Agenda item 3 is the final evidence-taking session for our stage 1 consideration of the Mental Health (Scotland) Bill. In this session, we will question the Scottish Government. Welcome to the meeting, minister, and congratulations on your recent promotion. We are pleased that you could make it to the Health and Sport Committee, and we look forward to working with you in your new role.
I formally welcome Jamie Hepburn, the Minister for Sport and Health Improvement, and his Scottish Government officials: Carol Sibbald, Mental Health (Scotland) Bill team leader; Penny Curtis, acting head of the mental health and protection of rights division; and Stephanie Virlo—what is it? [Interruption.] The clerk tells me that it is Virlogeux. That is a difficult one for me this morning, I can assure you.
I invite the minister to make an opening statement.
Thank you for your welcome, convener. I should tell you that I, too, had to check with Stephanie how to pronounce her surname, so I understand where you are coming from.
First of all, I realise that this evidence session got caught up in the changeover of ministers, and I apologise if that has delayed the committee’s consideration of the bill. That said, I am delighted to be here in my first appearance as Minister for Sport and Health Improvement, and I look forward to working with the committee. The First Minister has stated that she is seeking a consensual approach, and I hope that that will be a hallmark of our work together.
Before I get to the bill, convener, your clerk had asked for a run-down of my responsibilities, and I am happy to provide that to the committee.
That will be useful.
Along with mental health—which will be an absolute priority area for me, and I will be seeking to engage early with stakeholders in the sector—my portfolio covers dementia, restricted patients, autism and learning disability. All of that sits alongside along matters such as continuing the legacy of the Commonwealth games and action on obesity, physical activity and healthier working lives. Policy for carers, self-directed support and older people’s health also sits with me, while my colleague Maureen Watt, the Minister for Public Health, will oversee a wide range of issues, including health protection, alcohol and tobacco, and child and maternal health. I am sure that she, too, is looking forward to discussing her role with the committee.
With regard to the bill, I acknowledge the work that the committee has done thus far in its evidence taking. The evidence has been helpful for me as someone who has come to the issue somewhat late on in stage 1, and I am sure that it will also be helpful for the committee’s new members.
The overarching purpose of this amending bill—it amends the Mental Health (Care and Treatment) (Scotland) Act 2003—is to make a number of changes to current practice and procedures to ensure that people with a mental disorder can access effective treatment in good time. In doing so, it seeks to build on the principles of the 2003 act.
However, the bill also proposes the implementation of a victim notification and representation scheme for victims of mentally disordered offenders who are subject to certain orders. The scheme will put such victims on the same footing as victims who are currently eligible to be part of the criminal justice victim notification scheme.
I welcome the high level of stakeholder engagement with the bill. There were more than 100 responses to the Scottish Government’s consultation on its proposals for a draft bill, and the committee received nearly 70 written submissions following the stage 1 call for evidence. The committee has also had four evidence sessions, which stimulated some interesting discussions. I acknowledge the continuing stakeholder input. A small working group has already been convened to look at the necessary revisions to forms that will flow from the bill, and a second small working group will be convened shortly to consider any necessary revisions to the code of practice.
I will do my best to answer members’ questions, and I look forward to reading your stage 1 report when it is available.
Thank you, minister.
Good morning, minister. I welcome you to your post and wish you well.
My question concerns two submissions to the committee: the written submission from the Convention of Scottish Local Authorities and a letter from the Finance Committee.
COSLA commented in evidence that
“MHO reports would be triggered in far more circumstances than the financial memorandum anticipates.”—[Official Report, Health and Sport Committee, 7 October 2014; c 10.]
In its written submission, COSLA states that it is
“concerned that the scope of new duties on MHOs is unclear at this stage … However, it is clear that the additional cost set out in the financial memorandum is an underestimation of the costs associated with the measures contained in the actual Bill”.
In a letter to the committee, the Finance Committee highlights the fact that COSLA
“suggested that the total number of hearings requiring a report could be in the region of”
more than 500
“as opposed to 20 and 40 as stated in the FM. As the FM estimates a cost of £475 per report this suggests an overall annual cost to local authorities of over £281,000 instead of the £18,000 noted in the FM.”
What is your view on those two submissions?
Given that I was a member of the Finance Committee when that letter was written, you might think that I have created a rod for my own back. We have looked into the matter and—in a nutshell—COSLA’s analysis is correct. I should clarify that I have been advised that there is a discrepancy between the bill and the accompanying documentation, which has resulted in understandable confusion and concern about the number of reports that mental health officers will be required to complete. I accept that COSLA is correct in its assessment of the difference between the policy memorandum and the financial memorandum.
The policy intention is that a mental health officer will be required to produce a report when the tribunal is required to review a responsible medical officer’s determination to extend a compulsory treatment order or a compulsion order in two specific situations, not the three specific situations that are described in the explanatory notes accompanying the bill. The two specific situations are when there is a difference between the type of mental disorder that the patient has now and that which was recorded in the original compulsory treatment order or compulsion order; and when the mental health officer disagrees with the responsible medical officer’s determination to extend the compulsory treatment order or compulsion order. A third situation was included erroneously.
We accept that COSLA’s analysis is correct but, on a practical level going forward, we estimate, on the basis of the most recent hearing figures from the Mental Welfare Commission, that a mental health officer is likely to be required to produce a report as a result of the proposals in fewer than 15 cases a year—that is the total for Scotland as a whole. If we go with the £475 cost per report to which you referred, we can see that the global cost—based on the most recent year—would be £7,125 spread across all local authorities.
I apologise to the committee and to COSLA for the understandable confusion that the error caused.
