Equally Safe: consultation on legislation to improve forensic medical services for victims of rape and sexual assault

Chapter 2: Functions of Health Boards

Background

10. The CMO Taskforce and Scottish Government's vision is for consistent, person centred, trauma informed healthcare and forensic medical services and access to recovery for anyone who has experienced rape or sexual assault in Scotland. The principal delivery bodies are the 14 territorial Health Boards which are divided into 3 territorial regions. The territorial Health Boards cover defined geographic areas whereas Healthcare Improvement Scotland and the other six special Health Boards have a Scotland-wide remit.

11. The immediate and long-term physical and psychological consequences of rape, sexual assault or child sexual abuse can be significant. Victims' reactions to the trauma of sexual violence may include depression, anxiety, post-traumatic stress disorder, substance misuse, self-harm and suicide^[13]. As part of the Scottish Government's commitment to developing a National Trauma Training Strategy adopting a trauma informed approach following incidents of rape and sexual assault was recognised as important^[14]. Such an approach assists the victim's processing of, and recovery from, the trauma arising from a rape or sexual assault. Following a recent rape or sexual assault a victim may choose to access forensic medical services (whether or not they have decided to report the crime to the police) and it is important that any forensic medical examinations are carried out in a healthcare context by staff who are trauma informed.

12. Sexual crimes account for 5% of all crimes recorded in Scotland in 2017-18. The number of sexual crimes recorded by the police in Scotland increased by 13% from 11,092 in 2016-17 to 12,487 in 2017-18^[15]. The official statistics on recorded crime may not account for the total prevalence of rape and sexual assault in Scotland. The latest available national statistics on rape and sexual assault (2014-15) in the Scottish Crime and Justice Survey (a large scale self-report survey that includes crimes that haven't been reported to Police Scotland) include 4.6% of women responding that they had experienced some form of serious sexual assault since the age of 16, and 0.6% of males. Around 40% of rapes recorded during 2017-18 were reported more than one year after the rape was committed^[16]. Further self-report data from the National Survey of Sexual Attitudes and Lifestyles (NATSAL), another large scale social survey, suggests that there may be some under-reporting and that women are far more likely to be a victim of a rape, with 1 in 10 women in Scotland stating they have experienced rape and 1 in 50 men^[17].

13. In addition to the above, the most recent Scottish Crime and Justice Survey findings on rape and sexual assault from 2014-15 suggest that only around 17% of those who had recounted a rape and 13% of those who had recounted an attempted rape had reported the incident to the police. It may be the case that not all of those interviewed who have experienced rape or sexual assault will have felt comfortable reporting it within the survey despite reassurance that the methods would preserve confidentiality and anonymity.

14. In the past, forensic medical services for victims of rape and sexual assault were seen as a policing and criminal justice function, delivered by police boards. This approach arguably prioritised the needs of the justice system in terms of evidence capture and building a case for possible prosecution of perpetrators. It is now understood that this approach risked re-traumatising victims and therefore Scotland is moving towards a healthcare and recovery focussed approach whilst recognising the importance of reliable forensic evidence gathering techniques to support the criminal justice system.

15. In 2013, shortly after the creation of Police Scotland, the delivery of forensic medical services for victims of rape and sexual offences transferred to the territorial Health Boards. This was provided for in a Memorandum of Understanding between Police Scotland and the territorial Health Boards^[18]. HMICS' strategic overview discussed the Memorandum of Understanding and took the view that the arrangement is confusing and ineffective and has relied largely on the goodwill of all parties to adopt standards and agree the level of service to be provided. In particular, it was noted that the Memorandum of Understanding is not legally binding.

16. In addition to forensic medical services to support police referrals, which are currently included within the Memorandum of Understanding, the Scottish Government wishes to increase access to self-referral services.

17. Healthcare Improvement Scotland's National Standards include at point 2.9 that persons who refer themselves to services should be able to access health and support services and forensic medical examinations to ensure that forensic evidence is captured even if the individual does not intend, or at that point is undecided about whether, to report what has happened to them to the police. The legislation proposed in this consultation will provide a clear statutory basis for people to access self-referral services in all parts of Scotland.

What are forensic medical services?

18. Forensic services, in the widest sense, are the collection and analysis of scientific evidence and the presentation of evidence at court, for the purposes of a criminal investigation or prosecution. Specific services include records management; scene examination; Physical Sciences (including drugs testing; fingerprint examination; toxicology; firearms); Medical Sciences (psychiatry, psychology, odontology, pathology) and Biology (including body fluid identification and DNA analysis). This consultation concerns forensic medical services for victims of rape and sexual assault specifically.

19. In the context of sexual offending, a forensic medical examination may be carried out with the consent of the victim to recover bodily fluids and otherwise to evidence that intimate contact has taken place. This can include whether there are injuries consistent with the use of force or physical resistance by the victim – although it is important to emphasise that rape and sexual assault are crimes in Scots law even where no force is used or where there is no evidence of a physical struggle. It is now recognised that "freezing"^[19] (tonic immobility) is a normal reaction to the trauma caused by sexual violence (in one study as many as 70% of women reported significant tonic immobility and 48% reported extreme tonic immobility during an assault^[20]).

