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The next item of business is stage 3 proceedings on the Mental Health (Scotland) Bill. Members should have the bill as amended at stage 2, the marshalled list of amendments and the groupings of amendments. The division bell will sound and proceedings will be suspended for five minutes for the first division of the afternoon. The voting period thereafter will be 30 seconds. Following that, I will allow a period of one minute for the first division after each debate.
After section 2A
One of the most important factors for any legislation to take into account is how it affects the most vulnerable and those in most need of protection in our society—a duty that this Parliament must continue to take extremely seriously.
I support Dr Simpson’s amendment 24 on psychotropic substances. It would provide a layer of protection for those who are vulnerable to being wrongly steered towards the provision of psychotropic substances without their full consent or acquiescence.
Although I fully understand the scientific justification for treatment by psychotropic substances, we must be fully ready to control any potential gaps in legislation that risk extending their use beyond what is necessary. The safeguard of regulations on prescribing conditions that have to be satisfied for the groups of people included in Dr Simpson’s amendment is a positive step and a fulfilment of the Parliament’s duty to protect the vulnerable while extending their rights in relation to medical treatments.
I thank Dr Simpson for speaking to his amendment. Amendments were lodged on this issue at stage 2 that would have applied specific measures around the giving of psychoactive medication.
Amendment 24 does not seek to apply specific measures; rather, it seeks to require ministers to make regulations setting out conditions that must be satisfied before treatment by psychotropic substances may be given.
I had a useful discussion with Adam Ingram, who raised the issue at stage 2, and with Dr Simpson and Dr Milne after stage 2, and I thank them for taking the time to speak to me and for their work on the issue.
Dr Simpson raised the use of psychotropic substances for those with dementia, which is relevant to the point that Jim Hume rightly made that we should always do what we can to protect the most vulnerable.
I understand that there are particular concerns around the prescribing of psychotropic drugs in care homes. Safeguards and actions are already in place in that regard, including the publication of revised polypharmacy guidance by the Scottish Government in March 2015, which reinforces the principles on the review of, and reduction in, the use of antipsychotics for people with dementia. The guidance identifies three groups that practitioners should prioritise for review: people in care homes, those with vascular dementia, and those with dementia who have a history of cardiovascular disease, cerebrovascular disease or other vascular risk factors.
We have taken more action this year to further reduce the inappropriate prescribing of antipsychotics for dementia, focusing on three areas: initiation, review and legality. Our proposal has been approved by the national dementia group and is now being aligned with the aforementioned new polypharmacy guidance.
Moreover, as I set out at stage 2, I believe that the Mental Health (Care and Treatment) (Scotland) Act 2003 already provides strong safeguards. That includes requiring medical practitioners to have regard both to the principles set out in section 1 of the act, including those relating to patient participation and minimum restriction, and to any advance statement that a patient makes. Richard Simpson himself said that he has no reason to doubt that professionals are working to those standards.
In relation to medication-specific safeguards, the commission must be informed in writing after use of emergency detention certificates, and there is a requirement for second-opinion medication consent for those on long-term orders.
However, I understand the strongly held concerns that have been raised by some individuals and organisations on the issue and I believe that it would be appropriate for it to be covered in the review that I have said we will undertake on the inclusion of learning disability and autism under the 2003 act.
I do not, however, believe that it would be appropriate to pre-empt the outcome of that review by taking such a regulation-making power now, given that it would require Scottish ministers to make regulations prescribing matters that have yet to be reviewed. Amendment 24 says that regulations must be made, but it would not be appropriate or sensible to do so before we know the outcome of the review.
I am also concerned by the definition of “psychotropic substances”. The reference to the convention on psychotropic substances will capture the substances that are listed in the schedules at the point in time when the provision is commenced, but it does not reflect any subsequent changes to those schedules. The effect would be that newly regulated substances could not be captured by the safeguards in the regulations, while substances that were no longer listed would continue to be captured.
On the basis of those significant problems with amendment 24, and given the work that is, or will be, under way, I ask Dr Simpson not to press the amendment; should he choose to press it, I strongly urge members to vote against it.
It is certainly true that amendment 109 was a much more specific amendment: it required action, and detailed that action. That is, I think, what Adam Ingram—the member who moved that amendment—felt was appropriate, and I supported him on that.
However, following discussion with the minister, which was a welcome opportunity to review the issue, it was decided that we should not pursue that approach but instead give the minister, as a back-up for the excellent work that he is already doing, power to bring in regulations at a point when he felt that that was necessary.
This Government has a history of not bringing forward regulations when it has not felt that they were necessary. For example, we are still waiting for regulations on the responsibility levy in the Alcohol etc (Scotland) Act 2010. The Government does not have to bring in the regulations; it can bring them in if it feels that that is appropriate.
Given that such regulations would apply very specifically to the rights of individuals, does the member accept that if we put on the face of the bill a regulation-making power that we do not use, we could be leaving ourselves open to legal challenge?
Exactly. That is correct—that is absolutely correct. However, what concerns me is that we have debated the issue for more than 14 years: Mary Scanlon and others raised it in the first session of Parliament, and it continues to be a concern.
Indeed, in the acute hospitals, the situation is getting worse. There are more cases now of people being given psychoactive drugs inappropriately by doctors who are not psychiatrically experienced. That is an abuse of those medicines, and the Government should take the power now, and should commence the provision only when it is needed. My amendment will give the Government the power to bring forward regulations when it believes that to be necessary, which I hope will be before legal action is taken against the Government—I would regret that.
I press amendment 24.
The result of the division is: For 48, Against 63, Abstentions 0.
Amendment 24 disagreed to.
Section 3—Emergency detention in hospital
Group 2 is on safeguarding of patient’s interests. Amendment 2, in the name of the minister, is grouped with amendments 12, 14, 15, 17, 18, 21, 34 and 37. I ask the minister to speak to and to move amendment 2, and to speak to all the amendments in the group. I also ask members in the chamber to be quiet while the minister does so.
The Government amendments in group 2 will provide further protection for patients who do not have a named person. Amendment 2 complements amendments that were agreed at stage 2 that will allow certain listed persons to act where a patient does not have capacity and does not have a named person. It will ensure that, if a patient is detained in hospital on a 72-hour emergency detention certificate, any guardian or welfare attorney who is known to the hospital managers will be informed quickly.
Amendments 14, 15, 17 and 18 are minor amendments that will ensure consistency in the ability of guardians and welfare attorneys to obtain notification of actions and decisions under the act, where there is no named person. In particular, they will ensure that the relevant guardian or welfare attorney can be notified about a determination that will extend a compulsion order, or about the revocation of a certificate that suspends detention for patients on certain orders.
Amendment 12 is a technical drafting amendment to the definition of “named person” in the 2003 act. It is a consequence of changes to remove default named person provisions from that act, as set out in section 18 of the bill, and it will ensure that the definition reflects the new position that a person may not have a named person. Amendment 21 is a minor technical amendment that will remove a superfluous word—“and”—from section 47(2) of the 2003 act, and is a consequence of amendments that were agreed at stage 2 on preventing conflicts of interest at medical examinations.
I thank Nanette Milne for lodging amendment 34, which I am happy to support. I also thank Voices of Experience for highlighting at our meeting last month the consequences of that lack of a right to appeal. As I noted at stage 2, I agreed with Dr Milne’s policy on the matter, and I intended to ensure that the appeal right was covered by revised cross-border transfer regulations. I agree, however, that it is useful to include that measure in primary legislation and to put it beyond doubt that named persons should have the right to appeal a cross-border transfer to the tribunal. I am pleased that the amendment reflects section 20A of the bill and will ensure that the regulations provide a right of appeal where the patient does not have a named person. I therefore encourage members to support amendment 34.
I also thank Nanette Milne for lodging amendment 37 and for taking time to discuss it with me after stage 2. The amendments that I have lodged will ensure that patients who do not have the capacity to lodge an appeal will not be disadvantaged when appealing a tribunal decision. Currently, the named person and guardian or welfare attorney can make such an appeal, but once the bill is enacted that option will also be available to a carer or nearest relative, if there is no named person. If the curator is concerned about the tribunal’s decision, they will be able to advise the named person, or others, of their concerns.
I carefully considered whether there was any reason not to extend the right of appeal to the curator. Given the number of parties that can lodge an appeal, my concern is that such a measure would be needed only where there was a disagreement between the curator and those who have a right of appeal. It is not hard to envisage a scenario in which a family member or carer and the curator disagree about whether it is in the best interests of a patient to appeal. The curator could make a valid case for appeal, but other parties might feel that that would be disruptive for the patient, or otherwise not in their interests. Currently, the decision to lodge an appeal rests with the named person or the other listed persons, such as the guardian or carer, and I am not fully convinced that we should change that balance to enable the curator to lodge an appeal against their wishes. For that reason, I ask Nanette Milne not to press amendment 37.
I move amendment 2.
Amendment 34 relates to decisions on cross-border transfers of patients under detention in Scotland. At present, the 2003 act requires regulations to provide for a patient to appeal against such a decision, and the amendment would extend that right in statute to a patient’s named person. Where a patient does not have a named person, the amendment would allow an appeal to be made by the person’s guardian, welfare attorney, primary carer or nearest relative. As there is currently no highly secure provision for women and young people in Scotland, transfers of this nature are a common feature of our compulsory-care landscape. It is in keeping with the spirit of the bill that powers to appeal in such cases rest not only with the patient, but with other persons who may act on their behalf.
Amendment 2 will provide additional notice provisions for a detained person, and will add guardians and welfare attorneys to the list of those who are to be notified when a person is subject to emergency detention. Amendments 14, 15, 17 and 18 relate to cases in which a patient has no named person, and amendments 12 and 21 are minor technical amendments.
Amendment 37 would create a right of appeal for curators ad litem to the sheriff principal and the Court of Session regarding particular decisions of the tribunal, as set out in section 320 of the 2003 act. Currently, patients with capacity can instruct a solicitor to appeal on their behalf in those circumstances, but a patient who lacks capacity, and consequently has a curator appointed, cannot. That gap in provision could give rise to concerns under the European convention on human rights and the UN Convention on the Rights of Persons with Disabilities. When the measure was proposed at stage 2, on the suggestion of the Law Society of Scotland, the minister agreed to consider its merits. He has since expressed the view that the gap that was identified by the Law Society has been addressed through section 20A of the bill, which ensures that where there is no named person, the carer or nearest relative can appeal.
The minister has also questioned whether, in situations in which there is a disagreement between the curator and the named person or others who have the right of appeal, the curator should have the ability to overrule the named person or others and to appeal. On that point, the Law Society does not share his view that section 20A would address its concerns.
Within the tribunal system, the curator ad litem is the only person whose sole function is to act purely in the interests of the patient. Although there are many named persons, carers and relatives who absolutely have the patient’s best interests in mind, unfortunately there are also occasions on which their position will be at odds with the patient’s interests.
There are also occasions on which, as well as having no named person, the patient will have no carer or relative to appeal a tribunal decision that is not in his or her best interests. The Law Society is therefore of the view that the right of appeal could be useful in instances both where there is a named person and where there is not, which is why section 20A does not adequately fill the gap.
In response to the minister’s concern about giving the curator the power effectively to overrule the named person or other relevant party, the Law Society stresses, first of all, that that power would not be exercised lightly or, in practice, regularly. It would be exercised only in situations in which either there was no one else to appeal on the patient’s behalf, or the curator believed that the right was or was not being exercised in the patient’s best interests, which is—as I have stressed—the curator’s sole motivation.
