27th June 2022
29th October 2019
By Dominic Reed, PhD student, University of Glasgow
Forensic Medical Examiners (FMEs) used to occupy an uncertain role, uncomfortably bridging the disciplines of medicine and law – this was even reflected in their traditional title as police surgeons. As the Scottish Government consultation on provision of forensic services notes however, forensic services have increasingly operated from a health-based perspective in the context of serious sexual abuse, prioritising care for survivors.
It is essential that survivors are quickly able to access forensic services if they choose to. This not only allows them to obtain medical care but can also provide essential evidence for prosecution, should they choose to report an attack to police. Taken alongside a survivor’s testimony, forensic evidence can help to fulfil the corroboration requirement under Scots law and may increase the chances of a conviction. In the current climate, where conviction rates in sex offence cases remain lower than might be expected, an uptake in the use of forensic medical services could provide novel opportunities for increasing the success of prosecutions where warranted.
My PhD research at the University of Glasgow looks at the relationship between medical confidentiality and domestic abuse, considering how perceptions of confidentiality are shaped by the prosecution process. In my fieldwork, I spoke to a number of rape survivors and sexual health clinicians – some with considerable FME experience. Discussions with participants highlighted the use of forensic services by survivors who chose not to report abuse to police (at least initially). For this reason, a legislative requirement for health boards to provide FME services to both self-referrals and police-referrals is welcome and the overwhelming majority of respondents in the consultation favoured such a step. In a process where survivors often feel disempowered and marginalised, it can only be a positive thing that medical care is not dependent on the involvement of the criminal justice system.
While not the only focus of the planned legislation, the consultation also considered issues of data privacy – primarily in the context of taking and storing forensic samples. My research indicates that issues around information sharing are of pressing concern to both survivors and clinicians, and these issues extend beyond the retention of samples. Several FMEs I spoke with described being obliged to disclose information survivors imparted in a consultation, despite the fact that it did not relate to treatment for an attack. This was particularly prominent in police-referral cases. Much as with physical forensic evidence, medical notes arising from a consultation between a survivor and FME can have a vital role in future legal proceedings and there was dissatisfaction among practitioners that this information could be used to attack a survivor’s credibility in court.
As such, the planned legislation would benefit from considering the broader aspects of confidentiality in the context of a forensic consultation, critically re-examining what informed consent means. Given the circumstances in which these consultations take place, it is important to recognise that consent for retention and disclosure of information is not a static phenomenon, and decisions a survivor makes in the immediate aftermath of such a traumatic event should be open to renegotiation at a later date. This would support the argument that survivors should be able to agree to retention of samples, only to change their minds and this could be extended to a wider discussion of how medical notes taken in consultation could be stored and shared.
Discussions with research participants highlighted the desire for more ‘joined-up’ services between the health and justice sector. There was a perception, particularly among survivors, that neither the NHS nor the criminal justice system were entirely clear on how the other operated in respect of the pathways for sexual assault and rape survivors. These observations were not expressed through a call for further information sharing between both services, in fact survivors pointed to the gaps in understanding as responsible for the enhanced disclosure of sensitive information contained in their health records. It was instead, a desire for clearer protocols between both organisations, so that survivors’ medical data was not shared without them having a realistic understanding of what this process could entail.
Ultimately, the ability of legislation alone to sufficiently address issues associated with care for sexual assault and rape survivors is limited. This is borne out through continuing debates over the effectiveness of rape shield legislation enacted in 1995, designed to strictly control the use of sexual history evidence in court. As several commentators noted in the consultation, the quality of forensic facilities is as much a question of funding as it is of legal obligation.
What this consultation and the promised legislation do offer, is standardisation of forensic care and a positive movement towards a healthcare focussed response, away from shared services between health and the criminal justice system. However, it also provides the opportunity for future comprehensive discussions over how survivors interact with medical and legal services in Scotland more generally.
Dominic is a PhD student within the School of Law at the University of Glasgow. His thesis looks at Medical confidentiality and domestic abuse.