement of having adult social care services included and given that children live in families, it seems a bit strange that the legislation would cover adults in the family and not children. So we would certainly take the view that children's services and the whole range of integrated services, if there is going to be legislation, should be covered. Okay. Mr Watson, do you want to? Yes. I mean, I think we feel, as in the idea earlier, that there's a need for a consistent approach here. I think I understand in fairness why it hasn't come necessarily straight away in this legislation. I think there is a complex different range of other legislation that applies to children's services, particularly to protection of children, and I think therefore there is a need to work out how the two things match together. We don't want the conflict of laws so that staff don't know which they're supposed to be operating, so what we'd like to see is a careful look at that and then ensure that we have a consistent approach across all care areas. Okay, and I just want to add to that. I've never such a passive set of witnesses in my time, and I'll give Rhoda the opportunity first because it was her question. Rhoda, do you want to come back? No, that clarifies for me. Dennis. Thank you, convener. It's really just to pursue the moment. The witnesses feel that, in some instances, the regulations that are there, say, within social work and the policies and procedures that exist, is sufficient at the moment, and they themselves could, maybe through just guidance, be improved on, rather than going down this legislative route. And I'm just wondering, you know, we had the medical act in 1983 for our doctors, and I'm just wondering, is it something like that, to some extent, that could be rolled out and embraced, which would cover the broader spectrum within the health sector. But I'm sure with the triple SC, the guidance that they have within the care sector, their guidance, is it something that we should ask them to look at, to ensure that that is taken forward and, obviously, it's robust enough without imposing legislation? Norman Provin, did you want to come on that? Yes. We feel at the moment that there is enough legislation to deal with us, both the regulatory legislation through the GMC and the NMC and other places that can take hold professionals to account for the behaviours that they have. Also, in common, law, assault and the judicial system in Scotland can deal with that, and we also have to protect in vulnerable groups legislation, which is slowly becoming embedded into the system. In our view, it is that you don't need additional legislation at that point for the specific claim of willful neglect. There is enough in the system to deal with that at the moment, and if I could illustrate that with a point, obviously there are people who are already covered under the Mental Health Act in relation to willful neglect. The Royal College of Nursing at the moment is handling somewhere in the region of 600 cases across a whole spectrum of services that we provide employment, personal injury and regulatory work. At the moment, we are dealing with just two cases that constitute where someone might have been accused of neglect. My question would be with the legislation that we have in place, do we need another layer of legislation here? Thank you, Norman. Donald Harley, did you want to come in on that? Yes. Thank you, convener. Just to follow up on the point about the medical acts, and clearly the provisions that the GMC makes for doctors are very onerous indeed. As you will be aware, in many instances, when doctors are under investigation, they can be career limiting or career ending. The regulatory mechanism there has real teeth, and we see it on a daily basis. In fact, perhaps it is strange, really, that there is nobody here from the GMC to act as a witness to give account to that. Certainly, there have been well-publicised cases in Aberdeen recently, for example, where that has been seen in operation. So, there are no doubts that the system is working, and there are strong duties on all medical practitioners to adhere to the standards in place and to account for themselves if they don't, to the extent of losing their career. There are duties on other medical practitioners to report poor practice whenever and wherever they see it, so I have no hesitation in saying that we believe that there are strong systems in place already for the legislation that is not needed. Thank you, Mr Harli. Beth Hall? Thanks. It is moving just to pick up on some of the points that Mr Proffin was making, and to agree that the problem is not lack of legislation. We have a huge amount of legislation in place, especially in relation to the social care field where we have adult support and protection act, where we have adults with incapacity and various pieces of mental health legislation that have been mentioned. The problem is not lack of legislation, the problem is lack of investment in social care, and what we need to see is better leadership, better training, a culture shift, and layering more legislation on top is not the way to achieve that. Can I move on a bit about that? I am trying to understand in my own mind why there is such disagreement on that. I wonder whether the problem is in a way that the fact that it is in mental health legislation almost becomes an argument for extending it to other spheres. Is the issue now that ill treatment and welfare neglected is quite a serious, severe, limited category? The arguments against it seem to be more straying into the area. We all know that, in terms of errors and mistakes that people make, we must have a no-blame culture where we can learn and improve. To me, there are two separate things and they are getting confused. Ill treatment and welfare neglected is very much the extreme end of it, and I do not think that that is going to impact on the culture of improvement that we want—no-blame culture of improvement. It seems to me that, at least that is the question that I have in my head at the moment, whether the RSN and the BMA are confusing those two categories. I go back to the point that it is in mental health legislation, and I have to declare an interest in that, and I have not been involved in it. The fact that it is there, to me, becomes an argument for putting it into other spheres. The question in your head has certainly got the reaction from one or two of our witnesses. Can I just tack on to that? Malcolm is talking about the major and significant end of the spectrum in terms of duty of candor and welfare, and I will not neglect him. That is the point that you were making. There is a list of triggers within the bill that, when you talk about your answer to Malcolm, you might want to refer to whether you think irrespective of whether you agree with the duty of candor or not, whether you think that the triggers are appropriate because we are scrutinising this legislation not just based on whether it is needed but on the content within the bill. Just for clarity, the bill would propose that whether a person experiences an unintended or unexpected incident during their care, which could have resulted in death or harm, the other social care organisation would be required to implement the duty of candor procedure. The triggers, as I am sure you know, would be