Public Services Reform (Scotland) Bill: Stage 2
Amendment 201, in the name of the minister, is grouped with amendment 202.
Following the Crerar recommendations, the Mental Welfare Commission for Scotland was included in the Government’s November 2008 announcement on proposals for the reform of scrutiny. However, last February, following representations from mental health stakeholders, I committed the Government to taking a step back from moving the commission’s functions into the new health body or the new social care body through the bill when it was introduced. That was to allow time for a review and consultation around the future structure and functions of the commission and its place in the scrutiny and improvement process.
Discussion then followed with the commission, representatives of other mental health and learning disability stakeholders and the Law Society of Scotland. That led to a public consultation in August. More than 50 responses were received from a range of statutory bodies, service users, professional bodies, academics and individuals. There was overwhelming support for the proposition that the commission should remain a separate, independent body with a primary focus on the protection of rights for those with mental disorder. That protective function was regarded as being different from the improvement and scrutiny roles that are proposed for the new health and social care bodies.
Amendments 201 and 202 seek to achieve ministers’ intentions in response to that consultation. We consulted the commission informally in preparing the amendments, and it is satisfied with the direction of travel that they indicate.
Amendments 201 and 202 can be seen to have three broad aims: to give the commission a specific focus as a body whose role and functions are about protection of the welfare of the individual; to ensure joined-up working with the other scrutiny bodies; and to update the commission’s structure by splitting the existing dual governance and visiting role of the board of commissioners.
Amendment 201 provides for a range of amendments to part 2 of the Mental Health (Care and Treatment) (Scotland) Act 2003, which deals with the commission’s functions. I am clear that, in line with the undertaking that I gave last year, no reduction in patient safeguards will arise from those amendments. The commission’s protective functions will be kept intact and will be adjusted only to reflect better how the organisation works in practice, and to reflect the new role of the commission visitors.
The main purpose of the amendments to part 2 of the 2003 act is to give the desired clarity on the commission’s focus as a protective body. A new provision in section 4 of the 2003 act will make it clear that in discharging its functions, the commission has an overarching protective duty—the commission was keen to have that restated in the legislation.
The amendment to section 5 of the 2003 act will make it clear that the commission’s current general duty to promote best practice relates not to service improvement, but to the application of the principles of the act on the ground—in other words, to the promotion of legal and ethical care. It makes it clear that the commission will issue best practice guidance on legal and ethical care of patients, while it will be for healthcare improvement Scotland or social care and social work improvement Scotland to issue guidance on service improvement, and to co-operate with the commission in so doing.
The insertion in the 2003 act of a new section 9A duty on the commission to give advice, which reflects current commission practice, together with the related amendment to section 10 of the act, will have the effect of placing the commission’s advisory role in the act.
The amendment to section 13 of the 2003 act is designed to change the focus of the current provision on commission visits to make it clear that the primary purpose of such visits is to check on the welfare of individuals, through meeting patients and hearing any concerns that they have, and is not about service inspection. The commission had raised that point with us. We have now considered it and would like to adjust the relevant provision. Ministers’ stated aim of ensuring joined-up working between the commission and the other new scrutiny bodies is given effect by the insertion in the 2003 act of the new section 8A duty on the commission to raise service concerns with those bodies or with other relevant persons.
The remainder of the amendments that we seek to make to part 2 of the 2003 act under amendment 201, and all those that we seek to make to schedule 1 to the 2003 act under amendment 202, relate to updating and improving the commission’s governance structure.
The impetus for changing the commission’s structure by splitting the current arrangements, whereby the board has governance as well as visiting and inspection functions, came from the April 2007 KPMG report on the commission, which assessed issues such as the organisation’s structure, corporate governance and accountability systems. One of the main recommendations was that the commission’s governance structure should be updated to bring to an end the current unwieldy arrangements, whereby the commissioners have the dual role of responsibility for the organisation’s governance and its visiting and inspection functions. In its response of August 2007, the commission agreed with that recommendation and noted that the Government would require to introduce primary legislation to give effect to it, which is what we are now doing.
