Mental Health (Detention in Conditions of Excessive Security) (Scotland) Regulations 2015 [Draft]
Good morning and welcome to the 26th meeting in 2015 of the Health and Sport Committee. As I normally do at this point I ask everyone to switch off their mobile phones, as they can interfere with the sound system, although, as you will see, some members and clerks use tablet devices instead of hard copies of our papers.
Agenda item 1 is subordinate legislation and we have one affirmative instrument before us. As usual with affirmative instruments, we start with an evidence-taking session on the draft regulations with the minister and his officials. Once all our questions have been answered, we will have a formal debate, if necessary, on the regulations.
I welcome the Minister for Sport, Health Improvement and Mental Health, Jamie Hepburn, and his officials. Good morning, minister. He is joined by Nicola Paterson, unit head at the protection of rights unit in the Scottish Government’s mental health and protection of rights division, and by Stephanie Virgo—[Interruption]—sorry, Virlogeux, who is a late witness, just to get me tongue-tied this morning. A special welcome to you.
I invite the minister to make a brief opening statement—I think that he has prepared for that.
Yes, convener. Thank you for the opportunity to introduce these draft regulations to be made under section 271A of the Mental Health (Care and Treatment) (Scotland) Act 2003. The draft regulations will deliver the Government’s stated intention to ensure that the scheme that is provided for in the 2003 act can operate effectively in the present secure estate. They will fully deliver the Millan report’s recommendation
“that patients should have a right of appeal to be transferred from the State Hospital or a medium secure facility to conditions of lower security”
by extending the right that is already in force for patients in the state hospital to patients in the three medium-secure units in Scotland.
The Government’s stated intention was set out in initial draft regulations that were provided to the committee on 24 April to assist in your consideration of the provisions in the Mental Health (Scotland) Bill, which is now an act of the Scottish Parliament, having received royal assent on 4 August. The draft regulations that the committee is considering today differ from those that were provided in April in only two respects. I shall deal with each regulation separately and will highlight where there has been an amendment.
The 2003 act introduced a requirement for applications to the Mental Health Tribunal for Scotland from patients in the state hospital and those in medium security to be accompanied by a supportive report prepared by a medical practitioner. Regulation 3 is an addition to the April draft regulations. It amends the 2003 act so that the medical practitioner must be an “approved medical practitioner”, as defined in section 22(4) of the 2003 act.
As approved medical practitioners have been approved by a national health service board or by the State Hospitals Board for Scotland as having special experience in the diagnosis and treatment of mental disorder, they have the necessary expertise to assess and determine whether a patient requires to be detained under conditions of special security in the state hospital or whether the test in the regulations is met for patients in qualifying hospitals.
Regulation 4 remains unchanged and lists the three medium-secure units in Scotland. Patients in those “qualifying hospitals” will benefit from the regulations through the extension of the right of appeal against being detained in conditions of excessive security.
Regulations 5 and 6 set out the test that must be met for the Mental Health Tribunal for Scotland to grant an order declaring that the patient is being held in conditions of excessive security and requiring the relevant health board to identify a suitable hospital with the appropriate level of security. The test focuses on the key issue of the risks that the patient may pose to themselves and to others. After all, the purpose of security in psychiatric care is to provide a safe and secure environment for patients, staff and visitors that facilitates appropriate treatment for patients and appropriately protects the wider community. It is only when the level of security that the patient is subject to is greater than necessary to manage those risks that a lower level of security can be considered.
The draft regulations that were issued in April included reference to the risks to a patient’s safety that other persons may pose. That reference has been removed following consultation that highlighted concerns about patients being detained in conditions of excessive security due to the risks posed by others.
With that, I am happy to field any questions that the committee may have.
Thank you, minister.
Quite often, patients want to appeal their level of security after it has been changed, for example when someone has been moved to a place where there is increased security. One problem in such cases is that, even if the patient wins the appeal, the place that they previously occupied has been given to somebody else. They might win the appeal against increased security, but no bed is available for them anywhere else. Is there anything in the regulations that would keep their bed open for them until they have had a period of time to appeal?
