Equally Safe consultation: analysis of responses

Appendix 2: Taking and Retention of Samples 

Responses to question two: evidence in the case of police referral

Consent and the need for clear information and communication

• A comment that victims’ consent to transfer or not transfer data of any sort should only be overridden by a court order granted by a judge or a jury.
• For clarification on the role of the medical practitioner, especially when a victim is unable for some reason to give consent. 
• One respondent provided a detailed response in relation to consent in relation to women with learning disabilities which has been signposted to the Scottish Government for review.

The storage, transfer and deletion of data

• One respondent suggested that the framework should include legal clarification on who owns samples at different points in the process; and at what points responsibility transfers and to whom. Linked to this point, another stated that while they had no suggestions for the framework, they felt there was a need for a clear forensic chain of evidence.
• A reflection that the storage, use and destruction of sample should be done consistently across Scotland.
• A comment that data should only be transferred in appropriate circumstances; at the behest of the victim in cases of self-referral.
• For the same approach to be taken to the collection, storage and release of samples regardless of whether the case relates to a police referral, self-referral or child protection issue.
• An observation that ‘Police Scotland retention policy will be applicable in relation to samples seized as productions’.
• One respondent said samples should not be used for anything other than the prosecution of a crime; they did not provide details about other forms of usage they had concerns about.
• Reflections on the challenges of sharing details without explicit consent, given the large number of support agencies who may be involved.
• A specific point that the 7th principle of the Caldicott protocol^[7] should not be applicable in the handling of any evidence in rape or sexual assault, and that data should only be transferred outside of the NHS when written consent by the victim is granted with a written signature. 
• A detailed response about the needs of children, covering issues such as disclosure of medical information to parents for whom there is a child protection concern and the needs of children who have experienced sexual abuse. 

Considerations when developing the legislative framework

• Two respondents’ observations that the framework needs to balance the rights of the victim with those of the person accused of rape or a sexual offence. 
• Two respondents’ comments that the framework would allow clarity over the responsibility/ liability for the management of personal data/samples. 
• One respondent called for the framework to detail how the sample could be adapted or used via publishing, disclosing or sharing. 
• Another indicated that a legislative framework would ensure appropriate streamlining of resource allocations and service provision across various parts of Scotland. 
• One respondent commented that the CMO taskforce was best placed to develop the framework; another highlighted the value of input from Police or Forensic Medical Examiners.  

Vulnerable Groups

• Two respondents highlighted that individuals with additional support needs, poor mental health or intellectual disabilities must be included in a list of groups whose rights need to be respected.
• Two respondents discussed communication barriers and needs; one noted that those with deafness and other communication barriers would get support to overcome these, the other observed that verbal and written communication should be clear, jargon-free, easy to read format and suited to the support needs of the person in order to overcome barriers. 
• One respondent provided a detailed response for consideration by Scottish Government which, among other things, highlighted the need to consider those who cannot consent, the role of appropriate adults and legal capacity. Linked to this, another also raised the issue of those without the capacity to consent (i.e. under adult support or protection three-point test) and ask for clarification on how the legislation will balance their needs and the need to collect evidence. 
• One respondent emphasised their support for the Scottish Government’s proposal to conduct an equality impact assessment, noting this will ensure that the needs of women with learning difficulties are robustly addressed. 

References to other guidelines

• One respondent welcomed the commitment to consider the upcoming Biometric Data Bill and a model data sharing agreement. Linked to this, another respondent observed that much of the legislative framework will depend on what the Biometric Bill sets out.  A Scottish Biometrics Commissioner Bill has now been introduced to the Scottish Parliament.
• Another respondent suggested that the Scottish Government should consider how the framework could link to and learn from existing pathways, specifically in relation to how those with learning disabilities get appropriate support. 
• One respondent commented that the existing national Information Sharing Protocol (ISP) between NHS Boards, Police Scotland and the Crown Office and Procurator Fiscal Service requires to be updated to ensure that it is acting in accordance with GDPR.

