Health and Community Care Committee, 19 Jun 2002

Meeting date: Wednesday, June 19, 2002

Official Report 326KB pdf

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Subordinate Legislation

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Adults with Incapacity (Specified Medical Treatments) (Scotland) Regulations 2002 (SSI 2002/275)

We now move to item 5 on the rejigged agenda. A number of people have raised concerns about the fact that the Adults with Incapacity (Specified Medical Treatments) (Scotland) Regulations 2002 have been laid under the negative procedure. In particular, people were concerned about the provisions on neurosurgery for mental disorder.

All members should have received a copy of the minister's letter, which states:

"On reflection, however, I have decided to amend the Regulations to exclude NMD to allow fuller opportunity for Parliamentary consideration of this very sensitive matter."

That picks up on what was said previously at the Justice and Home Affairs Committee. There was grave concern about the regulations in certain sectors, particularly from the Scottish Association for Mental Health, which has made its views known. However, the Mental Welfare Commission for Scotland took a different view.

We were heading in the direction of taking evidence on the regulations, but we now have a bit more time on our hands. We should be able to hear more detailed evidence during the passage of the forthcoming mental health bill. The minister has decided that the bill will provide an appropriate forum for such discussion and has therefore proposed to introduce amending regulations to remove NMD from the regulations that were laid before Parliament on 7 June.

With that in mind, is everybody happy that the issue should be dealt with in the mental health bill and that we should take no further action on the regulations at this time?

I was not a member of the Health and Community Care Committee when the original legislation went through, but I know that the regulations allow not only neurosurgery but sterilisation and abortion. Are we quite happy about that? Those issues will not come back to us in the bill.

Those issues were dealt with during the passage of the Adults with Incapacity (Scotland) Act 2000.

At last week's meeting of the cross-party group on mental health and the cross-party group on human rights, the representative of the Mental Welfare Commission pointed out that, if people are upset about neurosurgery, they should be upset about sterilisation and abortion as the same principle applies.

All that I know is that those who have written to the committee have been concerned about the provisions on neurosurgery, which is what we have focused on. John McAllion is right that there may be concern about other things that are included in the regulations. However, my understanding is that Adam Ingram has lodged a motion to annul. If that motion is still there, we will need to return to the issue when we deal with the regulations after the recess.

The issue on which the committee had to decide was whether we wished to take evidence prior to the recess. At this point, representation had been made to the committee only on the issue of psychosurgery. My understanding is that the Adults with Incapacity (Scotland) Act 2000 covered issues such as sterilisation as well as neurosurgery and psychosurgery. However, I think that the Mental Welfare Commission will say that there are safeguards in so far as, before such sterilisation or whatever could be performed, the matter would need to go to the Court of Session.

Will the regulations come back to the committee anyway?

Yes. Theoretically, they could come back to the committee in one of two ways. If nobody lodged a motion to annul and the committee had not done anything about it, our hands would be tied because of the timing. However, I understand that Adam Ingram has lodged a motion to annul, which means that we will be given the opportunity to consider the regulations when we return at the beginning of September. We will then be able to decide whether to accept the regulations or to throw them out, but we cannot amend them. We will be given that option at that point.

I put the item on the agenda at this stage because it looked as if that would be the only way in which we would have an opportunity to take evidence in good time. When I put the item on the agenda, I was not aware that Adam Ingram had lodged a motion to annul. I thought that a committee member might end up lodging such a motion and I wanted to ensure that we did not get caught out because of the recess.

Psychosurgery is the issue on which most people have written to us. As far as I am aware, no one else has picked up on the other points. We will return to the issue in September anyway.

I attended the same meeting as John McAllion. One point that was made was that, if we address the issue when we come back in September, we will be outwith the 40-day period for the annulment of the statutory instrument.

No. The 40-day period is suspended over the recess, so we would still be within the 40 days. The reason that the item is on today's agenda is so that we could take evidence on the regulations next week in order to be able to make a judgment within the required time when we return in the first week of September. I did not want us to be in the situation that has happened before, where we have said that we would like to have heard evidence but have run out of time.

Are people happy with the minister's welcome change of heart?

Members indicated agreement.

That concludes the public part of this morning's meeting.

Meeting continued in private until 12:55.