Official Report 190KB pdf
We move on to the substantial part of the meeting in which we will take evidence on the Mental Health (Scotland) Bill. Our first witness is Dr David Love, who is the joint chairman of the Scottish general practitioners committee of the British Medical Association. I welcome Dr Love to the meeting. Do you want to make a short statement, after which we will ask you questions, or will you move straight to questions?
I am content to proceed straight to questions.
Does the general practitioners committee agree with the general principles of the bill? Has there been adequate consultation of your organisation on the content of the bill?
Yes. We agree with the principles of the bill and feel that there has been adequate consultation.
Is it acceptable for the principles of the bill to be set out as they are at present or would you rather see them included in the bill?
We feel that it would be preferable for the principles to be included in the bill. That would set the bill in context.
Do you think that the section 31 provisions for emergency detention are appropriate?
Yes. They mirror fairly well what happens at the moment and describe satisfactorily the situation in which the power might be used appropriately.
Are the provisions in section 31 reasonably understandable?
As a general practitioner, I am quite happy with the description that is given in the bill.
On page 2 of your submission you talk about your concerns about getting access to mental health officers, especially in an emergency and specifically outwith normal working hours. Do you have any suggestions, other than having more mental health officers, of ways in which that problem could be addressed? The Royal College of Psychiatrists has suggested that a code of practice should require that local authorities provide a simple mechanism for medical practitioners to find and consult mental health officers. Do you agree with that view?
GPs are not familiar with the means of getting in touch with mental health officers as they rarely use the procedure, so the process can take a lot of time and several phone calls. It would be helpful to have clear guidance in each area that would detail how to contact a mental health officer efficiently. Once the mental health officer has been contacted, there are problems with getting speedy attendance, due to the mental health officer work force provision. That is a particular problem in rural areas, where there are long travel times, and in any area if the mental health officer is required in an emergency situation out of hours. Often, patients are sectioned without the consent of the mental health officer, not through the choice of the GP, but because of the constraints inherent in the system.
Section 32 places a requirement on GPs to notify a number of people about various matters after authorising emergency detention. Do you think that a seven-day deadline for doing that is realistic?
We would prefer it if all the information required as a result of the emergency detention were gathered at the time. Obviously, we are concerned about paperwork and bureaucracy and would like to keep that to a minimum, but we accept that depriving someone of their liberty by means of an emergency detention order requires justification. If the information were collected at the time, there would be no need for a subsequent report. That is particularly important if you consider out-of-hours situations, in which patients are often attended by out-of-hours co-operatives, which may well be employing locums who are not the patient's GP. Locums, by their nature, are mobile and difficult to track down. In those situations, it might be quite difficult for locums to comply with the requirements in the bill.
Page 2 of the submission from the Royal College of Psychiatrists talks about bureaucratic responsibilities and issues of confidentiality. How could the administrative burden be simplified? Could a standard form that captures all the relevant information be created? Should hospital managers issue to the GP who has granted the certificate a form that they must return to the hospital and which would then be passed to the Mental Welfare Commission for Scotland? Is either of those suggestions helpful?
On the issue of confidentiality, as I said, GPs will not use the procedure often and will therefore not know to whom in the local authority to send the form. The instruction is vague. Further, in rural areas, where everyone knows everyone else, there would be great concern about informing a local authority that someone has been subject to an emergency detention order.
Are you saying that, under the General Medical Council's rules and guidance, you would not be allowed to pass on patient information to a local authority, or that that would not be good practice?
If that were required by law, the GMC would be understanding, but such a task would still cause GPs discomfort. The simple way around that is to pass the information on to hospital authorities, which can pass it on under their obligations.
I was struck by the view in your submission that part 5, which contains the emergency detention provisions, might be used as
Emergency detention and short-term detention are such important measures that patients should be fully assessed and, ideally, assessed by a psychiatrist before those measures are taken. In an ideal world, we would not use emergency detention—we would use only short-term detention, which involves assessment by a psychiatrist.
That is a worry about resources, rather than a fear that the bill might exacerbate the over-reliance on emergency detention.
It would help if the code of practice said that when compulsory detention is being considered, ideally part 6 procedures should be used and that part 5 is less preferable. However, the choice of which part to use is often dictated by service provision considerations.
You suggest that when GPs cannot have a patient seen by a psychiatrist, they use the emergency procedure to deal with a crisis. After a patient has been detained for 72 hours under the emergency procedure, could they still not have seen a psychiatrist and be released back into the community or discharged?
I hope that that situation is unusual. I have never come across it. If the emergency detention procedure is used, the patient is usually removed to a psychiatric hospital within a few hours. It is almost unheard of for such a patient not to see a psychiatrist within the 72 hours once they are in a hospital. The problem is getting a psychiatrist to see a patient in an emergency in the community, before that person goes to hospital.
