Mental Health (Care and Treatment) (Scotland) Bill: Stage 3
The next item of business is the first part of the stage 3 proceedings on the Mental Health (Care and Treatment) (Scotland) Bill. For the first part of the proceedings, members should have before them SP Bill 64A as amended at stage 2, the first marshalled list and the groupings. We will allow an extended voting period of two minutes for the first division following a debate on a group of amendments; thereafter there will be a voting period of one minute for the first division after a debate on a group. All other divisions will be of 30 seconds duration.
Section A1—Principles for discharging certain functions
Amendment 31 is grouped with amendments 32 and 33.
These amendments illustrate the point that I made a moment ago. They also show the importance that we attach to involving carers as well as, more fundamentally, users in relation to mental health and other health policies.
The amendments were lodged in response to another amendment that was brought to the Health and Community Care Committee by Adam Ingram. One of the points that Mary Mulligan made at the time was that, in certain situations, there could be conflict between the interests and wishes of users and those of carers. The amendments seek to address those dilemmas.
Amendment 31 will strengthen the bill's duties towards carers. We have lodged it in response to a series of stage 2 amendments by Adam Ingram. Those amendments would have imposed various duties to provide carers with specific information on the mentally disordered person. We were concerned that that might cause problems, particularly where the patient wished to keep certain information private, or where there were difficulties in the relationship between the patient and the carer. We discussed that with the mental health legislation reference group and it was clear that it would be almost impossible to set out in primary legislation all the circumstances where it would be right or not right to provide particular information to carers.
However, the National Schizophrenia Fellowship (Scotland) gave us graphic examples of the problems that can be caused when professionals forget to involve carers or even deny them the information that they need to help their friend or loved one. Amendment 31 therefore provides that any person exercising functions under the act, such as a doctor or mental health officer, will have to pay particular attention to the importance of providing information to the carer to assist the carer to care for the mentally disordered person. That draws on one aspect of the principle of respect for carers set out in the Millan report.
The bill is not the right place in which to specify the details of how that duty should be fulfilled in each and every case. The code of practice will allow us to set out guidance as to best practice.
Amendments 32 and 33 illustrate the other kind of amendment, to which I referred earlier, because they are technical drafting amendments. They will tidy cross-references in part 1 of the bill. If members want specific details of that, I will give them in response to comments.
I move amendment 31.
I thank the minister for taking on board the arguments that we put to the Health and Community Care Committee at stage 2. I welcome the extension of carers' rights. For a long time, weary carers have complained about being excluded from access to information that is of vital interest to them. I can only welcome the minister's response to the issue and the amendments.
Amendment 31 agreed to.
Amendment 32 moved—[Malcolm Chisholm]—and agreed to.
Section B1—Welfare of the child
Amendment 33 moved—[Malcolm Chisholm]—and agreed to.
Section 6—Duty to bring specific matters to attention of Scottish Ministers and others etc
Amendment 1 is grouped with amendments 2 and 3.
Amendments 1 and 2 are further technical amendments about the Mental Welfare Commission's powers under section 6 to bring matters of concern to the attention of various persons. Because of stage 2 changes to the drafting of section 9, the cross-reference to that section is no longer quite right and the amendments would restore the original intention of section 6.
Amendment 3 would add the public guardian, who has functions under the Adults with Incapacity (Scotland) Act 2000, to the list of bodies that might be contacted by the commission under section 6 to take steps to protect a mentally disordered person. That reflects the fact that some of the commission's powers under the Adults with Incapacity (Scotland) Act 2000 have been consolidated into provisions in this bill.
I move amendment 1.
Amendment 1 agreed to.
Amendments 2 and 3 moved—[Malcolm Chisholm]—and agreed to.
Section 7—Duty to give advice
Amendment 4 is grouped with amendments 5 and 6.
Amendments 4 and 5 are purely drafting amendments that pave the way for amendment 6.
Amendment 6 would simplify the drafting of section 8 by inserting a cross-reference to section 7.
I move amendment 4.
Amendment 4 agreed to.
Amendment 5 moved—[Malcolm Chisholm]—and agreed to.
