This item was published during the term of a previous administration that ended in April 2007
Victims of crime to be told risk of blood borne infection
Victims of crime put at risk of infection through assaults ranging from a bite to rape, will be entitled to ask the courts whether their attacker is carrying hepatitis or HIV, under new proposals.
At present, only a Procurator Fiscal can apply for a warrant to access an accused's medical records or obtain a blood sample from them during an investigation into an alleged physical or sexual assault that may have put the victim at risk. The victim is not entitled to ask for this information.
As part of the consultation on blood testing following criminal incidents published today, Scottish Ministers plan to:
- Bring forward new legislation that will enable a victim to ask the Procurator Fiscal for this information and for this to be provided as soon as possible - i.e. preferably within days of any alleged assault, helping to minimise their anguish and inform their decisions about treatment.
- Introduce a new civil order - a mandatory testing order - enabling a victim to apply to a sheriff for a mandatory blood test on a suspect, should they be unable to get the relevant information from the Procurator Fiscal. For example if there is insufficient evidence for a criminal prosecution.
Justice Minister Cathy Jamieson said:
"Concerns about the risk of blood borne infection were raised with the Executive by the Scottish Police Federation. They were rightly concerned about the risks to police officers, who during the course of their duty often have to deal with highly charged incidents.
"In bringing forward our proposals, we have broadened our approach to reflect that other people besides police officers - including those working in the health service, prison service and fields such as social work - can also be faced with the kind of unacceptable attack that may expose them to a potentially serious infection. And that the same thing can happen to any member of the public who is assaulted.
"That's why we have decided to ensure that all victims of a sexual or physical assault that could have put them at risk of hepatitis or HIV will be given the right to find out whether the suspect was carrying these infections. And we will offer them two opportunities to access the information they need - either by application to the Procurator Fiscal in a criminal case or by applying for a new civil mandatory testing order.
"I hope that this sends a clear message - not just to public sector staff but to all victims of crime - that we will continue to improve their rights and that we are firmly on their side."
Douglas Keil, General Secretary of the Scottish Police Federation, said:
"The Federation is pleased that the Executive has made these proposals following the petition we submitted. This would be something positive for the victims of assaults and their families.
"Assaults on police are increasing and wherever there is contact with blood or other body fluids there is fear and risk of infectious disease. It should be compulsory for assailants to submit to a blood test and the victims should get the results."
Today's move follows a request by the SPF in 2002 for legislation to make it compulsory for attackers who have caused police officers to be exposed or potentially exposed to a blood borne viral infection, such as HIV, hepatitis B or C, to undergo a blood test. Since then, the SPF has said that where access to the suspect's medical records would provide sufficient, up-to-date information about the risks, obtaining access to this information for the officer would be sufficient. A blood test would only be sought if these records were unavailable or inconclusive.
Blood borne infections can be passed on through bites; sexual assaults; spitting in the eyes; injury by a contaminated needle; or more generally, whenever blood or other body fluids from an infected person come into contact with an open wound, rash or sore.
It is proposed that in all cases where a mandatory testing order is being considered, the suspect should first be invited to give information from their medical records or submit to a blood test voluntarily. This practice is already followed by a Procurator Fiscal when considering applying for a warrant to find out if a suspect is infected with a blood borne viral infection.
It is proposed that mandatory blood testing would only be considered if the applicant had come into contact with a bodily substance of another person as a result of that individual allegedly committing a crime, and if as a result of that contact the applicant could reasonably believe that they might be infected. There are no proposals to enable mandatory blood testing in cases of accidental - i.e. non-criminal - infection.
No individual would be compelled by force to comply with a mandatory testing order. However, refusal would be a criminal offence and the suspect could then face a level four fine (£2,500) or 28 days imprisonment.