Is there no possibility of a psychiatrist in a hospital being overwhelmed by, and unable to cope with, the emergency admissions that GPs have sent?
I hope not. GPs use emergency detention procedures infrequently. The average volume of patients admitted each week under section 24 of the Mental Health (Scotland) Act 1984 is small.
At least in theory, section 19 leaves the door open to non-psychiatrists, including GPs, authorising short-term detention. Do you expect that to happen frequently? If so, would that be appropriate?
I am sorry—which section are you referring to?
Section 19, which is in part 4 on page 10 of the bill, under the heading "Approved medical practitioners".
Approved medical practitioners will generally be psychiatrists, not GPs.
But section 19 does not make that clear, does it? Furthermore, section 35 says that the person carrying out the medical examination must be an "approved medical practitioner", but it does not spell out that the practitioner must be a psychiatrist. Do you interpret section 19 as meaning that the practitioner must be a psychiatrist?
Yes, certainly. I think that, somewhere, it says that special training is required before someone is approved. The average GP will not be an approved medical practitioner.
Is there much special training for GPs at present?
Very few GPs would meet the criteria in the bill to be an approved medical practitioner.
Should section 19 of the bill be made more specific and include the word "psychiatrist"? At present, section 19(1) begins:
It would be helpful to have that explained and clarified. That could be done in the code of practice. However, very few GPs will be approved medical practitioners. There may be value in leaving some flexibility to cover the situation in rural areas, where it may be sensible for a GP to undertake appropriate training to become an approved medical practitioner. That could well ease the problem of service delivery in remote areas.
When we visited a hospital in Glasgow, we heard about the severe shortage of general psychiatrists. In your view, is the shortage of psychiatrists in Scotland severe or moderate?
The shortage is significant. The latest figures show that there are 30 consultant vacancies at present and that 20 per cent of those have been vacant for more than six months. The additional number of psychiatrists that will be required to meet the additional work load caused by the new tribunals has been estimated at between 18 and 28. However, the Royal College of Psychiatrists will be in a better position to inform the committee.
I would like to ask Dr Love for some clarification on his submission. On page 2, the first paragraph on short-term detention indicates that, at present, patients who are periodically reviewed for a short-term detention are not necessarily reviewed by a psychiatrist. You say that that
The paragraph refers to the sort of situation where, for example, a patient has taken an overdose and has required medical treatment for the effects of that overdose. The patient would obviously require psychiatric assessment and supervision. At present, the procedure is that the non-psychiatrist consultant in charge of the patient is designated as the responsible medical officer. We feel that it would be preferable for a psychiatrist, working in association with the medical unit, to be so designated. That would give the patient the benefit of having expert assessment of their problems.
In my area, we have psychiatrists on call for accident and emergency. Does that not happen elsewhere in Scotland?
It happens variably throughout Scotland, although it should be the norm. The point is that the designated responsible medical officer should be an on-call psychiatrist who can give an expert assessment of a patient's mental disorder, not a consultant who does not have psychiatric expertise.
During our visit to Parkhead hospital in Glasgow, we heard anecdotal evidence that there is a difficulty in detaining or compelling homeless people or people who live in hostels who exhibit mental health problems that require treatment. Such people usually do not have a GP. Do you agree that that is a problem, or do GPs deal with it at present? Will the bill address that problem and, if not, how might it be addressed?
The bill will be a huge advance on the present situation. The present problem is that we have to use the procedures of section 18 of the Mental Health (Scotland) Act 1984, under which, as a default, the patient's GP should be involved. The new proposals on compulsory treatment orders in part 7 of the bill make it clear that two psychiatrists can carry out the procedure. There is an option for the patient's GP to be involved, but that is not a necessity. At present, problems can arise in out-of-hours situations when locums are involved, if the GP does not know the patient, or if the patient has recently arrived in an area and does not have a registered GP. Those situations have been a barrier to providing care and treatment for some patients. The proposals in part 7 will be extremely helpful.
Page 3 of your submission states:
If a police officer finds a person in a public place who is a danger to themselves or others, the officer will have an obligation and the authority to take that person to a place of safety, which is simply defined as a hospital. At present, disturbed patients are sometimes taken to hospitals such as long-stay geriatric hospitals and left there. Disturbed people often wander and must be supervised by staff while they await the appearance of a psychiatric team, which, in rural areas, can take a considerable time. During that time, a member of staff will often be tied up with the patient, who has been placed in an inappropriate hospital, which is to the detriment of the care of the patients in that hospital.