Amendment 37 would give the right of appeal to curators ad litem not only when no one else can appeal but in all cases. Section 28 of the bill means that not only will the patient, named person, guardian or welfare attorney be able to lodge an appeal but, where there is no named person, the carer or nearest relative will also be able to do so. The Government believes that that does not leave a gap for vulnerable patients. My main concern here is that, currently, the curator can recommend to the named person or others who have a right of appeal that they should lodge an appeal. However, the named person or others with the right of appeal may not think that that is in the patient’s best interests—for example, because they are concerned that it could be disruptive to the patient. The ultimate decision to appeal would therefore lie with the named person, guardian, welfare attorney, carer or nearest relative.
The Law Society has suggested that the named person may not act in the best interests of the patient. However, it may also be the case that both parties have a different view of what the best interests of the patient are. The current balance lies with the named person and the others whom I have listed, as they have the ultimate decision. I am not convinced that we should change that to allow the curator to overrule the named person, guardian and so on. That would be quite a substantial change to current practice, which is why I do not support amendment 37.
Amendment 2 agreed to.
Section 9—Maximum suspension of particular measures
The bill will make changes to the provisions in relation to suspension of detention to provide a more effective system for calculating the maximum allowable period in any 12-month period, following recommendations in the McManus report. That maximum will now be 200 days. The bill clearly sets out how periods of suspension should be counted towards that total. That will address the confusion under the current legislation when totting up individual periods of suspension of detention.
We had also introduced provisions that were derived from McManus recommendations that would allow that total to be extended by 100 days with the agreement of the Mental Health Tribunal for Scotland. Although concerns were raised about that approach, we wanted to provide some flexibility in the very small number of cases, as identified by the report, in which variation to a community-based order might not yet be appropriate. [Interruption.]
I appreciate that, Presiding Officer.
In relation to the provision that we set out at stage 2, I wanted to introduce the provision only if we could get it exactly right, with a solution that would be effective and workable in practice, but that has proved not to be possible. The Mental Welfare Commission and others did not feel that the additional days were needed in any case, and there was no clear and simple way to achieve our aim of flexibility.
I have reflected further on the concerns that stakeholders raised and on the important points that Richard Simpson raised at stage 2, for which I express my thanks. I propose that the provisions related to increasing the total by a further 100 days be removed—that will be achieved by amendments 3, 5, 7, 9 and 10. Amendments 4 and 8 will ensure that the maximum total of 200 days is in any 12-month period, and will do so in a way that relates appropriately to how section 8 of the bill expresses a period of suspension of detention. Amendments 13 and 16 will make changes to section 20A of the bill as a consequence of the other amendments. Amendment 6 will ensure clarity in relation to counting the total allowed period of 90 days for suspending measures other than detention.
Throughout the bill’s progress I have tried to ensure that service users’ rights and interests are protected and that the system is made more effective for them. I believe that the amendments will help to achieve that in relation to suspension of detention.
I move amendment 3.
Amendment 3 agreed to.
Amendments 4 to 10 moved—[Jamie Hepburn]—and agreed to.
Section 11—Orders relating to non-state hospitals
Amendment 25 is a technical amendment to extend the regulation-making power to all units or qualifying hospitals other than the state hospital. Amendment 26 would require a review of all security before further regulations are made. I moved an extensive amendment at stage 2 seeking to recognise that levels of security in mental health units, apart from provision in the state hospital, were no longer at discrete levels but almost on a continuum.
As it stands, the bill and the accompanying regulations—very helpfully provided by the Government at an early stage—refer only to the three units previously designated as medium secure, which are at Stobhill hospital in Glasgow, the Orchard clinic at the Royal Edinburgh hospital and the Murray royal hospital. However, the amendment now to be enacted is in my view only a partial response to the Supreme Court judgment that found that the Scottish Government had failed to make regulations to allow patients in secure hospitals other than the state hospital to appeal if they consider that they are being held in conditions of excessive security. However, it must be noted that the appellant in that case had been in a low-security unit at Leverndale hospital for a decade.
Amendment 26, which would require a review to be introduced, is supported by the Scottish Association for Mental Health, the Scottish Human Rights Commission, the Law Society of Scotland, the Equality and Human Rights Commission, the Scottish Independent Advocacy Alliance, the centre for mental health and incapacity law, and Inclusion Scotland. I believe that the time has come for patients to have the right to appeal against any level of security, without the detention order being rescinded. However, the purpose of amendments 25 and 26 is to recognise that that will not be straightforward. Rather than seek to introduce a global measure immediately, amendment 26 seeks a review of all levels of security before regulations are introduced covering all levels of security. [Interruption.]
However, to make sure that we are not taken back to court because of a failure to introduce regulations, I have included a time limit provision in amendment 26 to ensure that a review is followed up.
I realise that the Mental Welfare Commission has slight doubts about the narrow nature of amendment 26 and feels that we will need to look at not simply the estates and their levels of security but the overall situation. Of course, that would be possible without further regulation, but I believe that there should be a review of what is now a continuum.
I move amendment 25.
The amendments in the group relate to appeals against being detained in conditions of excessive security in hospitals other than the state hospital. The Government’s stated policy intention has been set out in draft regulations and, as Richard Simpson alluded to, the draft timetable for the introduction of the right of appeal outwith the state hospital was provided to the Health and Sport Committee on 24 April. That demonstrates our commitment to bringing regulations into force as soon as possible after royal assent.
Amendments 11 and 23 introduce a new provision that will allow the regulation-making powers that are introduced by section 11 to be exercised in advance of the legislation being fully commenced, and ensure that the provision will come into force on the day after the bill receives royal assent. That will ensure that, as soon as possible after the bill is passed, ministers can make the regulations that are necessary for the excessive security appeal system to become operational.
That will fulfil the intention at the time of the passage of the 2003 act to enable patients who are in the state hospital and those in medium-secure units to seek a move to a lower level of security. That was the Millan recommendation. We do not seek to extend the scheme that was provided for in 2003 to persons or purposes that it was never intended to cover. However, Dr Simpson’s amendment 25 seeks to do just that by defining “qualifying hospital” as a hospital that is not a state hospital. It would give a right of appeal to all patients. However, as Dr Simpson said at stage 2, mental health professionals are not yet ready for an appeal right for patients in low-secure units. We are clear that an extension of the right of appeal to all such patients would require to be supported by a more fundamental reworking of the provisions of the 2003 act, which amendment 25 does not propose. Therefore, with respect, I am unable to support the amendment.
Dr Simpson’s amendment 26 takes a different approach. It would require the Mental Welfare Commission to carry out a review to establish the levels of security to which patients who are detained in hospital are subject. However, broadly speaking, levels of security are high, medium and low and it is already clear when patients are in high security, in the state hospital, or in the medium-secure units of the Orchard clinic in Edinburgh, Rowanbank clinic in Glasgow or the medium-secure service at Rohallion clinic in Perth. Therefore, it is clear when a patient is detained in low-secure conditions. It is not clear what the proposed review by the commission in the terms that are proposed could achieve.
Dr Simpson is correct that the legal appeal was taken forward by a patient in the low-secure estate, but that is incidental. The Supreme Court’s ruling did not relate to that; in fact, the judgment was only on the basis that regulations had not been made. The court did not express a view on who the right of appeal should extend to. It is important to place that on the record.
Amendment 26 would also require ministers to make regulations within a set period of time to implement any recommendations that the commission makes about regulations under new section 271A(1)(a) in the 2003 act. If ministers did not do so, they would be required to report to the commission on why they had not. We understand that the intention behind the amendment is to allow a right of appeal beyond medium secure to be introduced within a maximum of four years, if that was recommended by the commission. However, we have been clear that, if there was a wish to change the nature of the appeal so that it could sensibly be extended to all patients, that would have to be supported by a more fundamental reworking of the scheme in the 2003 act, which amendment 26 does not provide.
Patients who are in low security are subject to detention in conditions of lesser security than patients in the state hospital and those in medium security. They are more likely to be treated in hospitals that are closer to their communities and they have gradually increasing periods of time outwith the hospital ward, with up to 200 days’ suspension of detention in any 12 months, as they progress to overnight passes and finally discharge. There are no indications that being in a low-secure unit poses a barrier to rehabilitation and release into the community.
Other applications may be made under the 2003 act that would allow such patients to seek to vary or revoke their detention orders. An appeal by patients in low security is likely to be an appeal against detention and there is already a mechanism for contesting compulsory treatment.
For all those reasons, I am unable to support amendment 26.
At the end of the consideration of the Mental Health (Care and Treatment) (Scotland) Bill in 2003, the current Cabinet Secretary for Health, Wellbeing and Sport, who was leading for the Scottish National Party on health at the time, said:
“For me, the most satisfying aspect of the bill is that it enshrines in statute the right to appeal against excessive security.”—[Official Report, 20 March 2003; c 16807.]
That gives us some context and an idea of the importance of the aspect of the bill that we are discussing.
Mary Scanlon also made her mark in those debates, because it was her amendment that ensured that regulations should be made by May 2006. As a result, because my Government and the current Government did not make such regulations, there was one of those rare occasions on which the matter ended up in the Supreme Court. That is why we have the minister’s amendment 11, which contains an unusual power to allow regulations to be made before the act comes into force. That is because there is a requirement from the Supreme Court that regulations be made.
The minister says that it is irrelevant that the person who took the case to the Supreme Court was in low security, but the fact is that his appeal would not have been valid at all if the 2003 act had specifically said that it is only about those in medium security. That was never in the original act.
Richard Simpson’s amendment 26 is very modest. He is not demanding that we should decide that people in low security should have the right of appeal; he is merely saying that the Mental Welfare Commission for Scotland should do a review of levels of security that can inform regulations at a future date.
The minister talks so much about the intentions of the 2003 act, but the reality is that what drove the change then was the principle of
“the least restrictive manner and environment compatible with the delivery of safe and effective care”.
That was a fundamental principle of the Mental Health (Care and Treatment) Scotland Act 2003, and it applies as much to somebody in low security as it does to somebody in medium security. There is no reference to medium security in the 2003 provisions. The provisions looked to the future because everyone said then, of course, that the estate had to be developed, so we had different levels of security. The provision talked about a
“qualifying patient in the qualifying hospital”.
I note that, when the Mental Welfare Commission had a major event to consult on that, the conclusion was that qualifying hospitals should include low-secure units. As Richard Simpson said, that is the view of SAMH, the Scottish Human Rights Commission, the Law Society of Scotland, the Equality and Human Rights Commission and the Scottish Independent Advocacy Alliance—I could go on.
Amendment 26 is very modest. We are not insisting that low-security patients are given that right; we are saying that there should an amendment that investigates the issue to make that a possibility in the regulations that will come in due course.
I have a general concern that, for the past 12 years, both Governments have dragged their feet on the issue and a concern that, even in respect of the Government’s plans for medium-secure units, proposed section 271A(3)(b) of the 2003 act talks about
“further requirements for the test to be met” over and above the excessive level of security, but that has passed by without an amendment.
We have an opportunity to broaden out the right of appeal in accordance with the fundamental Millan principle of
“the least restrictive manner and environment compatible with the delivery of safe and effective care”.
My final word to the minister is that he should be inspired by what the cabinet secretary said about that provision in 2003.
