Subordinate Legislation Committee, 25 Jun 2002

Meeting date: Tuesday, June 25, 2002

Official Report 179KB pdf

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Instruments Subject to Annulment

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

We have made a change to the agenda, if that is fine with everyone. We agreed at the beginning of the meeting to take our next set of witnesses—

Could I have a copy of the regulations to which the witnesses will speak? I do not have a copy.

Aye—no problem.

I wanted to let the official report know that we are moving on to the Adults with Incapacity (Specified Medical Treatments) (Scotland) Regulations 2002 (SSI 2002/275). Just before the witnesses come in, I want to say that we had thought that the regulations might have been overtaken by events, but that is not entirely the case.

I welcome James T Brown, Fiona Tyrrell and Alexandra Campbell, from the public health division of the Scottish Executive health department, and Stuart Foubister from the solicitor's office. Thank you for your attendance.

We know that since we asked you to come and explain the regulations further to us, there has been an announcement about the regulations. However, the committee is still concerned.

First, we are interested in the consultation because there does not seem to be much information about the results or analysis of the responses. Will you explain that to the committee?

Last June, we issued a consultation document, which was based, in essence, on the recommendations of the Scottish Law Commission and the Millan committee. The consultation was part of a tripartite exercise. One exercise sought views on the code of practice in relation to part 5 of the Adults with Incapacity (Scotland) Act 2000. The second exercise was for setting up the ethics committee under the same part of the same act, and the third sought views on the specified treatments that could be included in the regulations.

More than 800 copies of the consultation document were issued and more than 80 responses were received. Of those responses, 49 commented specifically on the proposals for specified treatments. The responses were summarised by Scottish Health Feedback on behalf of the Executive's central research unit. A summary document and analysis of the findings were published. Those findings were placed on the Scottish Executive website. In addition, the summary findings were distributed to all who had been the subject of the consultation and the full summary report was sent to all who had responded to the consultation.

So we were just unlucky.

I thought that the summary and the full summary report would have been made available to the Scottish Parliament information centre. I apologise if that was not the case. We can make them available if that would be helpful.

It is always helpful if they are sent with the instrument.

Can you answer our other questions?

Obviously, the Executive's position is that the regulations are compatible with the European convention on human rights. We accept that issues that arise under the articles that were mentioned in the paper that the committee sent to us should be examined.

Article 3 deals with inhuman or degrading treatment, and the standards at which it operates are set fairly high. "The Law of Human Rights", by Clayton and Tomlinson, says:

"The high ‘minimum threshold' for ‘inhuman or degrading treatment' means that, in order to breach article 3, mistreatment must be very serious. As a result, it appears that well regulated and monitored mental health practice, even at the extremes of treatment, will rarely, if ever, breach article 3."

I do not think that the combination of the regulations and the provisions of the Adults with Incapacity (Scotland) Act 2000 gives rise to serious questions under article 3.

The article under which serious issues are likely to arise is article 8, which deals with the right to private life, including the right to physical integrity. A situation in which treatment is given without informed consent might give rise to a breach of article 8.1. Article 8.2 is the provision that allows contraventions of article 8.1 to be justified. Our view is that the balance that is struck by the regulations and the act, between respecting the rights of the individual and protecting the health of the individual, would be justifiable under article 8.2.

With regard to article 14, the paper that we were sent raised the issue of differences in the regimes that pertain to those who fall under the adults with incapacity legislation and those who are detained under part 10 of the Mental Health (Scotland) Act 1984. We think that the two regimes must be considered in their entirety. It is a misconceived approach to consider only one aspect of a treatment regime. The condition of those who are detained under the 1984 act is considerably different from that of those who fall under the 2000 act. Accordingly, we do not think that there is likely to be any breach of article 14.

I understand that there is a difference between people who are held securely and people who are not. I know that the United Nations charter does not carry the same force in law as the ECHR does, but I thought that there was an implication that the rights of those people—

We would not suggest in any way that those who are held under part 10 of the 1984 act do not have equal rights under the ECHR. The issue with regard to article 14 is whether there is an entitlement to deal with those people differently without there being a breach of law. We take the view that the difference in their overall situation is such that not every aspect of the treatment regime needs to match up exactly.

We have our own pet lawyers in this committee, so I shall let them loose on you.

