Agenda item 2 is continuation of our scrutiny of the Mental Health (Scotland) Bill at stage 1. This week, we have another round-table evidence-taking session. We normally all introduce ourselves at the beginning of such a session. My name is Duncan McNeil. I am the MSP for Greenock and Inverclyde, and the convener of the Health and Sport Committee.
I am the acting director of corporate services at Victim Support Scotland.
I am an MSP for Glasgow, and the deputy convener of the Health and Sport Committee.
I am a solicitor advocate and partner at the Legal Services Agency, a mental health project that acts for people with mental ill health.
I am an MSP for North East Scotland.
I am from the Faculty of Advocates.
I am an MSP for Central Scotland.
I am a legal officer at the Scottish Human Rights Commission.
I am the MSP for Edinburgh West.
I am director of the centre for mental health and incapacity law, rights and policy at Edinburgh Napier University. I am also a member of the Law Society of Scotland’s sub-committee on mental health and disability, but I am not representing it today.
I am the MSP for Clydebank and Milngavie.
I am a solicitor, and I am here representing the Law Society of Scotland’s sub-committee on mental health and disability.
I am an MSP for the Highlands and Islands.
I invite Rhoda Grant to open up the discussion.
Do the witnesses think that the victim notification scheme gets the balance right between the needs of the victim and the needs of someone who was mentally ill at the time that they committed the crime?
Striking a fair balance between victims, witnesses and patients is a complex and complicated matter. Victim Support Scotland welcomes the provision of information to victims of mentally disordered offenders. We believe that every victim should be heard and should have a voice throughout the assessment process, and that information should be proactively provided to victims in an appropriate and timely manner, whether that is by letter, telephone call or email, and in plain English.
From victims whom we have supported through the process, we have found that there can be duplications and gaps. It would be good for the system to be streamlined under one scheme, so that victims of mentally disordered offenders receive the proactive information that is crucial if they are to understand the system.
Would anyone else like to speak? Jill Stavert? You do not need to press the request-to-speak button. The sound will come on automatically.
Although I think that the supplying of information is a good thing, and the amendments that have been made to the bill as a result of Scottish Government consultation are welcome, we must be careful that mentally disordered offenders are not discriminated against, relative to the rest of the offender population.
Obviously, the sharing of information is a matter that impacts on people’s private lives, and personal information about them should be shared only in a proportionate and legitimate way.
What do you mean by “personal information”? Victim notification schemes tend to be about when someone will be released, so that a victim knows where they are likely to be released to and can prepare themselves for that event. What other sort of information do you envisage being shared? Is the balance right in the bill? Does the bill suggest that information should be shared that you do not think should be shared?
It is a matter of discernment in each individual case. I think that, sometimes, informing a person where the offender lives in a situation that involves a minor crime would not be a proportionate response.
I acknowledge the concerns that have been expressed, but victims and witnesses require information that will allow them to put in place safety plans, if they choose to, and ensure that they do not bump into the offender when the offender is on temporary release in the community or whatever. That is the type of information that should be proactively supplied to victims and witnesses, who have a choice about what they do with that information.
On the point about discrimination that was raised by Jill Stavert, my view is that the scheme should operate in the same useful way, irrespective of the character of the offender. In other words, we should not stigmatise people who are offenders and who were mentally disordered at the time of offending. Subject to that, I think that the balance that is proposed in the bill is appropriate.
I agree with what my colleague has said. The Law Society was concerned that the victim notification arrangements should be the same in relation to offenders with mental health as they are in relation to other types of offender.
We note that the bill is going to consider guidance on exceptional circumstances in which the notification would not be made. It is important to discuss what would be included in those exceptional circumstances. Further guidance on that is probably needed.
What would be appropriate—or inappropriate—in that regard? What would you be concerned about?
I suppose that personal circumstances would have to be taken into account. If giving out information was going to endanger someone, that might outweigh the need to give victims information. Guidance will have to be designed on what would or would not be exceptional circumstances.