Malcolm Chisholm mentioned a rare occasion. It is indeed a rare occasion when a Conservative MSP gets unanimous support across the Parliament for an amendment. That was in 2003. Uniquely, the amendment ended up in the Supreme Court.
I want to reiterate the point that Malcolm Chisholm made, as it should not be lost. The 2003 act was based on the 10 Millan principles, the eighth of which is the least restrictive alternative principle. It says:
“Service users should be provided with any necessary care, treatment and support in the least invasive manner and in the least restrictive manner”.
That was the principle on which the 2003 act was based. All of us understood that.
In 2003, I spoke to the amendment and used the case of the state hospital at Carstairs, because there were 29 blocked beds at that time. There were no medium-secure units to move people on to. I gave that as an example of excessive security. Shona Robison, Nicola Sturgeon and many other members were members of the Health and Community Care Committee at that time. The understanding was that there could be excessive security in Carstairs or in the local psychiatric hospital. It was excessive security whether it was in Carstairs, a medium-secure unit, a low-secure unit or a psychiatric hospital. That is because the basic Millan least restrictive alternative principle applied.
I am very much in favour of what has been said by Richard Simpson and Malcolm Chisholm, both of whom were on the Health and Community Care Committee at that time, and Richard Simpson’s amendment 26, which we should all support. If we take one thing from the 2003 act and the many emails and issues that have been raised in the cross-party group on mental health and in the past 12 years, it should be that one fundamental principle that we unanimously agreed on, based on the Millan principles in 2003. We should all support Richard Simpson.
I have tried not to be overly prescriptive. I will look at two parts of amendment 26. Although it would require the Scottish ministers to make regulations within a year of receiving the report from the Mental Welfare Commission, there is an escape clause. If ministers did not plan to make such regulations, they could publish a response to the report setting out their reasons. It is an incredibly modest approach to something that is supported by nine organisations—I forgot to include the Royal College of Psychiatrists, which also supports the Mental Welfare Commission’s position.
We should really undertake to do this now. Not to do it is frankly an affront to those organisations and does not support the eighth Millan principle. I will be appalled if the Government uses its majority on this occasion to vote down my very modest amendment. I press amendment 25.
The result of the division is: For 52, Against 61, Abstentions 0.
Amendment 25 disagreed to.
After section 11
After section 11A
The question is, that amendment 26 be agreed to. Are we agreed?
There will be a division.
At stage 2, I moved amendment 88, which attempted to ensure that the wishes that patients with full capacity express in advance statements are respected. Although I hope that the minister will support Jackie Baillie’s amendment 1, which is in group 8, amendment 27 makes another attempt to ensure that when the patient makes it absolutely clear that they do not wish to receive treatment in any circumstances whatsoever, the right to refuse treatment is respected. When patients are physically ill—even if they are going to die—they are entitled to refuse treatment, if they have full capacity. I propose that the minister should be able to determine in regulations exactly the circumstances in which the right should be fully respected.
I appreciate that, under the Mental Health (Care and Treatment) (Scotland) Act 2003, there is a requirement and indeed an obligation on the responsible medical officer and the tribunal to make clear why and in what circumstances they have chosen to overrule the patient’s advance statement. However, there are limited circumstances in which the patient has an absolute rather than a partial right. Those circumstances should be defined. For example, if the patient chooses that in no circumstances should they be treated with electroconvulsive therapy or with a specific psychotropic or psychoactive substance, and provided that that was determined only when they had full capacity and was written in an advance statement that was witnessed by someone such as their general practitioner or a psychiatrist in whom they had confidence, that choice should not be overridden.
When a physical illness exists that might be fatal, a patient with capacity is fully entitled to refuse treatment. However, the view of a patient with a mental illness who has previously stated in writing in a witnessed statement that they wish to refuse treatment can be overridden. That is yet another gap in the parity of esteem between patients with mental health issues and patients with physical issues.
Regulations are needed to ensure that, for example, when a named person or anyone such as a next of kin is conscious that the patient, notwithstanding their advance statement, has changed their mind but has not withdrawn the statement, it can still be overridden.
I look forward to the minister speaking on amendments 19 and 20. I very much welcome amendment 28, in the name of Bob Doris, as it is clear that that will move us towards achieving what we all want—greater awareness and, I hope, more use of advance statements.
I move amendment 27.
I recognise that amendment 28 cannot be the sum total of what we do to promote advance statements, but it is an important step. I will ask the working group that is to update the code of practice to include guidance in the code that sets out best practice for how health boards could work with local authorities and other organisations in their areas to produce and promote information about the support that is available to anyone in their areas to make advance statements. That goes beyond the support that is directly available from the health board and I hope that it will be of further assistance.
I urge members to support Mr Doris’s amendment, which I have not quite bottomed out yet. Importantly, it will allow the Mental Welfare Commission to find out what support is being offered, which will help with the work that it is undertaking to promote the greater use of advance statements. That will help to address the concern that Malcolm Chisholm expressed.
The purpose of amendments 19 and 20, in my name, is simply to tidy the provisions that were amended at stage 2 on registering advance statements. They make minor technical changes that have no policy effect.
At stage 1, several witnesses highlighted the fact that the use of advance statements is rare. That is worrying because we all—or at least, I am sure, most of us—want our future treatment and care to be informed, or directed, by our wishes, if it is appropriate and possible to respect those wishes even after we are no longer in a position to express them. That is the drive behind the validity of advance statements, which we have to promote.
At stage 2, I proposed a detailed amendment to place duties on health boards regularly to publish and promote information on advance statements, but I could not persuade the Scottish Government at that point. It believed that the amendment was overly prescriptive and that it would not drive the change that was required. However, I promised to go away and work on the matter further, which I have done by lodging a stage 3 amendment.
Amendment 28 would insert new provisions in section 21 of the bill, which relates to advance statements. It would insert a new section 276D in the 2003 act to impose duties on health boards to publicise support for making advance statements, but not in an overly prescriptive way. The amendment would require health boards to publicise the support that they offer for persons to make or withdraw advance statements, as well as any support that they offer for persons who wish to provide them with a copy of a statement, in accordance with proposed new section 276D(1).
Crucially, the amendment would also require health boards to provide the Mental Welfare Commission with information about what they do to comply with subsection (1) when the commission requests that they do so. The commission has a crucial role in garnering that information and driving change, which is why I have placed amendment 28 before the Parliament.
On amendment 27, I have concerns about the absolutely binding nature of advance statements. I said that the use of advance statements is rare. We have to allow for them to be revised and amended because, while people still have capacity, their will and decisions can change over time and we have no idea how attentive authorities are to having existing advance statements regularly revised and updated.
Because of those concerns, I cannot support amendment 27. I would appreciate the Parliament’s support for amendment 28.
Amendments 19, 20 and 28 are welcome.
The minister said that I have not defined the circumstances that would apply to the absolute right in an advance statement. That was completely deliberate and was done with the intention of allowing the minister to define those circumstances after consulting those who feel that their wishes have previously been flouted by the tribunal. That is a rare occurrence but, nevertheless, I believe that the time has come for patients to be given the right to refuse treatment if they choose to do so.
Bob Doris talked about the fact that people’s wishes might change over time. Of course, they have the right to withdraw a statement, which is entirely appropriate. However, even if they did not do so, it would be perfectly possible to say in regulations that, if they indicated to their GP, psychiatrist, named person or next of kin that their advance statement should no longer apply, that could be the case. Carefully drawn regulations would have get-out clauses.
Not to allow people who have full capacity to have an absolute right, if they define clearly their wishes about specific treatments—this is not about treatment in general—is an infringement of individuals’ human rights, and the Parliament might well be challenged on that. My amendment would give the minister the power to make regulations if he wished to do so.
The result of the division is: For 52, Against 59, Abstentions 0.
Amendment 27 disagreed to.
Section 21—Advance statements to be registered
Amendments 19 and 20 moved—[Jamie Hepburn]—and agreed to.
Amendment 28 moved—[Bob Doris]—and agreed to.
After section 21
Richard Simpson lodged a number of amendments at stage 2 relating to advocacy services. Following stage 2, I had some useful meetings with Richard Simpson and I thank him again for his work on these issues.
Amendment 29 relates to monitoring of advocacy provision. I committed to working with Dr Simpson on this issue at stage 3. Although Dr Simpson lodged an amendment at stage 3 on this issue, he has withdrawn it and I hope that he can support amendment 29.
Amendment 29 varies from the amendment that Dr Simpson lodged at stage 2 in the following ways. It adds the State Hospitals Board for Scotland to the list of bodies that must report to the Mental Welfare Commission on the exercise of their functions under the act. It removes the provision that set out the requirement on the commission to monitor the provision of services and report to the Scottish ministers.
The Mental Health (Care and Treatment) (Scotland) Act 2003 contains a general duty on the Mental Welfare Commission to monitor and report on the act’s operation, and I do not believe that it is necessary to add a specific provision in that regard. The act allows the Mental Welfare Commission to seek information from local authorities, health boards and the state hospital at times decided by the commission, covering a period of operation of two years or more. I accept that people’s experience of accessing advocacy does not always meet their expectations, and it is important that we understand that and ensure that people are able to access services and their rights. I believe that amendment 29 will help to achieve that aim.
Other amendments that Richard Simpson lodged at stage 2 would have made provision for rights for advocates that would have gone well beyond the role that they have under the 2003 act of assisting patients in accessing their rights. The amendments would have fundamentally changed the nature of that role by giving advocates rights that they could exercise independently of the patient in order to make representations, access information and lead and produce evidence at the tribunal.
On that basis, I resisted those amendments at that time and, although amendments 30 and 31 simply allow for regulations to be made to set out the circumstances in which advocates must be informed or be allowed to make representations, I remain of the view that the role of advocates should not be extended in that way either through primary legislation or in regulations. As I have pointed out in the debates on other groups of amendments, the general position is that I cannot support the Government taking regulation-making powers when we cannot envisage the circumstances in which we would seek as a matter of policy to exercise them. On that basis, I do not support amendments 30 and 31.
I noted at stage 2 that the amendments might have been developed, at least in part, to fill a gap created by removing the default position of having a named person in cases where a person has not appointed a named person and where the person is not able to act on their own behalf. A Government amendment that was passed at stage 2 addressed that situation by setting out a limited list of people who could act in limited circumstances on behalf of a patient without a named person and unable to act on their own behalf. Indeed, some of that was covered in an earlier debate. I therefore ask Richard Simpson not to press his amendments and, should he do so, ask members not to support them.
I move amendment 29.
I thank the minister for meeting me on this issue and for lodging amendment 29, which I think is a welcome move and with which I fully concur. In research carried out in May 2015, the Scottish Independent Advocacy Alliance showed that only six of the 14 geographical national health service boards have current strategic advocacy plans; given that a significant proportion of those plans will be expiring soon and that only one board has said that it will be updating its plan, allowing the Mental Welfare Commission to take a much more stringent approach to this matter is a very welcome move.
The reason for lodging amendments 30 and 31, which are designed to strengthen advocacy services further, is that up to the point at which the named person default system was withdrawn and it became apparent that a person could end up without a named person or indeed any other person to act in their interest, the role of the advocate was, as the minister has said, quite circumscribed. At that time, that was entirely appropriate. However, under the new circumstances brought about by the Government amendments to the 2003 act as set out in the bill, the advocates should, as amendment 30 sets out, at least be notified by the tribunal. Reference has been made to others who would be notified in these circumstances, but my point is that, if those others do not exist, the advocate should surely be notified. Amendment 30 does not extend advocates’ powers but simply ensures that they are notified of certain things when no one else is around to be notified.
