Contents
- Attendance
- Subordinate Legislation
- Integration Authorities’ Engagement with Stakeholders and Draft Budget 2017-18
- NHS Governance
Subordinate Legislation
Mental Health (Absconding) (Miscellaneous Amendments) (Scotland) Regulations 2017 [Draft]
Good morning, everyone, and welcome to the 16th meeting in 2017 of the Health and Sport Committee. I ask everyone in the room to ensure that their mobile phones are on silent. It is acceptable to use mobile devices for social media, but please do not take photographs or film proceedings.
Agenda items 1 to 11 are on subordinate legislation. Under agenda items 1 to 10, we will consider five instruments that are subject to affirmative procedure. As is usual with affirmative instruments, we will take evidence from the responsible minister and their officials. Once all our questions about the instrument have been answered, we will have a formal debate on the motion.
The first instrument that we will look at is the draft Mental Health (Absconding) (Miscellaneous Amendments) (Scotland) Regulations 2017. I welcome to the meeting from the Scottish Government Maureen Watt, who is the Minister for Mental Health; Ruth Wilson, who is a senior policy adviser in the mental health and protection of rights division; and Ailsa Garland, who is a solicitor.
I invite the minister to make a brief opening statement.
Thank you for providing me with the opportunity to speak about the secondary legislation that the Scottish Government is introducing as part of the implementation of the Mental Health (Scotland) Act 2015. That act makes changes to the Mental Health (Care and Treatment) (Scotland) Act 2003 to allow service users with a mental disorder to access effective treatment quickly and easily. The 2015 act also amends the Criminal Procedure (Scotland) Act 1995 and the Criminal Justice (Scotland) Act 2003 to improve processes and to introduce a victim notification scheme for victims of mentally disordered offenders.
The implementation of the 2015 act is part of the Scottish Government’s programme to streamline, simplify and clarify the system for the efficient and effective treatment of people with a mental disorder. It does not seek to overhaul mental health law; it simply seeks to make the changes that need to be made to improve further the operation of the law in that area.
When the provisions of the 2015 act come into force, they will build on the existing measures and principles that are set out in the Mental Health (Care and Treatment) (Scotland) Act 2003 to help to ensure that people with mental health problems know their rights, are at the centre of decisions about their own care and are empowered to participate.
There are five affirmative statutory instruments to talk about. One instrument is about the arrangements for patients who have absconded, three relate to cross-border matters, and the fifth clarifies the holding powers for nurses. As each instrument is to be considered individually, I will take a few minutes to explain the particular proposals, including our reasons behind them, before I take questions.
Policy was developed in consultation with stakeholders, and the draft policy proposals for the instruments were discussed with stakeholders before the proposals were finalised. Given the complexity and technical nature of some of the processes, it was not practicable to run a single public consultation. In order to maximise responses, two separate consultations were conducted. The aim was to engage as fully as possible while minimising pressure on stakeholders to consider several topics in one go.
Policy officials set up a reference group, which not only helped to shape the form of the consultations but focused on the implementation of the 2015 act. The reference group consists of a range of stakeholders; its membership includes the Mental Health Tribunal for Scotland, the Mental Welfare Commission for Scotland, professional groups, service providers and rights, advocacy and service user representation organisations. The group has had a key role in providing advice and recommendations.
The Scottish Government considers that the implementation of the 2015 act and the introduction of the instruments will help to improve the care and treatment of people with mental disorders.
I am happy to discuss the first instrument that the committee is to consider.
Thank you. I invite questions from members.
Sorry, convener, but should I go on and introduce the first instrument?
Yes—if that is what you were intending to do.
The first instrument relates principally to the provision of medical treatment to persons who have absconded to Scotland from elsewhere. The regulations have a dual purpose: to provide a process for the return of patients who have absconded from another European Union member state and to allow for the treatment of absconding patients pending their return.
When patients who are mentally disordered are detained in hospital, they sometimes leave without the agreement of the staff or go missing. That can be a concern, because many patients are detained in hospital because they are at risk of harming others or themselves in some way. We propose to make provision that follows the principle of least restriction and allows for such a person to receive medical treatment for their mental disorder. It is envisaged that the provision would be used when the absconding person is likely to be in Scotland for a short period before returning to their home jurisdiction once transport has been arranged. At present, the mental health legislation does not provide a framework to authorise giving treatment to a person who has absconded from detention in another jurisdiction and has been taken into custody pending return. We therefore propose to replicate some of the existing provisions that allow treatment of patients who are detained in hospital in Scotland.
