I want to talk about the bill in general and then I will quickly discuss the extension from five to 10 days that Bob Doris highlighted in his question.
We are concerned that the bill contains several proposals that seem to reduce people’s rights and their ability to participate fully. I refer in particular to the proposal to extend nurses’ power to detain; the quite limited nature of the proposals on appealing against excessive security; the proposal to decrease substantially the time within which a person can appeal against transfer to the state hospital; and the proposal to increase from seven to 14 days the length of time for which an assessment order can be extended. What the proposals have in common is that no detailed case—indeed, in some instances, no case at all—has been made for why they are necessary, even though they all, in one way or another, infringe people’s rights. We are concerned that proposals in the bill that might affect people’s rights have not been fully outlined and explored in the policy memorandum.
On the extension from five to 10 days, members will know that that was proposed by McManus, and we supported it at the time. We have not shifted our position, but we know that the number of interim orders—their number was the reason given for making the change—has fallen substantially, so we are looking for more information from the Government on the assessment that it has made of the measure’s impact and whether it is still required.
12:15
I echo what Shaben Begum and Gordon McInnes said but I make a plea for carers. The advocacy services that are available for carers are even less well known. The people we consulted throughout Scotland, including young carers and people in condition-specific charities that work with people with various mental illnesses, said that knowing that they could access advocacy or that it existed but they could not access it because it was full or did not operate in their areas might have made a difference to whether they became a named person. It might have given carers more of a say, more confidence and more of a voice to take part in treatment decisions and might have allayed a lot of family and relationship issues.
The Carers Trust would certainly like to see more in the bill about carer advocacy rights, to support carers. I agree with Gordon McInnes that building that into the advance statement is great, but we need to promote and publicise the role of the named person, as stated in McManus. It is a huge disappointment to carers that that is not reflected in the bill.
I agree with Shaben Begum. When we consulted carers through our network partners throughout Scotland and the Scottish young carers services alliance, we found that time and again we had to spend time explaining what a named person is, what we meant by an advance statement and where carers fit into being a named person. We also had to separate out the role of the named person from that of the primary carer when they are not one and the same person.
As McManus recommended, greater awareness is needed of the role of the named person and the consequences of taking it on. It is quite a powerful role and taking it on has a lot of consequences, especially for a sibling, wife, husband, mother or father of someone who has a mental health problem.
The role can interfere with family relationships. That is why the Carers Trust and the Scottish young carers services alliance want the McManus recommendation that 16-year-olds should be able to nominate named persons to be implemented, which would bring the legislation into line with that on issues such as the age of legal capacity. Many adolescents struggle with families. They do not have to have a mental disorder to have poor family relationships, but the situation is made worse if a 16 or 17-year-old has a mental disorder on top of that and their parents have to give consent. That seems to be an anomaly. The common view is that, if people can vote when they are 17, why can they not decide who will represent them or act in their best interests?
There are a lot of issues to do with the named person. The Carers Trust, the Scottish recovery network, the Glasgow Association for Mental Health and Support in Mind Scotland feel that the Government has missed out a lot of the robust powers and responsibilities that McManus recommended. Another issue is raising awareness about the role of the named person, which will impact on the service user, because the two can start to work together better.
We agree that the provision to appeal against excessive security should apply to people in low security, and we absolutely agree that the intention of Millan was for the principle of least restrictive security to apply. There has been a court case on the matter, which you referred to, and the person who brought that case was in a low-secure setting. As we know, it is possible to move from a low-secure hospital setting to a community-based order, and we believe that the Scottish Government’s argument for confining the right to appeal to medium-secure units is that an appeal against low-secure accommodation would essentially be an appeal against detention itself, given that the next step would be a move into the community. We do not agree with that. Someone can move from one level of security to another and still be in low-secure accommodation. We think that the right should apply as widely as possible.
We note that the purpose of this part of the bill is to bring in regulations that will give effect to a provision in the original Mental Health (Care and Treatment) (Scotland) Act 2003. It appears to us that the intention of the 2003 act is to allow a right to appeal against excessive levels of security to apply as widely as possible. We do not see why it would not.
We have concerns about whether there is sufficient low-secure accommodation provision. Given that people will be able to appeal against medium-level security, we would like to see work done on what low-level secure accommodation is available, whether it is enough and what more we need to do to develop that estate.
Okay—I was just checking.
Most disabled people, whatever their disability or impairments, get treated less well than the general population. In most areas of life, people with learning disabilities are even more disadvantaged than our friends and colleagues in the wider disability movement. In healthcare, for instance, we can expect to die 20 years sooner than other people. Educational opportunities are denied to us through a lack of adequate support and through inflexible systems. A greater number of crimes are committed against us, including sexual abuse. Our right to have relationships and start a family is blocked and prevented in all sorts of ways. Most important for today’s consideration of the bill, our right to equal treatment under the law is quite simply denied to us.
The Mental Health (Care and Treatment) (Scotland) Act 2003 describes us as “mentally disordered”. We described our experience of that in our open letter to all MSPs earlier this year.
