Health and Sport Committee, 08 Oct 2008

Meeting date: Wednesday, October 8, 2008

Official Report 203KB pdf

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Subordinate Legislation

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Mental Health (England and Wales Cross-border transfer: patients subject to requirements other than detention) (Scotland) Regulations 2008 (Draft)

For our first main item of business, which is evidence taking on a draft set of regulations on cross-border transfer of mental health patients, I welcome Shona Robison, who is the Minister for Public Health. She is accompanied by John Williamson, policy officer in the Scottish Government's mental health division, and Joanna Keating, legal adviser in the legal directorate. Good morning to you all. I invite the minister to make some opening remarks, after which we will have questions from members.

Good morning, convener.

The purpose of the regulations is to make provision, under section 289 of the Mental Health (Care and Treatment) (Scotland) Act 2003, that will enable the cross-border transfer of Scottish patients who are on community-based compulsory treatment orders or compulsion orders to England and Wales, and allow patients in England and Wales who are on the newly created supervised community treatment orders to transfer to Scotland.

The 2003 act made provision for a new system of community-based compulsory treatment orders and compulsion orders. Section 289 of the act gave Scottish ministers a power to make regulations to provide for the cross-border transfer of patients who are subject to a requirement other than detention—that includes patients who are subject to community-based CTOs and COs—to enable patients who are on such orders to transfer from Scotland to another country in the United Kingdom and be placed on a similar order, and to allow community patients in other UK jurisdictions to transfer to Scotland.

However, until now, there have been no orders comparable to the Scottish community-based orders in other UK countries to enable reciprocal arrangements to be made. That is in contrast to the position with detained patients, in relation to whom similar regulations were made at the time of the commencement of the 2003 act to enable their cross-border transfer within the UK.

That position is now set to change. The UK Government plans to implement the main provisions of the Mental Health Act 2007 on 3 November, which, together with accompanying regulations, will bring into effect supervised community treatment orders in England and Wales. That means that there will be equivalent community-based mental health orders in England and Wales, to which Scottish community patients could transfer, and that community patients in England and Wales will be able to transfer their orders, thereby allowing them to be based in Scotland.

To tie in with the introduction of those provisions, we are introducing the regulations that are before the committee. At present, they will apply only to transfers to and from England and Wales; they will not apply to transfers to or from the other UK territories, which do not have similar orders under their legislation.

The regulations will allow community-based patients to request a transfer from Scotland to England and Wales, or vice versa, and have their order converted to an equivalent order under the mental health legislation in the other jurisdiction. In general, patients will seek to transfer to be closer to their families. The regulations will enable community-based patients to do that while still being subject to an appropriate mental health order. I will be happy to answer any questions that the committee might have.

The regulations seem eminently sensible to me. One does not always say that on this committee. Do members have questions?

I agree with the convener—the regulations are generally quite easily understandable and appear to be perfectly sensible. However, could you clarify something for me? I note that in regulation 6, on notification of a decision, there is a requirement to notify "the patient"—unsurprisingly—"the patient's named person" and, given the status of many such patients, "any guardian" and "any welfare attorney"; other persons are also listed, but my question refers only to the ones that I have mentioned. However, in regulation 28, which concerns the notification requirements post-assessment, paragraph (3) states that there is a requirement to notify "the patient" and "the patient's named person" but does not include a requirement to notify any guardian or welfare attorney. In my understanding—limited as it is—those offices might be discharged as part of the transfer process, so it is not clear why, given that such patients come within the mischief of the adults with incapacity regulations, there would not be a requirement to notify a patient's attorney or guardian.

We will have to come back to you on that, as I am not sure why the two regulations are different in that regard. I am sure that there is a logical explanation, but it is a fair point.

I did not wish you to come all this way without having to answer a good question.

Can we come back to you with that information? I do not think that it makes a difference to the provisions.

No, it does not—it just seems a bit odd.

If there is an issue arising from that, I am sure that we can sort it out.

We can move on to other questions while Joanna Keating and John Williamson examine that—perhaps a blinding light of explanation will come before the end.

I am pleased to hear about the joint working with Westminster and the other jurisdictions in the UK, which is eminently sensible. I think that it was Dr Richard Simpson who mentioned an agreement with the European Union at a previous meeting. In his absence, I wonder whether anything further has been done on that front.

We have looked into that. There are at present no reciprocal arrangements that cover transfers between Scotland and anywhere other than England and Wales. The power in section 289 of the 2003 act is wide enough to enable further regulations to be made at a later date, to provide for community patients to be transferred to any other jurisdiction, including outwith the UK. According to the information that I have, we are talking about a very few cases, and I am sure that they could probably be dealt with at present through negotiation.

The other important point is that if someone wanted to go to another jurisdiction and the equivalent community treatment order was not in place, they would not be allowed to go, on the basis that, as was the case in England and Wales until recently, there would be no equivalent mental health order in that jurisdiction to cover the patient. The authorities would have to be satisfied that equivalent arrangements were in place for a level of supervision that would ensure public safety and, of course, the safety of the person concerned. Those things would have to be considered on a case-by-case basis. Similarly, in the case of someone returning to Scotland, a jurisdiction with an order in place similar to the community treatment order would presumably discuss with the authorities here the transfer of that person on to the community treatment equivalent.