We agree that there needs to be a proportionate response, on the basis that the tribunal will be looking at a care plan for the patient’s care and treatment. If there were concerns about releasing information that might have a negative impact on the care plan and treatment, there should be an opportunity to try to stop the release of the information.
I want to pick up on the comment about the need for parity between mentally disordered offenders and non-mentally disordered offenders. We agree, and we were pleased to see that a change has been made since the draft bill was published, so that the proposal applies to offenders who are on compulsion orders with restriction orders.
However, the bill will give the Scottish ministers the power to amend the provision so that it applies to people who are not on restriction orders but are on only compulsion orders. A person on a compulsion order might have committed only a minor offence, so we are not certain why that power is needed.
Does anyone else have concerns about that? Gil Paterson has a question.
My question is about the rights of the patient. Managers currently have the power to move a patient from one hospital to another, or from hospital to the state hospital. Currently a patient has 12 weeks in which to lodge an appeal, but the proposal in the bill is that that period be cut to 28 days. What are the pros and cons of the measure?
We are concerned about what is quite a dramatic reduction in the timescale. A transfer to the state hospital has a significant impact on an individual’s autonomy and right to a private and family life, so a restriction of the appeal period needs to be justified.
In the policy memorandum, one of the justifications is the need to bring the timeline into line with the timeline for other appeals. However, there are reasons for the longer timescale for such appeals. The longer timescale reflects the serious consequences of a move to the state hospital and the complexity of cases in which the person is very unwell.
Another justification is the need not to delay treatment for someone who is unwell during the appeal process. However, the Mental Health (Care and Treatment) (Scotland) Act 2003 has provision for a person to be transferred pending a decision on an appeal, if that is necessary, so we do not regard the delay argument as adequate justification, either.
We agree with Cathy Asante. There are provisions throughout the 2003 act that relate only to state hospital patients. I can see the rationale for bringing the appeal period into line with other appeal periods, but the state hospital is unusual, to an extent, and is treated as such in the 2003 act. There are concerns about patients who are subject to detention in the state hospital that are not relevant to other patient detention.
A transfer for treatment direction can be appealed only after the first six-month period, so sometimes the patient’s right to challenge has to be exercised when the transfer takes place. A solicitor might need to do a lot of work, given the complexities of state hospital transfer, so we regard 12 weeks as an appropriate appeal period.
11:15
A number of witnesses have highlighted matters that are not in the bill, but which they think merit inclusion in primary legislation. One such matter, which also struck me, is the use of forced covert medication and restraint, about which there is little in the code of practice under the 2003 act. Representations have been made to Parliament by people who feel strongly about the use of covert medication. What are the witnesses’ views on that?
The Law Society has said that it would like use of covert medication and restraint to be included, if possible. We think that there is not sufficient guidance out there, so anything would be useful.
I echo that. The SHRC also raised the issue in our written evidence. There is quite a lot of confusion about use of covert medication and restraint in practice, and more guidance would be beneficial to patients, in that it would protect their rights. Guidance would also be beneficial to staff, who would know where they stand.
I echo what Jan Todd and Cathy Asante said. Edinburgh Napier University, too, raised the issue in our response to the call for written evidence.
I am interested in a comment that I read in one of the submissions, which relates to the United Nations Convention on the Rights of Persons with Disabilities. The SHRC said:
“The recent radical interpretation of Article 12(4) CRPD by several human rights experts advocates that legal capacity cannot be denied on the basis of disability ... that decision-making be supported not substituted (and the removal, therefore, of guardianship) and the abolition of laws providing for the compulsory treatment of mental disorder.”
That is clearly a pretty radical view, but it is out there. I understand that the United Nations has published a general comment on article 12, to that effect.
I should have said that I am a psychiatrist and a fellow of the Royal College of Psychiatrists. I do not know whether the witnesses have read the powerful evidence on people with learning disabilities that we heard from Steve Robertson last week. I cannot see us abolishing compulsory detention in certain circumstances, which is provided for by law. However, given the radical views that are out there, will the amendment to the 2003 act, for which the bill provides, move us in the wrong direction?
I appreciate that the view is extremely radical and I think that most jurisdictions would struggle with completely abolishing non-consensual treatment for mental disorder.