The 2003 act defines us as “mentally disordered” because of our
“learning disability, however caused or manifested”,
and it allows us to be detained and treated for our mental disorder, even though we know that there is no treatment or cure for a learning disability. Ours is the only permanent impairment that is defined and dealt with in that way. Because of that, we are routinely denied access to justice, and anyone with a learning disability who commits an offence can simply be diverted away from the criminal justice system and into the health system and forensic services. While that sounds like a good thing, what it means in practice is that we can be detained for many years and restricted in nearly everything that we do, sometimes for the rest of our lives. That is happening to many people with learning disabilities in Scotland at the moment.
The safeguards in the system are mostly controlled by psychiatrists. We accept that some psychiatrists are kind and well-meaning people, but we do not accept that psychiatrists have a monopoly on understanding and managing people with learning disabilities. If a psychiatrist says that someone needs to be detained and restricted and watched and escorted, and that advocacy is not in their best interests, that is pretty much the end of the story. It should not be.
We are asking to be taken out of the 2003 act. We say that most of its provisions do not apply to us and have little or no relevance to us. Our view is that we would benefit from help and support to learn and additional time to learn and remember, rather than treatment for a disability that we will have for all of our lives. In fact, for us, things that are called “treatment” are most often about restrictions on our lives anyway.
The other major assault on our human rights is the way that the Adults with Incapacity (Scotland) Act 2000 is being used and applied to us. When the Adults with Incapacity (Scotland) Bill was drafted and passed, we were pleased about it and supported it. The principles of the 2000 act are sound. It makes it clear that all other, less-restrictive options must be considered and applied before guardianship orders are granted, and that capacity is not an all-or-nothing idea.
However, over the past few years, sheriffs in Scotland have begun citing each other and claiming that, where a person has been found by a psychiatrist to “lack capacity” on the basis of their “mental disorder”, a guardianship becomes the “least-restrictive option” in order to protect the person from claims of “deprivation of liberty”.
We think that it is very scary that Scottish sheriffs claim to be protecting us from deprivation of liberty by removing all our rights to self-determination. We think that it is shocking that firms of solicitors are urging parents to apply for guardianship orders before we reach the age of 16, meaning that we might never experience adult citizen rights in our own country in the 21st century.
We honestly believe that the time has come for a new piece of legislation that is just about people with learning disabilities. We think that it is only right and fair that learning disability is properly defined as an intellectual impairment rather than a mental disorder. With that definition, we would want recognition that additional time to learn and support to understand things, together with easy-read documents and support to make some decisions, are what we need. We need those things to help us take part in our communities, rather than restrictions, detentions and efforts to keep us apart from the world that we want to live in.
Those have not been easy things to say, and some people may feel uncomfortable with what I have said, but those are the facts.
I welcome everyone to the meeting; we are very pleased to have the guests we have invited along this morning, and I apologise for any inconvenience they might have been caused. We are not far off the time we expected to start, but the committee has had a very busy morning. Nevertheless, we will try very hard to give this issue our normal serious consideration by, in the main, listening to our guests. Just to get things going, however, we need to ask some questions. The deputy convener, Bob Doris, has agreed to do that, and we will see where we go.
In his evidence, John Crichton said that now we have medium-secure accommodation sorted, we really need to look again at low secure.
When the 2003 bill was going through Parliament, we debated whether the provision should apply to lower levels of security, but at that point we did not have community treatment orders. We have now had 10 or 11 years’ experience of CTOs and we should regard them as another form of detention. A CTO is a restriction on liberty, even though it is a restriction within the community. Steve Robertson made that point eloquently. We need to look at that.
We also need to look at learning disability, although that might not be possible within this rather limited act.
Can I say one more thing, convener?
That is where we would certainly advocate greater involvement of family members and carers—not just named persons, who can be different from the carer—in the review process and assessments. What could happen is that someone might be deemed ready for discharge from a unit—perhaps not the state hospital or a medium-secure unit but a low-secure unit or open ward—but the family might not be ready. The person could still be discharged into a family that is not prepared, has not been involved and does not know the side effects of medication or who to call in a crisis.
Greater involvement of the family can help to prevent some of the issues that you have mentioned from arising. In particular, we need greater involvement from the forensic carers of people in the state hospital, which covers the whole of Scotland and Northern Ireland. A lot of forensic carers feel that they are underrepresented and are not brought into any discussions about movements or other changes, and involving them more could help to reduce the problem of people being moved about and then suddenly finding that they have nowhere to go.
Thanks, Steve.
Bob, you asked the original question and encouraged the responses.
It would be inappropriate to leave Steve Robertson’s statement to the committee hanging. I apologise that all that I will do at the moment is mirror back to you a couple of the comments that you made. You set a challenge for the committee that is clearly outwith the scope of the bill but, if I were you, I would have taken the opportunity to put my views on the record, too. That is precisely what you did, and I respect that.
I wrote down your point about the definition of those living with learning disabilities and the appropriateness or otherwise of deeming people to be mentally disordered. You mentioned the term “intellectual impairment” and said that there should perhaps be different processes in place to support people living with learning disabilities. We have to consider that, although not in relation to the bill.
You made a point about how the Adults with Incapacity (Scotland) Act 2000 impinges on the rights of those living with learning disabilities. You specifically mentioned guardianship orders. You spoke about degrees of independence, liberty and freedom and about guardianship orders perhaps taking everything from certain people with learning disabilities.
I will just leave those remarks hanging there. I thought that it would be wrong not to respond to the powerful statement that Steve Robertson made.
