Amendments 21 to 25 moved—[Mrs Mary Mulligan]—and agreed to.

Group 70 is on treatment that conflicts with advance statements. The amendments in the group are 100, 26 to 30 and 101. I call Mr Chisholm—I beg your pardon; I call Mary Mulligan.

Amendments 26, 27, 28, 29 and 30 are technical amendments that will clarify the duties to record the fact that steps have been taken that are in conflict with the wishes that are recorded in an advance statement. Those duties will now apply also to commission appointed second-opinion doctors.

Amendments 100 and 101, which were lodged by Adam Ingram, seek to give additional legal force to advance statements and are similar to amendments that were considered, but not agreed to, at stage 2. I am afraid that we still do not believe that such amendments would be desirable.

The bill will, for the first time, give legal status to advance statements that are made by patients who are subject to compulsory treatment, which is a significant development. We think that advance statements have a real role to play in helping to increase the extent to which patients can participate in negotiation and decisions about their treatment. The provisions in the bill concerning advance statements follow the recommendations of the Millan report. The Millan committee considered advance statements carefully and devoted a chapter of its report to considering carefully the extent to which advance statements should have legal force.

The Health and Community Care Committee also heard a considerable amount of evidence at stage 1 about the potential difficulties of advance statements. Some witnesses had profound reservations about the idea of including advance statements in legislation at all. There is good reason to believe that the benefits of advance statements will be maximised when they are used as tools to improve dialogue and negotiation between service users and doctors, rather than being seen primarily as legally enforceable documents.

It might be helpful if I quote from the Health and Community Care Committee's stage 1 report, which said:

"The Committee considers that the provisions on advance statements appear to strike an appropriate balance between increasing patients' autonomy, avoiding practical difficulties, and ensuring that doctors are not inhibited from protecting patients' welfare."

We still believe that Millan and the Health and Community Care Committee were correct in that conclusion.

Concern has been expressed that without a requirement to go to tribunal, an advance statement would be worthless; that is not the case. The bill requires doctors and tribunals to take advance statements seriously. We strengthened the provisions at stage 2 by ensuring that the commission can oversee the actions of doctors who decide not to comply with advance statements and by providing that second-opinion doctors must also take account of such statements. However, there would be serious problems in principle and practice if we were to go further than that.

It is not an appropriate function of the tribunal to decide between one form of medical treatment and another. The tribunal does not have the responsible medical officer's expert knowledge of the patient and will not have examined the patient. If the tribunal is satisfied that a patient requires to be treated compulsorily, it is right that the responsible medical officer—subject to the oversight of an independent second-opinion doctor where appropriate—should be responsible for choosing the best treatment for the patient.

The bill will not allow a doctor to make such a decision regardless of the wishes of the patient. An advance statement must be properly considered and any decision not to follow it must be set out in a report to the Mental Welfare Commission for Scotland. That is on top of the other safeguards that are already in the bill, which include the provisions for an independent second opinion in part 13 and the legal duties in part 1 for doctors to consider the full range of options and to act in a way that involves minimum restriction of the patient's freedom in the circumstances. Therefore, the bill already goes considerably further than does the current law in protecting patients from treatment that they oppose. Its effect will be that there must be truly compelling reasons to treat a patient in a way that contradicts an advance statement.

Adam Ingram's amendments would require any doctor who thought that it was necessary to treat a patient in a way that is inconsistent with an advance statement to seek the approval of the tribunal. The tribunal would have to allow the interested parties the opportunity to give evidence before deciding whether to authorise the treatment. We think that that would be impractical, partly because it could create burdens on doctors and the tribunal, but mainly because it could cause harm to patients. It appears that the amendments would allow treatment to be given without a tribunal hearing if the RMO were to decide that such treatment was a matter of urgency. However, there could be cases in which the matter is not an emergency, but in which treatment's being delayed could nevertheless prolong a patient's distress and cause long-term harm.

