Blood testing following criminal incidents where there is a risk of infection: Proposals for Legislation

Earlier this month I launched a consultation document Supporting Police, Protecting Communities: Proposals for Legislation, which set out a wide range of proposals for inclusion in a Scottish Police Bill. This new consultation paper sets out further proposals, in response to a petition by the Scottish Police Federation in 2002, which called for mandatory blood testing of anyone who had caused a police officer to be exposed to risk of infection with a blood-borne virus such as HIV, hepatitis B or hepatitis C. I consider that the threat of such infection could be of concern not only to police officers but also to other front-line workers and indeed to anyone who, as a victim of crime, finds himself or herself at risk of contracting a blood-borne viral infection.

Thankfully, this is not a frequent occurrence, but it does happen from time to time. For example, statistics from Health Protection Scotland show that in 2003, 107 people in Scotland were HIV-tested following a bite. The Scottish Police Federation petition highlighted examples of assaults on police officers, by those suspected or claiming to be HIV positive, sometimes with the deliberate intention of infecting the officer. Incidents ranged from bites and spitting in the face, to accidental cases where officers have been scratched by syringe needles carried by criminal suspects.

We value Scotland’s police officers highly and are committed to enhancing the protection afforded to them. We have expressed support for the work being done by the Association of Chief Police Officers in Scotland in developing an occupational health strategy as part of their wide-ranging People Strategy for the Scottish Police Service. We believe that the Scottish Police Federation’s petition draws attention to a serious risk which our police officers face, and that it is important to identify the best ways to protect them from these risks. Moreover, we are sympathetic to the Scottish Police Federation’s call for mandatory blood testing to be provided in certain circumstances — provided that this can be done in an appropriate way with appropriate safeguards. Our proposals for legislation would introduce mandatory blood testing in specific circumstances.

Whether the victim of such an incident is a police officer, another emergency worker or a member of the public, it is urgent to assess the risk of infection and to give appropriate medical help to the injured party. In some cases, and subject to a rigorous judicial process, mandatory blood testing of the suspected source could be an important part of that risk assessment. I therefore invite you to consider the issues raised in this paper and to give your views on our proposals.

1. Introduction

1.1 In 2002, the Scottish Police Federation (SPF) submitted a petition to the Scottish Parliament Petitions Committee, requesting legislation to make it compulsory for assailants and others who have caused police officers to be exposed, or potentially exposed, to the risk of blood-borne infection, to submit to a blood test, so that the officer concerned can be informed as soon as possible of whether there was a real possibility of infection. The key elements of the SPF petition are reproduced at Annex A.

1.2 The SPF has subsequently clarified that where access to the suspect’s medical records would provide sufficient and up-to-date information about the risks, securing access to this information for the officer would be sufficient; they would only seek a blood test where this information was unavailable or inconclusive.

1.3 This paper sets out the Scottish Ministers’ response to the petition. It includes, at Chapter 4, proposals for legislation, and invites comments on these proposals and on any aspects of the issues raised. Depending on the responses to this consultation, a possible vehicle for the necessary legislation would be the forthcoming Police Bill, on which we issued a general consultation document earlier this month.

1.4 Police officers perform a vital role on behalf of society, and the nature of that role means that from time to time officers put themselves — or are required to put themselves - at personal risk. In submitting its petition, the SPF put forward details of a number of cases where police officers had suffered psychological or physical harm as a result of possible exposure to a blood-borne viral infection.

1.5 The main concern voiced in the petition is exposure of officers to viruses such as HIV, hepatitis B and hepatitis C. Infection can occur when a person comes into contact with infected blood or other body fluids such as saliva, through being splashed in the eyes, nose or mouth, through bites, cuts, abrasions and open wounds or through ‘needlestick’ injuries. The case studies provided by the SPF gave a number of examples, which took place in Scotland over a period of time, including instances where drug users or those claiming to be HIV positive had bitten police officers or spat in their faces, as well as cases where officers had had body fluid contact from injured people resisting arrest.

1.6 Actual cases of infection as a result of such incidents are, thankfully, rare, but cases where an officer feels at risk are much more common. The SPF has advised us that in the year 2003-04 there were 229 incidents in which there was a possible risk of infection to an officer. In 24 of these was the risk considered serious enough for the officer to embark on post-exposure prophylaxis against HIV, but in only one incident is an officer thought to have been actually infected, with hepatitis B.

