Health and Sport Committee

Meeting date: Tuesday, May 26, 2015

Official Report 675KB pdf

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Mental Health (Scotland) Bill: Stage 2

Good morning and welcome to the 17th meeting in 2015 of the Health and Sport Committee. We welcome to the committee Adam Ingram MSP, and we expect Jackie Baillie MSP to attend.

At this point, I usually ask everyone in the room to switch off mobile phones, as they can interfere with the sound system. I remind people that committee members and our support staff are using tablet devices instead of hard copies of our papers.

The first item on the agenda is day 2 of stage 2 consideration of the Mental Health (Scotland) Bill. I again welcome the Minister for Sport, Health Improvement and Mental Health and his officials. For the record, I remind members that the minister’s officials are here in a strictly supportive capacity and cannot speak during proceedings or be questioned by members. Everyone should have a copy of the bill as introduced, the second marshalled list of amendments and the second groupings of amendments.

There will be one debate on each group of amendments. I will call the member who lodged the first amendment in the group to speak to and move that amendment and to speak to all the other amendments in the group. I will then call the other members who have amendments in the group. Finally, the member who lodged the first amendment in the group will be asked to wind up the debate and to press or withdraw the amendment. Members who have not lodged an amendment in the group but who wish to speak should catch my attention in the usual way.

If a member wishes to withdraw their amendment after it has been moved, I must check whether any member objects to its being withdrawn. If any member objects, the committee will immediately move to the vote on the amendment. Any member who does not want to move their amendment when it is called should say, “Not moved.” Any other MSP can move the amendment, but I will not specifically invite other members to do so. If no one moves the amendment, I will call the next one.

After section 22

Amendments 48 and 49 moved—[Jamie Hepburn]—and agreed to.

Section 23—Services and accommodation for mothers

Amendment 50, in the name of the minister, is grouped with amendment 51.

In the development of my position on these issues, my policy intention has centred on the particular benefit for mothers and babies of maintaining and supporting that relationship in the first year of life. As part of that, it is important that our approach in the area is consistent with the Children and Young People (Scotland) Act 2014 in recognising the rights of the child and promoting, supporting and safeguarding a child’s wellbeing.

Amendment 51 amends the Mental Health (Care and Treatment) (Scotland) Act 2003 to provide that

“a Health Board is required to provide services and accommodation ... only if it is satisfied that doing so would be beneficial to the wellbeing of the child.”

That would not preclude health boards from offering those services in other circumstances, without it being an express duty, for example in cases where the impact on the child may be judged to be neutral. I believe that that strikes the right balance, requiring that accommodation and services are provided where it is beneficial to the child, while providing flexibility for health boards to consider other circumstances.

Amendment 50 is a technical amendment, which restructures provisions in the 2003 act to accommodate the new provisions that are set out in amendment 51.

I move amendment 50.

I have some concerns about amendment 51. I recognise that it is good and to be encouraged for mothers to have their babies with them. However, I wonder whether the catch-all of that being beneficial to the wellbeing of the child could give health boards an opt-out. I am wondering when it would not be beneficial to its wellbeing for a child to be with its mother. The provision is quite broad, but it seems to me that the range of situations in which a child would be away from its mother should be really narrow. I am a bit concerned that the amendment is very broadly drawn, which could give health boards the opportunity to opt out if they did not think that the facility was right, for instance. In what circumstances do you envisage that a parent and a child would be separated?

Rhoda Grant’s points are well made. The bill already improves circumstances for mothers with respect to the right to have their child with them at the early stages. I think that I am right in recalling that, at the moment, under the 2003 act, the only circumstances that apply are those of postnatal depression. We are widening those circumstances to cover other forms of mental health disorder. In that sense, we are taking on board concerns about ensuring that children are with their mother where that is appropriate. Of course, the bottom line is that the measures must be appropriate for the circumstances of the child, too.

I hear Rhoda Grant’s concern about a health board interpreting the circumstances as not being appropriate because of the structure of the facility and so on. That is certainly not the intention. I am happy to consider whether we need to finesse the provisions further, but I think that the principle that we have set out is the appropriate one. I believe that the committee should support amendment 51 at stage 2, and we will consider the matter further in advance of stage 3.

My instinct is that the concerns could be addressed by the guidance that we issue, but it is of course not the case that we want health boards to interpret the provisions on the basis of the facilities—this is a duty that they will have to adhere to.

Amendment 50 agreed to.

Amendment 51 moved—[Jamie Hepburn]—and agreed to.

Section 23, as amended, agreed to.

Section 24—Cross-border transfer of patients

Amendment 108 not moved.

Section 24 agreed to.

Section 25—Dealing with absconding patients

Amendment 52, in the name of Bob Doris, is grouped with amendments 89 to 91 and 53. If amendment 52 is agreed to, I cannot call amendment 89, as amendment 52 will have pre-empted it.

Amendment 52 relates to section 25 of the bill, which amends section 309 of the 2003 act to allow regulations to be made

“applying some or all of Part 16”

of the 2003 act, relating to medical treatment, to patients who have absconded from jurisdictions outwith Scotland while they are held pending removal to their home jurisdiction. That section would allow medical treatment to be given to those patients in accordance with those regulations. The purpose of amendment 52 is to amend section 309 of the 2003 act so that, instead of allowing regulations to be made that apply

“some or all of Part 16”

to absconding patients, regulations would apply only

“specific provisions in”

that part of the act to such patients. The effect of the amendment is that the regulations would have to specify the particular provisions of that part of the act that are to apply to such patients, thereby authorising only specified treatments to be given in accordance with the provisions of that part only, rather than applying the part in its entirety.

Amendment 53 also relates to the regulation-making powers that are introduced in section 25 of the bill. The purpose of amendment 53 is to introduce a new exception to the power to make regulations applying the provisions of part 16 of the 2003 act to patients who have absconded to Scotland.

Amendment 53 would ensure that the regulations would not authorise medical treatment of the types mentioned in section 234(2) and section 237(3) of the 2003 act. The effect would be that no regulations could be made that would permit those treatments being given. It would—this comes to the nub of both amendments—preclude treatments such as surgical operations, other treatment specified in regulations made under section 234 and electroconvulsive therapy from being given to patients who have absconded to Scotland from other jurisdictions. The amendment would specifically preclude those forms of treatments, with other forms of treatments to be outlined in the regulations.

I have worked with the Scottish Association for Mental Health to look at alternative amendments, but we considered that the alternative proposals might preclude routine treatment that may be necessary for on-going medication to be given.

I hope that the two amendments reassure stakeholder groups that the rights of absconding patients will be protected, while allowing essential treatment to be given when it is needed. I hope that the committee will support amendments 52 and 53.

I move amendment 52.

I have listened very carefully to Bob Doris. I welcome the fact that he has lodged amendments to section 25. The amendments in my name would go somewhat further than his proposals. He is proposing that certain treatments under part 16 of the 2003 act would still be allowed, subject to regulations, whereas I am proposing that all treatment other than under section 243 of the 2003 act—that is, all treatment other than emergency treatment—should be precluded.

The bill as drafted will allow ECT and any surgical operations intended to destroy brain tissue, as well as treatments to reduce sex drive and to force nutrition. However, section 243 of the 2003 act, which is what the bill would refer to under my amendments, specifically authorises urgent treatment for the purposes of saving life, preventing serious deterioration, alleviating suffering and preventing violent behaviour. That fairly broad area protects patients. The question to the minister is whether, under the regulations under part 16 of the 2003 act, those other treatments would be excluded. Treatments should be excluded unless they are there to save life or prevent serious deterioration.

The Government has argued against the amendment. It has said that that is not the Government’s policy and that more invasive treatments should be permitted in accordance with part 16 of the 2003 and should be given to patients who have absconded to Scotland. However, the amendments in my name would strengthen the situation. I will wait to hear the minister’s reply and Bob Doris’s summing up to see whether we will get guarantees on the regulations before I decide whether to move amendments 89 to 91.

I thank Bob Doris and Richard Simpson for lodging their amendments. I know that a range of stakeholders have particular interests in this area, such as the Scottish Association for Mental Health, as Mr Doris mentioned.

As I said in the response to the stage 1 report, it has never been the Government’s policy that certain treatments for which part 16 of the 2003 act requires additional safeguards would be given to patients who have absconded to Scotland. However, it is important that we strike the right balance to allow absconding patients to receive the treatment that they need.

Amendments 89 to 91, in the name of Richard Simpson, would restrict treatment to urgent situations for the purposes of saving the patient’s life, preventing serious deterioration in the patient’s condition, and alleviating serious suffering and preventing the patient from behaving violently or being a danger to the patient or to others. Although I recognise and understand the sentiments, the amendments extend too widely. As Dr Simpson said, they are fairly broad and, as Bob Doris suggests, could restrict appropriate treatment for absconding patients, as they potentially do not allow for on-going or routine treatment that may be of benefit to the patient.

09:30  

As Bob Doris set out, amendments 52 and 53 rule out certain treatments that require additional safeguards—electroconvulsive therapy, surgical operations and other treatments specified in regulations under section 234 of the 2003 act.

Turning to Dr Simpson’s question about what would be contained in the regulations, I note that the amendments will allow detailed consultation before the making of regulations to make specific provisions relating to other treatment for absconding patients. My commitment to Dr Simpson and the committee is that that will be a genuine consultation. It is important that we undertake such consultation to make sure that we get the right balance before we determine what would be in the regulations. The points by Dr Simpson are well made.