To be clear, can you remind the committee how many hearings there were last year?
This is a slight revision to what was set out in the financial memorandum, as the figure at that time was slightly higher. In the past year, there were 15 cases.
10:00
My first question is on the same point. The minister has helpfully clarified that there will be only a modest increase in work for MHOs. However, last year, in the Greater Glasgow and Clyde area, there was no MHO report for about 60 per cent or more of detention orders. The annual monitoring report from the Mental Welfare Commission for Scotland indicates concern that, in relation to detention in Scotland as a whole, an MHO report is provided in only about 55 or 56 per cent of cases; I think that that is the figure—it is somewhere in the mid-50s anyway. Clearly, MHOs are already under enormous pressure. Although the increase in work will be modest, I hope that the minister and his team will consider closely whether the funding is adequate to ensure that MHO reports are provided.
My question is about the generality of the bill. It is a fairly narrow bill that is focused on the McManus report, but we heard evidence, both from Steve Robertson from the learning disability group People First (Scotland) and at last week’s round-table session, that, because of new information on and knowledge of neurodevelopmental disorders, we should consider a more extensive review of the Adults with Incapacity (Scotland) Act 2000 and the mental health legislation. Have the minister and his team seen that evidence? Does the minister have any comment on whether a broader review is necessary or whether we should tackle the issue by amending the bill to broaden its scope?
On a longer-term review of incapacity legislation, the committee will be aware that the Scottish Law Commission has recently reported on adults with incapacity. The Government is actively considering that report and we are thinking about how we can look more broadly at issues of restriction of liberty and capacity, and about the best way to deal with that against the background of what is a complex operational landscape. Work is on-going on that, so I cannot say much more on the issue now, but I accept that it is important. We will of course come back to the committee with details of the Government’s consideration in due course. I am acutely aware of the views of many people with learning disabilities and autistic spectrum disorders that their specific conditions are not dealt with in the bill.
If the bill removed those conditions from the scope of the 2003 act, protective legislation would of course still be required, as Dr Simpson has acknowledged. That could be argued to add another layer of complexity to what could be felt to be an already complex legislative landscape. Indeed, it could result in some people with such conditions finding their care impacted on by up to four pieces of legislation—mental health legislation, incapacity legislation, adult support and protection legislation and whatever new legislation would have to be put in place.
I said that I want to have an open dialogue with the mental health sector but, equally, I want to have on-going dialogue with the representative organisations for people with those conditions. Indeed, tomorrow, I will attend the autism conference in Glasgow. I say to those organisations and the committee that my door is always open and that we are happy to consider those matters. However, to be absolutely clear, we have no current plans to remove people with learning disabilities or autistic spectrum disorders from the scope of the 2003 act.
Thank you—that is helpful.
I move on to a more specific point, which is the proposed extension of the period for the confirmation of orders from five to 10 days. When McManus proposed that, the number of mental health tribunals that had to be postponed or repeated was much higher than it is today. I pay tribute to the current president of the tribunal, who has reorganised the administrative approach in such a way that the number has dropped substantially and will, we hope, continue to drop.
Is the extension from five to 10 days still an appropriate measure, or might it have the unintended effect that many more applications from RMOs or MHOs will be automatically delayed and, therefore, the period of detention would be extended? The bill says that any additional time would be taken off the next order, but that is no compensation for someone who feels that their order is inappropriate in the first place.
I appreciate that the number of emergency detention orders under the 2003 act has been reduced by two thirds, which is extremely welcome, and the number of short-term detention orders does not seem to have increased. We appear to have got it relatively right, but do we really need the extension now? If we do, should the power not be exercised under the specific condition that the applicant from the mental health side or the individual to whom the order is intended to apply or who will appear in front of the tribunal for a new order seeks to have an extension for a specific purpose? In other words, will regulations define absolutely and clearly the terms of the power so that we do not get the unintended consequence that I described?
We do not want any unintended consequences with any aspect of the bill. We might want to touch on this later, but the regulations will come before the committee, so the committee will be able to consider them.
I am looking through my notes because I have a summary of the evidence that the committee has taken and I know that the matter was touched on. Like you, I welcome the fact that the number of repeat, delayed and rearranged tribunals has dropped but I am aware that tribunals can still be repeated, delayed or rearranged. We want to minimise that because it always has an impact on the person who appears before the tribunal. Therefore, we still think that section 1 is an effective provision.
I understand that, for good clinical reasons—which can vary from case to case because we are talking about clinical judgments in specific circumstances—applications for compulsory treatment orders might not reach the tribunal until late on. That can create quite a tight notification period for the tribunal and service users—there might not be sufficient time to arrange notification and named persons might have difficulty arranging time off work at short notice. That is what leads to hearings being adjourned, which we want to avoid, because additional hearings can exacerbate the circumstances and the stress for service users.
In the round, we think that section 1 is still an effective provision but, if the committee cares to offer comment on it, we will examine that closely.
To go back to first principles, of course we want to avoid any unintended consequence arising from regulations. The committee will have a crucial role in assessing and providing feedback on the regulations.
I accept that it is a fine balance. We do not want to put the person to whom the order applies in the position of having unnecessary repeat, rearranged or delayed tribunals. However, it would be helpful to the committee if we could get further information and up-to-date figures on the matter and an indication of the precise reasons for current delayed, rearranged and repeat tribunals. That would inform us as to whether the balance is still right, given that McManus reported five or six years ago. If that is possible, it would be extremely helpful to us in coming to a conclusion in our stage 1 report.
Absolutely, Dr Simpson. I see that the officials either side of me are assiduously scribbling, so they have already taken note of that. We will, of course, get that information to the committee.