I think that the most reasonable follow-up question is about advocacy. Within the legislation, there are additional powers taken by professionals. From my reading, they are well intentioned and there is some rationale behind additional powers being taken. Every step of the way, when people’s rights are impinged on—perhaps for acceptable reasons, because of clinical evidence—there is a strong need for advocacy. I know that Shaben Begum has strong views on advocacy in the bill.
I do not know whether that is the best way to take forward the discussion but, as always, we are in the witnesses’ hands. I did not want to leave Steve Robertson’s powerful statement hanging there.
I echo much of what has been said, particularly about advocacy. We have talked about McManus. The principles on which the 2003 act rests are completely disrespected if people do not have the support that they need to make their own decisions and do not have the advocacy available to allow them to challenge substitute decision making. Not having that undermines the spirit of the legislation, which was supposed to be groundbreaking.
People we have spoken to say that advocacy should not be provided just in times of crisis, that early independent advocacy should be provided and that things such as peer advocacy projects should be encouraged. Support should be planned early and the treatment that is required should be considered. I echo everything that has been said about advance statements, which help to prevent deterioration of mental health and avoid the necessity for compulsory treatment, which is such a difficult issue.
There are lots of debates about compulsory treatment and whether it is in and of itself a total denial of somebody’s human rights. It would be a way of avoiding any such situations if people got early advocacy and made informed decisions when they were not feeling so unwell. We say in our submission, on the basis of what people have told us, that we would like a statutory duty to be placed on health boards to promote advance statements and ensure that people are fully informed about what making an advance statement means.
Everybody seems to be in broad agreement that there are times when it would be needed quickly.
We think that the named person role is fundamental but that people ought to be able to choose their named person. The bill will make a lot of improvements to the named person provisions, in that people will be able to say that they do not want one or to choose who to have. However, although that will improve the situation, there will still be a default named person for individuals who do not state that they do not want one.
13:15The problem with that is that, as we all know from people’s experience of the 2003 act, people do not have good awareness of their rights. Indeed, the research that we did in preparation for our response to the bill backed that up, and the Mental Welfare Commission’s research, too, found that people have low awareness of their rights. Therefore, it is not particularly helpful to introduce a right to opt out of having a named person, because there is no reason to think that people will be any more aware of that right than they are of any other right.
We agree with McManus, who recommended that the default named person role be abolished; that carers be given limited automatic rights to ensure that abolishing the default named person role does not reduce carer involvement, which is important; and that named persons be given more support to ensure that they understand the role. Although the bill requires named persons to consent to taking on the role, which is good and should mean that the role is explained to people, we think that named persons need more support to be able to carry the role out. We are absolutely clear that the default named person role should be abolished.
I support the points that Steve Robertson made about access to advocacy. Recently, we produced research called the map of advocacy for 2013-14, which is a snapshot of what happens in the world of advocacy in Scotland. We asked all advocacy organisations and all NHS and local authority commissioners and funders how much money they spend on advocacy. To go back to Steve Robertson’s point, one issue that came out was that funding for advocacy has been either frozen or cut. Overall, we found that funding for advocacy has gone down by 1p per head, but the demand for advocacy increases year on year. For this edition of the map, demand had gone up by 8 per cent.
One concern that we share with People First is that, even though people with a learning disability have a legal right to access independent advocacy under the 2003 act, they still do not have access to advocacy in the way that they should. Steve Robertson talked about the extreme ends of the spectrum, where people might be in forensic settings. Those people have some access to advocacy, but not in the way that we want to see it.
I want to concentrate on the people who are in the community but who might be leading isolated lives in many respects—we talked about that outside the committee room—through a lack of social networks or family and friend networks. Advocacy provides a vital life link for those people by promoting social inclusion and safeguarding their rights.
People with learning disabilities are one of those groups who still do not have the right level of access to advocacy. If they are in the community but have limited networks and are not in receipt of services from a community psychiatric nurse or mental health officer, they are less likely to find out about advocacy. We have found that fewer and fewer mental health professionals are telling people about advocacy.
We have in-depth research in which 12 people with a learning disability from throughout Scotland were interviewed. The majority said that they had never been told about advocacy. We are talking about adults in their 30s, 40s or 50s who had never found out about advocacy from a statutory source. A CPN or their social worker had not told them about it; they had found out about it through other people they knew, collective advocacy or self-advocacy groups.
12:30We are finding out that people do not find out about advocacy in time. The majority of the people who took part in the qualitative research said that they wished that somebody had told them about advocacy, because it could have saved so much misery and distress in their lives. They said that it could have made a huge difference to them if they had known about advocacy, about their rights and about how they could challenge decisions that were being made about them, their financial freedom and their freedom to make decisions, have relationships and do all the things that you and I do, which include making the mistakes that we all make.
Making mistakes is one of the reasons that professionals use for safeguarding people with a learning disability. We give a lot of consideration to risk, but we all make terrible mistakes in our private lives every day. We have the freedom to do that, but people with a learning disability do not have those same freedoms. They do not enjoy the same level of freedom and opportunity to be active citizens in our society.
I am sorry; I have been waffling. If Bob Doris has a particular question on advocacy, I will answer it.
McManus mentioned that advocacy needs more promotion and that there is a direct issue about the appropriate provision of advocacy and the associated funding for it. That is further exacerbated by the perfect storm scenario, whereby lots of disabled people and people with long-term conditions are being affected by welfare reform and cuts to services.