The amendments that have been lodged by Bob Doris strike the right balance, in advance of further consultation. I ask members to support amendments 52 and 53 and Dr Simpson not to move amendments 89 to 91.

I call Bob Doris to wind up and press or withdraw his amendments.

I will be very brief. I had written down three words in the course of that short debate: proportionality, balance and safeguards. The safeguards are for the patient in terms of when they would need treatment and when treatment should be precluded from being given to them. The amendments that I have lodged provide that balance, on the basis that the minister has agreed today to an open consultation in relation to what future regulations will be. I am sure that there will be such consultation. I press amendment 52 and will move amendment 53.

Amendment 52 agreed to.

Amendments 90 and 91 not moved.

Amendment 53 moved—[Bob Doris]—and agreed to.

Section 25, as amended, agreed to.

Section 26—Agreement to transfer of prisoners

Amendment 54, in the name of the minister, is in a group on its own.

Section 26 amends section 136 of the 2003 act to provide that a prisoner may be transferred to a hospital for treatment under a transfer for treatment direction only when a mental health officer has agreed to that.

A number of stakeholders including the Mental Welfare Commission for Scotland, the Scottish Prison Service, and the Royal College of Psychiatrists do not believe that the requirement for mental health officer agreement should be mandatory in all cases, as that could lead to delays in transfer and treatment. In particular, the Royal College of Psychiatrists noted that

“It would be inequitable for an ill prisoner to have a delay in necessary urgent treatment because their need is to do with their mental health and not physical.”

Amendment 54 therefore amends section 26 to allow a transfer for treatment direction to be made if it has been impracticable to obtain the agreement of a mental health officer.

Appropriate guidance will be provided in the statutory code of practice to make clear that the presumption is that agreement should be received from a mental health officer before a transfer for treatment direction is made and that a mental health officer should be involved promptly after the transfer, where that has not been possible beforehand. That maintains the right balance of requiring mental health officer involvement while avoiding any delays in treating acutely unwell prisoners.

I move amendment 54.

I welcome amendment 54 because the practical situation is that we have fewer mental health officers than we had 10 years ago. Recruiting them is proving extremely difficult and, therefore, the absolute requirement that a mental health officer should be involved in transfer from prison would be impracticable on a number of occasions. That needs to be addressed, because their engagement and involvement is important in both the short and long term. Getting this right is important.

My experience of working in a prison is that trying to get a mental health officer caused delays that were not in the best interests of the prison, the prisoner, other prisoners or the prison staff. I very much welcome the amendment.

Can the minister tell us whether there is a timeline in the guidance to ensure that a mental health officer will be involved after transfer?

I thank Dr Simpson for his comments. In response to Dennis Robertson’s question, I say that there is not a timeline because the guidance has not been written yet, but we can certainly consider that when we draft the guidance. We want to strike a balance between having a reasonable timescale and taking account of the other concerns that have been raised in comments. The general principle is one that we hope will be backed by the committee, for the reasons that Dr Simpson has set out.

Amendment 54 agreed to.

Section 26, as amended, agreed to.

Section 27 agreed to.

After section 27

Amendment 55, in the name of Richard Simpson, is grouped with amendment 56.

The inclusion of learning disabilities and autism spectrum disorder in mental health legislation was raised by a number of witnesses and in written submissions to the committee. Autism Rights and Psychiatric Rights Scotland called for the removal of people with learning disabilities and ASD from mental health law.

Inclusion Scotland commented that people with learning disabilities are concerned that they could be subject to compulsory treatment as a result of their learning disability alone. The committee received powerful testimony from Steve Robertson of People First, who questioned the appropriateness of the way in which people with learning difficulties are considered under mental health legislation. He said:

“We honestly believe that the time has come for a new piece of legislation that is just about people with learning disabilities. We think that it is only right and fair that learning disability is properly defined as an intellectual impairment rather than a mental disorder. With that definition, we would want recognition that additional time to learn and support to understand things, together with easy-read documents and support to make some decisions, are what we need. We need those things to help us take part in our communities, rather than restrictions, detentions and efforts to keep us apart from the world that we want to live in.”—[Official Report, Health and Sport Committee, 11 November 2014; c 39-40.]

I recognise that the Government’s document “The keys to life”, which came on top of the iconic and groundbreaking document “The same as you?” produced under Labour in 2000, moves things on for learning disability. However, we should recognise that, in 1999, recommendation 2 from the Millan committee said:

“In due course, mental health and incapacity legislation should be consolidated into a single Act.”

In 2009—six years ago—the McManus commission said that there was a need to review the Adults with Incapacity (Scotland) Act 2000 along with the Mental Health (Care and Treatment) (Scotland) Act 2003.

Northern Ireland has already begun the process of aligning incapacity and mental health legislation. In discussing previous amendments, I have raised my concern about the difference between SIDMA—significantly impaired decision-making ability—and lack of capacity, which must be looked at again. The need for alignment was echoed by a raft of witnesses who called for a wholesale review of mental health and incapacity legislation for a further reason—because of new information on, and knowledge about, neurodevelopmental disorders.

I concur with the Mental Welfare Commission for Scotland, which said that while the 2003 act and the 2000 act

“for a time ... genuinely led the world”,—[Official Report, Health and Sport Committee, 30 September 2014; c 27.]

there is a need to start thinking about the next wave and particularly about supported decision making in future plans.

Such views apply not just to amendment 55 but to other amendments that I have lodged. By continuing to include learning disability in the definition of mental illness, we are harking back to a bygone era. The inclusion of learning disability as a mental illness goes to the heart of issues of capacity.

The journey that we have taken from the lunacy acts of the 19th century, when we had idiot schools, through the asylum movement, the growth of huge institutions such as the Royal Scottish National hospital, Gogarburn house and Lennox Castle hospital, the shift to the community—which happened in my professional lifetime and was an excellent move with transitional and double funding—to the groundbreaking “The same as you?” report in 2000 and “The keys to life” in 2013 must now or in the very near future be matched by and fully reflected in our laws.

Colleagues, the simple truth is that, although people with learning disabilities are much more likely to have mental illness than the one in four of the general population who will have it, learning disability is not in and of itself a mental illness, and to continue to include it in the definition is an infringement of the human rights of those with such disabilities. Of course they need protection in law, but not in a law that could remove their human rights. As the Government’s second response to the committee’s stage 1 report said, a review would not be simple, but that should not prevent us from immediately commencing one.

In April 2014, the Committee on the Rights of Persons with Disabilities made a general comment on article 12 of the Convention on the Rights of Persons with Disabilities. Paragraph 38 of that general comment states:

“forced treatment by psychiatric and other health and medical professionals … denies the legal capacity of a person to choose medical treatment and is therefore a violation of article 12 of the Convention.”

Learning disability is such a disability. Accordingly, it follows that states parties

“must abolish policies and legislative provisions that allow or perpetrate forced treatment”.

We cannot ignore the fact that there have been occasions when patients have been deprived of their right to refuse treatment although they did not lack capacity and when the treatment and what those who were in power considered to be in the patient’s best interests might not, in fact, have been in their best interests. If necessary, a speedy application to the court should occur when there is a dispute.

The Government said in its initial response to our stage 1 report that it was not considering removing learning disabilities or autism spectrum disorder from the 2003 act or having a wider review. Its more recent, fuller response to the report was much more accommodating but still said that such an approach would be difficult.

I believe that the minister is sympathetic. I ask him to make a firm commitment on the record to an early review and to discussing with other parties and stakeholders the chair, membership and remit for such a review in the near future. Amendment 56 goes further than my amendment 55 in specifying that such a review must occur within a year. For me, a year is too long but, nevertheless, I will support Jackie Baillie’s amendment 56 if my amendment is disagreed to or if I do not press it.

On 19 May, the General Assembly of the Church of Scotland approved a report prepared by its church and society council that includes a section on human rights and mental health. That report strongly urges the Government to undertake the wider review for which I call. It also urges that the review should consider the issues that are raised in that report, which include matters relating to legal capacity and consent to treatment.

I seek from the minister an unequivocal commitment to an early review with a full commission similar to the Millan committee to examine the relevant acts: the Criminal Procedure (Scotland) Act 1995, the Adults with Incapacity (Scotland) Act 2000, the Mental Health (Care and Treatment) (Scotland) Act 2003 and the Adult Support and Protection (Scotland) Act 2007.

I will listen carefully to the minister’s response before deciding whether to press my amendment, because I realise that it might remove protections in the 2003 act for individuals with learning difficulties or autism spectrum disorder. Nevertheless, it is an important amendment that requires debate.

I move amendment 55.

I thank the committee for allowing me the opportunity to speak to amendment 56. I support amendment 55, but I am conscious that it seeks to remove learning disability and autism from the definition of mental disorder in the 2003 act. Amendment 56 calls for a review in the event that amendment 55 is lost. It reflects lengthy discussions held by the cross-party group on learning disability and would give effect to the group’s view that the inclusion of people with learning disabilities in the definition of mental disorder should be reviewed.