The legislative changes on governance also aim to provide greater transparency on how the commission delivers its visiting and inspection functions in practice. New section 4A of the 2003 act, for which amendment 201 provides, makes it clear that the new class of commission visitors are to exercise the functions conferred on them by that act on behalf of the commission. The remainder of the amendments to part 2 of the 2003 act will have the effect of conferring directly on the commission visitors the commission’s visiting and inspection functions. The commission will, of course, retain overall control of the strategic direction and of visiting and inspection policy, but operational functions will be devolved to the visitors.
The amendments to schedule 1 to the 2003 act that amendment 202 makes provide for the appointment by the commission of the commission visitors, who cannot now be commission members; instead, it is made clear that they will be drawn from among its complement of staff, together with others who have been brought in for their additional skill and expertise to carry out the commission’s visiting and inspection functions. Criteria to which the commission must have regard are laid down for the appointment of commission visitors. The amendments to schedule 1 also make new provision for a reduced board, appointed by Scottish ministers, to provide governance of the commission.
Finally—the convener will be glad to hear—provision is made for transitional arrangements, so that the appointments of existing commissioners who currently have a dual governance and visiting and inspection role will come to an end. The existing chief officer will simply transfer to the renamed post of chief executive of the commission.
I move amendment 201.
I fully share many of Malcolm Chisholm’s sentiments, especially his regret that the proposals were not brought forward in a way that would have allowed a public debate on them. We are talking about substantive changes to a body that is extremely important for our constituents. I have received representations from people who have seen the amendments.
There may well be a case for reforming the Mental Welfare Commission—there has been an on-going debate about that—but it is incumbent on the Government to ensure that that reform is done openly and transparently. The two fundamentals that should be considered are the real and perceived independence of the commission’s operations in terms of its relationship with Government, and the actual operation of the commission. As Malcolm Chisholm said, there are aspects to do with the monitoring duty. If I understood the minister correctly, monitoring the quality of provision will not be up to the commission; it will be up to other organisations, which may not have the same level of expertise and knowledge of the legislation that the commission has.
The second issue on which there was no clarity from the minister was why the commission should have the power to charge for advice that is provided.
The third issue is ministerial influence. If ministers have a representative at commission meetings, an issue of transparency could arise. Amendment 202 proposes that
“Members of the Scottish Executive and persons authorised by the Scottish Ministers may attend and take part in meetings of the Commission or any of its committees, but are not entitled to vote at such meetings.”
However, their taking part will have a direct influence on the proceedings of those meetings of the commission or its committees. That is a significant issue.
The final aspect is the proposed delegation to the commission’s chief executive of
“the Commission’s functions relating to the discharge of patients”
and the fact that the chief executive would exercise those functions without necessarily having recourse to any of the commissioners. I have had cases in which the power that the commission used in relation to discharge was a significant issue. The proposal for a chief executive who is appointed by ministers simply to consult a commission visitor who is similarly appointed by ministers creates concerns about the independence of the commission.
We have debated appointments to commissions in many other areas, and the view in other examples has been that appointment by the Crown on nomination by ministers is an appropriate way in which to provide some independence. The proposal to allow ministers to decide that they consider a commissioner to be unfit to discharge their functions gives ministers too much leeway, in my view.
It was clear from the point when we took a step back from including the Mental Welfare Commission’s functions in either of the new bodies that any changes would be around the governance of the commission. We had detailed discussions with the commission about what changes it wanted.
The amendments have not just been dreamt up by us; they were drafted very much in consultation with the commission. For some time, the Mental Welfare Commission has felt—indeed, it has begun to move in the direction that we are suggesting—that there is an issue with the governance arrangements, in that the commissioners have a governance role that involves their looking strategically at the commission’s work, but they also deal with the operational work on the ground, which we propose should be done by the new commission visitors. Given that the commission is keen to move forward on that, it would be unfortunate if we were not to move forward with the proposed changes.
