The next item of business is a debate on motion S4M-12624, in the name of Jamie Hepburn, on stage 1 of the Mental Health (Scotland) Bill.
I am afraid that I have to advise members that we are incredibly short of time and have no minutes in hand. I therefore ask Jamie Hepburn to speak to and move the motion as soon as possible. You have a maximum of 13 minutes, minister.
15:01
I am delighted to open this stage 1 debate on the Mental Health (Scotland) Bill, on a motion that the Parliament agrees to the general principles of the bill.
I am pleased that we are debating mental health for the fourth time in this calendar year. That reflects the importance of mental health and the interest that the Parliament has taken in it. I am heartened to hear the Presiding Officer say that we are short of time, as that indicates the number of members who wish to speak and emphasises the great interest that we have in the subject.
We have debated much of the work that we are doing to improve mental health and mental health services, and we have discussed the progress that we have made and the challenges that we face in improving further. Doubtless, we will debate those matters again.
I am pleased to be able to briefly update Parliament about the £15 million of innovation funding that we announced in November and which is part of that work. Demand for mental health services has increased in recent years, so we must ensure that services continue to be effective and of high quality. The additional investment in the next three years will help to drive further improvements in the quality and delivery of mental health services so that people get the help that they need, where and when they need it.
The funding of £5 million in each of the next three years will comprise four key elements. The first is an allocation to national health service boards to be used in partnership with the wider public and third sector to support improved access to child and adolescent mental health services, to support innovative approaches to delivering mental health services and to identify new ways of treating people. Secondly, there will be an allocation to NHS Education for Scotland to further develop the quality of child and adolescent mental health services through training for staff in evidence-based psychological interventions. Thirdly, there will be an invitation to NHS boards and their partners to work with the Scottish Government on developing innovative approaches to working with people in distress. Finally, there will be an invitation to NHS boards and their partners to submit proposals to develop novel approaches to meeting the needs of people with mental health problems in primary care settings. We will soon write to NHS boards and their partners to set out more details on the fund, and I am happy to update members who are interested, if they would like me to do so.
Today, we are focusing on the Mental Health (Scotland) Bill, which is a key part of our mental health strategy and which looks to strengthen the rights of and protections for service users. The chief aim of parts 1 and 2 is to amend existing legislation so that it works as effectively as possible for service users. The bill seeks to address issues that were raised in the McManus review of 2009 and elsewhere. Part 3 introduces a victim notification scheme for victims of mentally disordered offenders in a way that respects the rights of victims and of vulnerable offenders.
I was pleased to note from the Health and Sport Committee’s stage 1 report that the committee supports the general principles of the bill. I thank that committee, the Finance Committee and the Delegated Powers and Law Reform Committee for their work in considering the bill at stage 1.
I am grateful to the Health and Sport Committee for the manner in which it took evidence at stage 1. It invited a wide range of stakeholders to give evidence, in the spirit of drawing out the changes that will, in line with the aims of the bill, best improve the system for service users.
The evidence and the committee’s report have been invaluable in helping the Government to reflect on whether we have the provisions exactly right, particularly when there is a range of opinions. I look forward to reflecting on members’ comments before responding to the report in due course.
I will now speak about some of the key individual provisions in the bill. Section 1 seeks to benefit service users by giving them more time to prepare for their first tribunal hearing when a compulsory treatment order is applied for. The aim is to cut down on repeat hearings, which can be distressing for service users. I have noted the concerns expressed to the committee that the change could mean that service users are detained for longer before they automatically appear before a tribunal.
Members might have noted the evidence given to the Health and Sport Committee by Dr Joe Morrow, the President of the Mental Health Tribunal for Scotland. Dr Morrow was very clear that the purpose of the proposed changes is to support service users by allowing them more time to prepare for tribunal hearings and to cut down on repeat hearings. I want to bring in changes that will help service users overall. We must balance the benefits that we are confident will result against concerns about extending the period of detention before the tribunal hearing. We are thinking hard about how best to achieve that balance and I will be happy to hear further views on that area.
One area that is raised in the committee’s report is the capacity of the mental health officer workforce. I recognise the incredibly important work done by MHOs and their vital role in safeguarding service users’ rights. As I noted to the committee, the bill does not quite reflect our intention on MHO reports when certain orders are extended. That caused some understandable confusion around costings, which was raised by the Convention of Scottish Local Authorities, and we will propose an amendment at stage 2 on that point.
The bill will introduce a very small number of duties for MHOs, most of which are considered best practice already and relate to only a few cases across Scotland. Although MHO numbers are ultimately a matter for local authorities, I am pleased to have seen an increase in the number of mental health officers who are receiving training. The Government has recently undertaken a scoping exercise to gather evidence about the issue. When the report of that work is available, we will, alongside stakeholders, identify any appropriate actions.
The committee noted comments on changes to suspension of detention. The Government based the provisions closely on recommendations in the McManus report and agrees with that report’s aims that suspension of detention provisions should be flexible to meet patient needs and should also contain safeguards. Suspension of detention should not be used as an alternative to a less-restrictive community-based order, which is why the safeguard of a tribunal hearing is included.
The bill updates provisions in the Mental Health (Care and Treatment) (Scotland) Act 2003 on appeals against conditions of excessive security. As I noted at the committee, the framing of the provisions in the 2003 act no longer reflect the nature of the estate, meaning that we were unable to use existing powers, which talk about transfer from hospital to hospital, to bring in an appeals process. We intend to introduce regulations that set out the levels at which appeals can be made at an early stage.
Turning to the nurse’s holding power, we feel that it is useful to clarify that the power to detain is for a maximum of three hours, and that it can be used for the purpose of a medical examination. That is not radically different from the current position; it just means that the period can be extended to three hours. I am very clear that, as now, we expect the power to be used in line with the principle of least restriction, and guidance will reflect that.
I have listened to the concerns about proposed changes to the timescales for appeal on transfer to the state hospital, when unwell patients might need longer than four weeks to lodge an appeal. I want to ensure that we strike the right balance, given other concerns about the effect of the current timescales. We are considering that matter carefully ahead of stage 2.
On named persons, I have been reflecting on whether we have the right balance between ensuring that service users have a named person only if they want one and protecting the most vulnerable. For many service users, the named person role is very important, and it is an important protection at a difficult time. It is therefore vital that we get the balance right, and I will lodge amendments at stage 2 that seek to do that.
One of the major changes in the bill is the introduction of a victim notification scheme for certain mentally disordered offenders, which will sit alongside the existing scheme for other offenders. We are introducing the scheme in response to a European Union directive on the rights of victims, which does not distinguish between the status of offenders. Furthermore, the Scottish Government has consistently shown its support to victims of crime.
We recognise that such offenders are vulnerable themselves. I will seek to ensure that we get the balance right while ensuring that the rights of victims to information are fulfilled. That is fundamentally important.
The committee acknowledged that the bill is intended to be a limited bill and is designed to make the 2003 act work as effectively as possible. I am aware that there are some long-standing issues that some people would have liked the bill to include, such as the issues that the Scottish Law Commission raised on incapacity and calls to bring incapacity and mental health legislation together. Those are very complex issues, but I make it clear that I have heard what people have been saying. There have also been some limited calls for consideration of whether persons with a learning disability on the autistic spectrum should be included within the scope of the 2003 act. I am clear that the bill might not be the best vehicle for those matters, and I want to consider them further before coming back to Parliament, separately from the process around the bill, to update members on my thinking.
I conclude—somewhat ahead of time, I notice—by reiterating that the aim of this amending bill is to improve existing legislation to ensure that the system works as effectively as possible for service users, and to introduce a victim notification scheme for mentally disordered offenders.
I look forward to hearing members’ thoughts on the bill. I hope that the Parliament will support its general aims, and I look forward to working with members of all parties as we continue to take it through Parliament to ensure that we have the most effective system in place for treating mental health disorders across the country.
I move,
That the Parliament agrees to the general principles of the Mental Health (Scotland) Bill.
Many thanks, minister. Your concluding slightly early might allow me to call all members in the open debate.
I call Duncan McNeil to speak on behalf of the Health and Sport Committee.
15:11
Stephen Fry said:
“One in four people ... have a mental health problem. Many more people have a problem with that.”
I ask members here in the chamber, and indeed everyone in the public gallery, to think of a person they know who has a mental health condition. Who is that person—that individual who has popped into your head? Is it a family member, a work colleague or a friend? Or is it you? The reason I ask that question is that we must place at the heart of our consideration of the Mental Health (Scotland) Bill the person with the mental health condition. It is important that we consider the impact that the changes proposed under the bill would have on the individual requiring mental health care.
During the Health and Sport Committee’s scrutiny of the bill, we have been mindful of the importance of the rights of the patient. As the minister said, that of course needs to be balanced against the administrative processes that are in place to deliver mental health treatment. Broadly, the bill has achieved the right balance. However, there are a number of areas, some of which were outlined by the minister in his speech, in which the committee believes there is a need for further clarification from the Scottish Government.
We welcome the minister’s welcome of our stage 1 report. It would be remiss, however, not to express the committee’s disappointment that the Government’s response to our report was not received in time for the debate. That means that some of my focus will be on areas that the minister has already mentioned. I hope that the minister will be able to offer us some assurances and clarification today on some of the following specific points.
The first area that I want to highlight is the automatic extension to the continuous period of detention that was alluded to by the minister. Thinking again about that from the perspective of the patient, there were positive comments from the Mental Health Tribunal for Scotland—as the minister said. The tribunal felt that the provision was about ensuring that patients were ready and prepared to proceed at their first tribunal hearing, thereby reducing the need for people to attend multiple hearings with all the associated problems.
