Subordinate Legislation
Mental Health (Absconding Patients from Other Jurisdictions) (Scotland) Regulations 2008 (Draft)
I welcome to the meeting the Minister for Public Health, Shona Robison MSP, who will give evidence on the draft Mental Health (Absconding Patients from Other Jurisdictions) (Scotland) Regulations 2008. She is accompanied by Joanna Keating, who is a legal adviser in the Scottish Government's legal directorate, and John Williamson, who is a policy officer in the Scottish Government's mental health division.
I welcome the minister back to the committee after what was, I am sure, a busy recess for her, as it was for the rest of us, and invite her to make some introductory remarks.
Thank you, convener. It is a pleasure to be here.
That is worrying.
We will take the minister's comment as being honest and direct.
It was sincerely meant.
It was said with moving sincerity.
At its meeting on 23 April this year, the committee considered a set of draft regulations that were made under section 309A of the Mental Health (Care and Treatment) (Scotland) Act 2003. Those regulations, which became the Mental Health (Cross-border Visits) (Scotland) Regulations 2008 (SSI 2008/181), dealt with powers and provisions specifically for escorts to restrain and retake escorted mental health patients who are visiting Scotland while on short-term leave of absence from hospital. The draft regulations that we are considering are made under a different provision of the 2003 act, in section 309, which deals with the power to make regulations that cover a wider class of mental health patients who abscond to Scotland from the other jurisdictions in the United Kingdom, the Channel Islands and the Isle of Man. Those are patients who are subject to a civil or criminal mental health order, whether they are detained or in the community, and who abscond.
The statutory position at present is that persons who abscond from hospitals or in other circumstances from England and Wales are liable to be taken into custody in Scotland and returned to England and Wales under section 88 of the Mental Health Act 1983. A related provision in section 128 of the 1983 act makes it an offence to induce or assist a person who has been detained under the act to absent themselves without leave from detention in hospital or to harbour such a person. Provision has been made to repeal the application of those sections of the 1983 act in Scotland. The repeal will come into force on 3 November 2008. In addition, there is currently no statutory provision for the taking into custody in Scotland of mental health patients who abscond from Northern Ireland, the Isle of Man or any of the Channel Islands.
The purpose of the draft regulations is to make provision for the taking into custody of patients who are subject to compulsory measures under the law of England and Wales, Northern Ireland, the Isle of Man or any of the Channel Islands, and who are found in Scotland as a result of their having absconded or otherwise having failed to comply with the requirements of the order or other measure to which they are subject. The draft regulations are being made under the absconding provisions in sections 301 to 303 of the 2003 act, which relate to patients who are subject to measures in other territories that correspond or are similar to both civil and criminal orders, directions and other mental health measures.
Prior to the 2003 act, the provisions relating to patients who absconded to Scotland from England and Wales were contained in the Mental Health Act 1983 rather than the Mental Health (Scotland) Act 1984. The 2003 act did not alter such provisions. While wider reform of the 1983 act was pending, the approach was to continue in force certain provisions of the 1983 act that extended to Scotland. When the Department of Health considered amendments to the 1983 act, the opportunity was taken to co-ordinate amendments to ensure that each legislature made provision in relation to absconding persons from other jurisdictions within its own territory.
The effect of the draft regulations will be to allow a person who absconds to Scotland from another UK territory to be retaken and returned to their territory of origin. They will also put beyond doubt that escorts from other territories have a power to escort the patient while in Scotland.
The draft regulations, along with the Mental Health (Cross-border Visits) (Scotland) Regulations 2008, are intended to bring within the scope of Scottish mental health legislation provisions dealing with persons in Scotland who abscond or otherwise fail to comply with requirements that have been imposed under mental health measures that are applicable in one of the other UK territories. Only a small number of patients abscond each year. Most are civil patients who generally have more freedoms while in hospital.
I am happy to take questions.
This is, of course, an evidence session, so members may ask the minister or her team questions.
I have a minor question, minister. You said, as the Executive note does, that the relevant provisions of the 1983 act will be repealed. How will that be effected?
Joanna Keating (Scottish Government Legal Directorate):
The UK Government amended the 1983 act through the Mental Health Act 2007. There is a commencement order for the provisions of the 2007 act, on which we are liaising with the UK Government so that everything hits the same deadline of 3 November.
So when the 2007 act comes into force, it will repeal the provisions in question.
Yes.
The draft regulations cover the transfer between various areas of the UK of patients who are subject to compulsory measures. How do they relate to patients who abscond to other territories in the European Union? Are they covered in any way? I do not need an answer to that question at the moment.
There are no similar arrangements for patients who abscond from elsewhere in the European Union.
That is right. At present, the domestic legislation covers Scotland, England, Northern Ireland, Wales and the Channel Islands. There is no provision for patients who abscond abroad.
That is interesting.
As there are no more questions, and it seems that no member wishes to debate the draft regulations, I invite the minister to move motion S3M-02494.
Motion moved,
That the Health and Sport Committee recommends that the draft Mental Health (Absconding patients from other jurisdictions) (Scotland) Regulations 2008 be approved.—[Shona Robison.]
Motion agreed to.
Official Feed and Food Controls (Scotland) Amendment Regulations 2008 <br />(SSI 2008/218)<br />National Health Service Pension Scheme (Scotland) Regulations 2008 (SSI 2008/224)
National Health Service Superannuation Scheme (Additional Voluntary Contributions, Injury Benefits and Compensation for Premature Retirement) (Scotland) Amendment Regulations 2008 (SSI 2008/225)<br />National Health Service Superannuation Scheme (Scotland) Amendment Regulations 2008 (SSI 2008/226)
We move on to other Scottish statutory instruments. We have before us four negative instruments: SSI 2008/218, SSI 2008/224, SSI 2008/225 and SSI 2008/226.
The regulations in SSI 2008/218 add the Guar Gum (Restrictions on First Placing on the Market) (Scotland) Regulations 2008 (SSI 2008/176) to the definition of "relevant feed law" in the Official Feed and Food Controls (Scotland) Regulations 2007 (SSI 2007/522). The Subordinate Legislation Committee did not draw the instrument to this committee's attention.
The regulations in SSI 2008/224 set out new pension arrangements for those already employed, or intending to be employed, in the national health service in Scotland. The Subordinate Legislation Committee drew the instrument to this committee's attention on the grounds of numerous minor errors, which the Scottish Government has undertaken to correct.
The regulations in SSI 2008/225 make consequential amendments resulting from the changes outlined in SSI 2008/224 to existing regulations relating to additional contributions and compensation schemes associated with NHS pensions in Scotland. The Subordinate Legislation Committee drew the instrument to this committee's attention on the ground that it had raised two drafting points with the Scottish Government and was satisfied with its response.
The regulations in SSI 2008/226 amend the NHS Superannuation Scheme (Scotland) Regulations 1995 (SI 1995/365) to bring into force new arrangements for NHS pension schemes. The Subordinate Legislation Committee drew the instrument to this committee's attention on the grounds that there is an unusual use of an enabling power to remove retrospectively the right to buy back a pension; that there appears to be doubt over whether the regulations are intra vires; and that there is a question as to how those who joined the scheme between April and June 2008 will know what the elements of the new scheme are.
Information on all the instruments and on the Subordinate Legislation Committee's reports on them was intimated to committee members on 11 August, and members were asked to contact the clerks if they had questions. However, no questions have been raised, 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 recommendations on the instruments?
Members indicated agreement.
I suspend the meeting for five minutes to rearrange the seating for the round-table discussion.
Meeting suspended.
On resuming—