I absolutely acknowledge that unpicking complex legislation, much of which provides a passport to services and rights, is difficult to do. That is why I believe that amendment 56 is proportionate, because it calls for a review. Let us face it—a review is nothing new. The Millan committee first recommended it in 2001 and the McManus review recommended it in 2009. Both supported the idea of removing learning disability from the definition of mental disorder in existing legislation. I might be called a patient person but, 14 years on, it has still not happened, and it is now time to make that review happen.

Amendment 56 does not presuppose the outcome of any review. It would simply ensure that a review happened, that we got a chance to look at complex issues away from the urgency, if you like, and the process of a bill, and that we could consider the matter properly.

I hope that the minister will support amendment 56. Like Richard Simpson, I detect a change to a more welcoming tone. The previous comments from the Scottish Government were more negative. I hope that we will gain support for the amendment from the Scottish Government.

09:45  

I have a great deal of sympathy for Dr Simpson’s amendment 55 and, to some extent, for the patient Jackie Baillie. I echo the sentiments that they expressed. I hope that the Government can provide us with details as to when a review will take place, because the organisations and agencies that provide services for people with learning disabilities are asking for that. I will listen to the minister’s comments.

I support amendments 55 and 56. We have had powerful evidence about the difficulties that the current situation causes. It is time that we moved on and came to a better settlement with people with learning disabilities and other conditions that are not mental illnesses.

I recognise the issues that Richard Simpson and Jackie Baillie raise in their amendments and the passion with which they argue their case. I have heard the concerns that a number of people and organisations have raised about the inclusion of learning disability and autism under the mental health legislation. I met representatives of People First just last week, when the issue was discussed.

The 2003 act provides people with learning disabilities and autism spectrum disorders with important protections, safeguards and access to care and treatment. In anything that we seek to do, we must ensure that that continues.

In the Scottish Government’s response to the committee’s stage 1 report, I indicated that we intend to review the inclusion of learning disability and autism in the mental health legislation. It is important that we undertake that review to ensure that the range of views is heard—the views of those who have been making the case that learning disability and autism should not be included and the views of those who make the case for the benefit of the protections, safeguards and access that the legislation provides. We also need to consider carefully the practicality and the implications of any review that concludes that learning disability and autism spectrum disorder should be removed from the 2003 act. The review process would clearly allow for that.

I do not support Richard Simpson’s amendment 55 as it would remove the protections and safeguards that exist for people with learning disability and autism who are treated under the 2003 act and would not replace them with anything. Dr Simpson referred to the request for new legislation specifically on learning disability, but his amendment would not achieve that in and of itself. I urge him to withdraw his amendment in the light of the Government’s commitment to carrying out a review.

I understand why Jackie Baillie’s amendment 56 requires ministers to carry out a review within a year of royal assent. There has been an expectation that a review will take place for a considerable time—since the 2003 act came into effect, and again following the McManus report. I note that Richard Simpson believes the timescale in Jackie Baillie’s amendment to be too long.

I understand the sentiment, but I observe that the timescale that amendment 56 would impose would mean carrying out the review at the same time as implementing the bill. The people who will be involved in implementation—in feeding into the secondary legislation, developing the code of practice and putting in place the required changes to services—will also be key to the carrying out of a review.

I want the review to be participative, to ensure that all voices have an opportunity to influence the process and to be heard. It is critical to include those who have learning disabilities and autism spectrum disorders. That takes time, and it sometimes means taking longer than expected for genuine reasons, as unexpected issues arise during the process. I do not want us to set out an expectation, least of all in legislation, that is not achievable.

I make a commitment to carrying out a review. I would be happy to speak in more detail about the issue to Jackie Baillie, Dr Simpson or any other member of the committee or Parliament. I urge Jackie Baillie not to move her amendment 56 and, if she moves it, I urge members not to support it.

My position is unequivocal. I support a review of the inclusion of learning disability and autism in mental health legislation and I am happy to discuss that further with Opposition members and the committee. In setting out that position, we have to be clear that the review must be genuine. I do not want us to set a timescale that could curb the review so that it is not full scale and proper.

I welcome the fact that the minister has committed to a review, although the time is uncertain. As I said when I moved amendment 55, the review has to commence pretty rapidly. The term “carry out” in Jackie Baillie’s amendment 56 might not be the right one, as it may imply that the review will be carried out and completed. My interpretation is that the review would at least have to commence within a year. As I said, it is reasonable to expect the Government to establish the review within months, rather than a year.

I am happy to seek to withdraw my amendment 55, which I lodged as a probing amendment to ensure that there would be a proper debate, as there has now been. I realised that it would remove certain protections from people with learning disability, which would not be appropriate, so I am happy to seek to withdraw it. However, I will support Jackie Baillie’s amendment 56, if she moves it, on the basis that the review must start within a reasonable period. At stage 3, we will have the opportunity to make minor modifications to ensure that the bill talks about starting the review, rather than completing it, which was the implication of the minister’s remarks.

Amendment 55, by agreement, withdrawn.

I will not move amendment 56, on the basis that there will be a discussion with the minister about a firm timescale for a review. People expect that. However, I reserve my right to bring back the amendment at stage 3.

Amendment 56 not moved.

Amendment 109, in the name of Adam Ingram, is in a group on its own.

Amendment 109 was inspired by my constituent Fiona Sinclair of the Autism Rights group. Her research, using freedom of information requests, has established that there are no published statistics on deaths, suicides or adverse events such as assaults or restraints in the mental health system in Scotland. There is no collation of any data for any of those categories, apart from deaths.

There are national statistics for suicides, but there is no separate collation of data for those in mental institutions or those who are subject to compulsory treatment under the Mental Health (Care and Treatment) (Scotland) Act 2003. Although pilot schemes are in place to collate some of that information, we as parliamentarians must ensure that scrutiny is thorough and systemic.

In addition, there appears to be little collation of evidence, other than randomised control trials that are funded by the pharmaceutical industry, on the efficacy and effectiveness of various drug treatments. It is therefore impossible to judge how those treatments compare with different forms of treatment.

Amendment 109 would assist the purposes of medical research as well as providing a useful check on human rights in the system.

I move amendment 109.

I thank Adam Ingram for lodging amendment 109, which raises the important issue of how we reduce harm to people who receive care and treatment and how information gathering can support such a reduction. Of course, that is an issue not just for mental health services but for all health services.

I absolutely recognise the importance of reducing harm to people who are subject to compulsory treatment, but I do not think that the amendment would deliver the improvements to services that it is intended to deliver. We have already put in place mechanisms to support improvements in patient safety in mental health services. Health boards already report the deaths of patients who are detained in hospital to the Mental Welfare Commission, which in 2014 produced a report entitled “Death in detention monitoring” that provides an analysis of the situation. Moreover, Healthcare Improvement Scotland runs a suicide reporting and learning system that shares learning from suicide reviews. I am sure that we will return to the matter when we debate amendment 110, in the name of Richard Simpson, on reviews of deaths in detention.

In 2012, we introduced the Scottish patient safety programme for mental health. That genuinely innovative work on mental health services, which is run by Healthcare Improvement Scotland and involves all health boards, aims to systematically reduce harm experienced by people receiving care from mental health services. It focuses on five areas: communication at transitions; leadership and culture; medicines management; restraint and seclusion; and risk assessment and safety planning. Some of those areas—restraint and seclusion; risk assessment and safety planning; and medicines management—are exactly those that Adam Ingram’s amendment highlights.

The approach under the Scottish patient safety programme is powerful, because it allows services and front-line staff to focus resources, including those for collecting and analysing information, on the areas that need most attention locally, which will certainly change over time. Introducing a legislative requirement to always collect certain information or data would result in a lack of flexibility to do such work effectively. I argue that what we have in place and are continuing to develop is a more effective way of improving safety and reducing harm to patients, and it is more effective than introducing a new layer of statutory reporting and information collection requirements that would have substantial resource implications for health boards and front-line staff.

I urge Adam Ingram not to press amendment 109.

I very much support what Adam Ingram is trying to do. It is essential that boards collect such information if they are to learn anything. I heard what the minister said about the patient safety programme, which is important, but it is a matter of regret that we have no clear data on these matters.

I think that the issue can be covered in regulations and that the Government should give an undertaking on that if amendment 109 is not agreed to. It is essential that we have an appropriate understanding of such things. As I will indicate when I speak to amendment 110, I think that the time has come for further reviews, but I note that Adam Ingram’s amendment 109 goes further, as it deals with assaults, recorded adverse events and

“occasions on which restraints have been used in relation to a patient.”

The public are concerned about such issues, and it is important that we have some understanding so that we can see variations between health boards, which I have gone on about at length in the Parliament. That information would allow us to understand when one board is performing well and another is not. Until that information is made available in a public and transparent way, we will not be serving the public in the way that we should be, despite all the excellent programmes that the Government has put in place.

To add to what Dr Simpson has just expounded, I think that we need to improve the level of information that is available. A couple of years ago, the Scottish Information Commissioner produced a report that criticised a health board’s recording of significant adverse incidents in its mental health services. There is a deficiency in practice across the country, and I very much support Dr Simpson’s suggestion of putting in place regulations to improve that practice.

I heard what the minister said about the level of bureaucracy that might be involved in the administration that would result from amendment 109, but I certainly want to pursue regulations. On that basis, I will seek to withdraw my amendment, but I want to return to the issue, perhaps with Dr Simpson and others. If the minister was willing to listen to us, I would appreciate that.