On the issues that have been raised, I have seen some of the correspondence that has been mentioned, but I think that some of it is based on a misunderstanding of what the amendments propose. However, before coming on to the one or two issues that perhaps require to be looked at further—I will deal with those last—let me briefly respond to the specific issues that have been raised.
Amendments 201 and 202 touch on the protective functions of the commission under part 2 of the 2003 act only to the extent that they introduce the new arrangements for commission visitors. Otherwise, the main amendments are to schedule 1 to that act, which provides arrangements for the setting up of the commission. Nothing within amendments 201 or 202 will in any way change the protective functions of the commission. In fact, subsection (2) of the new section that amendment 201 would insert in the bill restates the commission’s protective role. That is what the Mental Welfare Commission wanted, and we agreed that it would be useful. The proposed subsection provides:
“In so discharging its functions, the Commission shall act in a manner which seeks to protect the welfare of persons who have a mental disorder.”
I cannot see how that could be any clearer.
On the commission’s role in practice as guardian of the principles of the 2003 act and on the question that was asked by, I think, Jeremy Purvis about best practice guidance, there is a clear difference between the role of the Mental Welfare Commission and the scrutiny role that HIS and SCSWIS are being established to provide. At the moment, the Scottish Commission for the Regulation of Care already carries out—often, but not always, in collaboration with the Mental Welfare Commission—scrutiny of mental welfare services. I foresee that HIS and SCSWIS will continue to operate in that same way, but they will now have a duty to operate in conjunction with the Mental Welfare Commission. All of that provides us with pretty good safeguards about how the measures will operate in practice.
Malcolm Chisholm raised the issue of charging. Proposed new section 9A of the 2003 act will simply allow, but not require, the Mental Welfare Commission to charge for any advice given. It is not expected that individual service users will be charged. The proposed provision leaves it to the discretion of the commission to make a charge if it thinks that that is appropriate. Similar provision already exist for HIS and SCSWIS, so there is nothing untoward with that proposal. Proposed new section 9A simply gives the commission the power to charge where that is appropriate.
Jeremy Purvis and Malcolm Chisholm also raised questions about the process surrounding the appointment and removal of commissioners. Quite honestly, the proposed provisions will bring the Mental Welfare Commission into line with the standard set of provisions for governance that exists for every other public body. The number of commissioners is set at a level that is proportionate to the size of the body. The commission will be able to appoint up to 10 commission visitors, who will do the actual work on the ground. On the governance arrangements, we believe that the proposed number of commissioners is adequate.
Board members are currently appointed by the Queen on the recommendation of Scottish ministers. Amendment 202 will simply take that bit out of the process. That will make no difference at all to the independence of the body. At present, the Scottish ministers recommend commission members and the Queen rubber-stamps their recommendation. In effect, the amendment will just cut out that bit of the process.
In fact, in some ways, there will be greater constraints on the Scottish ministers in appointing board members with the introduction of the new criteria to which ministers will have to have regard under proposed new paragraph 2B of schedule 1 to the 2003 act, which refers to
“the desirability of including ... persons who have experience of”
delivering or receiving mental health services. Amendment 202 tightens up the appointments process.
It is standard practice that Government officials should be able to attend board meetings. Those meetings should be open to scrutiny because public money pays for the bodies concerned. Of course, any matters that concerned individual patients could be taken in private. I simply do not see why the board of the Mental Welfare Commission should be treated any differently from the board of any other publicly funded body.
14:30
I concede that there is an issue—perhaps this relates to what Derek Brownlee said—with the question that the National Schizophrenia Fellowship and, I think, the Law Society of Scotland raised about the inclusion of users and carers in commission appointments. The commission will appoint commission visitors, so there is nothing to prevent it from ensuring that users and carers are among them.
However, on reflection, I concede that there is an issue with user and carer representation among the commissioners, who make up the governance structure of the commission itself. There is a clear requirement for user focus, to which we always have regard, but there is no requirement for a user or a carer to be appointed as a commissioner. I am happy to reflect on that before stage 3. That was one of the key concerns in some of the correspondence to the committee and I would be content to consider introducing provisions on the issue at stage 3 if members felt that that would strengthen the governance arrangements for the commission.