I do not know whether the committee noted that this week the Scottish social attitudes survey revealed that there has been an increase in stigma and discrimination over the past few years in relation to people who come within the bill’s scope: people with mental health problems and people with learning disabilities. Advocacy can be a tool for challenging that, but a block is that a lot of people cannot access it because there is not enough provision. We would support monitoring of access to the independent advocacy that exists. There require to be consequences for local authorities and health boards when people cannot access advocacy services. Greater empowering of people to report failings on advocacy is probably required, too. I am not sure whether that is within the bill’s scope, but there is definitely a gap.
I will be very quick. I should say that, as a former advocate myself, I am biased.
Given that a large part of people’s experience of receiving compulsory treatment is disempowerment, which has real implications for treatment outcomes, the advocacy process and the involvement that it brings have a therapeutic benefit. I do not mean that in a wishy-washy way. The very fact that someone is given compulsory treatment quite often damages them, and advocacy should be viewed as almost essential in minimising that collateral damage.
That is great. I really respect everything that you said. Thank you—it is much appreciated.
Does anyone else want to respond?
I was halfway through crafting my first question, which was about the proposal to extend from five to 10 working days the period after a short-term detention certificate ends before a compulsory treatment order must be applied for and whether the balance in that respect was right. However, in the spirit that the convener has referred to, I do not necessarily want to focus on and tie us down to that. Instead, I want to open up a discussion about whether our witnesses think that the balance of additional powers in the bill is appropriate.
Our response to the bill was informed by work that we had been doing to consult disabled people across Scotland on whether the Scottish and United Kingdom Governments are meeting their obligations under the United Nations Convention on the Rights of Persons with Disabilities. Our concerns all relate to the extent to which the bill is being taken forward with proper account being taken of the way in which any changes have implications for people’s human rights.
It seems to us that the UNCRPD is crucial in the context of mental health provision, exactly because of the powers that are given to medical and legal professionals to deny what people would generally consider to be a person’s fundamental rights. Those rights are massive. They include a person’s right to freedom and autonomy and to make decisions on their own behalf. The bill gives professionals the right to do things to human beings that in any other context, including other medical contexts, would be deemed torture or abuse. Giving professionals those powers is not something that should ever be treated as routine.
We have been reviewing the bill, and the basis of our submission is our concern about the extent to which we think that it may be moving in the direction of being more about administrative necessity than about identifying people’s rights. That is why we asked for People First to be represented at today’s meeting, and I know that Steve Robertson wants to speak to those issues.
When we are discussing somebody taking up the role of named person, another element is that somebody such as a mental health officer may take on the role. There are two issues. A family member who takes on the role often lacks advocacy skills or knowledge of the mental health treatment process or the legal frameworks. When a professional does it, they often do so at short notice and do not know the person. Both those factors have an impact.
I suggest that there should be some rules, because we often hear that a professional has been nominated as a named person at the last minute. The professional concerned might not know the person so, although they might have the skills and the knowledge of the system, how can they argue on that person’s behalf?
Gil, do you want to take us on to another subject?
At the start of the session, Carolyn Roberts made a quick reference to appeals against hospital transfers and the rights of managers in effect to transfer patients from one establishment to another. Under the bill’s proposals, the length of time for making an appeal would be cut from 12 weeks to four weeks. I do not want to put words in the mouth of the Mental Welfare Commission for Scotland, but when we questioned it on the matter, its main concern was not so much about rights being taken away or reduced—it seemed to think that, in some cases, that was the right thing to do because the patient required treatment that could not be provided in a particular establishment—but about the loss of the patient’s bed in the establishment in which they had been housed. In other words, after they had been moved elsewhere—perhaps against their wishes—they might have no right to go back. Of course, the panel might have entirely different concerns or might wish not to dwell on what I am saying if it thinks that it is irrelevant.
I am not sure that I have fully understood the question. Perhaps I was not being clear when we were talking about appeals against excessive security. The provisions in the bill would give effect to the provisions in the Mental Health (Care and Treatment) (Scotland) Act 2003 on the right to appeal against being held in excessive levels of security. That right came in for the state hospital, which has the highest level of security; you can now appeal against your being held there, and if your appeal is successful you get moved to a medium-secure facility.
We are arguing for a similar right at every level. Not only should people in medium security be able to appeal against their being held there and move to low-level security, as is set out in the bill, but people in low-level security should also be able to appeal and perhaps move to a community setting. That right would not come into play if you were being transferred from one medium-secure facility to another, because the level of security would not change, as you have said. Have I understood the question right?
Can I change the subject, convener?
I agree with a large amount of that. I am not aware of any real training or support for named persons, apart from the stuff that Karen Martin does. Someone can be thrown into a situation in which they are expected to be effective in a tribunal process and to deal with complex medical treatments for a person they love and are in a relationship with. That is an impossible situation for a lot of people.
I mean no disrespect to MHOs when I say that although they all know the process and systems very well they will not know the person well. That takes me back to my point about freeing up capacity to do proactive work with people.
I suppose that this is a supporting statement. My organisation has a contract with NHS Greater Glasgow and Clyde to do user-involvement work in mental health, but it is also a service-user-led organisation with 600 members. Our perception is that services are fire fighting. They are very much on the back foot and are not looking to do proactive work, which is the other part of advocacy. We can get a person when they are unwell and support them through the tribunal process—that is fine—but very little proactive work is being done with people.