The regulations set out a clear process for considering treatment, which includes confirming that the absconding person is subject to measures that correspond to Scottish measures involving detention. We hope that, in most cases, the person will be returned to their home jurisdiction within a few days. We have focused on what best meets the person’s needs. It would have to be established that the absconding person has a mental disorder and, if they were not liable to be taken into custody under the absconding regulations, it would be necessary to detain them for treatment of that disorder.
I appreciate that one stakeholder would perhaps prefer us to take a different route. For example, it has recommended that absconding persons should be made subject to a short-term detention certificate. We have looked at the evidence in detail and officials have spoken to that stakeholder about its concerns. It acknowledges that a short-term detention certificate may not be appropriate in all cases, and we consider that additional provisions that it has requested are not needed. We are confident that the draft regulations are a suitable and proportionate way of allowing a person to be returned to their home jurisdiction when that is appropriate and to receive treatment for their mental disorder as required pending their return.
In the consultation process, most respondents agreed with our proposals. The best interests of the person should be uppermost in any decision. Under the Mental Health (Care and Treatment) (Scotland) Act 2003, anyone in Scotland with a mental disorder as defined by that act has the right to access support from an independent advocate. That means that any patient who comes under the absconding regulations would have a right to access support from an advocate. If there was likely to be a longer delay, it would be open to the medical practitioner who was responsible for the person’s treatment to consider whether the person should be brought within the Scottish system.
I am now happy to take questions on the proposals.
Thank you.
Good morning, minister, and thank you for coming. At the top of your remarks, you referenced the fact that the instruments were produced in consultation with groups of stakeholders. I absolutely accept that, and that may well be the case, but it is clear from briefings that members of the committee have received from the Scottish Association for Mental Health that not all the concerns that were raised in the consultation process have been acted on.
I particularly want to address issues surrounding these regulations. First, the draft regulations allow the responsible medical officer to authorise any person to take someone into custody. Arguably, that definition is vague and does not ensure that the person who is specified will have appropriate qualifications or experience to fulfil the duties. SAMH flagged that up during the consultation process. Why did you decide to omit any qualification threshold for people who can take patients into custody?
In general terms, we are aware of SAMH’s concerns. My officials met a representative from SAMH last week, and we thought that we had allayed most of their fears and concerns about the instruments, but after the representative went back and discussed the matter with colleagues, that does not seem to have been the case. Perhaps more reassurance of other people at SAMH is required.
The change is needed because there is currently a difference between the list of persons who can take an absconding civil patient into custody and return them, and the corresponding list for mentally disordered offenders. There is a list of people who can take people into custody, but the new provisions ensure similar specified persons in the two cases by including persons who are authorised by the patient’s responsible medical officer. The policy objective is to make both approaches similar to allow an RMO to authorise a person to take a mentally disordered offender into custody and return them to the hospital or other place from which the patient absconded. The accompanying code of practice will make clear which factors an RMO should consider when specifying a person.
The regulations are subject to affirmative procedure, so we cannot amend them. You are asking the committee to rubber-stamp something with which not all of us are entirely happy. I do not see how the Government position would be weakened by redrafting and amending the regulations to include the word “qualified” and delineating in the subsequent guidance exactly what is meant by “qualified”, otherwise that could be open to interpretation and it might be misused.
Qualified persons are already specified. They include members of hospital staff, mental health officers and constables. The addition will allow the RMO to make a decision about the suitability of a person to take an absconding patient into custody and return them to hospital or another place from which they have absconded. The accompanying code of practice will make clear what matters an RMO should consider when specifying a person.
With respect, just listing groups of people who can do that does not specify what qualifications they should hold or what expertise or experience they should have. I am not satisfied that that qualification threshold has been met.
Does one of my officials want to come in on that? The RMO will always take the decision at the end of the day.
The addition will allow an RMO to use their judgment on who should fulfil the role of taking a person into custody. The RMO will look at who from the prescribed list is best placed at that moment.