However, the general comment provides an opportunity for us to revisit what we understand by capacity and the extent of capacity, in the context of the exercise of legal capacity. The UN’s general comment very much promotes supported decision making, so it provides an opportunity to look at existing and other forms of supported decision making, in order to enable patients to be full partners in a shared decision-making process.
As it stands, the 2003 act promotes shared decision making—that is an underlying principle. However, if patients are additionally supported, they will be more equal players, so the debate presents an opportunity in that regard.
Advance directives are an important form of supported decision making, so advance statements should be promoted more. The 2003 act should be amended to place a duty on medical staff to encourage patients to make advance statements.
In addition, independent advocacy is an important aspect of supported decision making, but it is not, we note, covered in the bill. The issue should be reinforced, particularly given the provisions in section 259 of the 2003 act.
There is a wider challenge out there in terms of responding to the UN’s general comment. The recent interpretation is radical and we will need to consider it carefully if we are to make broader changes to our system of compulsory detention.
In the meantime, the issues that Jill Stavert mentioned are important if we are to show that we are taking steps to advance supported decision making as much as possible. There are opportunities in the bill to make provision on advance statements and advocacy. We can also look carefully at the named person provisions in order to ensure that they do what they set out to do. Those are the three real opportunities in the bill to begin, at least, to respond to the UN’s general comment.
I broadly agree with Cathy Asante. The structure of the bill and the existing provisions in the 2003 act to do with support for advocacy, and the general trend towards patient involvement in decision making, are not wholly incompatible with the UN’s general comment, which certainly takes a radical approach.
The question is about the extent to which further primary legislation is the appropriate way forward, and whether there is a case for revisiting the code of practice, which was issued when the 2003 act was originally passed. The time might be right for revisiting some of these important issues in a systematic way, by those means.
The concern that I want to raise in regard to one of the principles of the UN declaration is about participation. The proposal to extend the short-term detention extension period from five days to 10 days is our main concern about the amendments. The concern that Dr Simpson raised is quite right. If we are looking for more participation, and more effective participation, by our patients, is it right that they would have to wait a longer time before they would be called before a mental health tribunal for a compulsory treatment order? We very much feel that that is not right and we think that it would affect their ability to participate in the process itself.
The proposal is to increase the detention extension period from five days to 10 days, which would mean, as things currently stand, 10 working days. If we add up the time of a short-term detention certificate, an emergency detention certificate and the extension of 10 working days, we could be looking at a person’s being detained for more than seven weeks before appearing before a mental health tribunal. That potentially does not comply with European convention on human rights article 5, and it definitely does not promote participation of patients.
My next question was going to be on the extension anyway, so maybe we can flesh the matter out a bit before we go on.
There will be other opportunities to come in.
It is perhaps worth saying that I am delighted that this Parliament is bound by the European convention on human rights, and that I hope that it will be on an on-going basis. It is no bad thing if it challenges the legislation that we scrutinise—that is why it exists.
Earlier, we heard evidence suggesting that the need in some cases—some people would debate whether there is a need—to extend detention from five to 10 working days is related to the need to prepare a variety of reports, including family reports and, if there is a named person, to get their details. It was also suggested that in some cases it may be beneficial to individuals because it might keep them from going through repeated tribunal disposals to decide what is best for them, although it would not be used as standard.
I am delighted that I am not a lawyer. I do not mean that flippantly. I am not a lawyer, but the word “proportionate” comes up in relation to the European convention on human rights. I suppose that my question is this: is there a balance to be struck in exceptional circumstances where there is a proportionate need to prepare all reports so that a tribunal can make an informed decision? Would that be compliant with the human rights of the individual? Some of the evidence seems to be quite black and white on whether extension of the time period would contravene human rights, but is it actually a grey area? Is not this about the checks and balances in the system, the policing of the system and making sure that advocacy groups and the Mental Welfare Commission for Scotland are taking a view and checking on it?
Do witnesses have concerns about human rights as a matter of course, or is there a way of extending the detention extension period from five to 10 working days, in exceptional circumstances, that would be compliant with the human rights of vulnerable individuals, irrespective of what they have or have not done, and whose human rights need to be protected by the state?