We did peer promotion of advance statements. It was hugely successful to the extent that our limited capacity could deliver it—it was a sideline to my paid job. We took service users from being cynical about advance statements, because they can be overruled, to saying that everyone should have one and should have the narrative about advance statements to engage with. For instance, the issues that someone has with access to information for carers can be addressed in an advance statement, as can be their attitudes to treatments. The statement represents the service user taking responsibility for telling services what they need to know about their care and treatment. The statement puts that on a plate.
NHS Greater Glasgow and Clyde has two computer systems: Genisys and PIMS—the patient information management system. If there is an advance statement, an alert flashes up. Genisys is a central database and the documents can be downloaded from it. An advance statement can be accessed in most mental health settings in Glasgow 24/7, 365 days a year. Few statements are made, because practitioners do not have the capacity to do proactive work, but they could be a huge part of a service user’s greater involvement in their mental health treatment and improving outcomes.
We promote advance statements as documents that improve crisis response, minimise people’s time in hospital and improve their recovery post-hospital. That probably has a financial implication for the NHS and, were that approach to be adopted on a larger scale, there would be significant improvements not only in rights but in treatment.
There are two points when an advance statement is likely to be needed—one is in the tribunal process and the other is during treatment in a crisis. That is often when the proactive work bears fruit, which is part of the point to make about advance statements. Often, the treatment process is like a conveyor belt, so the people in the hospital do not see the benefit of the community work and those in the community do not see the benefit of the crisis work. Those things need to be tied together, which is why I stress the importance of the advance statement as a proactive document. When someone is in the community, a well-written advance statement might not make a big impact but, if they become unwell again, it will—particularly if the tribunal process adequately supports them. That is what I mean when I say that a well-written advance statement can improve almost every aspect of a person’s mental health care and treatment.
12:45
Yes, you can, Dr Simpson, but you are not giving evidence.
Karen Martin is showing an interest in answering that question.
Shaben Begum was named, so does she want to respond?
I will highlight research that the Mental Welfare Commission for Scotland published last year. A series of focus groups was held throughout Scotland to talk to people who have used mental health services. The majority of them knew nothing about the named person, advance statement, independent advocacy or their rights under the 2003 act. The people who knew about their rights to a named person and an advance statement had used advocacy or had been involved in a collective advocacy group.
Advocacy has been shown time and again to be a useful vehicle for enabling people to have a better knowledge and understanding of their rights. People are more likely to nominate a named person and have an advance statement if they know about those things in the first place and if they have an advocate who supports them.
Many of our members do a lot of work to raise awareness about what a named person is, what their responsibilities are and how that role can help the service user. They also help a lot of service users to draw up advance statements and to think about what will be a robust advance statement. Advocacy needs to be recognised for the role that it plays in generally raising people’s awareness about their rights and in specifically raising awareness about the two additional safeguards in the 2003 act.
You have raised a really good point. The provisions relate specifically to transfers to the state hospital, which is our highest-security hospital. Our concern about the very substantial reduction in the timescales for appealing against decisions on people being transferred is that the reason why the proposal is felt to be required has not been very well outlined. The argument is that the time for appeal delays treatment that might be required urgently, but we neither understand that nor think that it has any substance. After all, the existing mental health legislation allows the tribunal to order a person to be transferred immediately, pending their appeal.
That brings us to the Mental Welfare Commission for Scotland’s concern about loss of the bed at the original hospital. I do not have the details, but I am told that on at least one occasion a person who was transferred to the state hospital won their appeal only to find that their bed in the sending hospital was no longer available. It is clearly an issue; I have read the commission’s evidence and I think that it has proposed that the person’s bed be guaranteed until the appeal has played out. That seems entirely sensible to me, but it does not necessitate a reduction in the appeal timescales from 12 weeks to 28 days, especially as the tribunal can already direct a transfer to take place, pending the outcome of an appeal.
I know. I just wanted to comment on Steve Robertson’s position. As a fellow of the Royal College of Psychiatrists, I hope that I am one of the kind psychiatrists to whom he was referring. Maybe he will tell me later.
I was concerned to hear that somebody could say that advocacy was not appropriate to an individual. I cannot think of circumstances in which advocacy is not appropriate. Are there any circumstances in which it is appropriate not to suggest that an individual might wish to take up the option of having advocacy?
We agree that the default named person role needs to be taken away. As Karen Martin said, there needs to be proper support for named persons. In our evidence, we said that named persons need access to advocacy, because if they receive the right support they will have a better understanding of their responsibilities and they will be able to militate more effectively against the sort of relationship breakdown that can come about when a spouse, partner or whoever acts as a named person.
There needs to be better scrutiny of access to advocacy. Our evidence backs up what Karen Martin said about carers’ access to advocacy being very limited. Maybe the Mental Welfare Commission should have responsibility for looking at who can and cannot access advocacy and how access works across the country. Our main concern is that section 259 of the 2003 act, which is about access to advocacy, is not being implemented in a coherent and consistent way across the country.
If work was done on the issue, we could address some of the gaps because we would be able to find out who is not getting access to advocacy, beyond what the SIAA does. For example, until recently, when the NHS took responsibility for health in the prison service, there was no advocacy at all for people who were detained and who were using mental health services. Slowly but surely we are getting more access to advocacy in the prison service, but we are far from meeting demand and many people in the prison service who have been detained under the 2003 act still do not have access to advocacy.