At stage 1, the committee expressed concern that the situation might arise in which a patient who had previously made an advance statement subsequently indicated willingness to accept treatment. It was suggested that it should be possible for the doctor to go to the tribunal and seek its approval for the treatment. We do not think that that is necessary, but it highlights one of the many practical and ethical difficulties that are raised by advance statements. Given such difficulties, we think that it is right to proceed cautiously and in line with what Millan recommended. We will certainly emphasise in the code of practice the importance that we attach to advance statements and the need to take them extremely seriously. We hope that the bill will allow advance statements to take root and influence the culture of decision making in mental health services in a way that emphasises partnership between service users and professionals, rather than conflict.

I hope that Adam Ingram will not press amendments 100 and 101.

I apologise to Adam Ingram—I should have called him to move amendment 100 before I called the minister. I must advise members that if amendment 100 is agreed to, I will not be able to call amendments 26 to 30 because they will have been pre-empted. I invite Adam Ingram to speak to and to move amendment 100.

Amendments 100 and 101 are restatements of an amendment that Mary Scanlon lodged at stage 2. The committee was split on the issue and her amendment fell only after the use of a casting vote; therefore, it is right that we revisit the issue today.

That is why I selected the amendment.

I will go over what an advance statement does. An advance statement offers an individual an opportunity, when he or she is well enough to do so, to set out their wishes regarding future care and treatment, should they lose their capacity to make decisions about such matters. As the bill stands, in making any decisions about a patient who has made a valid advance statement, a tribunal must "have regard to"—that phrase is used again—the terms of that statement. Patients who are treated under the eventual act might be given treatment that conflicts with their advance statement, provided that the person who gives the treatment has regard to the wishes that are expressed in that statement and complies with certain recording and notification requirements.

Amendment 100 will not make advance statements legally binding; neither will it prevent clinicians from providing treatment in an emergency, which could be dealt with under section 171. If the patient's RMO wished to give, or direct others to give, treatment that conflicted with the advance statement, the RMO would have to apply to the tribunal for authority to do so. The patient or named person would have the opportunity to have their views heard before the decision was made. That would strike the right balance between giving advance statements significant weight and allowing that they can be overridden by the tribunal in appropriate circumstances.

Professionals have written to several MSPs. Professor David Owens, for example, was concerned that advance statements could inhibit psychiatrists' duty of care. However, the availability of an appeal to the tribunal allows expression to clinical judgments and would protect psychiatrists in their judgments about care for, and treatment of, patients.

The point of my amendments is to reassure service users that their voices will be heard when treatment choices are being made, and that they will not be overridden as a matter of course.

I move amendment 100.

As my colleagues on the Health and Community Care Committee have witnessed, this is undoubtedly the issue with which I have struggled more than any other during the passage of the bill—the issue is crucial. I support Adam Ingram's amendments. A patient's rights, as stated in an advance statement, will form the basis of controversy for years to come. To be honest, I agree with both sides, and I find the matter to be enormously complex.

Once again, the issue is the balance between patients' rights and allowing clinicians to make good clinical judgments. I do not wish to deny patients respect and dignity, as has been done in the past, because when they are fit and well, many patients wish to have a say in the type of treatment—for example ECT and other treatments—that they want when they fall ill. I do not wish to deny any patient in Scotland that right, but neither do I wish to deny a psychiatrist the duty of care or to inhibit his or her right to make a clinical judgment. Although I support Adam Ingram's amendments, we also want service users to be encouraged to go through the formality of making an advance statement in accordance with the requirements of section 187. We do not want them to wonder what the point is of making an advance statement when that statement can be overridden at the discretion of professionals, with no means being available to service users to challenge such decisions. We want to empower service users and to treat them with the respect and dignity that they have gained through their experience of the service.

However, to do so is undoubtedly difficult when one receives a letter such as that from Professor Owens. I would like to share one or two comments from that letter—I make no apologies for the time that I will take because this is such a difficult and complex issue. Professor Owens states:

"I am concerned about the potential conflict for doctors with regard to their duty of care. I wonder what will be the expectations of someone such as myself when a clearly stated advance directive represents in my clinical judgement an inappropriate plan for management.