The human judgment element causes me concern. Just saying that hospital staff can take somebody into custody without specifying qualifications might lead the RMO to infer that any member of hospital staff could perform that role. Given the distress that the person in question might be in—they might have been without their medication, usual treatment and support for some time—there could be a particularly charged situation that requires a very finessed skill set. We have not covered that by just saying that it is up to the RMO and the person can be anyone from the hospital staff.
The amendment in the draft regulations simply replicates the system that we have at the moment for civil patients. We have the list that includes a mental health officer, a constable, a member of staff of a hospital and any other person who has been authorised by the RMO. We are simply replicating that for offenders who have absconded within Scotland and therefore leaving flexibility for the RMO to consider who is most suitable at the time, as my policy colleague said.
09:30
I am all for giving the RMO flexibility but I want parameters around that flexibility, and I do not understand the problem with bottoming that out in guidance and using the word “qualified” so that RMOs can discharge that responsibility confidently.
As Ailsa Garland said, the provision brings the situation into line with the system for other patients. We are talking about very few people—people who are in danger of being a risk to themselves or to others. I think that you will agree that speed might be of the essence in some cases: we need to quickly ascertain what the problem is and make sure that the person is given the best possible treatment and returned from whence they came as quickly as possible.
I do not question that. Speed is obviously important. However, when people have to make speedy decisions, they often make the wrong ones. I just want to protect the RMOs and the patients they are dealing with. If that means bringing the system into line with the system for domestic patients, perhaps the system for domestic patients needs to be tightened up. I am still not happy with the regulations.
I clarify that the amendment is just about domestic offenders who have absconded in Scotland. We are amending two different sets of regulations and replicating what is in the civil system. RMOs already make decisions that they think are appropriate for civil patients, so we are creating a similar system. I am not sure whether we are aware of issues around the making of such decisions for civil patients at the moment. We are simply replicating the system for offenders.
I do not think that we are going to reach agreement on this, but I am not satisfied that that qualification threshold has been reached.
If I may, convener, I will move on to the other problem that SAMH raised about medical treatment for people who have absconded from jurisdictions outwith Scotland. As the regulations stand, the Government is proposing to treat people over several days without the same authorisation under mental health law that would be provided for someone who is resident and receiving treatment in Scotland. People who abscond to Scotland could be subject to prolonged detention and treatment without a right of appeal, which could be seen as an infringement of their human rights. The issue was raised in the European Court of Human Rights through a case in Finland. In its judgment, the court said:
“forced administration of medication represents a serious interference with a person’s physical integrity and must accordingly be based on a ‘law’ that guarantees proper safeguards against arbitrariness.”
In that case, those safeguards were missing. How confident are you that, if such a case were brought before the European Court of Human Rights, it would not be found similarly wanting?
The case of X v Finland involved a quite different set of circumstances and did not relate to absconding. We are content that the regulations provide significant safeguards in relation to the treatment of those who abscond to Scotland from other jurisdictions. Such medical treatment can be given only when the absconding person is subject to a measure in their home jurisdiction that corresponds to certain Scottish measures involving detention, all of which contain safeguards for the patients involved. Additionally, the absconding person needs to be medically examined before treatment is given. It needs to be established that they have a medical disorder, that they would need to be detained for the purposes of receiving treatment and that without treatment there would be a significant risk to the safety and welfare of the absconding person or to others.
On the safeguards, our mental health legislation is rights based, and we have sought to reflect that in the regulations. For some individuals, compulsory treatment is used to provide medical treatment to alleviate suffering and to protect the person and others and, as you know, compulsory treatment is allowed only in strictly controlled circumstances. Absconding patients are covered by the same safeguards.
Okay. Going back to the judgment in X v Finland, we cannot hypothethise about the circumstances in which that would be applied under Scots law in terms of individual circumstances that might occur in relation to patients absconding to Scotland with regard to the regulations.
You talk about the approach being based on mental health legislation. The problem with that is that no protection under mental health legislation is afforded to patients who abscond to Scotland, because they are excluded from the provision of treatment authorised under the 2003 and 1995 acts. The regulations set out that the Scottish Government therefore proposes to provide treatment to patients without those protections. In other words, despite what you said about the work that was done and the agreement that was reached about the use of short-term detention certificates not being appropriate, that is, effectively, what we are talking about.
