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The legislation currently allows for the recognition of Scottish powers of attorney in England and Wales. Paragraph 13 of schedule 3 to the Mental Capacity Act 2005 states that

“if the correct process has been followed for the Power of Attorney to be created in Scotland, it would be legally recognised in England and Wales without the need for further action from either the Court of Protection or Office of the Public Guardian ... for England and Wales.”

Given that there is already legislation in place that provides recognition of Scottish powers of attorney in England and Wales, I am not persuaded that further legislation is the answer. However, this is about ensuring that institutions and organisations have awareness and are educated on the legal status of Scottish powers of attorney.

I would liken the debate to the debate about accepting Scottish £10 notes in England. They are legal tender, but they look unfamiliar and people are not aware of them. The point is that it is not the law that we need to change; we need to change the understanding of what the Scottish powers of attorney are and of the fact that they look just a little bit different.

We would be keen to commit to working with third-party organisations to raise awareness through publicity about the validity of Scottish powers of attorney in England and Wales rather than change the law, because the law already allows for recognition of those powers.

The Scottish Government is committed to ensuring that there is appropriate staffing in the national health service and care services to enable the provision of safe and high-quality services and the best outcomes for the people who use them. In 2019, the Parliament passed the Health and Care (Staffing) (Scotland) Bill to provide a statutory basis for the provision of appropriate staffing in both the NHS and care services. That enables a rigorous, evidence-based approach to decision making relating to staffing requirements and supports an open and honest culture that engages staff in those processes. Among other things, the 2019 act inserts new provisions relating to staffing into the National Health Service (Scotland) Act 1978 and the Public Services Reform (Scotland) Act 2010.

Implementation of the 2019 act was paused to redeploy personnel and resources to the Covid-19 pandemic response. A new implementation team was convened last year, and the Cabinet Secretary for Health and Social Care announced in June 2022 that all the act’s provisions would come into force by April 2024.

The 2019 act was reviewed as part of the implementation work, and six technical errors were identified. During the bill’s passage through Parliament, numerous amendments were made at stages 2 and 3. On some occasions, to ensure that amendments were properly reflected throughout the bill, cross-references to other provisions in the bill required to be inserted or amended. That was completed in the majority of cases, but in six instances those updates were not made, and the act contains errors. They now require correction to ensure that amendments that Parliament made to the bill are properly integrated. That will ensure that the act can be given full effect and the Scottish Parliament’s intention delivered. The draft regulations that are before the committee make ancillary provision under section 14 of the 2019 act in order to achieve that.

The first amendment will ensure that the obligation on health boards and the Common Services Agency for the Scottish health service—commonly known as NHS National Services Scotland—to raise awareness among staff about procedures for notifying any risks that they identify relating to staffing levels under new section 12IC of the 1978 act will extend to all relevant aspects of that notification procedure.

The second amendment will ensure that the obligation on health boards and NHS National Services Scotland to raise awareness among staff about the procedures that are put in place for the escalation of risks under new section 12ID of the 1978 act will extend to all relevant aspects of those escalation procedures.

The third amendment will ensure that each health board and NHS National Services Scotland must, under new section 12IL of the 1978 act, provide employees with information about how it has identified and taken all reasonable steps to mitigate risks as part of the common staffing method.

The fourth amendment will ensure that the Scottish Ambulance Service board will, under new section 12IM of the 1978 act, be under a duty to report to the Scottish ministers annually on how it has carried out its duties under new sections 12IE, 12IF, 12IH and 12II of the 1978 act. Those are the duties to have arrangements to address severe and recurrent risks, to seek clinical advice on staffing and to ensure that adequate time is given to clinical leaders, and duties relating to the training of staff.

The fifth amendment will ensure that the Scottish Ambulance Service board will have regard to guidance that is issued by the Scottish ministers, under new section 12IN of the 1978 act, about the carrying out of its duties under new sections 12IE, 12IF, 12IH and 12II of the 1978 act.

The two amendments that relate to the Scottish Ambulance Service board will largely bring it into line with other health boards and special health boards that deliver direct patient care in terms of its obligations relating to staffing.

The final amendment relates to the review and redevelopment of existing staffing methods by Social Care and Social Work Improvement Scotland—better known as the Care Inspectorate—under new section 82C of the Public Services Reform (Scotland) Act 2010. The amendment will ensure that the Care Inspectorate may, in a revised staffing method, require persons who provide care services to put and keep in place appropriate risk management procedures, in the same way that it could when developing a new staffing method under section 82A.

Stakeholders including representatives from health boards, relevant special health boards, NHS National Services Scotland, local authorities, integration authorities, Healthcare Improvement Scotland, the Care Inspectorate, professional bodies, trade unions and professional regulatory bodies have all been invited to participate in working groups to prepare the statutory guidance to accompany the 2019 act. As part of that process, the proposed changes that are detailed in the draft regulations were circulated for comment, and no objections were raised.

I fully support the draft regulations as the means of correcting technical errors in the 2019 act. They will ensure that the act can be given full effect and that the Scottish Parliament’s intentions can be delivered. I am happy to answer any questions that members have.

