Mental Health (Scotland) Bill: Stage 2
We continue with stage 2 consideration of the Mental Health (Scotland) Bill. This morning we are joined by the Deputy Minister for Health and Community Care and her team.
Section 83—Suspension of order
The first amendment for debate is amendment 507, in the name of Shona Robison, which is grouped with amendments 257, 258, 604, 605 and 612.
The purpose of amendment 507 is to ensure that a community-based compulsory treatment order—CTO—can be suspended to allow patients to demonstrate over a trial period that a compulsory order is no longer necessary in their case. The amendment provides that, wherever the responsible medical officer is considering invoking a CTO, he or she may suspend the order for up to three months. That is a sensible way of assessing whether a compulsory order should remain in place.
I move amendment 507.
The amendments are supported by the Scottish Association for Mental Health. They are intended to tighten up the notice requirement provisions relating to the suspension of CTOs. The desired effect of the amendments is to reduce the period within which notice must be given from 14 days to seven days, and to ensure that the responsible medical officer gives reasons for granting the suspension. The amendments will ensure that the responsible medical officer gives notice of the circumstances in which a suspension may be terminated and that reasons are given for early revocation of that suspension. Although the suspension certificate is a clinical tool, it could be used to test whether it is appropriate to revoke a CTO by having what amounts to a trial discharge.
Surely it is desirable that the RMO gives reasons for granting the suspension certificate and makes clear to the patient, the named person and others any circumstances that might lead to the revocation of the certificate before the period that is specified in the certificate expires. If the certificate is revoked early, surely the RMO should provide reasons for that. It is appreciated that it might be desirable for the RMO to have some discretion in making such decisions, but the bill is about ensuring transparency, inclusion and participation by patients with mental illness. Executive amendment 612 does not explicitly require reasons to be given for granting or revoking a suspension certificate; it requires only notice of either the proposal to grant it or the decision to revoke it.
The Scottish Association for Mental Health told me that the Executive amendments were lodged late and that little opportunity was available for organisations to discuss or consider amendments to them. I understand that everyone else is required to give five days' notice, but the Executive lodged its amendments without allowing other organisations an opportunity to respond.
The Executive made it within the deadline of two days, although we hope to have as many amendments as possible lodged by five days before the meeting. However, provided that the Executive lodges its amendments by two days before the meeting, we cannot disallow them. The Procedures Committee has examined such matters seriously, because many people feel that although organisations have enough time at stage 1 to consider and give their opinions on the Executive's proposals, that is not the case at stage 2.
Some of the amendments that are lodged late are good amendments that are the result of the Executive listening, but we found at stage 2 of the Adults with Incapacity (Scotland) Bill that when the Executive had listened to such an extent that another set of people was unhappy with the amendments that had been lodged, those people did not have the same amount of time that was available at stage 1 within and without the Parliament to consider the full ramifications of some of those amendments. I have much sympathy with the views that seem to be coming through the Procedures Committee that further time should be given for stage 2. However, we must work within the present standing orders. I suggest that we should look to the next Parliament to change those rules.
The Scottish Association for Mental Health says that everyone except the Executive is required to give five days' notice. A misunderstanding seems to have occurred. Did you say that the time limit for everyone, including the Executive, is two days?
Yes.
I assure the committee that the Executive is making every attempt to lodge amendments as soon as possible. I am sorry if people have been inconvenienced on this occasion, but the cause is the pressure of the number of amendments. We are making every effort to give people time to consider the amendments.
Amendment 604 will remove section 83 and amendment 612 will introduce a new section after section 90 to replace section 83. Section 83 allows the suspension, for up to three months, of a hospital-based compulsory treatment order. The new section that amendment 612 will introduce allows the suspension for up to three months of any combination of measures—except a detention measure—specified in a compulsory treatment order.
The only measure that may not be suspended under the new section is hospital detention, which may be suspended for up to six months under section 90. That more flexible approach is closer to the original aim of the power to suspend, which is to allow patients an opportunity to show that a CTO may safely be revoked.
Amendment 605 is technical and will clarify that section 85 applies to a failure to comply with any measure that has been "authorised by" a compulsory treatment order and not just to a failure to comply with those that are "specified in" the order.
Amendments 507, 257 and 258 would modify section 83. Executive amendment 604 proposes the deletion of section 83 and Executive amendment 612 will introduce a new section after section 90 as a replacement. If the Executive amendments are approved, amendments 507, 257 and 258 will be redundant.
Amendment 507 would extend section 83 to community-based compulsory treatment orders so that any order—whether hospital based or community based—could be suspended. Executive amendments 604 and 612 have the same effect. Any combination of measures that relate to a community-based compulsory treatment order can be suspended in the section to replace section 83. In effect, we have accepted the general principle behind amendment 507 through the Executive amendments that will replace section 83 and I therefore invite Shona Robison to withdraw amendment 507.
Amendment 257 seeks to reduce from 14 days to seven days the period within which the responsible medical officer must give notice to certain persons of the fact of the suspension of the order. We have accepted the spirit of that amendment and have indeed gone further in the proposed replacement section. The patient, the patient's named person and the mental health officer must be given notice of the proposal prior to granting a certificate for suspension. However, we have retained a 14-day notice period for the commission in accordance with the commission's longer-term data-gathering and monitoring functions. Therefore, I invite Mary Scanlon not to move amendment 257.
Amendment 258 seeks to specify in more detail the matters that must be notified to the persons who are entitled to receive notice. It emphasises the responsible medical officer's discretion to revoke the suspension certificate at any time and provides for the giving of notice of the revocation of the suspension certificate to the same persons who were informed of its granting.
The replacement section for section 83 does not specify the information that must be communicated to persons who are entitled to receive notice, as we believe that that matter can be adequately dealt with by the code of practice. The revocation of a suspension certificate will be covered by section 91, through Executive amendment 613, which provides the grounds for the revocation of the suspension certificate and for the notification of persons following the revocation. Therefore, we believe that we have addressed the issues that are raised by amendment 258 and I invite Mary Scanlon not to move it.
I invite Shona Robison to press or withdraw amendment 507.
On the basis that the Executive's proposals cover the intention behind amendment 507, I am happy to withdraw it.
Amendment 507, by agreement, withdrawn.
I invite Mary Scanlon to move or not move amendment 257.
I have a point of clarification. Will the minister confirm whether the Executive's amendment requires reasons to be given for granting or revoking a certificate of suspension, or only notice? I am keen for reasons to be given.
We do not propose that reasons be given—we ask only that notice be given.
In that case, I want to move amendment 257.
Amendment 257 moved—[Mary Scanlon].
The question is, that amendment 257 be agreed to. Are we agreed?
No.
There will be a division.
For
Elder, Dorothy-Grace (Glasgow) (Ind)
McAllion, Mr John (Dundee East) (Lab)
Robison, Shona (North-East Scotland) (SNP)
Sturgeon, Nicola (Glasgow) (SNP)
Scanlon, Mary (Highlands and Islands) (Con)
Against
Butler, Bill (Glasgow Anniesland) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Smith, Mrs Margaret (Edinburgh West) (LD)
The result of the division is: For 5, Against 4, Abstentions 0.