Specific examples

• One respondent referenced the 2017 HM Inspectorate of Constabulary in Scotland (HMICS) Strategic Overview of Provision of Forensic Medical Services to Victims of Sexual Crime and subsequent Progress Review of Provision of Forensic Medical Services to Victims of Sexual Crime published in November 2018, which highlighted the need to introduce self-referral facilities to victims of rape and sexual crime across Scotland. 
• Another referred to several sources in relation to the needs of those with learning disabilities.
• One provided a detailed response about experiences of reporting sexual assault or rape to a police officer.

Responses to question three: evidence in the case of self- referral

The storage, transfer and deletion of data

• One respondent made a specific comment concerning the Human Tissue Act but did not make clear which specific Act of Parliament they were referring to. They noted that if Health Boards were to store samples which had no justifiable health purpose they would have to conform to the requirements of the Human Tissue Act.  For this reason, they suggest Police Scotland should continue to retain samples, submitted anonymously in the case of self-referrals.
• Another respondent made a general comment on the need for legislation to provide clarity on most elements of the process including ownership, destruction, timescales and conditions of storage. 
• One respondent highlighted that there may need to be a distinction made between the taking of the samples themselves and the data which is obtained from them.
• Another respondent made a brief reference to a rights-based approach with assurances of confidentiality and data protection. 

Responses to question four:  impact on data protection and privacy

Discussions on the proposed guidelines

• One respondent highlighted that because responsibility will lie with Health Boards, legislation must be clear in the requirement of health boards to share “special category” data with criminal justice partners.
• Another commented that there should be no exceptions or special categories within the data policies.
• One respondent made a general comment about consideration being given when legislating around the release of data and the need for supporting guidance.
• Another provided specific comments about the legislation in relation to child protection, highlighting their concerns that data from a forensic examination may not fit into the “special data” category and that firm provisions around data sharing are written into legislation.
• One respondent emphasised the need to put victims first and ensure no further trauma is experienced as a result of data protection practices.
• Two respondents commented on the broader concept of ensuring rights in relation to data are protected.

Treatment of personal data

• One respondent highlighted the need for other information recorded in a forensic examination, such as past sexual history, to be protected as private non-forensic information (to avoid it being be used against a victim).
• Another respondent highlighted the need for a unique ID and adequate labelling which minimises cross reference to another data. They believe the existing Community Health Index (CHI) number is not suitable as it would link to health records. 
• One respondent gave a more detailed comment in relation to ensuring the handling of data is consistently applied across Health Boards and sexual health services. They called for detailed guidance to support this.
• Another reflected on data control, noting ‘ownership of data by the individual should be respected, and capacity to authorise destruction or transfer should be supported by the provision of or access to relevant support services’.

References to the storage, transfer and deletion of data

• One respondent raised the need to protect medical records and additional information divulged to clinical staff which may not be relevant to a criminal case and specifically suggested the need for someone with experience of the “Caldicott role” to scrutinise records before release. 
• Another respondent questioned the extent to which the police will be able to test DNA samples to identify multiple victims from an individual perpetrator and at what stage this can be done in cases of self-referral. 
• One respondent reflected on data control, noting ‘ownership of data by the individual should be respected, and capacity to authorise destruction or transfer should be supported by the provision of or access to relevant support services.’

Vulnerable groups

• One provided a detailed response for consideration by the Scottish Government about the requirements of victims with learning difficulties. For example, they highlighted an opportunity to link victims with support services, issues in relating to consent and effective ways to communicate and share information.
• Another commented on the need to refer to the Mental Health (Care and Treatment) Act 2003 for those with mental health issues when developing the Information Sharing Agreement 
• One noted that the legal and statutory duties must prevail and include anyone with fluctuating capacity.

Specific examples

• One response cited research (Feldberg, 1997; Rees, 2010) which has shown that other information recorded in a forensic examination e.g. past sexual history can be used against a victim.
• Another cited Part 3 of the Revenue Scotland and Tax Powers Act 2014 as an example of how restrictions can be applied when sharing sensitive information with relevant authorities.