As a committee, we recognise that it is important that measures are taken to ensure that tribunals do not exacerbate the circumstances and the stress for patients. However, serious concern was raised about that provision by the Scottish Human Rights Commission. The concern was discussed within the context of the European convention on human rights, the issue being whether there was sufficient and proportionate justification for a blanket extension that would apply to all patients.
To ensure that the provision is compliant with the right to “liberty and security,” it is vital that the Government assesses its implementation closely. Therefore I ask the minister to give us further clarification and to respond to the recommendations. First, the committee recommends that the Government provide a detailed plan of the estimates in relation to the reduction in multiple hearings that could be expected as a result of the provision. Secondly, we recommend that there is a clear monitoring regime that records the reasons for delayed, rearranged and repeat tribunals. Finally, we recommend that the Government clarifies how deducting the proposed extension time from the continuous period of detention will be calculated.
To quote once more Mr Stephen Fry, the president of the mental health charity, Mind,
“If ignorance is bliss, why aren’t there more happy people in the world?”
I move on to another aspect of the bill that was mentioned by the minister: the provisions relating to placing new duties on mental health officers. There is concern about the capacity of mental health officers to deliver on those duties. They are already under pressure due to an increased workload, an ageing workforce and the clear difficulties in attracting new social workers into the role. In Glasgow City Council, for example, the number of mental health officers has fallen from 120 in 2011 to just 94 in 2013.
It is important that the provisions relating to mental health officers can be delivered effectively. I therefore seek from the minister an assurance that some of the funding that he mentioned might find its way to support mental health officers and ensure that their provision is adequate to deliver what the bill proposes.
Another area of the bill relating to delivery of services by a specific profession is the proposed extension time for nurses to detain a person pending a medical examination. In the committee, Derek Barron of the Royal College of Nursing was frank in his assessment of the provision. He believed that there was no evidence that those changes would have any impact whatsoever.
Again, the issue of patient rights and administrative efficiency raised its head when Derek Barron told the committee:
“Our duty is to protect their human rights, not to make things easier for our workload.”—[Official Report, Health and Sport Committee, 7 October 2014; c 16.]
As a committee, we believe that any provision that restricts a service user’s liberty must be fully justified by robust evidence. I seek assurance from the minister that that is the case. I also ask the minister what steps can be taken to increase the accuracy and detail of the data recorded on the nurse’s holding power.
There are other aspects of the bill where the committee believes that there is a need for the Scottish Government to provide further information on the rationale and evidence that have informed its thinking. That includes the proposal to reduce the appeal period for people transferred from one hospital to another from 12 weeks to 28 days. Carolyn Roberts of the Scottish Association for Mental Health told the committee:
“The argument is that the time for appeal delays treatment that might be required urgently, but we neither understand that nor think that it has any substance.”—[Official Report, Health and Sport Committee, 11 November 2014; c 49.]
Again, the committee recognises the importance of protecting the patient’s rights. I therefore ask the minister to respond to the suggestion that, should a transfer take place before the outcome of an appeal has been determined, the place that the patient has come from should be held until the appeal has been decided. It would be good if that could be offered as a guarantee to the patient.
The member should begin to close, please.
I will jump to the closing stage on your instruction, Presiding Officer.
In conclusion, I ask members not to forget whom they pictured at the start of my speech when I asked them to think of a person with a mental health condition. If we hold those individuals in our sights during the Parliament’s consideration of the bill, we can ensure that it is a robust and fit-for-purpose piece of mental health legislation.
I am afraid that, even with the minister generously giving time back, we are still tight for time. I call Richard Simpson, who has a maximum of nine minutes.
15:21
I refer members to my declaration in the members’ register of interests as a fellow of the Royal College of Psychiatry and honorary professor of psychology.
The new funds to which the minister referred are of course welcome, although I point out that, proportionately, mental health funding is £75 million a year down on what it was in 2009, so there is some way to go to make that up. I hope that some of the new money will be applied to tiers 1 and 2 of the child and adolescent mental health services to support interventions such as perinatal attachment work and groups such as Place2Be in primary schools where there is significant deprivation. That would help to reduce the growing demand on CAMHS at tiers 3 and 4, and support some of the 6,000 children whose referrals were rejected by the specialist CAMHS last year.
I think that we all agree that the bill is fairly modest. It arises from some of the McManus report recommendations, and seeks to address some of the perceived weaknesses that have come to light in the Mental Health (Care and Treatment) (Scotland) Act 2003, the Criminal Procedure (Scotland) Act 1995 and the Criminal Justice (Scotland) Act 2003.
Given that the bill is modest, I say at the outset that Scottish Labour will certainly support the principles at stage 1. However, we believe—as Duncan McNeil indicated—that there is a flaw in the proceedings of this Parliament that makes the debate much less meaningful than it might have been if we had received the Government’s response to the committee’s report. We could then have had a further debate in Parliament. I know that the rules at present do not require that, but I urge the Presiding Officer and the Scottish Parliamentary Corporate Body, along with the Government, to take a close look at that to see whether we can make such debates more meaningful. What we are doing today is asking questions. The minister has indicated today some movement on some of the issues, but we do not really have time to appreciate and understand that. My comments may therefore not be totally pertinent, and for that I apologise.
Before considering the concerns that were raised by the committee and those who gave evidence, I stress that the committee, in taking oral and written evidence, perceived that there was a probable need for a wider review of the Mental Health (Care and Treatment) (Scotland) Act 2003 alongside the Adults with Incapacity (Scotland) Act 2000. Issues around human rights, and the provisions covering them with regard to learning disability and autism in particular, should be examined, and the complex interaction between the two acts with regard to capacity must be revisited. Detention is a very serious business, and we must ensure that we get it right and apply the Millan principle of using the least restrictive option to allow patients who are suffering from mental illness to go through the procedure as easily as possible, and feeling well supported.
I have concerns that some of the issues that were raised in the McManus report are not addressed in the bill. Issues are either not included or not adequately covered, and there are concerns regarding the absence of independent advocacy in the bill. If the minister wants to take a look at that with regard to the cabinet secretary’s view, he might look at the 2002 debates on the 2003 act, in which I participated, and in which Shona Robison said that advocacy should be everyone’s right. The bill does not complete what Shona Robison advocated in Parliament at that time.
There should be more focus, too, on the bit of the McManus report on groups subject to inequalities, such as asylum seekers, refugees and young people, as well as on sections 25 to 31 of the 2003 act, which deal with the obligations of local authorities to promote recovery and access to other services, including employability and education. He felt that those should be revisited, but there is no indication in the bill of any intention to do that. Finally, the report highlighted the expansion of mandated treatment to include psychological care for families where appropriate.
Those are some of the issues that the bill does not cover. Let us take a quick look at the issues that are covered; my colleagues will deal with some of them in more detail.
On the extension of the number of days for a tribunal hearing, the administrative situation is that the number of repeat hearings has been reduced under the current chair, and that is extremely welcome, but we cannot have a blanket extension that is purely for administrative purposes. I will move on this issue at stage 2 if the minister does not. The extension should happen only with the application of the individual to whom the matter pertains, or with the consent of the individual or their named person in respect of not receiving an adequate report for the tribunal to consider, thereby avoiding repeat hearings. I would like two qualifications in the bill in order to ensure that the rights of the individual are protected and that we do not have a situation in which there is simply a blanket extension and a drift in the number of days in which people can have a hearing.
Duncan McNeil mentioned the new duties on MHOs, which are of considerable concern as workforce planning in that area is not good. We understand from the Government’s response that COSLA got the number of additional reports wrong, but I remain to be completely convinced of that and I would like to see further evidence form the Government in its detailed response.
Does Richard Simpson recognise that I made it clear in evidence at stage 1 that COSLA got it wrong, but that I accepted that that was my fault?
I do, and that is exactly what I said. I am not convinced that either the figures that COSLA had or the figures that the minister has given us were correct, and I would like to see more evidence. Perhaps we can get into that at stage 2.
There is no evidence to justify the extension of the nurse’s holding powers to three hours, and the human rights issue there is important. When the nurses are telling us that they do not think that it should occur, I think that it should be deleted from the bill.
I am concerned about the reduction from 12 weeks to 28 days for the right of appeal against transfer. One of the justifications for that reduction is to bring it into line with other appeals, but it is an area of such overwhelming importance that I would like to see some justification for the change other than an administrative nicety. Will the Government comment in its report on ensuring that, when there is an appeal or a proposed transfer, until the time limit of the appeal is up the bed should be kept open in the existing situation, so that if the appeal is upheld the patient can go back? That is not happening.
My colleague Rhoda Grant will deal with the named person in more detail, but we certainly have considerable concerns about that.
There are concerns from all of us on the underuse of advance statements, but what evidence is there of Government work to improve the uptake of such statements? They are now proposed to be held by the Mental Welfare Commission, which is reasonable, but they must be both secure on the one hand and readily accessible 24/7 on the other. There are concerns about the credibility of advance statements with regard to implementation. There is not a general acceptance out there in the community that advance statements are worth making, and we need more research to understand why that is, before driving forward on the use of statements.
We also need to look at the concerns about currency in advance statements. In other words, they need to be updated, so they should not just be promoted, and there should not just be a requirement on boards or local authorities to promote them.
Will the member give way?
I do not have time, I am afraid. I may give way when I sum up at the end.
On the question of community leave, paragraph 78 of the committee’s report refers to the issues associated with the proposal for extension by 100 days.
The question of detention in a medium-secure unit and transfer reduction is fine, but what about transfers within a hospital rather than to another hospital? I am not sure that that issue has been properly addressed. Then there is the question of the low-secure units, which do not feature at all in the bill, but low-secure units are still secure. Being held in such a unit is still a restriction of liberty, and there should be an appeal against that along with the appeal against medium-secure detention.