Yes.
Can I comment on the point that Richard Simpson made?
I was hoping that you would. We have 10 minutes left, and I want to give other issues an airing.
Agenda item 7—[Interruption.] No—it is agenda item 8. I am doing well this morning.
Agenda item 8 is a round-table evidence-taking session on the Mental Health (Scotland) Bill. As is usual with such sessions, we will begin by introducing ourselves. I am convener of the committee and MSP for Greenock and Inverclyde.
Do you want to speak, Steve? If you are not ready yet, there will be opportunities later.
That was ideal. Are you saying that, for those who are currently staying in the lowest form of secure setting, there should be a standing right to appeal, full stop? If so, do you not agree that there are already mechanisms in place for reviewing compulsory treatment orders? I am just trying to establish what the difference is. Do you want people in the lowest level of secure setting to have the standing right to appeal on an on-going basis, or only at the point of transfer?
I am a development worker for the Mental Health Network (Greater Glasgow).
Great. First, however, Rhoda has a supplementary question on the previous subject.
You can appeal against a hospital transfer, but we are talking about specific rights with regard to being held in excessive security. An appeal against a hospital transfer could be made on a number of issues such as appropriateness or clinical care, but the rights that we are talking about are specifically about being able to argue, “I am being held in a level of security that is not necessary.”
I have some views from People First. It is our input on the Mental Health (Scotland) Bill. Shall I go with that?
I will allow people to answer Gil Paterson’s original question on security, and the questions that flowed from that, before we go into answering another question, Richard.
Bob Doris, do you want to come in before we get a response from our panellists?
Some people have referred to the named person. What I am picking up is that it might not be appropriate for the carer to be the named person, because they might not have the expertise. We have heard from service users that the named person has a lot of access to their medical records and the like, which some people might not want a family member to have.
I suppose that it is up to the individual, but is there a need for the named person to be a professional, who could extend the role to carers and family members? In that way, carers and family members would be equipped to support and help but would not be able to access information if the person in question did not wish them to. Do we need to expand the role in that way? Indeed, should we give people the choice not to have a named person at all?
We feel that the bill has taken a very clinical direction. It has moved away from the person-centred recovery approach taken by “Towards a Mentally Flourishing Scotland”, the mental health strategy and, indeed, by the carers strategy, which is all about working with people at and building things up from the grass-roots level. As I have said, things have gone very clinical, and there is not an awful lot of evidence that the legislation will work towards the recovery of individuals with lived experience of mental ill health or that it will, in fact, involve carers in any meaningful way, even though respect for carers is one of the principles underpinning it.
Does anyone else wish to comment on that?
Yes, because that is the one that we are going to come to next. You can kick off.
I am afraid that that brings us to the end of our meeting. I thank you all very much for your attendance this morning and for your oral evidence. Thank you, too, for your important written evidence, which I hope that you will see reflected in our report on the bill.
We will defer item 9 until 25 November, unless any committee members want to push on—but I do not expect any bother from you about that. Thank you.
Meeting closed at 13:19.
Yes, of course—whatever you are comfortable with.
Gordon McInnes mentioned the availability of the advance statement. Previous witnesses have given us evidence on confidentiality. Gordon, you seem to be saying that the advance statement is very accessible, so how do you deal with confidentiality issues?
I have a related question, convener, but it goes back to sections 10, 11 and 12, which relate to the right of appeal against certain levels of security. At the moment, that right applies only to those at the state hospital, but in light of the RM v the Scottish Ministers case, the bill now proposes to extend the right to those in medium-secure units, which we supposedly have an adequate supply of—that particular building programme has now been completed and we now have a unit at the Murray royal hospital development, a unit in Glasgow and a unit in Edinburgh. However, the point that some of the witnesses have raised in evidence is: why stop at that? What about lower-secure units? After all, one of the Millan principles was about providing the least restrictive care, and surely people who are being restricted in any way should have the right of appeal. Do the witnesses think that the bill should be amended to ensure that the right of appeal against excessive security is extended not just to medium-secure units but to low-secure units? What are the arguments for and against such a move?
Before the Mental Health (Care and Treatment) (Scotland) Act 2003 was implemented, there were lots of situations in which people were told that advocacy was not suitable for them. Quite often that decision was made by a clinical team, and I know that Steve Robertson will have lots of examples of that. Unfortunately, we still hear of people being told, “Advocacy isn’t appropriate for you.” As a former advocate, I have experienced lots of situations in which I was told that advocacy was not helpful because it was putting ideas in people’s heads or that certain people would never have thought of challenging people in authority if I had not suggested the idea to them.
For me, advocacy is all about broadening people’s horizons and telling them about their options, their rights and all the things that they do not know about. After all, they might not know that they can exercise those rights. However, we still hear about cases of people with dementia or learning disabilities, or children and young people, who are not able to access advocacy.
I do not know whether you have had a chance to read the briefing information that we sent out. Children and young people who are detained or receive care under the 2003 act still do not have access to advocacy in the way that adults do. Some people are still being told all the time that they do not need advocacy or that it is inappropriate because it will interfere with the clinical treatment that they are receiving.
I would rather hear witnesses’ opinions on security than ask about it. I was going to ask a question on that.