Our issue with the proposal is that we are talking about a blanket, across-the-board extension from five to 10 days. We absolutely acknowledge that there can be exceptional circumstances and that there are lots of very good reasons for such a move, including the need to prepare for a hearing, but that is what the existing provision, under which a hearing can be postponed until such time as people are ready, is designed to achieve. That is entirely compliant with human rights and gives people the time to get ready to argue their case.
I am aware of the Mental Health Tribunal for Scotland’s evidence that the number of repeated hearings has dropped and now happens in 20 to 30 per cent of cases, and we would query whether there is sufficient and proportionate justification for applying to everyone a blanket extension of the period of the short-term detention certificate. In certain circumstances, more time might be needed and a hearing might need to be postponed, but extending everyone’s detention in this way is not the way to go.
The Law Society agrees with Karen Kirk and Cathy Asante. Perhaps this was an issue five years ago, when the McManus report was drafted.
At this point, I should declare that I am convener of tribunals; I therefore have first-hand experience and have not found the matter to have been a big issue in recent times. Obviously the patient has a right of appeal during the 28-day period of the short-term detention period; if they wish, they can instruct a lawyer to make an appeal at that point. Indeed, many patients appeal during that period. They appeal again when they make their CTO application, but the tribunal does not always get told whether they have made a previous appeal.
I take on board the point that some patients can be so unwell at the start of the process that they might not be able to instruct a lawyer or seek an appeal, so it is important that they have an early opportunity to have their case brought to a tribunal. I have found that, if an application for a CTO is made by a mental health officer within the five-day period and the case is brought to a tribunal for a hearing, the patient and their solicitor are quite often ready to proceed. However, I do not know whether a blanket extension of five days will provide any significant benefit to a patient who has just instructed their lawyer, or who allows their lawyer to get an independent medical report. It usually takes longer than five working days to get a proper independent medical report before a full hearing can go ahead.
In the meantime, the patient’s rights are protected, because they will get a full hearing. Even though the patient might not be able to make full representations based on the medical evidence that they have sought separately, the tribunal will still make it clear that it will need to be satisfied that all the tests have been met at that stage for the patient to be detained. The patient’s human rights are being protected at that point, and any order that is issued will be an interim one to allow that representation to be fully explored and expanded on with the independent medical report.
The Law Society is of the opinion that there is, at the moment, no benefit in having a blanket extension to the five working days. First of all, we do not think that there is a particular need for it now. A secondary point that we have made in our written submission is that extending the period and then attempting to deduct that extension from any future detention period might give rise to more confusion and uncertainty in any potential review, if the length of the extension has to be worked out and then deducted from a certain period—say, the 56-day period for two interim CTOs or the six-month period for a full CTO.
It seems to me to be unlikely that a provision that made it clear that a greater period of time might be granted in exceptional circumstances would be disproportionate and not convention compliant. The committee should be reassured on that front. The whole aim of involving the tribunal in the procedure that is set out in the legislation is to ensure as far as possible that patients’ convention rights are properly addressed. I do not think that truly exceptional circumstances would cause a problem in terms of the ECHR.
11:30
I agree with my fellow panel members. We very much think that the existing provisions provide the opportunity for a patient to participate and give them the time to prepare, which was what Mr Doris was asking about.
The benefits of an early tribunal are quite vast and depend on the individual circumstances of each case. For example, at a first hearing, a tribunal can direct certain matters to take place for the next hearing and can deal with named person issues and other preliminary issues such as the application’s competence under the terms of the 2003 act. An early hearing can have a number of uses for a patient, not least the practical use of allowing people to focus on the issues in a patient’s case. That is invaluable for a patient who is opposing a hospital-based, not a community-based order, and who is challenging at the very beginning the responsible medical officer’s thoughts on the matter and why they believe hospital-based detention to be the least restrictive option under the general principles of the 2003 act. That early hearing can be effective in ensuring that such views are put across, and it very often means that, at the second hearing, a different case can be heard; for example, the patient might be better, and the focus might be on a community-based order.