We are certainly working to that timescale. It is worth understanding that the working groups on implementation have been working according to the will of Parliament, so it expects the technical amendments to be made.

In response to Emma Harper’s point, I note that some of the amendments are intended to empower staff to ensure that they know the process for identifying risks and who they should report them to. They are simply technical amendments that will ensure that cross-referencing within the act is accurate and that it contains the will and intention of Parliament.

Motion moved,

That the Health, Social Care and Sport Committee recommends that the Health and Care (Staffing) (Scotland) Act 2019 Amendment Regulations 2023 [draft] be approved.—[Maree Todd]

Motion agreed to.

There are powers to enforce in other parts of the system. The professional regulatory bodies can take action and the police can take action if there is a police concern. A number of different bodies other than the commissioner can ensure that enforcement occurs, should it be needed. The key point in relation to the commissioner is for the system to learn lessons. We have a responsibility there.

If we think of the big issues that have been raised with us—for example, by mesh-injured women, the valproate families and infected blood people—those people were asking for a long time for their story to be heard and for inquiries and explanations to be made. They did not necessarily want blame to be apportioned; in fact, the infected blood people were very keen simply to have an apology and an acknowledgement. Ensuring that the system learns, and that issues are picked up and dealt with, is really very powerful, because we can see so many examples of where that has not happened in the past.

Yes, convener—I have a brief one.

I thank the committee for inviting me to give evidence, and I pay tribute to the work of Baroness Cumberlege and her team and the patients, healthcare staff and professionals who have worked hard to contribute to development of the bill. I am certain that future generations will benefit from safer care because of their efforts.

It will be helpful to make some brief opening remarks to summarise the intention behind the bill.

Patients, their families and the wider public have told us that, too often, they do not feel listened to when they raise concerns about the safety of their care. The patient safety commissioner for Scotland will be an independent public advocate whose primary focus will be on ensuring that the patient voice is heard in the healthcare system, in order to make care safer for all. Patients told us that the commissioner must be independent of both Government and the national health service. That is why we are proposing that the commissioner be answerable to Parliament directly and, therefore, to the people of Scotland. The commissioner will be directly accessible to patients in order to hear about their experiences and about what could have been better. People sharing their stories will be the key to making the role work and to making healthcare safer for all of us.

The commissioner will focus their attention on the concerns that patients tell them matter most, and will listen to patients’ accounts of their experiences and combine those with data from other organisations to identify systemic safety issues and to recommend improvements.

The commissioner will not necessarily be the person who is best placed to investigate every concern that patients raise with them, and they are not intended to take on and resolve individual complaints. There are already well-established processes for those functions, which are delivered by other organisations, including health boards and the Scottish Public Services Ombudsman. The commissioner will hand over to them, where that is appropriate, but we propose that the commissioner has substantial information-gathering and investigative powers for situations in which they wish to look further into an issue that other organisations, such as Healthcare Improvement Scotland and the Scottish Public Services Ombudsman, are not better placed to take on.

I look forward to answering questions from the committee and to the discussion.

Yes. The commissioner will have power to require organisations to provide evidence. Those are robust powers.

If I may explain, it is a role that is really about encouraging a culture of openness and inquiry, and it is absolutely in the system’s best interests to adopt that culture. That is how we will give the best patient care.

If we do not learn when mistakes happen or when safety issues arise, mistakes will be repeated, which is not in the interests of patients or the system. Therefore, I think that there will be enough power, but I am open to suggestions, if you think that some powers need to be strengthened. I am listening and I am open to that, but it is very clear how the concept of this role has evolved, so I would like to think that there is a wish and a will in the system to learn those lessons to prevent further harm.

Our commissioner will have a slightly broader role. It is a new role and the commissioner will learn in the job. However, the point of the role is to listen to patients, hear what they are saying and ensure that the healthcare system is able to pick up and act on safety concerns that have been raised by patients because we know that that has not happened in the past or has not happened fast enough.

It should be perfectly possible for staff to raise concerns and for the patient safety commissioner to listen to those concerns. I expect the patient safety commissioner to be an ear in the system and listening to staff would be an important part of that.

We need to make clear that staff can raise their concerns. We are at stage 1 of the legislation and I am open to ideas about how we can make sure that that is clear. Essentially, however, the commissioner should be a listening ear. It would seem odd to me if they were not listening to staff.

We need to be careful that we do not duplicate existing powers. Regulators can take action against individual professionals, there are the police and there is the potential to take action in various ways, so we need to ensure that we are not duplicating effort. The fundamental role of the patient safety commissioner is to ensure that the voices of patients are heard and that that open learning culture is fostered so that the system learns and prevents further harm, rather than these things going on for far too long and harm continuing while those issues unfold.

Yes. There are people with that type of expertise who do a lot of independent consultancy work, so an individual role may not be needed. It may simply be that expertise is needed in one situation, and there might be capacity to think about using individuals with specific expertise as the role develops.