if death could have happened, severe harm. I will go through one or two more but I will not read them all out. Paying or psychological harm lasting at least 20 continuous days of the person who requires treatment by a doctor to prevent their death or any of the other outcomes above. There is a cluster of triggers there if you would like. If you could deal with Malcolm's question and try to tease out why there is this resistance to having this despite the fact that it is quite at the extreme or major end of the spectrum but also in the mechanics of the legislation as well, have we got that balance right now? Beth Hall is caught my ass, as Dave Watson. Beth, do you want to go in first? There are two questions there, maybe just to deal with the first one around the interface between the two pieces of legislation. I recognise that willful neglect would be at very much at the extreme end of the spectrum but I think that some of the concerns are around how would that operate in practice and how would that be perceived by staff members at the front line? For example, if I was working in a social care setting and I witnessed something going wrong or something went wrong because of my actions, the question is would I be more or less likely to be open about that or indeed to whistle blow if the consequences are potentially now much more serious? If I decide to whistle blow on a colleague, it is no longer about whether they are going to lose their job or not. In my mind, I might now be questioning whether that could lead to criminal charges. The worry is that the interface between the two could mitigate against that culture of openness. For all of us sitting here in this room, it is easy for us to say, while no willful neglect would be right up at the tight end, it would be defined this way, etc. I actually asked someone working in social care the other day who was telling me a story about how she recently whistled blue on someone, whether she would have made a different decision or whether it would have given her pause if there was this new offence in place. Her answer to that was, yes, she may have acted differently. That is the first point, the second point around the triggers for the duty of candor. Yes, we do have some concerns around them, especially in relation to pain and psychological harm. That can be quite difficult to define, especially if you are dealing with someone who lacks capacity. The concern there is that you could have either at the one extreme a lot of trigger events or at the other extreme that being insufficiently understood to be able to achieve what it sets out to. In thinking that through how it might affect the health and social care system, we had originally been concerned that some of those triggers could actually be covered under delayed discharge. You could see a delayed discharge leading to those circumstances. What we would now be doing is layering another layer of bureaucracy across the top of that process, which is the last thing that you want to do when you are trying to facilitate smooth and speedy discharge from hospitals. I think that no-one is disputing whether there is a lot of legislation at the moment, but we also accept, as our report shows, that there are hundreds, in fact, several thousand responses to our survey and the focus groups from frontline staff who are giving care in a range of settings at present. What was clear from there that a number of people had seen events that you would expect them to declare to a duty of Canada, and in some cases, matters that would have come under the Part 3 requirements as well, and they are not doing so at present. Clearly, there is an issue in that. For me, the important point here is that the current range of rules do not really bear down on organisations, and, importantly, the controlling voice of those organisations, the directors and others, managers, and, in fairness to them, they are put under, in some cases, very big commercial pressures to do so. That is why we find too many cases where organisations choose to scapegoat the frontline staff for what is happening in those organisations, rather than accepting it is the policy of those organisations, chasing work that they have not got the resources to deliver, or asking staff to deliver care without sufficient time to do so. I think particularly helpful, we thought, in Part 3, is the powers for remedial orders and publicity orders. We felt that, and I also like the ability of the prosecutor to appeal against the failure to use those as well. I think what that does do is put a focus on the controlling voice of organisations that they are not exempt. They cannot just pass the buck every time. If there are failings in the organisation, then that organisation could be criminally responsible as well. So, I think that will put a real, it is a bit like Cobble Homicide and other examples where we have argued in the past that there is a need to put some responsibility on the controlling minds of organisations. Now, it may or may not work, but I think that that is one of the ways that this legislation does shift in a different direction. I had indicated earlier that the Royal College of National is currently handling about 600 cases. That is not unusual. I have been in post seven years and in the seven years I have been in post not once has the legislation protecting mental health people been used for any of the cases. So, there is very, very low usage of the legislation that is currently out there. That is one of the reasons why I do not think that it needs to be extended to the adult population. One of our major concerns here is that the thrust of the bill that part 3 might nullify part 2. What we require here is, yes, a duty of candor. We want organisations to have an improvement methodology where, when things go wrong, they are openly, transparently examined and patients are advised of those. My fear is that by introducing the potential for criminal offence that you are going to nullify people's confidence to come forward and take part in the duty of candor. That is the first thing. The second thing, I would like to build on a point that Dave made. By illustrating with an example, one of my staff occasionally works bank nursing shifts to remain connected with the clinical profession that he chose before he came to work for the Royal College of Nursing. He was booked to do a shift in a NHS hospital in the NHS in Scotland. I will not name the board. When he turned up for his 12-hour shift, he was advised that the other trained nurse who was due to be on duty with him had phoned in sick, and therefore he would be the only trained nurse on shift. The three care assistants that would be working with him were all bank workers. Not a single person on that 12-hour shift in that hospital ward knew any of the patients in that ward or the routine. He immediately felt that the risks for him as a professional registrant were too great. He advised the manager who had made the decision and was told that there was no additional resources that could be employed to help him. He was also told that the ward next door, the nursing charge, was not competent to do intravenous drugs, and he would have to go and do the drug round in the ward next door as well during that 12-hour shift. It wasn't until he identified himself as a full-time member of the Royal