That was very helpful—thank you.

That was the exact question that I was going to ask. You alluded to the fact that there might be other negotiations further down the line with regard to Northern Ireland. Would you like to comment further on that?

Yes. My understanding is that there are no equivalent community treatment orders in Northern Ireland. Do we know whether there are plans to legislate for such orders there?

We have had notification that they are working on legislation in Northern Ireland, but we have no timescales.

In that case, once that legislation is in place and there is a commencement order in Northern Ireland, we will probably come back to the committee with similar regulations to ensure that there is a clear process.

Thank you for that.

At what stage in the process can a person coming to Scotland register with a general practitioner? Would it be on discharge from hospital? Or would they be registered with a GP where they had come from in the first place? Is there any mechanism for registering with a GP?

Once a person comes under Scottish jurisdiction, they will be assigned an appropriate medical officer, who will be a psychiatrist. The appointment of a responsible medical officer is dealt with in regulation 18. As part of the person's settlement into Scottish jurisdiction and the health system here, I presume that the services of a GP will be required, too. I suppose that the priority will be to ensure that the mental health services are in place, but the services of a GP will have to be established, too.

But you do not regard it as necessary to put that into the legislation.

The position will be the same as for anyone else who moves here. The community treatment order and its supervision are a responsibility of the responsible medical officer, so it will be for the psychiatrist to ensure that they are compliant and that the CTO and all its requirements are being progressed.

On the person's general health, they will be supported and encouraged to register with a GP, but that will not be a requirement under the legislation.

My attention may have just drifted a bit, but could the minister tell me whether guidance will follow the regulations—or would that be overegging the pudding?

There will be guidance. It will be good practice to ensure that matters such as registering with a GP are considered when the person is settling under the CTO.

Could I just clarify something? Issues have been raised that may or may not mean that change will be required in the regulations, particularly with regard to the issue that Ross Finnie raised. Am I correct to think that change may be required?

I do not think that the issues that were raised are material to the issue of cross-border transfers of patients who are subject to CTOs or the equivalent in England and Wales. They are more issues surrounding the legislation, and I am sure that they could be dealt with in guidance. I am happy to report back to the committee on the substance of Ross Finnie's question.

I am trying to be helpful because I know from the committee clerk that the deadline for considering the regulations is 27 October. Given that the recess begins on 11 October, the committee will be unable to consider the regulations further, whether we want to or not. Therefore, I think that the committee wants not only to be reassured that the regulations are robust but to know what the procedure would be if the particular regulation to which Ross Finnie referred had to be amended or revised.

I have a supplementary point on that. I take the minister's point that it might just be a slight awkwardness that, according to regulation 28, a person's welfare attorney or other party might not be notified. However, the minister might find that there is no good reason why reference to those people was omitted from regulation 28 and that it ought to be there. I would be happy if the minister stated on the record that, until she has had an opportunity to amend the law, she will instruct the relevant authorities to ensure that those persons are notified under the provisions of regulation 28. I am not saying that the minister will have to do that. There may be a logical explanation for the current provision in regulation 28, but we do not know what it is.

If there has been an omission, we could deal with that in guidance.

Indeed.

However, there may be another reason for the persons to whom Ross Finnie referred not being included under regulation 28. For today's purposes, I am happy to give an assurance that any issues that have been raised that require clarification, whether Ian McKee's or Ross Finnie's point, can be dealt with in guidance, if it is found appropriate to do that in the light of further discussions.

That is fine.

We are content with that. Some important issues have been raised but, given the deadline, and given that they will be dealt with in an appropriate forum, we are content. I do not think that any member wishes to debate the regulations.

Motion moved,

That the Health and Sport Committee recommends that the draft Mental Health (England and Wales Cross-border transfer: patients subject to requirements other than detention) (Scotland) Regulations 2008 be approved.—[Shona Robison.]

Motion agreed to.

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National Health Service (Recognition of Health Service Bodies) (Scotland) Order 2008 (SSI 2008/315)<br />Mental Health (Certificates for Medical Treatment) (Scotland) Amendment Regulations 2008 (SSI 2008/316)

We move to consideration of two negative Scottish statutory instruments. The first is SSI 2008/315, which will allow the payment of allowances and remuneration to the members of the Dentists Vocational Training Appeal Body—I did not know that they had one, but there we are. The second is SSI 2008/316, which specifies the contents of forms used to issue certificates under sections 235, 236, 238, 239 and 241 of the Mental Health (Care and Treatment) (Scotland) Act 2003.

No comments have been received from members and no motions to annul have been lodged. Are we agreed that the committee does not wish to make any recommendation in relation to the instruments?

Members indicated agreement.

That concludes the first section of formal business in public. We now move into private session for consideration of item 6.

Meeting continued in private.

Meeting continued in public.