1.7 We recognise that police officers face a special risk of assault, as a result of the difficult and often highly charged situations with which they frequently have to deal. However, police officers are not the only people at risk from contracting blood-borne viral infections from an assault or suchlike incident. Health service staff, prison officers and social workers face the same risk in their own contexts, as may other public, private and voluntary sector workers or indeed members of the general public. There is a particular risk for victims of sexual assault. While we recognise the specific risk faced by police officers, we believe that any legislation for mandatory blood testing should provide the same level of rights for all persons at risk, whether or not they are police officers. This issue is discussed further in Chapter 3.

1.8 Various different terms are used in this paper to describe, respectively, the person who may be at risk of having contracted infection and the person from whom the infection may have been transferred. However, the terms used most often for these two individuals are applicant and suspect. ‘Applicant’ is used for the former because our proposals envisage that to obtain a mandatory blood test will require an application to be made, to a Procurator Fiscal or a sheriff, by or on behalf of the at-risk person. ‘Suspect’ is used to denote the individual from whom it is suspected infection could have transferred, without prejudice to whether they are also suspected of having committed a crime.

1.9 Legislation would prescribe those blood-borne viral infections — or conceivably in future other types of infection — which could be the subject of such an application. In this document, the term ‘prescribed’ indicates an infection so prescribed in law. The current intention is that these would be limited to HIV, hepatitis B and hepatitis C.

1.10 The terms ‘mandatory testing’ and ‘mandatory testing order’ are used to describe an order made by a sheriff which requires a suspect to provide information about any prescribed blood-borne viral infections they are carrying. These terms are used for simplicity, despite our recognition that this information could sometimes be provided by access to the suspect’s medical records, and that a blood test would only be required where records are unavailable or inconclusive. It should also be emphasised that individuals subject to a mandatory testing order would not be compelled by force to comply with it. The incentive to comply would be to avoid incurring a penalty under the criminal law — see paragraph 4.18.

1.11 Our response to the petition has been informed by international examples of mandatory testing legislation from Australia and Canada. In Australia, the State of Queensland enacted legislation in 2000 which entitles police officers to apply to a magistrate’s court for a Disease Test Order on an individual who has been arrested for a sexual or serious physical assault, where there is a risk of infection of the victim or a third party. A more wide-ranging provision was enacted by the Canadian province of Ontario in 2002, which extended the right to apply for mandatory testing to any victim of crime, emergency worker, police officer, or "good Samaritan" who suspects they may have been infected as a result of, for example, giving assistance to a bleeding individual after an accident. The Ontario approach has since been modified by other Canadian provinces and in 2004, the Uniform Law Conference of Canada published a revised form of the legislation recommended for adoption by other provinces.

1.12 Although the two models differ in the types of circumstances they cover, in terms of process they are similar. Both in Queensland and in Canada an application must be made to a court for an order for a mandatory blood test, and the court processes are designed to deliver a decision quickly.

1.13 The European Convention on Human Rights, with which all Scottish legislation must comply, sets out a number of fundamental rights in respect of the suspect, as well as of the applicant. The important rights in this context are set out in Article 5 (Right to liberty and security) and Article 8 (Right to respect for private and family life). Compelling an individual to take a blood test which would reveal whether they were carrying a serious and permanent infection would be a profound step which should only be taken if authorised by law, and where the measure is proportional in the circumstances. This will always be something of a balancing exercise between the rights of the suspect and those of the applicant, taking account also of the rights of the public in general to be protected from the spread of viral infections.

1.14 Chapter 2 of this paper briefly describes the health risks at issue for police officers and the steps already taken by police forces to minimise the risk of infection.

1.15 Chapter 3 then discusses key issues of principle which are raised by the SPF’s request for mandatory blood testing, and sets out our position in respect of each issue. Then, in Chapter 4 we set out proposals for legislation to introduce compulsory testing in the Scottish context, based on the principles in Chapter 3. Thus Chapter 3 can be seen as the rationale underpinning the form of our proposals in Chapter 4.

1.16 Questions for consultation are included at various points in chapters 3 and 4 and these are repeated in Annex B. Respondents are invited to give their views on these questions or any other aspects of the proposals.

1.17 Annex C gives details about the Scottish Executive’s consultation process. We are inviting written responses to this consultation paper by 20 May 2005. Please send your response to: PoliceBill@scotland.gsi.gov.uk
or
Vicky French
Police Division 1
Scottish Executive Justice Department
Area 1W
St Andrew’s House
Regent Road
Edinburgh
EH1 3DG

1.19 We would be grateful if you could clearly indicate in your response which questions or parts of the consultation paper you are responding to, as this will aid our analysis of the responses received.