College of Nursing and insisted about the risks that he felt he was being placed under that additional resources were given. My concern is that, if that had been a nurse who hadn't worked for the Royal College of Nursing and didn't have the confidence to robustly challenge that, had worked that shift and made an error, who would have been held accountable? It would have been him as an individual registrant and not the non-clinical manager who was initially making the decision to employ no additional resources. That is the risk. If something had went wrong, in my experience it is the person who is delivering the care that is held to account. Under those circumstances of this bill in relation to willful neglect, it would have been that nurse and not the organisation that was held to account, and that feels wrong. Donald will bring in, in a moment, because I think that that was quite a good example, which links in quite nicely to the point that Dave Watson was making about where there are systems failures and the workforce on the ground feeling that they could be culpable for the systems failures. Mr Proven, just in relation to that, who would have been the systems person that, in theory, would have been responsible for that? Would it have been the nurse coordinator for the health board or for that particular nursing discipline within the health board? Maybe give a little bit more information on that and then tease out where you feel if you like the buck should stop or the improvement should kick in. It very much varies from board to board. The clinical structures and boards are not the same in every board in Scotland. The example that I gave was a weekend shift when there wasn't any professional nurse on, so the decision was made by somebody in a general management position who had no clinical background and wasn't qualified to assess the risk. They were equally under pressure of having no additional resources that they could immediately move. From a clinical perspective, the nursing charge of that ward would have been responsible for the decisions had he continued to take on that shift and work without any additional resources. That's a professional decision that they're making based on their assessment of the risk. Technically, the director of nursing arguably could be the person who's responsible for the quality of care right the way through a system, but providing care 24-7 is impossible for that person always to be cited or to be available. In my experience of the cases that we have, where there are care failures, there are very, very small number of occasions where it's actually just the interventions or the actions of an individual nurse. It's more often systematic examples like the one that I have just described to you that have added risk for that individual, but inevitably it is the individual registrant who's eventually held to account. I appreciate you expanding on that because I think that's something we'll have to grapple with as a committee in relation to where the culpability sits if and when this is passed. Donald, my apologies. Donald Harrell, you wanted to come in on this. That's all right. I think I'll probably end up echoing Norman and Dave to some extent. The point was previously made, though, that these sanctions are all at the extreme end of what happens on a day-to-day basis. That really just speaks to me about the fact that that's where the existing criminal, civil and professional sanctions come into play. I haven't really seen any evidence as to why they would not be appropriate or don't work. Without that evidence, it's difficult to argue that there's a case to change. In terms of the concepts of ill treatments or willful neglect, we have two concerns around those that are not particularly well-defined, but also, and just picking up on the point that Norman was making there, how many of these issues, and we saw it in the Francis report and all the rest of it, how many of these issues are down to people being overstretched and put under pressure and are organisational failings? Dave mentioned that when these things come out, people are held up as scapegoats and put to blame of it within the existing arrangements within organisations. I suppose there has to be a worry that the criminal sanctions are applied following this legislation, that they would then be the victims of that as much as the organisational sanctions, so it would be an even worse wrong committed on healthcare staff. But fundamentally, I think we are worried that this makes things worse for staff trying to do their duties in difficult circumstances and it works against the abilities of organisations to learn and develop and adopt that openness and candor that we have talked about in part 2. I think that this has been quite clear in terms of making sure that there are safeguards and non-intended consequences in terms of the legislation, and that has been quite helpful when we look at our evidence. I want to take us through more of the detail of the bill, but Malcolm, do you want to come back in because you asked the initial question? No, that is very helpful. Is that not right? Okay. Now, I am going to specifically look at the duty of candor, because the procedure would be triggered when in the opinion of a health professional not involving the person's care the incident resulted or could result in death or harm, so it is the idea of that person being an independent health professional. There may be a variance of views that if this legislation goes forward, should that be an independent person? Is that the most appropriate way to do it or would it actually conversely be more helpful if it is someone who could contextualise what had happened in relation to whatever that incident was? We are scrutinising the nuts and bolts of this piece of legislation, not just the principles behind it, so do witnesses have any comments to help us in our deliberations in relation to whether that has been independent health professional and how that might operate? No takers on that. We are all happy with that. I should have said that we are all happy with that two-hands go-up. Let's take Donald Harley first this time. Just to build very slightly and briefly on the point that I was making before about being careful, it doesn't become a burden on the system at this particular point in time, but from our particular point of view we'd be particularly worried about general practices, which are essentially very small organisations, and the worry would be that it would provide a disproportionate burden on them. As I'm sure the committee is well aware, general practice is under great strain at the moment, and there have been a number of publicised cases of practices being unable to continue, so we wouldn't want to see any more unnecessary undue burdens placed upon them. I think that, in the sense of this, you need a bit of both, particularly when the bill is looking at near misses rather than actual events. You're going to require staff who are close to the patient that witness something that could result in harm reporting them. In the first instance, you need a robust mechanism for staff to be able to raise concerns. In the situation in which a third party is the person who looks at that incident in some detail, that can be quite helpful to have somebody who's emotionally removed from the incident to