Amendment 257 agreed to.
Amendment 258 moved—[Mary Scanlon].
The question is, that amendment 258 be agreed to. Are we agreed?
No.
There will be a division.
For
Elder, Dorothy-Grace (Glasgow) (Ind)
McAllion, Mr John (Dundee East) (Lab)
Robison, Shona (North-East Scotland) (SNP)
Sturgeon, Nicola (Glasgow) (SNP)
Scanlon, Mary (Highlands and Islands) (Con)
Against
Butler, Bill (Glasgow Anniesland) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Smith, Mrs Margaret (Edinburgh West) (LD)
The result of the division is: For 5, Against 4, Abstentions.0.
Amendment 258 agreed to.
Amendment 604 moved—[Mrs Mary Mulligan].
The question is, that amendment 604 be agreed to. Are we agreed?
Members indicated agreement.
Does anyone disagree?
No.
Okay. That is agreed and section 83 is removed.
On a point of clarification. If amendment 604 is agreed, does that mean that the other amendments to section 83 are no longer valid?
Yes. That is why I asked whether anyone disagreed to the amendment.
In the past, you have said that if such-and-such an amendment is passed, it will delete—
I did not have any pre-emptions noted. However, the minister said that if amendment 604 were accepted it would take out the other amendments, as it would take out the whole of section 83.
It would be nice to try to reach some sort of compromise. Clearly, the will of the committee was to support Mary Scanlon's amendments 257 and 258. However, there is a technical problem—
There is a technical problem, as we cannot go back. I asked whether anyone—
Will you please let me finish? The Executive's amendment 604 has now deleted section 83. However, as the Executive has now heard the will of the committee to support the previous amendments, could we have an indication whether it will acknowledge the sentiments of Mary Scanlon's amendments? Otherwise, this becomes a bit of a farce.
I will clarify the situation and then ask the minister for her input. [Interruption.] I am advised that there was no pre-emption. Pre-emptions exist only if amendments amend text that has already been taken out, and section 83 had not been taken out at that stage. The text was still there and could have been amended. Amendment 604 could then have been disagreed to, and that would have been okay. The minister said that, if amendment 604 were accepted, the other amendments to the section would not have effect, as the amendment would remove that section.
We cannot go back, as we have taken the relevant votes. There are two ways forward. First, it is open to any member to lodge similar amendments at stage 3. Given the points that Shona Robison has made about the will of the committee, there might be some sympathy for that. I would suggest that to the Presiding Officer. Secondly, Shona has requested that the Executive at least take on board the sentiments behind Mary Scanlon's amendments, which gained the support of the committee. I ask the minister to respond on that point.
Amendment 604 has been agreed to. However, having heard the views of the committee, I think that it is only right that we take those on board. We would be happy to lodge an amendment at stage 3 that would take those views into account.
I thank the minister for that. Let us move on.
Section 84—Failure to attend for medical treatment
Amendment 572, in the name of Mrs Mulligan, is grouped with amendments 347, 348, 349 and 573.
Amendments 572, 573 and 347 to 349 relate to the procedures that follow a patient's breach of a compulsory treatment order. Amendment 572 extends the provisions of section 84 to include patients subject to an interim compulsory treatment order. It also deletes section 84(1)(a)(i), which is not required, as a compulsory treatment order can never authorise detention, which is dealt with in section 54(1)(a), while also imposing a requirement to attend for medical treatment, which is dealt with in section 54(1)(c)(i).
Amendment 573 similarly extends the provision of section 85 to patients on an interim compulsory treatment order. Amendments 347 to 349 are technical amendments that improve the drafting of section 84.
Amendment 572 moved—[Mrs Mary Mulligan]—and agreed to.
Amendments 347 to 349 moved—[Mrs Mary Mulligan]—and agreed to.
Amendment 350, in the name of the minister, is grouped with amendments 351, 352, 574 and 575.
Amendments 350 to 352 modify section 84(4) and introduce new section 84(5). The amendments increase the safeguards for a patient who is conveyed to hospital as a result of failing to comply with a requirement in his compulsory treatment order to attend at a specified place to receive medical treatment.
Such a patient may not be detained in hospital for longer than necessary and certainly not for longer than a period of six hours from his arrival in hospital.
The amendments emphasise the fact that, where the compulsory treatment order does not authorise the giving to the patient of medical treatment, which is dealt with in section 54(1)(b), section 84 does not authorise the giving of treatment without consent.
Amendments 574 and 575 tighten up the duration of the period for which a patient may be detained in hospital under section 85. Amendment 575 removes section 85(7), which states that the patient can be detained in hospital until the completion of the medical examination, which could, in theory, last for an indefinite period. Amendment 574 replaces that section with new section 85(5A), which states that the patient may be detained in hospital for a period of 72 hours after their arrival at the hospital. That mirrors the time limits on emergency detention.
Amendment 350 moved—[Mrs Mary Mulligan]—and agreed to.
Amendments 351 and 352 moved—[Mrs Mary Mulligan]—and agreed to.
Section 84, as amended, agreed to.
Section 85—Non-compliance generally with order
Amendments 573 and 605 moved—[Mrs Mary Mulligan]—and agreed to.
Amendment 508 is grouped with amendments 576 to 584, 509 and 585 to 590.
Amendments 508 and 509 provide that the mental health officer should be required to consent to the compulsory admission to hospital of a patient who is in breach of a compulsory treatment order.
My concern arises from the fact that under section 86 a mental health officer's consent is not required for short-term detention, although under section 85 an MHO is required to consent to a patient's removal to hospital for assessment. It could be argued that it is more important for the mental health officer to be required to consent to the patient's detention than to be required to consent to the patient's removal; certainly, the two are equally important. It would not be practical to require the mental health officer to consent twice, which is why the amendment will transfer the provisions of section 85(2) to section 86. That would make detention under section 86 subject to the same safeguards as short-term compulsory orders under section 35.
I move amendment 508.
Amendments 508 and 509 are intended to amend the responsibility of the MHO in situations where the responsible medical officer admits a patient to hospital following a breach of the terms of a compulsory treatment order. Instead of having to consent to the initial admission, the consent of the MHO will be required for the continued detention of the patient following examination on admission. The Executive agrees with the intention behind the amendments, and we are grateful to Shona Robison for highlighting the points that they raise.
It is the decision to detain the patient for a period of up to 28 days, while applying for a variation of the order or considering such an application, which should be authorised by the MHO. We therefore accept amendment 508. Amendment 509 is superseded by the Executive amendments. Amendment 584 proposes to include new subsection (2C) in section 86, and that will do what amendment 509 seeks to do, so I hope that Shona will be able to withdraw that amendment.
Executive amendment 576 is a technical amendment that will restrict the provisions in section 86(2) to the procedures that follow a breach of the terms of a community-based CTO. Where an interim CTO has been breached, the consequences are set out in amendment 584.