The point is important. I was out with the police on Saturday night. They cannot make judgments about people's psychiatric condition. Do you feel that adequate guidance and protocol has been given to ensure that the police act correctly? The police are in a difficult situation because they have not been trained to deal with such people. Should we amend the bill to ensure that people are not taken to an inappropriate place?
Yes. Police officers have to make a judgment, and in taking a person to a place of safety, they have made, in effect, a judgment that they are not dealing simply with someone who has committed a criminal act. Rather, they suspect—as best they can, without having received special training—that the person may be suffering from a mental disorder. The officers rightly feel that, rather than put the person in the cells, they should take them to a more appropriate place. The bill at the moment refers simply to "a hospital", but we need to give guidance to the police on what is an appropriate hospital. The word "appropriate" should possibly be inserted in the bill. The code of practice could define more fully what is meant by an appropriate hospital.
I seek clarification of the second paragraph on page 3 of your submission, which refers to compulsory treatment orders in the community. You state that such orders are appropriate provided that, in the absence of a specific local agreement,
There is a slight problem, in that "responsible medical officer" is not clearly defined in the bill. The explanatory notes describe the "responsible medical officer" as
But a GP would provide all the other medical services that the individual required.
Absolutely. If the patient has an inter-current illness of whatever nature, their GP would continue to treat them. We are trying to distinguish between the normal treatment that GPs provide to somebody who lives at home—of course, people who are subject to compulsory treatment orders would continue to receive that treatment—and the specialised, compulsory treatment that is authorised by the compulsory treatment order, which should be supervised by a psychiatrist. In that context, the psychiatrist should be the responsible medical officer.
Is that distinction clear enough currently?
It is reasonably clear. I am not sure that there is a huge amount of experience of compulsory treatment orders as they are at present. I do not think that they are used extensively but, undoubtedly, under the new bill their use will be much more common.
But with individuals who suffer from drug addiction, for example, is it not true that in dealing with their abuse, GPs refer them to drug addiction services for other medical services, rather than deal with them themselves?
Yes. Practice varies according to the training and expertise of the GP. The difference with drug addiction services is that the patient generally participates voluntarily in a management programme. We are talking about compulsory treatment orders, where the patient is allowed to be treated in the community under strict conditions. That does not apply to the treatment of drug misusers.
Would there ever be appropriate circumstances under compulsory treatment orders in which a GP in the community could be responsible for a patient's psychiatric medication?
That would be very unusual. Unless the GP had had special training, such a situation would probably be unacceptable to the patient. Because a compulsory treatment order represents a considerable restriction of a patient's freedoms, treatment should be supervised by people who have had specialist training. GPs are not trained to carry out that role. In patients' best interests, treatment should be supervised by psychiatrists.
The bill makes provision for individuals to make advance statements about how they wish to be treated or not treated in the event of their suffering from a mental disorder. Do GPs think that that is a good idea? If so, do they think that GPs should assist individuals to draw up such statements?
We have not thought deeply about that issue. Advance statements are important and must be heeded, but I am not certain that GPs should have a role in the production of such statements. It would probably be best for the individuals concerned to produce them in consultation with their friends and relatives.
Thank you for your evidence.
I would like to make one or two points about the submission, which I had to put together quickly to meet the committee's timetable. Some of the statements that I make in the submission reflect a quick read of the bill.
I am amazed that anyone can read the bill quickly.
The submission was as detailed as I could make it within the short time that I had. After consulting colleagues, I have picked up one or two points in the submission that either reflect my lack of understanding of the bill or relate to issues on which we are not unanimous.
We will return to the issue that you just raised.
Are the criteria for authorising short-term detention in section 35 appropriate?
Yes. The decision-making ground—that a person's mental disorder affects his or her decision-making capacity—forms a crucial aspect of the bill. If the disorder does not affect a person's decision-making capacity, it is abundantly clear that the person should not be subjected to compulsion. In cases of short-term detention, it is important not only to assess what medical treatment should be given, but to give that treatment.
On page 2 of your submission, you mention that one criterion that is not included in the bill is that
Thank you for reminding me of that. On emergency detention, the bill says that application for either a short-term order or a compulsory treatment order "would involve undesirable delay." I expect that it should say that one would apply for a short-term detention certificate because applying for a compulsory treatment order "would involve unnecessary delay."
What does it mean to you that the granting of a short-term detention certificate is necessary?
Do you mean the general necessity for such a certificate or its necessity compared to a compulsory treatment order?
We want to know your view because you deal daily with such matters.
"Necessary" means that there are no other ways of managing a person without using detention and compulsory treatment; that is, that one cannot treat the person safely without the person's admission to hospital under such circumstances or that one cannot treat the person on a voluntary basis under such circumstances. That could be explained more clearly in the bill.