look at it in an independent way. From our perspective, in the consultation response that we wrote, we made it quite clear that it will require the boards to train people to a high level to do that type of intervention, to look objectively at an incident and properly describe it for the board so that decisions can be made. Staff need to be supported and properly trained to undertake that role. We wouldn't have any objection to that being a third party if that was appropriate, but it would have to, in the first instance, be absolutely acknowledged that some of those near misses would have to be identified close to the patient by the people involved directly in their care and reported to the board for them to fulfil that function. Can I ask maybe how some of the witnesses would feel, because it is down in the Bill of Endersland that it's a healthcare professional, but this could happen in a social care setting where most of the staff are involved in the co-face providing day-to-day social care. Is that appropriate that it should remain a healthcare professional? Are you content with that or does it matter? I'm not trying to draw you in here, Mr Watson, but I just wonder if you have a comment on that. Obviously, we've only got the outline in the Bill that these matters have been covered by regulation. It wasn't clear to me in reading how that would apply in a social care setting. Thank me, it's not entirely clear. I wouldn't necessarily apply in some health community care settings as well. It's a very easy model to see how it might work in a hospital, how it might work even in a residential setting, but it's not entirely clear to me how it would work there, so I think it would be interesting to see. I couldn't see anything in the policy memorandum that explained either how the Government felt that this would apply in social care settings. Beth Hall, and then Peter Johnson—we'll take you in after that, Norman. You can both speak if you want. It's up to you. I think that this is a very difficult one to answer. First of all, in terms of being a healthcare professional every time, I don't think that that would be appropriate. In terms of what would be appropriate, it's very difficult to call. Partially that is because the issues are very complex, they're complex, especially when you're dealing with people who lack capacity, where perhaps the staff members—it's only the staff members closest to that person—would perhaps be capable of identifying things in the first place. I'm sorry that I'm not giving any proposed solution here, and I think that those difficulties lie under our nervousness around legislating. I think that as soon as you try to legislate for those circumstances, you'll arrive at a very imperfect solution. We already have examples of integrated services such as React in Westworldian, where you have medical staff, social care staff, all working in someone's home at the same time, delivering a package of care. It would be very difficult to have legislation that would focus on healthcare workers as part of an integrated team and not deal with a whole team. That's just an example of why we consider, as Beth has said, that it's very difficult to promote legislation that can deal with it. Our view is that it's much better if you're dealing with this issue through improvement and a culture of openness and transparency. Thank you very much, Councillor Johnston. Just very briefly, I think that it's convenient that you make a very fair point. The traditional boundaries between healthcare and social care services are becoming increasingly blurred and, in fact, staff are working in a more integrated way, and that's the policy direction in Scotland. So I do wonder who then would have the responsibility for the duty of candor disclosure in these circumstances. Would it be the health board? Would it be the local council? Would it be the integrated joint boards, the new entity that's coming along? I'm not sure that that's sufficiently covered here, and it's a fair point that it would have to be absolutely explicit who's responsibility was to pick up a case determined, presumably, by the environment in which the incident happened. Thank you. There's one more question that we're going to ask in this section of the bill, and what I'm really doing is giving Richard Lyle a heads up who's going to take us on to the next section of the bill shortly. Okay, Mr Lyle. We've already spoken a little bit about what the definition of willful, neglect or ill treatment should be or how broadly defined would it be and that's not as clear as yet. In evidence, some people question whether ill treatment could include genuine errors, perhaps drug errors, for example, Mr Provin or Mr Watson was referring to could be a resource allocation issue. Maybe just your opportunity to put on the record how you think. Let's work on the basis that this goes through the legislative process and becomes law. How would you like to see willful, neglect or ill treatment defined, or what kind of safeguards would you like to have within? That's your opportunity to put some of that on the record to help us in our stage 1 deliberations. Any takers in relation to that? Mr Provin? The notion of genuine error being considered as willful, neglect just seems quite astonishing to me. We require a culture where, when mistakes are made, people can learn from them. The example that you gave of drug errors do happen, but not because people are neglectful, because genuine mistakes can happen. I remember having a discussion with a manager in a health board in Scotland after a drug error by a nurse, and I pointed out that that nurse in a busy medical ward will perhaps have 30 patients with comorbidity, given six or seven dispensing actions to each of those patients twice or three times a day, hundreds of thousands over the course of a year, millions over the course of their career. The chance of them never making one simple error is fairly remote, and the principle that they could be criminalised for a simple error rather than an improvement strategy to put in seems to me that it will drive errors underground. People will not be honest and open about when errors happen for the fear of the impact that they have in their career, rather than having a real environment where improvement drove error reduction. I'm sorry that I gave that as an example of a drug error. I was hopefully trying to give the suggestion that that's the kind of thing that hopefully wouldn't be captured within the willful neglect. I don't think that there's any suggestion that it would be. I would suggest that. If you look at fairly major care failures, such as winterborne view, the learning disability example that was on panorama, where people are shown to act in a way that's cruel towards people, that is a premeditated decision that somebody has made to act in a way that's unreasonable, I would regard that potentially as willful neglect rather than error. I think that's perhaps where I was trying to tease out the question. I want to run through a list of, I know that a drug error's not trivial, but in relation to some of the large things that willful neglect could capture, it would be the lower end. I'm trying to tease out where you think that the willful neglect should sit in terms of the kind of things that would be captured. Thank you for pointing that