I always think that there is very little that we can do about these things politically. There are lots of provisions that people could argue to be a breach of the ECHR and, no doubt, this is a prime example. If the Executive says that it has looked at the regulations and we do not think that there is a breach, that is all that we can do, at one level. If it is proposed to carry out an abortion under these regulations, somebody will pop along to the court and say, "This is a breach of the ECHR" and the court will reach a decision about that.

It is inevitable that there will be occasions on which the Executive will be wrong in producing instruments. Somebody will take the Executive to court and it will lose. That is the nature of the process. From a political point of view, there is not much that we can do about that, because we can never be satisfied that there is a breach of the ECHR. The Executive can never be 1,000 per cent, hand-on-heart satisfied that it will win a case and we can never be satisfied that it will not. It is not our job, as politicians, to be satisfied of that.

It might help the committee to know that this is not an area of law in which there is much case law from the European Court.

No doubt somebody could have a stab at it.

Yes, but most mental health case law from the European Court relates to article 5 of the ECHR and the ability to detain people with mental disorders. There is very little case law on treatment.

Does the UN not say:

"Sterilization shall never be carried out as a treatment for mental illness"?

Sorry, where does that statement come from?

It comes from the General Assembly of the United Nations.

The UN recommendations are in no way binding in law.

But everyone aspires to them.

That is why I think that a lawyer could go to court and put up an argument about what you have said. I am never quite sure what we, as politicians, can do to strike in such a situation, unless we are 1,000 per cent sure that the regulations are in breach of the ECHR, and I do not think that we ever can be that sure. Five judges in the House of Lords could sit and decide on that point—it is that difficult and narrow. Where does that leave us? The Executive raises the matter and says that it is satisfied and all that we can say is, "Good luck to you; time will tell."

I was going to mention the phrase that the convener used from the General Assembly of the United Nations. I am inclined to agree with Gordon Jackson. Such matters come down to case law, because cases help to make the law when it is challenged.

Perhaps the convener does not agree, but what is the alternative?

That is what I am trying to work out.

What can we do?

What can we suggest?

The Executive will just have to take its chances.

I agree almost entirely with what Mr Jackson said. The area with which we are dealing is one in which domestic courts might be reluctant to get involved. If someone brings a case that challenges the law, the courts would consider it. However, with cases with strong ethical or moral elements, courts might think that as long as there is no clear breach of the convention they would defer to the judgment of Parliament.

I doubt that. Some judges will argue an application that is put before them regardless of whether anybody argues the contrary. Some judges will say that their duty in terms of the Scotland Act 1998 is to not breach the European convention on human rights. They will quote what Margo MacDonald said about the UN's recommendation that we cannot sterilise people and they will ask how we get round that. Some judges will challenge regulations like these at their own hand. It is for the judicial process to sort out. I am not sure what politicians can do. I would not bet on the fact that a judge might get smart, say that the points that the regulations raise are interesting and have a go at them without a contradictor. Some might, but some would not.

So, the committee summarises its feelings on this matter as, "You have been warned".

They know that.

We are always pleased to receive the views of the committee and to have warnings brought to our attention.

Are we allowed to ask about anything else?

Of course.

We might stray into areas that we are not here to discuss.

I will tell you if you do.

What does

"the adult does not oppose … and … the adult does not resist"

mean in regulation 3?

We thought that opposition would probably be expressed by the adult either verbally or in an advance directive stating that treatment was not wanted in the event of incapacity. The use of "resist" refers to physical resistance. We allow for both types of opposition.

So "resist" means "struggle".

Yes.

That measure would kick in after the court had considered the matter. The first stage is the court's being satisfied that the adult does not oppose the treatment. There is an entirely separate test—that the adult does not resist the carrying out of the treatment.

To what does "does not oppose" refer? If an adult is mentally incapacitated and is not in the land of the living, they will not oppose anything. However, what about an adult who, while gradually becoming incapax but knowing what is happening said, "See when I'm no compos mentis, don't do that." Would that constitute opposition?

Such views would be taken into account by the court.

But would that constitute opposition? Would that ban treatment? The regulation refers to an adult's opposition to treatment—end of story. Is it anticipated that if someone opposed future treatment—

I am sorry, my learned friend.