I understand why one of the criteria for emergency detention is that it would cause unnecessary delay to apply for short-term detention. Should the same reasoning—that a CTO would cause unnecessary delay—apply to short-term detention? Is not the purpose of a CTO slightly different from the purpose of short-term detention? A CTO is for treatment whereas assessment is one of the purposes of short-term detention. There might be merit in applying for a short-term detention certificate even if there would be no unnecessary delay. I am not sure that I agree with your point.
That is a valid argument. Under the present law, we would apply for emergency and short-term detentions only in a situation where going through the sheriff and section 18 of the Mental Health (Scotland) Act 1984 would take so long that goodness only knows what would happen to the person in the meantime. One could argue that point both ways.
I want to go back to the answer that you gave on short-term detention certificates' being "necessary". You interpreted that to mean that you would not be able to get a voluntary agreement from the patient. I understand that Millan recommended that that be put in the bill explicitly as one of the criteria. Would you support that, rather than the vague wording that the certificate is "necessary"?
I would support that.
Do you generally support the main Millan principles' inclusion in the bill?
As I have said, it is an unfortunate omission that the bill's principles are not set out clearly at the beginning, as they are at the beginning of the Adults with Incapacity (Scotland) Act 2000. There were problems with previous drafts of the bill and, because the principles were not clearly spelled out, some of the bill was a bit muddled. The latest version is much better, but it would read better if the principles that underpin the bill were set out clearly. I support thoroughly the Millan principles' inclusion.
One of the bill's aims is to move away from a situation in which the majority of patients are detained first through emergency detention, to a situation in which they are detained first through short-term orders. Is that a good policy and could one of the consequences of it be that people would end up being detained for longer?
It is a good policy. I have often had to detain people under emergency orders. Those orders must run for 72 hours before the person goes on to short-term certificates, which is silly. The real issue is getting the person on to a short-term certificate, under which they have the right to receive the treatment they need and to the act's protection in terms of treatments that require special safeguards. That right and the act's protection are not available under emergency certificates. I am firmly of the view—I think that my colleagues all agree—that emergency certificates should be used less and less. We welcome the opportunity to put people on to short-term detention certificates right away. We also think that when a person is detained under an emergency certificate, that should either be rescinded or the person moved to a short-term certificate at the earliest appropriate opportunity.
It is good to see Dr Lyons again. One or two points in relation to my question have been covered, but is there anything else that Dr Lyons would like to mention about the arrangements for short-term detention? Might there be any difficulties in using short-term detention orders that would result in inappropriate use of emergency detention provisions?
If I am seeing somebody at home who is in fairly urgent need of psychiatric treatment, I would much rather use a short-term order than an emergency order. The only issue is the availability of mental health officers, which I have commented on in the section of my written submission that deals with emergency detention orders.
You probably heard some of the previous evidence, which referred to the severe shortage of psychiatrists, which you mentioned when some of us visited you at Parkhead. The previous witness from the BMA stated that there are currently 30 consultant psychiatrist vacancies in Scotland, of which 20 per cent have been vacant for more than six months. The BMA estimates that between 18 and 28 new psychiatrists will be needed to help man the tribunals and so on. When we visited Parkhead, I think that we were given the statistic that about 50 per cent of mental health officer reports were not available or were delayed simply because of the shortage of staff.
I am sorry, but I did not hear the evidence from the previous person first, because I was slightly late as a result of the Edinburgh traffic and roadworks, which I am sure are there to prevent Weegies from getting into the city—
They did not work, then.
No, but it was a nice try. Secondly, the sound system was not working where I was sitting.
When we met in Glasgow, you said—tellingly—that you and your colleagues would prefer legislation that would make it easier to reduce restrictions but harder to increase them. Will you expand on that?
I have been working on that. I came up with the wording on the spur of the moment and I quite like it.
I will pass the questioning over to another Weegie representative who made it through the wire.
Perhaps you answered this question earlier when you talked about the appropriateness of time scales. Do you foresee any problems with the time frames that are laid down in parts 5 and 6 of the bill? I am thinking in particular of periods of detention or obligations on doctors and mental health officers to report certain matters to various bodies.
One or two of the time scales are unreasonable not so much for doctors and mental health officers, but for hospital managers, who will have to report to the Mental Welfare Commission for Scotland within 12 hours. What will they do on a Friday night? Will they leave a message on the answering machine? Perhaps instead the bill should say that, if reporting on a detention cannot take place within 12 hours, it should take place within 12 working hours or whenever is reasonably practicable. The provision as drafted will not work.
I think that the BMA suggested that such an obligation should be placed on hospital managers instead of on general practitioners. Do you have a view on that?