The Scottish Government is completely committed to maintaining human rights in Scotland. There is a clear system in the absconding regulations. I do not think that it is quite correct to say that, because they are set out in regulations rather than in primary legislation, there are no procedures and safeguards.
A number of checks need to be done before someone can be given medical treatment. It has to be established that they have a mental disorder and that were they not liable to be taken into custody it would be necessary to detain them to give the treatment. All of that has to be decided by a medical practitioner, who must also consider whether, without treatment, there would be some risk to the safety of the patient or others. There is then a process whereby certain sections of the 2003 act are applied and modified so that they work appropriately for absconding persons. I therefore do not think that it is correct to say that there is no scheme or system or that there are no safeguards. All of that is set out in detail in the regulations.
My fundamental point is that absconding persons are not afforded the same rights and protections as Scottish citizens, who are protected by primary legislation. I cannot see why we cannot change the regulations to give them those same protections.
Our position is that, as I said, a clear system is in place for those people. The fact that it is in regulations rather than in primary legislation does not mean that it is a lesser system. I take your point that they will not receive treatment under the 2003 act—I think that that is one of SAMH’s issues—but they will receive treatment in accordance with the conditions and requirements in the regulations. We feel that there is a clear system there.
Access to justice is key. I would be anxious that people who are not protected by primary legislation, who will be dealt with through the hodgepodge of provisions in the regulations, will not have the same access to justice that they would have had if they had been protected in the same way that Scottish patients are protected under primary legislation.
I refer members to my entry in the register of members’ interests. I am a registered mental health nurse, and I am one of probably only two people around the table who have worked with mental health legislation in practice.
What rights does someone who has absconded and is now in the care of a Scottish mental health facility have in terms of accessing advocacy and making complaints to the Mental Welfare Commission, and what rights do they have in general? Alex Cole-Hamilton has raised concerns in that regard, so it would be helpful if the minister could clarify what those rights are and where those people currently stand in that regard.
The 2015 act builds on the rights and duties in the 2003 act, including the right to access support from an independent advocate. The new provisions will require local authorities, health boards and the state hospital to provide information to the Mental Welfare Commission on how they currently exercise their duty to collaborate and to secure advocacy services for people with a mental disorder, and how they plan to do so in the future. That will help to ensure that information on the provision of advocacy is easily accessible and that independent advocacy is provided, as it should be. The Scottish Government will continue to work with the Mental Welfare Commission for Scotland on the implementation of the new provisions. As far as I understand, the commission is broadly in agreement with the instruments.
Anyone who is detained under mental health legislation in Scotland has additional support through a mental health officer, who oversees the process. Are there any plans for mental health officers to oversee any part of the regulations?
There is no statutory role for an MHO under the regulations, as persons will not be detained under the 2003 act. However, the statutory guidance will set out best practice in terms of how the clinical team will engage with social work.
Thank you for that reassurance.
Alex Cole-Hamilton has raised concerns about RMOs deciding who would take someone back into custody. I have personal experience of fulfilling that role. My understanding is that, in the vast majority of cases, the role would fall to registered mental health nurses and nurses who work on the ward from where the patient absconded or who are part of the wider clinical team, such as community staff who have worked with the patient. Will the regulations lead to any changes in who fulfils that role? Do you envisage that similar people, with similar experience and levels of qualification, would be involved?
The system would be absolutely the same. I bow to your practical knowledge in the field—you are absolutely right.
Good morning. Under the current process, if someone requires further treatment over a longer period, doctors are required to issue short-term detention certificates—Alex Cole-Hamilton made that point. What are the disadvantages of maintaining that system?
A patient who is made subject to a short-term detention certificate is effectively brought into the Scottish system. To be transferred back to their home jurisdiction, they would have to go through the cross-border transfer process, which might involve a lengthier process than would otherwise be the case. However, as I have said, by allowing medical treatment to be provided under the absconding regulations, we are setting out a clear process for that treatment and the conditions under which it can be given, and when the patient is medically fit to return to their own country that can be done without any delay.
How many people are we talking about? There may be only a few such patients—I think that that is what the minister said—but you say that you require to change the system.