On the question of advocacy, I have already mentioned Shona Robison’s speech in 2002, and I hope that at stage 2 the Government will consider reintroducing advocacy.
Presiding Officer, I will conclude early. In my summing up, I will also refer to the part of the bill on victims’ rights. It is excellent, but it fails in one major regard in that the investigation of and reporting on homicides and serious assaults perpetrated by people who are suffering from mental illness is not included in the bill at all. There is a considerable disparity between the dysfunctional, fragmented system in Scotland and the much better system in England. I will return to that in my summing-up speech.
15:30
We support the general principles of the Mental Health (Scotland) Bill but, as others do, we have a number of concerns that we believe the Government needs to address in the next stage of the parliamentary process. The Health and Sport Committee’s stage 1 report mentions several issues that were raised by witnesses that require either clarification from the minister or amendments to strengthen the bill, although I must say that I find it difficult to address those issues in a stage 1 speech without having had the Government’s response to the committee’s report ahead of this debate.
The Mental Health (Care and Treatment) (Scotland) Act 2003, which the bill seeks to amend, was an important piece of legislation that aimed to minimise interference in people’s liberty and to maximise service users’ involvement in their treatment by giving them a right to express their views about their care and treatment, a right to independent advocacy, a right to submit an advance statement about how they wish to be treated when they become ill and a right to choose a named person who can act on their behalf when necessary. The bill seeks to build on that by making changes to current practice and procedures to ensure that people who have mental health problems can access effective treatment in good time.
In the limited time that is available to me, I will focus on some issues in part 1 of the bill and a few matters of concern that are not included in the proposed amending legislation.
The new duties that are to be placed on mental health officers have raised the issue of workload for those specialist social workers in the face of an ageing workforce and difficulty in recruiting and retaining new MHOs. Although we accept the minister’s explanation of the discrepancy between the policy memorandum, and the financial memorandum and his assurance that the bill’s provisions will not result in a large increase in the number and cost of reports that are required from MHOs, we agree that there should be a strategic review of MHO provision with a view to improving recruitment, training and retention of that important category of staff.
I want to deal now with four key areas that were highlighted by SAMH and other witnesses, and which they consider require amendment. We agree that there is an urgent need to bring into force a right of appeal against excessive security, and we acknowledge the Government’s proposed action—albeit belated—to introduce regulations on that. However, we see the logic of extending that right of appeal to people in low-secure settings, because there may well be different levels of security within low-secure accommodation. I hope that the Government will reconsider its stance on that.
I welcome the minister’s comment to the committee that the right balance might not have been struck in the provisions on named persons. The bill allows a primary carer or nearest relative to be appointed by default if a named person has not been appointed, whereas the clear policy intention is that an individual should have a named person only if they choose to have one. I hope that that will be rectified at stage 2.
During scrutiny of the Mental Health (Care and Treatment) (Scotland) Bill in 2003, a lot of time was spent on provision of advance statements to encourage the involvement of service users in their mental health treatment. It is disturbing that more than 10 years on from enactment of that legislation, the right to produce such statements is underused and many service users are unaware that they have it. At committee, the Government accepted the need to raise awareness of advance statements, and I support the committee’s recommendation that the minister consider placing on health boards and local authorities a duty to promote advance statements.
With regard to a register of advance statements, privacy and confidentiality are extremely important. I have some sympathy with SAMH’s desire that the Mental Welfare Commission merely hold the information that a statement exists, when it was last updated and where it is kept. However, I also recognise the Government’s position that a central depository would allow speedier access. We need an assurance from the minister that we can strike the right balance between availability and confidentiality.
The right of access to advocacy was raised repeatedly with the committee; there is widespread concern that the bill is silent on it. Although it is provided for in the 2003 act, access to advocacy is still patchy across the country, and where it is available the service is often explicitly targeted at supporting people who are subject to compulsory proceedings, whereas it could be of benefit throughout the system.
We need a proper assessment of advocacy services to establish whether we need to increase provision of and access to independent advocacy, and to ensure that local authorities are delivering on their duty to provide appropriate services. As other committee members have done, I welcome the continuing discussions with the Scottish Government about whether local authority advocacy provision could become part of the Care Inspectorate’s review programme. Beyond that, we also need information on how assessment of advocacy provision in secure settings and hospitals can be ensured.
I want to deal with the concerns of people who have learning disabilities and of people who are on the autism spectrum, who feel strongly that current mental health legislation is inappropriate for them. Steve Robertson of People First Scotland made a powerful plea for learning disability to be defined as an intellectual impairment rather than a mental disorder, and other witnesses asked for a wholesale review of mental health and incapacity legislation because of the increasing knowledge of neurodevelopmental disorders. That clearly is not the intention of the bill, and it is important that an open dialogue is maintained between the Government, the mental health sector and people with learning disabilities and ASD, with a view to developing future legislation to deal with those issues and to meet the needs of the people concerned.
A strong case was also made in the interests of patients and staff for more clarity regarding use of force, covert medication and restraint, bearing in mind the 2003 act’s underlying principles and human rights standards.
Although we will vote for the bill at stage 1, we share the significant concerns that have been expressed by many witnesses and would like to see the Scottish Government give further consideration to a more comprehensive review of mental health legislation in order to ensure compliance with human rights, and to the development of specific legislation to meet the needs of people who have learning difficulties and ASD. We hope for a positive response from the Government to those concerns, as the bill progresses.
We turn to the open debate. We are tight for time, so speeches should be a maximum of six minutes.
15:36
I thank all the witnesses who gave evidence to the convener, Duncan McNeil, me and the Health and Sport Committee, including the Scottish Government, whose engagement with us on the bill has been open and is on-going.
The committee took the proceedings seriously, because we are talking about restricting people’s liberty, often against their will, and the very sensitive matter of mental health and how it affects not just the people who have mental health problems but their families and wider society. We took very seriously the section on informing victims of crime involving a mental health disorder, when we looked at it.
In a more positive frame of mind, in relation to mental health more generally, it should not matter whether a person has mental health problems or not; we all have health that we have to nurture and mental health is part of that. We should all take cognisance of that, because but for the grace of God any one of us could have our liberty restricted because of the need to protect society, and because people with mental health disorders have the right to be treated—sometimes against their will, unfortunately.
The minister and our committee convener outlined the main themes that must be covered; I will pick up on one or two of them. The real issue in relation to the named person is whether someone becomes a named person by default. If a person does not have obvious next of kin to choose, another family member may become the named person. The committee heard powerful evidence from people who never chose to be the named person and who had found out things about their family members that, quite frankly, they never wanted to find out. We have to protect the privacy of the person who is allocated a named person and we have to respect their dignity, and consider how much family members wish to know about loved ones who may suffer mental health disorders. A little bit thought is needed on that. When a named person is not a family member, we have to ensure that they are still a conduit for appropriate communication to the family, to let them know what is happening to their loved one. There is a balance to be struck, so I ask the minister to reflect on that.
We have heard about the appeal against excessive security. I would like more information on why people in a low-secure setting will not be able to appeal. A bit more thought should be given to institutions that have different levels of security—that matter might have to be fleshed out. We have heard about going beyond a low-secure setting to a community disposal order of some description. I have concerns about that. What happens to someone who is subjected to a level of security against which they have no right to appeal? A person might have to wait two years until the next tribunal, so perhaps something should be done on how long people will have to wait for their security level to be reviewed.
A variety of things are important. On advance statements, one of the key messages that we got was that they are good things, and people wanted to know how we are seeking to promote and extend their use. SAMH raised privacy concerns with us in relation to how advance statements would be stored. I am not sure that I have any problem with there being central register of them, but I am aware that SAMH spoke about a central register merely signposting where the advance statements are held. I am not necessarily drawn towards that suggestion, but we should take on board the concerns about privacy that SAMH has drawn to our attention.
Another aspect that came up during evidence and which was mentioned by Duncan McNeil concerns application for a compulsory treatment order and extension of the associated period from five days to 10 working days. Dr Joe Morrow is content with that and believes that it would reduce further the need for multiple hearings, so I am fine with the proposal. I add the caveat that I would like to ensure that that does not mean that the responsible professionals see that as simply being an extended deadline for them to work to, but instead seek to move as expediently and quickly as possible to holding the tribunal on whether there should be a compulsory treatment order. With regard to whether the period of 10 working days would be a blanket approach, I would be interested to know whether professionals currently work to the maximum deadlines. If the five-day period is not currently a blanket and uniform approach, the 10-day period will not be, either. I sound a note of caution about how we proceed.
The error in relation to additional cases for mental health officers turned out to be quite helpful for the committee, because we are now clear about what the additional pressures will be on mental health officers. For reasons of time, I will not read out what those are, but they are much narrower than was first thought. However, that issue gave rise to a positive scoping exercise to map out the pressures and requirements on mental health officers to ensure that local authorities, in partnership with the Scottish Government and the national health service, get that workforce and workload planning right.
You need to close, I am afraid.
I am delighted that the minister appears to be responding to those concerns and I look forward to amending the bill constructively at stage 2.
I am afraid that members cannot go over their time.
15:42
Mental health problems can affect any one of us. They are not constrained by class, education or financial status, yet this is an issue that is often overlooked or misunderstood.
In the most recent Scottish social attitudes survey, 26 per cent of people said that they had experienced a mental health problem at some point in their life, 47 per cent said they would not want others knowing if they ran into difficulties and 17 per cent said that they would not want to talk to anyone about it. From those statistics, it is clear that, in Scotland, there is still stigma attached to mental health issues. If we are to overcome that, we need to ensure that people feel comfortable talking about mental health issues and that they get the help and support that they need.