1.20 We need to know how you wish your response to be handled and, in particular, whether you are happy for your response to be made public. Please complete and return the Respondent Information Form which is attached at Annex D to this consultation paper, as this will ensure that we treat your response appropriately. If you ask for your response not to be published we will regard it as confidential, and we will treat it accordingly.

1.21 All respondents should be aware that the Scottish Executive is subject to the provisions of the Freedom of Information (Scotland) Act 2002 and would therefore have to consider any request made to it under the Act for information relating to responses made to this consultation exercise.

2. The health risks to police officers from blood-borne viral infections

2.1 At present, police medical officers are concerned primarily about 3 types of blood-borne viral infection: HIV, hepatitis B and hepatitis C.

2.2 Extant Scottish Executive guidance (in Scottish Office Police Circulars 6/1994 and 9/1985) emphasises the practical measures that front-line police officers can take to minimise the risk of occupationally-acquired infection. Key points include covering all open wounds with waterproof plasters; washing thoroughly after any incident involving blood on the skin; and wearing duty gloves whenever going to the assistance of a bleeding individual. Circular 6/1994 advises that the risk of HIV infection can be substantially reduced if safe working practices are routinely adopted. It comments that "the main operational risk to officers occurs if blood from an infected person comes into contact with an open wound, rash or sore, or if the skin is punctured by a contaminated needle or other sharp object. This is most likely to occur during searching, at a road traffic accident, while recovering a body or while handling violent or disorderly people."

2.3 In the event of contact with another person’s body fluids, officers are advised to seek medical advice and counselling as soon as possible.

2.4 For HIV, the immediate question will be whether to embark on a course of post-exposure prophylaxis (PEP) treatment. Not only is this treatment itself a serious, unpleasant and lengthy process entailing possible long term side effects, but there is also all the psychological stress and worry that an officer and his or her family will go through during the extended period while they wait to find out whether or not he/she has been infected. Accordingly, the treatment will only be recommended if the degree of risk is sufficient to justify it. If it is recommended, force medical officers will advise the officer to begin the treatment immediately, as results from animal studies suggest that HIV PEP is more likely to be efficacious the quicker it is begun, ideally within an hour of the incident.

2.5 Similar considerations apply for post-exposure treatment for hepatitis B. A protective treatment is available, comprising accelerated doses of hepatitis B vaccine together with an immediate injection of immunoglobulin antibodies. However, the side effects are much less severe than for HIV PEP, so treatment is likely to be offered readily whenever a possible risk has arisen. Moreover, unlike HIV or hepatitis C, a vaccination is available for hepatitis B, and our understanding is that those officers who want it already receive this protection, whether arranged by their force or privately through their GP.

2.6 For hepatitis C there is no post-exposure preventative treatment available, though testing would still be appropriate to establish the risk to the applicant.

2.7 In many cases, and especially where there is a risk of HIV infection, the key point is that decisions on treatment need to be made quickly, and this has implications for any legal process which might be put in place around a requirement for blood testing.

2.8 The SPF has recognised that, especially if the suspect had only recently contracted an infection, there is a risk of a false negative result to the blood test. More generally there is a small risk of false positive or false negative results in other cases, giving misleading information for applicants. However, these risks are not sufficient to cast doubt on the value of blood test information to inform decisions about care for a potential infectee, as is evident from the fact that doctors routinely seek this information on a voluntary basis, in cases of a suspected accidental or deliberate cross-infection.

3. Issues of principle raised by the petition

3.1 This chapter considers various issues of principle which are raised by the SPF petition. Our key conclusions are:

3.1.1 Any legislation should extend equal protective rights not only to police officers but also to other people caught up in comparable circumstances.

3.1.2 Requiring a suspect to be tested for serious infections should not be undertaken lightly; there should be safeguards to ensure that suspects do not have this requirement imposed upon them unreasonably. One such safeguard should be that any compulsion should only be on the basis of decision by a sheriff.

3.1.3 Whether or not mandatory blood testing is justifiable will depend on the circumstances of the incident which gave rise to the risk as well as the nature of the risk faced by the injured party.

3.2 The justification for each of these conclusions is set out in this chapter and these principles then underpin our legislative proposals set out in Chapter 4.