Amendments 577 to 581 are necessary to correct an error in the drafting of section 86. The section allows for the detention of a patient in hospital for up to 28 days following a breach of a CTO based in the community. It should be possible to exercise that power if the responsible medical officer believes that it is necessary to modify the CTO to detain the patient in hospital for a longer period, or if it is necessary to detain the patient in hospital while that option is considered. The current drafting is incorrect in that it would require the doctor to decide that the order should be modified before completing the assessment necessary to reach that decision.
Amendment 582 is technical and clarifies that the responsibility for deciding whether an application should be made to the tribunal for the modification of a CTO lies with the RMO where a patient has failed to comply with the terms of a community-based CTO.
Amendments 583 to 590 relate to the procedures that must be followed when a patient breaches the terms of a community-based CTO, or an interim CTO, and is conveyed to and detained in a hospital under the authority of sections 85(5) and 85(5A).
Amendment 584 lays out the provisions that relate to interim CTOs. To explain the provisions relating to interim orders, it is useful to point out that section 86(2) allows a responsible medical officer to grant a certificate authorising a 28-day period of hospital detention for a patient who has breached the terms of a full CTO based in the community. The amendment will therefore bring the provisions for interim orders in line with the provisions under section 86(2). It will empower the RMO to grant a certificate that authorises the patient's detention in hospital until the expiry of the interim order if he is satisfied that the conditions outlined in proposed new subsection (2A) of section 86 are met.
Proposed new subsection (2C) of section 86 will further ensure that a period of short-term detention following a breach of the terms of an order, whether interim or full, can be imposed only if the consent of the MHO has been obtained. That will implement the effect of amendment 509, lodged by Shona Robison.
Amendment 589 is a technical amendment that is consequential to amendment 584. Amendments 583, 585, 588 and 590 are further technical amendments. Amendment 586 provides that where a responsible medical officer issues a certificate granting a period of short-term detention following a breach of the terms of an interim or full order, he must list on the certificate his reasons for believing that the conditions necessary for granting it are met. Amendment 586 gives rise to amendment 587, which is a further technical amendment to smooth the drafting of section 86.
Amendment 508 agreed to.
Amendments 574 and 575 moved—[Mrs Mary Mulligan]—and agreed to.
Section 85, as amended, agreed to.
Section 86—Short-term detention following examination under section 85(6)
Amendments 576 to 584 moved—[Mrs Mary Mulligan]—and agreed to.
Amendment 509 not moved.
Amendments 585 to 590 moved—[Mrs Mary Mulligan]—and agreed to.
Amendment 591 is grouped with amendment 592.
Amendments 591 and 592 are technical amendments. Amendment 591 removes from section 86 provisions that are now contained in three new sections in the bill, which are introduced by amendments 592 to 594. Amendment 592 replaces sections 86(9) and 86(10) with a new section dealing with an application for the variation of a compulsory treatment order following detention under section 86.
I move amendment 591.
Amendment 591 agreed to.
Section 86, as amended, agreed to.
After section 86
Amendment 592 moved—[Mrs Mary Mulligan]—and agreed to.
Amendment 593 is grouped with amendment 594.
Amendments 593 and 594 are also technical amendments. Amendment 593 replaces sections 86(11) and 86(12) with a new section that deals with the responsible medical officer's duty to review whether the conditions for detention under section 86 continue to be met. Amendment 594 replaces sections 86(13) and 86(14) with a new section dealing with the patient and the patient's named person's right to apply to the tribunal for revocation of a detention certificate granted under section 86(2) or proposed section 86(2B). Both the amendments arise from amendment 584, which deals with the detention of patients subject to interim compulsory treatment orders.
I move amendment 593.
Amendment 593 uses the phrase "from time to time", but that does not tell us whether we are talking about hours, days, months or years. What is intended by that phrase?
It is meant to allow for an on-going situation, so it is flexible.
Amendment 593 agreed to.
Amendment 594 moved—[Mrs Mary Mulligan]—and agreed to.
Section 87—Transfer of certain detained persons
Amendment 512 is grouped with amendments 513, 523, 525, 526 and 535.
The amendments in this group are technical amendments that remove from sections 87, 88 and 89 several references to the phrase "hospital unit". The provisions regarding formal transfers will apply only to transfers from one hospital to another. Originally, it was thought that it might be desirable to allow for individual units within a hospital to be specified, so that a transfer from another part of the hospital to that unit would be subject to an appeal right. We now think that that would be unnecessarily complicated.
I move amendment 512.
Amendment 512 agreed to.
Amendment 513 moved—[Mrs Mary Mulligan]—and agreed to.
Amendment 514 is grouped with amendments 515 to 522, 524, 531 and 539.
The amendments in this group are also technical amendments, which smooth the drafting of section 87. Amendments 515, 517 to 520, 524 and 531 tighten up and clarify provisions relating to the notice that must be given to a patient subject to a hospital-based CTO who is to be transferred from one hospital to another.
Amendment 517 provides that the seven-day period of notice of a transfer may be waived in a case where it is necessary that the transfer take place urgently. Amendment 518 adds a subsection to section 87, which ensures that, where that seven-day period of notice has not been given, notice should be given to the patient, the patient's named person and the patient's primary carer as soon as is practicably possible. Amendment 518 further provides that notice need not be given if the patient gives his consent to the transfer.
Amendment 520 inserts into section 87 a further three subsections relating to a situation in which a proposed transfer to another hospital does not take place within three months of the original notice having been given. That amendment ensures that, where such a situation arises, the proposed transfer can take place only where the managers of the receiving hospital still agree to the transfer, and where the patient, the patient's named person and the patient's primary carer have once again been given at least seven days' notice of the transfer, unless one of the exceptions to the requirement for the notice applies.
Amendments 515, 519, 524 and 531 are all consequential technical amendments that are necessary following amendments 517, 518 and 520. Amendments 514 and 516 are also technical amendments that help to smooth the drafting of section 87.
Amendments 521 and 522 modify and tighten up the provisions laid out in section 87 relating to the notice that must be given to the Mental Welfare Commission when a patient who is subject to a hospital-based compulsory treatment order is transferred from one hospital to another. Amendment 521 puts right an omission from the bill as introduced, by adding to the list of pieces of information that must be given to the commission details of the hospital to which the patient is being transferred. Amendment 522 ensures that, where seven days' advance notice has not been given, hospital managers must inform the Mental Welfare Commission of the reasons why the patient had to be transferred so urgently. Hospital managers must also inform the commission of what period of notice, if any, was given to the patient, the named person and the primary carer.
Amendment 539 rectifies an omission from the bill as introduced. It is a technical amendment that ensures that a responsible medical officer will be appointed in respect of a patient when a transfer from one hospital to another takes place or when an appeal against a transfer is upheld by the tribunal and the patient is returned to the hospital from which he was transferred.
I move amendment 514.
Amendment 514 agreed to.
Amendments 515 to 523 moved—[Mrs Mary Mulligan]—and agreed to.
Section 87, as amended, agreed to.
Section 88—Transfer to hospital other than state hospital: appeal to Tribunal
Amendment 524 moved—[Mrs Mary Mulligan]—and agreed to.
Amendment 273 is grouped with amendment 274.