No official statistics have been kept, but you will see from the evidence that has been submitted, and we know from own evidence gathering, that we are talking about limited numbers. We need to be clear that, at the moment, there is no provision for such medical treatment and that is what the regulations will introduce. People have been doing a workaround, which is why the issue of STDCs came into play. As Ailsa Garland pointed out, a consequence of putting such people on STDCs is that most will be in Scotland for a longer period.
I have been listening to the discussion with interest, but I am still not entirely clear how the minister will ensure that the person authorised by a responsible medical officer to take someone into custody will have the appropriate experience and qualifications. I am also still not clear why we do not have a prescribed list. Furthermore, I am really concerned that one of our foremost mental health organisations has such reservations about the proposals. It has provided follow-up evidence to the committee in which it says that it remains concerned that the regulations do not include an appeals procedure and that they provide
“no access to a Mental Health Officer for people who will not be familiar with the law”.
I ask the minister to address those issues.
Ruth Wilson may want to take the question on someone being available to patients.
09:45
All patients will have the right to an independent advocate. As part of that service, the advocate will ensure that the patient is aware of their rights. The treating clinician will also have a role in ensuring that the patient is aware of what is happening to them and what rights they have.
Do you believe that there should not be a prescribed list? I am trying to understand your point. I cannot understand why you do not agree with what SAMH is asking for.
There is an existing list of prescribed categories of people; we are simply adding a new line to allow an RMO to say who, in the circumstances, would be the best and most qualified person to take a patient into custody.
As Ailsa Garland said, we are equalling up what happens to those who are involved in mental disorder offences and who are likely to abscond during the transfer process with what already happens in civil cases.
Why, therefore, is SAMH concerned about the regulations?
You raise a couple of different issues. The first issue, which we have discussed, is the addition of RMOs to the list of people who are able to authorise people who they think are suitable to take an offender into custody.
SAMH has raised separate concerns. For example, with regard to the Finnish human rights case that we have discussed, SAMH feels that there is a lack of proper process. We are saying that there is a process set out in the regulations that we feel is sufficient. It allows someone to be returned fairly speedily to their home jurisdiction, which would probably be best for them in the circumstances, rather than having them remain in a country that is not their own.
Okay—thank you.
Depriving somebody of their liberty is a huge step. For me, the issue is the reference to “any” person. A number of us have a problem with that, and the Government really needs to reflect on it. Do you recognise that that is a problem?
Two different issues are being amalgamated. The RMO issue is simply about adding to the list of people who can take an offender into custody for the purposes of returning them. That relates to absconding offenders in Scotland.
We are extending the existing regime for taking into custody and returning absconding persons to people from other EU member states, and we are allowing for medical treatment, which the 2003 act currently does not provide for.
While I have the floor, I should reiterate that we are using powers in the 2015 act to expand the regulation-making powers so that we can provide specifically for two different categories: first, we are extending the regime to people from the EU who abscond and, secondly, we are applying to all absconding persons the ability to be provided with medical treatment. That was fully debated as part of the bill process, and I submit that we are not doing anything particularly unusual in relation to the new powers that we have, as revised in relation to the 2003 act.
The second element that I am concerned about is the fact that, for those who abscond to Scotland, there is no legal right to challenge treatment and no right of appeal. I have a fundamental problem with that.
SAMH suggests that the regulations offer the possibility of deprivation of liberty for an unlimited period without appeal. We have no reason to expect that that would be the case. We have made clear from the outset our intention that the absconding regulations should be subject to specific conditions and that any treatment should be given only for a short period of time. We would hope that, in most cases, absconding persons will be returned to their original jurisdiction within a few days. We have consulted on the issue, and there was no clear consensus from respondents on what the relevant time period should be. That takes us back to your question about a short-term detention certificate.
Because there is a range of variables, for example whether the person is well enough to travel and what transport arrangements have been put in place, each case would be different, and there would have to be a clinical decision on what was best for the particular person. That will be supported by guidance to determine the best course of action. That is why we are saying that it would be inappropriate for the regulations to specify a time limit.
