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

Chapter 4: Safeguarding respect for victims' human rights

Background

39. Healthcare Improvement Scotland National Standard 3 includes that no forensic examinations of victims of sexual offences take place in police settings. It also includes that examination settings maximise a person's dignity and privacy and are responsive to the individual's needs, including people with additional support needs.

40. The National Performance Framework referenced in Chapter 2 includes a human rights and non-discrimination outcome, that we respect, protect and fulfil human rights and live free from discrimination. The inclusion of a human rights outcome underlines the importance the Scottish Government attaches to human rights. It makes explicit that action to give full effect to internationally-recognised human rights is a priority not only for the Scottish Government but for all Scottish public authorities.

41. Given that victims of rape and sexual assault have suffered a grave violation of their rights it is imperative that the healthcare response treats respect for the dignity of victims as a paramount consideration. A response which focusses on the victim's well-being should minimise re-traumatisation and aid recovery.

42. The Patient Rights (Scotland) Act 2011^[35] includes that patients must be treated with dignity and respect and that health care is provided in a caring and compassionate manner. The Social Security (Scotland) Act 2018 includes that respect for the dignity of individuals^[36] is to be at the heart of the Scottish social security system. This builds on an earlier requirement in section 5 of the Welfare Funds (Scotland) Act 2015^[37].

43. The Scottish Government is committed to commencing section 9 of the Victims and Witnesses (Scotland) Act 2014^[38] which makes provision for victims of sexual offences who have made a police report to request the gender of the medical examiner. Research suggests that most victims (80.8% of female victims) preferred staff to be female. Almost 100% of victims would continue with the examination if carried out by a female doctor, whereas 43.5% of victims said they would not if the doctor were male^[39]. Work is underway through the CMO Taskforce to improve the gender balance of the available workforce so that victims can be given a choice about the gender of examiner involved in their care. The aim is to increase the number of female doctors able to undertake forensic medical examinations. Further, an expert group under the remit of the CMO Taskforce has been established to take forward one of the recommendations in the HMICS report, to develop proposals for the role of forensic nurse examiner in Scotland. This would mean that appropriately qualified nurses (as well as doctors) would be able to undertake forensic medical examinations of victims of sexual crime and give evidence in court. This multi-disciplinary approach would help to ensure that people are offered a choice of the gender of examiner involved in their care.

44. Work to commence section 9 referred to will proceed in parallel to the development of the additional primary legislation proposed in this consultation paper. The general principles of the Victims and Witnesses (Scotland) Act 2014, in sections 1 and 1A, are already in force and include that a victim should have access to appropriate support during and after a criminal investigation or criminal proceedings.

45. The Government proposes to take a human rights based approach to the development of legislation to improve forensic medical services for victims of rape and sexual assault. Amongst other things a human rights based approach means having regard to all human rights set out in international human rights treaties and facilitating the participation of people affected by policy changes^[40]. It means building on and looking beyond compliance with the civil and political rights in the European Convention on Human Rights 1950^[41] to encompass economic, social and cultural rights.

46. International human rights law establishes that everyone has the right to the highest attainable standard of physical and mental health, through means including effective access to rehabilitative healthcare, provided without discrimination. The Scottish Government notes that this right is enshrined in the following international instruments:

• Preamble to the Constitution of the World Health Organisation 1946^[42]
• Article 25 of the Universal Declaration of Human Rights 1948 (UDHR)^[43]
• Article 11 of the European Social Charter 1961 (ESC)^[44]
• Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination 1965 (ICERD)^[45]
• Article 12 of the International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR)^[46]
• Article 12 of the Convention on the Elimination of All Forms of Discrimination Against Women 1979 (CEDAW)^[47]
• Article 24 of the Convention on the Rights of the Child 1989 (CRC)^[48]
• Article 35 of the Charter of Fundamental Rights of the European Union (originally 2000)^[49]
• Article 25 of the Convention on the Rights of Persons with Disabilities 2006 (CRDP)^[50]
• Article 25 of the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence 2011 (Istanbul Convention)^[51]

Possible policy approaches

47. The UDHR recognises that the inherent dignity and worth of the human person is at the root of all human rights and we are interested in considering how legislation might help further embed this principle in the context of forensic medical services for victims of sexual offences.

Question 5:

How might legislation help safeguard victims' rights to respect for their dignity?

Question 6:

More generally, do you have any views on potential impacts of the proposals in the Chapters of this paper on human rights (including economic, social and cultural rights such as the right to the highest attainable standard of physical and mental health)?