We definitely feel that if there are two hearings for a case the patient is not necessarily being disadvantaged or caused upset, because they direct the proceedings and instruct their solicitor in both cases. We therefore think that the approach has benefits.
The only other point that I would raise follows on from Jan Todd’s comment about whether it is practical to expect that in every case an independent medical report can be instructed and received within 10 days. For this meeting, we did some research in which we looked at quite a few cases and found that it took about 30 days from an independent doctor being instructed until the written report was received. Those doctors do the work over and above their normal patient work in their local authority areas, and we rely on them to ensure that we have an effective system for the patient. The fact is that it takes time for an effective and appropriate report to be put together, and we would not want that time to be reduced and for an expectation to be placed on doctors to produce a report in an unreasonable amount of time.
I also point out that in some areas it can be difficult to identify someone to carry out an independent specialist psychiatric report such as a report on an adolescent or an eating disorder, so I think that, from a practical point of view, it would be quite unreasonable to say that that will happen in 10 days.
I am probably more confused than I was at the start, but Mr Campbell has given me some ideas. I will also look at Ms Todd’s comments in the Official Report, as there was clearly quite a lot to take in.
I thought that towards the end of her comments Ms Kirk was almost arguing that if clients or patients need to commission an independent report, that process would not start after the 28 days. Instead, it would start at the beginning of the process. Is that not the case?
No. We might not be instructed until an application for a CTO has been lodged. We must also bear in mind that these patients are unwell, and that quite often they might not become well enough to instruct a solicitor until 24 to 48 working days before a hearing.
I should also point out that as well as having to go and see people who are detained—and who therefore cannot come to one’s office—we are also dealing with people with fluctuating mental health.
Those comments are helpful to us in the committee as we tease our way forward on this matter, but I thought that that might be the reason why you would need additional time and why you were almost arguing for the extension.
It might help if we tease out and seek clarification on Mr Campbell’s comments. Perhaps the issue is not whether there should be an increase in the blanket extension from five to 10 days but whether its use, if it is ever used, can be justified as proportionate and reasonable on a variety of grounds and might therefore be ECHR compliant. In other words, the increase in the blanket extension from five to 10 days becomes an issue only if it is applied inappropriately. I suppose that what I am asking is whether there is a breach of the ECHR if it is applied appropriately. If there is not, do we need guidance on when it should or should not be used, or do we leave that to the good judgment of those who are seeking to extend it? I hope that that is clear. I know what I am trying to say, Mr Campbell, but I am not sure that I am articulating it very well.
What I understand Mr Doris to be asking is whether a provision for an automatic extension for 10 days, as opposed to the existing five days, is problematic in itself or whether we look at the reason for which an extension might be given in an existing case. Perhaps I did not make myself sufficiently clear when I was answering the question earlier. If the existing text were to be changed in such a way as to say that the period of five days could be extended in exceptional circumstances, speaking for myself I do not see an ECHR difficulty with that. There is then a second question about whether an increase in the blanket extension from five days to 10 days would give rise to a convention problem. I suppose that, in that case, we are into the issue of proportionality.
In thinking about that, the committee, and, no doubt the Scottish Government, will be mindful of the evidence that the committee has already had from the Mental Health Tribunal for Scotland about the number of cases in which this is an issue and the reasons for that. I would have thought that, in working out whether a rule is disproportionate, one would have to have that in mind.
I am not sure that I can be drawn much further on the answer to whether it would be convention compliant to have a blanket extension. I suspect that it probably would not be unduly problematic from that point of view, but I certainly do not see a convention problem with the ability to extend in exceptional circumstances from the existing five days.
I have a question on this topic, which I think is very important. I am grateful for the evidence that we have had so far. As I understand it, the reason for increasing the extension period from five days to 10 days is to reduce the number of repeat hearings. That was the issue identified in the McManus report. As Jan Todd has said, the number of repeat hearings has reduced quite significantly already. The exceptionality rule seems to be very important here. If the extension is going to save a repeat hearing and the patient, their named person, the person advocating on their behalf or their legal representative seeks an extension of five or 10 days, that does not seem to me to be of critical importance, because the individual is seeking to avoid having more than one hearing. If that was laid down as exceptionality or if the whole 10-day period was considered exceptionality, would that be okay?