Thank you.
A number of MSPs wish to make points in relation to the matter raised by Dr Simpson. I point out that the Mental Welfare Commission and the Mental Health Tribunal for Scotland both supported the increase in the extension from five to 10 working days. They said that, in a good week or a good month, about 20 per cent of hearings still went to repeat hearings or multiple hearings because reports were not prepared, for a variety of reasons. We have to drill down to find the reasons for that.
We should do anything we can do to avoid multiple hearings. It could be a case of not getting the views of the named person, and I am conscious that there are reforms to the named person process under the bill, which could create a knock-on effect, so I would be keen for you to take cognisance of that if you continue with the increase in the extension from five to 10 working days.
My question is twofold. First, I am content that, as long as the increase in the extension from five to 10 days is not just seen as an administrative convenience but is viewed as meaningful to those under short-term detention, it is a balanced and proportionate step for the Government to take. I would like some reassurance that the Government will monitor the reasons for the five to 10 working days being deployed by relevant professionals, so that the extension is to the benefit of the person under short-term detention, rather than being for the administrative convenience of professionals. If I could be reassured on that first point, I would be content.
Secondly, concerns were raised at last week’s meeting about compliance with the European convention on human rights. I made the mistake of asking two lawyers for their opinions on the matter, and I got 17 different views—which was quite helpful. That is perhaps slightly unfair. I should point out that the lawyers were witnesses at the committee and were not giving it legal advice.
One of the lawyers said that the new arrangements will potentially be less compliant; the other was content that they will still be compliant. The situation was as clear as mud at the end of that discussion. There seemed, however, to be a general feeling about it. The concern that was voiced last week was that the extension could be used inappropriately or used uniformly across the board. I am determined to ensure that we get this right not just with regard to the administration of the system but also with regard to the human rights of all our constituents who could be subject to detention orders.
Information on both those aspects would be welcome.
Thank you for those questions, Mr Doris. I note your point that both the Mental Welfare Commission and the Mental Health Tribunal support the measure, which I think is for the same reasons that the Government wishes to pursue it. It is not about administrative convenience; it is about ensuring the best provision of service for those who appear before them.
I return to my earlier point. Although there are fewer rearranged hearings, there are still some, and we wish to minimise them, as they are stressful for service users. That is the primary motivation when it comes to giving service users and their named persons the chance to prepare for any hearing properly; I repeat that the motivation is not about administrative convenience.
You also asked about monitoring. I can assure committee members that the bill team will discuss with the tribunals service the type of markers that can be put in place to monitor the throughput of cases as a result of the proposed change. We of course have to monitor any legislative provisions that we put in place to see whether they are effective.
On the second issue, ECHR compliance, I think that getting only 17 views from two lawyers is arguably a pretty good job. We are convinced that the provision is ECHR compliant, and I think that that is fundamentally important. I used to be the convener of the cross-party group on human rights and I care deeply about human rights issues. I note the comment from the Faculty of Advocates on compliance with the convention, which centres around whether the change is proportionate. The intention behind the provision is, as I have said, to benefit the service user, so on that basis we think that it is a proportionate change. We consider that all the provisions of the bill, including this one, achieve the end of being compliant with the ECHR across the board.
10:15
The general point was that the provision could be challenged because, although the current arrangement is compliant, we are going into an area where there could be challenge. That is what I took from last week’s evidence, which raised some interesting issues for discussion. If the officials who are with us today have not had time to read last week’s evidence, it is worth considering how practitioners think the process works, what time people currently spend in the system, and whether it can be improved or diminished.
Let me make it absolutely clear that we will look carefully at every bit of evidence that the committee has gathered, particularly with reference to your stage 1 report. On your point about the feeling that the provision could be subject to challenge, I would say that any legislation that the Parliament passes could be subject to challenge. The question, of course, is whether such a challenge would be upheld in the courts, but that is the nature of the Parliament’s competence.
We consider that the provision is compliant with article 5 of the ECHR. I think that I am right in saying that article 5 does not definitively set out a time period for which a person can be detained, so we think that the extra five days, given the safeguards that we have put in, will not fall foul of ECHR requirements. Of course, we will look at every bit of available evidence, because we want to get it right.
I have a couple of bids from members who wish to ask questions.
From what you are saying, minister, I take it that we are looking at the extension as an exception, rather than the rule. If particular conditions were to arise, would the flexibility of the extension allow factors such as the geography of remote rural areas of Scotland or inclement weather to be taken into consideration?
Accessibility for rural areas is not really the motivation for the change.
I am not saying that it is the motivation. I am asking whether the change would give you the ability to be flexible. We are not discriminating against people who live in remote and rural areas—far from it—but I am suggesting that factors such as inclement weather could make the extension necessary. In some cases, it could happen that a person cannot return home not because of mental health issues but because of other factors.
I suppose that we cannot rule out any possibility. Although I recognise that it takes longer to get to more remote and rural areas, the increase in the extension from five to 10 days is not intended to address such factors. I repeat that the change is driven by efforts to improve the experience for service users by giving them time to get ready for their appearance before any tribunal. That is the motivation. We might well explore other areas in which the issue of accessibility for rural and remote areas is more pertinent than in this case.
You are primarily saying that it is the exception rather than the rule.
I will bring in my officials in a minute. It is the rule in the sense that the period is automatically extended by 10 days. Of course, we always hope that these matters can be expedited as quickly as possible.
As Dr Morrow said in his evidence, the tribunal will always work at holding the hearings as quickly as possible. As the minister has said, the main point is to assist service users and named persons at what can be a stressful time by ensuring that their case can be determined at the one hearing.