That ends day 4 of stage 2 consideration of the bill. The target for the next day’s consideration will be the end of the bill. I remind members that the deadline for lodging amendments is 12 noon on Thursday 25 February.
14:41
Meeting suspended.
14:44
On resuming—
Good afternoon and welcome to the fifth meeting of the Finance Committee in 2010, in the third session of the Scottish Parliament. I have received apologies from Tom McCabe. I ask members and the public to turn off mobile phones and pagers, please—they interfere with the recording system.
Agenda item 1 is consideration of the Public Services Reform (Scotland) Bill at stage 2. I welcome to the committee Shona Robison MSP, Minister for Public Health and Sport, and her officials. I intend to move straight to amendments, as we did last week.
After section 91
The result of the division is: For 3, Against 3, Abstentions 1. I use my casting vote for the amendment.
Amendment 201 agreed to.
After schedule 12
Amendment 202 moved—[Shona Robison].
I agree with some of what Malcolm Chisholm and Jeremy Purvis said. We have all had representations on the subject in recent days. Regardless of how we got to this stage—I appreciate that there has been a consultation—what makes me most uncomfortable is that some profound issues are involved. Those issues are partly to do with principle but also to do with how the legislation would be interpreted in practice.
I am sure that the minister has seen the correspondence about the amendments from the Law Society of Scotland. I do not necessarily endorse all its views. For example, I have no problem with the provision that allows ministers to approve the location of the commission. I do not think that that constitutes interference with the commission’s independence. The committee has said that it is perfectly appropriate for ministers to retain that power in relation to commissioners and ombudsmen in general. However, some of what the Law Society says, and some of what is said by many of the correspondents from whom committee members have received communications recently, is about how the amendments would be interpreted in practice.
If we were in a position to see not only the amendments but the draft guidance, we might have a broader view of the effect that the amendments would have in practice. The quandary that I am in today is whether it is better to agree to these amendments and lodge further amendments at stage 3, or to take Malcolm Chisholm’s proposed route, which is not to agree to the amendments today and to allow amendments to come back at stage 3. If the minister is not aware of all the concerns that have been expressed, I am sure that we will be happy to pass on some of the correspondence to her. I am sure that some of them can be resolved. My concern is that, if we wait until stage 3, we will not see amendments until late in the day and we might not see the draft guidance.
I presume that we are all trying to reach the same outcome, which is the creation of a respected, independent commission that is capable of carrying out its functions effectively. I appreciate that there has been a consultation, but given that genuine concerns have been expressed by people who have experience in the field, what process does the minister regard as appropriate between now and stage 3? How can we engage with stakeholders and use the consultation process, as far as possible, to take on board the concerns that have been raised and get more consensus on the provisions and more clarity about what they will mean in practice? That is what we all want.
The question is, that amendment 202 be agreed to. Are we agreed?
Members: No.
The result of the division is: For 3, Against 3, Abstentions 1. Again, I use my casting vote in favour of the amendment.
Amendment 202 agreed to.
Section 92 agreed to.
Schedule 13 agreed to.
Sections 93 and 94 agreed to.
Schedule 14—Scrutiny functions: persons etc subject to duty of co-operation
Shona Robison (Minister for Public Health and Sport)
Amendments 201 and 202 relate to the Mental Welfare Commission for Scotland, in particular its functions and governance. With your forbearance, convener, before I turn to amendment 201, it might be helpful if I set out the background to the inclusion in the bill of the new topic introduced by these amendments.
Please do.
There will be a division.
For
Fabiani, Linda (Central Scotland) (SNP)
FitzPatrick, Joe (Dundee West) (SNP)
Welsh, Andrew (Angus) (SNP)
Against
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Whitton, David (Strathkelvin and Bearsden) (Lab)
Abstentions
Brownlee, Derek (South of Scotland) (Con)
It is regrettable that such major amendments have been lodged at stage 2, as that means that they have not been subject to the rigorous scrutiny that the Scottish Parliament always gives to legislation at stage 1. As everyone knows, that is the great strength of the Parliament’s legislative process. The Government may have thought that the amendments were not controversial. Until I looked at them in detail, I assumed that they were not. However, my examination of the amendments and the large number of e-mails that I have received in the past few days suggest to me that the amendments are more problematic than I and, perhaps, the Government had anticipated.