I agree with the suggestion. Hospital managers are used to dealing with such situations; they do so every day. They receive certificates and know automatically who to fire them to. However, because GPs carry out emergency detentions once in a blue moon, the chances that they will know or remember what to do are not high.
Let us return to the practical arrangements. It is always difficult to separate principles from practicalities, because the principles can be undermined if the resources are not there. There is a balance to be struck between ensuring that people who are subject to detention procedures get the professional attention that they require, and ensuring that the work of psychiatrists with non-detained patients is maintained and does not suffer as a consequence. Do parts 5 and 6 of the bill strike the right balance? More generally, do you share that concern? The BMA said that it is inevitable that the new work will take precedence over routine patient care, which could be to the detriment of patients. What are your views on that?
That is a danger, especially given psychiatrists' responsibility to sit on tribunals. However, only a tiny proportion of my work deals with people who are detained. The vast majority of my clinical work deals with people who are being treated co-operatively and voluntarily in a participative way. If the bill supports the principle of reciprocity—that with compulsion comes a duty to provide service—I will not disagree with that. However, I would have some difficulty with that reciprocity if it meant that people who were not detained received an inferior service. That is something to watch out for, generally.
The BMA's GPs committee says that it should be made clear that the medical officer who is responsible for a patient who is under short-term detention must be a psychiatrist, because that will help to protect the patient. The same committee says that, if no psychiatrist is present at the hospital, the bill should allow for a psychiatrist to come in from another hospital. Do you agree?
Yes. I have read the BMA's submission. A person may be detained in a general hospital ward, rather than a psychiatric ward. An example might be a person who is suffering from acute delirium, which is a mental disorder, although the underlying basis of it is a physical disorder, and therefore can be treated appropriately under the Mental Health (Scotland) Act 1984. In such a situation, the patient may be in a general hospital ward and there may be no psychiatrists in that hospital—in fact, that would almost certainly be the case. There must be some mechanism whereby, although the person who is in charge of the patient's day-to-day care may be a consultant physician, the responsible medical officer for the mental health side would have to be a psychiatrist. There is no question about it.
In your submission, on section 32 on emergency detention, you say,
What you have said applies to CTOs, which is not what I came to the meeting to discuss; I came to discuss parts 5 and 6 of the bill.
I was thinking of work loads.
You mention an anxiety that we all have about the potential work load that would ensue from CTOs.
As Dorothy-Grace Elder said, 30 psychiatrists are needed at the moment. Implementation of the bill will mean that up to 28 more psychiatrists are needed, so another 58 psychiatrists will be needed if the bill is to be implemented as it should be. Last week, it was suggested that implementation should be delayed. Can the bill realistically be implemented when the key staff who are required to implement it properly are not there? Where can 58 new consultant psychiatrists be found in the next couple of years?
I mentioned that five years would be required to build up the work force. Perhaps the bill should be implemented on a phased basis and perhaps parts of it cannot be implemented until the manpower exists. That approach would not need to hold up the good and necessary emergency and short-term detention reforms, which is what I came here to discuss. CTOs may need more examination. That is to say not that CTOs are wrong in principle, but that implementation of the bill may need to be delayed or phased, given the manpower issue. Perhaps there are certain things that we cannot do.
How will the shortage of manpower affect the implementation of the bill as it stands?
The shortage of manpower will not affect implementation of parts 5 and 6 of the bill.
Will it affect your other patients?
As I said, I came to talk about parts 5 and 6 of the bill.
From what you have said and what your colleagues said last week, it seems that a number of professions, as well as members of the committee, share the anxiety about trying to implement legislation that we cannot deliver in practice. We take that anxiety on board, although you are right to say that you have been invited specifically to discuss parts 5 and 6 of the bill. We will leave the matter there.
Section 32 deals with notification by a medical practitioner and lists who should be notified within seven days. Do you see any problems with that procedure?
As I said, I see problems with its mechanics. The list is perfectly reasonable, but the mechanics should not be the medical practitioner's duty; they should be the duty of the hospital managers.
You approve of the removal of a relative's authority to consent to a person's being detained. However, many carers to whom I have spoken feel strongly that we are speaking about someone who knows that person best. Do you believe that it is still appropriate to consult the patient's named person or relative as part of the detention process?
Yes. That is mentioned in relation to short-term detention certificates. We feel strongly that the named person should be consulted. As the bill says,
What do you think?
Personally, I think that the responsibility should be the practitioner's, whereas some of my colleagues think that it should be the MHO's. There is no reason why both should not have the responsibility.
Would it be appropriate to ask a question on your views on advocacy for the patients? How strongly or how well or otherwise do you rate the presence of an advocate for the patient in appropriate circumstances?
As someone who battled long and hard to get advocacy services for older people in Glasgow and succeeded in doing so, I am a great supporter of advocacy and I am pleased that the bill contains proposals for advocacy.