out. I don't know if anyone else wants to add to that before we move on. Beth Hall? I would have to agree that we need a very tight definition of willful neglect so that we avoid criminalising behaviours where people would otherwise have been censured for poor practice. It's not that there would have been no action, but there would have been a lower order. Something that we haven't touched on in terms of the definition of willful neglect up till now is the scope and the settings that it would apply in. I think that the bill seems to suggest that it would be in formal care settings, so it needs to be clear whether that would apply to someone's home or not. I'm thinking of people receiving social care at home. I would suggest that, if the bill does go ahead, it would need to apply to those settings, too. The bill uses the language of care worker, but there's no clear definition of what that would mean. I would take that to mean paid staff. Therefore, there's the question of whether it applies to familial care. More and more of our same family members are providing significant amounts of care for people, especially in relation to social care. Under some circumstances—albeit exceptional circumstances—family members can actually be employed as personal assistants under the Self-Directed Support Act. We would suggest that, in those circumstances, the definition of care worker should apply to those people and that the offence of willful neglect, the scope, should include that. I'll take other witnesses in a second. We are moving on shortly to the next section. Dennis Robertson wanted to come in, so I'll take Dennis first, so you can walk up what Dennis is calling. Beth, more or less, covered the issue that I was going to raise. My understanding is, and perhaps Mr Brogan could, or maybe take me through this, is it not the situation at the moment where a mistake happens and it's recognised, and say death does result, that it is investigated. If there were to be circumstances where there was suspicion around and perhaps willful neglect during that care, that would be brought to the attention anyway of the profession. Could it not then result in criminal proceedings? I'll bring in Mr Provin, but just to give a note, because I want to cover the first part of the Bill. If you could answer that, Mr Provin, and then Dave Watson and Daryl Tarly indicated that they wished to make some additional comments, and we'll move on at that point. Richard O'Kane will take you in. I'll be brief. Yes, there are indeed systems in place where errors happen for those to be appropriately investigated, both within boards and other places where care is provided. Should fault be found, nurses, for example, could be reported to the NMC and removed from the register if they were unfit to practice. The protecting vulnerable groups legislation can bar people from working with adults or for children, or indeed both, if it's felt that they can't provide good care. That goes back to the initial point that I made that I don't think we need additional legislation. I think that, both through regulatory and the law, as it stands just now, there is enough to be able to sanction people without any additional legislation around willful neglect. I was going to make broad the same point that the best made about self-directed care. I think that there are some vaguenesses in part 2 of the act. Obviously, it talks about volunteers, but only volunteers who are essentially controlled by an organisation. I think there's some clarity there. There's even less clarity in relation to part 3. I think with the growth of personalisation of self-directed care, I think we need to be clear there, particularly when some of the registration provisions at the moment don't always cover every form of care in that area as well. It is important that we keep up a date with current practice. I think in relation to all treatment and willful neglect, there are words on the face of that. I think it's very important that prosecutors in particular understand what the mens reir of the offence would be in terms of criminal law. I think it's also important. Increasingly, in Scots law, we are following European practice of a purposeive approach to legislation. I think if I was the judge in a case, I'd be wanting to know what the ill that Parliament felt needed to be cured here. I think it would be helpful as you tease out the bill and get further evidence if that is clarified so that, when guidance and other issues on this, we can refer to the ill that you were seeking to correct in passing this legislation. Thank you very much, Mr Watson. On this section, Mr Harley will give you the last word and then we'll move on. Thank you very much. Very briefly. I suppose what would worry us is that neglect is a symptom of systemic failings of a system under overstretch. And if people perhaps sometimes receive less care than they might, or less good quality care than they might, because healthcare practitioners, whether they be nurses, doctors, healthcare assistants, social care workers, call it what you will, are running from pillar to post and have to prioritise, they haven't necessarily given everything the best practice might require in a given situation. That then might be deemed to be neglect, and then those individuals are paying the price of the systemic failings. That was what was fundamentally safeguarded against in any legislation going forward. Okay, thank you, Mr Harley. That changed very much. Mr Watson was saying earlier on in his evidence and we'll look at that carefully. You've waited a long time, Richard, to come in with your question, but Richard Lyle MSP. Thank you, convener. I actually have two questions, but I'll try and contain it. We heard last week from the advertising agency and also from one of the manufacturers that advertising on TV for e-cigarettes should be allowed. Basically, we have stocked advertising of cigarettes many years ago, but I would like to know what people feel about that. The BMA and their submission have made quite a powerful argument in the fact that they have concerns expressed over e-cigarette marketing methods. Those are being targeted at young people whilst we're bringing another age limit. They're maybe near schools. You've actually went on to say that, basically, most people have said that e-cigarettes are in helping smokers to come off smoking to move to e-cigarettes. What you're suggesting is that we're actually having also the reverse, where people who are maybe trying e-cigarettes are then moving on to smoking, so maybe you want to explore that. I thought that it was quite in your evidence. She also said that internationally it's suggested that e-cigarettes are acting as a gateway to smoking. What's your view about advertising? What's everyone's view in regards to the age limit being put in? Let's face it, a child could walk into a shop today and buy an e-cigarette, hopefully not, but by law, basically, we have to change it and ensure that there is an age limit. I'm referring to age limits, and I think that Mr Harley, you have to come in first in relation to this one. I think what we've seen on a global basis, particularly in the US, is the manufacturers adopting many of the same marketing approaches that we saw for tobacco decades ago with a lifestyle approach that's aimed at attracting youngsters