Amendments 273 and 274 seek to exclude from the appeal provision transfer to another hospital or unit within the same NHS trust for the purpose of treatment of a physical disorder. As section 88 reads at present, it could give the patient a right of appeal against being transferred to a hospital for the treatment of a physical disorder, such as a drug overdose or some other medical condition that required treatment. It would be interesting to hear whether that was intended or whether it represents an oversight.
I move amendment 273.
Amendment 273 would restrict the patient's right to appeal against a transfer to situations in which the transfer was for the purpose of receiving treatment for mental disorder. We understand that the intention is that the appeal right should not apply in situations in which the patient is transferred to a general hospital for treatment of a physical condition.
We are sympathetic to the aims of amendment 273, as the general intention behind sections 87 to 90 is to grant rights to patients who are transferred between psychiatric hospitals. It is not really the tribunal's role to adjudicate on the treatment of any physical illnesses that patients might have. However, we would like to have the opportunity to consider the issue further, because we are not sure that the drafting of amendment 273 works. We also want to consider whether section 87 needs to be amended.
I am happy to give an undertaking that we will discuss the issue further with the Mental Welfare Commission and other parties, with a view to a possible stage 3 amendment. Therefore, I hope that Shona Robison will withdraw amendment 273.
We are not minded to accept amendment 274, which would prevent a patient from appealing against a transfer to a hospital that was managed by the same NHS trust or island health board as the hospital from which the patient was being transferred. Amendment 274 would bring about an unnecessary and unwarranted dilution of the patient's rights.
Amendment 273, by agreement, withdrawn.
Amendments 525 and 526 moved—[Mrs Mary Mulligan]—and agreed to.
Amendment 274 not moved.
Amendment 527 is grouped with amendments 528, 532 and 533.
The amendments in this group clarify and strengthen the rights of the patient and the patient's named person to appeal to the tribunal against a transfer to a different hospital, including a state hospital, where the patient is subject to a hospital-based compulsory treatment order.
The committee will be aware that the Millan report recommended that the patient and the patient's named person be given a right of appeal against a transfer. Such a right is not available under the Mental Health (Scotland) Act 1984, except when the transfer is to a state hospital.
The amendments build on the provisions laid out in the bill as introduced. Amendments 528 and 533 slightly amend the time periods within which the patient or the patient's named person may appeal to the tribunal. For transfers to a state hospital, the time limit for an appeal has been extended from 10 to 12 weeks by amendment 533. Where notice is given to the patient or named person after the transfer has taken place, the time limit for an appeal runs from the date of notice, not the actual date of transfer.
Amendments 527 and 532 are technical amendments that simplify the drafting of the subsections to which they refer.
I move amendment 527.
Amendment 527 agreed to.
Amendment 528 moved—[Mrs Mary Mulligan]—and agreed to.
Amendment 529 is grouped with amendments 530 and 534.
Amendments 529 and 534 ensure that, where an appeal against the transfer has been lodged in advance of the transfer taking place, the transfer may not take place except where the tribunal orders that the transfer take place pending the outcome of the appeal. Amendment 530 empowers the tribunal to make an order that a transfer to a hospital that is not a state hospital should not take place or that the patient should be returned to the transferring hospital. Therefore, the amendment brings the provisions on appeals against the transfer to a hospital other than a state hospital into line with those in the bill as introduced on appeals against the transfer to a state hospital.
I move amendment 529.
Amendment 529 agreed to.
Amendment 530 moved—[Mrs Mary Mulligan]—and agreed to.
Section 88, as amended, agreed to.
Section 89—Transfer to state hospital: appeal to Tribunal
Amendments 531 to 535 moved—[Mrs Mary Mulligan]—and agreed to.
Amendment 536 is grouped with amendments 537 and 538.
The amendments clarify the bill's provisions with regard to the reasons why the tribunal should uphold an appeal against a transfer to a state hospital. The amendments make clear that a patient is sent to a state hospital because of a need for special security, which might not arise directly from the patient's mental disorder. Where the tribunal is not satisfied that the patient requires the level of special security provided by a state hospital, it may uphold the appeal and make an order that the transfer should not take place or that the patient be returned to the hospital from which he was transferred.
I move amendment 536.
Amendment 536 agreed to.
Amendments 537 and 538 moved—[Mrs Mary Mulligan]—and agreed to.
Section 89, as amended, agreed to.
After section 89
Amendment 539 moved—[Mrs Mary Mulligan]—and agreed to.
Section 90—Suspension or variation of detention
Amendment 606 is grouped with amendments 510 and 607 to 611. If amendment 606 is agreed to, I cannot call amendment 510 because of the pre-emption rule.
Amendment 606 removes the first three subsections of section 90, which deal with the suspension of a detention requirement, and replaces them with five new subsections. The amendment is largely technical in nature, clarifying the provisions of section 90.
Amendment 607 is a technical amendment that clarifies that the responsible medical officer may suspend a detention requirement subject to conditions in which that is necessary for the protection of any other person, whether that be the public in general or one person in particular.
Amendments 609 and 610 are further technical amendments that clarify that the responsible medical officer setting the conditions that are attached to a suspension of detention certificate must be the patient's responsible medical officer.
Amendment 611 changes the notification arrangements in relation to leave of absence of more than 28 days. The aim is to make the arrangements more flexible and closer to the original Millan recommendations. The amendment also restricts the application of section 90 to patients who are subject to hospital-based compulsory treatment orders by removing subsection (8), which extended the provisions for short-term detention. The Executive will lodge amendments at stage 3 to allow for suspension of detention for patients who are subject to orders other than compulsory treatment orders and interim compulsory treatment orders.
Amendment 510 proposes broadening the scope of section 90(2), so that a suspension of detention certificate can specify an occasion or series of occasions on which the detention requirement is suspended. That could mean, for example, allowing the patient out of hospital every Thursday afternoon for the purpose of attending a class. We are in favour of the effect of the amendment; however, Executive amendment 606 replaces subsections (1) to (3) in section 90 and makes provision for suspension of detention for an occasion through new subsection (3)(b). That makes amendment 510 unnecessary, so I hope that Shona Robison will not move amendment 510.
I move amendment 606.
Amendment 606 agreed to.
Amendment 510 not moved.
Amendments 607 to 611 moved—[Mrs Mary Mulligan]—and agreed to.
Section 90, as amended, agreed to.
After section 90
Amendment 612 moved—[Mrs Mary Mulligan]—and agreed to.
Section 91—Power to terminate suspension, or variation, under section 90
Amendment 613 is grouped with amendments 614 and 615.
Amendments 613 and 615 make significant improvements to section 91. Section 91, as amended, will provide the responsible medical officer with the power to revoke a suspension of detention under section 90 and the power to revoke a suspension of any of the compulsory measures under the new section introduced by amendment 612. The amendments clarify the criteria for revoking a suspension of detention certificate, as only the responsible medical officer may revoke the certificate. Amendment 615 introduces notification requirements for the revocation of any type of suspension certificate. The persons who are required to be notified mirror those who are required to be notified of the granting of the certificate in the first place.
