Self-referral forensic medical services - retention period for evidence: consultation

Chapter 1: Introduction

Background

1. Improving healthcare services for victims of sexual offences is a priority for the Scottish Government. Under existing arrangements, each of the 14 health boards in Scotland is required to provide a Sexual Assault Response Coordination Service (SARCS) for victims who have experienced rape, sexual assault or child sexual abuse, to address their immediate forensic and healthcare needs.

2. The Forensic Medical Services (Victims of Sexual Offences) (Scotland) Act 2021 ("FMS Act") was unanimously passed by the Scottish Parliament on 10 December 2020. The FMS Act places a duty on health boards to give victims of all ages access to trauma-informed, person-centred forensic medical services and, for adults aged 16 or over, it will enable a health board to retain certain evidence where the victim is undecided about reporting to the police.

3. The FMS Act underpins the ongoing work of the Chief Medical Officer's Rape and Sexual Assault Taskforce ("CMO Taskforce"), to provide national leadership for the improvement of healthcare and forensic medical services for victims of sexual crime. The FMS Act supports the CMO Taskforce's vision of consistent, person centred, trauma informed health care and forensic medical services and access to recovery, for anyone who has experienced rape, sexual assault or child sexual abuse in Scotland. The Taskforce has already produced a number of important resources to support trauma-informed, high quality services in parallel to the legislative process that resulted in the FMS Act – these are available from the Taskforce webpage.

4. Self-referral is the term for victims accessing forensic medical services without having reported the crime to the police. The FMS Act provides a statutory framework for the retention by health boards of evidence collected during a forensic medical examination, which may support any future criminal investigation or prosecution. This allows the victim time to decide whether to make a police report. The Scottish Government considers that self-referral empowers victims, giving them greater choice which may positively influence their decision to report the crime to police and encouraging those who may be reluctant to make a police report to access appropriate NHS services. Evidence gathered as part of this process can be significant in any future criminal proceedings. However, in addition to the requirements to gather evidence, the utmost priority is to ensure that anyone who has been the victim of rape or sexual assault can access timely healthcare support. The Scottish Government knows from listening to the views of survivors, that access to self-referral is an important aspect of giving people control over what happens to them at a time when it has been taken away.

Purpose of this paper

5. The FMS Act must be commenced by the Scottish Ministers before the statutory duties on health boards contained in the Act have legal effect. To enable this to take place, amongst other things, a retention period for evidence collected in the course of self-referral forensic medical services must be prescribed under regulations (secondary legislation) which is what this consultation paper concerns. The CMO Taskforce has recommended to the Scottish Ministers a retention period of 26 months, that is to say two years, two months, and whilst that recommendation forms the basis for consultation the Scottish Government invites stakeholder views before making a final decision.

6. Following consideration of responses sent in to this consultation, Ministers will make a final decision on the retention period and lay draft retention period regulations for approval of the Scottish Parliament.

What this consultation does not cover

7. This consultation is not about revisiting any aspect of the FMS Act (primary legislation) since that has been settled by the Scottish Parliament. Many aspects of how self-referral will work, for example victims' rights to request the return or destruction of property, are set out on the face of the FMS Act and cannot be varied by secondary legislation or guidance.

8. This consultation is also not about the minimum age for accessing self-referral, since the Scottish Parliament has determined that the age should be 16. The FMS Act contains a requirement for Ministers to report to the Parliament every year, on whether there is a case for changing that age and if required, the Act can allow for the minimum age to be varied by regulations.

9. This consultation is not about the details of self-referral practice which will be contained in a protocol currently being developed by the CMO Taskforce, to ensure a consistent national model of self-referral. The Scottish Parliament determined that this was a matter that did not need to be prescribed in legislation. The Scottish Government will consider any appropriate transitional arrangements that need to be put in place.

10. The Lord Advocate for Scotland, as head of the Scottish system of criminal investigation, will approve the final protocol which will be implemented at the same time as the FMS Act and the retention period regulations that this consultation concerns.

Structure

11. Chapter 2 of this consultation paper sets out the Government's proposal for a 26 month retention period. And Chapter 3 addresses equality and other impacts of the proposal.

12. An Easy Read version of this consultation paper has been published separately.