I accept that amendment 31 is a little more contentious in that it extends the role of the advocate—but only when there is no one else around to make applications or representations on behalf of the patient who, on the presumption that they have reduced capacity or seriously impaired decision-making ability, might not be able to make those representations or applications themselves. Moreover, in such circumstances, no one might be available except for the responsible medical officer, but the patient might not agree with that person making notifications or representations on their behalf. As a result, someone else should be in a position to do that, but I accept that amendment 31 might be a step too far. That said, I will be pressing amendment 30.
This is an important part of the bill, and I very much welcome amendment 29. The lack of any provisions on advocacy in the bill as introduced was a notable omission. In fact, advocacy was one of the main issues that the Equal Opportunities Committee dealt with when it did some work on the McManus review in 2010.
As we know, the 2003 act states:
“Every person with a mental disorder shall have a right of access to independent advocacy”.
In practice, however, advocacy has often been targeted at people who are subject to compulsory proceedings. As Richard Simpson said, the recent review highlighted problems with advocacy in a large number of boards, and I welcome the fact that boards and local authorities will be accountable to the Mental Welfare Commission and that there will be more scrutiny of strategic advocacy plans. I think that all members in the chamber will be pleased about that.
Richard Simpson’s amendments 30 and 31 are interesting. I always follow the advice of the Scottish Independent Advocacy Alliance, which accepts amendment 30 with the qualification that the code of practice has to provide more detail on ensuring that advocates do not have access to information that they do not have the person’s permission to see. Presumably, as amendment 30 provides for regulations, that point could be covered by them, so I am glad that Richard Simpson will move the amendment.
I am not sure whether Richard Simpson will move amendment 31, so I am not sure that I should say what I am going to say. There is an interesting dimension to amendment 31. Although Jamie Hepburn said that the current bill goes beyond the 2003 act, the bill that became that act originally contained a section 182(4)(b) that stated that those so affected by their mental disorder that they could not express an opinion should have an advocate. The Health and Community Care Committee objected to that provision, presumably for reasons similar to those that Jamie Hepburn has outlined today.
I could go either way on amendment 31—I will see what Richard Simpson advises.
I want to focus on the protections for patients without capacity that are now in the bill. At stage 2, I lodged amendments to remove the default named person provision from the 2003 act—a move that was widely supported—and to introduce protections for patients without capacity. Those amendments included the provision that, where there is no named person, the guardian, welfare attorney, carer or nearest relative could initiate an application or appeal to the tribunal.
Under the existing provisions in the 2003 act, a curator ad litem could be appointed to protect the patient’s legal interests where the patient does not have the capacity to instruct legal representation. The 2003 act and the bill therefore already provide strong protections for patients without capacity.
I turn to the issue of changing the role of the advocate. An independent advocate helps the patient to understand their rights and communicate their wishes and views. The advocate does not act independently of the patient, and I believe that Dr Simpson’s amendments—amendment 31 in particular—seek to give advocates such an independent role. I am not clear that that is desirable, particularly in relation to appeals, and I am not convinced that such a move has been widely consulted on. It was interesting that Malcolm Chisholm made the point that there was a provision in the 2003 bill as introduced that was later removed. I think that it was removed for good reasons that still stand today.
With regard to notifications, there are already certain circumstances in which the code of practice sets out when it would be best practice to involve the advocate—for example, before a hospital transfer. I believe that the working group should consider further best practice in that respect, and I hope that that will take care of some of the concerns raised in amendment 30, which I still oppose.
Amendment 29 agreed to.
Amendment 30 moved—[Dr Richard Simpson].
The result of the division is: For 52, Against 60, Abstentions 0.
Amendment 30 disagreed to.
Amendment 31 not moved.
Section 22A—Conflicts of interest to be avoided
Amendment 21 moved—[Jamie Hepburn]—and agreed to.
After section 23
Amendment 33 seeks to provide the Scottish ministers with the flexibility to permit, by regulations, professionals who are not approved medical practitioners to perform the statutory functions of responsible medical officers under the 2003 act. It follows an appeal by the British Psychological Society for us to allow practitioner psychologists who are involved in compulsory care to perform additional statutory duties.
Currently, both the AMP and the RMO roles are the exclusive preserve of the medical profession despite the primary treatments for many mental health problems being psychological, particularly in the case of patients with learning disabilities, autistic spectrum disorders, eating disorders or personality disorders. As the clinicians who are most responsible for and have the broadest understanding of the patient’s treatment in such cases, psychologists are best placed to be able to oversee their care in that way.
Under the Mental Health Act 2007, the equivalent positions of approved clinician and responsible clinician in England and Wales can be undertaken by psychologists. As a result, we have access to a wealth of guidance, training and learning to inform how the roles could function in Scotland, so we are by no means venturing into the unknown.
When the issue was raised at stage 2, the minister stated that further consultation would have to take place before additional powers of this nature were extended to psychologists. Amendment 33 addresses that concern by allowing any processes that the minister may need to satisfy himself of the viability of the change to take place. He can then decide whether to extend the categories of eligible RMOs without further primary legislation.
The amendment extends only to the RMO position in connection with treatment. It does not change eligibility for the AMP position, the holder of which is responsible for the initial process of assessment. It is worth noting that the process was subject to extensive scrutiny in the UK Parliament during the passage of the bill that became the 2007 act, which applied equivalent measures in England and Wales.
The statutory positions require a great deal of work from the psychiatric profession, with assessments, reports and appearances at hearings. In addition to providing for the most appropriate clinician to oversee the treatment of people who are receiving psychological treatments, the amendment provides additional professional capacity to support patients who are undergoing compulsory care.
I move amendment 33.
I support amendment 33. It is a modest proposal that uses the words “may by regulations”, so the minister and the Scottish Government can be assured that on this occasion there is no prospect of them ending in the Supreme Court. They may, if they wish, not introduce regulations.
I think that the amendment is a response to what the minister said at committee, which Nanette Milne alluded to, because he admitted that there was merit in considering the duties that a broader range of health professionals can undertake. The amendment seems to be the perfect way to progress the view that the minister expressed at that time. As Nanette Milne says, it applies only to the responsible medical officer, who deals not with the admissions process but with the supervision of compulsory treatment orders and advice to the Mental Health Tribunal.
I would not usually invoke English mental health legislation because, in general, the Scottish mental health legislation came before it and is better than it, but the fact is that there is a broader definition in England, with a responsible clinician and an approved clinician under the 2007 act, and there have been no problems with that. There has been post-legislative scrutiny of the legislation and no one has suggested any problems, which suggests that there is no fundamental reason why the definition should not be broadened. If we want to look to English practice, there is a body of relevant guidance, training and learning that could help us, and I do not think that we should rule that out just because it is from England.
There are other reasons for agreeing to the amendment, which Nanette Milne has suggested. One fairly practical reason that she has not mentioned is that we have a workforce supply issue with psychiatrists. Quite a lot of work is involved in the role of the RMO, and I would have thought that a lot of psychiatrists would welcome the amendment. I note that the briefing from the Royal College of Psychiatrists for today’s debate does not tell us to oppose the amendment.
However, as Nanette Milne said—I hope that the Royal College of Psychiatrists would agree—there are some conditions for which it is better that the decisions are made by psychologists. That may be the case for people with learning disabilities—we will hear more about them in a moment—and for those with autistic spectrum disorder, eating disorders, personality disorders and so on. We should remember that the primary treatments for mental health problems are sometimes psychological.
The amendment sets out a modest proposal that does not commit the minister to making a final decision today but provides a practical way of implementing the view that he himself expressed to the committee.
In his very full remarks, Malcolm Chisholm has said most of what I wanted to say. However, I add that the proposal fits with the 2020 vision of the Government. It is all about upskilling and allowing practitioners to participate more fully. The other day, I was told by a senior member of the Royal College of Psychiatrists that 42 per cent of the psychiatrists who are qualifying in the UK today by passing the foundation exams are emigrating. We are faced with a serious workforce problem in this and many other areas, and I suggest that the minister would want to take the power to make regulations upskilling psychologists so that he would not have to bring the matter back to the Parliament in seeking a further amendment to the legislation.
Psychologists play a key role, particularly in the care and treatment of persons with learning disabilities and autism spectrum disorder. I am therefore happy to commit to stating that the role played by psychologists is something that I would like to see covered in the review that I spoke about in the debate on amendment 24. I look forward to working with the British Psychological Society and other professional bodies as part of that work.
My concern with amendment 33 is that it would have the effect of extending the responsible medical officer role as a whole beyond approved medical practitioners. Nanette Milne stated that the provisions are limited and that the amendment would apply only in relation to the treatment, but that is not the case as the amendment is drafted—I am afraid that it may have been drafted more widely than was her intention. The duties of the responsible medical officer are wide ranging, beyond supervising treatment, and include assessing the need for, and authorising the detention of patients for, compulsory treatment of a mental disorder.
Mental health services are delivered by multidisciplinary teams, and it is important that the different members of those teams undertake roles that allow them to support patients most effectively. Although there is now an approved clinician role in England and Wales, which could, under the English and Welsh legislation, include a psychologist, a medical doctor is still required to assess the patient and agree their detention just as a responsible medical officer must under the Scottish 2003 act. As I have set out, the amendment would not allow the regulations to alter the specific duties of the responsible medical officer or make other adjustments such as to ensure that a doctor has assessed a patient and agreed their detention under the 2003 act.
It is not clear to me that that is what Nanette Milne wanted in lodging amendment 33 to extend the role of psychologists in the bill. I am not unsympathetic to the general principles behind the amendment, but it would only allow all duties or none to be extended, and it is for that reason that I urge members to vote against it. Nevertheless, I emphasise the Government’s commitment to give the matter serious attention going forward.
Malcolm Chisholm absolutely got it right: amendment 33 is a very modest amendment, which may lead to change in the future without the need for further primary legislation should ministers wish to expand the psychologist role as time moves on. I agree with both Malcolm Chisholm and Richard Simpson that we have a serious workforce issue, which the amendment could help to resolve in the future. I intend to press it.
I thank Jackie Baillie for her amendment and for her remarks. I looked at the stage 2 discussions, and I noted that the minister gave a commitment at that stage that a review would be undertaken. I am interested to hear from the minister about what progress there has been in relation to that.
I do not disagree with much of what Jackie Baillie has said. Indeed, in the meetings that I have had with organisations such as the National Autistic Society Scotland, there has been discussion about the views that are held regarding the inclusion of learning disability within the category of mental disorders. Jackie Baillie articulates the points on that very well. She also articulates that there are strongly held views on the other side of the equation in relation to retaining learning disability within that category.
My issue with the amendment as framed comes with subsection (5) of the proposed new section, which states that
“The Scottish Ministers must make provision by regulations”.
If we are going to have this review, have recommendations from the review and then enact the recommendations, I have a concern that provision by regulations does not perhaps allow for the fullest parliamentary scrutiny in terms of evidence taking and debate within Parliament, on something that Jackie Baillie has acknowledged has arguments on both sides and elements of contention.
The minister has given a commitment in relation to the review. Jackie Baillie has articulated the points well, but I think that making provision by regulations would not allow for the fullest debate on the matter to continue both during the review and afterwards.