On the points that have been made about setting conditions, the committee might want to consider that the timescale is relatively short and that we can sometimes overcomplicate things. I saw in some written evidence that people might like certain specific circumstances to be set out, but that means having to define those circumstances and decide whether that has to be set out in legislation. It is not that those conditions could not be considered but, in the timescale involved, what we are proposing is a reasonable alternative. As the minister has indicated, should section 1 pass through the parliamentary process, we will monitor its usage. We will also beef up the text of things such as the code of practice, which is under revision, in relation to responsible medical and mental health officers submitting applications at the earliest opportunity.
Carol Sibbald made an important point. We do not want to overcomplicate the system. Mr Robertson asked whether we are talking about the exception rather than the rule and I am aware that the committee took evidence about this. In fact, I think that it was Mr Doris who asked whether section 1 could be an exceptional provision. I understand the intention behind that point, but Carol Sibbald has set out why that could be seen to be overcomplicating matters.
I make no apologies for making this point again. I want to make sure that we give service users an improved experience and minimise the stress that the system can cause. Let us face it: the system is going to place people under some duress and we want to minimise that as far as we can. If we add another layer of exceptional circumstances, that might make the service user or the named person wonder whether it is something else for which they need to apply. We want to keep the provision as straightforward as possible, but if the committee makes any comments on that, we will look closely at the evidence.
The bill is silent on the issue of advocacy, which was raised in all the evidence sessions and is clearly important to all the witnesses. Many of them highlighted how advocacy provision across Scotland is quite patchy. The Mental Welfare Commission felt that the 2003 act is quite strong on advocacy rights, but it questioned whether it is being properly implemented across the country. It suggested that
“The Government might commit to proper auditing of the availability of advocacy and the performance of local authorities and health services.”
Do you have any comments on that? I have another question to ask afterwards.
Let me say at the outset that I am a strong supporter of advocacy, which I think empowers people. I have worked locally with independent advocacy organisations, albeit probably in a different context from the one that we have discussed today—although it occurs to me that the organisation concerned may well interact with the framework that we have put in place to help people with a mental disorder. I am a strong supporter of advocacy.
Forgive me if I am wrong, but I think that the committee was considering the matter in relation to the position of carers in particular, if I remember correctly. Preliminary discussions have taken place between officials and the Care Inspectorate, which is the independent scrutiny and improvement body for care services in Scotland, regarding the possibility of the inspectorate’s programme of audit including a review of how well local authorities are meeting their duty to provide advocacy.
That is something that we take seriously, and the work is on-going. If the committee feels that that is too narrow, we can reconsider the matter, but let me assure you that I, too, think that this is a very important matter.
My second question was going to be on carers, in fact. There was quite a strong feeling on the part of organisations such as the Scottish Association for Mental Health that there is nothing in the bill to strengthen advocacy.
I return to an earlier point. The bill before us is an amending bill. It is not a matter of starting afresh; the bill amends the 2003 act. The point that those organisations are making is that the 2003 act is pretty strong in this area. The question is whether the provisions of the 2003 act are being fully met. We will consider that. I do not know whether there is necessarily a requirement for legislative provision at this stage.
There is a general point across all our discussions today. No matter what aspect of this area the committee comments on in its stage 1 report, we will examine it very closely.
I appreciate that—thank you.
In doing my homework for this meeting, I was pleased to note that a lot of the witnesses had placed a high emphasis on the importance of advocacy. I will pick up on that theme. How far could the accountability mechanism for the provision of advocacy be directed towards an examination of the special challenges of geography that we experience in the Highlands and Islands?
The Arbuthnott formula for health funding contains a provision for rurality, as has the grant-aided expenditure formula for local authority funding. Therefore, it seems reasonable that rural authorities ought to make provision for rurality in deciding what resources they make available for advocacy organisations. I am interested to hear from the minister—in pursuing the accountability mechanism or in considering accountability—to what extent there is proper provision of advocacy and how far rurality can be taken into consideration.
Secondly, we all agree that it is absolutely important to increase provision of and access to independent advocacy if at all possible, but to what extent is it possible to say that advocacy is genuinely independent? Advocates and advocacy agencies are very conscious of the fact that funding may well come from the very agencies that they sometimes have to challenge.
Mr MacKenzie is not the only one who has been doing his homework at the weekend, after coming to the bill a little later than might have been felt to be ideal.
In the legislative framework, those are clearly matters for local authorities. I have already pointed out that there are on-going discussions about how we can look at how well local authorities are fulfilling their legislative duties. I suppose that we can try to factor in issues of rurality. As with most things in life, it is just that little bit more difficult in rural areas. It is certainly something that we can reflect on.
10:30On the question of how independent the advocacy agencies are, that is in the eye of the beholder, as with anything. In my experience, despite it often being the case that such agencies require core funding from the very bodies to which they may be making representations on behalf of their client base, they are assiduously clear about the need to be independent of those organisations, and they take that responsibility seriously. Of course, we are talking about a huge range of different organisations and no one situation will be precisely the same as any other.
Do you agree that the constructive criticism and analysis that advocacy agencies can provide on common issues can be extremely useful for the authorities that they engage with? I am aware that some authorities appreciate the value of that feedback mechanism, while others do not. Is there anything that you as a minister can do to encourage that positive feedback loop?
Criticism can sometimes be difficult to take, but if it comes your way you have to reflect on what has been said, and if there are areas that you need to improve on, you need to look at them. It is difficult to make a general comment about that. I do not know whether there is a specific situation that Mr MacKenzie has in mind, and even if there is I am not sure that I will be able to comment on it, but I certainly think that the process of constructive feedback can allow organisations to continue to improve their work. That is an issue not just for local authorities but for the bodies that are relevant to the bill—the commission and tribunal—and for the Government, because we also need to hear what is said.