Amendment 614 is a technical amendment that clarifies that the responsible medical officer may make suspension of a detention requirement subject to conditions in which that is necessary for the protection of another person, whether that is the public in general or one particular individual.
I move amendment 613.
Amendment 613 agreed to.
Amendments 614 and 615 moved—[Mrs Mary Mulligan]—and agreed to.
Section 91, as amended, agreed to.
Section 161—Designated medical practitioners
Amendment 540, in the name of the minister, is grouped with amendments 543, 544, 548, 549, 558, 559, 570 and 571. I ask the minister to move amendment 540 and to speak to all the amendments in the group.
Part 13 of the bill will require that certain decisions about medical treatment for children must involve a child specialist, either as the RMO or as the designated medical practitioner appointed by the Mental Welfare Commission to give a second opinion. The amendments in the group are technical amendments that will clarify the provisions regarding child specialists.
Amendment 540 will bring the drafting of the term used for a medical practitioner with special qualifications or experience in treating children in section 161 into line with later sections of part 13. The bill as drafted specifies in relation to certain medical treatments that, where the patient is a child whose RMO is not a child specialist, two additional opinions are required. One of those opinions must come from a designated medical practitioner and one must come from a child specialist who is also a designated medical practitioner. That goes beyond Executive policy, which simply requires the involvement of a child specialist at some point in the child's assessment for treatment.
Amendments 543, 544, 548, 549, 558 and 559 will provide that, where the patient is a child and their RMO is a child specialist, the additional opinion may be given by any designated medical practitioner. However, where the RMO is not a child specialist, the additional opinion must be given by a designated medical practitioner who is also a child specialist.
Amendments 570 and 571 are technical amendments that will clarify the definition of a child specialist. Currently, the bill applies the definition only to designated medical practitioners, when in some cases it should also apply to the patient's RMO.
I move amendment 540.
I am delighted that the amendments have been lodged and that the minister has, in order to ensure that young people are safeguarded, taken on board some of the issues that committee members and others raised in the stage 1 debate.
Amendment 540 agreed to.
Section 161, as amended, agreed to.
Section 162—Certain surgical operations etc
The next amendment for debate is amendment 275, in the name of Shona Robison, which is grouped with amendments 276, 280, 282 and 284. I ask Shona Robison to move amendment 275 and to speak to all of the amendments in the group.
The amendments relate to neurosurgery for mental disorder, or NMD, a matter with which I am still struggling, despite the lengthy debate on it that took place in the committee at stage 1. I want to debate the subject further because it continues to present me with a number of dilemmas.
The purpose of amendments 275 and 276 is to prevent NMD from being given to patients who are incapable of consenting to the treatment. I am concerned that the treatment is irreversible and that there is insufficient evidence about its benefits and the risk of adverse effects. As members know, the only unit that performs the treatment is in Dundee. That unit's report does not support the use of NMD on patients who are incapable of giving informed consent.
It has been suggested that, if a treatment is available to those who can consent, it should also be available to those who are incapable of consenting, and that to make a distinction on the basis of capacity is discriminatory. I am not sure about that argument because, on the same basis, the bill's provisions could be said to be discriminatory, in that they will render NMD unavailable to a category of incapable patients—those who resist or object to the treatment. How far should we pursue that argument? We need to consider whether we accept that any treatment, regardless of risk or efficacy, is better than no treatment at all. I am not convinced that that is the case.
The Court of Session is supposed to be a safeguard, but I am concerned about whether that is sufficient. The question is whether treatment should be given to someone who cannot consent to it. That involves moral issues that are best decided in legislation rather than in court. That is one reason why I lodged my amendments.
I move amendment 275.
It should be drawn to the committee's attention that the bill puts Scotland in breach of a resolution of the United Nations General Assembly that was adopted in December 1991 and which states:
"Psychosurgery and other intrusive and irreversible treatments for mental illness shall never be carried out on a patient who is an involuntary patient in a mental health facility and, to the extent that domestic law permits them to be carried out, they may be carried out on any other patient only where the patient has given informed consent and an independent external body has satisfied itself that there is genuine informed consent and that the treatment best serves the health needs of the patient."
The Council of Europe's steering committee on bioethics passed a similar resolution.
I suggest that the Executive must make a convincing case to overturn such international opinion but, as Shona Robison suggested, the Executive has not advanced a convincing argument. The Court of Session is not necessarily a sufficient safeguard. We do not allow the courts to decide on key moral questions in this country; for example, we do not allow the courts to decide whether capital punishment should be allowed. It is up to bodies such as the Scottish Parliament to make such moral decisions on behalf of society.
The treatment in question is extremely controversial and it is irreversible. No significant body of evidence proves that it has significant benefit. On the contrary, a strong body of evidence shows that such treatment can cause considerable damage, so it cannot be regarded even as a treatment of last resort, because we do not have sufficient evidence to convince us that the benefits of such treatment outweigh its risks. I support Shona Robison's amendments.
At stage 1, we all accepted that the subject was one of the most difficult issues—if not the most difficult—with which the committee has had to struggle. With respect to Adam Ingram and others who have pursued his argument, I say that his interpretation of the United Nations General Assembly's resolution is not accepted by all. At a meeting of the cross-party group on mental health that Adam Ingram chaired, Jim Dyer of the Mental Welfare Commission for Scotland took issue with him and said that that was not what the United Nations resolution meant. The situation is far more complex than the arguments that have been made so far have presented it to be.
We have a genuine split of opinion among all those who think that they have patients' interests best at heart. What swung my opinion in the various arguments that went back and forth at stage 1 was the evidence that if we deleted section 164 as the amendments suggest, people who are less ill and can exercise judgment would be able to access the treatments, but people who are more severely ill and cannot exercise judgment would be denied the treatments by the committee's act and the Parliament's legislation: we could deny treatment that might make people better. I will not support the amendments.
John McAllion is right that the issue is one of the major ones in the bill and we have all had to consider it carefully. I am grateful to Shona Robison for lodging amendment 275 because it has allowed us to have the debate, which was foreshadowed when last year we withdrew by regulation the reference to neurosurgery for mental disorder from the Adults with Incapacity (Scotland) Act 2000 on the basis that that treatment would best be addressed in the Mental Health (Scotland) Bill.
We all accept that treating patients without their consent is a sensitive matter that requires a great deal of forethought. Part 5 of the Adults with Incapacity (Scotland) Act 2000 enables general and specific treatments to be provided subject to a framework of checks and balances that protects patients and health professionals. We approached the issue of neurosurgery in the bill with the same desire to ensure that patients' interests are best served. Our stance has been informed by the work of a number of expert groups, notably the clinical resource and audit group's 1996 "Report on Neurosurgery for Mental Disorder", the Scottish Law Commission's 1995 "Report on Incapable Adults" and the Millan report. All of those groups agreed about what is the kernel of the issue, which is, as John McAllion said, that it would be wrong to deny patients, possibly desperately ill patients, access to a treatment that could be to their benefit. The Executive shares that view.