I hope that Jackie Baillie will take my remarks in the spirit in which they are meant—they are not party political in any way and I agree with much of what she has said. I feel, however, that the way that the amendment is drafted does not give me comfort that we could ensure that the fullest debate was had in relation to the issue.
I support amendment 1, in the name of Jackie Baillie, which seeks to set clearer and more progressive definitions of who is to be considered as having mental health disabilities. Clearly in the 21st century we should be expected to have the expertise to distinguish different conditions through not just medical but legislative means. That is why the amendment is important: to delineate the more exact and specific medical conditions that constitute someone having a mental health disorder and better protect those who fall under that category—and those who do not.
I agree that the review must take place within the amendment’s three-year condition, or else we risk failing many people and bringing more burden on to the already stretched mental health services. Ministers must commit to review the term “mental disorder”, with professional and expert consultation, if they are serious about their mental health and human rights priorities.
I support Jackie Baillie’s amendment.
As I said at stage 2, the inclusion of learning disabilities and autism spectrum disorder in the mental health legislation was raised by a number of witnesses. As Mark McDonald said, there are contrasting views on the issue, but the weight of opinion is in favour of removing learning disability from the meaning of “mental disorder”, unless a mental illness accompanies the learning disability.
“We honestly believe that the time has come for a new piece of legislation that is just about people with learning disabilities. We think that it is only right and fair that learning disability is properly defined as an intellectual impairment rather than a mental disorder.”—[Official Report, Health and Sport Committee, 11 November 2014; c 39-40.]
Indeed, the faculty that covers this area is changing its name to include the term “intellectual disability”. Such conditions are disabilities, not mental illnesses. Although classifying them as mental disorders may have appeared to be appropriate in the past, I am not sure that it does now.
Amendment 1 does not seek to determine the outcome of a review; the important thing about it is that it says that there must be a review. The timescale of the review has been extended to three years, to allow for the bill to be implemented. The bill is fairly modest and it should not take that long to get it through.
Mark McDonald is wrong and is slightly misleading us. The amendment says that ministers must publish a report
“making a recommendation as to whether ‘learning disability’ should continue to be within the meaning of ‘mental disorder’”.
It does not presume to say what its recommendation should be. It allows for discussion and for the review to be set up.
I take Dr Simpson’s point. My point was about not what the review’s conclusions would be, but how the conclusions would be enacted. Enacting them via regulations as opposed to, for example, primary legislation would reduce the opportunity for parliamentary scrutiny and debate. That was the point that I was making in my comments on the amendment, which were not about presupposing the review’s conclusions.
I also support the amendment. I accept that the minister has committed to a review but, as Dr Simpson said, such a review was first proposed by the Millan committee as far back as 2001, and it was recommended again by McManus in 2009. I understand the frustration that it has not yet happened. Jackie Baillie’s suggestion of a three-year gap between now and the review being carried out is reasonable. I will not say any more, but I very much support the amendment.
I say to the minister that my intentions are always honourable.
We had the Millan committee in 2001; nothing happened. We had the McManus review in 2009, under this Government; nothing happened. I am not questioning the minister’s personal commitment to the issue, but to be frank—I say this to Mark McDonald, too—we have had commitments before. We have waited 14 years. Amendment 1 means that a review will happen and can never be put on the back burner.
Jamie Hepburn rose—
Just give me a second. I would also say to the minister that I anticipate that there would be significant debate and engagement around the review. He has promised that it would be an inclusive process, and I believe him.
If the minister has a problem with the suggestion of regulation, there are opportunities open to this Parliament. It can use a super-affirmative procedure, with additional time for consultation and scrutiny. Committees of this Parliament have challenged Government in the past.
Richard Simpson is absolutely right: this Scottish Government could introduce a bill that would amend the power in proposed new subsection (5). The Government could put it in primary legislation if it chose to do so. Please let us not dance on the head of a pin, because this is a reasonable and modest amendment. It reflects what the minister has previously said to me was his concern. I can see no sensible reason for not supporting it.
What I have heard around the chamber is agreement about the principle of what we are doing and the need for a review. I genuinely do not understand, therefore, why the minister will not have that review and put it in legislation. Amendment 1 recognises the complexity of the issue. It does not presuppose the outcome—it would not be appropriate to do so. People with learning disabilities have been more than patient. This Parliament and this Government should do the right thing and act now. I urge members to support amendment 1, which I will press.
Jamie Hepburn rose—
I was not clear that Ms Baillie was giving way to me, but would she recognise that we have in fact begun that process? We have done it because it is a serious intention.
Presiding Officer, it is usually for the member to accept an intervention, but I bow to your judgment.
People have started the process before. Minister after minister has said, “We will do this.” The minister, in reflecting one of his concerns to me, said there was not time for civil servants to do it now because they would need to get on with the enactment of the bill. That has not changed; therefore, while the minister may have started the process, it is the finish of that process that people care about.
As I said before, I intend to press amendment 1 because it is the right thing to do.
At stage 2, Adam Ingram moved amendment 109, which specified a significant amount of information that would be required to be collected, collated and analysed by the Mental Welfare Commission. The minister said in response that he felt that the requirements in the amendment were far too onerous. However, amendment 35 seeks simply to require the Scottish ministers to direct in regulation as they see fit, after consultation, the nature of the information that the Mental Welfare Commission should collect and collate, and the circumstances in which it should do so.
I accept that the issue has been partly covered by the principle of the very helpful amendment 29, which indicates that the minister is prepared to allow situations in which the Mental Welfare Commission can command information from health boards, the state hospital and local authorities. However, that is in relation only to advocacy services. There can be no doubt that the current system is dysfunctional and that effective collection and analysis of data on, for example, suicides, assaults, adverse incidents and the use of restraint within the mental health system are required.
The Scottish Information Commissioner has been critical of at least one health board’s recording of significant adverse events within the mental health system. What we propose in amendment 35 is a much broader approach, but it would allow the minister and his successors to determine how much information should be collected and collated, and how that should be done.
I move amendment 35.
It has been useful to hear why Richard Simpson lodged amendment 25. Members will know that in its briefing for stage 3, the Mental Welfare Commission set out the extensive range of information that it publishes and noted that it would be happy to consider any requests by ministers for it to produce more statistical information. I know that the commission is keen to do more to make the statistical information that it collects useful and that it is already in discussion with the Information Services Division, NHS National Services Scotland and others about that.
Notwithstanding that, I acknowledge that there is a desire for information to be requested of the commission through regulations that have been consulted on, rather than via ministerial direction. On that basis, I am happy to accept amendment 35. However, it is important that any subsequent regulations do not cause undue or disproportionate burdens or bureaucracy. I will work to ensure that that is not the case. As I said, however, I am happy to accept Richard Simpson’s amendment 35.
Amendment 35 agreed to.
Amendment 36 covers the question of deaths in detention and would require a review of the arrangements for investigating
“deaths in detention or otherwise in hospital for treatment for a mental disorder”.
The Justice Committee is currently considering the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Bill, but people who are detained under mental health legislation or who are voluntarily in hospital for treatment for mental disorders might not be covered by that bill. About half the deaths of patients who die while receiving treatment might be due to natural causes, so a blanket approach that insists on a fatal accident inquiry for every death would not be appropriate.
However, SAMH, along with the Scottish Human Rights Commission and the Mental Welfare Commission, is concerned that the current system might lead to some individuals falling through the gaps, so they are of the view that the arrangements for investigating the deaths of mental health patients need to be addressed.
Currently, the reports of the Mental Welfare Commission are mainly statistical; although they are interesting, that is not sufficient. In the most recent report, of 78 deaths there was no information for five. Once again, we are not getting from health boards the information that is absolutely necessary to understanding even the statistical progress on the issues. Of the deaths, 38 were deemed to be natural, but we have no idea whether they were premature. One of the big issues is that people with mental illness, particularly severe and enduring mental illness, die much younger. Therefore, it is important to understand their deaths, even if they are apparently from natural causes and a physical condition.
There is a need to ensure that, as happens with Healthcare Environment Inspectorate and Healthcare Improvement Scotland reports, there are transparent assurances that boards will in the future take such action as is required to improve prevention of suicide or of other deaths that may—I stress “may”—be preventable. Families want to know that any lessons that can be learned are learned. I do not believe that that happens at present. I hope that the minister will support amendment 36, as he did with amendment 35, which was very welcome.
I move amendment 36.
I thank Richard Simpson for his continuing work on the issue, and for the constructive meeting that we had following stage 2 to discuss it.
As I said at stage 2, I believe that improvements should be made to the way in which deaths in detention are reviewed, in order to ensure that the process is effective and timely, that it supports learning and that the reviews are of consistent quality. Members will be aware of the briefing from the Mental Welfare Commission on the issue. The commission noted that it agrees that the arrangements for investigating deaths need streamlining, so it set out a proposed approach, which includes notification of all deaths of patients who are subject to compulsion to the procurator fiscal and the Mental Welfare Commission; a review by the commission of all such deaths to determine whether more detailed investigation is required; in appropriate cases, a more formal review, building on Healthcare Improvement Scotland guidance on adverse events investigation; and a protocol between the commission and the Crown Office to ensure joint working in the context of the Lord Advocate’s responsibilities for investigation of deaths.
My officials have already started to explore with the Mental Welfare Commission how we can bring together a working group to develop a streamlined and effective approach to reviewing deaths in detention. It is important that the approach be focused on ensuring that services can learn from reviews that are carried out, and can improve so that they are more effective and safer. The approach should also ensure that relatives or carers can participate fully in the process.
I believe that the work that is under way is an effective way of dealing with the issue and I do not consider that there is a need for ministers to be compelled to undertake reviews, given that we have given an undertaking to do so. However, I do not consider that amendment 36 will have adverse consequences, so I am happy to support it.
Amendment 36 agreed to.
Amendment 37 moved—[Nanette Milne].
Amendment 38 was proposed by the Law Society of Scotland, with which I have had discussions. The amendment would add a new section to part 1 of the bill and ensure that recorded matters under section 64 of the Mental Health (Care and Treatment) (Scotland) Act 2003 are included in the orders that the tribunal may make when confirming the determination or varying a compulsion order in respect of a patient, interim extensions of orders under sections 149 or 158 of that act, and orders that are made under section 193 of that act. It would also amend the meaning of “modify” in relation to both relevant compulsion orders and compulsion and restriction orders under that act to include instances where recorded matters are specified.
The Law Society of Scotland has indicated the reason for the amendment. The 2003 act sets out the definition of “recorded matter”. The tribunal can specify a recorded matter when making a compulsory treatment order and when reviewing a compulsory treatment order. In essence, a recorded matter is regarded as an essential element of the patient’s care and treatment. If a recorded matter is not provided, the registered medical officer must refer the matter to the tribunal under section 96. That reflects the Millan principle of reciprocity.
Recorded matters are a means of ensuring that patients get the essential elements of the care and treatment that they require, and can be used to secure care and treatment that might not otherwise be provided, which is a significant benefit to some patients. However, recorded matters can currently be specified only in compulsory treatment cases; they cannot be specified in cases in which the patient is under a compulsion order or a compulsion order and a restriction order. The Law Society of Scotland’s view is that such patients would benefit from the inclusion of recorded matter provisions. Compulsory treatment orders are civil orders, whereas compulsion orders and compulsion and restriction orders are criminal justice orders.