In 2013 in North Ayrshire—which is part of the area that I represent—13 males committed suicide, compared to three females. Those figures are lower than the figures in some areas but, in my view, one death from suicide is one too many. The figures also highlight the need to tackle stigma and ensure that people are able to talk about their mental health as they would any other health issue, and the need to ensure that that they can get support. It is no surprise that the suicide rate is higher among men, given that they are less likely to open up about their feelings, never mind to admit that they have a mental health issue.
It is vital that we in this Parliament get our legislation right by ensuring that it focuses on the individual and is strongly based on a human-rights-centred approach—an approach that banishes stigma and ensures that those who are experiencing issues feel comfortable about coming forward. With that in mind, although I agree with the general principles of the Mental Health (Scotland) Bill, I have a few reservations about it at this stage, some of which I will raise today.
First, the proposed changes to timescales in relation to the right to appeal and detention could be seen as stripping away the individual’s rights. SAMH has said that the current plan to reduce from 12 weeks to 28 days the time to appeal against transfer to the state hospital is excessive, and that sentiment has been echoed by the Mental Welfare Commission. Although I understand that the reasoning behind the provision is to ensure that patients can access treatment quickly, such a reduction is not acceptable for someone who has a mental health condition.
Moreover, increasing the extension to short-term detention certificates from five to 10 working days was, according to the Mental Welfare Commission, designed to tackle an issue that has since been resolved through administration improvements in the Mental Health Tribunal for Scotland. If that change were made, a person could be detained for six weeks before there was any judicial scrutiny, which is completely unacceptable.
There is also a range of privacy concerns to address—specifically, the provisions on named persons and advance statements. With regard to named persons, if the patient has not appointed a named person, a primary carer or nearest relative is automatically appointed. That might be problematic if the patient does not get on with the appointed named person, because that person will receive substantial information and have the right to participate in hearings. I welcome the minister’s indication that the issue will be revisited, and I look forward to seeing amendments at stage 2.
I think that advance statements are a good idea; indeed, their use and availability should be promoted to ensure that more people are aware of the option, so I ask the minister what the Scottish Government is doing to promote them. That said, I am, like SAMH, concerned about the requirement to share a full advance statement with the Mental Welfare Commission. After all, the statement will include highly personal information about the patient’s mental health, so keeping copies of the full document raises serious privacy concerns. No matter how careful people are, breaches in personal information can occur and mistakes can happen and, given the stigma that already attaches to mental health issues, it would be devastating if advance statements were released in full. With that in mind, I urge the Scottish Government to consider SAMH’s suggestion that the commission’s register simply note that a person has made an advance statement, when it was last updated and where it is kept.
As we have heard, the bill in its current form raises numerous other issues. I sincerely hope that they will be addressed as it progresses through Parliament.
15:48
Although I am no longer a member of the Health and Sport Committee, I have retained an interest in this on-going issue. As Duncan McNeil pointed out, many of us will both professionally and privately know some of the one in four people in Scotland who will experience a mental health problem this year. In fact, given that we are talking about one in four people, I think that it is mathematically impossible for us not to interact with some of those individuals. That is why, in considering this mental health legislation, we must ensure that people with mental health disorders are able to access effective treatment quickly and easily.
When we politicians talk about mental health, we often talk about stigma and the need to make our communities aware of that, to ensure that we talk about the issue and to ensure that, as my colleague Bob Doris has pointed out, people see physical health and mental health in the same way. The fact is that we can be fit mentally as well as physically and, if we do not look at the issue in that way, the stigma that I have mentioned will continue.
What is it like dealing with mental health issues in Scotland in 2015? To my mind, one of the most important issues is the support mechanisms that are available to people. Today, I spoke to Stephen McLellan, the chief executive officer of Paisley-based Recovery Across Mental Health. He told me that many of his clients have difficulty with isolation and loneliness. They lose touch with family and friends and their support mechanism there. RAMH has to come in and try to replace that support. Stephen McLellan calls it social poverty. People end up at home sitting in the house. His exact words were quite brutal, but they explain the situation. He asked how we can get someone mentally healthy if their only contact with the outside world is “The Jeremy Kyle Show” on television, because they have isolated themselves from the world. That is quite a brutal way of putting it, but it is also quite powerful. We have to make sure that we get out to those people to ensure that they have social interaction, which is a basic human need if they are to get better.
RAMH in Paisley has offered that service for 25 years. Its purpose is to make sure that people with mental ill health are able to build independent, fulfilled lives. It says:
“The earlier we can provide the right services to people who need us, the more likely they are to recover quickly. We need to be able to respond to demand, grow and develop our services”.
Much of that is reflected in the bill and in today’s debate. RAMH has set out six ways that it can do that. It talks about providing immediate support in crisis situations; supporting people in their homes with individualised care; providing drop-in centres in their community; providing counselling to young people in their schools, which effectively is about getting over the idea of stigma; supporting carers, families and friends through education; and raising awareness and pointing out misconceptions about mental health. Those are all extremely important ways of dealing with this issue.
As I have said, the overarching aim of the bill is to ensure that people with mental health disorders are able to access effective treatment quickly and easily. It is welcome that the bill will provide an improved legislative system to help treat and care for people with mental health disorders, but it has to remove unnecessary procedures and make existing processes more effective and efficient for health professionals and, more important, for the patients themselves.
I take on board what many of the committee members have already said with regard to the central register of advance statements, which will improve the control that individuals have over how they wish to be treated or not treated should they become unwell and unable to make decisions for themselves. That issue was brought up by my colleague Bob Doris. Advance statements are documents in which mentally ill patients record how they want to be treated in the event of their losing the capacity to make their own decisions. We have to remember that we are talking about the individual and what we can do to enable them effectively to be part of society again.
The minister mentioned the £15 million that will be invested in mental health services over the next three years. That is welcome although, as other members have said, we have to make sure that it gets to the right people in the right places at the right time, so that we reach the individuals who really need support. When the then Minister for Public Health, Michael Matheson, announced the new funding, he said that it was to make sure that we could get there quickly to offer support when it is needed. I have probably gone on about this at length, but I will close by saying that the World Health Organization says:
“Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.”
We need to keep that in mind when we are discussing this issue. We need to remember the individual, who is the one dealing with it on a day-to-day basis.
15:53
Lib Dems welcome the general principles of the bill but believe that it should adopt a patient-centred approach to keep within the Millan principles of minimising interference in people’s liberty and maximising the involvement of service users.
Of course there are some concerns. The Mental Welfare Commission for Scotland and the Scottish Association for Mental Health spoke in their evidence to the committee about administrative efficiency being given more weight than the rights of patients. We agree that red tape should be reduced and we need to keep in mind that the bill must have its focus on patients’ rights.
Professionals have concerns about the increasing role and duties that mental health officers must undertake while running on overstretched resources and reduced workforce numbers. MHOs are vital for patients and the NHS in general. The bill could make their job even more difficult.
I have heard what other members have said about the bill placing additional burdens on mental health officers. The Mental Welfare Commission has confirmed that, from November 2013 to November 2014, there have been only 11 occasions when reports have been required. That hardly seems an excessive burden.
The minister must realise that, according to SAMH, two thirds of local authorities report a shortfall of MHO resources. There are only 57 MHO trainees, which is down from 108 in 2008, and one in three MHOs are aged 55 or older. There are concerns.
The Government has just cut funding for the mental health officer forum’s annual study and the “Mental Health Officer Newsletter”. The forum was identified by the Scottish Association of Social Workers as providing crucial MHO training and development and updates on tribunals. The Government says that the cut is to prioritise resources on implementing the bill over the next two years, but it is doing so at the expense of some of the same people who will be needed to implement the bill.
A concern that was echoed by many experts is the right of appeal of those kept in secure hospitals. The Government has an obligation to introduce regulations for the purposes of the provisions on that. We have not received the regulations. They are essential in creating a fair system of appeals for patients because, as the Government’s policy memorandum says,
“there is at present ... no provision for an appeal against levels of excessive security for patients other than patients detained within the state hospital”.
SAMH supports the point that appeals should include high, medium and low-secure hospitals, and appeals against low-secure accommodation are not necessarily appeals against detention or a move into the community. We support the principle of applying the least restrictive alternative measures to the care of the users.
The Government should perhaps reconsider its position on the reduction in the time for appeal against hospital transfer to a third of the original time—down from 12 weeks to 28 days—the extension of nurse holding powers by an extra hour, and the impact those two measures would have on the overall safeguarding of patients’ rights and treatment with respect and care. The RCN stated that there is no evidence to support such provision and that
“Our duty is to protect their human rights, not to make things easier for our workload.”—[Official Report, Health and Sport Committee, 7 October 2014; c 16.]
SAMH is concerned that the reduction in appeal time
“appears to be a substantial reduction in rights without proper justification”.
There are serious concerns not just from members of the Opposition parties but from people who are involved in the area day to day.
The Royal College of Psychiatrists and SAMH have concerns about the broad scope of access to patient information. Advance statements are critical in engaging the rights and wishes of the patients and must truly reflect patients’ rights. It is crucial that the use of advance statements is increased but, as experts such as SAMH have pointed out, the scope of people who have access to such personal information must be tightened.
The Lib Dems support the direction of the bill, at least at stage 1. It is a step towards better treatment in the new mental health strategy, but we must also keep in mind the wider reasons why progress must be made: the protection of patients’ rights.
As the bill progresses, I look to ministers for assurances on the concerns that I have raised, as well as on the provisions for wider education, training in awareness of patients’ rights, independent advocacy, and building structures for monitoring compliance. The Lib Dems will support the bill at this stage but will look for assurances as the bill goes through stages 2 and 3.
15:59
I welcome the opportunity to participate in this stage 1 debate on the Mental Health (Scotland) Bill, although I am not a member of the Health and Sport Committee.