Section 8—Publishing information, guidance etc
Amendment 6 moved—[Malcolm Chisholm]—and agreed to.
Section 9—Investigations
Amendment 273 is grouped with amendments 274, 8, 275 and 276.
Amendments 273, 274, 275 and 276 are further technical amendments. Sections 9 and 11 impose duties on the commission to investigate concerns about and to visit people who are subject to compulsory measures. As it stands, the draft bill refers to people who are detained. However, a person who is subject to various forms of detention, such as short-term detention, may have that detention suspended. It is currently called leave of absence. The amendments seek to make sure that that does not prevent the commission from carrying out its duties as intended.
Amendment 8 is also a technical amendment to ensure that the commission may make payments to any person who chairs a formal inquiry on its behalf. It retains the effect of a provision in the Mental Health (Scotland) Act 1984.
I move amendment 273.
Amendment 273 agreed to.
Amendment 274 moved—[Malcolm Chisholm]—and agreed to.
Section 10—Investigations: further provision
Amendment 8 moved—[Malcolm Chisholm]—and agreed to.
Section 11—Visits in relation to patients
Amendments 275 and 276 moved—[Malcolm Chisholm]—and agreed to.
After section 19
Amendment 34 is grouped with amendment 106.
Amendment 34 in my name came about because of the lack of service provision for young people across Scotland.
At stage 1, we heard evidence from the Royal College of Psychiatrists, which stated:
"we have admitted adolescent in-patients to adult wards … We think that that is a frightening and distressing experience … A very disturbed adult unit, often with violent and aggressive male patients, is not the place to be at that point in time."—[Official Report, Health and Community Care Committee, 25 September 2002; c 3096.]
The Health and Community Care Committee's stage 1 report drew that evidence to the Executive's attention.
At stage 2, the Executive responded by giving assurances that the Scottish needs assessment programme—SNAP—report on child and adolescent mental health services would take account of those concerns. While the Executive could not give a specific date of publication, the minister stated that it would be available shortly. Some 10 weeks later, an executive summary was placed in the Scottish Parliament information centre for members, less than 24 hours before we debate amendment 34 this morning.
Every young person in Scotland who has a mental disorder deserves appropriate care. The SNAP executive summary does not provide sufficient detail for the young person who does not require secure care but who requires in-patient hospital care. Those are the circumstances that amendment 34 addresses. The emphasis on mental health services in Scotland has not been shared by local NHS systems, as they currently have only 35 adolescent beds and nine children's beds throughout Scotland. I urge the minister to accept amendment 34 and to give young people with a mental disorder appropriate services.
I move amendment 34.
Amendment 106 in my name seeks to place a statutory duty on health boards to work in a collaborative fashion to whatever extent is necessary to provide mother-and-baby units, so that a mother suffering from post-natal depression may be jointly admitted with her child in order to undergo appropriate treatment in a sympathetic and suitable environment.
I first became aware of the total lack of such provision within NHS Scotland when one of my constituents, Lyn McLeod of Yoker, came to my surgery early in October last year. When she fell ill with post-natal depression, she was separated from her daughter, Heather, because of the total lack of provision within NHS Scotland for joint admission. In fact, Lyn found herself in a psychiatric ward, which I expect everyone will agree was not the appropriate ward for her to be placed in. Indeed, if Lyn had not had family to look after Heather while she was in hospital, her baby would have been fostered.
I was genuinely shocked that such a gap in NHS provision existed in Scotland. I was fortunate enough to be given the chance to bring the matter to the notice of the chamber when my members' business motion was chosen for debate on 4 December last year. At that time, I was extremely encouraged by the positive comments of the Minister for Health and Community Care, Malcolm Chisholm, who said that the Executive agrees
"that there should be a spectrum of care and support for the mother, the baby and the wider family. We accept, and shall promote, the merits of joint admission arrangements."—[Official Report, 4 December 2002; c 16049.]