Protection should extend not just to police officers but to anyone caught up in comparable circumstances.

3.3 As noted in Chapter 1, police officers are not unique in facing the risk of contracting a blood-borne viral infection through an assault or another incident. The same risks can be faced by other workers in the course of their duty. Individual members of the public may face the same risk as victims of physical or sexual assault, or for example when giving assistance to a bleeding accident victim. The question therefore arises as to whether it would be appropriate to introduce legislation giving specific rights in these circumstances to police officers only. We note that the SPF petition was open minded on whether provisions should extend wider than police officers. It is also notable that the approaches taken in Canada and Australia are not limited to police officers or any other particular groups.

3.4 Police officers probably face a greater likelihood of such an incident than most other groups of citizens. But, once an incident has taken place, a police officer who faces the risk of infection is in exactly the same position as any one else in similar circumstances. For example, if a suspected carrier of a blood-borne viral infection bit both a police officer and another person, we do not believe it would be justifiable to give the officer rights of access to information about any blood-borne viral infections carried by the suspect, without also giving the other victim the same rights. We therefore propose that any protective rights under this legislation should apply to all who find themselves at risk in the defined circumstances.

3.5 We propose 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 Procurators Fiscal when considering applying for a warrant to ascertain if a suspect is infected with a blood-borne viral infection.

3.6 No individual would be compelled by force to comply with a mandatory testing order — the consequence of a refusal to comply would be the prescribed criminal penalty. Nevertheless, mandatory testing is still a serious and profound step, given that it invades the privacy of the suspect for the benefit of the applicant. There are several reasons why we believe any such legislation should contain firm safeguards for the suspect, including the following:

3.6.1 The gravest cases will be where the suspect required to give a test thereby finds out for the first time that they are infected with HIV or hepatitis. Such a discovery could be permanent and life-changing with long term social and financial, as well as health, implications for the suspect.

3.6.2 We recommend below that, at least in the first instance, mandatory testing should only be applied to people who have put someone else at risk of infection as a result of their allegedly committing a crime. However, even in the most clear-cut cases, the decision whether or not to require a blood test will normally need to be made long before any criminal case is settled, and so in advance of a court accepting the suspect’s guilt beyond reasonable doubt.

3.6.3 A further important issue, of particular concern to the medical profession, is the need for the doctor-patient relationship to be seen to be upheld. This means that any legislation to provide for a form of medical treatment against the patient’s wishes, should be considered most carefully, even though the intention is to provide clear health benefits for a third party, namely the applicant.

3.7 None of these issues by itself is necessarily sufficient reason to reject the petition, given the powerful moral and health-care arguments which can be adduced in favour of mandatory testing. But we suggest that given the potential sensitivities and human rights issues, there should be strong procedural safeguards in place around any mandatory testing provisions in Scotland.

3.8 In particular, we have concluded that a decision of this magnitude should be made by a sheriff, after both parties have had an opportunity to set out their side of the case. Thus we do not believe it would be right to expect police officers, acting at night or over the weekend, to make judgements about whether mandatory testing would apply — although we do not rule out officers advising a suspect that he might find himself subject to a mandatory testing order.

3.9 The SPF petition drew no distinction between cases of deliberate and accidental infection of a police officer or, in the case of accidental infections, between cases where the suspect had committed a crime (prior to the accident taking place) or was an innocent person.

3.10 In effect the SPF petition requested that compulsion should depend only on the risk to the officer, and not on the circumstances that gave rise to that risk. Their original proposal would thus have included within the compulsion cases where an officer came into contact with blood from a traffic accident victim during a rescue. However, from the point of view of the suspect, we see a significant difference between the two types of case.

3.11 For the reasons noted above, any mandatory blood test will be a sensitive decision because it will imply a judgement to be made between the human rights of the two individuals concerned — the one seeking information to protect himself from adverse health consequences, and the other being reluctant to release personal health information. We take the view that in the case of a deliberate assault, a requirement for a mandatory blood test would be a justified and proportionate response. However, in accidental cases, the balance of the argument is less clear. If an innocent "suspect" does not know whether or not he carries an infection, and does not wish the test to be carried out, it is not clear why his preference should be outweighed by the preference of the applicant.