I do not think that anything in the regulations specifically relates to that; I can ask Nicola Paterson to confirm that in a moment. The legislation is set out such that anyone who is successful in an appeal is transferred when a bed becomes available. That is no different from the approach that is taken now. Am I correct, Nicola?
You are correct.
Are there any plans to change that? Somebody’s liberty could be at stake because the level of security is wrong but the bed that they had has been given up.
I am always willing to take on board suggestions to finesse and adapt the system that we have in place. We have just been through a very extensive bill process for the Mental Health (Scotland) Act 2015, and the committee was integral to that process. We have no plans to reassess it any time soon, but we are always willing to keep things under review.
The issue was discussed during the bill process, and I think that it was put on the record a number of times that a place should be kept open with a time limit to allow someone to appeal, so that they would not be held in excessive security. I would be grateful if you would look at the issue again.
Why is the right of appeal restricted to key places rather than applying to any level of security? One imagines that anyone who is being kept under an enhanced level of security should have the right to appeal, right down to having no security at all.
As I set out in my opening remarks, in essence we are trying to fulfil what the 2003 act required us to legislate for. It has taken us a long time to get there—I concede that point willingly.
The 2003 act was pretty clear, as was the Millan report, that the right of appeal against excessive security was to relate to those who are held in the state hospital and in medium security. That is the requirement that we are fulfilling with the regulations.
I share Rhoda Grant’s concern, but I accept that the issue was dealt with at stage 3 in the chamber.
I still have a quarrel with you, not just about what you said now but about what you say in your policy note about what the 2003 act required. There is no mention of medium security in the 2003 act. The Supreme Court case in 2012 that required you to bring the regulations would never have been taken up had medium security been mentioned in the 2003 act, because the man who went to the Supreme Court was in low-secure accommodation. I do not think that it is accurate to say that you are doing this because of what the 2003 act requires. You made a policy decision to have the right of appeal only in medium security.
I willingly concede that it is also a policy decision. However, I take up your point about the legal challenge. It is correct to say that the challenge was brought by someone who was held in a low-security environment. However, the court’s ruling related not to the security level but to the fact that we had failed, as a Parliament, to institute any form of legislation, based on what we had said we would do in 2003 when we passed the 2003 act. The fact that the individual was held in low-secure accommodation was not necessarily relevant to the specific regulations that we sought to bring forward.
I accept that the judgment did not say anything about low security, but my point was that it would never have got to court in the first place if the legislation had referred to medium security, because the individual would have had no grounds for appeal if he was in low-secure accommodation and the legislation described only medium-secure accommodation. It is very annoying that you keep talking about this in your policy note.
The policy note also refers to the Mental Welfare Commission consultation forum and says:
“There was some divergence of opinion among participants. While some consultees questioned the need to introduce regulations, the group as a whole recognised that this was not an option.”
However, it fails to say that the Mental Welfare Commission, the Scottish Association for Mental Health, the Scottish Human Rights Commission, the Law Society for Scotland, the Equality and Human Rights Commission and the Scottish Independent Advocacy Alliance all wanted it to be extended to low-secure provision.
But you already know that, Mr Chisholm. The Millan report was very clear that patients in medium-secure facilities should have the right of appeal. We are fulfilling the recommendations that were set out in that report. We should also remember that the issue is the level of security that a person is held at, rather than the specific circumstances under which a person might be detained. There are already means by which people who are held in low-security accommodation can appeal against certain circumstances of their detention. If they are in lower security they can ultimately appeal the fact that they are being held at all. There is already a mechanism in place for those who are held in the lowest form of secure accommodation.
The key thing in the Millan report was that people should be held in
“the least restrictive manner and environment compatible with the delivery of safe and effective care”;
that was the principle behind the amendments to the 2003 act.