10:00  

I cannot speak on the minister’s behalf but, throughout these days of considering the bill, he has been approachable and has been available to discuss any of the details.

Amendment 109, by agreement, withdrawn.

Amendment 110, in the name of Richard Simpson, is in a group on its own.

Amendment 110 follows on from Adam Ingram’s amendment 109. The wording of amendment 110 has been lifted and redrafted from Patricia Ferguson’s proposal for a member’s bill on fatal accident inquiries. The reason for lodging it as an amendment to the Mental Health (Scotland) Bill arose from a suggestion at a recent Justice Committee evidence session on the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Bill that scrutiny of deaths in mental health hospitals would be dealt with more suitably in a mental health bill.

At present, there are serious incident reviews, but families with whom I have corresponded are of the view that those are insufficiently regulated. Amendment 110 will not prevent a fatal accident inquiry from taking place if the procurator fiscal deems that an FAI is appropriate. However, there are reasons to believe that, notwithstanding any decision by the fiscal not to have a FAI, the Health and Safety Executive should conduct investigations. Roger Livermore, with whom I have had considerable correspondence, has extensive experience and expertise in this field and is scathing of the failure by the Health and Safety Executive, and, indeed, ministers to undertake detailed investigations.

The situation is further confused by the role of the Mental Welfare Commission, which also has a duty in the area. From time to time, it has produced valuable reports proposing improvements. In addition, as the minister mentioned in the debate on amendment 109, suicides in hospitals are reported to the confidential inquiry into homicides and suicides.

The fact that all those different organisations share responsibility for the situation is unsatisfactory. It is a complicated and confused area, which needs to be addressed. I will move amendment 110—as I will move an amendment on homicide later on—in the hope that it is accepted by the minister either in full or in principle. We need clarity of process, and families need transparency.

Amendment 110 would require the minister to establish a proper review of the arrangements for investigation of deaths, and it seeks to involve stakeholders in the process. If the minister opposes the amendment in principle, or supports the principle but opposes the amendment as it stands, I will seek to withdraw it and reconstruct it in order to lodge it at stage 3—with, I hope, the Government’s help.

I move amendment 110.

Richard Simpson’s amendment 110 is helpful in raising the issue. I am aware that in its report, “Death in detention monitoring”, the most important issue that the Mental Welfare Commission identified was the higher death rate in general among individuals with a history of mental health admission. However, it was not compulsory treatment that was associated with death; it was the presence of mental illness, learning disability and related conditions.

I have reflected on the issues that the report raises and on the point that the commission identifies about ensuring a more consistent and streamlined approach to reviewing deaths of patients in hospital. That approach should be focused on ensuring that services are able to both learn from reviews that are carried out and improve, so that they are more effective and safer. The approach should also ensure that relatives or carers are able to participate fully in the process.

I propose to ask the Mental Welfare Commission and Healthcare Improvement Scotland to consider how a more effective and consistent approach to investigating deaths could be developed. I expect them to take account of the views of relatives who have been affected by deaths in hospital. I will provide an update to the committee on those proposals, which would allow the committee to provide its views before we determine the action that will follow.

On that basis, I invite Dr Simpson to consider withdrawing amendment 110.

I am happy to withdraw amendment 110 on the basis of the minister’s helpful statement. However, I am concerned about the timeframe. If we do not see some strong progress soon, I expect to see, at stage 3, a requirement on ministers to produce regulations covering the issue, so that we have absolute clarity. I hope that the minister will make further comments on the developing discussions between the Mental Welfare Commission for Scotland and Healthcare Improvement Scotland.

Amendment 110, by agreement, withdrawn.

Section 28 agreed to.

After section 28

Amendment 57, in the name of the minister, is in a group on its own.

Section 57(2) of the Criminal Procedure (Scotland) Act 1995 sets out the disposals available in cases where the accused has been acquitted on the ground of lack of criminal responsibility or where they have been found to be unfit for trial.

Section 57A of the 1995 act sets out equivalent provision for those who are convicted of an offence and meet the test for a compulsion order, and provides that a compulsion order may be made authorising treatment either in detention in hospital or in the community.

Amendment 57 is intended to clarify that a person who has been acquitted on the ground of lack of criminal responsibility or found to be unfit for trial may also be made subject to either a hospital-based compulsion order or a community-based compulsion order.

It is appropriate that such a person should be able to be treated in the community in the same way as someone who has been convicted of an offence, and the amendment achieves that intention, which is in keeping with the principles of the legislation in terms of being the least restrictive option. The amendment also allows the court to act on the recommendations of the psychiatrists and mental health officer who prepare the reports for the court.

Amendment 57 also makes a consequential amendment to make clear the current position, which is that a restriction order may be made only where a compulsion order authorising detention in hospital is also made.

I move amendment 57.

In a case of a person who is found not fit to stand trial, what consideration is given to the victim of the crime that has been committed to ensure that they do not suffer any detriment and that the crime is not repeated? The minister will be aware of some quite high-profile cases.

We are introducing the victim notification scheme in the bill to notify victims of certain pieces of information that they are not currently privy to or able to request. We are making a significant advance in victims’ rights, for the reasons that Rhoda Grant set out.

Having said that, it is important that we ensure that we give equal treatment to those who are treated in the mental health system, rather than sent through the criminal justice system. That is what amendment 57 seeks to achieve. Victims’ rights will always be paramount, and that is why we have introduced the victim notification scheme in the bill.

Amendment 57 agreed to.

Section 29—Periods for assessment orders

Amendment 111, in the name of Dr Richard Simpson, is in a group on its own.

The effect of amendment 111 is to delete paragraphs (b) and (c) of section 29(4).

I note that no provision is made for cross-border transfers in section 52D of the Criminal Procedure (Scotland) Act 1995. I anticipate that problems may be encountered with respect to female and child patients who are on remand, who should be detained in a high-security facility, given that Scotland’s state hospital does not have provision for female or child patients.

Section 29(4)(c) allows the court to extend the assessment order to 14 days. I note that the consultation on the draft bill proposed extending the period to 21 days. Although I acknowledge that it is in the patient’s interests that as full an assessment as possible is made, I do not support the increase from seven to 14 days. Articles 5(4) and 6(1) of the European convention on human rights require a timely hearing, and I am not convinced that such an extension is necessary or proportionate.

Amendment 111 is supported by the Law Society of Scotland.

I move amendment 111.

Amendment 111, in the name of Richard Simpson, is on an issue that has generated considerable debate not only during the passage of the bill but when the proposals for the bill were consulted on. The committee also highlighted the issue in its stage 1 report.

As Dr Simpson said, our original proposal was to allow the court to extend an assessment order for a period of up to a maximum of 21 days, rather than the maximum of seven days that is permitted under the 1995 act. The proposal generated considerable comment. Respondents who supported it commented that it would allow for a more robust and informed assessment. However, not all respondents supported the proposal, and we acknowledged that by reducing the period of an extension to a maximum of 14 days.

The committee heard evidence at stage 1 from Dr John Crichton on the provisions extending the maximum period for the assessment order. He described how, in the most complex cases, that will allow the clinical team enough time to assess patients fully. In such cases, more time is needed than is presently available under the Mental Health (Care and Treatment) (Scotland) Act 2003 to determine whether the patient meets the treatability criteria and other criteria, as set out in the act.

Concern has been expressed that increasing from seven to 14 days the maximum period for an extension is, or may be, contrary to the rights, under the ECHR, of a person being assessed, particularly their rights under article 5, the right to liberty, and article 6, the right to a fair trial. Dr Simpson has just alluded to that.

However, I suggest that those concerns arise from a misunderstanding of how convention rights are secured in the context of an application for an extension of an assessment order. An extension can only be granted on application to the court, and then only for the period that the court permits. That is subject to a maximum period, which the bill provides is to be 14 days. I emphasise that that is the maximum; the court can, of course, determine a shorter period than the full 14 days.

When considering any application for an extension, the court has to comply with the Human Rights Act 1998. It can grant an extension only if, and to the extent that, to do so is compatible with the assessed person’s human rights. Therefore, the compatibility of any extension with the assessed person’s human rights is assured not by the statutory maximum period established by the legislation, but by the court’s scrutiny of each individual case to ensure that the period of extension granted is no longer than is justified by the particular circumstances of that case. I emphasise that an extension may be granted by the court only on the basis of a report from the patient’s responsible medical officer and will be determined on the basis of clinical need.

I ask Dr Simpson not to press amendment 111. If he presses the amendment, I ask members not to vote for it.

I thank the minister for his response. The fact that the court will determine the issue is very important, because that should protect the person’s rights under the ECHR. On that basis I will withdraw the amendment at this stage. I will consult the Law Society as to whether we need to proceed with another amendment at stage 3.

Amendment 111, by agreement, withdrawn.

Section 29 agreed to.

Sections 30 to 34 agreed to.

Section 35—Transfer of patient to suitable hospital

Amendment 58, in the name of the minister, is grouped with amendment 59.

Section 35(3) inserts new section 61A into the Criminal Procedure (Scotland) Act 1995, in order to close a gap identified in that act. New section 61A will allow for the transfer of persons who are awaiting trial and are subject to certain orders, described as remand orders, to a hospital that is suitable for their needs.