I strongly believe that the whole principle of advance directives is based on a false assumption—namely, that the circumstances in which psychiatric disorder presents remain static and predictable. This is totally contrary to my clinical experience. What may be an appropriate treatment plan in one set of social and clinical circumstances may be totally inappropriate in another.

There are a series of further practical difficulties—e.g. over 90% of my work is concerned with emergency cases. The idea of a 'cold' psychiatric case is rapidly becoming a thing of the past. In these circumstances, it may be impossible to confirm the details of any extant advance directives—or, worse, establishing their presence in volumes of past clinical records, may unduly delay the implementation of an optimal treatment plan.

The proposal, contained in this amendment"— which I support—

"to refer dispute in these matters to a Tribunal for, in effect, arbitration, fills me with horror. This is in effect, the act of handing over professional—and CLINICAL—judgement to the legal process, something which I ... abhor ... Should Parliament accept that advance directives must be, in matters of dispute, arbitrated by Tribunals, I MOST FIRMLY believe they must also give psychiatrists the LEGAL right to refuse to accept on-going management responsibility for cases in which their clinical plan is over-ridden by a review Tribunal. To fail to do so, would in my view place psychiatrists in the invidious situation of being forced to supervise treatment they believe to be sub-optimal or worse, positively harmful, something that is contrary to every principle of medicine in which they have been professionally raised and nurtured—and something I do not believe Parliament has the right or authority to impose our profession."

I cite Professor Owens's letter because I want MSPs who are not, or have not been, members of the Health and Community Care Committee to understand the difficulties that the committee has had in trying to give patients more rights and a say in their medication or treatment; in trying to reduce the stigma that we all know is associated with mental health and in trying to treat patients as worthwhile partners in the partnership of care. I find it very difficult to give patients the authority that I want to give them while respecting the clinical judgment of people such as Professor Owens.

The member has argued against herself.

As a true Gemini, I see both sides of the argument clearly. I want to show members how difficult it is not to inhibit clinical judgment while giving patients rights.

How do I follow that? Mary Scanlon has provided classic examples of the difficulties to which I alluded earlier and of questions arising from the bill with which the Health and Community Care Committee has wrestled. We have had to make judgment calls at the narrow edges of a border.

I agree whole-heartedly and sympathise with the views that lie behind amendment 100. It is important that we afford people who have mental health difficulties true dignity and respect and that we listen to what they say because they probably know much more about their conditions than do most of the people who will be involved in treating them. Anyone who does not listen to the patients is not doing their clinical job properly.

How do we afford people with mental health difficulties proper dignity and give proper weight to their judgments about the treatment that they should receive, while taking on board the clinician's duty of care? Mary Scanlon has wrestled with the issue and has cited from the letter that many of us received from Professor Owens about the problems that amendment 100 would present from a clinical point of view. In a sense, I am on the other side of the argument, because I voted against the amendment that Adam Ingram lodged on the issue at stage 2, even though I agree whole-heartedly with his view.

Despite the fact that I am an Aquarian, I am in exactly the same situation as Mary Scanlon. Adam Ingram's argument about the right of appeal is seductive and persuasive, but the problem is that if the answer to an appeal is that the clinician is not correct, the legal tribunal would compel the clinician to do something that he or she thinks is wrong and to go against his or her judgment and the terms of their duty of care.

At stage 1, the Health and Community Care Committee said that we do not want advance statements to be legally binding—as far as I am aware, nobody wants that—because we understand the complexities of the issue, as do the Scottish Association for Mental Health and other bodies. We felt that if greater weight were to be given to advance statements, we would have to resolve the issue of what to do about clinicians who are compelled to do something against their best clinical judgment. If I recall rightly, we said at stage 1 that it should be possible for clinicians who have to act contrary to their judgment to be absolved of responsibility for what happens.

I turn to the compelling arguments that were made by the likes of Professor Owens. People can make advance statements about conditions that they might experience, but time and conditions do not stand still. We always hope that people will get better, but often they deteriorate. Given that conditions do not remain static, it is difficult to say that a clinician should at some point in the future be compelled to act on a person's advance statement.