On regulation 3—I realise that this is a minor point, but I am always worried when regulations amend primary legislation—I am curious as to how the situation came about. Was the change to the term “approved medical practitioner” omitted from the 2015 act, or was it just not caught? Is that the definition that is now used in section 329(1) of the 2003 act?
It is a bit of tidying up. Practitioners raised the point that that is the definition that should be used.
The policy note refers to an
“approved medical practitioner (as defined in section 329(1) of the 2003 Act)”.
Was that definition a result of the act that we debated in June 2015?
I think that it was from the 2003 act, rather than the one that we have just passed.
The term “approved medical practitioner” is defined in the 2003 act. In introducing the amendment, we are just using the definition that already exists, following discussions with stakeholders. Rather than using the more general term “medical practitioner”, the 2003 act uses the specific term “approved medical practitioner”, which is defined.
It is not a substantive point, but I am still a bit curious about it. If that term was used in the 2003 act, why was it not used in the particular sections of the act that regulation 3 amends? I accept that that is a technical point, but it is interesting because an important part of what you propose is that appeals will be possible only with the consent of an approved medical practitioner. That might be a restraint on how many people are able to exercise that particular appeal.
09:45
Of the first 100 state hospital patients to make an application, 91 per cent of those whose applications were unsuccessful did not have support for the application.
I suppose that we are trying to strike a balance between ensuring that we do not have speculative appeals that might be encouraged by someone other than the patient, which could be very disruptive for the patient’s treatment, and ultimately giving the patient a right to seek to appeal where they feel that the circumstances are merited and they can get an approved medical practitioner to provide evidence to back that up.
Do you accept that you are restricting in that sense the intention of the 2003 act?
I would not say that we are restricting the intention of the 2003 act. We are trying to put in place a system that is designed to ensure that those individuals who are held in either the state hospital, or indeed the medium-secure accommodation, have that right of appeal but that it is taken forward in such a manner that it is not likely to be unnecessarily disruptive to the treatment of people who might be in very vulnerable circumstances.
I hear what you are saying. However, I think you should accept that you have modified the intention, which was praised so profusely by the current Cabinet Secretary for Health, Wellbeing and Sport. She thought that it was the part of the 2003 act that she was most enthusiastic about.
I know that she is very happy with what we are doing here, too.
I am glad to hear it.
Good morning, minister. You said that a number of patients will be able to apply to appeal. Do we have an idea of how many appeals there could be and what the total cost might be? I am all for people being able to appeal, but I would like a bit of background on what you believe the total cost will be.
We do not know how many patients might appeal, because clearly it is incumbent on the individuals to seek to make an appeal. The mental health in-patient bed census, which was published in June, shows that the number of patients as at 29 October 2014 who were in medium-secure units was 127, all of whom would be eligible to seek to appeal.
We have provided some detail on the costs that we think might arise out of this mechanism. That was set out in the business and regulatory impact assessment. Estimated costs for the public sector, health boards, the Mental Health Tribunal for Scotland and the Scottish Legal Aid Board are around £760,000 per annum.
How will we fund them? Will they be given extra money to deal with the regulations?
We always seek to fund anything that we deliver, Mr Lyle.
I am happy to hear that, minister. Thank you.
Agenda item 2 is the formal debate on the affirmative SSI on which we have just taken evidence. I remind committee members and others of my previous remarks. We cannot put questions to the minister during the formal debate, and officials cannot take part in the debate. I invite the minister to move motion S4M-14389.
Motion moved,
That the Health and Sport Committee recommends that the Mental Health (Detention in Conditions of Excessive Security) (Scotland) Regulations 2015 [draft] be approved.—[Jamie Hepburn.]
Do any members wish to contribute to the debate?
Obviously, given my questioning, I am not happy with the regulations. Given that they are consistent with the primary legislation that was passed on 24 June, however, there are no grounds for voting against them.
No other members wish to speak. I do not know whether the minister feels the need to sum up, but he is free to do so.
I think that that was a steer for me, convener. I do not feel the need to sum up. It is fine.
The question is, that motion S4M-14389 be agreed to.
Motion agreed to.
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