As the minister indicated, the aim of the bill is to ensure that people with a mental health disorder are able to access effective treatment quickly and easily. He also stated in his opening remarks that the bill does not deal with all aspects of mental health.
As Duncan McNeil indicated in his opening remarks, one in four people experiences a mental health problem in any given year. That gives us an indication of the importance of effective treatment.
The bill follows on from the 2003 act, of course, and from the McManus review. The very nature of mental health problems and their complexity create extremely difficult circumstances for patients and families, especially if the person is detained due to a compulsory treatment order. It is therefore right and proper that, before such orders are made or extended, adequate time is made available for representations and advice to be obtained.
Accordingly, the provision to increase from five to 10 working days the time by which a period of detention is automatically extended beyond the date at which short-term detention certificates would otherwise expire seems to be a sensible proposal. I hope that the risk of a longer period of pre-detention is more of a theoretical than practical issue and that Joe Morrow’s comments can be accepted.
As a member of the Faculty of Advocates, I am happy to endorse the views of my namesake Kenneth Campbell QC, who is no relation, on the question of a blanket extension and his comments on the aim of involving the tribunal in procedure to ensure as far as possible that patients’ convention rights are properly addressed. I note that, although the Law Society of Scotland was not in favour of a blanket ban, that was largely on the basis that it did not see any particular benefit to it.
I understand and agree with the committee’s view on the need for clarity on the issue of how deducting the proposed extension of time impacts on the continuous period of detention.
On orders regarding levels of security, the fundamental Millan principle of least restriction ought to be a key feature of any mental health strategy, and it is clear that there need to be appropriate opportunities to appeal against orders that detain people in conditions of excessive security. Nevertheless, I agree with the minister’s comments on low-security settings and note the committee’s comments on that aspect.
On the time for appeal against transfers from one hospital to another or to the state hospital, the reduction in the appeal period from 12 weeks to 28 days is clearly substantial. I understand the difficulties that such a long period causes at the present time, as indicated in the policy memorandum, and I believe that getting an appropriate timescale for an appeal is not an easy task. I note that many stakeholders think that the change is too radical. It probably merits further consideration and certainly justification in respect of the extent of the reduction. However, I certainly agree with the view of others that any transfer that takes place should not impact on or prejudice a right to remain in the original hospital.
The importance of named persons must not be underestimated. The right of people in such vulnerable circumstances to choose someone to fulfil that role is fundamental, but that should be subject to an opt-out provision, as the Scottish Government already recognises. The question is how to make those opt-out provisions effective. Accordingly, I welcome the commitment to look further at those proposals.
I agree with the committee that the right to nominate a named person should be restricted to people over 16. People who are under 16 remain a particularly vulnerable section of the population and they certainly require protection, although I accept that there may well be many who are under 16 with the maturity to make that choice. I also accept that there are other areas of Scots law in which people who are under 16 can enter into certain arrangements on the basis of an acceptance of their maturity and understanding of the situation. Obviously, there are arguments about that.
Dr Jill Stavert of Edinburgh Napier University said that advance statements are
“an important form of supported decision making”.—[Official Report, Health and Sport Committee, 18 November 2014; c 31.]
It appears that they are currently not used to quite the level that was originally expected and that there is a requirement for further increased awareness and training on their use. The committee seeks to promote them by considering placing a statutory duty on health boards and local authorities to do so. There is, of course, a difference between encouragement and requirement. I would certainly favour a lighter touch.
On the care for children under the age of one, the right of a mother who is a patient to care for her child provided that she does not endanger it allows an essential level of normality for her and the child at a very important stage of development. To remove that maternal right would create an intolerable level of stress for a mother who is already suffering from a mental health problem. Therefore, I welcome the proposal to extend that right from the current provision, whereby it applies only to mothers who are suffering from post-natal depression, to other conditions.
I looked briefly at the provisions on cross-border transfers and absconding patients; I think that it is quite a complex area. All that I would say is that patients’ rights should be a priority in that context.
We have recently extended the victim notification provisions in relation to offenders who are to leave prison, and a victim notification scheme for victims of mentally disordered offenders certainly seems appropriate. It is right that victims be fully recognised but, as is the case with other offenders, the notification provisions ought to apply to the more serious situations. I am also slightly concerned about the definition of the “exceptional circumstances” that would justify notification applying to compulsion and restriction orders. Clarification of that would be helpful.
As regards independent advocacy, there is concern in many parts of Scotland about the operation of the existing provisions. I believe that requiring the Care Inspectorate to assess the existing provision by local authorities would be a sensible first step.
You must close, please.
Any strategy must be rights based and, as the Mental Welfare Commission has suggested, must have a strong focus on prevention. As with physical health, prevention is certainly better than cure.
16:06
As Richard Simpson indicated, I will concentrate on the named person provisions. I welcome the minister’s statement that he is keen to strike the right balance, but we do not have any detail on what he is considering. I hope that the comments that I make will be taken into account as he reassesses the bill.
As many members have said, a patient can appoint a named person to act on their behalf. If they do not have the capacity to do that and have not previously done so, their next of kin takes on that role. That person becomes the patient’s advocate, who will represent them at hearings. They will have a duty of care for the patient and they will even take decisions about their treatment. They will have full access to the patient’s records to allow them to carry out that role.
The Health and Sport Committee heard of huge swathes of paperwork dropping on people’s doormats, which they are supposed to read, understand and act on in the patient’s best interests. The job is extremely difficult. Sometimes, the arrival of that paperwork is the first indication that people receive that they have been given that role.
Some patients would prefer not to have a named person, because there is no one whom they would trust with such extremely personal information. The bill will allow them to declare that they do not wish to have a named person. That is a step in the right direction but, if someone has not nominated a named person and has not indicated that they do not wish to have a named person, the position will revert to the one that was previously in place, whereby their next of kin will automatically take on the role.
We heard evidence from patients and carers organisations that that should not be the case. When a person has not nominated a named person, one should not be appointed on their behalf. That is because it is reasonably common for the trigger for someone's mental ill health to be something that happened as a result of close family problems. For example, if someone was abused by a parent, that same parent could have access to all the discussions about that abuse in the person’s case notes. If they were abused by another family member, their next of kin might learn of that for the first time when the state appointed them as a named person. That cannot be right; it destroys family relationships and breaches a patient’s confidentiality. It also means that a patient might not disclose information to professionals for fear that it will be divulged to family members in the future.
Carers also stated that they should be allowed to say whether they are willing to be a named person. The next of kin has that role foisted on them by the state, but they might not be able or prepared to take it on. They might live a long distance away or might have fallen totally out of contact with the patient. It might simply be that they are not fit or do not have the ability to carry out such a complex role.
Some people are keen not to be the default named person, and they want to be able to decline appointment as a named person by the patient. They need to be able to say whether they are willing to take on the role. I believe that there should be no default position and that someone who is nominated to be the named person should have the ability to decline the role.
That brings us to the question of who can speak for the patient if they cannot speak for themselves. The patient needs access to advocacy and needs to have an advocate appointed to look after their interests.
Carers also have a role; they should be heard at a tribunal and have their input listened to by medical staff. They can also give an insight into a patient’s health, wishes and the like. However, carers should not have any access to a patient’s records, because that would be an abuse of privacy.
Carers have told me previously that they have received very little information and support from clinicians. Their loved one often comes home with no information about the best way to support them. Suicide risk is at its highest when someone is discharged from hospital. Carers need to know what they should be doing to support their loved ones and to ensure their wellbeing. If someone is discharged with a physical illness, it is normal for them to come home with a sheaf of leaflets that tell them what to do and what not to do, and that same information is available to carers. Surely we should have the same standard for people who are suffering from mental health issues.
Advance statements are a good thing, but they are too complex and should perhaps have more information about the patient when they are well—their tastes and what they like—to help with their recovery.
We should support the bill at stage 1 and improve it at stage 2. We need to ensure that care and treatment are patient centred and that we do all that we can to promote autonomy at a difficult time in patients’ lives. If we do that, we will promote recovery.
16:11
I state first and foremost that I am not on the Health and Sport Committee. I have a particular interest in mental health issues. Even though the bill is fairly small—it is an amending bill to the 2003 act—there is a lot in it. Different members this afternoon with far more knowledge than I have of the bill have spoken about many of its aspects.
I took the time to read the committee’s report on the bill, which I found extremely useful. There was a lot of food for thought in there. I understand that the committee found the public response to the proposals generally positive. Although overall
“the Committee supports the general principles of the Bill and recommends to the Parliament that they be agreed to”,
it noted that the bill could be strengthened and/or amended in relation to
“protecting the rights of patients”
while ensuring that they can access effective treatment quickly and easily.
It has been really interesting to hear everything that has been said. To be honest, I do not remember who made the point that, although some of the emphasis in the bill is on having more effective treatment more quickly and more easily, the emphasis might be more towards the service provider than the patient. If there is even a perception that that is the case, perhaps those sections should be looked at again, because central to everything that we are doing should be the patients and how we can make things better for them.
Yesterday, along with my Labour colleague John Pentland, I attended the spring members meeting of Lanarkshire Links in Strathclyde park. Lanarkshire Links is a very active service user and carer organisation with an involvement in mental health. We had representatives from the health board and from both Lanarkshire councils, as well as from the Mental Welfare Commission for Scotland.
The meeting was primarily to talk about health and social care integration, which is starting as a shadow exercise very soon and moving further next year. One thing that came out strongly at the meeting was that people feel that there is a great deal of difference between consultation and participation. Although it could be said that people were consulted, they often felt as though they had not been able to participate.
One thing that is particular to mental health issues is the right and the need for people who are affected and who are using services to be able to participate in the formation of those services. Although there were a great many consultees, I would like an assurance from the minister that there was real participation in considering how we move forward.
