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The Scottish Executive Consultation Paper: Blood
Testing Following Criminal Incidents Where There Is A Risk Of Infection
The UNISON Scotland Response May 2005
Executive Summary
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UNISON Scotland welcomes the opportunity to
respond to and comment on the Executive's proposals on "Blood
Testing Following Criminal Incidents Where There is A Risk of
Infection". UNISON is Scotland's largest trade union representing
150,000 members delivering public services. We represent the
majority of the employees in the National Health Service in
Scotland, almost 6000 members in the voluntary and community
sector and over 3000 police staff.
Introduction
UNISON Scotland welcomes the opportunity to respond
to and comment on the Executive's proposals on "Blood Testing
Following Criminal Incidents Where There is A Risk Of Infection".
UNISON is Scotland's largest trade union representing 150,000 members
delivering public services. We represent the majority of the employees
in the National Health Service in Scotland, almost 6000 members
in the voluntary and community sector and over 3000 police staff.
UNISON members are often subject to assaults and intimidation
when carrying out their work. This proposal will have a direct impact
of the working lives of many UNISON members. We are therefore keen
to ensure that members get as much protection as possible in order
to allow them to continue to provide vital services to the community
This paper constitutes UNISON's response to the consultation
paper "Blood testing following criminal incidents where there
is a risk of infection".
Responses
Issues of principle
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?
UNISON Scotland is pleased that the Executive recognises
that public and voluntary sector workers are at risk from attack
at work. UNISON Scotland believes that these workers should be able
to access information about blood borne viral infections following
a criminal incident. The British Crime Survey highlighted that care
workers face twice the national average risk of assault. The UNISON
Scotland "Trauma Report 2003" found that UNISON members
had experienced 242 specific violent incidents. Many respondents
indicated that assault at work was a "daily occurrence"
or " too many to record". Most of those who experienced
a serious injury were women. These figures do not include incidents
such as spitting which can carry a risk of infection, albeit small.
We therefore believe that any legislation should at a minimum offer
protection to all public sector workers.
Question 2. Do you agree that mandatory blood testing
should only be ordered by a sheriff?
UNISON Scotland believes that in order to ensure that
the human rights of all concerned are fully protected it is important
that a decision of this magnitude should be made in such a way as
to ensure that both sides are able to set out their case. A sheriff
seems the appropriate person to hear the cases and make a decision.
There is though little detail on how this would impact on an already
busy court timetable.
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?
UNISON Scotland believes that this legislation should
only apply where a criminal incident takes place and not when any
accidental risk of infection occurs.
UNISON Scotland also believes that, while it is difficult
to find a balance between the rights of individuals, once an individual
commits a crime then the rights of those affected by that crime
take precedence. Therefore even if the risk of exposure is as an
indirect result of a criminal incident, for example while examining
a crime scene, then the person involved should have a right to know
what exposure risks they face.
Proposals for legislation
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?
As stated above UNISON agrees with the principle of
mandatory blood testing in the above circumstances. As stated above,
while it is difficult to find a balance between the rights of individuals,
once an individual commits a crime then the rights of those affected
by that crime take precedence. Therefore even if the risk of exposure
is as an indirect result of a criminal incident, for example examining
a crime scene, then the person involved should have a right to know
what exposure risks they face. It is also important to note that
bites and spitting are not considered to be serious assaults but
do carry risks of exposure to blood borne viruses. We believe that
it is the risk of exposure that should trigger the right to information
not the seriousness of the assault and that legislation needs to
make that clear to be effective.
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?
UNISON Scotland believes that it is important that
any response to a criminal incident must be proportionate. As stated
above UNISON believes that once a crime has been committed those
exposed to a risk have the right to know what that risk entails
in order to take action to protect themselves or to prevent them
putting others at risk of exposure. The legislation would need to
make a clear definition of criminal incident. For example would
exposure following a needle stick injury at the scene of a drugs
overdose or suicide give an individual the rights to know the results
of a post mortem. UNISON believes that the legislation should include
such incidents.
Question 6. Do you think there should be any variation
in these provisions for cases where the suspect is under age?
UNISON sees no reason for any variation for cases
where the subject 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?
UNISON agrees that a person at risk should be able
to seek information from the Procurator Fiscal.
Question 8. Do you agree with the proposed criteria
for mandatory testing orders?
UNISON agrees with the proposed criteria.
Question 9. Do you have any comments on the proposed
civil application process?
The process seems clear although UNISON has some reservations
about the ability of the system to meet these time scales. It is
important to note that if a person is at risk of infection following
an incident that occurred during the course of their employment
then their employer should be handling the process and the costs.
UNISON believes that legislation should make this clear.
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?
UNISON sees no reason why the police should retain
this information.
Question 11. Do you agree that the costs of the
testing process should fall to the applicant?
UNISON believes current Health and Safety legislation
means that members exposed at work would have any costs covered
by their employer. We believe that the legislation should make this
clear.
As a matter of principle UNISON believes that no one
should be disadvantaged by his or her financial circumstances. Current
Legal Aid rules could leave some individuals unable to use the proposed
legislation. Therefore more thought needs to go into the funding
of this process for those individuals whose costs would not be covered
by their employer.
Question 12. Should some support organisations
be empowered to act on an applicant's behalf and to provide support
and advice as appropriate?
UNISON Scotland acts to provide support and advice
to its members and is able to provide a range of legal and counselling
services and would expect to be involved if any members were at
risk. As stated above if the incident took place at work then their
employer would be expected to bear the costs. The consultation though
gives no detail about which "support organisations" the
proposal intends to be involved. The specific services, suggested
in this section, would have cost implications for UNISON and any
other "support organisation". Empowering "support
organisations" would not solve the question of access to testing
unless funding is provided to support organisations for providing
these services.
UNISON Scotland supports the general principle behind
this proposal but feel that more detail is required particularly
about funding.
For Further Information Please Contact:
Matt Smith, Scottish Secretary
UNISON Scotland
UNISON House
14, West Campbell Street,
Glasgow
G2 6RX
Tel: 0870 7777006
Fax: 0141 342 2835
e-mail:matt.smith@unison.co.uk
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