Amendment 58 extends that provision to cover patients who are subject to a temporary compulsion order. That will enable such patients to be moved to a hospital that is more suited to their needs, if it transpires that the hospital ordered by the court is unsuitable, and will ensure that they can be moved in the same way that patients on remand orders—that is, assessment orders, treatment orders and interim compulsion orders—can be moved.

Amendment 59 provides for the transfer of patients who are subject to assessment orders, treatment orders, interim compulsion orders and temporary compulsion orders to another hospital at any time during which the patient is subject to the order, and not only within the first seven days of admission to hospital, as proposed in the bill as introduced.

It is recognised that there might be situations where it does not become apparent until later that the hospital ordered by the court is not suitable or indeed that the patient’s mental condition and therefore treatment needs might change over time, necessitating a transfer to a different hospital.

I move amendment 58.

Amendment 58 agreed to.

Amendment 59 moved—[Jamie Hepburn]—and agreed to.

Section 35, as amended, agreed to.

10:15  

Before section 36

Amendment 112 moved—[Jamie Hepburn]—and agreed to.

Section 36—Compulsion orders

Amendment 61 moved—[Jamie Hepburn]—and agreed to.

Section 37—Hospital directions

Amendment 62 moved—[Jamie Hepburn]—and agreed to.

Section 38—Transfer for treatment directions

Amendment 63 moved—[Jamie Hepburn]—and agreed to.

Sections 39 and 40 agreed to.

After section 40

Amendment 92, in the name of Dr Richard Simpson, is in group on its own.

Amendment 92 has arisen from discussions with Hundred Families, which is an organisation that supports families who have been affected by homicide involving individuals with mental illness. In the past 10 years, 137 homicides have been committed by those with mental illness, but only two appear to have been the subject of published reports by the Mental Welfare Commission, and few appear to have been the subject of adverse incident reviews by health boards. Of course, that might not be the case, but, as we discussed in relation to amendment 109 in the name of Adam Ingram, we do not know what the situation is with any clarity, given the information that is available.

We should compare the situation with that in England, where, over the same period, 321 reviews were carried out for the 576 homicides that happened. Although they are not perfect, those English reviews suggest that 25 to 35 per cent of those homicides could have been prevented. The United Kingdom confidential inquiry, in which Scotland participates, is helpful, but Scotland might not be adequately fulfilling its duty to victims’ families if we do not require transparent reviews to be carried out in every case. Amendment 92 seeks to correct that failing.

The intention in amendment 92 is to provide, in primary legislation, clarity, consistency and accountability in the reviewing of and reporting on certain offences involving a person suffering from a mental illness who is already known to services. That provision is specified in proposed new section 63A(1) of the Criminal Procedure (Scotland) Act 1995, which amendment 92 would insert, and would apply, as proposed new section 63A(12) makes clear, to

“murder, ... culpable homicide”

and

“such other offence as the Scottish Ministers may by regulations prescribe.”

I would expect those other offences to include serious and violent assault and attempted murder.

At present, we have a dysfunctional reporting and review system that involves decisions by multiple organisations. The range includes the procurator fiscal deciding whether there should be an FAI; the confidential inquiry reports on homicide and suicide; the health board and the Mental Welfare Commission deciding whether to undertake reviews; and decisions by other organisations that might or might not have a role, including Healthcare Improvement Scotland and the Health and Safety Executive, especially in cases where a victim is a member of staff and the offence occurred in a workplace setting. Finally, the minister could require a review to be undertaken.

As I have said, the issue arose because of concerns expressed by Hundred Families, but for the record I make it clear that the number of murders, culpable homicides and serious assaults committed by persons with a mental illness, including those committed by persons with a severe and enduring mental illness, is tiny. My purpose in lodging amendment 92 is to ensure under proposed new section 63A(2) of the 1995 act that, if such a person is charged, the procurator fiscal will inform both the health board and the Mental Welfare Commission, and that, if the person in question has already been treated by that health board’s mental health services or those in another board area, the board will be obliged to make inquiries and prepare a report for the commission. The purpose of those reports and the Mental Welfare Commission summaries that are also proposed in amendment 92 is to ensure that the board in question and other boards learn from such incidents and amend procedures or practices to reduce the likelihood of a recurrence. The reports must also be given to the victim, if they are still alive, or their family—although I gather that, as drafted, the amendment does not ensure that the report goes to the next of kin, which will need to be addressed at stage 3. In any case, this is about improvement, not blame. It is also about protecting people with mental illness in future and ensuring that the procedures, wherever possible, prevent them from committing these offences.

Nevertheless, I am aware of two concerns about my proposals, the first of which is timing. How long ago should mental health services have been involved to require a board to conduct an inquiry and produce a report? Given that such cases are likely to involve mainly persons with a severe and enduring mental illness, I do not propose any time limit. If there were no follow-up in cases involving persons with such a mental illness, that might in itself be the problem that the boards need to face.

Secondly, as the minister mentioned in relation to a previous amendment, discussions are on-going between the Mental Welfare Commission, Healthcare Improvement Scotland and health boards. That is, of course, welcome, but will the outcome be enshrined in law—perhaps in regulations—and will it cover all the points that I have made? I believe that victims, their families, those with a mental illness and society itself are all best served by putting the measure in primary legislation.

I move amendment 92.

I know that Dr Simpson has taken a considerable interest in the issue and has been working closely with victims’ organisations, and I thank him for that work. It is important—indeed, it is imperative—that the voices of victims and their representative organisations are heard.

I understand that Dr Simpson has also met the Mental Welfare Commission to hear about the work that it is proposing to undertake with Healthcare Improvement Scotland. I have considered the commission’s advice on how we can improve the reporting of homicides, which I agree should be improved. The commission is seeking a more streamlined system to ensure that lessons are learned and shared in order to provide comfort and reassurance to families in these tragic cases.

The commission already has a power under section 11 of the Mental Health (Care and Treatment) (Scotland) Act 2003 to investigate cases of deficiency of care, and it has from time to time used that power to investigate homicides by patients. It has therefore proposed that, working with Healthcare Improvement Scotland and the Scottish Government, it should build on that to ensure that all cases are reviewed appropriately. In some cases, that would involve a review initiated by the local health board with oversight by the commission, but in cases in which there were serious concerns about the provision of care or reason to believe that significant opportunities to prevent a serious incident had been missed, the commission could conduct its own investigation. It would also be possible for a fatal accident inquiry, where appropriate, to be held. The commission is working with Healthcare Improvement Scotland to refine the proposal, which it hopes can be brought into effect soon. I propose to reflect on that proposal and, if it would help the committee, to write to the committee and update members in due course.

I have some concerns about whether amendment 92, as drafted, will achieve what is intended. The provision triggers the need for an inquiry on a person’s being charged with an offence, which would therefore be prior to their conviction. That person could be acquitted, because they were not guilty or were found not criminally responsible for conduct constituting an offence by reason of mental disorder, and holding an inquiry at such an early stage would seem to cut across the criminal justice process and might be thought inappropriate prior to the final disposal of the case.

The publication of reports also raises potential confidentiality issues, especially in cases where a person is acquitted. Sensitive personal details related to mental ill health are not normally made public, and it is not clear how confidentiality is to be safeguarded.

In light of those concerns and, more significantly, in light of the work that is already under way, I urge Dr Simpson not to press amendment 92.

I very much welcome part 2 in general and the approach of trying to involve victims and their families in the process. I also welcome the on-going work between the Mental Welfare Commission and Healthcare Improvement Scotland to streamline the system. However, I have residual concerns that I do not think are being addressed, although it remains to be seen whether that is the case.

Those concerns are about the situation in which a health board does not deem an incident to be sufficiently problematic to justify an investigation or review, but the victim or their family feels that that is necessary. There must be a mechanism beyond going to the Mental Welfare Commission to ensure that, if a victim or their family raises an issue of concern, the health board is required to hold a review at an early stage.

I am not convinced that the matter does not need to be dealt with in primary legislation, but I accept that the minister raised important issues to do with charging a person with an offence and confidentiality. On that basis, I will seek to withdraw amendment 92 and consult those with whom I have been in discussion to see whether a further amendment should be lodged at stage 3. That might depend on the fuller information that we will receive from the minister, who has offered to update us on the issue before stage 3. I hope that that will at least give us an outline of where we are going. I fully understand that full regulations cannot be delivered but, if we get an outline of the principles involved, that will probably be sufficient for us not to require the measure in primary legislation, but I reserve my position on that.

Amendment 92, by agreement, withdrawn.

Before section 41

Amendment 113, in the name of Dr Richard Simpson, is in a group on its own.

Amendment 113 arises from discussions with the faculty of forensic psychiatry. I should declare an interest in that I am a fellow of the Royal College of Psychiatry.

The first piece of legislation that was passed by the new Scottish Parliament in 1999, with which I was personally involved, was to tackle the situation arising from an appeal made under the European convention on human rights by Noel Ruddle against his detention in the state hospital at Carstairs following serious offences. That arose because the ECHR had been incorporated into Scottish law.

The Mental Health (Public Safety and Appeals) (Scotland) Act 1999 introduced the serious-harm test, under which patients who were convicted on indictment or complaint and subject to special restrictions by the court could be subject to indefinite hospital detention if a mental disorder was present and they were considered to pose a risk of serious harm to the public, irrespective of the appropriateness of the order or the treatability of the subject.