From the committee report, from speaking to people and from what colleagues who have more knowledge than I do of the bill have said today, it has come through strongly to me that the right of access to advocacy is not as strong as it could be. The system certainly has not met the intention of the 2003 act. The bill is an opportunity to make the process much more effective, and I would like to think that we will take that opportunity. Advocacy is an issue generally, and it covers issues that are way beyond the bill’s scope but, in relation to people’s treatment and the named person issues that arise from the bill, independent and trustworthy advocacy is extremely important. Assurances on that would be useful.
I do not have much time to go into my next point, but I was struck by the section in the committee’s report that starts at paragraph 213 on page 31 about a review of legislation for those with learning disabilities and autistic spectrum disorders. It is time to look at that issue much more closely and in much more depth. I certainly do not have sufficient background knowledge and I have not been able to do enough learning of late to have definitive opinions on the issue, but the concerns that have been expressed in the committee and the acknowledgement that the minister gave to the committee about the need for on-going dialogue suggest that we have to take the issue seriously.
I note that the committee noted that no equality impact assessment was done to accompany the bill. Like the committee, I would appreciate clarification from the Government as to why that was not produced.
16:17
I am pleased to speak on the bill, which is for the most part a series of amendments to the Mental Health (Care and Treatment) (Scotland) Act 2003, which was passed exactly 12 years ago to the month, at the very end of the first four-year session of the Scottish Parliament. It was certainly the longest bill of that session and it is generally recognised as being one of the most significant and groundbreaking. It set up the then new Mental Health Tribunal, strengthened the Mental Welfare Commission, created a new community treatment order, established the right to independent advocacy and introduced measures on named persons, advance statements and a great deal more.
Crucially, the 2003 act had novel provisions to ensure the protection of mentally ill people. Everything was governed by a set of principles, including the principle of
“the least restrictive manner and environment compatible with the delivery of safe and effective care”.
That leads me to my first point, which is about sections 11 and 12 of the bill, which are to do with appeals against the level of security. The 2003 act is the only act of this Parliament that I can think of that has ended up in the Supreme Court, although there may be another example. If there is somebody whom we need to blame for that—although I do not think that “blame” is the right word—it is the two Governments that did not implement the regulations that Mary Scanlon demanded in an amendment in March 2003, which said that regulations on the issue had to be laid by 2006. However, those regulations were never laid by my Government or by the Government that took over in 2007.
Does Malcolm Chisholm accept that the 2003 act does not reflect reality now, so it was not possible to introduce the regulations, which is why we need to make the change to the 2003 act that is proposed in the bill?
I do not agree with that. The fact is that the court judgment is interesting.
Another interesting thing about the court judgment is that the person who brought the case was under low security, but the bill says that people can appeal only if they are under medium security. The Law Society of Scotland says that that is “restrictive and discriminatory”, and SAMH and many other organisations agree. It is clear in the 2003 act that that is a right for patients who are detained in hospitals other than the state hospital. There is also a right for people who are in the state hospital. There is no mention of medium-secure facilities, and intention is important. I also note that one of the conclusions in the Mental Welfare Commission’s response to the bill consultation was that people in low-secure settings should also have the right to appeal. I hope that the Government will amend the provision on that at stage 2 or 3. I also hope that the Government will, crucially, tell us when regulations will be introduced because we do not want to wait the 10 years that we waited for the regulations from the previous act.
The concerns about changes to timescale have been referred to by many members, so I will not spend much time on those except to say that all four of them are well described in the Mental Welfare Commission’s briefing for the debate. Ministers and MSPs should always pay very close attention to the Mental Welfare Commission for Scotland. It is concerned about all the changes to timescales that have been mentioned: the appeal against an order to transfer to the state hospital, which is being reduced from 12 weeks to 28 days; an extension of short-term detention pending the determination of a CTO application, which is going up from five days to 10; the current power of nurses to detain, which is going up from two hours to three hours against the wishes of the RCN and other nurses; and the extension from 14 days to 28 days in hospital for a mental health assessment in criminal cases. The MWC is concerned about all those and the Government should pay heed.
The Government should also always pay heed to SAMH, which has raised concerns about timescales, the level of security and the named person. The McManus review recommended that the default named person should be abolished, so let us abolish it.
SAMH is also concerned about the MWC holding advance statements that contain great detail about individuals’ circumstances. SAMH believes that that is breach of privacy and we should follow that advice. Everyone is saying that we should do more to promote advance statements so I support placing a duty on local authorities and the NHS to do that.
We have not heard too much about the victim notification scheme. It is better now than it was in the consultation document, but it would be helpful to have a clear statement on minor offences that are committed by individuals who have a mental disorder not being included in the victim notification. In other words, there are levels of offence that would not be in the notification scheme if the offender has a mental disorder. There needs to be equality between the levels of offence that we are talking about. People are concerned about section 48, under which the Government could introduce regulations to include people who are on a compulsion order. That is still a concern for many people.
I have one minute left to talk about what has been omitted from the bill. We need more on the local authority obligation in sections 25 and 27, but most of all the McManus report highlighted a number of issues around access to independent advocacy, including the appropriate level of provision, adherence to the Scottish Independent Advocacy Alliance good practice guidance, collective advocacy and advocacy for carers. There is nothing whatsoever in the bill on those issues. Section 259 of the 2003 act gave every person with a mental disability the right to access independent advocacy. Many areas apply that right only to people who are subject to compulsory measures, which is a misreading of the 2003 act. We must strengthen the duty of the NHS and local authorities to ensure the availability of independent advocacy.
16:23
I am not a member of the Health and Sport Committee but I have been following the bill closely. As other members have said, we just have to look at our constituents or families; we all know someone who suffers from mental ill health. If there is anything that we can do to improve their lives and that of their carers and others, it is incumbent on Parliament to do so. That is why I say that this is a very important bill.
The bill seeks to improve the Mental Health (Care and Treatment) (Scotland) Act 2003 and to implement the recommendations of the McManus review, which was set up in 2008. I note that Malcolm Chisholm picked up on that point; I will come back to it later. The bill will improve the operation and efficiency of the existing legislation, both for users and for practitioners.
Mental illness is one of the greatest challenges that we face in Scotland; indeed, depression is the leading chronic condition in Europe, and 400 million people suffer from it globally. Women are more likely to be affected than men. I thank Scottish Governments present and past for recognising the real challenges that the illness presents to sufferers and to the agencies that work with them. I am sure that members share those sentiments.
Many members have mentioned issues in their constituencies, including instances of suicide and of mental suffering. The bill will be a very important piece of legislation.
Duncan McNeil mentioned mental health officers. Concerns about the number and retention of officers in Glasgow have been mentioned before. I understand that there will be some crossover with the Adults with Incapacity (Scotland) Act 2000, which might cause difficulties. There is also some crossover with the Mental Health (Care and Treatment) (Scotland) Act 2003, as was mentioned by Malcolm Chisholm. The minister will be aware that there is provision under both the Adults with Incapacity (Scotland) Act 2000 and the Mental Health (Care and Treatment) (Scotland) Act 2003 for the appointment of mental health officers in cases of guardianship. Under those provisions, an application may be made, by those who are responsible for mental health or adult protection, to a local authority social work department for the appointment of a mental health officer.
Constituents have recently raised with me concerns that the process is leading to delay in the appointment of mental health officers. Given that the overarching aim of the Mental Health (Scotland) Bill is to ensure that people with mental health disorders are able to access effective treatment quickly and easily, I wonder whether the minister could in summing up say whether that will be addressed under the eventual legislation or falls outwith the bill’s remit. That relates to Malcolm Chisholm’s point about whether the 2003 act is being delivered appropriately. Individual MSPs, in particular members of the Health and Sport Committee, might wish to consider that. I would be grateful if we could consider and get clarification on whether there is a crossover between the 2003 act and the Adults with Incapacity (Scotland) Act 2000.
I welcome the minister’s recognition of the difficulties that local authorities have regarding mental health officers and his assurances that the bill will not result in an increase in the number of reports that they will be required to produce.
I look forward to the bill making progress through Parliament, and I look forward to continuing to take part in the scrutiny of various aspects of the bill.
16:28
I start by applauding the work of our front-line medical services in this area. They do a fantastic job with patients, who can present with some of the most complex needs in the NHS. Equally important are the community organisations that improve people’s mental health with support services, social inclusion projects and other preventative actions, often under testing circumstances and with limited resources. Thanks to the hard work of campaigners, more people now feel able to talk about mental health but, as colleagues have said, there is still a long way to go to bring mental ill health in line with physical ill health.
As we know, a staggering one in four adults will be affected by some form of mental ill health in their lifetime, which is similar to the number of people affected by cardiovascular complaints.
The majority of people suffering from mental ill health do not require hospital treatment. General practitioners and other mental health professionals are often people’s main contact with formal help, and they sometimes provide the only place where people feel they can open up, for fear of letting down family members or not wanting to worry loved ones—or perhaps just feeling afraid or ashamed. It is important to ensure that GPs have the support that they need.
There is a need to adopt and find more creative and innovative approaches to mental health care. For example, engagement in the arts is extremely beneficial to service users. It reduces medication consumption and hospital visits. Arts engagement not only helps patients but has been found to improve wellbeing among staff and to increase staff retention.
GPs are now prescribing exercise as an alternative or complementary treatment to medicine. A high-quality built environment and access to quality green space are well known to increase people’s wellbeing and improve their mental health. Education about mental health and happiness, and how they contribute to general wellbeing, is also important, especially for young people.
People in poverty, and individuals and communities who may feel marginalised, for example refugees and asylum seekers, have disproportionately higher levels of mental illness in Scotland. That health inequality needs to be acknowledged and confronted.