The minister said earlier that we should not expect any increased capacity in advocacy as a result of any part of the bill. Members have mentioned, and it is reflected in the evidence, that the bill complements all the Government’s legislation in relation to delivering advocacy on the ground, particularly as good advice is available on avoiding delays. Has the Scottish Government audited or evaluated advocacy services? Whether it is true or whether it is a perception, people feel that provision in rural areas is likely to be patchy. In urban areas, there is more availability, but the problem may be access. There is a question about whether the Government’s objectives and policies are working effectively for the people for whom we want them to work, and advocacy is a key aspect of that. Is there any recent work that suggests that there is a problem, or has there been an audit of the services? Are health boards meeting their responsibilities?
I say first that the answer depends on what kind of advocacy organisations we are talking about. There are some organisations that relate specifically to the bill, and I have referred to some of the on-going work, but I am aware that they will interact with elements of the public sector on a wider basis than just the area of the health service that we are discussing. I reiterate that there is, of course, dialogue with the Care Inspectorate on assessing how well local authorities meet their advocacy duties under the 2003 act.
The Government is working to produce guidance on advocacy for carers, with the aim of launching it early next year. The guidance will be a useful tool in making people more aware of their right to advocacy and the existence of advocacy organisations.
I am looking also to your officials. Has there been an evaluation of advocacy services and where they are effective, sparse, properly funded and so on?
I have to tell you that I need to look to my officials on that, too.
I am not aware that there has been such an evaluation. The minister talked about our work with the Care Inspectorate, which is at an early stage and very much reflects some of the views that have been expressed in evidence on the bill. We will look at the Care Inspectorate’s work programme to ascertain whether we can accommodate the matter within it. We absolutely want to reflect on what people are saying.
If the convener is proposing a review of advocacy organisations, we need to be clear about what we would be asking about. If the issue is the provisions in the 2003 act, work is going on in that regard, but if the issue is wider aspects of advocacy we might need to discuss that with colleagues elsewhere in the Government.
I was asking mainly about advocacy support for mental health patients under the various acts—the bill tidies up the 2003 act. Practitioners have talked to us about the issue. I am not proposing a review; I was picking up Mike MacKenzie’s point about the perception that expert advocacy is not always available or funded. It has been claimed, at least, that the service is patchy across the country, and I think that the committee and the Government want to establish whether that is the position. That is what I was driving at. As we all recognise, we can legislate, but there might also be practical steps that we could take to address the evidence that we have heard and to make the legislation meet its objectives more effectively.
The committee is scrutinising a bill in which advocacy does not come up. We often talk about advocacy in general terms, rather than thinking about what it means in the context of the provisions in the bill, so I was considering that while I was listening to the minister’s discussion with the convener. You raised the issue yourself, minister.
We have from time to time had fairly lengthy discussions about extension by five days of the 28-day short-term detention order, and about whether the extension should be for 10 days. I do not expect the minister to have the answer at his fingertips, but it would be good to know whether sometimes extensions are needed because service users or their families have not had appropriate advocacy that would have enabled them to engage with services and prepare reports. If that is so, greater access to advocacy might mean that an extension of 10 working days would not be needed and might avoid the need for multiple reports and hearings. That is a concrete example of an area in which advocacy could have an impact.
There are other such areas in the bill, such as the provisions on appeal against being held in conditions of excessive security, appeal against transfer from one hospital to another and the preparation of advance statements.
There are pinch points in the system, for which the bill makes provision and in relation to which the Government might consider how advocacy should be used and whether there should be additional advocacy responsibilities. For me, that would be more meaningful than a general review of advocacy across the board. Will the Government consider that?
I was not calling for an overall review, but I was addressing the evidence that we have heard and the points that have been made suggesting that advocacy is not necessary in some specialist areas in which there is very much a legal process and there are services to provide that. I was also thinking about people being encouraged to nominate a named person and being more aware of how the service works at a lower level that complements the bill and the Government’s objective. I do not want to labour the point too much. After the minister’s response, enough has probably been said on the issue.
I do not think that you are labouring the point at all, convener. The committee is absolutely right to consider the area seriously. As I said, the provision of advocacy is important. We will look closely at any recommendations that are made and we will look again at your evidence. I am inclined to agree with the points that have been made by the deputy convener about advocacy playing a crucial role in improving the experience of service users at pinch points. That is a fair way of looking at it. I have said that the 2003 act already sets out the right to advocacy, and I presume—I will invite Carol Sibbald to comment in a moment—that that provision will still allow for the interaction of advocacy agencies at those pinch points, as Mr Doris described them.
I agree that we need to ensure that service users are aware of the function of the named person. I am conscious that some campaigning bodies and stakeholders have talked about having awareness-raising campaigns; they can be good for a short time, but once a campaign is over and done with its impact could be short lived. We need to look at how we can raise awareness from grass-roots level and build upwards from there. A number of organisations, including the national health service, local authorities and the Government, have crucial roles to play in promoting use of named persons. Of course, advocacy bodies themselves will want to tell people that they have a right to a named person. If the committee has a view on how we can better make people aware of the named person provision, we would be happy to look at your suggestions.
Carol Sibbald will comment on the 2003 act’s provisions on advocacy.
I would like to pick up on the comments about pinch points, which were absolutely correct. It is crucial that people have access to advice. Part of the role of mental health officer is to make individuals aware of their right to advocacy and to help to put them in touch with advocacy agencies. We often find that nursing staff are familiar with the good work that is done by advocacy agencies, so assistance can be given to individuals in the hospital setting in accessing advocacy services.