All patients should have the right to obtain the essential treatment that they require, regardless of their route into the mental health care and treatment scheme.
I move amendment 38.
As I noted at stage 2, I am confident that the existing provisions work well for patients who are subject to compulsion orders or to compulsion orders with restriction orders. Although I am not opposed in principle to introducing recorded matters to such orders, I am not convinced that that should be done in a way that is different from how the system works for compulsory treatment orders. Amendment 38 would lead to a different mechanism for compulsion orders or compulsion orders with restriction orders. I am concerned that there could be confusion from operating two similar but different systems, and that it would add unnecessary complexity.
Amendment 38 would also omit an equivalent provision to section 96 of the 2003 act to provide for allowing the responsible medical officer to make a reference to the tribunal where a recorded matter is not being complied with. That requires the responsible medical officer to consult relevant parties, such as the mental health officer, to find out why a recorded matter is not being provided and to bring that to the attention of the tribunal. That means that the responsible medical officer will submit the original and most up-to-date care plans to the tribunal, and it allows the tribunal to take the views of the patient and others, and to make a decision whether to vary the recorded matters or other compulsory matters in the order, including on an interim basis. Amendment 38 therefore omits to extend an important part of the existing recorded matters provisions for compulsory treatment orders to the other orders, which ensures that any recorded matter that is not being provided is brought promptly to the attention of the tribunal and allows the tribunal to revise the order accordingly if needed.
On that basis, I urge Dr Simpson not to press amendment 38.
It is important that the approach is extended to people who are under compulsion orders and compulsion and restriction orders, and amendment 38 would do that. I heard what the minister said—he disagrees with that—but the Law Society of Scotland, which has its own experts in that regard, has looked at the matter very carefully. Therefore, I wish to press the amendment.
The 2003 act contains a range of provisions relating to compulsion orders, which are a disposal that is open to the criminal courts under the Criminal Procedure (Scotland) Act 1995 in respect of a person with a mental disorder, following a trial or an examination of facts in connection with an offence punishable by imprisonment.
Section 329 of the 2003 act defines “compulsion order” as
“an order made under section 57A(2) of the 1995 Act”
Section 307 of the 1995 act defines it as an order having the meaning given in section 57A of the 1995 act. Although the definitions deliver a similar result, they are expressed in different terms.
It is worth recapping that a compulsion order can be made in three situations: when the person has been convicted of the offence; when the person has been acquitted of the offence on the ground of lack of criminal responsibility by reason of mental disorder; or when the person is unfit for trial and has been found at an examination of facts to have committed the acts constituting the offence.
As well as containing provisions on what a compulsion order is and what measures it can authorise, section 57A of the 1995 act makes provision allowing the court to make a compulsion order following a conviction. Section 57(2)(a) of the 1995 act makes provision allowing the court to make a compulsion order following an acquittal or an examination of facts, and subsection (4) of that section applies subsections (2) to (16) of section 57A for the purposes of an order.
It is understood in practice that orders that are made under either section 57(2)(a) or 57A(2) are covered by the current definitions. However, the user of the legislation is required to read section 57(2)(a) through the prism of the application of much of section 57A to section 57(2)(a), by virtue of section 57(4), in order to arrive at that understanding.
I hope that it is clear why we believe that it would aid users of the legislation if we were to recast the definitions and provide a clear, accessible and consistent definition across the 1995 act and the 2003 act. The best way of achieving that would be to refer, in both the 1995 act and the 2003 act, specifically to an order made under either section 57(2)(a) or 57A(2) of the 1995 act. Amendment 22 provides for such clarification, and makes a consequential change to section 1(6) of the 2003 act.
I move amendment 22.
Amendment 22 agreed to.
The amendment says:
“the Tribunal may refer the matter to the High Court.”
There is no compulsion on the tribunal to do so, but that means that it would consider the matter. That is an appropriate locus for an appeal against the previous diagnosis to be argued out, with experts appearing before the tribunal.
The minister says on the one hand that amendment 40 would be a major change to criminal procedure and, on the other hand, that it is very unlikely that the scenario would arise because of the change to the 1995 act. Those two points seem to be quite illogical—in fact, they are completely opposed to each other—so I fail to see why he opposes my proposed measure, which would simplify matters and could reduce costs in relation to the small number of patients concerned. I am told that it might apply to no more than half a dozen patients. Even if that is the case, £1.2 million is still being spent inappropriately on detaining people in the state hospital when they would be better managed in the prison system.
The faculty of forensic psychiatry and the Scottish Prison Service have had extensive discussions since the 2005 report. Both sides believe that offenders with personality disorder, absent another severe and enduring mental illness, should be managed in the prison system. The patients concerned believe that as well, but they have no easy mechanism to follow that up at the moment. The amendment would provide that mechanism. It has been carefully thought out and, therefore, should be agreed to, saving us money and improving the situation for that limited number of patients.
I press amendment 40.
I thank Richard Simpson for his continuing work on the issue. Indeed, I know that he has been working closely with victims organisations in particular.
Although amendment 39 is similar to one that Dr Simpson lodged at stage 2, I note that he has sought to address in it some of the problems in the previous amendment. Notably, he has addressed concerns relating to confidentiality and has restricted the scope of the provisions to people who have been treated in the six months before being charged with an offence.
However, I still have fundamental concerns about a review being triggered upon a person being charged with an offence prior to any conviction. I am concerned that that would cut across the prosecution system, the independence of which is guaranteed by the Scotland Act 1998, and the requirement for a fair trial. I cannot accept investigations that run parallel to what the fiscal and the police are doing, especially if they involve the publication of findings that could interfere with that process. I do not believe that that is a nonsense—it is a serious concern.
I agree that a more streamlined process is needed to ensure that lessons are learned and shared across the system and to provide comfort and reassurance to families in these tragic cases. Members will be aware of the briefing covering the issue that the Mental Welfare Commission has produced for this stage of our consideration of the bill.
Under section 11 of the 2003 act, the commission already has a power to investigate cases of deficiency of care and, under that power, has from time to time investigated homicides by patients. The commission has proposed that, working with Healthcare Improvement Scotland, it should build on existing systems to ensure that all cases are reviewed appropriately. In doing so, it would consult key stakeholders such as the faculty of forensic psychiatry of the Royal College of Psychiatrists and, of course, Hundred Families. The commission has noted that it will be able to share an outline proposal with interested parties in the summer.
In light of the work that is already under way and my significant concerns about amendment 39, I urge Dr Simpson not to press it.
On the point about the triggering of a review on a person being charged cutting across the justice process, it is perfectly possible for the review to be undertaken and the report to be put together but for the report itself not to be published until the fiscal or the court determines the outcome. If the process is undertaken privately, it will not lead to the process being interfered with or to court cases proceeding in the way that concerns have been raised about. On that basis, I reject the minister’s concerns about the matter.
I welcome the fact that the minister is proceeding with discussions with the various interested bodies to sort out a system that everyone, including the Mental Welfare Commission, accepts is dysfunctional, but I simply do not believe that we have regulators in Scotland with sufficient teeth to ensure that all cases are properly investigated. There is no great evidence to suggest that that has occurred under the current permissive system. Without regulation—which, of course, the minister will determine, subject to the Parliament’s approval—I am not confident that, even with the best will in the world and new protocols being determined, we will not be sitting here in five or six years’ time, debating exactly the same topic in exactly the same way.
I press amendment 39.
The amendments are all to part 3 of the bill, which introduces a statutory notification and representation scheme for victims of offenders who are mentally disordered and as a result subject to certain orders. The intention is to develop a scheme that resembles as closely as possible the scheme that is available to victims under the Criminal Justice (Scotland) Act 2003.
Amendments 42, 43, 45 and 47 make provision for providing information to victims when a tribunal has made a decision to revoke a patient’s restriction order but the decision is successfully appealed and overturned.
Victims can choose to join the victim notification scheme. A victim can also opt into the victim representation scheme to make representations to the Mental Health Tribunal. To opt into the representation scheme, the victim must also opt into the notification scheme. If a victim has opted into the notification scheme but not the representation scheme, he or she will receive a notification only when the restricted patient’s position changes and that change is covered by the scheme.
Matters are, however, complicated by the possibility of an appeal against the tribunal’s revocation of a compulsion order or restriction order. They are further complicated by the fact that, under section 323 of the Mental Health (Care and Treatment) (Scotland) Act 2003, the court can make an order to render the tribunal’s decision to revoke the order ineffectual until an appeal against it has been finally determined. The amendments provide for a range of scenarios in those circumstances.
When a victim has chosen not to join the representation scheme, and the tribunal’s decision is appealed and the court makes an order under section 323 to suspend the decision of the tribunal pending determination of the appeal, the victim will be notified only if and when the order is revoked. That will happen once the appeal process is complete and the outcome is that the order is revoked. That is on the basis that there has not been a material change to the patient’s position and that the compulsion order or restriction order remains in place until the order is revoked at the end of the appeal process.
When a victim has chosen not to join the representation scheme, and the tribunal’s decision is appealed but the court does not make a section 323 order to suspend the decision pending the determination of the appeal, the victim will be notified and kept informed of the appeal’s progress. That is on the basis that there has been a material change to the patient’s position—that is, that the restriction order or compulsion order has been revoked.
When a victim has chosen to join the representation scheme, the bill provides that the victim will be told of the outcome of the tribunal’s decision. If that decision is appealed, the victim will get information that the decision has been appealed and information on the progress and outcome of that appeal, whether or not the court makes a section 323 order.
The bill provides for ministers to give a victim an opportunity to make representations about varying conditions that are imposed on a patient in a way that may affect the victim or members of the victim’s family. Amendments 41, 44, 46 and 48 are intended to ensure that the provisions are workable in practice.
At stage 2, I lodged an amendment on the sort of information that may be provided to a victim about a patient, which covered conditions that restrict the things that the patient may do after his or her conditional discharge. I indicated that, in practice, that will commonly involve restrictions on where the patient can go and persons with whom the patient may have contact.
Having considered further how that would work in practice, I recognise that there could be circumstances in which the officials operating the scheme might not know which conditions could affect the victim or a member of the victim’s family. If ministers failed to seek the victim’s representations in those circumstances, they would unwittingly be in breach of their statutory duty. The amendments take account of that but still ensure the rights of victims to make representations on specific conditions.
I move amendment 41.
Amendment 41 agreed to.
Amendments 42 to 45 moved—[Jamie Hepburn]—and agreed to.
Section 45—Right to make representations
Amendments 46 and 47 moved—[Jamie Hepburn]—and agreed to.
Section 47—Associated definitions
Amendment 48 moved—[Jamie Hepburn]—and agreed to.
Amendment 23 moved—[Jamie Hepburn]—and agreed to.
Amendment 24 follows stage 2 amendment 109, which was lodged by Adam Ingram in response to concerns that were raised with him, me and Nanette Milne. When that amendment was lodged, the National Institute for Health and Care Excellence had just published guidance reinforcing Adam Ingram’s remarks and evidence that was given to the committee by Autism Rights.
The guidance says that patients who have a learning disability, including autism spectrum disorder alone, should not, in the absence of additional serious mental illness, be given psychoactive substances as a first-line treatment. When such substances are given, they should be used only with caution and should be discontinued after six weeks if there is no improvement. I have no doubt that my professional colleagues will pay heed to that guidance.
I should have said at the outset of the debate—I will say this only once—that I am a fellow of the Royal College of Psychiatrists, so I have an interest in the subject.
