Health Committee, 13 Sep 2005

Meeting date: Tuesday, September 13, 2005

Official Report 257KB pdf

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Subordinate Legislation

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Mental Health (Definition of Specified Person: Correspondence) (Scotland) Regulations 2005 (draft) <br />Mental Health (Absconding by mentally disordered offenders) (Scotland) Regulations 2005 (draft)

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Mental Health (Use of Telephones) (Scotland) Regulations 2005 (draft)<br />Mental Health (Care and Treatment) (Scotland) Act 2003 (Modification of Enactments) Order 2005 (draft)

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Mental Health (Safety and Security) (Scotland) Regulations 2005 (draft)<br />Mental Health (Cross-border transfer: patients subject to detention requirement or otherwise in hospital) (Scotland) Regulations 2005 (draft)

We move on to subordinate legislation. The committee is asked to consider six affirmative instruments that all relate to the Mental Health (Care and Treatment) (Scotland) Act 2003. As they deal with a range of provisions that the act makes, dealing with them en bloc would be inappropriate. However, I suggest that we should discuss the instruments together, rather than one by one, after which I will ask the minister to move the motions separately. The Subordinate Legislation Committee has considered them and made no comment.

Agenda item 3 deals with negative instruments that relate to the 2003 act. The minister will make an opening statement about the affirmative instruments, and I ask him to say something about the negative instruments. I understand that that would be acceptable.

I welcome the Deputy Minister for Health and Community Care, Lewis Macdonald, who is accompanied by several officials—Fiona Tyrrell and Mike Murray from the mental health legislation team; Edythe Murie and Shirley Ferguson from the office of the solicitor to the Scottish Executive; and Geoff Huggins, who is the head of the mental health division and whose name was not notified to us in time to appear on the agenda. I ask the minister to make an opening statement, after which we will deal with the motions.

I will set all the instruments in the wider framework of implementation of the 2003 act, with which many members are familiar. Members will be aware that the act comes into force on 5 October. We and others have undertaken considerable work to ensure that we are ready for that time.

First, completion of the legislative framework is required. That is really what we are about today. We have introduced many regulations following further consultation with those who have an interest. Many of those regulations provide more detail on how some provisions of the act should operate in practice.

The 2003 act provided for a limited number of regulations to be made under the affirmative procedure, such as those that appear on the agenda today. In general, they will make new provisions on specific matters, such as the cross-border transfer of patients. Those provisions have been the subject of consultation with users, carers and other interested parties.

As the convener said, several instruments that are subject to negative resolution are still to come, including the rules of procedure for the new mental health tribunal.

As required by the 2003 act, I have laid the code of practice in draft before the Parliament. The code has been the subject of considerable consultation and I hope that the final code of practice will be useful to people who perform duties under the act. For technical reasons that relate to the drafting of the Mental Health (Care and Treatment) (Scotland) Act 2003 (Code of Practice) Order 2005 (SSI 2005/417), my officials advise me that it may be necessary to produce another version of the order. That will not affect the content of the code of practice and is only a technical point, but the committee may wish to be aware of it, as the committee may consider that order in due course.

To raise awareness among service users and others, we have produced several guides on various topics that relate to the act, such as the advance statement.

The new mental health tribunal will come into being on 5 October. We have appointed a president to the tribunal and about 300 members. The tribunal's administrative staff are in the final stages of preparation for receiving applications and holding hearings.

We asked people in local areas to work together to develop and implement plans to improve mental health services and promote training for their staff in anticipation of the act coming into force. I am pleased to report that the reports that I receive show that significant progress is being made.

I will comment on the specific content of some of the regulations that are before the committee. The provisions in the regulations are supplementary, incidental and consequential in the usual way.

The draft Mental Health (Care and Treatment) (Scotland) Act 2003 (Modification of Enactments) Order 2005 makes some minor drafting improvements to the 2003 act and amends references in other Scottish legislation and in United Kingdom legislation as it applies to Scotland to the Mental Health (Scotland) Act 1984, which will be repealed on the implementation of the 2003 act and is referred to in many pieces of legislation.

The draft Mental Health (Cross-border transfer: patients subject to detention requirement or otherwise in hospital) (Scotland) Regulations 2005 relate to detained patients who are to be transferred to a hospital in another part of the UK. They make provision for any patient who is receiving care and treatment in hospital for mental disorder to be transferred outwith the UK when that is appropriate.

Several other regulations are before the committee. Convener, would it be convenient for me to stop there and come back to address specific questions on specific regulations when we reach them?