from a very early age into a lifetime of using a particular product. Although potentially they may be a lesser risk than conventional cigarettes, we'd nevertheless have the concern about potential for addiction and luring people at an early age. On the balance of harms, although there seems to be some evidence supporting smoking cessation and helping people to quit smoking amongst their existing population, that may be some extent offset by attracting people at the other end. We're not fully aware of all the harms yet that may be associated with e-cigarettes, and we do know that it's already not entirely harm-free, which, in our view, points to the need for very clear regulation and very clear study of the harms. I think that the challenge is obviously to get the balance right between assisting people to quit smoking by using e-cigarettes, but at the same time not leading new users into the market. We would argue that TV advertising reaches everybody and therefore would not be acceptable because that could induce young people, non-smokers, to perhaps look at this product. However, we would equally suggest, as I said in my opening comments, that a point of sale advertising that is appropriate could assist people in moving away from smoking. We think that that's about the balance currently, although we recognise that the jury is still out on it. Perhaps it will take a decade before the results come in to say that e-cigarettes are actually not harmful. Before I take Richard Barker and just expand on that, yes, of course. Brenda? We would agree that it's important to reduce access to e-cigarettes by young people. There doesn't seem to be any reason to try and induce young people into use of e-cigarettes, apart from increasing the use of nicotine or increasing profits of the people who are selling the particular products. The other thing to perhaps bear in mind is that young people are not the same as established smokers, so they will not have the same level of nicotine addiction. Perhaps the use of e-cigarettes will increase that addiction to nicotine on the basis that it is safer. The idea that e-cigarettes are useful in terms of supporting people to stop smoking is something to be pursued. I think that the restriction to young people is something that we should certainly put in place. I know that Mike Mackenzie wants to come in and make a comment here. Please feel free to catch my if you want it on age and on advertising. Anything on that will be your opportunity, because then Richard Barker will move on to the next section. In relation to what we have just heard from witnesses, I wonder if they would be good enough to share with the committee. Perhaps in writing later on, if there is any evidence that they can quote to support the views that we have just heard, we would be very interested to see evidence, particularly from the BMA, who I would expect most of all to operate on the basis of evidence. Okay, now, Donald, I will come back to you maybe at the end to say a little bit more about that, but other folk have indicated that they wish in. Okay, we'll take, Dennis is on, because we'll let witnesses in, obviously they want to speak, but it is on the same point, Dennis, and they can walk up to these comments on you very much. Just in the point of advertising at the point of sale, and it was maybe a point that Mr Johnson was making, should this advertising at point of sale include formalities? Okay, very specific, so I've now got my list of people that I'm coming back to. We're coming back to Donald Harlan, we're coming back to Councillor Johnson, but Norman Proven, you've waited patiently once again. Yeah, just to say that we would support the age restriction in relation to these products. We don't, we think that there is a risk that this could be a new route to market for tobacco companies in relation to nicotine, so we would very much support the age restriction. In relation to the issue of advertising, we believe that there is growing evidence that e-cigarettes and vaping can be a good route to stopping established smokers from smoking, and that should be encouraged. We would, in relation to your exact question about, for example, pharmacies, you could advertise products as a method of stopping smoking in the same way as nicotine patches and gum and all of the other uses of nicotine replacement products could be used, so we would have no objection to that type of advertising, but the principle of advertising on television to entice people to take up vaping in the way that people used to advertise to entice people to take up smoking we would not support. Okay, thank you Mr Proven. Donald Harlan, in relation to evidence, feel free to write to us, but I don't know if you want to say something about the evidence? I think we've provided it in our submission. There's a long list of references there. Right. Okay, thank you. We will interrogate that in more detail after this meeting. And Councillor Johnson? I think that Mr Proven covered the points that we would make. We would agree with his position that if pharmacists are going to be selling these products, it would make sense for them to have a point of sale advertising as a non-smoking and non-smoking method. Okay, thank you. Yes, of course, Brenda. Just one issue is that we would like, in the smoke cessation field, we would like a bit more evidence in relation to which particular products work best in terms of e-cigarettes. They are non-regulated, so it's difficult for the smoke cessation field to say, well, that product will work for you or that product won't, so what we do say is if you find e-cigarettes useful, we will support you with behavioural support, but I think the regulation of the market in terms of support to smoke and cessation should be looked at as well. So it's not just a case of advertising it, just the product, but if it's making claim to support smoke and cessation, it should be better regulated. That's the helpful one. I won't bring you back in, but I'll just put on record a saw Donald Harley nodding head as you were saying that. Richard Lyle, do you want to move the conversation on? Yes. Can I turn to smoking on NHS premises, particularly outside hospitals? I have to again put on record, as a smoker, I abhor people standing outside hospital entrances, but as a smoker, I also suggest that we should have a perimeter that people should be able to smoke or even, dare I suggest, a shelter where people can be spoken to in order to try and get them off smoking. You can maybe have someone standing beside the shelter doing that, but basically the situation, most people coming out of hospital, having seen their loved ones, maybe have died or have been told they have a particular serious illness, people do come out and have a cigarette, but I would suggest that they shouldn't smoke. To go outside the perimeter of the hospital, and some hospitals can mean a quarter-mile walk or can be late at night be dangerous, and let's face it, patients do also go outside hospital to have a cigarette. We all see them. I noticed that NHS Ayrshire and Arran, and sorry, Brenda, I'm going to put you in the firing line, but I'm also going to put councillor Johnson in the firing line to ask him in regards to the respect that I have for cause-less position, but in particular Ayrshire and Arran have moved, unlike other