To clarify, we are talking about absconding people who are subject to measures equivalent to Scottish detention measures in their home jurisdictions. It is not that we are taking them into custody as an initial measure. They are already subject to measures in their own country, they have come to Scotland and it has been established that they have absconded. They are taken into custody for the purposes of return. So it is not—
I think that we get that.
Thank you.
I accept that the matter is extremely complicated, especially as most of us were not involved in the passage of the 2015 act. If the committee wishes, we could have an informal briefing to set out the issues in more detail and perhaps to answer more questions.
Thank you for the offer. We will consider that.
I would prefer to do that and to take the proposals away, rather than see the motion go down. That would not help anybody with the act.
Do you want to take the motion away?
I have heard what only a very few members feel about the regulations.
We are about to move to the debate on the SSI. We can have the discussion, and it is up to you whether you then withdraw the motion.
Well, if you want to have the discussion.
Thank you. Item 2 is the formal debate on the affirmative SSI on which we have just taken evidence. I remind the committee that members should not put questions to the minister during this formal debate, and officials must not speak in the debate either.
Motion moved,
That the Health and Sport Committee recommends that the Mental Health (Absconding) (Miscellaneous Amendments) (Scotland) Regulations 2017 [draft] be approved.—[Maureen Watt]
I am grateful for the clarity that the minister and her officials have sought to bring, yet it has not given me satisfaction that the concerns that have been outlined by fellow committee members and by SAMH in its briefing to us have been met. I do not think that an informal briefing on the technical aspects of the 2015 act would assuage that. I do not think that what is being asked of the Government by way of taking the regulations away and redrafting them is particularly onerous. I do not think that that will jeopardise the thrust or spirit of what the Scottish Government is trying to do.
If anything, what has been suggested will improve the instrument and will offer protection for both staff and patients regarding the observance of human rights, rather than leaving us open to future litigation at a European level.
I am speaking about this subject with a background of professional knowledge. I hear the concerns that some of my fellow committee members have, but I would offer them the reassurance about professional judgment being used in all areas and about the patient being at the centre of all care in mental health. That is how all healthcare professionals practise. The proposals are not as big a change to legislation as people might feel them to be. In practice, the proposals are about expediting patient care and, potentially, providing better safeguards, if people are currently practising outwith the guidance.
I cannot help but think that the regulations could be improved. The committee has raised concerns about the fact that the RMO would be able to authorise anyone to take an absconded person into custody, so clarity around the prescribed list would be helpful. We have also heard concerns about safeguarding people’s rights, the fact that no appeals procedure is outlined, the lack of access to a mental health officer and the fact that there is no mention of independent advocacy. Members have also raised concerns about the issuing of short-term detention certificates. I feel that the regulations could be brought back to the committee in an improved form.
I want to touch on what Alison Johnstone said. To date, we have worked hard to ensure that all legislation is built using a rights-based approach, but the regulations do not feel right in that regard. The convener raised two points, on challenging treatment and the right to appeal. We would all appreciate it if the SSI was rewritten to take those two points into account.
Minister, in reflecting on what the committee has said, do you still wish to pursue the motion?
Alex Cole-Hamilton perhaps wants the whole 2015 act to be revisited, but we are not in a position to do that. The subordinate legislation is bringing the act into play. As my officials and I have said, it is absolutely rights-based legislation. Further details will be set out in the code of practice—
Minister, we are very short of time, so I really need you to decide whether you want to withdraw your motion or pursue it.
I will press the motion.
The question is, that motion S5M-05753 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Haughey, Clare (Rutherglen) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Against
Briggs, Miles (Lothian) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Findlay, Neil (Lothian) (Lab)
Johnstone, Alison (Lothian) (Green)
Smyth, Colin (South Scotland) (Lab)
Abstentions
Arthur, Tom (Renfrewshire South) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
McKee, Ivan (Glasgow Provan) (SNP)
The result of the division is: For 2, Against 6, Abstentions 3.
Motion disagreed to.
I suspend the meeting briefly to allow the officials accompanying the minister to change.
09:58 Meeting suspended.09:59 On resuming—
Mental Health (Cross-border transfer: patients subject to requirements other than detention) (Scotland) Regulations 2017 [Draft]
Item 3 is the second instrument that we are looking at today. The minister is now joined by the Scottish Government officials Eleanor Stanley, policy officer in the protection of rights unit in the mental health and protection of rights division; Nicola Paterson, head of the protection of rights unit; and Fraser Gough, parliamentary counsel.