Thank you for your oral and written evidence, Dr Lyons. Do you have any other points to make or have we covered everything that you wanted to say?
I do not think that there is anything else. I will just ask Jacqueline Atkinson whether she thinks that I have missed anything.
No.
She thinks that you have done all right. We will take up your earlier point of clarification. Thank you for your evidence and for meeting with us when we came to Parkhead. We appreciate that.
My pleasure. Thank you for having me.
Our next witnesses are Ruth Stark and David Hewitson from the British Association of Social Workers. Welcome to you both and thank you for your written submission. If you would like to make a short statement before we go on to questions, we will be happy to hear it. If not, we will just go on to questions.
Could I just begin by making a correction to our written submission? The opening statement, which says that we welcome the principles at the outset of the bill, was clearly a serious error on our part.
Even I spotted that one.
That came of using earlier drafts. We would be very pleased to see those principles clearly spelled out. We think that the Millan principles are excellent and should underpin the practice behind the legislation.
That is fine. I shall kick off by asking whether you agree with the general principles of the bill and whether you consider that there has been adequate consultation.
People have struggled hard to get the bill right. I know that some of the areas that we will cover today have been subject to debate and discussion. BASW has been very much involved in that. On the principles, we have learned much in practice since the draft proposals were issued and people have struggled to iron out the niggles in the bill as introduced. In general, I believe that the bill has the potential to become a very good mental health act.
Could you outline in broad terms how you envisage the main role of the mental health officer in short-term detention? What does that add to the procedure?
As officers of the local authority, we are one stage removed from the doctor and we are not answerable to the doctor as part of his or her clinical team. What I bring as a mental health officer is a view of the person in their social context. That is not to say that the doctors from whom you have heard this morning would not see the person in their social context, but that is the tint in my spectacles—protection of people's rights and liberties comes as part of social workers' core beliefs. That brings balance to the system and the stronger that voice is in the system, the better that check and balance will work.
Do you think that the voice envisaged for MHOs in cases of short-term detention is strong enough?
As I understand it, a consultant will not be able to go fishing around for a tame MHO. Under the bill, consultants certainly cannot go off to a desperate nearest relative to circumvent the procedure. If there are good reasons why people cannot be detained, that will be spelled out.
We have just heard from the psychiatrist, Dr Lyons, that a psychiatrist is perhaps best placed to consult the nearest relative—although that was his personal opinion. What is your view?
The important thing is that any information is brought into the discussion between the psychiatrist and the mental health officer. I take the point that was made about the issue being different in rural areas and in urban areas, where distances are much shorter. It is important to see the person in their social context and to get the whole picture. The doctor and the MHO go in on a spot-check basis, if you like. They may know the person over a long period, but sometimes they will not. Getting information about the longer-term situation is as important for the medic as it is for the whole process of depriving people of their liberty. It is obviously important for that, too, but it is part of the overall assessment of the person.
I will pick up on a point that Dr Lyons made about discussions with the nearest relative in respect of granting short-term detention certificates. Dr Lyons mentioned that there was some debate about whether that should be done by psychiatrists or mental health officers. What are your thoughts on that?
Someone has to have a discussion with the nearest relative. I understand that there is a clear duty on the mental health officer to identify the named person. Although I looked through the bill, I could not find a provision under which we have to contact the nearest relative and discuss the situation with them. It would seem that we have to identify them, but that is not good enough. Am I missing something?
I understand that the bill sets out that the medical practitioner should do that.
Contact the nearest relative?
Yes. The MHO has to identify the nearest relative, but the medical practitioner has to talk to them.
Regardless of whether that is the duty of the mental health officer or of the doctor, the nearest relative has to be consulted. The information is not required solely for the discussion about whether the person should be detained; it is good medical practice for the doctor to have it.
On page 1 of your submission, you say:
Under some circumstances, that is correct.
I thought that the duty was a statutory duty.
There are statutory and non-statutory reports. In the City of Edinburgh Council, we try to provide both such reports, but I understand that other local authorities provide only statutory reports. If a mental health officer is involved in the process of achieving consent, either at the emergency admission or the short-term detention stage, providing a social circumstances report is not a statutory requirement on the local authority. If the authority has a half-decent MHO service that is out in the community giving lots of consents, the statutory duty to provide social circumstances reports will apply relatively rarely. Nonetheless, good practice sets down that, where the report would add value to the whole process, the report should be provided.
In evidence last week from the Mental Welfare Commission for Scotland and the Royal College of Psychiatrists, we heard that only 50 per cent of the statutory social circumstances reports were being provided. Section 38 imposes a duty on mental health officers to prepare social circumstances reports after short-term detention has been authorised. Given the evidence that we heard last week, will MHOs have the resources to fulfil that role?