An example that I have used previously—although not entirely seriously—is the suggestion that I gave to my clinicians when I was expecting a baby. I had a wonderful notion about the care that I wanted and I said that I did not want pain relief. I gave the issue some thought and discussed it with clinicians and my husband, but when it came down to it, I would happily have had my head taken off if the baby could have been brought out that way. I was in so much pain that I would have taken anything, and I tried to do so. [MEMBERS: "Hear, hear."] That hit a raw nerve.

I do not mean to be flippant, but that example is the only occasion on which I have been asked what I wanted in advance of treatment, but the reality of what I experienced was different from what I thought it would be. My example illustrates one of the complexities of the issue. A difficult judgment call is involved, but I do not support Adam Ingram's point of view. I ask the Executive to monitor the system closely because we can learn from experience. I will go with the Executive on this one.

I was not paying too much attention to the debate until I heard Mary Scanlon's speech, which reminded me of arguments that we had in relation to the Adults with Incapacity (Scotland) Act 2000. On the one hand, the family of somebody who is incapax might think that they know best how that person should be treated, but on the other hand, the doctor might think that that treatment would be inappropriate. Initially, we decided that the clinician should have the last word, about which the families were up in arms, but when we reversed that decision at stage 2, the families were happy but the medical profession was extremely unhappy.

If my memory serves me well, we decided that there should be a tribunal that, in extremis, would make a decision about what was best for the patient. My memory is vague, but I do not think that the tribunal was necessarily a medical one—lawyers and other people were to be involved. Perhaps the Executive should consider that system as a model for what might happen with advance statements. We are at a late stage, but perhaps the Executive could find out how the advance statement system works and consider introducing a tribunal.

As the back bencher who was instrumental in working closely with the Executive on the provisions in the Adults with Incapacity (Scotland) Act 2000, to which Maureen Macmillan referred, I think that what happened in that act's passage is a good example. The outcome was that the Mental Welfare Commission would appoint a second specialist independent doctor who was an expert in the field and who would listen to the views of the carer and the doctor who proposed the treatment over which there was disagreement. The concept was based on partnership.

The proposed advance statement system will allow a patient who might become incapacitated to make an advance statement, which will ensure as far as possible that the patient's wishes are followed. However, as Mary Scanlon said, there are significant difficulties with the proposal. Psychiatrists often have to move quickly to establish treatment that, although it might not be life saving, is close to it. We are not dealing with absolutes, but with many relative positions. We should consider and take on board the model in the Adults with Incapacity (Scotland) Act 2000, although it has been introduced only recently, so I am not sure whether there is any case history on it.

One great advantage of the parliamentary system is that the Executive, having given an undertaking to monitor advance statements carefully, will be able to return to the Parliament rapidly if the case history in relation to the Adults with Incapacity (Scotland) Act 2000 or the working of the new advance statements prove that additional measures are required. The Executive is right to move cautiously and to try to take the medical professions and the users with us. I support the Executive, but I strongly urge it to monitor the system extremely carefully. The Executive should have an open mind about returning quickly to the issue if users' wishes are not being followed through reasonably.

It is regrettable that some patients who have mental illness are unreasonable—just as some members are unreasonable from time to time. Advance statements are not always in patients' best interests; indeed, they might have serious consequences. A degree of openness about the issue is important.

Does the minister want to add anything before I ask Adam Ingram to wind up?

Thank you, Presiding Officer. I am sorry that I jumped the gun earlier.

That was my fault.

I feel strongly that the bill has moved substantially towards giving service users control over their treatment, which is the message that we received loud and clear. The Mental Welfare Commission, the general practitioners committee of the British Medical Association and the Royal College of Psychiatrists welcomed the bill's provisions on advance statements, although I accept that it was a cautious welcome. Even Professor Owens, who had profound reservations about advance statements, indicated that the policy that is enshrined in the bill—which stops short of giving full legal effect to advance statements—might be workable. We get the feeling that people have serious concerns about how to arrive at a correct balance on the issue, but the Executive's amendments should give us that balance.

