Continued Petitions

PE1712, on soul and conscience letters, was lodged by Laura Hunter. We last considered the petition at our meeting on 6 December 2018 and have since received submissions from the Scottish Government, the Crown Office and Procurator Fiscal Service, the British Medical Association Scotland and the Law Society of Scotland.

The Scottish Government has provided a clear response that the court regulates its own procedures and that it would not be appropriate for the Scottish ministers to comment on or seek to influence the work of the Lord Advocate or members of the judiciary. The BMA’s position is:

“it is our belief that the use of soul and conscience letters provides a proportionate mechanism whereby doctors can offer important evidence to courts, without impacting too significantly on the time needed to care for patients.”

The Crown Office and Procurator Fiscal Service makes it clear that any matters relating to delays or the halting of legal proceedings, including the ability to request further information, are for the court. It also provides details of legislation that enables accused persons to appear in court via videolink or for proceedings to take place in the absence of the accused under certain circumstances.

On the matter of providing evidence via videolink, the Law Society of Scotland raised a number of concerns about the reliability of its use, the need to ensure that the accused is in a secured environment free of influence, and the need for confidential communication between the accused and their solicitor.

As for the aim of the petition, the Law Society of Scotland has stated that better information could be made available to the public about the meaning and effect of soul and conscience certificates and to the medical profession about what information is required. Its written submission also points out that it is unaware of any current abuse of the process and that the courts have always had the discretion to look behind soul and conscience certificates when they are produced.

Do members have any comments or suggestions for action?

We are agreeing to write to the BMA to ask it to comment on the Law Society’s views on improvements that might give people confidence in the process. Again, we will also want to write to the petitioner, seeking her views on the written submissions that we have received.

I do not think that the suggestion is that we take evidence from the Law Society of Scotland. It has suggested some improvements, which have been set out in our papers, and we are going to ask another organisation to comment on those suggestions. The Law Society recognises that this is not a case of someone just saying, “I can’t come to court because I’m not well.” The fact is that proceedings get delayed, and people need to have confidence in the reasons for that delay and in the process itself, which might mean a doctor having to come to court to justify why they have signed one of these letters. This is at a different level to simply signing someone off as unwell. We would therefore want to get BMA Scotland and any other relevant organisation to comment on the improvements suggested by the Law Society of Scotland as well as seek the views of the petitioner. Are members agreed?

Members indicated agreement.

That ends the public part of the committee’s work. We now move into private session.

11:17 Meeting continued in private until 11:27.