The bill includes a provision to nominate a named person and a provision not to nominate a named person. However, if the person has done neither, the situation will revert to provisions under the 2003 act, and the next of kin would be put in the named person role. We have taken evidence from service users and carers, and they do not like the reversion back to the 2003 act’s provisions, because the next of kin may not be willing to take on the role, or the service user may not wish the next of kin to have access to their medical records. Have you given any thought to changing that by amendment at stage 2?
10:45
I recognise that this is a sensitive area, and I understand the strong view that has been expressed by stakeholders who have engaged with the committee that service users should have a named person only if they want one. The Government is generally very supportive of that. Provision has been made for service users to opt out of having a named person.
You are correct to identify that if an individual has neither nominated a named person nor chosen to opt out, the role reverts back to the person’s primary carer or nearest relative. You have made the point already: there could be many reasons why an individual—the carer, the next of kin or the service user—would not wish that to be the case. The Government wishes to retain the provision in the best interests of service users, as a form of protection for people who lack capacity. To be fair, however, and having reflected on what has been said to the committee, we have perhaps not struck the right balance, so we will be happy to reconsider the matter.
Carers and next of kin have also expressed the wish to be able to refuse to be the named person if they are nominated but feel that they are not best equipped to carry out the role.
There has also been some discussion around what the role of the carer or next of kin would be. It was suggested that they should perhaps have a separate role to that of the named person, such that they might be consulted and would be able to speak, but without having the powers that are given to the named person. They could play a role in their own right that they felt comfortable with and able to fulfil without encroaching on the rights of the service user and without having to take on the full role of a named person. That would give different people different roles, but it might be in the best interests of the service user to have those different roles in place.
That is the flipside of the point that I have just made. As I reflect on the matter further, it could equally be the case that a carer or next of kin will not wish to take on the role, as you have said. We will reflect on that specific point, too. Unless there are exceptional circumstances in which a carer or next of kin should not be involved, it would be understandable if they wished to continue to play a role in relation to the service user.
The tribunal can hear from persons of interest, which would include a carer or next of kin. If it is felt that that does not cover the point that Rhoda Grant is making, we could consider the matter further, but the essential point is that such people can continue to play a role in the process without being the named person.
I wonder whether there might sometimes be some conflict. For instance, if the relationship between the consultant psychiatrist and the members of the family is not good, and the named person is the next of kin, but the consultant feels that that arrangement is not in the best interests of the patient if they are going to proceed towards a better outcome, where do we stand? Do we go with the views of the consultant in saying that the main barrier to achieving a positive outcome is that named person? Do you have a view on that, minister?
I will bring in Carol Sibbald on that point in a minute. I do not want to say something that might be incorrect. Having read the notes, I think that there is provision for the removal of named persons, although I could be wrong about that.
In such circumstances, when there is a disagreement between the qualified medical professional and the carer or next of kin, that is very unfortunate. If the disagreement relates to the interaction with the tribunal, the tribunal will consider the matter and will come to a decision. Under the bill, there is an increased role for mental health officers by way of the provision of reports to tribunals when that is applicable. That would be another point of view. It is for the tribunal to rule, taking into account all the evidence that is placed before it.
I invite Carol Sibbald to comment.
The minister has covered the main points. Any disagreements between both parties will be fully explored at the tribunal hearing. The tribunal will then reach a determination on the basis of the evidence that has been presented to it.
In relation to the removal of a named person, the minister is probably thinking of the provision that we have for children under the age of 16. If they currently have a named person but it is felt that that named person is not acting in their best interests or is not carrying out the role, there is provision for the tribunal, on the basis of the evidence that is presented to it, to remove that named person and appoint a more appropriate person. That will involve discussions with the mental health officer and others.
Under the new provisions, someone will have a named person only if they wish to have one, and the person who is nominated to be the named person must sign to say that they are content to take that role. In our view, there will be less opportunity, and therefore less need, for the tribunal to step in and remove a named person.
That is, indeed, the provision that I was thinking of.
Perhaps I should have made this point earlier. We hope that, in such circumstances, any disagreement or problems between the medical practitioner and the carer, next of kin or wider family will be resolved amicably before things reach that stage. Nevertheless, there must be provision for such circumstances.
Good morning, minister, and congratulations on your promotion.
My question is on the aspect of the bill that deals with people under the age of 16. Was any consideration given to the inclusion of McManus recommendation 4.16? It states:
“A young person under the age of 16 who has adequate understanding of the consequences of appointing a named person should be able to do so.”
I think that Mr Keir is congratulating me on my promotion because we used to share an office and he has finally got rid of me after three years.
That matter has, indeed, been raised. Although it is important to allow a young person to express a view on matters that will directly impact on them, it is equally important to protect those who are most vulnerable, and it could be felt that young people are particularly vulnerable in that regard. An overwhelming majority of respondents to the Scottish Government’s consultation on the bill did not say anything in relation to the matter. If Mr Keir or other members wish to make recommendations or comments on the issue in the committee’s stage 1 report, we will consider them in detail.
It is just that that particular issue about those aged 16 and under was brought up in another context, so I thought that I would ask about it.
I have one more question. I do not know whether you addressed this point earlier—perhaps you did and I missed it because I am bit cloth-eared this morning. I gather that the chair of the mental health nursing forum Scotland said, in effect, that the proposal to extend the nurse’s holding power would not work. Can you comment on that?
Sure. Mr Keir can rest easy—we have not explored the issue thus far.