3.12 On balance we propose that mandatory blood testing should only be considered if an applicant has come into contact with a bodily substance of another individual 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 at risk of infection with a prescribed blood-borne virus. Applicants covered would thus include (but not be limited to) those who may have been exposed to infection:

3.13 The case where body fluids from an innocent person may accidentally have infected someone else is arguably analogous to the case of a needlestick injury accidentally sustained by a health care worker in a hospital. Guidance to health professionals explains that in such cases doctors should seek consent to blood testing and that when the circumstances of the accident and the need for the information are explained, such consent will usually be given. However, when it is not given, the guidance makes clear that no test should be carried out. We suggest that the same principles should apply to accidental incidents as discussed in this paper.

4. Proposals for legislation

4.1 We have considered carefully the most practical and effective way to provide for mandatory blood testing in Scotland, and as a result propose a dual system: in some cases the information sought by the applicant could most easily be provided as a by-product of a criminal investigation by, or proceedings at the instance of, the Procurator Fiscal, and in respect of these cases, the principal issue is to enable this to take place securely and quickly. However, we propose that there should also be a general right for injured parties to apply to a sheriff for a mandatory blood test, to cover those instances in which the relevant information cannot be obtained by application to the Procurator Fiscal. We therefore propose to establish a new type of civil order (a mandatory testing order) for this purpose.

Circumstances in which mandatory access to blood-borne viral infection information might apply

4.3 The provisions would take effect where a person has come into contact with a bodily substance of another individual as a result of that individual allegedly committing a crime, and where as a result of that contact the applicant could reasonably believe that they might be at risk of infection with a prescribed blood-borne virus. Applicants covered would include (but not be limited to) those who may have been exposed to infection:

4.4 would be interested in views on whether this should be narrowed down to require that the alleged crime must have been one involving a sexual or physical assault, including resisting arrest. If so, this would thus exclude cases where the risk arose accidentally but out of circumstances where the individual had committed a crime. (An example of such a case would be if a police officer has apprehended a suspect for another offence and in the course of searching them the officer cuts himself on a needle in the suspect’s pocket. The suspect had not intended to infect but is not without responsibility for the incident occurring.)

4.5 For obvious reasons, the provisions can only be of value where there is little doubt as to the identity of the suspect. There is very little value for the applicant’s doctors in knowing whether a certain individual is or is not infected, if the applicant is not sure whether the body fluids came from that individual.

4.6 We propose that the provisions would apply irrespective of the ages of the applicant and the suspect. The legislation would provide that applications could be made on behalf of an injured party who was under age or otherwise unfit to give instructions.

Advice to victims of crime who may be at risk of contracting a blood-borne viral infection

4.7 When an individual has been the victim of an assault and faces a possible risk of blood-borne viral infection, it is incumbent on those dealing with the incident, which will normally include both the police and an NHS Accident & Emergency department, to advise the individual about the risks they may face and the options open to them to minimise those risks. The police will have particular information about the circumstances of the incident and perhaps the identity of the suspect, and they will need to liaise with the health service to ensure that the best possible treatment can be made available to the injured party. This liaison between the police, health service and other emergency services already takes place.

4.8 A system allowing victims to apply for a mandatory testing order would be accompanied by guidance from the Executive to the police, the NHS and other emergency services drawing attention to the additional rights afforded to some victims, so that these services will be able to give advice accordingly.

4.9 In some cases the health risk information needed by victims of assault might be provided as a by-product of criminal investigations into these incidents. Where an assault has been committed, the Procurator Fiscal may take steps to establish whether the assailant is the carrier of a blood-borne viral infection. This may involve making an application for a warrant to obtain access to medical records or to obtain a blood sample from the accused. If so, and if a decision is taken to bring a prosecution, this fact may be libelled as an aggravating factor in the assault charge. In such cases, the simplest and quickest way for the victim to get information about infection risks will normally be by application to the Procurator Fiscal.

4.10 To this end, where it appears to the police that the circumstances in paragraph 4.3 above may apply, and where (preferably on the basis of medical advice) there are reasons for believing the suspect may be infected with a prescribed blood-borne viral infection and that there is a risk of transfer of that infection, the police would notify the Procurator Fiscal that there are health risks to the victim associated with the case. If the Procurator Fiscal decides that establishing the infection status of the suspect is material to the prosecution, he/she will, as soon as practicably possible, seek a warrant to obtain medical records or a blood test to establish the infection status of the suspect.