Karen Kirk’s evidence is that if a specialist report or an independent report is required, there is going to be a repeat hearing anyway, because the period is 30 days and there is no way that that work can be undertaken within the period that we have been talking about today. That would be a quite different set-up. Can I just check that I am clear about that and can I have comments on the first bit of what I said?
My concern with any change from the blanket extension, which we were opposed to anyway, to an extension in exceptional circumstances is how circumstances would be described and who would decide when to have a hearing within 10 days as opposed to five. As Karen Kirk said, if the patient needs further time to prepare his case by getting specialist evidence, a further hearing is going to be needed anyway. Would the extra five days make a difference? Are there going to be extra, multiple hearings that will not be helpful to the patient? I am not sure that I see a great need for the change, but that is just my view.
The Law Society was consulted on the proposed five-day extension. The consensus round our table was pretty much that we did not feel that it was necessary and that, from the patient’s point of view, it would be less compliant with the ECHR to have a later hearing rather than an earlier one, and I am still of that view. I prefer the current situation, both for the patient’s protection and from the point of view of not having multiple hearings. I do not think that the proposed change would save a lot.
However, I would be interested to hear what others believe exceptional circumstances would be and who would decide on them. Would it be left to the tribunal service? Would the applicant for a CTO have to make a request, saying, “Here are the exceptional circumstances, and this is why we want a hearing set within 10 days instead of within five days”?
Does anyone want to respond to that?
In general, I would expect that the person who said that there are exceptional circumstances would have to show why that was the case.
Would that be the applicant? With a CTO, that is generally the mental health officer. What if the patient or their solicitor said that they needed longer? We need to consider the practicalities of how that would work before we find out at a first hearing that has been set up that the patient wanted it to be a few days later because his mum, who is the named person, could not attend. I can see some practical difficulties.
As you know, there is already plenty of experience of applications for adjournments for exactly those sorts of reasons.
I suppose that we are drilling down into the conflict between the desirability of an early resolution and the desirability of avoiding multiple hearings. It may be that it is impossible to get a complete resolution and what is being sought is the most effective way of reducing to a minimum the number of cases in which there are multiple hearings. I am not sure whether the committee has a sense from the tribunal’s evidence that it has reached that point or whether it believes that further work can be done. The Faculty of Advocates does not have a view about that.
Part of the discussion that is taking place is about how the determination of whether there are exceptional circumstances is going to be made. Essentially, the current system, which allows people to seek an adjournment and have a second hearing, allows them to argue at the first stage that there are exceptional circumstances that mean that they need to put it off until a second hearing. There is provision for a tribunal to decide that within the format of a hearing, where it hears evidence and discusses some of the things that Karen Kirk brought up.
The alternative is to have an exceptional circumstances clause of the type that we are discussing, in which case there would be, essentially, a paper hearing, where the tribunal service would look at what the person was saying their exceptional circumstances were and make a determination. It is a question of the need to assess the evidence and the preferable way of determining that. In my view, the system that we have, in which people go to a hearing and the tribunal considers whether more time is needed, is appropriate.
11:45
At the time of the McManus review, almost 50 per cent of cases were being continued at the first hearing, but that has now been reduced to 20 to 30 per cent. A lot of cases that come before the tribunal will be opposed. How low can that figure go if we are to allow people to participate effectively in the system? Patients are going to oppose these applications by their very nature. At this stage, our view is that the system works.
As Cathy Asante has said, the first hearing allows the involvement and participation of the patient, but it also allows the involvement of the Mental Health Tribunal, which is able to consider the issues and to direct orders and so on that might be needed. There is a full set of rules for the Mental Health Tribunal, in addition to what is in legislation, and it has the flexibility to get involved at an earlier stage in the process, which we think benefits the patient.