We are also clear that strong safeguards must be in place to ensure that patients' interests are paramount. That is why we have extended the safeguards in the bill to all patients, whether or not they are subject to formal powers under the bill. For patients who can consent, the safeguards include assessment by a designated medical practitioner and two persons appointed by the Mental Welfare Commission for Scotland.
For patients who cannot consent—who are the subject of this group of amendments—our view was that treatment should be considered in three distinct steps. The first is that a designated medical practitioner who is not the patient's RMO should certify that the patient is incapable of consenting and does not object to the treatment. That person should also decide whether the treatment is in the patient's best interests, having regard to the likelihood of the treatment's alleviating or preventing deterioration in the patient's condition.
The second step is that two persons who are not doctors and who are appointed by the Mental Welfare Commission should certify that the patient is incapable of consenting and does not object to the treatment. The third step is for the Court of Session to make an order declaring that the treatment may lawfully be given. The court must be satisfied that the patient does not object to the treatment.
There has been a question whether such decisions should be taken by a court or by the legislative assembly. The legislation will provide the framework, but the court can consider and judge on individual situations and circumstances, which will be unique for every individual. Those are fairly formidable provisions. We do not envisage a case in which meeting those safeguards would prevent a patient from receiving a treatment that carries a real hope of recovery, because such prevention would not be in the patient's best interests.
Under the practice that is currently in place at the unit in Dundee, if a patient objects, the treatment does not go ahead, but we must ensure that that remains the case through legislation because the personnel or the practice might change.
We are aware of the UN resolution that was mentioned and we have given it serious consideration, but it is not binding on domestic legislation. We feel that we are right to go further than that resolution.
Although we know that the unit in Dundee does not give treatment if a patient objects, what safeguards are in place at the moment? Are the three steps that you outlined an increased level of safeguard?
Absolutely. Although the practice is carried out at the unit in Dundee, it happens only with the full agreement of a consenting person. As the safeguards that I have listed will add to patient safety in future cases, we feel that it is important to include them in the legislation just in case circumstances change.
I call Shona Robison to wind up and say whether she will press amendment 275.
I have listened carefully to the minister's comments and accept some of her arguments. However, the concerns that remain are sufficient for me to press amendment 275.
I know that this is a difficult issue for all members.
The question is, that amendment 275 be agreed to. Are we agreed?
No.
There will be a division.
For
Robison, Shona (North-East Scotland) (SNP)
Sturgeon, Nicola (Glasgow) (SNP)
Against
Butler, Bill (Glagow Anniesland) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
McAllion, Mr John (Dundee East) (Lab)
Smith, Mrs Margaret (Edinburgh West) (LD)
Abstentions
Elder, Dorothy-Grace (Glasgow) (Ind)
Scanlon, Mary (Highlands and Islands) (Con)
The result of the division is: For 2, Against 5, Abstentions 2.
Amendment 275 disagreed to.
Section 162 agreed to.
Section 163—Treatment mentioned in section 162(2): patients capable of consenting
I call the minister to speak to and move amendment 541, which is grouped with amendments 542, 545 and 278.
Amendments 541 and 545 are technical amendments that will clarify that where a patient does not have a responsible medical officer within the meaning that is set out in the legislation, any such reference should be taken to include the medical practitioner who is primarily responsible for the patient's treatment. That might be the case for a voluntary patient who is not subject to compulsory powers under the legislation. Amendment 542 is a technical amendment that is consequential on amendment 541.
I understand that amendment 278, in the name of Shona Robison, seeks to strengthen safeguards in relation to electroconvulsive therapy and drug treatment for consenting patients by requiring a certificate from a designated medical practitioner. At the moment, such treatments may be certified by either the patient's RMO or a designated medical practitioner. I am afraid that we feel that the additional safeguard that is proposed in amendment 278 is impractical, although we understand the concerns that have prompted it. The purpose of a second opinion is to act as a safeguard where the patient does not give consent, and imposing such a check on all cases in which patients have given consent would put severe strain on the system, particularly because the number of designated second-opinion doctors is limited. The Mental Health (Scotland) Act 1984 allows an RMO to certify treatments in the case of a consenting patient, and Millan also recommended that there should be consent or a second opinion for such treatment. The bill will deliver those provisions.
In recognition of the concerns that have been expressed about consent given, the bill will add the further safeguard that the patient must consent in writing to treatment. We will also ensure that the code of practice provides guidance on the matter. However, we accept that there might still be situations in which there is some doubt about whether a patient has genuinely consented to treatment. We believe that any such situations might best be addressed by strengthening the Mental Welfare Commission's powers of intervention in cases where there is evidence that a patient has not given consent. As a result, we intend to lodge a suitable amendment at stage 3 that will probably seek to extend the commission's powers in section 174. In the light of those comments, I invite Shona Robison not to move amendment 278.
I move amendment 541.
I am satisfied by the minister's reassurances on the matter and will not move amendment 278.
Amendment 541 agreed to.
Section 163, as amended, agreed to.
Section 164—Treatment mentioned in section 162(2): patients incapable of consenting
Amendments 542 to 545 moved—[Mrs Mary Mulligan]—and agreed to.
Amendment 276 not moved.
Section 164, as amended, agreed to.
Section 165—Electro-convulsive therapy etc
Amendment 546 is grouped with amendments 564, 616, 597, 598, 617 and 565.
Part 13 of the bill contains a range of safeguards for various kinds of treatments. Inevitably, situations will arise in which treatment must be given urgently, for example, before there is time to obtain an independent second opinion. Section 171 will allow for treatment to be given urgently in such cases, and the group of amendments deals with the relationships between that provision and the normal safeguards for particular treatments.
Amendment 546 relates to treatments in section 165, namely electroconvulsive therapy and other treatments as specified in regulations. It makes it clear that such treatments may be given without the normal safeguards where such medical treatment is urgently required by the patient. That is the situation under the Mental Health (Scotland) Act 1984, and we think that it is still appropriate—subject to what I will say in a moment.
Amendment 564 is a technical amendment that will clarify the definition of urgent medical treatment under part 13. Amendment 565 is another technical amendment that will clarify the timing of the sending to the Mental Welfare Commission for Scotland of notification of treatment given under section 165.
Amendments 616 and 617, in the name of Shona Robison, aim to exclude ECT from the treatments that may be given to a patient in an emergency if the patient is capable of consenting, but does not consent. We are content to accept the principle behind those amendments. We appreciate the concerns of many people that patients should be able to refuse ECT in any situation if they have the capacity to do so. However, we wish to make it clear that any relevant amendment should not go further than excluding just ECT, by also excluding any treatment that is specified in regulations made under section 165(3)(b) in the future.
I am not sure whether that is the intended effect of amendment 617, but I am advised that its drafting is not absolutely clear on that point. Unfortunately, we are therefore unable to agree to amendments 616 and 617 as drafted. I undertake, however, to lodge suitably worded stage 3 amendments to ensure that the provisions of section 171 cannot be used to override a competent refusal of ECT. On that basis, I hope that Shona Robison will be content not to move amendments 616 and 617.