4.11 The Procurator Fiscal already has the power to obtain, by means of warrant, blood-borne viral infection information about an accused which is material to a criminal case. (And if the accused refuses to comply with the terms of the warrant, they can be prosecuted for attempting to pervert the course of justice.) We propose to legislate to give the potential infectee lawful authority to apply to the Procurator Fiscal for relevant information about the nature of the infection he or she might have contracted. This information would be limited to one or more of the particular blood-borne viral infections prescribed in the legislation. The applicant would need to substantiate their right to this information, and subject to this, the legislation would give the Procurator Fiscal lawful authority to provide the information to the injured party.

4.12 Allowing time for medical advice to be sought, for police and prosecution to consider the case, for the warrant to be obtained and fulfilled, the victim would typically be able to find out about the blood-borne viral infections carried by the accused within less than a week of the incident. As the information would be provided as a by-product of necessary criminal processes, there would be no costs to be borne by the victim or suspect, and negligible additional costs to the police, prosecution, and court service.

Procedure which may be followed if information is unlikely to be available as a by-product of a criminal prosecution

4.13 There will be cases involving a possible risk of transfer of a prescribed blood-borne viral infection in criminal circumstances where this aspect of the incident is not being pursued by the Procurator Fiscal. Examples would include cases where the evidence was insufficient for a criminal prosecution; where the body fluid transfer was accidental and incidental to the alleged criminality; where the alleged offender is unfit to face prosecution, for mental health or other reasons; and where the case is not being dealt with by the Procurator Fiscal because the alleged offender was under 16.

4.14 For such cases we propose that legislation should entitle the applicant, or an appropriate person acting on their behalf, to apply to a sheriff for an order authorising access to relevant information from an individual’s health records and, where these are unavailable or inconclusive, requiring the individual to provide blood for analysis if:

4.15 The sheriff would need to be satisfied of all the points in paragraph 4.14 above and if so would make an order requiring the suspect to allow access to his medical records or to provide a blood sample for analysis, to inform the applicant about whether the suspect was infected with any of the blood-borne viral infections prescribed in the legislation.

4.16 We envisage that the procedure in such cases would be taken forward by a private solicitor (or employer or union solicitor) acting for the applicant. Legislation would need to provide that where such an allegation was at issue, the solicitor would have authority to obtain from the Procurator Fiscal and police all relevant evidential and medical information, and also information about the whereabouts of the suspect. The solicitor would formally request the individual to provide a blood sample voluntarily, and, at the same time, would draw up a writ to present it to a sheriff court. The Solicitor would then serve notice on the suspect (the ‘defender’ in the civil process), advising him/her to attend and or be represented at a Court hearing no less than 48 hours after intimation. Such a hearing would be held in private.

4.17 If the suspect (the defender in the civil process) attended the hearing (with or without representation), he/she could oppose the granting of the order, in which case the sheriff would proceed to hear the parties and determine whether or not to grant the order. If the defender did not appear and was not represented at the hearing the sheriff would require the solicitor for the applicant to place before him sufficient evidence to justify the making of the order. If the court was satisfied, on the balance of probabilities, of each of the three items in paragraph 4.14 above, then the court would make an order. If the defender did not appear and the order was ultimately made, the solicitor for the applicant would require to serve the order on the defender.

4.18 Failure to comply with such an order would be an offence punishable by a fine not exceeding level 4 (currently £2,500) or a maximum of 28 days imprisonment.

4.19 The whole point of the process would be to let a person who is concerned that they have been infected have information about the risks, one way or the other, as soon as reasonably possible. In that case, it needs to take place within a relatively short time. We therefore propose that there should be a strict limit on the time allowed for an appeal, of perhaps 48 hours.

4.20 The results of the analysis would be available to the successful applicant and their nominated doctor, and the suspect and their nominated doctor. There would be provisions to limit its transfer to other parties, and in particular it would not be admissible as evidence in any subsequent criminal prosecution (although it may be referred to in any statements made to the Court by the victim about the impact a crime has had on their lives). In essence the only people entitled to the information will be the applicant, the suspect, their doctors, and those in the health, police, Crown and courts services who require to see the information to fulfil their functions and due process of law. The applicant and the suspect would in general be at liberty to pass this information to others.

4.21 We therefore propose to reject the subsidiary part of the SPF’s petition which requested that where a mandatory test has taken place, the police should be entitled to hold the results indefinitely, in order to protect against subsequent infection risks involving the same individual. In general the police are already entitled to hold records of those who have threatened to infect others deliberately, and we do not propose to seek any change to that position. In some cases where information on a blood-borne viral infection is obtained by a Procurator Fiscal, the police would be entitled to retain it for such purposes. However, we believe that information provided as a result of a mandatory testing order should not be retained by the police. The sole purposes of such orders would be to benefit the applicant, and the information should not need to be retained by any public agency.