20. In the particular context of rape and sexual assault therefore, forensic medical services have a dual purpose - to meet the healthcare needs of the victim and to capture any forensic evidence of the assault that has taken place. Healthcare Improvement Scotland's National Standards make clear that forensic medical services are to be provided in the wider context of holistic mental health, sexual health and other healthcare services.

Work of the CMO Taskforce

21. The national leadership provided by the CMO Taskforce brings together experts from various organisations, including health, justice, social work and third sector partners.

22. The Scottish Government commissioned Healthcare Improvement Scotland to develop and publish the National Standards in Healthcare and forensic medical services for people who have experienced rape, sexual assault or child sexual abuse referenced earlier in this Chapter. These standards were developed to ensure consistency in approach to healthcare and forensic medical services. The standards will set the same high level of care for everyone, regardless of the geographical location or an individual's personal circumstances or age. They support the Scottish Government's vision for the delivery of health and social care services set out in the Health and Social Care Delivery Plan^[21].

23. The CMO Taskforce has consulted on 'Clinical Pathways and Guidance for Healthcare Professionals Working to Support Adults who Present Having Experienced Sexual Assault or Rape'^[22]. The views of those with lived experience have been integral to the pathway which describes the care and treatment that a victim should receive.

24. The CMO Taskforce has also worked to produce interim quality indicators for anyone who has experienced rape, sexual assault or child sexual abuse^[23], including children, young people and adults. The indicators apply to all services and organisations (including Health Boards and Integration Joint Boards) responsible for the delivery of healthcare and forensic medical examinations for people who have experienced rape, sexual assault or child sexual abuse. The indicators cover the following areas: person-centred and trauma informed care, facilities for forensic medical examinations, and consistent documentation and data collection. The Healthcare Improvement Scotland National Standards also cover these five areas.

Possible policy approaches

25. The Scottish Government and CMO Taskforce's vision is of consistent, person centred, trauma informed healthcare and forensic medical services and access to recovery for anyone who has experienced rape or sexual assault in Scotland, delivered in a framework which provides for clear responsibility and accountability. At present there is no direct statutory function on territorial Health Boards to provide forensic medical services to victims of rape and sexual assault.

26. HMICS' strategic overview highlighted issues with the consistency and quality of service provision across Scotland. The Scottish Government's purpose is to focus on creating a more successful country with opportunities for all of Scotland to flourish through increased wellbeing, and sustainable and inclusive economic growth. One of the national indicators contributing to the Government's purpose is that public services treat people with dignity and respect. The National Performance Framework^[24] (NPF) provides a single framework to which all public services in Scotland are aligned and uses broad measures of national wellbeing to reflect how Scotland performs against a range of economic, social, health and environmental indicators. In light of the policy objective to improve the quality of and access to services, it is the Scottish Government's view that the status quo is not an option.

27. The Scottish Government also discounts the option of returning service responsibility to police authorities (a police physician led model). The paramount policy consideration is that services be healthcare and recovery focussed and it could undermine these outcomes if there was to be a return to a criminal justice focussed model.

28. The Scottish Government is also not attracted to a contracting model, in terms of which a legally binding contract would replace the Memorandum of Understanding. In principle, such a model could provide for a robust and clearer legal basis for the delivery of police referral services, however it is difficult to see how it could work in the self-referral context (where there would be no partner body for Health Boards to contract with). The model applicable in England is that NHS England has responsibility for sexual assault services commissioning by virtue of a "section 7A agreement"^[25] under the National Health Service Act 2006^[26].

29. Subject to stakeholder views, the Scottish Government considers that the most effective model would be to clearly place responsibility for the function and delivery of forensic medical services with Health Boards. To achieve that, we think it is appropriate for legislation to confer specific, direct statutory functions on territorial Health Boards to provide forensic medical services to victims of rape and sexual assault, including in the self-referral context. This option, of conferring statutory responsibility for the service on Health Boards, is considered the most effective way of ensuring clarity, governance and accountability in relation to the delivery of the service. It is hoped this will in turn drive improvements in the consistency and quality of the service.

30. The CMO Taskforce consulted with stakeholders to determine the optimal model and configuration of rape and sexual assault services for Scotland. An option appraisal report was published in October 2018^[27]. There was a clear preference for services to be owned and delivered locally (by territorial Health Boards) supported by regional centres of expertise. Therefore we do not propose to prescribe any particular model of service delivery in legislation. The CMO Taskforce does have a coordinating role in the process of service reform but it will be up to the territorial Health Boards, working on a local and regional basis, together with their partner agencies, to design and implement services which meet the Healthcare Improvement Scotland National Standards and deliver upon the CMO Taskforce vision. The CMO Taskforce is providing funding to enhance or create new healthcare and forensic medical examination facilities in each of the 14 Health Boards.

31. The particular position of victims of child sexual abuse is further discussed at Chapter 5.

Question 1:

Should a specific statutory duty be conferred on Health Boards to provide forensic medical services to victims of rape and sexual assault, for people who have reported to the police as well as for those who have not?