Maureen Macmillan mentioned tribunals. In reality, if a patient's need for treatment is such that the responsible medical officer and—where appropriate—the independent second-opinion doctor are satisfied that it would be wrong to comply with the advance statement, it would be absolutely exceptional for a tribunal to seek otherwise. Therefore, a tribunal system might be overbureaucratic and lead to practical difficulties, which is why we have not gone down that route.

I agree totally with members who said that it is essential that we keep the issue under review. We are aware of the range of views—some conflicting—that people hold on the issue.

The minister will be aware of the shortcomings of section 5 of the Adults with Incapacity (Scotland) Act 2000 and the extra work load that it has brought about, which I have pointed out to Minister Chisholm. Will she ensure that the bill will not introduce another unexpected work load for practitioners? When will she proceed with the review of the Adults with Incapacity (Scotland) Act 2000 that Minister Chisholm promised?

Section 5 of the Adults with Incapacity (Scotland) Act 2000 is under review and the minister will shortly produce proposals to try to address the work-force issues that have arisen. However, in the majority of cases, the 2000 act is working well.

Advance statements will need to be monitored. We want service users to feel that their views are being taken into account and that they hold great sway over decisions regarding their treatment. We want to encourage service users to make advance statements and to feel that those statements are worth while. We will ensure that they will be overridden only in rare cases, and we will continue to review that option.

This has been a good and interesting debate. Mary Mulligan has shown her passionate side again, as has Margaret Smith. They both made very good speeches.

This is a question of balance and it is clear that we are all struggling to decide where that balance should lie. I believe that we need to move the balance towards the rights of individual users of the service and away from the historical dominance of the professional point of view. On that basis, I will press amendment 100.

The question is, that amendment 100 be agreed to. Are we agreed?

Members:

No.

There will be a division.

Division number 1

For: Adam, Brian, Canavan, Dennis, Crawford, Bruce, Ewing, Fergus, Ewing, Mrs Margaret, Fabiani, Linda, Fraser, Murdo, Grahame, Christine, Hamilton, Mr Duncan, Harper, Robin, Hyslop, Fiona, Ingram, Mr Adam, Johnstone, Alex, Lochhead, Richard, MacAskill, Mr Kenny, Marwick, Tricia, McLeod, Fiona, Morgan, Alasdair, Mundell, David, Neil, Alex, Paterson, Mr Gil, Reid, Mr George, Robison, Shona, Scanlon, Mary, Scott, John, Sheridan, Tommy, Sturgeon, Nicola, Tosh, Mr Murray, Wallace, Ben, Welsh, Mr Andrew
Against: Alexander, Ms Wendy, Baillie, Jackie, Barrie, Scott, Brankin, Rhona, Butler, Bill, Chisholm, Malcolm, Craigie, Cathie, Curran, Ms Margaret, Deacon, Susan, Eadie, Helen, Ferguson, Patricia, Finnie, Ross, Fitzpatrick, Brian, Gillon, Karen, Godman, Trish, Gorrie, Donald, Grant, Rhoda, Gray, Iain, Henry, Hugh, Home Robertson, Mr John, Hughes, Janis, Jackson, Dr Sylvia, Jamieson, Cathy, Jamieson, Margaret, Lamont, Johann, Livingstone, Marilyn, Lyon, George, Macdonald, Lewis, MacKay, Angus, Maclean, Kate, Macmillan, Maureen, Martin, Paul, McAllion, Mr John, McAveety, Mr Frank, McCabe, Mr Tom, McLeish, Henry, McMahon, Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Peacock, Peter, Raffan, Mr Keith, Robson, Euan, Scott, Tavish, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Smith, Mrs Margaret, Stephen, Nicol, Thomson, Elaine, Watson, Mike, Whitefield, Karen, Wilson, Allan

The result of the division is: For 30, Against 56, Abstentions 0.

Amendment 100 disagreed to.

Amendments 26 to 30 moved—[Mrs Mary Mulligan]—and agreed to.