health authorities in Scotland, have moved to a total ban, and it seems to be working. Can you explain the reasons why? I think in a second that we'll maybe put them on the spot, rather than in the firing line. Rephrase that on the spot. Yes, and I think you get a name check there, councillor Johnson, so we'll come to you in a moment as well, so Brenda Knox. I suppose that the difference between Ayrshire and Arran and some of the other health board areas is that we took a stepped approach to the implementation of smoking on hospital grounds, and our experience with our first version, which was just after 2006 when the first legislation came in, was that what we did introduce was a 15-metre rule, and that was about trying to get people away from the doors, and we found it totally impractical because people don't know what 15 metres is. To try and map that out round huge hospital grounds is almost impossible. There is no one building, there isn't one building in hospital campus, there's many buildings, so if you start to say 15 metres from that building, then 50 metres from that building, so then it becomes complicated and it's confusing and people really didn't like it, and therefore it opened up the route for people just to say a lot of the smoke wherever I like, and that led to huge amounts of complaints from people coming through the doors and feeling that I thought you were supposed to protect us and you're not. So what we then looked at was, our next phase was a stepped approach, was that smoking in only one area, so it was a designated area, was the view that we would move towards smoke-free grounds at some time in the future, which hadn't been decided, but then the guidance from the national policy came in, so then that's when we moved to smoke-free grounds. I would say that at each level the number of people who comply increases, so what we're now moving to is a small number of people who are not complying, and I would say that generally speaking the hospital doors do not have lots of people standing outside them smoking, although I think perhaps we're going to get into the situation where people think, because there's no way in which anything's going to happen to them, then we'll just do it anyway, so that that may well mean that there'll be a regressive move in the future. So we would welcome legislation that supports smoke-free grounds, because I think that the important thing is, whilst it's about protecting people going in and out of the doors, it's also about the message that smoking will harm health, and a health organisation has to get that message out to people. It's not about being anti-smoker, it's about being anti-smoking, and so therefore if you have images of people standing around doors smoking on grounds, then what really the message you're giving is, I'm telling you that smoking is harmful, but it's not really that harmful because we're not going to create an image of smoke-free within our grounds, and I think that's the important message. That will be the thing that moves forward. What's made us successful, I think, is because we have, over the last year, before the implementation, we had a plan of engaging with people, we engaged with the general public, we engaged with local press, the local press were very helpful in advertising and letting people know what the policy was going to be. We're also now within the hospitals. All smokers are given an intervention by the fresh air, which is a smoke cessation service, to help them to manage their smoking. The officers have a conversation with smokers who are in hospital for treatment to look at the options that are available to them so that they can get symptomatic relief NRT, so that means that they're not making a commitment to stopping in the long term, but they're being given support to handle the withdrawal symptoms while they are in hospital. They're given some information about the importance of keeping the home smoke free so that that protects the loved ones but also protects them. They're also given some information about how smoking can help them in the longer run in terms of the health and alleviation in the situation, and if they want they will be given support in terms of trying to quit, and that's followed up when they leave and we give them telephone support and they're encouraged to go along to a group or to, we'll meet with them individually when they feel able to do so. I think that that's helped us to be successful. Thank you, and we'll get you back in later when the discussion develops. The councillor Johnson, you thought you'd forgotten about you but I hadn't. You were name checked. I think the first thing I have to say is that the cause of the position is that we are absolutely signed up to the principle of stopping smoking in public areas. What concerns us is the difficulty in actually delivering on that commitment, and we're not sure that legislation, first of all, can be justified currently given it's only April since the NHS began the process and local authorities haven't told the end of this year to introduce that. What we're talking about, for example, in my own council we had a discussion, I don't know if you know, the Civic Centre in Livingston, and we've seen it on the TV, it's where the High Court meets and we have an area of about 15 metres currently, where we have 15 metres from the door, there's no smoking allowed, so what happens is people then will gather from the 15 meter mark for the next 20 metres. We're now going to extend that to the perimeter where the footpath comes and we're looking to do that by the end of this year, and we recognise that it's changing a culture that it's going to deliver on this. We're going to be looking to have no smoking in children's play areas, but it's a long time since local authorities had parkeys who maintained children's play areas or went round and enforced behaviour in children's play areas, which I suppose leads me on to the concern that if there is legislation, who's going to enforce it? Is it going to be local authorities who get the phone call? Again, coming back to an example, in Livingston that somebody is smoking in the grounds of St John's hospital, the Civic Centre is about a quarter of a mile from that. If we're supposed to send someone from the council up to enforce that, we don't have the resource to do that. So what is the point in legislation that is not going to be enforced? If we are going to proceed with legislation, and I think at this stage what Coswell is saying, we don't know if that's the right way to go, but if it is going to be proceeded with, then the resources to enforce that have to be made available, or else what is the point of it? Mr Watson, were you born again? Indeed. Obviously, we support the principle and have done, from the outset, there have been some areas where it's perhaps been constantly applied, but we've resolved those locally in partnership with the employers. I do think we need to recognise that it's particularly our members in hospitals that find this can be a challenge, security staff, porters and others who often end up having to try and deal with these issues. I did have some concerns when I initially looked at the bill when there was an offence of knowingly permitting others to do that and how broadly that might be applied. I think it's not entirely clear. The definition