The Act: Section by Section Section 2: The examination service
12.The examination service that each health board must provide consists of providing forensic medical examinations in relation to two types of incident. The first is where certain types of sexual offences are alleged to have been committed. The relevant type of offence is defined in broad terms in subsection (11), but includes rape and sexual assault as defined in the Sexual Offences (Scotland) Act 2009 (“the 2009 Act”). A forensic medical examination is not necessary in relation to “non-contact” sexual offending, as an examination would not result in any additional evidence being obtained in such cases. The Act therefore does not cover such cases.
13.The Act does not refer to attempts to commit offences of the kind described in subsection (11). This is unnecessary as an attempt to commit an offence is itself an offence under section 294 of the Criminal Procedure (Scotland) Act 1995 – so an attempted sexual offence, the nature of which is such that a forensic medical examination may result in evidence being collected, will still fall within the description set out in subsection (11).
14.The second type of incident involves alleged harmful sexual behaviour by children under the age of criminal responsibility.(4) Victims of such behaviour may also require a forensic medical examination. Again, “non-contact” behaviour would not necessitate the carrying out of a forensic medical examination and is not included in the definition of harmful sexual behaviour set out in subsection (11).(5) The reference to behaviour which risks causing harm covers attempted harmful sexual behaviour.
15.It may not be known at the time a forensic medical examination takes place whether the incident involves an alleged offence or an alleged case of harmful sexual behaviour by a child under the age of criminal responsibility. This does not matter for the purposes of section 2(2) – an incident giving rise to a need for a forensic medical examination will always involve an allegation that an incident falling, one way or the other, within section 2(2)(a) has taken place and so the duty on the health board to provide a forensic medical examination still applies.(6)
16.It does not matter, for the purposes of the provision of a forensic medical examination, whether the incident giving rise to the need for the examination took place in Scotland or elsewhere.(7) So, for example, a person aged 16 or over who lives in Scotland and who is sexually assaulted while abroad or elsewhere in the UK can request an examination on a self-referral basis on their return home.
17.Subsection (2) sets out the two ways in which the examination service is accessed by victims. The first possibility is that a victim is referred to a health board for an examination by a constable (following the incident being reported to police) – see subsection (2)(a).(8) The second possibility is that a victim “self-refers”, that is, requests the health board to carry out a forensic medical examination without the incident having been reported to police (see subsection (2)(b)). A victim might access self-referral by phoning and arranging an appointment at the appropriate health board facility.
18.Health board staff do not, under subsection (2)(b), have to make a judgement about whether an offence has been committed (or harmful sexual behaviour has occurred) in order for an examination to be carried out on a self-referral basis – the effect of the Act is that it is sufficient that the victim alleges that they have been the victim of such an offence (or behaviour).
19.Self-referral is not available to children aged under 16 (but see also paragraph 24 below). So even if a child aged under 16 requests a forensic medical examination on a self-referral basis, the health board will not be able to carry out such an examination until a constable requests an examination under subsection (2)(a). This does not prevent the young person accessing healthcare support ahead of police involvement.
20.Subsection (3) describes the “criminal justice” purpose for which forensic medical examinations are carried out, while referencing the fact that the examination also serves other purposes (in practice, addressing the health care needs of victims). “Investigation” and “proceedings” are both defined in section 18(1), while section 17 expands, in a number of respects, on the meaning of references to “evidence” – see paragraphs 59 to 62 below.
21.Subsection (3) also states that forensic medical examinations are physical medical examinations. So, for example, an entirely non-physical assessment of whether a person was incapable of consenting to sexual conduct as mentioned in section 17(2) of the 2009 Act is not a forensic medical examination for the purposes of the Act.(9)
22.However, in some cases where a person is referred for or requests a forensic medical examination following an incident of a type described in subsection (2), a full physical examination will not be carried out. Examinations may only proceed to the extent that the victim consents under general law and practice – so one reason why a full physical examination might not be carried out is that the victim consents only to a limited examination. As discussed below in relation to section 3, it is also possible for a professional judgement to be made that a full physical examination ought not to be carried out. Sections 17(3) and 18(2) ensure that, in a case where the physical examination does not in the end proceed for some reason, the provisions of the Act still apply in relation to whatever evidence is collected (including by providing that references to the need for an examination, such as that in section 2(3)(a), include reference to the need for the original referral or request for examination). So, for example, if a victim is referred by police for a forensic medical examination but does not consent to a full physical examination, notes taken by health board staff in anticipation of such an examination taking place are “evidence” (as long as they were not taken purely for health care reasons). This means that they must be transferred to a constable under section 9(3) following a request being made under section 9(2).
23.The fact that forensic medical examinations are physical medical examinations does not limit the health boards’ duty under section 5 of identifying and addressing any health care needs of persons undergoing a forensic medical examination – as explained below, that duty extends to mental health care needs as well as physical health care needs.
24.Subsection (4) confers power on the Scottish Ministers, by regulations subject to the affirmative procedure, to change the age at which self-referral becomes available (as set out in subsection (2)(b)) to any age from 13 to 18. This power may be exercised more than once (so, for example, the age could in principle be changed from 16 to 15, and then further changed to 14 or 13, or from 16 to 17 and then further changed to 18).(10)
25.Subsection (8) requires the Scottish Ministers to make a statement to the Scottish Parliament annually on the reasons for the self-referral age set out in subsection (2)(b) being changed (or not changed) using the power conferred by subsection (4). A statement under subsection (8) must also provide details of the support which is provided to persons aged under 16 who are referred for a forensic medical examination by a constable under subsection (2)(a), as well as details of any consideration given to the question of what support would be provided to such persons if the self-referral age was changed to allow that age group to self-refer under subsection (2)(b).