That would be useful. Thank you.

I have a couple of questions. Several of the instruments state that consultation has taken place through various means—both published consultation and informal consultation. Obviously, the legislation impacts most on those who are mentally ill. How have you have ensured that the views and concerns of the mentally ill are represented in those consultations?

That has certainly been part of the process. Fiona Tyrrell or Geoff Huggins might like to comment on the detail of the consultation process.

The public consultation went out to a number of professional and service groups and to groups that we know support service users, such as the Scottish Association for Mental Health and the National Schizophrenia Fellowship Scotland. We also have a Mental Health (Care and Treatment) (Scotland) Act 2003 reference group, which includes not only representatives of organisations that have an interest in service users and carers, but some service users and carers themselves, including a service user with learning disabilities. We therefore feel that we have gone directly to service users and carers and have heard their concerns about and aspirations for the 2003 act.

You are satisfied that their views have all been taken into account.

Yes.

With regard to the draft order on the modification of enactments, the minister stated in a letter to the committee that the 2003 act makes amendments to the Regulation of Care (Scotland) Act 2001, which he states the Executive

"no longer wish to bring into effect in October as planned".

Can you elaborate on that for the committee, particularly given our current interest in the 2001 legislation?

The 2003 act removed from the Regulation of Care (Scotland) Act 2001 a definition of private psychiatric hospitals, but when we considered the issue further we decided that we wanted to retain the definition. We are not amending the 2001 act, so we are taking out the provision that would have amended it.

Does any member wish to seek further clarification from the deputy minister or his officials with regard to any of the instruments?

Members indicated disagreement.

Does any member wish to debate any of the instruments?

Members indicated disagreement.

We move on to deal with the individual instruments. As I said at the outset, it would not be appropriate to deal with them en bloc. I invite the minister to move motion S2M-3178.

Motion moved,

That the Health Committee recommends that the draft Mental Health (Definition of Specified Person: Correspondence) (Scotland) Regulations 2005 be approved.—[Lewis Macdonald.]

Motion agreed to.

I invite the minister to move motion S2M-3183.

Motion moved,

That the Health Committee recommends that the draft Mental Health (Absconding by Mentally Disordered Offenders) (Scotland) Regulations 2005 be approved.—[Lewis Macdonald.]

Motion agreed to.

I invite the minister to move motion S2M-3184.

Motion moved,

That the Health Committee recommends that the draft Mental Health (Use of Telephones) (Scotland) Regulations 2005 be approved.—[Lewis Macdonald.]

Motion agreed to.

I invite the minister to move motion S2M-3208.

Motion moved,

That the Health Committee recommends that the draft Mental Health (Care and Treatment) (Scotland) Act 2003 (Modification of Enactments) Order 2005 be approved.—[Lewis Macdonald.]

Motion agreed to.

I invite the minister to move motion S2M-3209.

Motion moved,

That the Health Committee recommends that the draft Mental Health (Safety and Security) (Scotland) Regulations 2005 be approved.—[Lewis Macdonald.]

Motion agreed to.

I invite the minister to move motion S2M-3210.

Motion moved,

That the Health Committee recommends that the draft Mental Health (Cross-border transfer: patients subject to detention requirement or otherwise in hospital) (Scotland) Regulations 2005 be approved.—[Lewis Macdonald.]

Motion agreed to.

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Mental Health (Compulsion orders—documents and reports to be submitted to the Tribunal) (Scotland) Regulations 2005 (SSI 2005/365)<br />Mental Health (Compulsory treatment orders—documents and reports to be submitted to the Tribunal) (Scotland) Regulations 2005 (SSI 2005/366)

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Mental Health (Conflict of Interest) (Scotland) (No 2) Regulations 2005 <br />(SSI 2005/380)<br />Mental Health (Removal Order) (Scotland) Regulations 2005 (SSI 2005/381)

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Mental Welfare Commission for Scotland (Fee Payable to Designated Medical Practitioners) (Scotland) Regulations 2005 (SSI 2005/412)<br />Mental Health (Care and Treatment) (Scotland) Act 2003 (Code of Practice) Order 2005 (SSI 2005/417)

Agenda item 3 is our consideration under the negative procedure of the six instruments that are listed on the agenda. The Subordinate Legislation Committee had no comment to make on the instruments, no comments have been received from any member and no motion to annul has been lodged. Are we agreed that the committee does not wish to make any recommendations on the instruments?

Members indicated agreement.

I thank the minister for his appearance and also his officials for taking time out to come to the committee and sit and listen.

Thank you.