The legislative provisions in the 1999 act were subsequently extended in the Mental Health (Care and Treatment) (Scotland) Act 2003 to apply to all restricted patients in Scotland, who numbered about 250. Because of those provisions, there remained a small number of patients who became stuck in the forensic mental health system but who had been reclassified as personality disordered. In all likelihood, if the information regarding their mental disorder had been known at the time of sentence, they would not have been subject to a mental health disposal. In the case of Alexander Reid, the court of criminal appeal subsequently recognised that the change of diagnostic category could be considered as new evidence, and it allowed for a new disposal in his case. The process for raising his appeal took several years.

An alternative approach to the problem that is raised by cases such as that of Noel Ruddle is that there should be some mechanism by which the appropriateness of sentence can be reconsidered for patients whose diagnostic category has changed and whose detention in psychiatric hospital is consequently inappropriate. The whole approach in Scotland to personality disordered offenders was considered by a working group on services for people with personality disorder, which was chaired by Professor Thomson and which reported in May 2005. The report recommended that the Scottish Government consider whether a mechanism should be created to refer such cases to the Scottish Criminal Cases Review Commission for consideration. That position was rearticulated in 2011, when the forensic network gave evidence to the commission on women offenders, which was chaired by the Rt Hon Dame Elish Angiolini.

Amendment 113 seeks to create a mechanism whereby patients whose diagnostic category has changed following sentence can have the appropriateness of that sentence reconsidered in the light of the current or revised diagnosis. It will affect those restricted patients who, having been admitted on a mental illness or learning disability diagnosis, are subsequently recategorised as having a personality disorder. The patients find themselves stuck within the mental health system, with their continued detention justified on the basis of their personality disorder and the risk of the harm that they pose.

The faculty of forensic psychiatry believes that individuals with personality problems are far better supported and managed within the prison system than the mental health system. The amendment will provide a mechanism that allows individuals similar to Alexander Reid to have the courts review their disposal. The current system is extremely cumbersome and costly, and it is not in the best interests of the patient, society or the victims.

10:30  

The amendment allows for the Mental Health Tribunal for Scotland to review the appropriateness of the mental health disposal following a review of a compulsion order with or without restrictions. If the tribunal considers that the on-going compulsion order is inappropriate, depending on the clarity of the situation and bearing in mind the interests of justice and the principles of the 2003 act, then it may make reference to the appeal court to reconsider the sentence. This would probably apply to only a small number of individuals seeking to obtain a more appropriate disposal from the court.

Finally, the benefit of this amendment would be that, if even that small number of patients currently stuck within the mental health system were transferred to the Prison Service, there would be savings to the national health service of something in the region of £200,000 per patient.

I move amendment 113.

Dr Simpson’s amendment 113 opens up very complex issues in proposing new powers for the tribunal and courts that would revisit the decision of the court in its original sentencing and disposal. It also opens up what can be very complex, competing, clinical opinions about diagnosis.

I understand that the amendment is designed to address concerns among some psychiatrists that patients who are diagnosed—or indeed misdiagnosed—as having a mental illness or learning disability and, on that basis, made subject to a compulsion order or compulsion order and restriction order may later be diagnosed as having only a personality disorder. If the court had had full medical evidence based on the later diagnosis, that may have resulted in a prison sentence rather than a mental health disposal for the patient. Yet, once in the hospital system the patient cannot be released because they continue to satisfy the test for a compulsion order or compulsion order and restriction order because of the risk of serious harm that they pose.

It appears to me that the proposal would result in a significant shift in how mentally disordered persons are dealt with by the criminal justice system and, indeed, by the health service after conviction. The present position in the 2003 act is quite clearly that a patient who meets the conditions for a mental health disposal and requires to be detained may, in many cases, most appropriately be detained in hospital rather than in prison.

The 2003 act provides that “mental disorder” includes “personality disorder”, meaning that it is possible for a patient who has a personality disorder with no co-occurring mental illness to be detained in hospital. A more fundamental change to the definition of mental disorder in the 2003 act would be required to prevent that.

An amendment to the Criminal Procedure (Scotland) Act 1995 extended the time period for an interim compulsion order from six months to 12 months, to ensure that a full and rigorous assessment of the offender’s mental disorder is undertaken before the final disposal is made. It is very unlikely that an offender would be misdiagnosed in those circumstances, making it much less likely now that a patient would receive a hospital disposal from the court that would create the scenario that Dr Simpson describes.

All patients subject to compulsion orders and restriction orders have the right to apply to the tribunal and to have the orders reviewed periodically. In addition, there is already a means for patients to have their cases considered on appeal. The same appeal route is used for those offenders who receive a prison sentence but who argue that they should have received a hospital disposal.

Amendment 113 is well intentioned. However, it deals with a major issue and, given the implications for the criminal justice system, not one that I believe we should sensibly be considering without thorough consultation. On that basis I urge Dr Simpson not to press his amendment 113; if he does, I strongly urge members not to vote for it.

The numbers affected by my amendment 113 would actually be very small—the minister has almost conceded that in the statement that he has just made. I agree with him that, normally, a period of six to 12 months might seem long enough to ensure that there is not a misdiagnosis, but in practice there will still be a small number of individuals affected. Detention in a state hospital for such people is inappropriate and they will wish to be transferred to prison. At the moment, as is clear from the Alexander Reid case, the legal requirements to get the category changed by the court are cumbersome and costly.

Given that reports were made by Professor Thomson in 2005 and that evidence was submitted to the Angiolini committee in 2011, I am concerned that it is not a new problem that has just arisen in 2015 but yet another area in which there has been an extensive period during which the Government has had the opportunity to consider matters and come to a conclusion.

I will withdraw amendment 113 at the present time, but I reserve the right to have discussions with the faculty of forensic psychiatry and look at bringing the amendment back at stage 3, unless the Government wishes to consider introducing its own amendment or giving a guarantee at stage 3 that the wider review to which it has committed will include a review of that particular area.

We must resolve the situation, thus saving the individuals concerned from being detained for longer within the state hospital, which is not good for them, and also in order to ensure that the limited resources of forensic psychiatrists are appropriately applied to those who will benefit from them, rather than continuing to be applied to those who are detained inappropriately in the state hospital.

I hope that the minister will consider what I have said.

Amendment 113, by agreement, withdrawn.

Section 41—Information on extension of compulsion order

Amendment 64 moved—[Jamie Hepburn]—and agreed to.

Section 41, as amended, agreed to.

Section 42 agreed to.

After section 42

I call amendment 65, in the name of the minister, which is in a group on its own.

Amendment 65 deals with an issue highlighted by the Mental Welfare Commission in relation to the revocation of a restriction order.

Part 10 of the Criminal Justice (Scotland) Act 2003 contains provisions in relation to compulsion orders and restriction orders. There are various provisions that allow for applications or references to be made to the Mental Health Tribunal for Scotland in respect of those orders. When the tribunal considers that it is necessary for a compulsion order and restriction order patient to remain subject to a compulsion order but that the restriction order is no longer necessary, it must make an order under section 193 revoking the restriction order.

Section 196 provides that the revocation does not take effect until the occurrence of certain events, including the expiry of the appeal period and the determination of any appeal lodged against the tribunal decision. Section 198 provides that, from the day on which the tribunal makes the revocation order, the patient is treated as being subject to a compulsion order. Accordingly, from the day on which the revocation order is made, the patient is subject to various review requirements.

That means that from the day of the tribunal hearing, the patient must be treated as though they are a compulsion order patient even if the tribunal’s revocation of the restriction order has not yet taken effect. That could lead to the registered medical officer being required to carry out a review of the compulsion order despite the patient continuing to be subject to a compulsion order and restriction order.

Amendment 65 ensures that the provisions work as they should. It has the effect that a patient whose restriction order is revoked should not be treated as being subject to a relevant compulsion order within the meaning given by section 137(1) of the 2003 act—and its attendant review requirements—until such time as the revocation takes effect.

I move amendment 65.

Amendment 65 agreed to.

Section 43 agreed to.

Section 44—Right to information: compulsion order

Amendment 114, in the name of Dr Richard Simpson, is grouped with amendments 115 and 116.

Amendments 114, 115 and 116 stem from discussions with the Law Society, and the aim is to achieve simplification and clarity.

In the new section 16A proposed by the bill, the statutory language is somewhat cumbersome. Amendment 114 would have the effect of deleting reference to subsection (2) as a qualification of section 16A(1); amendment 115 adds a new subsection (4)(e); and amendment 116 deletes the proposed subsections (2), (3) and (4). The effect of the amendments is to create a fully modified section 16A(1) of the Criminal Justice (Scotland) Act 2003, which the Law Society believes will be simpler and clearer.

I move amendment 114.

Amendments 114 to 116 in Dr Simpson’s name are intended to improve the clarity of the text that is to be inserted as new section 16A of the Criminal Justice (Scotland) Act 2003, but they seek to do that by taking three separate sentences and collapsing them into a single, very long sentence. I do not think that that makes the proposed new section clearer; it does quite the opposite. The choice between saying something one way or another comes down, in large part, to personal taste, but legislation is prepared carefully and just moving words around on the statutory page can change their legal effect, which is the case with amendments 114 to 116.

The amendments change the emphasis, which changes how readily victims’ rights to information arise. Under the bill as drafted, the default position is that information is to be given to a victim when the criteria in the new section 16A(1) are met. That right can only be disapplied in exceptional circumstances. The amendments change the emphasis by requiring exceptional circumstances to be ruled out before any entitlement to information ever arises.