I understand that the aim of amendments 597 and 598, also in the name of Shona Robison, is to clarify the circumstances under which urgent treatment may be given to a patient in hospital. There is concern that section 171(4) might prevent a patient from receiving urgent treatment, because the threshold for authorising the treatment is too high. The amendments would change the threshold from one of absolute certainty that the patient "will not" suffer harm to its being "not likely to" happen.
We are content to accept amendment 597. We agree that, under the bill as introduced, the test for a patient's being able to receive treatment might be too stiff. We are not, however, persuaded that amendment 598 is necessary. Section 171(4)(b) already allows for consideration of risk and probability through its inclusion of the expression "hazard to the patient". Indeed, the wording in the bill is the same as that which is used in the 1984 act, and we are not aware that that has caused any difficulties. I hope that Shona Robison will wish to press only amendment 597.
I move amendment 546.
I take on board what the minister has said about amendments 616 and 617. If there are drafting difficulties, I am happy to co-operate by not moving those amendments on the basis of the minister's commitment to lodge at stage 3 amendments that would achieve the same aim. I also accept what the minister said about amendment 598 and will be happy not to move it.
Amendment 546 agreed to.
Amendment 277 is grouped with amendments 279, 281, 283, 285 and 286. We shall see whether Shona Robison is on a roll.
Again, I return to an ethical issue with which I have struggled—the issue of incapable patients and the use of electroconvulsive therapy. The purpose of the amendments is to prevent ECT from being given, other than in urgent situations, to patients who are incapable of consenting to the treatment. If the amendments are agreed to, it will be possible for ECT to be given only with the patient's consent under section 166 or under the urgent treatment provisions in section 171, which we have just debated.
A difficulty with the issue emerged in evidence to the committee. I listened intently to the evidence at stage 1. Current opinion differs as to whether ECT is an effective treatment for certain people with mental disorders. There is certainly a lot of controversy about its adverse effects, and particularly its long-term effects, such as memory loss. The Scottish Association for Mental Health made strong representations on behalf of service users who have received ECT, many of whom were concerned about its effects. In the light of such evidence, I believe that no one should be given ECT unless they have given informed consent.
I move amendment 277.
This is a difficult issue. In the stage 1 report, the committee said that, on balance, it
"considers that the safeguards for neurosurgery for mental disorder and electro-convulsive therapy in the Bill are generally adequate, but would recommend ongoing monitoring of how these provisions operate in practice."
We also recommended additional protections. Will the minister tackle that issue? Will there be the additional protections that the committee sought? Will the Executive's proposals make a substantial difference? I am worried that there might be non-emergency treatments from which patients could benefit, which patients might be denied simply because they could not give their consent.
Over the years, the issue has been much debated and it is right that the committee should return to it in debating the bill.
Currently, the law enables ECT to be given to patients who are detained under the Mental Health (Scotland) Act 1984 and are unable to consent, if a second medical opinion has been obtained. Under regulations that were made under the Adults with Incapacity (Scotland) Act 2000, the treatment can also be given to patients who are unable to consent, subject to the same second-opinion safeguard. The latter provision followed the recommendations of the Scottish Law Commission's 1995 report on incapable adults.
The Millan committee considered the matter carefully. Its report recognised that ECT is controversial, but noted that most Scottish psychiatrists regard it as a safe, effective and well-evidenced treatment in appropriate cases—for example, for severe depression—and that much research supports that view. The Millan committee also said that many service users report considerable benefits, although others regard the treatment as an almost uniquely invasive and distressing intervention.
The Millan committee recognised the concerns that were expressed by service users and recommended that ECT should continue to attract special safeguards. In addition, it said that it should be explicit that any patient who is capable of making a treatment decision at the time of treatment should be entitled to refuse ECT. The bill takes that line. I appreciate the concerns that lie behind Shona Robison's amendment 277, which is supported by Adam Ingram. However, the key question is whether an acutely ill patient who, on account of that illness, is incapable of giving consent, should be denied a treatment that has proved to be of significant benefit to many other patients.
The Mental Welfare Commission, which was established to safeguard patients' interests, supports the present position, as does the Royal College of Psychiatrists. The Executive believes that the position that is taken in the bill is correct.
John McAllion referred to the Health and Community Care Committee's report at stage 1. The committee concluded that
"the safeguards for … ECT in the Bill are generally adequate",
but recommended that the Executive introduce
"additional protections for patients for whom ECT is proposed, who are incapable of consenting and who are objecting to or resisting the treatment".
We are not sure that there is anything more that could reasonably be added to this part of the bill. If other amendments had been lodged, we would have considered them but, at the moment, we do not believe that there is anything more we can add to the safeguards.
The amendments that are before us would go much further than simply to deal with concerns about ECT, which is why we will not accept them. They would remove altogether the provisions that would allow an incapable patient to receive ECT, even if the patient wanted the treatment. We think that that could deny some patients the treatment that would remove their incapacity.
The bill also contains other safeguards to reduce the risk of ECT's being forced on an unwilling patient. Both the treating doctor and the doctor who supplies the second opinion must have regard for the patient's past and present wishes before deciding whether to administer the treatment. The treating doctor must also take proper account of any advance statement by the patient, and we intend to add provisions that would impose a similar requirement on the doctor who supplies the second opinion.
I therefore invite Shona Robison to seek to withdraw her amendment.
Shona, do you want to withdraw the amendment?
That is a difficult question to answer. Obviously, my amendment would still allow for urgent treatment to be given under section 171, if required. However, on the basis of what has been said, I seek leave to withdraw amendment 277.
Amendment 277, by agreement, withdrawn.
Section 165, as amended, agreed to.
Section 166—Treatment mentioned in sections 165(3) and 168(3): patients capable of consenting
Amendment 278 not moved.
Section 166 agreed to.
Section 167—Treatment mentioned in section 165(3): patients incapable of consenting
Amendment 547 is grouped with amendments 550, 557, 560 and 563.
This group of amendments makes clear an important point of principle, which is that forcible treatment cannot be given under the bill except in a hospital setting. Although part 13 might authorise the giving of medical treatment while the patient is in a community setting, the authority to treat given by sections 167, 169 and 170 does not extend to the giving of medical treatment by force to that patient.
I move amendment 547.
What happens to patients under a CTO who are unwilling to consent to compulsory treatment in the community?
If a patient who is not prepared to accept treatment in the community is in breach of their CTO, the provisions of sections 84 and 86 of the bill might be used to move them to the hospital for assessment and treatment.
Might be used?
Those sections might be used to move the patient, yes.
If the patient does not co-operate in the community, will they be forced to go into hospital?
If a patient is not complying with their treatment order and it was felt that it was appropriate to administer that treatment forcibly, that would happen only in a hospital situation. The patient would not be forcibly treated in their home.
Once in hospital, would they be reassessed before further treatment was given?
Yes, there would be an assessment. Obviously, if treatment were needed urgently, that point would be taken on board.
Amendment 547 agreed to.
Amendments 548, 549 and 550 moved—[Mrs Mary Mulligan]—and agreed to.
Amendment 279 not moved.
Section 167, as amended, agreed to.
