The Act: Section by Section Section 5: Health care needs
30.Subsections (1) and (2) require health boards to provide their examination service in an integrated way with their health care functions, so that health care needs arising from the incident (for example, prescription of emergency contraception, sexual health tests or referral for psychological support where appropriate) are identified and addressed as quickly as possible after the incident, as well as the necessary forensic evidence capture taking place.
31.The duty imposed on health boards by subsection (1) only applies to the extent that the health board is responsible for a person’s health care. As noted in paragraph 10 above, health boards must provide the examination service regardless of the place of residence of the person being referred for or requesting a forensic medical examination. The persons in relation to whom health boards’ health care functions are exercisable are set out in the Functions of Health Boards (Scotland) Order 1991. Under that Order, a health board is generally responsible for the health care of persons resident within its area, as well as, for example, emergency care for all persons in its area. Paragraph 2 of the schedule to the Act amends the Order to provide that, where a health board is not generally responsible for the health care of a person who has been referred for or requests a forensic medical examination (and the health care required is not emergency care), the health board is responsible for providing health care at the time the examination service is provided to the person and also for providing such follow-up care as the health board considers it appropriate to provide. To illustrate: suppose that a person who lives in Aberdeen is sexually assaulted while visiting Edinburgh, and that the person immediately requests a forensic medical examination from NHS Lothian on a self-referral basis. NHS Lothian will be responsible for carrying out the forensic medical examination and for identifying and addressing the victim’s immediate health care needs in that context. Separately, NHS Lothian could opt to provide certain follow-up care – for example, by suggesting that the victim returns a day or so after the examination in order for a dressing on a wound to be changed. But NHS Lothian is not obliged to provide any longer term health care that the person requires as a result of the sexual assault. Instead, the victim could be referred to, or given information about, relevant services provided by NHS Grampian. (12)
32.Subsection (3) provides that the subsection (1) duty applies even in cases where a victim presents for forensic medical examination but no examination takes place (for example, because a professional judgement is made that such an examination should not be carried out or because a victim does not consent to undergo examination).