At the time of the McManus report, the figure for repeat tribunals was around 50 per cent. Given that that has been reduced, is the proposal justified? We definitely think that it has reduced on a number of fronts. For example, the Mental Health Tribunal now uses video technology for evidence and doctors who are busy are able to give evidence by telephone. There have been many such developments since the McManus report, which we think will have reduced the numbers who go on from a first hearing. However, we should make no mistake about the fact that many cases will go on from a first hearing because, by their nature, they are contentious as they involve a patient who does not agree to be in hospital or to the care plan.
I suppose that the objective is to reduce that figure below 20 per cent, but there does not seem to be a consensus among the people on today’s panel that that will happen.
I should briefly clarify what I said earlier—I should always be careful about the words that I use in front of lawyers or people with legal experience. When I asked about compliance with the ECHR, Ms Todd said that the legislation was likely to be less compliant, and Mr Campbell said that it would not be unduly problematic. There was no clear answer either way, which I thought was fantastic. However, when I said “exceptional circumstances” what I had in my head was the idea that I did not want an extension to be routinely used just to enable people to work to a longer deadline, which would unduly prolong the process. Let us not get hung up on the words “exceptional circumstances”, as they were my words.
Having heard the evidence, I think that every case is clearly an individual case with its own unique circumstances, and I am more drawn to the need for there to be a general power to extend to 10 days. The question is whether it is used routinely or appropriately in an individual case.
I wanted to clarify the language that I had used. I set a hare running in relation to exceptional circumstances, but I have found the exchange helpful.
Just to defend lawyers, I should say that, obviously, there would not be a challenge. If someone is going to be detained, and it has not been challenged past seven weeks, certainly it could be stateable that there could be a challenge on the compliance of the provision. If that is what happens, watch this space. We feel that the act is compliant, currently. There is a question about whether it would continue to be so if there were a change to an automatic extension of 10 days.
I see that Jill Stavert wants to come in. Far be it from me to stop this discussion.
I want to whole-heartedly reinforce what Karen Kirk has just said. If there is the potential for the legislation to violate article 5 of the ECHR, for example, there is the potential that that will indeed happen, so it is better to ensure that the legislation is watertight in the first place, in order to minimise the ability for that to happen.
This bill is a fairly limited one. We have heard that codes of conduct might need to be reviewed. Another of the submissions that we received suggested that we should consider the legislation’s compatibility with the Adults with Incapacity (Scotland) Act 2000 and the 2003 act, and that a wider review was needed.
The topic is broad and I do not want to prolong our discussion unnecessarily, but the act is limited, and some people have said that we need to consider issues such as autism and learning disability and where they lie within the act—those are two issues in relation to which capacity is an important issue. I invite people to put on record whether there are any issues that they think we should recommend that the Government addresses as part of a broader review that goes beyond this act, and whether that should happen in the near future or is something that we do not need to go for at this point.
It is important that a wider review of our whole system in relation to capacity takes place so that the relationship between the bill, the Adults with Incapacity (Scotland) Act 2000 and the Adult Support and Protection (Scotland) Act 2007 can be properly understood. We need to look at that partly from the point of view of the general comment from the UN, which we discussed earlier. We need to have a more comprehensive system that ties everything together. I believe that Colin McKay from the Mental Welfare Commission mentioned that in his evidence, and I strongly endorse his comments. There is a bigger challenge to be addressed that we need to tackle in early course.
I concur with that. We made written comments about incompatibility between the 2000 act and the powers that guardians and attorneys have to consent to medical treatment under the 2003 act. That is one area. In addition, there is the recent Scottish Law Commission report on deprivation of liberty, which makes certain recommendations. That is a whole different area of potential changes to the 2000 act, but the changes in question are extremely important. Local authorities are looking at how they are treating people, how they are moving them and whether they are being detained in deprivation-of-liberty situations. I think that it would be useful to have a wholesale look at that area, too, in the future.
I endorse what Jan Todd said. The Law Commission report on proposals to change the law in relation to adults with incapacity is potentially extremely important. If it were thought appropriate to have a wider review, the scale of that task should not be underestimated. A lot would require to be considered as part of that.