I will need to look again at that particular comment, but I do not think that the person in question went as far as to say that the provision would not work; the question was whether it was felt to be necessary. I recognise that there could be concerns that the changes to the nurse’s holding power could result in the restriction of a service user’s liberty, but the Government has made it very clear that the provision refers to a time period of up to three hours. The code of practice that we will put in place will strongly emphasise that the nurse must take all reasonable steps to contact a doctor and a mental health officer right at the start of the period and, equally, that hospital managers should impress upon their medical staff the need to make themselves available to examine the patient as soon as possible.
We would expect the detention to last only for as long as was required for the examination; in other words, the full three hours should be used only if that length of time is required. I also point out that, under existing powers, the current two-hour period can be extended by an hour, which means that, if the extension is put into effect right at the end of the two hours, the period can be more or less three hours already. Several stakeholders have recognised in their responses to the Government’s consultation that the change should allow sufficient time for a medical examination to take place. They hope that it might reduce the number of occasions on which doctors have to apply for what could be an unnecessary 72-hour emergency detention certificate in order to complete a medical examination, given that such a move would have significantly more impact than the three-hour period.
The provision is driven by a desire to improve the experience for service users and should provide clarity for service users on the maximum period of time for which they can be detained under the nurse’s holding power. At the moment, the period is two hours but it can be extended to three hours. It should also, I hope, make it clear to service users that they are being detained to enable a medical examination to be carried out.
I apologise for having misquoted in my previous remarks. My memory is obviously not as good as the minister’s. He is perfectly right—the chair of the mental health nursing forum Scotland said that there would be no advantage to such an extension.
Indeed. He said that there would be no advantage to such a move, that it was not based on evidence, that it would impact on nurses’ workload and that the idea had not come from nurses. The Mental Welfare Commission, too, opposes the move. It is certainly an issue that the committee should look at.
It is my fault for not phrasing the point properly.
No—you are right, Colin.
Is your question on this specific theme, Dr Simpson?
11:00
Yes, convener. The Mental Welfare Commission has reported that a nurse’s order has been used on 177 occasions and that on no occasion did a doctor attend within the prescribed time. However, the two most interesting points in its submission are, first, that there is massive variation in the use of the orders—a quarter of them were made at the Royal Edinburgh hospital, which suggests that there is something not right about the way in which they are being applied—and, secondly, that there might be underreporting with regard to the NUR 1 form. We need further detail and some proper research done on what is actually happening. We also need to see what will happen as a result of the Mental Welfare Commission’s response to its own report, which was to issue new guidance on the use of the nurse detention system.
Given the evidence that has been highlighted by Colin Keir and quoted by the convener, I am minded to suggest that we recommend in our stage 1 report that the change should not be made unless the Government can produce convincing evidence of the number of occasions on which, as the minister has just suggested, an emergency detention order has been employed because of delays. Given that the number of such orders has dropped from more than 3,000 to 1,000, I would need to see evidence of the number of occasions on which that has occurred before I would be prepared to support the change. After all, we are talking about a further small but nevertheless possible period of detention.
I take on board Dr Simpson’s points, but I can tell him that, in its recent guidance, the Mental Welfare Commission says that the numbers involved will be reviewed. Moreover, the fact that the number of emergency detention certificates has dropped and there might not have been any recently does not mean that there is no possibility of utilising such certificates any more.
The proposal is to change the period in question from two to three hours; we are not proposing anything as drastic as an extension from two to 24 hours. I make the point again that, right now, nurses have the power to detain someone for two hours and that period can be extended by another hour. If that happens towards the end of the initial two-hour period, we might already be talking about a three-hour period.
The most important point—I am sure that Dr Simpson will accept this—is that the period in question should be up to three hours, as we want to ensure that such matters are dealt with as quickly as possible. We have already discussed issues of accessibility in rural areas and so on. When I said, in response to Mr Robertson’s question on the extension from five to 10 days in another section of the bill, that there might be other areas of the bill in which such a move might be more about accessibility, I was thinking of this as an area in which such a change might make things easier in rural areas.
Nevertheless, we will consider the points that Dr Simpson has made. We do not want to do anything that is felt to be disproportionate or absolutely unnecessary, but we feel that there could be some advantage in formalising the three-hour period instead of retaining the possibility of the two-hour period being extended to three hours. As I have said, such a possibility might not be entirely clear to a service user, who might turn up in the expectation that the period will last only two hours and suddenly find that—bang!—it has been extended to three hours. If we make the change, the person will be clear from the outset that the period could last up to three hours.
Richard Lyle has a question on the same subject.
It is on another subject, convener.
That is good—we are moving on.
I want to ask about something that we have not yet covered: the wider review of mental health and incapacity legislation. Minister, you said that you are going to attend a conference on autism tomorrow. At a recent party conference, I had a discussion with Autism Rights. Autism Rights and Psychiatric Rights Scotland have called for the removal of people with learning disabilities and autistic spectrum disorders from mental health law. Inclusion Scotland has also commented that people with learning difficulties are concerned that they will be subject to compulsory treatment as a result of their learning disability alone. What consideration have you given to removing people with learning disabilities and autistic spectrum disorders from the scope of mental health legislation?
I touched on this earlier when I made it clear that I recognise that people out there hold such a view. We do not have plans to remove people with learning disabilities or autistic spectrum disorders from the scope of the 2003 act at this stage. I made the point earlier that, even if they were no longer covered by that legislation on the basis of their having a learning disability or an autistic spectrum disorder, the bill, incapacity legislation, adult support and protection legislation and new legislation would still encompass them. It could be felt that that would complicate matters, although that in itself is not necessarily an argument against such a move. As I said earlier, I will be happy to maintain an open and on-going dialogue with the representative bodies.