The second problem is that the amendments would leave the new subsection (4) out of the proposed new section 16A. I am not clear why that is being proposed. New subsection 16A(4) is clearly important, because it states when a victim’s right to information about a patient comes to an end.

As I do not think amendments 114 to 116 will make the proposed new section 16A clearer and, more importantly, because they would change the proposed new section’s effect in unintended and unhelpful ways, I suggest that Dr Simpson should not press amendment 114 or move amendments 115 and 116; if he does, I urge members to vote against them.

I hear what the minister has said and I will go back and have some further discussions with the Law Society. I will not seek to press amendment 114 at this time.

Amendment 114, by agreement, withdrawn.

Amendments 115 and 116 not moved.

Amendment 120, in the name of the minister, is grouped with amendments 121 to 125.

Amendments 120 to 125 are all amendments to part 3 of the bill, which provides for victims of mentally disordered offenders by introducing a statutory notification and representation scheme for victims of such offenders who are subject to certain orders. The intention is to develop a scheme that resembles as closely as possible the scheme that is available to victims under the Criminal Justice (Scotland) Act 2003.

In lodging the amendments, I have considered the work of the forensic network’s victims’ rights and victims of mentally disordered offenders guidance short-life group. The group includes representatives from the national health service, social work, Victim Support Scotland, Hundred Families, the Mental Health Tribunal for Scotland, Police Scotland and the Scottish Prison Service because of their expertise in operating the victim notification scheme under the 2003 act.

I have also taken into account the view that the committee set out in its stage 1 report that the scheme should not discriminate against mentally disordered offenders. The amendments reflect that concern and are intended to ensure that victims have rights to information and to make representations in a way that reflects as closely as possible the provisions for victims under the 2003 act.

Amendment 120 clarifies the information that will be relayed to victims when the Mental Health Tribunal directs conditional discharge under its powers in section 193(7) of the Mental Health (Care and Treatment) (Scotland) Act 2003, or when the Scottish ministers vary the conditions of discharge under section 200(2) of the 2003 act, which gives the Scottish ministers powers to recall a patient who has been conditionally discharged from hospital.

The effect of the amendment is that information may be provided about a patient and about any conditions have been made imposing restrictions on the things that the patient may do after his or her conditional discharge. In practice, the restrictions will commonly be about where the patient is prohibited from going and persons with whom the patient may not have contact.

10:45  

Amendments 121 and 122, along with the whole approach to developing the victim notification scheme, have been proposed to mirror the criminal scheme as closely as possible so that victims of crimes have as comparable rights as possible. The policy aim that we are trying to achieve is a proportionate position to ensure that the victim has information that is pertinent to them—in this case to know that the patient’s rehabilitation has reached the point at which they will be unescorted in the community.

The amendments will mean that a victim will be entitled to make representations on the first occasion that a decision is being made about granting the patient unescorted suspension of detention. The approach taken to granting unescorted suspension of detention is usually planned and, depending on the patient’s progress, that plan can be updated on multiple occasions during a year, ranging from very minor changes to larger ones when the patient progresses more quickly. It would be disproportionate for victims to be provided the opportunity to make representations on each occasion unescorted suspension of detention is granted. It would also potentially impede a patient’s rehabilitation. The amendments achieve the right balance.

Amendment 121 relates to offenders subject to hospital directions, and amendment 122 relates to cases in which offenders are subject to a compulsion order and restriction order. Amendment 123, which means that victims will provide representations to ministers in writing, has been proposed to mirror the position taken in the criminal justice scheme, in line with our approach to the victim notification scheme as a whole.

Amendment 124 provides for the situation in which a patient who is conditionally discharged is recalled to hospital by ministers. The amendment means that victims will have the right to make representations when a decision is being taken to grant unescorted suspension of detention for the first time after the patient is recalled.

Amendment 125 is intended to clarify how the tribunal will take into account representations that victims make when taking a decision about granting conditional discharge of a patient. The tribunal will be required to take into account the victim’s representations when considering what conditions to include when granting conditional discharge. That is intended to include conditions that would directly affect the victim, such as an exclusion zone that the patient cannot enter or a condition of no contact. Victims may make representations on how a decision might affect the victim or members of the victim’s family.

I move amendment 120.

I understand the purpose of amendments 121 and 122: to insert “for the first time”. I have some slight concerns, in that when someone is granted unescorted leave for the first time it might be for a brief period, which may be followed by a much longer period of unescorted leave—weekend leave, for example. If the provision is to apply just for the first time, it seems a little restrictive. Will the minister explain whether there would be a process of rehabilitation in which victims would be notified of a longer period of unescorted leave, if that was deemed to be appropriate and in the victim’s interest? Leaving it just as the first time is, as I understand it, overly restrictive.

The first thing to observe is that this is a new mechanism. It is not a reduction in victim’s rights, as it creates rights in the first instance. We should also be clear that victims organisations representatives have not been lobbying for the right to representation on each occasion. We constituted a working group to come up with the proposals and that group critically included victims organisations such as Victim Support Scotland and Hundred Families, with which Dr Simpson said that he had been working.

The amendments are about striking a balance and it is proportionate that victims should have the right of representation in the first instance, rather than on multiple occasions. Such a mechanism could be considered to place an onerous requirement on victims themselves, who may not welcome it in every circumstance. In addition, we want to reflect as closely as possible the victims’ rights process that is in place for the criminal justice system. The amendments reflect how things are set out in the criminal justice system.

We are trying to treat people on an equal basis and strike the right balance. The proposal, which is informed by representatives of victims organisations, is the correct way forward and I urge the committee to support the amendments.

Amendment 120 agreed to.

Section 44, as amended, agreed to.

Section 45—Right to make representations

Amendments 121 to 123 moved—[Jamie Hepburn]—and agreed to.

Section 45, as amended, agreed to.

Section 46 agreed to.

Section 47—Associated definitions

You can hear the tone in my voice that says that we have witnesses waiting and we are trying to get through this.

Amendment 124 moved—[Jamie Hepburn]—and agreed to.

Section 47, as amended, agreed to.

Section 48 agreed to.

Section 49—Amendments to the 2003 Act

Amendment 117, in the name of Dr Richard Simpson, is in a group on its own.

The effect of amendment 117 would be to ensure that recorded matters under section 64 of the Mental Health (Care and Treatment) (Scotland) Act 2003 are included in the orders that the tribunal may make when confirming the determining or varying of a compulsion order.

Section 65(4)(a) of the 2003 act sets out the definition of “recorded matter”. The tribunal can specify a recorded matter when making or reviewing a compulsory treatment order. In essence, a recorded matter is regarded as an essential element of the patient’s care and treatment. If a recorded matter is not provided, the registered medical officer must refer the matter to the tribunal under section 96. That reflects the Millan principle of reciprocity.

Recorded matters are a means of ensuring that patients get the essential elements of the care and treatment that they require, and can be used to secure care and treatment that might not otherwise be provided. That is a significant benefit to some patients.

Currently, recorded matters can be specified only in compulsory treatment cases. They cannot be specified in cases where the treatment is under a compulsion order or a compulsion order with a restriction order. The view of the Law Society is that patients with such orders would benefit from the inclusion of recorded matter provisions. Compulsory treatment orders are civil orders, whereas compulsion orders and compulsion orders with restriction orders are criminal justice orders. All patients should have the right to obtain the essential treatment that they require, regardless of their route into the mental health care and treatment system.

I move amendment 117.

I thank Dr Simpson for lodging his amendment. I have considered the case that exists for introducing provisions for the tribunal to specify a recorded matter in cases where the patient is under a compulsion order or a compulsion order with a restriction order. I am confident that the existing provisions in the 2003 act work well for patients who are subject to a compulsion order or a compulsion order with a restriction order. However, I am happy to consider whether improvements could be achieved by extending the use of recorded matters to those who are covered by such orders.

However, I am unsure why the amendment is for section 49. Section 49 is in part 3, which is exclusively about “Victims’ Rights”—that is its title. Section 49 contains amendments to the 2003 act in connection with victim notification only and is not at all suitable for unrelated topics, whether they involve the 2003 act or otherwise. Amendment 117 is not related to victim notification, therefore in my view it is extremely confusing to put it in part 3.

It seems to me that the amendment should be in part 1 of the bill, given that part 1 makes a large number of amendments to the 2003 act on a wide variety of topics apart from victim notification. I note, also, that the amendment on its own does not appear to do what it is intended to do and should perhaps have been accompanied by other consequential amendments.

I would be very willing to work with Dr Simpson to try to lodge an amendment or amendments at stage 3 that could better achieve the aims that are set out in amendment 117. On that basis, I ask Dr Simpson not to press his amendment.

I have no further comments, and I seek to withdraw amendment 117.

Amendment 117, by agreement, withdrawn.

Amendment 125 moved—[Jamie Hepburn]—and agreed to.

Amendment 118, in the name of Nanette Milne, is in a group on its own.

Amendment 118 was suggested by the Law Society of Scotland to deal with an omission—as the society sees it—from the 2003 act.