I agree with my colleagues. Major reform of the Adults with Incapacity (Scotland) Act 2000 is needed in light of the Cheshire West case. Deprivation of liberty was not looked at in the context of the 2000 act. We press for that to be looked at in relation to article 5 of ECHR. Patients and those who, in most cases, are in the community, in nursing homes and suchlike, need to have a mechanism to challenge that. Currently, the provisions in the 2000 act do not meet that need.
I do not have much to add. I fully endorse what Jan Todd said about the mismatch between section 50 of the 2000 act and section 242 of the 2003 act, which is on substitute decision makers giving consent on behalf of the person concerned. I also agree with what has been said about the deprivation of liberty. We need to have a major overhaul of all the legislation in that respect.
I have not had any bids from members to ask further questions. We have received extensive written evidence. We have approximately 10 minutes left, so we are at the point at which I make an offer to the panel, to avoid you going home on the bus and thinking, “I wish I had said that,” or, “I wish I had given a bit more emphasis to that.” Cathy Asante wants to take up the opportunity. Is there anything that you want to emphasise from your written evidence or anything that you have heard this morning that you would like to comment on before we consider all the evidence that we have received?
I want to raise a specific point about appeals against conditions of excessive security. We are pleased that the bill seeks to address that issue by bringing in regulations so that people in conditions of medium security can appeal against those conditions on the ground that they are conditions of excessive security. However, that right appears to apply only to people who are on criminal orders. We think that the provision should be construed much more broadly, because conditions of excessive security have a significant impact on a person’s private and family life and their ability to determine how they live their life.
Careful thought needs to be given to who is brought into the category of those who can bring an appeal. It is our opinion that at least those on civil orders in medium-secure settings should be entitled to bring an appeal. We also think that people in low-secure settings should be able to appeal against their conditions of security.
We know that the argument is that the move from a low-secure setting is into the community, but there are different conditions and levels of security in low-secure settings. For example, there is a difference between being on a locked ward and an open ward. It is worth noting that the individual in the case that has led to the provisions was in a low-secure setting but would still not be able to bring an appeal under the current provisions in the bill.
The other point to note is that the matter has been outstanding for a while. The Supreme Court case found that there was a failure by the Government to bring forward regulations, and the bill still requires regulations to be brought forward, so we encourage the committee to ask for a timetable for when those regulations are going to be introduced, so that it happens as soon as possible.
Thank you. Does anyone else want to comment, either on Cathy Asante’s statement or on any other issue?
My point is on victims’ rights to information. Victim Support Scotland hopes that there will be no restrictions on eligibility to receive information on the release of an offender back into the community so, when it comes to compulsion orders, that would bring us into line with the European Union directive, as victims of crime would all receive information. Also, if people are being supervised in the community, victims would not be informed under the planned victim notification scheme covering mentally disordered offenders, so there is a risk of them meeting in the community. Whether an offender is supervised or non-supervised really bears no relation to the impact that such a meeting could have on the victim, so we believe that victims should be notified on all occasions.
I have just one point to make on what Cathy Asante said. Section 264 of the 2003 act includes patients subject to civil orders such as compulsory treatment orders and short-term detention certificates. The new section 273 proposed as an amendment to the 2003 act removes those persons on civil orders, so it just includes those on compulsion orders, restriction orders and transfer-for-treatment directions. We consider that discriminatory against those patients who may be in the state hospital for treatment but under a civil order, as they would have fewer rights than they currently have under the act. We wonder whether that was the intention of the bill. I take on board what Cathy Asante has said, but we think that that change could discriminate against some patients who are on civil orders rather than criminal procedure-type orders.
I endorse what Cathy Asante said about rights of appeal against excessive security in low-secure units and hospital wards. I emphasise that we do not think that extending the rights of appeal to medium-secure units would be sufficient in itself.
If no one else wants to comment on what Jan Todd, Karen Kirk, Sarah Crombie and Cathy Asante said, we shall leave it at that. I thank all the witnesses for their attendance and for giving us their valuable time, and for their written and oral evidence.
11:58 Meeting continued in private until 12:31.Previous
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