Will there be a test at any point to decide whether a person is of sound enough mind to oppose treatment rationally? Can treatment be opposed at any point before deterioration in mental capacity? Can someone say, "I don't want that", as they can say, "I do not want to be resuscitated after an accident"? If so, at what point can that be done? Is there a test to determine whether someone is capable of doing that?

The test is that the court must judge whether the adult does not oppose the treatment. The court would have to take into account all materials that were put before it in that regard. If opposition were expressed prior to an adult's becoming incapable, that would be examined by the court.

I find the situation strange, because it seems that if the adult says, "I oppose the treatment", the court has no discretion. The court can agree to treatment only if the adult does not oppose that treatment—

That would be the case even if the adult had resisted, and all the rest of it.

An adult who desperately needs treatment but who says, "I oppose", could be mentally incapacitated to the nth degree. What would happen if somebody who was mentally ill said, "I oppose", but that view was totally irrational. Such opposition would be effective under the regulations. The argument is circular. Do you see what I am saying?

Yes, I see exactly what you mean, but that is one of the issues with which the court would need to grapple. The certificate of incapacity under section 47(1) of the Adults with Incapacity (Scotland) Act 2000, which triggers the process, could be issued only if the medical practitioner who had primary responsibility was satisfied that the adult was incapable of reaching a decision in relation to treatment.

So what does "oppose" mean?

As Fiona Tyrrell said, there would need to be an assessment of the adult's views prior to incapacity being certified.

But the regulations refer only to opposition.

It is catch 44.

Yes.

It is a catch-44 situation. The issue is also about the interface with policy. I would love to pursue the matter, but we have made our guests from the Executive think about the matter, so I ask them to really think about it and to let us know more when they have thunk.

I have one more question on an interesting matter, which might not be entirely to do with policy. On what basis were the different procedures included in parts 1 and 2 of schedule 1? It seems to be irrational that, although a person cannot be sterilised without the approval of the Court of Session, treatment that will unavoidably lead to sterilisation can be carried out. To a person who has been sterilised, there might be no distinction to be made when they are told, "We did not sterilise you; we just did something else that in turn sterilised you." The consequence for the patient is identical. What is the thinking behind making only one procedure subject to the approval of the court when the result to the patient is the same under both types of treatment?

There are occasions when a patient must be treated—such as when they have cancer—even though the treatment might unavoidably cause sterility. The treatment that is specified in part 2 of schedule 1 is for where sterilisation is not intended but occurs as a side-effect.

However, the same reason could not be given as to why abortion is included in part 2.

Abortion is included in part 2 for a different reason.

Why was abortion thought to be less serious. There are some people out there—if I may say so—who think that abortion is every bit as serious as all the other things that are done to people.

Abortion was clearly a difficult matter. One objection to requiring that abortion be referred to the court was the time factor; there might be situations in which a very quick decision is necessary.

The only Scottish case on entitlement to abortion—for a capax person—was Kelly v Kelly. That case was resolved within a week despite the fact that it stopped just short of the doors of the House of Lords.

The courts can do certain things very fast.

That is true, but we followed the Scottish Law Commission's recommendation on abortion.

Is that an innovation in the Adults with Incapacity (Scotland) Act 2000? As far as I can see, even for persons aged 16 or 17, no approval of the court is required, nor is it required that representations be taken from someone else who might be interested in the welfare of that 16 or 17-year-old. It is required that only one general medical practitioner certify the treatment. Does that innovate on the Abortion Act 1967?

No. In addition to the regulations, the 1967 act's criteria must be satisfied.

Will the regulations ensure that the person who certifies the treatment of a patient who has a mental condition is neither a certifying general practitioner under the 1967 act, nor the patient's family general practitioner?

The regulations do not preclude the Mental Welfare Commission doctor from also certifying under the 1967 act, so it would be possible for that to happen.

Is that a change, Brian?

It strikes me that people might be concerned about the potential risk if the same person does the certifying.

I suppose that the safeguard is that the doctor is appointed by the Mental Welfare Commission.

However, it would be the same doctor.

We have given the Executive witnesses an indication of our interest in, and slight concern about, the previous matter. Perhaps they can consider the matter further.

Shall we write to you?

Yes, although my colleagues will need to read what you write and tell me what you say.

If there are no further questions for the witnesses and if the witnesses have nothing further on which they wish to elaborate, I thank them very much for their attendance.

All life is here. I am afraid it is all auld claes and parritch now.