Section 168—Treatments given over period of time etc
Amendment 551 is grouped with amendments 552, 595, 553, 554, 596, 555, 555A and 556.
This group of amendments deals with the treatments specified under section 168, which can be given only with the consent of the patient under section 166 or with the authorisation of an independent designated medical practitioner under section 169. Section 168 currently specifies drug treatment for mental disorder that is given for more than two months and any other treatment that might be added by regulations.
Amendment 551 makes it clear that those treatments may be given without the specified safeguards if the patient requires such medical treatment urgently under section 171.
Amendment 553 adds further treatments to those specified in the bill as requiring the special safeguards provided by section 168. The amendment also clarifies the meaning of the term "medicine" in the section and the timing of the safeguards. The treatments that amendment 553 adds to the bill are forcible feeding and drug treatments—other than by surgical implantation of hormones—given for the purpose of reducing sex drive. Provision remains to specify further treatments by regulations. The Executive is proposing the addition of the treatments in response to views expressed by the committee at stage 1. The drug treatment by hormones and forcible feeding as a treatment for a mental disorder should be specified as special treatments in the bill rather than in regulations.
Amendments 552, 554 and 555 are technical amendments that clarify that the safeguards provided for by section 168 do not apply until two months have passed in relation to medication for mental disorder, other than to reduce sex drive. For forcible feeding and drug treatment for sex drive, as well as any treatment specified in regulations, the safeguards will apply immediately. The amendments also provide that the safeguards apply when the treatments in question, such as medication or forcible feeding, are given as treatment for mental disorder or as a result of the patient's having a mental disorder. That is required because some of the treatments might also be given as treatments for patients who are not mentally disordered.
Amendments 595, 596 and 555A together seek to provide for safeguards for drug treatments that exceed the normal dosage or are used for a purpose other than the recommended purpose. I appreciate Shona Robison's concern to have all safeguarded treatments included in the bill. Our view, which is in line with the Millan recommendations, is that those treatments should be specified in regulations. I hope that I can assure the committee that putting some treatments in regulations will not lessen the scrutiny to which they will be subject or the strength of the safeguards. It will, however, make any necessary changes to the safeguards easier to achieve.
It might be helpful if I make clear why we want to take such a line on this occasion. Safeguards for high dosage and usage of drugs for other than the recommended purpose are being introduced for the first time in mental health legislation. They have already generated considerable discussion as to how they might be implemented effectively.
The committee will appreciate that, if not carefully worded, the provisions might not have the desired effect and might therefore give rise to operational difficulties. For that reason, we take the view that such matters should be dealt with in regulations under section 168. Because the regulations will be subject to the affirmative procedure, the committee will have the opportunity to scrutinise them further.
Moreover, Shona Robison's amendments would not deal with all the issues raised by Millan. Millan proposed that there should be safeguards for polypharmacy, which would apply where a patient received different drugs that had a similar purpose and that, if taken together, would add up to more than the recommended dosage. The proposed amendments do not appear to cover that.
I appreciate that Shona Robison's amendments have been given careful thought, but we are not able to reassure the committee that they would have the desired effect. For that reason, we do not support the amendments at this time, but we will ensure that similar safeguards are brought forward in regulations under section 168.
I am grateful to Shona Robison for lodging amendment 556, which seeks to make provision in section 168 for Scottish ministers to consult on regulations made under the section in relation to safeguards for further treatment. It is, of course, Executive policy that consultations should be undertaken on regulations. As currently drafted, the bill makes such provision in earlier sections in part 13. However, the provision seems to have been inadvertently omitted from section 168. I am therefore happy to accept amendment 556.
I move amendment 551 and ask Shona Robison not to move the amendments in her name, other than amendment 556.
As the minister said, the purpose of amendments 595, 596 and 555A is to ensure that medication for medical disorders that exceeds the recommended dose, or medication for mental disorders that is for a purpose other than its recommended purpose, are specified in the bill as requiring the special safeguards set out in sections 166 and 169. I agree with the minister that the treatments are regarded as controversial. Perhaps that in itself is reason enough to have them explicitly stated in the bill.
I accept that the Millan committee recommended that the treatments should be specified in regulations. However, no reason was given why they could not be expressed in the bill. I make the simple point that, if there is no good reason for them not to be expressed explicitly in the bill, perhaps the bill is the best place for them, especially as they are so controversial.
I seek clarification on a couple of the Executive amendments. The proposed use of the term "drug treatment" in section 168(3)(a) seems a bit inconsistent, because the section refers elsewhere to medicine. It would be confusing, because the proposed amendment to section 168(6)—amendment 555—refers to section 168(3)(a) and uses the term "medicine".
Proposed section 168(3)(c) relates to forcible feeding and uses the term
"without the consent of the patient".
Given that section 168 authorises treatment in accordance with section 166 on patients granting consent or being capable of consenting, or with section 169 on patients refusing consent or being incapable of consenting, it is strange that forcible feeding has been included in the amendments to section 168. By definition, forcible feeding cannot be given to consenting patients. It might have been more appropriate to deal with that matter in a separate section.
You have made some good points—I see the officials scrambling around trying to find the relevant sections.
I think that I understood the minister's argument for why the two types of treatment—treatments that exceed recommended dosages and treatments that are used for purposes other than their recommended purpose—should not be stated in the bill. This is the first time that such measures have been implemented and there is still debate about how precisely to define the treatments in legal terms. The Executive has therefore chosen to go down the route of introducing regulations, which would be subject to parliamentary scrutiny. However, will the minister assure me that, even though the treatments will be specified in regulations, the same safeguards will apply to them, so that there is no difference in reality?
They will have the same safeguards. John McAllion is absolutely right that the intention is to continue to review the safeguards. The approach that we propose will give us the ability to do that and to respond more appropriately to what we find, rather than having to go through a process involving primary legislation. There will be safeguards, as the regulations will have to come before the committee.
On the other treatments, we have accepted the arguments about forcible feeding and drugs prescription for the reduction of sex drive. However, as we pointed out, we want to be able continually to review the cumulative effect of the drugs that are being prescribed. We want more time to consider what Shona Robison has said, because her arguments are pertinent—we will consider responding to them at stage 3.
Amendment 551 agreed to.
Amendment 552 moved—[Mrs Mary Mulligan]—and agreed to.
Shona, do you wish to move amendment 595?
A number of guarantees have been provided, so I will not move amendment 595.
Amendment 595 not moved.
Amendments 553 and 554 moved—[Mrs Mary Mulligan]—and agreed to.
Amendment 596 not moved.
Amendment 555 moved—[Mrs Mary Mulligan].
Amendment 555A not moved.
Amendment 555 agreed to.
Amendment 556 moved—[Shona Robison]—and agreed to.
Section 168, as amended, agreed to.
I suggest that we finish stage 2 consideration at that point. I thank the minister and her team and members for their contributions this morning. I also thank Adam Ingram for attending.
We will suspend for a short comfort break, after which will we discuss lines of questioning to the Minister for Health and Community Care on the next two agenda items.
Meeting suspended until 11:31 and thereafter continued in private.
Meeting continued in public.