I am also pleased that Greater Glasgow Primary Care NHS Trust agreed earlier this year to invest £500,000 to set up on the Southern general hospital site an in-patient, six-bed, mother-and-baby unit for women suffering from post-natal depression. That is progress, but with amendment 106 I ask the Executive to go a step further and make it a statutory obligation for health boards collaboratively to provide joint admission in such units.
I am aware that the Executive has concerns about including a specific treatment in statute—I am told that that is because no mental health or physical health treatment has ever been put in statute. When the minister replies to the debate, I would like her to explain the Executive's reservations. I will—as will the rest of the chamber—listen carefully to her concerns. I want her to offer real and significant comfort to the chamber and to me in that contribution, which I await with interest.
I wish to make a brief speech in support of Margaret Jamieson's amendment 34. She has pursued the provision of services for children and young people throughout our consideration of the bill. The placing of a SNAP report in the Scottish Parliament information centre the day before we debate the issue is not a substitute for amendment 34. It is not appropriate for young people to be put in the care of adult psychiatric services. As we heard time and again, that can do more harm than good.
The SNAP report will not provide the necessary impetus for health boards to provide the services for young people that are so badly required. I know that the minister will say that the problem with putting something in statute is that it gives priority to a group of health service users, but I cannot think of any group of health service users other than young people suffering mental health problems who should be given priority in statute.
I urge the minister to set aside the concerns about precedence and legal issues, because we have already accepted the principle in the bill's provisions on appeals against excessive security for people in Carstairs. There is a case to be made for making a group of vulnerable young people an exception to the rule. We should support amendment 34.
I support Margaret Jamieson's amendment 34, which has the support of all members of the Health and Community Care Committee.
The SNAP report that was published in part yesterday stated that
"All NHS Boards who responded … report rising rates of mental health problems"
among children and adolescents.
The report shows that, at the moment, services are patchy across the country. It also states that it is difficult at present to find out how much money is being spent by NHS boards on child and adolescent mental health, and that only half of the boards are engaged in health promotion and illness prevention.
I quote from the evidence that the Health and Community Care Committee took on that issue at stage 1 from Children in Scotland, the representatives of which quoted from a young woman who had spoken to Childline Scotland. She phoned the telephone line and said:
"I was raped a year ago. I started cutting myself to try and cope with the pain. My GP referred me to a psychiatrist ages ago, but I haven't heard a thing. She said it could be a while, but I don't know how I can keep going on."—[Official Report, Health and Community Care Committee, 6 November 2002; c 3308.]
That quotation reminds us, as Children in Scotland said, of the bill's context and the huge dearth of children's services in Scotland.
Across Scotland, young people must wait on average 12 weeks before they can meet a psychiatrist, and there are only 35 in-patient beds for children, whereas the Royal College of Psychiatrists told the Health and Community Care Committee that we actually need 80 beds. The royal college called that "a national disgrace." We agree.
Last year, seven out of 10 young people who were admitted to hospital on a compulsory basis were admitted to an adult ward. When members of the Health and Community Care Committee visited Parkhead hospital, we heard from staff that that was unacceptable. It is unacceptable to put a disturbed child or youngster into an adult ward, where they come up against people who are disturbed and possibly violent. It is totally unacceptable for this Parliament to allow such a situation to continue.
The minister will give us some legalese reason why we cannot address the matter. Sometimes something is right and sometimes something is wrong, and it is wrong for us to continue to do anything to perpetuate the situation. We have heard from staff, service users and children, through the SNAP report, that the services out there either are not available or are unacceptable. Shona Robison was right to tackle the view that we cannot address the issue because precedence says that we do not give priority in the health service to one set of patients. Does anybody in the chamber believe that we should not give priority to youngsters who are suffering the most appalling mental health difficulties and whom we are shoving into adult psychiatric wards?
Youngsters are not getting the services that they require. This is not just about bricks and mortar; it is about ensuring that there are staff who can look after them properly and that they have access to proper education services. Come on—if this Parliament was meant to be about anything, it was meant to be about addressing such issues. I support Margaret Jamieson's amendment 34.
I support Margaret Jamieson's amendment 34. My colleagues on the Health and Community Care Committee have made most of the points that I wished to raise.