4.22 The costs of the civil application, and if successful of the subsequent blood testing and analysis, would be borne by the applicant or by their employer. The applicant can apply for civil legal aid to cover the cost of making the application to the court, but any grant of legal aid would not cover the costs of taking the sample or analysing it. Likewise the defender would also be able to apply for legal aid. Civil legal aid would not be granted to applicants or defenders who have ‘other rights and facilities’ (for example legal expenses insurance or access to assistance from their trade union or, for police officers, the SPF). The financial eligibility criteria for civil legal aid would also apply as would the usual merits test of probable cause and reasonableness.

4.23 In many cases a victim will be supported by his or her employer. There will, therefore, be prompt access to medical advice, counselling and, possibly, payment of any legal and medical costs as well as the fee for the blood test. That level of support is perfectly legitimate where the victim has been endangered in the course of his or her duty.

4.24 There will, however, be victims who are not supported by an employer. In some cases this could mean that they do not receive appropriate advice or are not able to afford to meet the costs or fees that might follow from an application for a mandatory blood test. This might discriminate against some victims. One way of meeting this difficulty would be to allow appropriate support organisations to act on a victim’s behalf, where the victim so desires. This would allow these organisations to provide counselling and legal and medical advice as well as defraying some or all of the fees associated with a blood test.

Annex A - Extracts from the Scottish Police Federation petition

"Our members are at special and increasing risk when dealing with the very large number of criminals and drug addicts in our communities who are infected with blood-borne infectious diseases such as HIV and hepatitis B and C.

"Apart from the obvious serious physical danger this represents to police officers and their families, the psychological damage to officers who have been exposed or potentially exposed to this threat often has devastating results for both them and their families. We have evidence from our members of a case where the wife of such an officer was so badly affected that she aborted their unborn child. There are cases where officers have been so badly affected by the stress involved that they have had to be medically retired from the force.

"Although statistically across the whole population the incidence of injuries being caused by such persons is relatively small, this is not the case with police officers who, by the very nature of the duties they are performing on behalf of the public, almost always encounter them in confrontational or violent situations where the likelihood of infection is at its highest.

"Vaccination and a cocktail of drugs known as PEP (Post Exposure Prophylaxis) are available to officers but this treatment has associated serious and unpleasant side effects which can last for some months.

"Accused persons are often asked to submit voluntarily to a blood test to establish whether they are infected but for a variety of reasons they rarely do so.

"Every one of these situations results in a considerable number of weeks of stress and anxiety for officers and their families before they can find out if they have been infected from tests they have undergone themselves.

"We take into consideration the fact that such tests are only valid on the date they are made but contends that they are still of value in establishing the risk of infection to officers and others. Even negative tests on accused persons will be of great value in reducing the mental and psychological trauma to which officers are subjected.

"The Petitioner therefore requests that the Scottish Parliament passes legislation, which will make it compulsory for assailants and others who have caused police officers to be exposed or potentially exposed to such risk to submit to a blood test or tests, the result(s) of which should be made available to the officer should he so wish. Refusal to submit to such a test or tests should constitute an offence carrying such penalty as to encourage the suspected person to submit to the test(s).

"The Petitioner further requests that Parliament amends the Data Protection Act 1998 or takes other legislative action, so that such information may be retained on the Police National Computer in order that appropriate measures may be taken when such persons again come into Police custody which will enhance the safety of police officers and the offenders themselves."

Annex B - Summary of Questions

Question 1. Do you agree that any legislation giving rights to individuals to apply for information about blood-borne viral infections with which they may have been infected, should apply universally? Or should the protection be restricted to particular groups of people? If the latter, what groups should it be restricted to and what would be the justification for this?

Question 2. Do you agree that mandatory blood testing should only be ordered by a sheriff?

Question 3. Do you agree that mandatory blood testing should not be applied to anyone who has committed no crime but may accidentally have exposed another person to a prescribed blood-borne viral infection, so that such people should be free to decline to give a blood sample?

Question 4. Do you agree with the principle of mandatory blood testing for those who commit serious physical or sexual assaults and thereby put the victim of the crime at risk of infection with a prescribed blood-borne virus?