I invite the minister to make a brief opening statement.
I am introducing three instruments covering cross-border issues. Two relate to cross-border transfers and the third relates to cross-border visits. The overall aim is to amend the regulations to reflect the changes in the 2015 act and, in the case of the cross-border transfer regulations, to improve their operation.
The 2015 act introduces a requirement that regulations relating to the cross-border transfer of patients detained or otherwise in hospital should make provision for the named person to appeal against a decision to transfer a patient from Scotland. There are also changes in the 2015 act that allow certain persons to act where there is no named person. Those changes are reflected in these regulations, and certain other appeal rights and notification requirements are introduced, which are based on feedback from stakeholders under public consultation.
The 2015 act also allows for provisions in all three sets of regulations to be extended to patients who are subject to measures in other European Union member states. There is currently no process under the regulations for transferring a patient to Scotland from outwith the United Kingdom. That would include a situation in which somebody from Scotland who is taken unwell and detained under mental health legislation while on holiday in an EU country wants to return home to Scotland. By extending the provisions, we aim to fulfil the intention of the 2015 act in providing parity of treatment under the law for patients who are subject to measures in other EU member states. Similarly, changes to cross-border visits legislation will extend the ability of a patient to undertake an escorted visit—for example, to visit an unwell relative—to patients who are subject to measures in other EU states.
In addition to that, there are adjustments to the process that applies when the Scottish ministers make a decision to grant a warrant to transfer a patient from Scotland, which include introducing a fast-tracked transfer process for cases in which the patient and any named person agree to such a transfer. That change is based on feedback from stakeholders that it would be of benefit to any patient who agrees to a transfer, is eager to transfer quickly and does not intend to appeal the transfer. It will avoid unnecessary delay when the patient is in agreement with the proposed move.
I have set out the most significant changes in the regulations. The bulk of the changes relate to the transfer of patients detained or otherwise in hospital. Corresponding changes have been made, where relevant, to the regulations concerning the transfer of patients who are subject to community measures. The changes across the regulations, in particular the cross-border transfer regulations, will improve the effective operation of those regulations to the benefit of individuals who are transferring.
Thank you very much. As there are no questions from members, we will move to item 4, which is the formal debate on the affirmative SSI on which we have just taken evidence. I remind the committee and others that members should not put questions to the minister and that officials may not speak in the debate. I invite the minister to move motion S5M-05951.
Motion moved,
That the Health and Sport Committee recommends that the Mental Health (Cross-border transfer: patients subject to requirements other than detention) (Scotland) Regulations 2017 [draft] be approved.—[Maureen Watt]
Motion agreed to.
Mental Health (Cross-border transfer: patients subject to detention requirements or otherwise in hospital) (Scotland) Amendment Regulations 2017 [Draft]
Item 5 is the third instrument that we are looking at today. I invite the minister to make an opening statement.
These regulations were covered in the earlier statement.
As there are no questions from members, we will move to item 6, which is the formal debate on the affirmative SSI on which we have just taken evidence. I remind the committee and others that questions should not be put to the minister during the formal debate and that officials must not speak in the debate. I invite the minister to move motion S5M-05950.
Motion moved,
That the Health and Sport Committee recommends that the Mental Health (Cross-border transfer: patients subject to detention requirements or otherwise in hospital) (Scotland) Amendment Regulations 2017 [draft] be approved.—[Maureen Watt]
Motion agreed to.
Mental Health (Cross-border Visits) (Scotland) Amendment Regulations 2017 [Draft]
Item 7 is the fourth instrument that we are looking at today. Did you also cover these regulations in your statement, minister?
Yes.
As there are no questions from members, we move to item 8, which is the formal debate on the affirmative SSI on which we have just taken evidence. Members should not put questions to the minister and officials must not speak in the debate. I invite the minister to move motion S5M-05752.
Motion moved,
That the Health and Sport Committee recommends that the Mental Health (Cross-border Visits) (Scotland) Amendment Regulations 2017 [draft] be approved—[Maureen Watt]
Motion agreed to.