The main point in Margaret Jamieson's amendment is its reference to
"such services and accommodation as are sufficient for the particular needs of that child or young person."
We heard in evidence to the Health and Community Care Committee that we need services that are appropriate to the needs of children, and that the services that children currently get are detrimental to their needs—they actually frighten children and make them worse. Existing services are not even adequate, sufficient or beneficial; they are detrimental to the needs of children. We have to make that absolutely clear.
Margaret Jamieson raised the points that were made by the Royal College of Psychiatrists. I have only one other point to make. A submission from Children in Scotland states:
"Scotland has only 35 psychiatric beds for adolescents, after 12 beds in Fife were recently closed."
Therefore, not only is the number of children and young people suffering from mental health problems increasing, as Margaret Smith said, but the number of psychiatric beds for adolescents is decreasing. We have an increasing demand and a decreasing supply. I ask every member to take on board the points that have been made by supporters of amendment 34 and to vote for it.
I support Bill Butler's amendment 106, as I supported his members' business debate. Like amendment 34, it also calls for the provision of appropriate services. As a member for the Highlands and Islands, I am aware that women do not want to be separated from their newborn child and that the least restrictive alternative principle must apply. It might not be appropriate to build more buildings and so on if people from Wick and Thurso have to be hospitalised in Inverness, away from their family and children. I emphasise the fact that psychiatric services are just that—services.
During my research for Bill Butler's members' business debate, I found out some frightening things about post-natal depression. It affects not only the woman but the family. If it remains untreated, it can have a prolonged, damaging effect on the relationship between mother and baby and a detrimental effect on the child's psychological, social and educational development. A shocking figure is that 10 to 15 per cent—undoubtedly, a gross underestimate—of mothers suffer from post-natal depression. The other frightening statistic that I discovered during my research is that many women who are given anti-depressants after the birth of a child are still taking them decades later.
There has never been a better time or a better opportunity for this Parliament to support mothers and children in relation to the services that are available, such as community psychiatric services, and which are essential for their future. I support both amendments.
I also support both amendments. As Mary Scanlon said, last summer, the only in-patient psychiatric unit in Fife for young people, Playfield House in Stratheden hospital, closed. The unit closed abruptly, in a matter of days, and young people who were resident there had to be either returned to the community—inappropriately, presumably—or accommodated in inappropriate psychiatric accommodation. The main reason for the closure of the unit was a lack of specialist nursing staff. That is one of the cruxes of the problem that we face: because there are few psychiatric children's units, few people go into that specialism. That means that we do not have a pool of trained staff to enable us to offer an adequate service, which means in turn that the service does not expand and that we cannot offer appropriate support. Only by taking action of the sort that amendment 34 proposes can we address that serious deficiency and put the necessary resources into this key area.
Far too many people do not get the appropriate service at a young enough age. We have discussed that in relation to other areas, which suggests that it is time for some joined-up thinking. Early intervention is as important in the area of psychiatric care as it is in other areas. Those young people might not need to be psychiatric in-patients, but they need access to psychiatric services. However, if the services are not there, there is delay after delay, and it is only when the person suffers an acute psychiatric episode that we have to accommodate them somewhere. Far too often, that accommodation has to be in an inappropriate adult institution. Amendment 34 addresses that problem, which is why I hope that the chamber will support it.
Bill Butler is right to highlight the lack of specialist resources for women with post-natal depression. It is a scandal that someone who is diagnosed with that condition cannot be given appropriate help without being separated from their child. That flies in the face of bonding theory and we must consider the matter seriously.
We are discussing a bill that deals with mental health treatment, and the matters that the amendments deal with go to the heart of the services that should be provided for children, adolescents and women.
I support Margaret Jamieson's amendment 34, particularly because I am a parent of a young child who suffered the indignity and insecurity of being provided with inappropriate accommodation.
When my daughter was admitted to hospital, she was at her wits' end. She had no resilience left and had given up on herself, and being put into a ward that was totally inappropriate almost turned her mind over. I do not mention that to flaunt my first-hand experience, because I would not wish that experience on anyone.