Hospital treatment is still needed for the most vulnerable patients. We know that the target waiting time for those with mental health issues is 18 weeks, although 4 per cent wait more than 35 weeks for treatment. Differences in targets for different illnesses and conditions should be based on sound medical reasons, and mental ill health should be treated on a par with physical ill health—the minister has pointed out that that is what the legislation requires.
I broadly welcome the new Mental Health (Scotland) Bill and the improvements that it will make to the treatment of those suffering from mental ill health. The Mental Health (Care and Treatment) (Scotland) Act 2003 was considered to be comprehensive and to provide better safeguards for patients in comparison to other parts of the United Kingdom.
In its briefing, SAMH indicates that appointing a patient’s nearest relative as a named person may, in some cases, be inappropriate. I am pleased that the minister has promised to revisit that.
The briefing from the Royal College of Psychiatrists highlights the lack of secure facilities for women and young people in Scotland. The problem is so severe that it results in young people being admitted to Carstairs state hospital. The solution that is suggested by the RCP would be to designate part of one of the secure schools—this is for young people—so that it has in-patient status, preventing young people from being admitted to Carstairs.
Currently, female patients who require high-security treatment are being transferred to Rampton hospital in the east midlands. That could greatly hamper a patient’s recovery, as they are far removed from friends and family and from an environment and community that they know. They are also being treated outwith the jurisdiction of the Mental Health (Care and Treatment) (Scotland) Act 2003.
Concern has also been raised regarding the length of time it may take to transfer potentially acutely unwell prisoners to a psychiatric hospital for treatment.
Finally, Inclusion Scotland has highlighted the concern that people with learning difficulties and/or autistic spectrum disorders could be subject to a compulsory treatment order, whether they are suffering from mental ill health or not. It is vital that we get the balance right. Inclusion Scotland suggests that an alternative system is needed.
I broadly welcome the bill, but I encourage the minister to listen to the concerns and constructive suggestions from those with great experience.
We know that mental illness and physical illness are interlinked. People with depression suffer from tiredness and lethargy and an unwillingness to eat and their immune systems can be more susceptible to other conditions. Mental health issues complicate health issues associated with old age, such as cardiovascular disease. Many eating disorders, which are certainly physically debilitating in many cases, have roots in mental ill health. That is why mental health needs to be treated with the same care as physical health.
We move to closing speeches.
16:33
I commend the Health and Sport Committee for its scrutiny of the bill under the very able leadership of Duncan McNeil. Having listened to all the speeches today, I have to say that we may have leading mental health legislation in Scotland, but I am not convinced that we have leading mental health implementation. That is the issue that we are considering today.
Unfortunately, I cannot commend the Scottish Government for listening to and taking on board the recommendations of the Health and Sport Committee, given that we are still waiting for the response to our report. With no response after six weeks, today’s stage 1 debate can look at only one side of the coin. That is unfortunate.
I seek your guidance, Presiding Officer, because normally at the end of the stage 1 debate, we go off, go through our speeches and hand in our amendments. I do not know when we should hand in our amendments because this is quite an unusual situation.
I will start with advocacy. In 2003, we spent quite a bit of time on advocacy, considering the right of access to advocacy and the right to independent advocacy. Again, we have a right to something, but if it does not happen, who do we go to? Nobody knows. That is my point about implementation—there is no sense in someone having a right unless there is something that they can do if it does not happen.
In considering the bill that became the 2003 act, I and many other members raised the issue of workforce planning. At that time, there was a need for more psychiatrists, psychologists, psychiatric nurses, social workers, care workers, mental health officers and so on, and today we face exactly the same problem. We have a workforce that is not sufficient to deal with existing demands, let alone with the new demands that the bill places on it, as the committee points out at paragraph 73 of its report.
It is difficult when the Government’s own financial memorandum states that between 20 and 40 hearing reports will be required in a year, COSLA comes up with a figure of 563, and then the minister comes to committee with an apology and a figure of 15. We have gone from 30 to 563 to 15, which is quite a variation.
Will the member give way?
Not at the moment.
That experience alone justifies the need to be clear and unambiguous with the calculations for additional work, because that is the basis on which appropriate staff can and should be recruited, trained and retained for the future.
I recognise entirely that we must be clear in our calculations. I was very frank when I went to the committee. We made a mistake, and I flagged it up. As I pointed out earlier when I intervened on Jim Hume, the Mental Welfare Commission has said that the additional responsibility would have resulted in about 11 reports during 2013-14.
Yes, but my point is that the policy memorandum in 2003 under a Labour-Liberal Democrat Administration stated that there were 29 vacancies for psychiatrists and that an additional 28 psychiatrists were needed in order to implement the 2003 act. Where is the assessment of the exact need for staff that will result from this bill, let alone a plan for addressing the current staff shortages?
Other members have mentioned the principle of the least restrictive alternative, which was a core principle of the 2003 act, as Malcolm Chisholm, who was the relevant minister at that time, and Richard Simpson both know. My understanding, during the passage of that bill, was that the principle applied to all restrictions on patients with mental health issues, not just those who were being held under excessive security.
We discussed the state hospital at Carstairs, and I lodged an amendment that secured action in that regard, but the state hospital had 29 blocked beds at the time, and there was a huge need for more medium-secure units. I succeeded in gaining the support of all parties in the Parliament for my amendment on providing more medium-secure units.
I wanted to ensure that mental health patients in a high-security setting could be discharged and placed under a level of security that was appropriate to their needs, on the understanding that a patient can endure excessive security in the state hospital, in a medium-secure unit, in a low-secure unit or in any psychiatric unit at each and every level. Again, the Government has not helped matters by failing to bring forward any definition of a qualifying patient and a qualifying hospital, which has resulted in only patients who are detained in the state hospital having the right to appeal. Malcolm Chisholm mentioned the Supreme Court case in 2012. The Scottish Government must come forward with a proper definition to allow fairness and rights of appeal for all mental health patients, whatever the level of excessive security under which they are being held.
Duncan McNeil mentioned the section of the bill that relates to nurse holding powers. Like Linda Fabiani, I read the Health and Sport Committee’s report, which highlights the comment from the Royal College of Nursing in evidence that
“We do not even know where the proposal came from; it certainly did not come from nursing.”—[Official Report, Health and Sport Committee, 7 October 2014; c 17.]
Nurses will be getting more holding powers, but the RCN does not even know where that proposal came from.
On time for appeal, referral or disposal, the committee asked the Government for a clear justification that the proposals might benefit the patient. It is bad enough that the Government does not listen to nurses—I had hoped that it might just listen to patients, but it obviously does not.
Dr Simpson and many other members mentioned advance statements, which we spent a lot of time discussing in 2003. Rather than looking at who holds advance statements or what should be in them, why does the Government not just ask whether patients have confidence that statements will be adhered to and whether they think that it is worth while writing an advance statement, or whether they think that it will just be overturned at the first whim? The patients I have talked to do not have confidence in advance statements.
The committee is waiting for the Government to respond to its suggestion that both mothers and fathers be allowed to look after young children in hospital when the mother is being treated for post-natal depression. I pay tribute to a Labour member who is not here today, Bill Butler, because it was he who secured provisions for mothers and babies to be held in hospital together when the mother is being treated for post-natal depression. I hope that the Government will go that step further.
There is still no response on the use of force, restraint or covert medication. I commend Hunter Watson on his campaign against covert medication, which is reasonably based on experience in his own family.
The Conservatives support the general principles of the bill. I am sorry that we did not get the Government’s response today, but we recognise that there is much more work to do.
Thank you for raising those points. I draw to the chamber’s attention that, under rule 9.7.5, a bill may be amended at stage 2 and notice of amendment may be given by any member after the completion of stage 1, if the bill completes stage 1 today. Also, the Government is not obliged to respond to the stage 1 report before the stage 1 debate, but it must respond within two months. I hope that that is helpful.
16:41
Thank you for your clarification, Presiding Officer. I still think that the rules need to be examined. However, I want to deal with things in reverse order and take up the issue of homicides, which is not in the bill. I have been in discussions with a number of parties, since the committee heard evidence from John Crichton and others, about possible amendments covering the investigation and reporting of homicides and serious assaults perpetrated by people suffering from a mental disorder. I appreciate that the UK confidential inquiry into homicides and suicides is of some help and is relevant, but the intention of the amendments that I will lodge—at least for discussion—is to put in primary legislation clarity, consistency and accountability in relation to homicides and serious assaults, including attempted murder, involving someone with a mental illness who is already known to the services.
At present, the system is highly fragmented. Currently, out of 137 homicides committed by those with mental illness in the past 10 years, only two have been subject to a published report by the Mental Welfare Commission. Based on a freedom of information inquiry by Julian Hendy of the hundred families campaign, few of those incidents appear to have been subject to adverse incident reviews by boards. That should be compared to England where, out of 576 homicides, there have been 321 reviews, and it is suggested that as many as 25 or even 35 per cent of homicides might have been prevented by different actions. We need to address that area in the bill, and I will return to it.
The debate has been helpful and useful. We are all agreed that the bill is relatively modest, but the issues are becoming clearer. As Bob Doris said, the committee has received a broad spectrum of evidence, for which we are grateful. As he also said, the committee was acutely aware of the need to minimise detention or restriction; that is important. As Jim Hume and George Adam reminded us, safeguarding the Millan principles is at the core of Parliament’s wishes. As Linda Fabiani said, we need to see people in a holistic way. She also emphasised that even giving the impression of sacrificing human rights on the altar of administrative efficiency or the convenience of the provider might be damaging, and that was an important point.