I must have misunderstood that when I was talking about transfers. Do you want people, wherever they are and irrespective of other grounds for appeal, to have the right to appeal against the level of security in which they are being held?
I am a Glasgow MSP and deputy convener of the committee.
As I said, I am from the Health and Social Care Alliance Scotland, whose 780 or so members include disabled people, people with long-term conditions and third sector organisations that work in health and social care. Earlier this year, we held a round-table session on this very legislation with a group of organisations and people who work with the Scottish Government on a wide range of the issues in question, and there was deep concern about the proposals not being particularly person centred, despite the wider push, not least in the 2020 vision, to encourage such an approach in health and social care. There was also concern about the bill making a series of administrative duties in isolation from people and their rights, and about its focus on updating existing legislation instead of reflecting on the range of developments that have taken place over the past decade. For example, the alliance that I speak on behalf of is making a strong push on self-management but I do not see much of that coming through in the bill.
The responsibility must lie with the service user, who should be given the power to decide whether they want a named person. We would like the bill to leave it up to the service user to decide whether they want a named person and, if they do, who it will be.
When the service user lacks capacity or is unable to nominate because they do not have anybody in their life, a paid worker could come in as a named person. From our point of view—that is, the point of view of carers who go on to become named persons—a named person is a party at a hearing, so they have the right to cross-examine witnesses, lead evidence and present evidence et cetera. We would not like that to be diminished, because for a lot of carers that is a powerful role through which they can put across their side of things and challenge medical and mental health officers.
We would like the default named person provision removed from the bill. I have not met any service users or carers who like the idea. Under that provision, the named person could be your nearest relative, who might be Auntie Jean, your auntie five times removed, who lives in Australia and who has not seen you—now an adult under a compulsory treatment order—since you were two years old. Realistically, what kind of information is she going to be able to provide?
People are supposed to nominate not when they are ill but when they are well, but we know of some carers who were nominated as named persons when the patient was ill and the first they knew of it was when a load of paperwork arrived at their door. That paperwork is very sensitive, and there is an issue about what kind of information that we give named persons and how we prepare them to receive it.
In my role, I have done some training with carers about the type of information that they are likely to get, which has opened a lot of eyes. In fact, Gordon McInnes was at that training. Some mental health officers will give you information on a person from their birth to the current day, while others will give you just what you need to know for the purposes of the hearing.
The role could be expanded to include paid named persons, but I would be very careful about going too far down that road. Carers, family and friends, who can be named persons too, offer a lot of value and I would be a bit wary that we might get paid people setting up wee businesses—Named Persons “R” Us, perhaps—instead of paid personal assistants who might know the people really well.
Yes.
I am policy and information manager at the Health and Social Care Alliance Scotland.
From a carer’s point of view, the other side of what Shaben Begum is talking about is carers who are told that a patient does not need an advocacy worker because they have a solicitor. A solicitor and an advocacy worker do very different jobs, and the advocacy worker can get a lot of information from the service user because they are not coming in suited and booted from a law firm. There are also carers who are denied access to advocacy.
I have supported peers to do sessions with people who have had things such as disinhibited behaviours and other sensitive issues included in their advance statement. If there is a central database, there is a clear access requirement.
When we do the work, we get the person to draw up a list of people who have copies of the statement and include their names and addresses, and they put that distribution list, if you like, in the statement. That includes their GP and psychiatrist, as well as any named person, carer or anyone in any other such role.
The assumption is that they will discuss the matter and any access-related confidentiality issues with them. However, that requires someone to sit down and do the work to decide who should be on the list, what should be in the statement and who should get access to the information. If a person is not happy about receiving or giving information, they should not be put on the list.
A lot of our members are socially isolated, so they do not have a huge list of people to draw on.
Ask your question, then we will hear the responses.
I am sorry, convener, but I should have referred members to my entry in the register of interests, because I have an intern from Inclusion Scotland.
Okay.
Apologies; I am maybe showing my ignorance by asking this question but I am trying to get my head round the point that was made. If someone is being transferred from a low-secure setting—not in the community—to another low-secure setting, or if they are being transferred from a more secure setting to a less secure setting, how could they appeal on the ground that the security was excessive? The constraints on the person would be lessened or not changed. That is a common sense view of what I am hearing.
I appreciate that somebody moving from a low-secure setting to a community treatment order might be a different issue. However, when someone is transferred from one establishment to another with the same level of security, why would there be a need to appeal against excessive security? Are other mechanisms not available through which a detention can be contested, irrespective of whether someone is being transferred from one hospital to another?
I hope that that makes sense. I am just trying to understand the bill’s provisions and why they are unreasonable.
We are told that people who have a learning disability do not need advocacy, but then again I was often told that I did not need to advocate for people who had been informed of their rights. There is a misunderstanding about the role of advocacy. Sometimes I played an active role in meetings and supported a person in speaking up—or I spoke up on their behalf if that was what had been agreed—but sometimes I was just there for moral support, because we all know what it feels like to be isolated and alone. The role of the advocate will be different in different situations and with different groups of people.
That misunderstanding about what advocates do persists among some clinical teams and professionals, and Karen Martin makes a good point about the confusion that arises from people thinking that someone who has a carer, a named person or a lawyer does not need advocacy. The advocate is more likely to know the person better than their lawyer does. The lawyer will see them only at certain points on their journey, but the advocate sees them a lot more often and has a much better qualitative relationship with them.