Section 320 of the 2003 act provides for a route of appeal to a sheriff principal against certain decisions of the tribunal. An appeal can be brought by the individual concerned or by a number of “relevant parties” as defined in section 320(5). Those include named persons; a guardian of the person; a welfare attorney; the mental health officer; or the person’s responsible medical officer. However, that fairly comprehensive list omits to mention a person’s curator ad litem where one is in place. Curators ad litem are people who are appointed by a court for people who lack the appropriate capacity to instruct a lawyer.

In the 2011 case of Brian Black as curator ad litem to the patient v the Mental Health Tribunal for Scotland and Scottish ministers, the inner house of the Court of Session found that curators ad litem did not have the statutory right of appeal to a decision by the tribunal. The Black case pointed to the power of curators ad litem to bring judicial review against a tribunal decision, but that is quite a different mechanism from an appeal and requires a virtually complete alienation of reasonableness in a public authority’s choices before its decision can be overturned.

The omission appears to be fairly straightforward but it leaves those often vulnerable people without an effective legal remedy against decisions of the tribunal. That puts those individuals at a considerable disadvantage, which is neither justifiable nor intended in the drafting of the 2003 act.

I move amendment 118.

Amendment 118 relates to an important issue that is linked to the debate that we had last week regarding the appointment of named persons. Nanette Milne’s amendment highlights concerns about the ability of patients who lack the capacity to instruct their own legal representation to exercise rights of appeal under the 2003 act.

The amendment would allow a curator who had been appointed to represent the patient at the tribunal or before the sheriff principal a right of appeal in those circumstances. Currently section 320(2) of the 2003 act entitles a relevant party to appeal to the sheriff principal against the decision. A relevant party includes

“the person to whom the decision relates ... that person’s named person ... any guardian of the person ... any welfare attorney of the person ... the mental health officer; and ... the person’s responsible medical officer.”

It is therefore not the case that the patient does not have effective remedies under the 2003 act.

My amendments on named persons included amendment 43—which was agreed to—to provide for a listed person to exercise rights to make an application or appeal, where the patient has no named person and does not have the capacity to initiate an application or appeal. A listed person is defined as any guardian or welfare attorney; the patient’s primary relative, if any; or the patient’s nearest relative. A listed person would be able to initiate an appeal under sections 320 to 322.

In my view, the provisions in the 2003 act and in the bill that we are considering ensure that patients without capacity are not disadvantaged. I am willing to consider the merits of the principle and the provisions that are set out in Nanette Milne’s amendment 118. However, as with amendment 117, I am unsure why the amendment seeks to amend section 49. As I said previously, section 49 is in part 3, which exclusively concerns victims’ rights, and I am therefore not sure that it is suitable for amendment in that way. It seems to me that the amendment should seek to amend part 1 of the bill, as part 1—as I said previously—makes a large number of amendments to the 2003 act on a wide variety of topics apart from victim notification.

On that basis, I urge Nanette Milne not to press amendment 18 so that we can discuss the matter in advance of stage 3. If Ms Milne presses her amendment, I urge members not to support it.

On the basis of what the minister has said, I seek to withdraw the amendment at this point.

Amendment 118, by agreement, withdrawn.

Section 49, as amended, agreed to.

Before section 50

Amendment 119, in the name of Nanette Milne, is in a group on its own.

Amendment 119 makes provision for practitioner psychologists to be considered alongside medical practitioners for the purposes of the 2003 act, which would allow them to take on the statutory roles of approved medical practitioner and responsible medical officer. As members will be aware, the amendment follows extensive representations from the British Psychological Society.

At present, only medical doctors are registered as AMPs and only consultant psychiatrists perform duties as RMOs. The proposals for a greater role for psychologists aim to reflect the fact that the primary treatment for a number of mental health problems is psychological. In many situations, a psychologist may be the best-placed professional and the one who is most familiar with a particular patient’s case.

11:00  

The situation is already quite different in England and Wales, as the equivalent roles were opened up to practitioner psychologists under the Mental Health Act 2007. The same high standards of learning and familiarity with mental health law are expected of all approved clinicians in England and Wales. The change has widely been seen as a success.

Practitioner psychologists are already recognised as having the skills to supervise people under the criminal procedures that are set out in section 135 of the 2003 act. There are a number of vulnerable individuals for whom psychological therapies are particularly relevant: people who have learning disabilities, people on the autistic spectrum, people with personality disorders and people with eating disorders. The contention is that the most appropriate person to undertake AMP and RMO roles in those cases will be the one who is most familiar with the individual’s treatment and care, and that there will be a positive impact on the patient’s rights from that measure.

Although that is a significant change, we can point to England and Wales for an example of a similar system adopting it and see evidence of how it has operated in practice. If the Scottish Government were minded to conduct further investigation and consultation on the proposed change, there would be plenty of opportunity for that to be done after it was included in the bill. It will require further action from ministers to put the provisions into effect and have psychologists registered as AMPs and RMOs. The British Psychological Society has said that it does not expect uptake from psychologists to be high in the initial years, but making the change now would lay the groundwork for it to become far more commonplace in the future.

I move amendment 119.

The Royal College of Psychiatrists—my college—is not in favour of amendment 119, but its view is somewhat old-fashioned. The change is occurring in England.

The amendment would not apply to the totality of practitioner psychologists. We should achieve a mechanism whereby approved practitioners from psychology are enabled to support their colleagues in dealing with the limited number of cases in which they will have the primary role. The royal college’s view on the matter is out of date. In the 1980s, I was personally engaged in ensuring that all patients who were referred to psychologists no longer had to go through psychiatrists, which was the case at the time.

The amendment is helpful. Regulations might be required to determine which practitioner psychologists should be allowed to register as AMPs and RMOs, but it would be helpful to have the extension. It would also be helpful to understand how the change has worked in England. At the moment, I do not have any information on that but it would be useful to know about it. If it has worked well, the time has come for us to adopt a similar approach.

There is a role for psychologists under the bill. I ask the minister to meet Nanette Milne and others on the committee to discuss further how we can include psychologists, but I will not support the amendment. I hope that the minister will agree to meet to determine how we can progress the matter, because it is important.

I add my support to the comments that Dennis Robertson made.

I thank Nanette Milne for lodging her amendment. I met representatives from the British Psychological Society, who set out their proposals on the specific role that psychologists play in the care and treatment of people under the 2003 act. In particular, they highlighted the often pivotal role that they can play in care and treatment for people with learning disabilities and within forensic mental health services. I am sure that we all value and appreciate the work that they do in that regard.

I recognise the fact that mental health services are delivered by multidisciplinary teams. Those teams will be different in different locations and in caring for different patients. The legislation sets out a wide range of duties for medical practitioners, and it would not be prudent to make the change that Nanette Milne proposes without proper consultation.

The British Psychological Society has made a case for the role that psychologists could bring to some of the duties under the 2003 act. If we were to make the change, I would want to see the case for how that role would work in practice and what it would mean for all those duties. I would also want to understand how the different professions that make up multidisciplinary teams can be used to undertake the roles that are set out in the act effectively to best support patients.

I am concerned to ensure that any changes that the Parliament makes to the legislation can be implemented sensibly. The amendment would extend all duties of medical practitioners to practitioner psychologists. I am not sure that that is what is intended. Rather, the intention is something more specific that identifies exactly which duties the practitioner psychologist or, indeed, another clinician should be able to undertake. If we were to amend the bill, I would want to understand what those duties were and how that proposal would be implemented.

I am unsure why the amendment appears to be for the general provisions in part 4 of the bill. Although the proposed new section that the amendment would insert into the bill is headed “Interpretation”, it is not for the interpretation of the bill. Rather, it would insert material into section 329 of the 2003 act for the interpretation of the provisions of the 2003 act. Indeed, it would affect the legal and practical operation of the act as a whole. The amendment belongs more properly in part 1, as it would make a large number of amendments to the 2003 act for a wide variety of topics.

In addition, the amendment does not deal merely with some technical or formal matter of labelling or interpretation. It deals with the crucial issue of who is to be regarded as a medical practitioner under the 2003 act. Therefore, I suggest that it is unhelpful to the reader of the bill to put the measure under the innocuous heading “Interpretation” at all, as that conceals the true range and nature of the change to the operation of the 2003 act.

I do not support amendment 119, not because I do not think that there is merit in considering the duties that professionals other than doctors could undertake but rather because proper consideration and consultation are needed before we change the legislation. The bill is intended to make technical changes to the operation of the 2003 act in light of the McManus review. I appreciate that there is a desire to take the opportunity to make other changes, but we should try to keep it fairly focused and consider other changes in due course.

I have already indicated the Government’s intention and willingness to review the inclusion of those with autistic spectrum disorder or a learning disability within mental health legislation. I am also very willing for us to consider the role of psychologists in mental health legislation, but only if we are fully and properly informed.

Dennis Robertson requested that I discuss the matter with anyone who wants to discuss it with me. I am happy to do that but I urge Nanette Milne not to press the amendment and, if she does, I urge members not to vote for it.

On the basis that the minister has indicated his willingness to have further discussions on an important subject that needs to be progressed at some point, I am willing to withdraw the amendment.

Amendment 119, by agreement, withdrawn.

Sections 50 and 51 agreed to.

Long title agreed to.

That ends stage 2 consideration of the bill.

I ask members to agree that, after a suspension, we move directly to agenda item 3 so that we do not delay our witnesses any further.

Members indicated agreement.

I thank the minister and his officials.

11:08 Meeting suspended.  

11:13 On resuming—