Malcolm Chisholm, who was the minister in 2003, was clear on the concerns about increased detention and the reduction in some times for appeals. All reductions in rights must be considered extremely carefully. The issue that Inclusion Scotland mentioned, and to which Alison Johnstone referred, around learning disability and autism needs to be examined in the context of a review by an expert group, which I hope the minister will announce within a relatively short period of time. There are concerns out there about that area, particularly in relation to learning disability and autism but also in relation to detention of people with other conditions. Is the 2003 act up to date in terms of our thinking now? I do not think that anyone argues with the principles of the 1999 Millan report, which are still relevant today, but there are concerns that some of the issues are still not being addressed.
Alison Johnstone mentioned asylum seekers, refugees and young people, and I think that that is an important area. A number of members including Nanette Milne mentioned sections 25 to 31 of the 2003 act, on local authority functions, and the need to revisit that area. We need more rigorous inspection by the Care Inspectorate and Healthcare Improvement Scotland to ensure that the issues in those sections are being properly covered.
An area that we have debated in considerable detail today is the extension of the number of days for a tribunal hearing. I still feel that the blanket extension has to be properly justified, as it has not yet been justified. We need to consider that carefully. If the extension is in the interests of patients, we must give patients rights in relation to it rather than making it a blanket extension. We might risk creating problems in relation to the ECHR if a seven-week deadline was to become general and not the exception.
Does the member take on board the point that I made in my speech that there is already an extension protocol and that, if it is not used in a blanket way, extending it by a further five working days would not lead to blanket use? We should get more data on where it is currently used in order to get more information on that.
That is a helpful and valuable point, and I welcome Bob Doris’s intervention.
A number of members spoke about mental health officers and the problems of that workforce, which are a concern. The fact that 52 per cent of patients do not have social circumstances reports when short-term detention certificates are being made is a problem, and the Mental Welfare Commission expressed concern about that.
I accept the Government’s frank admission that the original bits under sections 2 and 41 were not clear, but nevertheless we need to address workforce planning. There are concerns about the fall in the number of people who are undergoing training.
Mary Scanlon made the point about the nurse’s holding power well and I do not need to add to it. I think that those provisions need to be stopped. I do not think that we need them, and I think they should be dropped from the bill.
A number of members mentioned appeals against transfer. Again, I do not think that we have had clear justification for the provisions on that. Margaret McDougall emphasised that we need to be sure that they will not be damaging to patients’ rights. We will need to examine that closely at stage 2, and I look forward to greater justification from the Government of its decision.
Named persons were discussed extensively by Rhoda Grant, Bob Doris and Margaret McDougall among others. Rhoda Grant reminded us of the complex duties that people take on. Often, they are surprised to find out exactly what will be involved. The question of a default person being appointed really needs to be looked at again. At the very least, the person should be able to decline, but if they do that, it will affect their relationship with their relative, so we should look at default very carefully. Rhoda Grant also suggested that the role of carers needs to be clarified, and I agree.
We looked briefly at advance statements. Nanette Milne talked about that, as did Margaret McDougall, Jim Hume and Bob Doris. The issues are clear. How can we get good signposting to a secure register and ensure that individuals have confidence that it will be secure? How do we ensure that it will be implemented and that, if there is a failure of implementation, there is clear reporting to the Mental Welfare Commission? How can it do more to support advance statements being effective? We debated that area in 2003 and we regarded it as being of considerable importance in protecting people’s rights and wishes, so we need to look at it closely.
Appeals against detention in various levels of security were discussed at length. Do I have another 20 seconds, Presiding Officer?
Yes.
We need to look at the low-secure units as well as the medium-secure ones. We need to get that right, and we need to look at allowing transfer back and appeals against that. We also need to look at low-secure units in various settings.
I finish with a comment on advocacy, which Linda Fabiani mentioned. The current right is not extended to everyone. The time has come for a right to advocacy to be available to anyone with a mental illness problem, and that should be enshrined in the bill.
16:49
I am grateful to members across the chamber for their contributions to what has been, as Richard Simpson said—and I agree—a very useful debate. It is encouraging to hear the passion and commitment from so many members who want to ensure that our mental health legislation works as well as possible for service users and those who support them and provide care in the system.
I will reflect on some of the issues raised. I am afraid that it will be only some, as the debate has been wide ranging. However, I will endeavour to ensure that the issues to which I do not respond are picked up in the Scottish Government’s response to the Health and Sport Committee’s report.
Having said that, I very much recognise the perspective of many that it would have been better for the Scottish Government to have responded in advance of the debate. The Presiding Officer set out the standing orders on such matters and I observe that Parliament’s standing orders are not my sole responsibility; they are our collective responsibility. I will endeavour to get that response finalised as quickly as possible, and it will include issues that have been raised in the debate. As I go forward in my ministerial role, I will take on board the perspective that has been expressed in dealing with future legislation.
Duncan McNeil raised the issue of monitoring the increase from five to 10 days in the extension period for short-term detention certificates, until an application is determined. We are working closely with the tribunal to get further information and discuss that. Any changes under the bill will be accompanied by revised guidance, and the code of practice will reflect the Government’s policy that the process should be in line with the principle of least restriction and should operate in the service user’s interests.
Dr Simpson offered suggestions about how he might seek to amend the bill at stage 2. Should he wish to do so, I would be happy to meet him to discuss that and any other area. I will happily consider what he suggests.
The Government is developing regulations on appeals against excessive security and is committed to providing the committee with draft regulations during the passage of the bill, so that it can adequately assess the proposals. We want to provide a right of appeal for patients in medium-secure settings. Addressing that would fully deliver the Millan committee’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.”
I appreciate that some stakeholders have concerns about the area more generally, and it is important that we get the balance right on what is a complex matter. I will be happy to engage with stakeholders and members on that.
Bob Doris suggested that we look at the amount of time that a person might have to wait for a tribunal hearing as a way of dealing with matters. I appreciate that innovative suggestion, which we would be happy to look at.
Members should be assured that we are looking carefully at the matter, because we have to. Jim Hume and others made the point that there has been a Supreme Court ruling and that we must put in place provisions for appeals—it is a necessity that we do so. However, I observe that the Supreme Court was not specific about what the provisions should be. Malcolm Chisholm and others made the point that the patient who brought forward the challenge was held in a low-security setting, but the Supreme Court did not base the judgment on the appellant’s level of secure accommodation. We must get arrangements in place and I will be happy to look at members’ suggestions.
Does the minister agree that, even though a patient can be held in the state hospital under a low level of security, that can still be considered excessive?
We need to consider the issue carefully, because we need to determine who considers the level to be excessive—the patient or an outside person. I make the general point that we are looking carefully at the issue and, should members care to make suggestions, as Bob Doris has done, we will consider them carefully.
I emphasise that the nurse’s holding power provision is not about administrative efficiency or making things easier; it is about providing clarity for service users about the maximum time for which they can be held and the purpose of their detention. I am not particularly clear that the power is new, as has been suggested. Under the bill, as under existing legislation, no patient can be held for any longer than three hours.
I am not convinced that it is as clear as it could be under the current legislation that a patient could be held for three hours. The standard is two hours, and the period can be extended to three, whereas the arrangement that we are discussing would be clearer from the outset. Of course, the power will be accompanied by clear guidance in the code of practice, which will make it clear that the power should be used in line with the principle of least restriction and with guidance on reporting to the Mental Welfare Commission. The provision will make it clear that the power is for detention of up to three hours, which can be for the purpose of a medical examination.
I recognise the concerns about the default position on named persons and the lack of appetite there seems to be for that. I am currently minded to propose an amendment to remove the provision. We want to move forward in a way that does not disadvantage the most vulnerable service users, and we are exploring how to strike the right balance.
I believe that the provisions on the registration of advance statements strengthen the position of the statements by ensuring that they are held in medical records. Scottish Government officials are working with the Mental Welfare Commission and other stakeholders to ensure that concerns about privacy and confidentiality will be met. Advance statements will be held in line with the strict controls on other patient information that the commission holds. It is important to emphasise that the commission already keeps personal data, so the process is not a new one for it. The commission has strict data protection protocols to ensure that records are accessed lawfully and appropriately.
Richard Simpson made the point that the statements should be available 24/7; Nanette Milne talked of having quick access to them; and George Adam said that the change is an important one that will make the system more effective. I think that we can strike the right balance between the need for privacy and the requirement for quick, 24/7 access to the statements.
I very much agree with the committee’s belief that more can be done to promote advance statements. I want to ensure that that is done in the most meaningful way and in a way that has the most impact. I am not convinced that using legislation would necessarily achieve that. Instead, I am considering what can be done outwith legislation, perhaps by using specific and targeted guidance. However, if constructive amendments are lodged, I will of course actively consider them.
On advocacy and awareness of patients’ rights, Mary Scanlon made the reasonable point that a person having rights does not have much effect if the person does not know that they have those rights. I very much agree with that sentiment. As part of implementing the bill, we will update our guidance for users. The Government will work closely with stakeholders on that and will take their views on how to promote awareness of rights through the work that we do.
There is a strong duty in the 2003 act on the right to advocacy. I recognise that there are calls for ensuring that there is adequate provision of advocacy. I am a strong believer in advocacy, which greatly empowers people. I have noted calls for greater monitoring and we are discussing with relevant organisations how best to do that. I am not necessarily convinced that legislation is required to do that. However, as I have said before, if members want to lodge relevant amendments, I will happily consider them.
As I feared, time has not allowed me to cover every issue. I will close by saying that I recognise that the bill, as presented, might not be the final article. Bob Doris mentioned that he looks forward to engaging constructively on amendments at stage 2. I welcome that approach, which I will take and which I hope that we will all take. It is the approach that professionals, patients and the public expect us to take to ensure that we have the most effective system to support those who have an identified mental health disorder. I look forward to continuing that work at stage 2.