Question 5. Do you agree that the provisions for mandatory testing should extend to any type of case where the applicant may have been exposed to a prescribed blood-borne viral infection as a result of a crime being committed by the other party?

Question 6. Do you think there should be any variation in these provisions for cases where the suspect is under age?

Question 7. Do you agree that persons at risk of infection from a criminal incident should be entitled to seek information from the Procurator Fiscal about the prescribed blood-borne viral infection risks they may face?

Question 8. Do you agree with the proposed criteria for mandatory testing orders?

Question 10. Do you agree that information provided from mandatory testing orders should be for the sole purpose of benefiting the applicant, and should not be retained by the police?

Question 11. Do you agree that the costs of the testing process should fall to the applicant?

Question 12. Should some support organisations be empowered to act on an applicant’s behalf and to provide support and advice as appropriate?

Annex C — The Scottish Executive Consultation Process

Consultation is an essential and important aspect of Scottish Executive working methods. Given the wide-ranging areas of work of the Scottish Executive, there are many varied types of consultation. However, in general, Scottish Executive consultation exercises aim to provide opportunities for all those who wish to express their opinions on a proposed area of work to do so in ways which will inform and enhance that work.

The Scottish Executive encourages consultation that is thorough, effective and appropriate to the issue under consideration and the nature of the target audience. Consultation exercises take account of a wide range of factors, and no two exercises are likely to be the same.

Typically Scottish Executive consultations involve a written paper inviting answers to specific questions or more general views about the material presented. Written papers are distributed to organisations and individuals with an interest in the issue, and they are also placed on the Scottish Executive web site enabling a wider audience to access the paper and submit their responses. Consultation exercises may also involve seeking views in a number of different ways, such as through public meetings, focus groups or questionnaire exercises. Copies of all the written responses received to a consultation exercise (except those where the individual or organisation requested confidentiality) are placed in the Scottish Executive library at Saughton House, Edinburgh (K Spur, Saughton House, Broomhouse Drive, Edinburgh, EH11 3XD, telephone 0131 244 4565).

All Scottish Executive consultation papers and related publications (eg, analysis of response reports) can be accessed at: Scottish Executive consultations (http://www.scotland.gov.uk/consultations)

The views and suggestions detailed in consultation responses are analysed and used as part of the decision making process, along with a range of other available information and evidence. Depending on the nature of the consultation exercise the responses received may:

Final decisions on the issues under consideration will also take account of a range of other factors, including other available information and research evidence.

While details of particular circumstances described in a response to a consultation exercise may usefully inform the policy process, consultation exercises cannot address individual concerns and comments, which should be directed to the relevant public body.

This consultation, and all other Scottish Executive consultation exercises, can be viewed online on the consultation web pages of the Scottish Executive website at http://www.scotland.gov.uk/consultations. You can telephone Freephone 0800 77 1234 to find out where your nearest public internet access point is.

The Scottish Executive now has an email alert system for consultations (SEconsult: http://www.scotland.gov.uk/consultations/seconsult.aspx). This system allows stakeholder individuals and organisations to register and receive a weekly email containing details of all new consultations (including web links). SEconsult complements, but in no way replaces SE distribution lists, and is designed to allow stakeholders to keep up to date with all SE consultation activity, and therefore be alerted at the earliest opportunity to those of most interest. We would encourage you to register.

Where respondents have given permission for their response to be made public (see the attached Respondent Information Form), these will be made available to the public in the Scottish Executive Library by 20 June 2005. We will check all responses where agreement to publish has been given for any potentially defamatory material before logging them in the library or placing them on the website. You can make arrangements to view responses by contacting the SE Library on 0131 244 4552. Responses can be copied and sent to you, but a charge may be made for this service.

Following the closing date, all responses will be analysed and considered along with any other available evidence to help us reach a decision on the proposals to protect people from infection with blood-borne viral infections. We aim to issue a report on this consultation process by 20 June 2005.

If you have any comments about how this consultation exercise has been conducted, please send them to Vicky French at the contact details provided in paragraph 1.17.

Blood testing following criminal incidents where there is a risk of infection:
Proposals for Legislation

Contents

Ministerial Foreword

1. Introduction

2. The health risks to police officers from blood-borne viral infections

3. Issues of principle raised by the petition

4. Proposals for legislation

Annex A - Extracts from the Scottish Police Federation petition

Annex B - Summary of Questions

Annex C — The Scottish Executive Consultation Process

Annex D - RESPONDENT INFORMATION FORM


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