Thank you very much. I suspend the meeting to allow a changeover of the minister’s officials.
10:06 Meeting suspended.10:06 On resuming—
Criminal Justice and Licensing (Scotland) Act 2010 (Consequential Provisions) Order 2017 [Draft]
Agenda item 9 is to consider the fifth instrument that we are looking at today—the draft Criminal Justice and Licensing (Scotland) Act 2010 (Consequential Provisions) Order 2017.
The minister is joined by Scottish Government officials Innes Fyfe, who is the team leader in the mental health and protection of rights division, and Lindsay Anderson, who is a solicitor. I ask the minister to make a brief opening statement.
The final instrument that is subject to affirmative procedure that I present today relates to an amendment to the Mental Health (Care and Treatment) (Scotland) Act 2003. The provision will help to clarify that nurses are able to use the power to hold patients for up to three hours to allow an examination to take place, if the patient is in hospital for treatment as part of a community payback order. The Mental Health (Scotland) Act 2015 act will simplify the nurses’ holding power in order to support practitioners and to help patients to know their rights in such situations. The power is available in respect of patients who are in hospital by virtue of a probation order with a mental health treatment requirement.
The community payback order was introduced by the Criminal Justice and Licensing (Scotland) Act 2010 and has largely replaced the probation order. The mental health treatment requirement is rarely used by the courts when making community payback orders. However, it was considered helpful to put it beyond doubt that persons who are in hospital for mental health treatment by virtue of a community payback order can be detained in that way.
To be clear, the instrument does not extend the reach of the nurses’ holding power provision; it simply clarifies it to reflect that probation orders have been largely replaced by community payback orders.
Community payback orders were the result of legislative change arising from the Criminal Justice and Licensing (Scotland) Act 2010, so why has there been such a delay?
The 2015 act’s provisions that simplify the nurses’ holding power are due to come into force this month. The power is described as being available in respect of patients who are in hospital by virtue of a probation order with a mental health treatment requirement. As I have said, the community payback order was introduced by the Criminal Justice and Licensing (Scotland) Act 2010 and has largely replaced the probation order. Although the law operates in such a way that the holding power can be interpreted as covering the new community payback orders, it was considered that it would be helpful to state clearly in the legislation that persons who are in hospital for mental health treatment by virtue of a community payback order could also be detained in that way.
What training and training materials will be made available for mental health officers when the regulations come into force?
The regulations represent improvements that support practitioners. There are no wholesale changes, such as might have been seen with the introduction of the 2003 act. Officials have been working with the Scottish Association of Social Workers and Social Work Scotland on implementation of the 2015 act, including through the instruments that we have been debating, and they have been providing content and information to support updates to local training, which is the best environment in which to introduce the changes to practitioners.
Thank you.
There are no other questions, so we move on to agenda item 10, which is a formal debate on the affirmative SSI on which we have just taken evidence. I remind the committee and others that members should not put questions to the minister during formal debates and that officials may not speak in the debate. I invite the minister to move the motion.
Motion moved,
That the Health and Sport Committee recommends that the Criminal Justice and Licensing (Scotland) Act 2010 (Consequential Provisions) Order 2017 [draft] be approved.—[Maureen Watt]
If no members wish to contribute, the question is that motion S5M-05949 be agreed. Are we agreed?
Motion agreed to.
Mental Health Tribunal for Scotland (Practice and Procedure) (No 2) Amendment Rules (SSI 2017/172)
Mental Health (Conflict of Interest) (Scotland) Regulations 2017 (SSI 2017/174)
Mental Health (Patient Representation) (Prescribed Persons) (Scotland) Regulations 2017 (SSI 2017/175)
Mental Health (Certificates for Medical Treatment) (Scotland) Regulations 2017 (SSI 2017/176)
Item 11 is also subordinate legislation. We have four instruments that are subject to negative procedure to consider. Does the minister have any comments to make on the instruments?
No.
Do members have any comments?
Members: No.
The Delegated Powers and Law Reform Committee has not yet considered the instruments. The Health and Sport Committee will therefore consider them again at our next meeting following that committee’s report on the instruments.
I thank the minister for her attendance this morning. I suspend the meeting to allow for a change of panel.
10:12 Meeting suspended.10:15 On resuming—
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