Too often, there is no recording of medicines used in the treatment of associated conditions such as epilepsy, and so polypharmacy occurs. We know from evidence that has been given to the committee that numerous admissions to hospitals are associated with iatrogenic causes—that is, they are caused by the administration of inappropriate medicine. Part 5 of the Adults with Incapacity (Scotland) Act 2000 gives the added protection to a patient with impaired capacity that their carer or guardian must be consulted and treatment agreed with them, but that is not the case under the Mental Health (Care and Treatment) (Scotland) Act 2003.
At stage 2, I expressed specific concerns about patients with dementia, who we know are not having their diagnosis recorded on admission to an acute hospital in 50 per cent of cases, according to recent Scottish research relating to Scottish hospitals that was published in the British Journal of Psychiatry. I stress that those are patients who already have a diagnosis of dementia. Too often, such patients are treated with psychoactive substances, which can render them more confused and more likely to suffer falls. Although the situation in care homes has definitely improved since Mary Scanlon, I think, raised the issue in the first session of Parliament, it remains a worry.
I appreciate that the principles embodied in the Mental Health (Care and Treatment) (Scotland) Act 2003 should adequately protect patients, but the reality is that they do not. In his reply at stage 2, the minister quoted the Patient Rights (Scotland) Act 2011. That act, too, is helpful, but it is not sufficient. The minister also pointed to the valuable work that is done by the Care Inspectorate and the Mental Welfare Commission for Scotland. The work of both organisations is having an effect in care home and mental health settings, but that is not the case in acute hospitals.
Healthcare Improvement Scotland is carrying out inspections of elderly care, yet in the 950 case records that it has examined since its inspections started, only 50 per cent of patients were assessed for cognitive impairment. I believe that the time has come to regulate matters rather than rely on guidance. Of course regulations cannot interfere with clinical judgment, but we should insist on proper recording. For example, no psychoactive substance should be used unless the patient’s cognitive status has been recorded. We should ensure that the NICE guidelines are followed strictly; otherwise, we will continue to have this debate in future parliamentary sessions. Amendment 24 would tighten up this area of practice, which for too long has continued to affect too many adversely.
I move amendment 24.
The result of the division is: For 52, Against 62, Abstentions 0.
Amendment 26 disagreed to.
Section 18A—Named person not to be automatic
Amendment 12 moved—[Jamie Hepburn]—and agreed to.
Section 20A—Ability to act if no named person
Amendments 13 to 18 moved—[Jamie Hepburn]—and agreed to.
Before section 21
I understand that Dr Simpson’s concerns relate to the capacity of patients and situations when their wishes as set out in advance statements should or must be adhered to. However, I am not clear about what circumstances it is envisaged should be set out in the proposed regulations. The current framework ensures that doctors and tribunals take account of advance statements and requires them to set out any reasons for overriding statements whenever that is the case.
A competently made advance statement is a strong indication of a patient’s wishes about medical treatment, but it should not be considered in isolation. There must be flexibility. The advance statement cannot bind the medical practitioner or member of the care team to do anything that is illegal or unethical, and nor can it bind them to provide a range of or withhold specific services, medicines or treatments.
I am aware that the Mental Welfare Commission has raised concerns that changes to the balanced approach in the current legislation could lead to dilemmas in cases where not giving treatment could result in severe harm. I recognise the positive intentions behind amendment 27, but I am concerned about the unintended consequences. We should heed the commission’s concerns.
Given that we would not intend to use the proposed regulation-making powers, and given the difficulties that can arise if we agree to a regulation-making power but do not use it, I say with respect that I cannot support amendment 27 and I ask Dr Simpson not to press it.
I thank Bob Doris for amendment 28, which I am happy to support. The Government sees advance statements as an important tool in helping service users to participate in decisions about their treatment when they are not well. We want their use to increase.
I am confident that, taken together with the other measures that the bill introduces, amendment 28 would help to increase the numbers of advance statements that are made. I am aware that, sometimes, service users are not sure about how to access support to make an advance statement. Amendment 28 would make sure that they have information about who in their treatment team, or which other medical professional, can help them with making one and what support they can expect.
The purpose of amendment 1 is very simple: it requires ministers to bring forward a review of the meaning of “mental disorder”—and specifically whether learning disability should continue to be included in that definition—and requires that review to report within three years of royal assent. I believe that all of that is perfectly reasonable.
At stage 2, I moved an identical amendment but set a time limit of one year for the review to be complete. I listened very carefully to the minister then and during our subsequent very helpful discussion. He argued that civil servants would be engaged in implementing the bill and that would mean that they would be too busy to carry out the review. He also argued—and I entirely agree with him—that it is important to ensure that those with learning disabilities are fully involved in the review, which takes time. This revised amendment allows for up to three years for the review to be undertaken, which is plenty of time to ensure that it is thorough and inclusive.
I will explain to the chamber the context of this amendment. In 2001, the Millan committee supported the idea of removing learning disability from the definition of mental disorder. In 2009, the McManus review also supported the idea of removing learning disability from the definition of mental disorder as set out in the Mental Health (Care and Treatment) (Scotland) Act 2003. A review was promised.
We have therefore had two separate expert committees both recommending the same thing, and yet here we are 14 years later and still there is no review.
Let me be clear that this is not party political. The previous Labour Scottish Executive did not carry out a review. The current Scottish Government has not carried out a review. The cross-party group on learning disability has discussed this issue at length. There is huge support from members for a review. People with learning disabilities have been patient. Today is about rewarding their patience and doing the right thing.
Amendment 1 does not in any way prejudge the outcome of such a review. I recognise that there are strongly held arguments on both sides. Some passionately believe that learning disability should not be included in a definition of mental disorder. Those include Enable Scotland, Inclusion Scotland, People First (Scotland) and many more besides.
Let me set out some of their rationale. First, they believe that the inclusion of people with learning disabilities in an act that clearly has as its focus the treatment of people with mental ill health conditions has a detrimental impact.
Secondly, people with learning disabilities are not mentally ill. Unlike mental illness, learning disability is a lifelong condition that cannot be cured or alleviated by medication. It is an intellectual impairment rather than a mental disorder.
Thirdly, people with learning disabilities may require care and support and—except where a mental illness is also present—psychiatrists are unlikely to take the lead role in providing care and support for people with a learning disability.
Additionally, there is evidence that people with learning disabilities are subject to compulsory treatment as a result of their learning disability alone. People with learning disabilities account for more than 11 per cent of those in mental health institutions when they represent just 2 per cent of the population and their stay is longer than average. Clearly, that is not right.
On the other hand, some will argue equally passionately that the inclusion of learning disability means access to services and will point to the safeguards that are inherent in the 2003 act so that those with a learning disability are not made subject to its provisions.
Clearly there are complex arguments here, and clearly there are different views, but the desire for a review is long-standing. It transcends Governments; it transcends ministers. The amendment does not presuppose the outcome of that review but, 14 years on, it really is time that we conducted it.
I urge members to support the amendment and to listen to the views of those with learning disabilities, their families, and the organisations that support them.
I move amendment 1.
Amendment 1 is a very modest one because it is merely calling for a review and does not pre-empt the conclusions of that review. Goodness knows we have been hearing about reviews on this issue for the whole of this century.
Bruce Millan has been referred to and I can quote him. He said:
“There should be an expert review at an early date on the position of learning disability within mental health law”.
Responding to his report in 2001, the Scottish Executive at the time said in “Renewing Mental Health Law”:
“It will be important to get the context for such a review right, and we will discuss this with the Same as You? Implementation Group and the Scottish Consortium for Learning Disabilities before bringing forward proposals.”
I regret the fact that those proposals were not brought forward. As Jackie Baillie said, this is not a party political matter. Both main parties have failed to have a review, but I think that enough years have passed for a review to be done within the next three years.
Other jurisdictions have had plenty of experience of this issue. For example, in 1992 New Zealand changed its mental health law, and from that time people with learning disabilities were excluded unless they also had a mental illness. That clearly is a position that a lot of people would accept, so it can be done.
Amendment 1 calls only for a review, and I am not quite clear how anybody can still object to that after 15 years.
Of course, the Government could introduce primary legislation following the review’s conclusions if it believed that that was necessary at that point. Amendment 1 provides a mechanism that might make it simpler to remove learning disability from the meaning of “mental disorder” if there is a degree of unanimity on the issue at the time.
The other point is that, as Malcolm Chisholm said, if the issue had just come up very recently, the Government’s objections might be valid. However, it has been on the cards since the Millan committee sat. The Government has been on a journey. It began by saying no, and then it said that a review would be extremely complex—it is right, of course, because we would need to look at the Mental Health (Patients in the Community) Act 1995, the Adults with Incapacity (Scotland) Act 2000, the Mental Health (Care and Treatment) (Scotland) Act 2003 and the Mental Health Act 2007. It is important that we get this right and protect people with learning disabilities.
The Government has committed to a review, and I am sure that it will do so again, so if it wishes to oppose the amendment, I invite it to provide an idea of the timetable under which that review will be established. If it does not do that, we will wonder whether we can take ministers seriously when they speak about moving this issue forward. I support Jackie Baillie’s modest amendment.
Let me say at the outset that I appreciate the work done by Richard Simpson and Jackie Baillie on this issue at stage 2, as well as the constructive meeting that followed. I recognise that a number of people and organisations have raised the issue of the inclusion of learning disabilities and autism spectrum disorders under the 2003 act. Indeed, I met representatives from People First and heard their perspective on that matter, and I understand the frustration that a review has not been undertaken thus far. For that reason I have committed to carry out a review on the inclusion of learning disability and autism spectrum disorders under that act.
I am listening to the views of those with learning disability. I put that commitment on the record in the Scottish Government’s response to the stage 1 report—that was a rather stronger response than the one given by the Scottish Executive in 2001 which Malcolm Chisholm alluded to. I repeated that commitment in the stage 2 debate, and I do so again now: the Government will undertake that review; there are no objections to that from this Administration.
Richard Simpson’s point about the Government’s seriousness of intent and how quickly we can establish that review is fair, and I intend to start the process as soon as possible. Indeed, we have already begun that, and my officials have started to discuss with partners how the review will happen. I will share information about progress on that with the Health and Sport Committee.
As Mark McDonald said, there is nothing to disagree with in the general thrust of Jackie Baillie’s amendment; the issue is finding the right way forward. I do not believe that it is sensible for the legislation to require a timescale for the completion of the review. The review must be genuinely participative and must not start with a pre-determined outcome or process. It requires a flexible approach that can adjust to the views of those who are involved.
I understand the desire for a clear timescale, not just for beginning the process but for completion, and I am clear that a review will take place and I want it to start as soon as possible. I believe that a timescale of three years from royal assent—as set out in the amendment—is reasonable, but I do not want to place an artificial time limit on that review or to prejudge where it will go. It is important that the review is participative and allows all voices an opportunity to influence the process and be heard. That should determine how long the review takes, but my clear commitment is for it to be completed as quickly as possible.
More substantially, I am concerned about proposed new subsection (5), which sets out what must be done if ministers recommend in the required report that learning disability should not continue to be within the meaning of mental disorder. It states that, in those circumstances,
“The Scottish Ministers must make provision by regulations for the removal of ‘learning disability’ from the meaning of ‘mental disorder’.”
Mr McDonald set out the reasonable concern that that would not allow for a change to be made through a bill, which would allow for far more scrutiny of and engagement on such a major change.
