Schedule 1: The office of the Patient Safety Commissioner for Scotland
64.Schedule 1 makes detailed provision concerning the appointment, status, disqualification, terms of office and remuneration, pension and subsequent appointments of the Commissioner. It also provides for the ability to fill the role on a temporary basis, as well as for the appointment of other staff.
Part 1: Status and independence
65.Paragraph 1 of the schedule provides that the Commissioner is a juristic person distinct from the natural person holding the office of Commissioner.
66.Paragraph 2 provides that the Commissioner is not to be regarded as being a servant or agent of the Crown and does not enjoy any status, immunity or privilege of the Crown. The Commissioner’s property belongs to the Commissioner (as Commissioner) and not to the Crown. The Commissioner’s staff are not to be treated as civil servants.
67.Paragraph 3 provides that the Commissioner is not subject to the direction or control of any member of the Scottish Parliament, the Scottish Ministers or the SPCB except as explicitly provided for in the Act. The relevant provisions are set out in sub-paragraph (2).
Part 2: Appointment, termination and terms and conditions
68.Paragraph 4 provides that the Commissioner will be appointed by the King on the nomination of the Scottish Parliament and that when considering nominating a person for appointment to the office of the Commissioner the Scottish Parliament must make arrangements to inquire into whether the person is, or has been within the year preceding the date on which the appointment is to take effect, an individual with a financial interest in a health care provider, a body constituted by virtue of the National Health Service (Scotland) Act 1978 or a supplier or manufacturer of medicines or medical devices. A financial interest for the purposes of this paragraph includes by reason of being remunerated by such a person. Paragraph 4 also provides that a Commissioner may serve only one term of office.
69.Paragraph 5 provides that a person is disqualified from being appointed Commissioner if at the time of the appointment or in the year preceding the appointment, the person is or has been a member of the Scottish Parliament, of the House of Commons or of the House of Lords. It should be noted that “person” is defined widely in schedule 1 of the Interpretation and Legislative Reform (Scotland) Act 2010 and includes bodies as well as individuals, whether or not incorporated.
70.The list of disqualifications is to ensure that the Commissioner is free from political influences, given that the role will involve scrutinising laws, rules and safety regulations over which these institutions have influence or control. These disqualification criteria continue to apply during the Commissioner’s time in office (see paragraph 7(1)(b) of schedule 1).
71.Under paragraph 6, a Commissioner may hold office for a single term of up to eight years, as determined by the SPCB at the time of appointment. This is consistent with the tenure arrangements set out in the Scottish Parliamentary Commissions and Commissioners etc. (Scotland) Act 2010.
72.Paragraph 7 sets out the circumstances under which a Commissioner’s appointment may terminate early. A Commissioner may resign, or may become disqualified from holding office under paragraph 5. The Commissioner can also be removed from office where either the SPCB is satisfied that the Commissioner has breached their terms and conditions of appointment and the Parliament resolves to remove the Commissioner as a result, or where the Parliament resolves that it has lost confidence in a Commissioner’s willingness, suitability or ability to perform the Commissioner’s functions. A resolution in either scenario requires the support of at least two thirds of (normally) the total number of members of the Parliament. However, the number of votes required is based on the number of seats, so the percentage does not reduce if a seat is temporarily vacant pending a by-election.
73.Paragraph 8 provides that the validity of any acts of the Commissioner is unaffected by any procedural defects in the Parliament’s nomination or by the Commissioner subsequently becoming disqualified from acting as the Commissioner.
74.Paragraph 9 enables the SPCB to set and pay such remuneration, allowances, pension and gratuities to the Commissioner as it determines. It will be for the SPCB to decide whether payments are made and the amounts of any payments. The SPCB must indemnify the Commissioner for liabilities incurred by the Commissioner in the exercise of their functions.
75.Paragraph 10 sets out restrictions on subsequent appointments held by a Commissioner once they have left office. Unless permission is granted by the SPCB, a former Commissioner may not, within the specified period, subsequently be any of the following: be employed or appointed in any capacity by the Patient Safety Commissioner; be an employee or appointee of any person or body which has been or is being investigated by the Commissioner or hold office in such a body; hold any other office, employment or appointment or engage in any other occupation which that person could not have held or engaged in under paragraph 11(2)(a) when they were the Commissioner. Paragraph 11(2)(a) covers any specific absolute prohibitions on simultaneous appointments which are contained in the Commissioner’s terms and conditions. The restrictions under paragraph 10 run from the date of leaving office until the end of the financial year following the one in which the person ceased to be the Commissioner. Therefore, if the Commissioner left office on 1 December 2023, the restriction would subsist until 31 March 2025. The restriction in paragraph 10(1) is in place to avoid a subsequent appointment being seen to compromise the independence of the Commissioner. For example, this could arise if a former Commissioner were to become an office-holder of an authority which they would have been able to investigate when in post as the Commissioner.
