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Mental Health (Care and Treatment) (Scotland) Bill: as amended at Stage 2
We could consider the bill over two or three meetings, but such is the pressure of business that I think that we should get through it today, if we can. Does the committee agree?
The Mental Health (Care and Treatment) (Scotland) Bill was formerly called the Mental Health (Scotland) Bill. We considered it at stage 1 twice last year and expressed serious concerns about several of its delegated powers. The Executive told us that it intended to make substantial amendments, including amendments to the delegated powers. It has kept its word. The substantially amended bill includes a significant number of amendments and additional powers. Our responses might well be mixed.
Other changes have been made to sections 46(5), 168, 184, 196, 197 and 215 and to schedule 2.
Section 81(2) deals with ancillary powers of the tribunal and allows the tribunal to require the responsible medical officer or mental health officer
Should such reports be ordered by the tribunal, or should they be a matter for regulation by ministers? Whether the power is necessary is questionable.
We will ask the Executive for clarification.
That has been done for uniformity.
And fairness.
The changes are reasonable.
Does the committee agree?
We might have more to say about section 171A, which deals with the Scottish ministers' power to make provision in relation to treatment for some informal patients. The section applies mainly to children.
The section deals with under-16s who might be suffering from mental disorder. Concern might be expressed about the width of the powers that are being given to ministers, given the sensitivity of the subject.
The Executive says that the regulations would be subject to affirmative procedure, but we might feel that something more is required. I am tempted to think that the situation is anomalous and that the judgments that the committee sometimes makes about the width of powers that ministers can exercise do not apply. I do not mean to influence the committee greatly, but members might remember that under part 13 of the bill, which is about compulsory and other forms of treatment, definition was difficult. Is it acceptable to delegate such a power and for it to be so open-ended, or should some prescription be required?
If I read the information correctly, it says that the Executive is to consult more and to ask people about the proprieties. However, we should still ask the Executive whether it should consider putting more stuff in the bill.
I am sure that it should. However, it is difficult to decide what stuff the bill should include.
The purpose of the provision is the protection of children. Our worry is that people might disagree about what protecting children involves and whether their human rights would be infringed if the provision were applied.
There might also be disagreement about who could protect them. Bill, is there anything that you want to bring to the discussion from your experience of the Health and Community Care Committee's discussions on the bill?
Many of our discussions concerned the difficulty of striking the right balance between protection and what could be regarded as interfering with a person's human rights. It would be reasonable for us to ask the Executive whether the provision should appear in the bill. Members will readily accept that the discussions around the paradox of protection and liberty were difficult. However, I do not see why we should not ask that question in the context of subordinate legislation.
This is where subordinate legislation comes into its own—it is the pointy end of something that affects people dramatically. Perhaps we should tell the Executive, at the same time, that we sympathise with its dilemma.
I think that the Executive's intention is to use the power for protection, as Ian Jenkins said.
Right—and to have further consultation.
Section 181A, which is entitled "Named person: application by patient etc", allows the patient or another interested party to apply to the tribunal for an order appointing a named person or removing an existing named person. That is an obvious subject for delegated powers and the annulment procedure. Okay?
Section 185, which is entitled "Provision of information to patient", is another obvious subject for delegated powers and the annulment procedure. Okay?
Sections 202B(6) and 202D(5) deal with removal to a place of safety and the recall or variation of a removal order. Bill, do you want to take a minute to see whether you can remember any of the Health and Community Care Committee's thinking on those sections?
The Executive is going to give further consideration to these sections, too.
I agree with Ian Jenkins. Perhaps we could ask the Executive whether it has had any further thoughts on the provisions.
The provisions allow a sheriff to order that a mentally disordered person who is at risk be removed to a place of safety for a short period.
The Executive wants the right to add to the list of people who could make representations.
Should we ask the Executive how it intends to make clearer how the list would be added to?
Yes.
Perhaps we could, as a halfway house, ask which additions already figure in the Executive's thinking and leave it with the option of adding to that list later.
Okay. We will do that.
Usually, the courts determine whether there is a conflict of interests. I understand where the Executive is coming from, in trying to specify that in regulations; however, I am not sure how it could give a definitive statement, as the courts will always have the final say.
That is right. Is it worth while asking the Executive to explain to us how it imagines that that would happen? Alternatively, will it define "conflict of interests" in the regulations and wait until somebody challenges that definition before it works it out?
We could ask the Executive how it envisages that the regulations will work in practice.
Okay. That is a much nicer way of putting it.
However, there is an important typing error in section 225, which states that regulations made under section 168(3)(b) are subject to the affirmative procedure.
Yes. That is very important. It just shows that all the children who send text messages can get themselves into real problems if they do not learn proper English and grammar. I mention that in passing.
They will never get jobs as parliamentary draftsmen.
No, or even aspire to a place on the Subordinate Legislation Committee.
Their career choices will be limited.
We should ask the Executive to tighten up section 225.
Should not the exercise of the power in section 168(5) be subject to the affirmative procedure, as it would amend the text of an act?
Yes, perhaps.
That may just be a wee slip due to the volume of work that is being pushed through the sausage machine at the end of the session.
We could raise that as a concern, convener.
The sausage machine or that particular error?
Both.
That particular error.
Definitely.
The amended drafting is welcome. I think that we can accept section 184.
That is excellent.
Section 197 is about "Safety and security in hospitals". That section is also okay.
It is an improvement on the original.
Section 215 is entitled "Persons providing care services: sexual offences". That section has been improved.
The amended provisions are certainly an improvement on the original drafting.
Yes. The effects would be an improvement, but is the drafting good?
There is a problem with the power in paragraph 9(2)(p) of part 3 of schedule 2, which seems to overlap with the new power in section 81(3). There is a question about the Executive having the power to make both rules and regulations.
It cannot do both in the one instrument, as there would be overlapping and confusion about which to use. We will draw that question to the Executive's attention.
We also made some suggestions about sections 70, 73, 108 and 131, which the Executive has decided not to change.
I welcome that.
Good.
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Executive Responses