The figure that you cite slightly hides the fact that some reports are done but appear late and that lots of non-statutory reports are prepared. Nonetheless, I accept that figure; I have no way of challenging it.
Section 38(3) appears to give mental health officers wide discretion in deciding whether to produce a social circumstances report. Given the acknowledged recruitment crisis and resource problem in social work, and the pressure that mental health officers are under, do you feel that many of them may choose not to produce reports? Might that not be a failing in the implementation of the bill?
I know that section 38(3) has been struggled over. I was not part of that struggle and I do not want to betray colleagues who have sweated blood over the provision. However, I am concerned, although I do not think that my MHO colleagues will easily walk away from their responsibilities.
They are doing so at the moment. Last week we heard that only 50 per cent of statutory reports are produced. If mental health officers are walking away from their responsibilities at the moment, what will they do when the bill is implemented?
I repeat what I said a minute ago. Until a couple of weeks ago, I administered the MHO service in Edinburgh, so I know that efforts are being made to make clear to MHOs which reports are statutory.
Would you be more comfortable if you had an absolute responsibility to fulfil the requirement to provide the report, rather than having the discretion to do so?
No. Section 38(3) is good and useful, although you might want to have a backstop position. For example, if the Mental Welfare Commission felt that it wanted a report in a particular case, perhaps it should have the power to instruct that a report be provided. That would be reasonable. However, if a full social circumstances report—SCR—had been provided on someone who had been detained a month ago, there would be little or no point in my preparing a further report for everyone. If that information is available to the consultant and the mental health officer, why waste valuable social work time by going through the process of preparing another report?
No one is asking you to reinvent the wheel every time. We are much more reasonable and professional than that. However, do you acknowledge that there are serious concerns?
I acknowledge that. I would have concerns that the provision opens a large loophole.
Are you suggesting that, given that the power of discretion in this section is wide, there should be a backstop position whereby somebody else's discretion could counteract the initial discretion? You suggested that the Mental Welfare Commission could fulfil that position, but could the approved medical practitioner or some such person also query an MHO's decision not to provide a report?
A copy of the reasons goes to the responsible medical officer and the Mental Welfare Commission, and perhaps either of them could insist on a report. I do not think that mental health officers would do anything other than take their responsibility seriously, but they could be leant on and perhaps some sort of backstop could be facilitated.
I share your concerns about resource-driven decisions being made. Should the bill contain any other safeguards? The tribunal system seems to be getting pulled into everything, but could it act as a safeguard or could an advocacy service be established? It strikes me that there must often be disadvantages for someone who does not have an SCR produced on them. It would be of great concern to me if, a year after implementation of the act, there was a huge drop-off in the number of SCRs produced. That would indicate to me either that all the SCRs that have been produced over the years had been a waste of time or, more likely, that a large number of people were at a disadvantage because of a lack of information.
While I would see the production of the report as a professional service to the person who is detained, the report is sent to two specific places: the Mental Welfare Commission and the responsible medical officer. I think that they are the right people to provide a system of checks and balances. When the treatment order is being applied for, appropriate social circumstances information must be provided to the tribunal.
Is that information always provided? Are there any cases in which it would not be?
No. That is part of the submission that the mental health officer must make when the application is made. If the detention is more than short term, social circumstances information must be provided. A care plan must also be provided, which will take into account the person's social circumstances.
Is there a danger there as well? If that must be done, it will be the number 1 priority for resources and there could be a knock-on effect. If there is a priority list, people for whom an SCR is not provided will be disadvantaged.
The justification must be that some things serve little or no practical purpose. Responsible medical officers and the Mental Welfare Commission value social circumstances reports greatly. Mental health officers are committed enough to their work to take SCRs at face value. They will only not want them when there is little or no practical purpose in having them. However, a resourcing issue arises.
I have had to change the question that I was going to ask. Are you generally satisfied that MHOs will be consulted adequately for their consent before the authorisation of emergency detention or short-term detention?
In the City of Edinburgh, we have standards that say we will phone back the doctor within 10 minutes, and that within an hour we will attend wherever the patient is. Sometimes one is rung at 11 o'clock in the morning and an appointment can be agreed for the afternoon—say, at 3 o'clock—to visit a patient when they are expected to be there and when it is convenient for all parties. If there is an emergency, we will deliver the MHO service to the standards that I described. However, sometimes that is not good enough. A patient may be about to storm out of a ward and the MHO—even when they are based in the hospital—cannot get to the ward before the patient hurtles out of the door.
How short is Scotland of MHOs? Can you estimate how many more might be needed?
I am at a loss to answer that, I am afraid.