I suspect that you are talking about a party conference that I attended, and I confess that I did not have a conversation on the issue then. However, the First Minister has made the point that she wants this to be an accessible Government, so I will certainly be looking to play my part in relation to my portfolio, and I will be happy to speak with the representative bodies on that issue.
I am sure that the organisations that spoke to me will be happy with those comments.
I am sure that they will, and I look forward to meeting them in due course.
I have a question on the degree of security. The extension of the right of appeal to a medium-secure unit is welcome, but some of the evidence that we have heard suggests that it should be extended to low-secure units as well. Does the minister have any comment on that and on the extension of the right of appeal to civil orders?
It is an area in which we have to legislate because of the provisions of the 2003 act. It was the clear intent of Parliament that there would be a right of appeal. As it was framed at the time, the 2003 act addressed the need for someone to be transferred to another hospital, but, as I am sure Dr Simpson will appreciate, that does not reflect reality. In some settings, a person can be transferred from one part of a hospital to another part, which I hope the committee agrees is a lot better for the service user. However, the subordinate legislation that we would have liked to put in place was not possible under the scope of the primary legislation as it was worded in 2003.
There has, of course, been a ruling by the Supreme Court that emphasises the need for us to act swiftly. As I want to be as transparent as possible with the committee, I should also say that there is now a petition before the Court of Session on these matters. However, that is as much as I can say in relation to the issue for two reasons: first, that is about as much detail as I have at this stage; and, secondly, I do not want to fall foul of the Presiding Officer in terms of what is sub judice.
We have to get it right this time, and we are determined to do that. I am also aware that, as these are affirmative instruments, the committee will want to be able to assess their efficacy, so another good reason for getting them in place early is to allow the committee time to properly scrutinise the provisions.
The Scottish Government does not consider that there is necessarily a problem with patients being held in low-secure settings. The provisions relate to patients being held in “conditions of excessive security”, and we are not convinced that low-secure settings fall under the definition of “excessive security”, particularly since the next step in progressing patients in low-secure settings is getting them back into the community and it is open to the tribunal to order that as part of its on-going review of procedures, which is covered elsewhere in the 2003 act.
We are not convinced that there is a need to extend the right of appeal—beyond what we are doing in relation to people in medium-secure settings—to include people in low-secure settings. However, I make no apology for saying again that I am keen to hear what the committee has to say, and if the committee makes recommendations on the matter we will look closely at them.
The test of that will be your response to our recommendations.
I am aware of that. I could be making a rod for my own back.
That will be a test for you as a new minister.
If members have no more questions, I will ask about registration of advance statements, which is provided for in section 21. The Mental Welfare Commission welcomed what it described as a
“modest and perfectly sensible provision”.—[Official Report, Health and Sport Committee, 30 September 2014; c 3.]
However, the commission also highlighted a matter that we heard about in evidence. We all recognise that if someone makes an advance statement when they are well it should improve their experience when they are unwell, but there has been a slow take-up of advance statements and the commission has said that the provision in section 21 will not in itself change that. We have heard that people have a notion that advance statements are not considered or acted on. Is the Government doing any work to promote advance statements? Have you talked to user groups about how we might do better in that area?
Jamie Hepburn: I am new to this, so I do not know what discussions have taken place. As I said, we will always be happy to have dialogue, but we have no plans to undertake research specifically on whether advance statements are underutilised and whether there are barriers to making them.
Advance statements are an important part of the process, and a register of statements, which will be held by the Mental Welfare Commission, will provide data on the number of advance statements that are made in Scotland and their geographic spread by NHS board. That will help us to build up a much better picture of how widely advance statements are being used. If need be, we will be able to respond to circumstances.
I am sure that you have ideas for the future. Can the officials say what the historical position has been on how advance statements work and their slow take-up?
It is a difficult issue. The register will help, because we will have everything in one place provided that health boards submit copies. We will then get a better picture. The anecdotal evidence is that take-up is quite good in some areas and perhaps not good in others.
There is the facility to override what is in the advance statement, and some people think, “What’s the point of making a statement if it is going to be overridden?” However, data from the Mental Welfare Commission show that that happens in a very small number of cases. We probably need to get that message out a bit better.
We recognise the good work that an advance statement can do, but an individual who is leaving hospital after a mental health episode probably does not want to start thinking about what they should put in place in case they are ill again—they want to think that they will not be ill again.
As the minister said in the discussion about named persons, it is about trying to raise awareness, from the grassroots up, of the effectiveness of an advance statement as a tool.
I suppose that one of the aims of the provision is to enable us to monitor the picture much better in the future.
I accept that. I note that Carol Sibbald said that that will happen provided that health boards submit copies.
There will be a duty on health boards—
A clear duty?
There will be a clear duty on health boards. The provisions in the bill require the health board to place a copy of the advance statement in the patient’s records and, at the same time, to send a copy to the Mental Welfare Commission.
As I remember from the evidence that the committee heard, the approach can improve the patient experience—I think that the deputy convener made that point. Currently, advance statements are held by the general practitioner and are not held centrally, so there is an issue if someone needs to access a statement quickly but the GP is not available. Again, the approach is driven by the desire to improve the service user’s experience.
If you take note of what the deputy convener of the committee says, you will not go far wrong, minister—at least with him.
That is not what you have said in the past.
It was a pleasure to have you here for the first time, minister. We look forward to working constructively with you and your team in the future. I thank you all for your time and your evidence.
11:15 Meeting suspended.Previous
Subordinate Legislation