I am a Highlands and Islands MSP.
But is there not already a statutory review process for those under compulsory treatment orders that say where they should be?
They would be reviewed every two years.
Carolyn, do you want to help us to conclude this bit of the discussion?
I am mental health co-ordinator at the Carers Trust Scotland.
Maybe the panellists will give us a wider sense of their views on security and the appropriateness of where someone is at any given time. Can we have some responses on that? I do not know whether I saw Gordon McInnes nodding—
We are now in the final 10 minutes of the session, and I would like to hear Gordon McInnes’s views.
On the specific point about confidentiality, advance statements are a great tool—I absolutely echo what Gordon McInnes said—and people need to be encouraged to make more of them. When we have done research on the experience of being detained, people have said that they do not know about the statement or believe that the statement will have no weight, so we welcome the fact that the bill will introduce a register of advance statements. However, people have expressed concerns about the fact that the entire advance statement will be held in the register and have asked who will see what is a personal document.
In our submission, we propose that—ideally—the register should hold only the fact that a statement has been made, the date when it was made and whom to contact to get it. That would reassure people, while letting the register do everything that it should. Failing that, we urge that the provisions on who can access the statement be tightened up.
The bill says that a person’s mental health officer and the responsible medical officer can see their statement, which is absolutely right. However, it also says that anyone acting on the person’s behalf, as well as their health board, can access the statement. Those are incredibly broad provisions; we strongly urge that they are tightened up.
I am a South Scotland MSP.
I was just agreeing.
Are there conditions attached to that right to have an order reviewed? I am not trying to be churlish—I just do not understand. Should there be a right to appeal every three months, every six months or every nine months? When should the person who is residing under that level of security and detention get the right to have their order reviewed or repealed? Is it a standing right or one that would be given every so often? I apologise for asking so many questions; I will not ask any more, but I see that I need to increase my knowledge and understanding of the process.
—or whether he was just nodding off. Carolyn Roberts?
13:00
Karen Martin will help us along.
I am head of policy and campaigns at the Scottish Association for Mental Health.
We should be aware of the fact that, the last time we looked, there had been 900 breaches in health boards, with people accessing confidential data that they should not have accessed. The witnesses raise a valuable point.
I have always been of the view that the person who holds the statement—provided that the individual is confident to do so—should be the general practitioner. A lot of confidential information should be held at that level and accessed only if the patient and the GP are in agreement that it should be accessed. That is in general, but we will need to return to the whole issue of privacy and confidentiality.
In the context of the bill, I support Carolyn Roberts’ view that the register should record the existence of the advance statement and not the full content of it. Enabling health boards to access advance statements is far too broad an approach; the bill must be much more tightly defined.
I am the MSP for Edinburgh Western.
I appreciate Gil Paterson’s patience, as I know that he wants to come in. I take on board the comment that health boards getting the advance statement is a fairly broad provision and that the bill might need to be tightened up in respect of what that means. I do not know the answer to this question but, if the advance statement is held by a GP or another trusted individual and we have a register that says only that a statement exists, might not there be times of crisis when one would need quick access to the statement—within minutes or hours—when one might not be able to access it from those sources? I am not arguing against Dr Simpson’s position; I am just wondering whether there are practical aspects to take account of, in case one needed to get the advance statement as quickly as possible.
I hope so, convener.
My understanding is that the responsible medical officer—the consultant psychiatrist—has a duty to constantly review the care and treatment of anybody who is on a compulsory treatment order. If my understanding is correct, if someone was beginning to recover and could function in an open ward—they might not be quite ready to move out into the community, but they would not need to be in a low-secure unit and could have ground access and be allowed to get out and about—it would be a matter for the responsible medical officer, along with the treatment team, the carer and the service user him or herself. If somebody has been under a compulsory treatment order for two years, there is a statutory duty for the tribunal to review it. People are given an order for up to six months in the initial circumstances, pending on-going review, and I think that the situation is the same for those in low-secure units.
I do not know whether I have helped things or have muddied the waters further and confused everyone.
It is my responsibility to get more knowledge of the situation. Thank you for assisting me.
I am a North East Scotland MSP.
Roll up at Parkhead hospital at 3 am.
I am with the Scottish Independent Advocacy Alliance.
What if people found themselves in various types of accommodation not because they were appropriate but because of a lack of appropriate accommodation somewhere else? Can you give me some clarity about where their rights would lie in that situation? We have heard that you could find yourself in the state hospital and make an appeal but then lose an appropriate place elsewhere, the consequence of which would be a continuing stay in the state hospital because there was nowhere else for you to go. What happens in that situation? Indeed, the same question arises as the level of security flows down to the medium or low level or perhaps if you are in the community. I have heard about such problems, but I do not know about the timescales involved or how the regular assessments come into play. How can assessments ensure that people are in the appropriate setting based on their needs and clinical assessment?
I am a Central Scotland MSP.
I am outreach and development officer at Inclusion Scotland.
I am a Mid Scotland and Fife MSP.
I am chairperson of People First (Scotland), which is the national self-advocacy organisation for people with learning disabilities. The organisation is run by the members, all of whom have learning disabilities.
I work for Steve Robertson at People First (Scotland).
I am the MSP for Clydebank and Milngavie.
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