I understand—that is not really what you came here to answer.
Fair enough.
Ruth Stark may want to pick up on the more general points.
Yes, I will.
Let me understand this point, in case I misheard you. I think that you said that about 200 people are qualified MHOs.
Yes, they might be directors or social work assistant directors.
In Scottish terms?
Yes.
They might be working in social work, but they are not assigned as MHOs?
Before Dorothy-Grace Elder continues, I want to ask a related question. From those 200 MHOs, how many people might we be able to channel into the extra duties that will result from the new legislation? You said that people must be retained in the service. Full training will take seven or eight years, so it is not realistic to think that the people who are just about to embark on social work degrees can be the MHOs that we need now. We must retain MHOs, transfer qualified people or persuade existing social workers who are without that final MHO qualification to switch to being MHOs. Do we need to put in place incentives for people to do that?
There are trained social workers who are not currently MHOs and who will not do the course because they foresee no benefit. They foresee more work for the same money and they do not want to take on that extra responsibility. There should be a financial incentive.
I will come back to Dorothy-Grace Elder in a minute.
Sections 31 and 35 set out the criteria for emergency and short-term detention. Are those criteria appropriate?
Yes. In particular, the condition that
Have any criteria been omitted?
The other criteria are in line with present practice and I am happy with them.
The BMA's Scottish GPs committee and the Royal College of Psychiatrists suggested that, in practice, it will be hard to obtain an MHO's consent before emergency detention is authorised. What is your perspective on that? Can anything be added to the bill to make that less likely, or is that solely a resource issue?
It is a resource issue and a matter of trust. The doctor must interview the patient—the doctor must be in the same place as the patient at some point. At times, in Edinburgh, we phone back in 10 minutes and will be anywhere in an hour. That is almost always good enough for emergency detentions and should invariably be good enough for short-term detentions under the present structure.
Do you suggest that some MHOs do not do what you described?
Some people take the principled view that they should always see and have a discussion with the patient, because the matter is of such import. That is their view, but that is not what the 1984 act demands of them. My normal practice is almost invariably to see patients, but at times that seems unnecessary. When someone is fed up to the back teeth of people locking them away in the blasted hospital, being bombarded with yet another person is an extra pain. I use my discretion.
Should that be contained in the code of practice? Should it be picked up in the continuing professional development of social work staff?
I think so. Clear guidance should be provided on how consent can be obtained and on what is, and is not, acceptable.
Would patients' welfare be compromised if doctors were unable to contact MHOs?
It is much better that doctors have to accept the challenge and questioning of an MHO, and hear another opinion about the person's detention or detainability. As the previous witness said, GPs may have to use emergency detention orders once in a blue moon. Even as a manager—albeit a manager in a psychiatric hospital—I am regularly involved in detention. The MHO is the experienced partner in the pairing.
Is it important that you physically sign the order?
Again, I would have to be in the same place as the piece of paper in order to do that, which might delay things. I swallowed hard when I thought that GPs were going to have to send a piece of paper to all those places. I wonder how that will work. Will self-copying forms be used and the bits sent to different places? It will be difficult. If we assume that a GP does the emergency detention, they will have to say why that person has to be deprived of their liberty. They must take it seriously.
I will impose on you, and ask you to consider that issue further and provide us with your thoughts at a later stage.
We have a quick question from Dorothy-Grace Elder on advocacy.
I tend to ask most witnesses this question. How do you rate the importance of advocacy services for patients, whether they are voluntary services, as they are in some areas, or paid professional services?
Greater use of advocacy when people are disturbed and disordered in their own minds, so that they have somebody with a clear mind to say what they want to be said, is important. Advocates can not only speak on behalf of people, they can be there with them. For a while, I was on the medical committee of the state hospital, and often the advocate would come in alongside the patient. The patient would feel confident saying what they wanted to say, because they knew that they had somebody there who would take care of them and ensure that they did not miss things out.
So there was an independent person, whether he or she was a volunteer or a paid professional.
Today, on my first visit to the Parliament, I have an advocate sitting beside me. We all use advocates. Let us give the same sort of service to patients.
The two doctors from the BMA and the Royal College of Psychiatrists who gave evidence this morning were concerned not about disagreements with mental health officers, but about getting access to them. In fact, Dr Lyons said that we should insist that local authorities make available easy access to mental health officers. Would you object to the bill placing a duty on local authorities to provide a certain standard of MHO service, and for the standard to be set out in an accompanying code of conduct?
That would be excellent. You would have to bite the bullet of providing the resources to local authorities to deliver that. You would have to think through the complex issues that arise when long distances are involved, what the standards will be, and how they will be drawn up.
Thank you for your written submission and oral evidence.
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