76.Under paragraph 11, the SPCB may determine the terms and conditions of the Commissioner’s appointment insofar as not already set out in the Act, including prohibiting the Commissioner from holding any other office, employment or appointment – or requiring that the Commissioner first obtain the approval of the SPCB before holding any other office, employment or appointment. Again, this is to avoid an appointment being seen to compromise the independence of the Commissioner.
77.Paragraph 12 makes provision for the appointment of a temporary or acting Commissioner to hold the office either during a period when the post is vacant or where the Commissioner is unable to perform their functions. During that period, the SPCB may appoint as temporary Commissioner a member of the Commissioner’s staff or another person who is not disqualified from holding the post under paragraph 5 of this schedule. However, staff are exempted from the normal disqualification provisions to allow for greater flexibility and in recognition of the short-term nature of the appointment. The SPCB will determine the terms, conditions and duration of the appointment and may relieve the individual from the post at its discretion (by notice in writing), or at the request of the individual.
Part 3: General powers
78.Paragraph 13 permits the Commissioner to do anything which appears to it to be necessary or expedient to the carrying out of its functions.
79.Paragraph 13(2) permits the Commissioner to charge a reasonable fee for providing anything in connection with its purposes.
80.Paragraph 14 outlines the restrictions on the Commissioner’s general powers in relation to the acquisition and disposal of land, namely that the Commissioner may not acquire or dispose of land without the consent of the SPCB.
81.Paragraph 15 provides that the Commissioner may not charge a body constituted by virtue of the National Health Service (Scotland) Act 1978 for anything the Commissioner provides to such a body.
Part 4: Staff
82.Paragraph 16 allows the Commissioner to appoint staff, subject to the consent of the SPCB as to the number of staff appointed, and to determine their terms and conditions subject to the approval of the SPCB.
83.Paragraph 17 allows the Commissioner to pay pensions, allowances and gratuities to current or former members of staff, including the establishment of one or more pension schemes and the payment of allowances or gratuities by way of compensation for loss of employment. Approval for such arrangements must be obtained from the SPCB.
84.Under paragraph 18, while the Commissioner can delegate any responsibility to any person, ultimately the Commissioner remains responsible for carrying out those delegated responsibilities. Having delegated functions, the Commissioner is still able to decide to carry out those responsibilities personally.
Part 5: Accounts and accountability
85.Paragraph 19 requires the Commissioner to prepare a budget before the start of each financial year and seek the approval of the SPCB by such a date as the SPCB determines. Under sub-paragraph (2), the Commissioner may seek to revise the budget during the year by submitting revised proposals to the SPCB for approval. When preparing a budget or a revised budget, the Commissioner is required to ensure that resources will be used economically, efficiently and effectively and must, under sub-paragraph (4), certify this in any budget or revised budget proposal.
86.Paragraph 20 requires the SPCB to designate either the Commissioner or a member of the Commissioner’s staff as the accountable officer (in accordance with section 17 of the Public Finance and Accountability (Scotland) Act 2000). The functions of the accountable officer are set out in sub-paragraph (2) and include: the signing of the accounts; ensuring that the finances are kept in good order; and ensuring that resources are used economically, efficiently and effectively. Sub-paragraph (3) provides a degree of protection for an accountable officer who is not also the Commissioner should they be required to act in any way which is inconsistent with their responsibilities. Before any such action can be taken, the accountable officer must obtain written authority from the Commissioner and send a copy of the authority to the Auditor General for Scotland as soon as possible. Under sub-paragraph (4), the accountable officer is directly answerable to the Parliament for the exercise of those functions specified in sub-paragraph (2).
87.Paragraph 21 sets out the accounting and auditing requirements that apply to the Commissioner. The Commissioner must keep proper accounts and accounting records and prepare annual accounts for each financial year. A financial year is defined in schedule 1 of the Interpretation and Legislative Reform (Scotland) Act 2010 and is a year ending with 31 March. In fulfilling these duties, the Commissioner must comply with any directions given by the Scottish Ministers, who are responsible for such matters under section 19 of the Public Finance and Accountability (Scotland) Act 2000 (“
88.In accordance with paragraph 21(1)(c), a copy of the accounts is to be sent to the Auditor General for Scotland for auditing. The provisions of sections 21 and 22 of the 2000 Act then require the Auditor General to audit the accounts or appoint someone suitably qualified to do so. They also require the accounts to be sent to the Auditor General not later than 6 months after the end of the financial year in question. Once the accounts have been audited, the 2000 Act makes provision for them to be sent to the Scottish Ministers, whereupon Ministers are required to lay them before the Parliament within 9 months of the end of the financial year in question.
89.Under paragraph 21(3), the Commissioner must make a copy of their audited accounts available for inspection, free of charge, to anyone on request.
90.Paragraph 22 requires the Commissioner to prepare and publish a report on the Commissioner’s activities each financial year, which must include a summary of any investigations conducted in that financial year, details of any recommendations arising from those investigations, a summary of any engagement or promotional activity in relation to its functions over the reporting year and an outline of work to be undertaken in the following reporting year. The report is to be laid before the Parliament within seven months of the last day of the financial year to which the report relates – meaning by 31 October.