All members of the committee have received a detailed submission from the relevant sub-committee of the Law Society of Scotland. That is important evidence, but I have also received e-mails from clinical academics, an eminent expert on mental health law, user groups and carers who have had experience of the Mental Welfare Commission. We must give serious attention to the issues that such a variety of people have raised.
The biggest concern relates to subsection (4) of the new section that amendment 201 would insert in the bill, which would abolish the commission’s function
“to monitor operation of Act and promote best practice”
and replace it with a more general duty to monitor the principles of the 2003 act. In one e-mail, which was signed by a group of people, it was put to me:
“If these duties are removed from the Commission who then will have the responsibility of monitoring the operation of the Act as a whole? It is the responsibility of the Commission in these areas which contribute to regard for the Act internationally.”
Those points were made by eminent academics.
I received a practical example from a carer, who wrote to tell me about how her son—I do not think that he will be identifiable—was detained in hospital, subject to special restrictions under the 2003 act. She pointed out:
“Within 48 hours, our family member had been visited in hospital by a senior member of the MWC, they had explained that the interpretation of the relevant sections of the Act and Regulations by the Consultant and Hospital Managers was flawed, the Restrictions were withdrawn, and an apology was received.”
It seems to her and to me that that would not be possible under the revised functions that are proposed for the commission under the proposed new provisions. I have serious concerns about that issue.
Several other concerns have been raised. Proposed new section 9A of the 2003 act, which amendment 201 would insert, places a specific duty on the commission to give advice, but the suggestion that such advice should or could be charged for is worrying and, probably, inappropriate. If service users and carers were concerned that they might be charged, that could inhibit them from seeking advice.
Concerns have been expressed about the proposed power of the Scottish Government under amendment 202 to appoint and remove commissioners without being required to consult the Mental Welfare Commission. People have made the point that, currently, the appointments are Crown appointments. In practice, that may not make much difference, but we should consider the external perception of the commission. I think that the approach that has been taken has contributed to the sense that the body has been completely independent and will not be influenced by the Scottish Government, particularly ministers. That should be considered in conjunction with other proposed changes, such as the proposal that the Government should be able to attend meetings of the commission. There are concerns that the commission’s independence is being diminished in particular ways.
14:15
I hear what the minister says about the number of commissioners. People will have different views about that, but one concern is that there will be much less of a range of expertise if there is a relatively small number of commissioners. At the moment, there are, for example, representatives of users and carers on the commission, but under paragraphs 2(B)(2)(a) and 2(B)(2)(b) of the schedule proposed in amendment 202, there would be no requirement for users or carers to be members of the commission. If we read the provisions carefully, we find that they could be members of the commission, but there would certainly be no requirement for that. Furthermore, there is no requirement for any commissioner post to be reserved for a psychiatrist or social worker. There are concerns about the commission’s composition, and particularly about users and carers possibly not having a place on the board.
As a result of the range of concerns that have been expressed to me and other committee members, it appears that there are serious questions to be asked about the amendments. If the proposals had been presented at stage 1, the Finance Committee or the Health and Sport Committee could have heard evidence on them, and the Government would obviously have had more of an opportunity to come back on points that had been made. Recommendations could have been made in the stage 1 report, which would no doubt have guided us at this point. However, that did not happen, and I have serious concerns about our simply rubber-stamping the amendments. My preferred option would be for the Government not to press them, but to take on board my concerns and concerns that others will perhaps express and lodge amended amendments at stage 3.