says having the management and control of the no smoking area. Is that the management's responsibility? Is that an individual porter? Is that an individual member's security staff? It's not entirely clear to me on that basis, but I think the phrase knowingly permitted is probably fairly good, and that might well give some comfort to our members. I understand why the issue of perimeter. I understand Brenda's point that it's very difficult to draw these lines, but it's not just one hospital. There are hospitals in Scotland that have enormous areas of grounds, and I think therefore you've got to have some way of dealing with that. I think it's going to be hugely difficult in signage and other terms to do this, but nonetheless, I think probably just saying a blanket it's all grounds is probably not very practical. The last point I'd make is obviously the point of enforcement very much. We obviously represent the Environmental Health Department staff as well who are tasked with enforcing the current provisions. I have to tell you the resources in those departments we produced a report last year, which was a survey of environmental health staff who made the point that they've actually abandoned the whole areas of legislation that they're supposed to enforce health and safety, in fact even quite a lot of food inspection. They've had to abandon that because of resources. The idea that they're going to be ending a phone charging up the hospital to enforce the smoking I think isn't going to happen. Passing legislation is fine, and as I said in relation to parts two and three of the bill can change culture, and that's why we've always supported the smoking legislation, but we need to be realistic about the resources available in local authorities to enforce this. Thank you. Now I don't see any my MSP colleagues or witnesses wishing to come in further, unless anyone wishes to catch my eye. Okay, well we've got a little bit of a time in hand, so what we might do if we're drawing to a natural close in terms of the questions that have been asked is we'll maybe just very briefly give each of the witnesses if there's something you want to reflect on from today's evidence, not a speech or a long statement, but a couple of sentences give you the opportunity if you feel you haven't the chance to say what you wanted to say, although I suspect given the fact that we are now finished with our questioning that may not be the case, but you never know, we'll start with yourself Norman, is there anything you want to? Well as I remain a registered nurse and committed non-spoker I feel obliged to do a brief intervention with Richard Lyle and tell him that smoking is very bad for your health and your health board can assist you with methods. My grandson at three is now telling me that smoking is not as bad for my hair. Indeed, but more seriously, I go back to the original point that we made in relation to parts two and three, the bill that our fear is that part three of the bill will nullify the intent of part two. We very much support the principles of duty of candor, but we are less keen on additional legislation around willful neglect. Thank you. Thank you very much, Mr Watson. Yeah, I suspect you're on Norman's wasting his effort with Dick on that point, but that's a long history of that. I do think, yeah, there are some differences in our views on this one. I think it is a very fine balance. We accept that the risks in the bill in relation to if we don't focus on resources, the risk of unintended consequences is there. I think our consistent view and this is why I highlighted violence to staff and other issues is our consistent view is that legislation can drive organisational change, but it will not do on its own, so we would urge you to make that point very strongly, particularly in the social care area. Some of the things going on in Scotland now are not pretty and need to change, but that is largely about organisational culture and resources, and we need to change the way that social care is commissioned in this country if we're going to raise the sort of standards that's outlined in the bill. Just to further emphasise the importance of looking at legislation to support smoke-free grounds within hospitals, I think that it's worth noting that whilst we can be pleased that prevalence of smoking is at 20% at the moment, prevalence of smoking and those with long-term conditions is 48%, and then I think you can most probably add on to that the people who had previously smoked but still have long-term conditions will add on another percentage on to that, so we do need to make sure that the message that we're given is absolutely clear that a health organisation cannot really be compromising the message in relation to smoking. Okay, thank you very much. Now you're both more than welcome to speak or one of, yet it's completely up to yourselves, but Councillor Johnson? I think we have a couple of messages we want. First of all, I think we're pleased to see that there's a clear consensus about the need for a duty of candor and a clear consensus that we have no tolerance for poor care, poor quality of care. I think that where we're seeing differences from our perspective, we think that these things are best delivered through culture changes, through improvement in that way, and we're concerned, as others have said, about the possibility of part 3 negating part 2, something that we are absolutely concerned about and don't want to see happen, but I think we've had a healthy discussion today, which we've been divided to be part of. Beth, would you like to add anything? Yeah, I think so. Just to note, to echo Councillor Johnson's point about consensus, especially around welfare neglect and mostly around duty of candor, but even Mr Watson, who's less convinced—sorry, who's slightly more supportive of the duty of candor, perhaps, than ourselves—Mr Watson has highlighted that the problem that we're trying to fix here stems from really entrenched organisational issues, which are mainly to do with lack of resources, with a historic lack of investment in social care. I think that we, as a society, don't value social care in the same way that we do healthcare, and this is going to have to be tackled. Many of those problems stem from pressures around resources, staffing ratios, low pay within the sector, which leads to problems with recruitment and retention. In addition to simply saying, no, this legislation isn't the way to fix the problem, I think that we do need to start to move on to discussion about what is required. Dave, thank you very much. Donald Harley. Thank you. Just to re-emphasise that we think the ill treatments will full neglect section, although clearly well-meaning, we think in effect will be counterproductive. It will work against the openness, honesty, candor that we all want to build. It leaves unaddressed the issue of culture in organisations, which is a real problem right across the NHS. It works against learning and developing best practice. It is a real worry that staff will pay the consequences of systemic failures. I thank all of you again for a very useful evidence session, helping the committee draft and complete our stage 1 report for giving to the Scottish Government in relation to this bill. That is this agenda item, and we now move into private session for agenda item 3.