Even more crucially, it is not clear to me that the amendment would allow for any new system to ensure support and protection for those with a learning disability, as exists in the 2003 act. There was common recognition at stage 2 of the importance of doing so, and Ms Baillie and Dr Simpson have set that out again.
The approach also seeks to require ministers to legislate, but their powers to do so are subject to parliamentary approval. While ministers could lay draft regulations before Parliament to implement the recommendations of the report, it is outwith their powers to ensure that they are made. That, rightly, is the prerogative of Parliament. The amendment would appear to be an attempt to bind Parliament to legislate in a particular way in future, just because ministers have published a report containing recommendations to that effect. I am not sure that that is what Jackie Baillie intends.
We all agree that this is an important issue and that it is important that the whole range of views are heard—those who make the case that learning disability and autism should not be included under the 2003 act and those who make the case for the benefit of the protections, safeguards and access that the legislation provides. I have committed to a review; that is my serious and determined commitment. I urge Jackie Baillie not to press amendment 1. If she does so, I urge members not to support it.
The first piece of legislation that was passed by our Parliament in 1999, and with which I was personally involved, sought to tackle the situation arising from an appeal made by Noel Ruddle under the European convention on human rights against his detention in the state hospital following serious offences.
The Mental Health (Public Safety and Appeals) (Scotland) Act 1999 introduced the serious harm test, under which patients who were convicted on indictment or complaint and subject to special restrictions by the court could be subject to indefinite hospital detention if a mental disorder was present and they were considered to pose a risk of serious harm to the public, irrespective of the appropriateness of the order or the treatability of the subject.
The provisions in the 1999 act were subsequently extended in the Mental Health (Care and Treatment) (Scotland) Act 2003 to apply to all restricted patients in Scotland, who numbered about 250. Because of those provisions, a small number of patients have become stuck in the forensic mental health system. They have been reclassified, in terms of diagnosis, as having no diagnosis, as being personality disordered or as having a learning disability.
The minister had two arguments against a similar amendment—amendment 113—that I lodged at stage 2. His first argument was that the 2003 act covered personality disorder—of course, that is correct—and that in some way the forensic psychiatrists who backed my amendment were seeking to change that. However, that view is quite wrong. They are not seeking to change the incorporation of personality disorder into the 2003 act. That would indeed be a fundamental change, but that is not the intention of amendment 40, nor will it, as drafted, deliver such a change.
The minister’s second argument was that an amendment to the Criminal Procedure (Scotland) Act 1995 to extend the time period for an interim compulsion order from six months to 12 months ensures that a full and rigorous assessment of the offender’s mental disorder is undertaken before the final disposal is made. I concur.
However, the minister went on to say:
“It is very unlikely that an offender would be misdiagnosed in those circumstances, making it much less likely”— not unlikely—
“now that a patient would receive a hospital disposal from the court that would create the scenario that Dr Simpson describes.”—[Official Report, Health and Sport Committee, 26 May 2015; c 28.]
Again, the minister is correct—the numbers will be small. Most psychoses, if severe and enduring, will be evident within a year. However, for every patient who at the time of the offence had an acute psychosis due to, for example, drug or alcohol misuse that did not resolve until the year had expired, and the disposal was then found to be inappropriate because the diagnosis might be one of personality disorder or learning disability only, the nature of which would be better managed in a prison, without the amendment, we would continue to confine patients unnecessarily—and, in the context of austerity, very expensively—in a mental hospital rather than a prison.
Can that happen? Yes it can. The appeal mechanism is cumbersome, and scarce resource was employed in the case of Alexander Reid. In his case, the court of criminal appeal recognised that the change of diagnostic category could be considered as new evidence, and it allowed a fresh disposal. That allowed him to transfer to prison, which is what he wanted. However, the process for raising his appeal took several years.
There is an alternative approach to the problem that is raised by cases such as that of Noel Ruddle. There should be a mechanism by which the appropriateness of the sentence can be reconsidered for the—admittedly—very small number of patients whose diagnostic category has changed and whose detention in a psychiatric hospital is consequently inappropriate.
Not to act would mean continued substantial excess cost, which I am told amounts to £200,000 a year per patient, as well as inappropriate detention, against which patients would seek redress in the same manner as Mr Reid successfully did.
The whole approach in Scotland to personality disordered offenders was considered by a working group on services for people with personality disorder, chaired by Professor Thomson, which reported as long ago as 2005. The report recommended that the Scottish Government consider whether a mechanism should be created to refer such cases to the Scottish Criminal Cases Review Commission for consideration.
That view was rearticulated in 2011, when the forensic network gave evidence to the commission on women offenders, chaired by the Rt Hon Dame Elish Angiolini. Amendment 40 revises my stage 2 amendment 113 to make the group to whom that mechanism would apply more clear—that is, it would apply only to those with a compulsion order and a restriction order.
The faculty of forensic psychiatry’s view is that offenders with personality disorder or learning disability only are far better supported and managed in the prison system than in the mental health system.
I move amendment 40.
Amendment 40 is similar to an amendment—amendment 113—lodged by Dr Simpson at stage 2. The only difference is that Dr Simpson now proposes that the provisions should apply only to patients subject to both a compulsion order and a restriction order, whereas the stage 2 version would also have applied to patients subject to only a compulsion order.
I resisted that proposal at stage 2, and remain of the view, notwithstanding the narrowing of the provision to apply to a smaller patient subset, that this is a major issue and, given the implications for the criminal justice system, not one that we can sensibly consider without thorough consultation, particularly in light of the potential additional risks to the public.
Let me run through the reasons for my view in more detail. The amendment proposes new powers for the tribunal and the courts that would revisit the original sentencing and disposal decision. It also opens up what can be complex competing clinical opinions about diagnosis.
I understand that the approach is designed to address concerns among some psychiatrists that patients who are diagnosed—or, indeed, misdiagnosed—as having a mental illness or learning disability and who are made the subject of a compulsion order and a restriction order on that basis may later be diagnosed as having a personality disorder only. Had the court had full medical evidence based on that diagnosis, the result may have been a prison sentence rather than a mental health disposal. However, once the patient is in the hospital system, they cannot be released because they continue to satisfy the test for a compulsion order and a restriction order, due to the risk of serious harm that they pose.
The proposal would result in a significant shift in how mentally disordered persons are dealt with by the criminal justice system and, indeed, by the health service after conviction. The position in the 2003 act is that many patients who meet the conditions for a mental health disposal and require to be detained may most appropriately be detained in hospital rather than in prison.
As Dr Simpson mentioned, an amendment to the Criminal Procedure (Scotland) Act 1995 extended the time period for an interim compulsion order from six months to 12 months to ensure that a full and rigorous assessment of an offender’s mental disorder is undertaken before the final disposal is made. In those circumstances, it is very unlikely that an offender would be misdiagnosed, so it is now much less likely that a patient would receive a hospital disposal from the court that would create the scenario that Dr Simpson seeks to address.
All patients who are subject to compulsion orders and restriction orders have the right to apply to the tribunal and to ask for the orders to be reviewed periodically. In addition, there is already a means for patients to have their cases considered on appeal. The same appeal route is used for offenders who receive a prison sentence but argue that they should have received a hospital disposal.
As I said at stage 2, the amendment is well intentioned. However, it concerns a major issue and has significant implications for the criminal justice system. We should not consider it without thorough consultation.
I urge Dr Simpson not to press his amendment; if he does, I strongly urge members not to vote for it.
Out of the 137 homicides committed by those with mental illness in the past 10 years in Scotland, only two appear to have been the subject of published reports by the Mental Welfare Commission, and few seem to have been the subject of adverse incident reviews by health boards. In England, over the same period, there were 576 homicides, 321 of which were the subject of reviews. Those English reviews suggest that 25 to 35 per cent of homicides could have been prevented if different actions had been taken.
It is important that we recognise and put on record the fact that cases of murder, culpable homicide or, indeed, violence by persons who are suffering from a mental illness are rare. However, the intention of amendment 39 is to amend the Criminal Procedure (Scotland) Act 1995 in order to provide in primary legislation clarity, consistency and accountability with regard to reviewing, reporting and taking appropriate action, where lessons can be learned, with regard to an offence as specified in proposed new section 63A(16) of the 1995 act that involves a person with a mental illness who is known to mental health services. The provision would apply to
“murder ... culpable homicide” and
“such other offence as the Scottish Ministers may by regulations prescribe.”
The amendment has three purposes: to ensure that we learn lessons so that in future, those with mental health problems can, as far as possible, be protected and prevented from committing such offences; to assure the families of the victims, and the victims, if they survive, that all that can be done to prevent a recurrence will be done; and to ensure that the public can have confidence in the NHS.
At present, we have a dysfunctional system of reporting and review. It involves decisions by multiple organisations—if, that is, they choose to act. Elements of the process include the procurator fiscal, the UK confidential inquiry reports into homicide and suicide, health boards and the Mental Welfare Commission. The commission can act if it believes that there is a deficiency of care, but how can it know that if the case has not been reported to it? Other organisations that might or might not have a role include Health Improvement Scotland and, indeed, the Health and Safety Executive. The minister can also order a review.
The issue was brought to my attention because of concerns that were expressed by the Hundred Families organisation, which draws together information and provides mutual support for families who are affected by such offences. My purpose in moving the amendment is to ensure that, under proposed new sections 63A(2)(a) and 63A(2)(b), the procurator fiscal informs the health board and the Mental Welfare Commission if a person with a mental health problem is charged.
At stage 2, the minister expressed concerns in relation to individuals who might be found not guilty or found to be incapable of pleading. However, the experience of Hundred Families is that, in almost every case, there is no attempt to hide, and the offence is almost always admitted. As members will see, my amendment, which I have adjusted to take account of the minister’s concerns, says that the perpetrator has the opportunity to give permission and, if that permission is not given, the minister should proceed only if they feel that it is in the public interest to do so.
The proposal is not about guilt or innocence—that is a matter for the justice system—but about learning lessons and preventing future incidents. If a person with a severe mental illness is involved in an incident and is known to mental health services, usually from contact within the past six months, the health board would be obliged to make inquiries under proposed new sections 63A(3)(a), 63A(3)(b) and 63A(3)(c); it would also be obliged to prepare and publish a report and an action plan.
The minister also expressed a concern that the confidentiality of the patient would be infringed. I have addressed that by ensuring that, unless the person consents or publication is in the public interest, which is the alternative course of action, the patient’s name should be redacted. The same restriction applies to mental welfare reports, which I believe should be placed before Parliament in a collation of health board reports. Those affected by these rare offences have a right to know that all that can be done will be done to prevent a recurrence.
I am aware of two further concerns about my proposal, the first of which relates to the length of time mental health services should have been involved to require them to conduct an inquiry. Instead of having a fixed time limit—or indeed no time limit—I have in the amendment, if it is agreed to, allowed the minister to determine the matter in regulations. Secondly, there is a concern that a review by the board would cut across the justice process. I believe that that is nonsense, because this is not about whether the offence was committed or what legal action was appropriate but about a review of the care and treatment of the person charged.
Finally, although I very much welcome the on-going discussions between the Mental Welfare Commission, Health Improvement Scotland and the health boards, will the outcome of their discussions be enshrined in primary legislation or regulations? It will not. For more than a decade, we have had a permissive system that has not been good, and enough time has passed for the law to be made clear.
I move amendment 39.