We must now come to a decision. The question is, that amendment 201 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Fabiani, Linda (Central Scotland) (SNP)
FitzPatrick, Joe (Dundee West) (SNP)
Welsh, Andrew (Angus) (SNP)
Against
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Whitton, David (Strathkelvin and Bearsden) (Lab)
Abstentions
Brownlee, Derek (South of Scotland) (Con)
Amendment 203, in the name of the minister, is grouped with amendments 204, 206 and 208.
Amendment 203 adds Her Majesty’s chief inspector of prisons for Scotland and Her Majesty’s chief inspector of prosecution in Scotland to schedule 14. That brings those bodies within the scope of the duty to co-operate in section 94, as the committee recommended in its stage 1 report.
In its report, the committee also recommended that Her Majesty’s chief inspector of prosecution be added to the list of bodies in section 95 that ministers can request to participate in a joint inspection under the section. Amendment 204 makes that addition.
Amendments 206 and 208 insert provisions in relation to making regulations about the conduct of inspections to bring section 97 into line with the Joint Inspection of Children’s Services and Inspection of Social Work Services (Scotland) Act 2006, which the joint inspection provisions in the bill will replace.
I move amendment 203.
Amendment 203 agreed to.
Schedule 14, as amended, agreed to.
Section 95—Joint inspections
Amendment 204 moved—[Shona Robison]—and agreed to.
Amendment 205, in the name of the minister, is grouped with amendment 207.
These amendments are technical amendments to insert provisions for handling confidential information relating to children and adults at risk. The provisions are similar to provisions in the Joint Inspection of Children’s Services and Inspection of Social Work Services (Scotland) Act 2006, which have worked well, and to provisions that have already been agreed to for inspections by SCSWIS and HIS in section 45 and section 90, in parts 4 and 5 of the bill respectively.
I move amendment 205.
I accept what the minister has said about the amendments, but they raise the whole issue of access to confidential information. Amendment 205 merely provides a definition, but amendment 207 will place a requirement on people carrying out a joint inspection with regard to confidential information, which is a specific in the bill. In general, the issue is dealt with in two other ways in the bill: in section 95 there is a reference to a code of practice that will be issued, and in section 97 there is a whole list of issues that we are told will be dealt with by regulations. In section 97(2)(c), there is a reference to “health records”.
There has been a great deal of concern about the issue. Shona Robison’s colleague Ian McKee and I raised the issue in the stage 1 debate. No one is proposing an amendment to the bill in that regard, but there will be a vigorous debate when the regulations are issued. I thought it right to raise the issue at this time, particularly because I would like clarification on the situation with adult medical records. As far as I understand it, the current situation is that there is provision that pertains to children’s records in the 2006 act, which the bill will repeal. I assume that, as a result of the new legislation, access to adult health records will be on the same basis as access to children’s health records. What puzzles me is the information about the current situation that I received in recent answers. I was told in a written answer two weeks ago that
“The rules regarding legal authority to access medical records without explicit consent apply equally to children and adults”,—[Official Report, Written Answers, 11 February 2010; S3O-9461]
yet it appears that there is legislation from 2006 about children’s records and not about adults’ records. If the minister could shed light on that, it would certainly be interesting.
However, it is more important to put down a marker that this is a controversial issue and that the British Medical Association in particular would like the regulations to say that records should be anonymised if consent is not given. It would be useful at this stage to get an indication of the minister’s view of that suggestion. I suppose that an amendment could still be lodged at stage 3 if there is not some reassurance about what the regulations and the code of practice will contain.
I will write to Malcolm Chisholm about some of the detail of that—the matter that he has raised is very detailed. I reiterate that, as he indicated, all these matters will be fully dealt with in regulations. Of course, there will be an opportunity for the regulations to be fully debated and scrutinised by the Parliament. I am not sure that I can add much to that at this stage but, in the meantime, I will write to Malcolm Chisholm with as much information as I can provide. I reiterate that these matters will be dealt with in regulations.
Amendment 205 agreed to.
Section 95, as amended, agreed to.
Section 96 agreed to.
Section 97—Regulations relating to joint inspections
Amendments 206 to 208 moved—[Shona Robison]—and agreed to.
Section 97, as amended, agreed to.
Section 98 agreed to.