I beg the chamber to listen to the cries of the individuals, the carers, the families and those who have come through the experience of dealing with mental health problems. It is important that people get the right support and assessment early. Further, when that has happened, they must, as a right, receive the correct care. There is a duty on ministers to deliver that and I hope that both ministers—whom I know care about this issue—get away from the system and examine the core problems that the bill is trying to address.
Amendment 34 deals with but one aspect of the bill, and all the bill's provisions are equally important. I do not wish to be party political, but it is a fact that, over the past two or three years, the Scottish Executive has failed to address the needs of those young people and the special care that they require. The issue is not to do with building bigger establishments—the same number of bricks are needed regardless of how wards are divided—but it is about building into the bill a culture of care and recognising that, if we agree to amendment 34, the bill will be able to give those young people a sense of hope and a base from which they can get effective treatment and on which they can build their lives.
I beg the chamber to support amendment 34 and Bill Butler's amendment 106, which deals with the same principle: that accommodation that is provided by health services should be appropriate to the needs of the individual.
I support all the comments that have been made in relation to amendments 34 and 106.
The health service has long accepted the need for age-appropriate services in the acute sector for children. As a former paediatric nurse, I realise the value of treating children in facilities that are appropriate to their age. In the recent past, that sometimes involved closing paediatric wards in general hospitals to centralise those services in paediatric facilities. I fully support such action because, for various reasons, it is much more appropriate for children and young people to be treated in facilities that are specific to them.
The recently published SNAP report talks about buildings, which amendment 34 does not. It was never the Health and Community Care Committee's intention that we should be building new hospitals and facilities to house children and young people with mental health problems. We talked about the need for children and young people to be given a separate area in a ward to ensure that they were not in beds beside people who had severe mental health problems, which could cause them severe distress.
As we heard in David Davidson's poignant contribution, young people—for example, those with eating disorders—can be kept in beds in acute wards. That contributes nothing to their long-term treatment. If the bill is to improve the situation for people in our communities who have mental health problems, we must remember that we are talking about children and young people as well as adults. There is a great need to recognise the fact that children and young people suffer from mental health problems. Today, we aim to have that fact recognised in legislation and to enable an improvement in the facilities that they currently have to endure.
I support amendment 34.
I had the privilege of speaking in Bill Butler's members' business debate on post-natal depression, when we talked about mothers and babies being split up. Bill Butler spoke eloquently, as ever, about the circumstances that one of his constituents had endured. Anyone who heard him could not have been other than persuaded of the need for the services that his amendment 106 would provide.
Many other members who spoke in the debate reflected on the experiences of their constituents or their own personal experience. When we consider health services, and mental health services in particular, in the 21st century, it cannot be acceptable that we are still faced with the prospect of mothers and babies being split up. Surely we have the wherewithal in the great scheme of things to provide the necessary accommodation and services that would allow mothers with post-natal depression and their babies to be cared for together.
As Janis Hughes said, Margaret Jamieson's amendment 34 is not about building new facilities or spending a lot of extra money; it is about addressing a serious issue. Given what the Minister for Health and Community Care said in Bill Butler's members' business debate, I am surprised that the Executive will not accept amendment 106, as the tone of that debate suggested that the Executive had accepted the need for its important provisions. Even at this late hour, I hope that the minister will agree to amendment 106.
I am grateful to Margaret Jamieson and Bill Butler for lodging amendments 34 and 106. As many members have said, the amendments deal with vital areas that are of concern to us all. I hope that members will bear with me as I address a number of the points that have been raised.
Amendment 34 concerns services for children and young people who are admitted to hospital for treatment of mental disorder. In providing care and treatment for mental distress and disorder, we must take account of the distinctive needs of individual children and young people. Their care and treatment must encompass their needs for health care, education and social support. It must also take account of the importance of family contact and relationships.
NHS boards are responsible for ensuring that such planning is in place and that NHS trusts provide appropriate care and facilities. In doing so, NHS boards take account of national priorities. For example, Greater Glasgow NHS Board has plans for the expansion of services in the west of Scotland, which we welcome.
The situation at present is not working. There are not enough facilities for young people. The health boards have had a responsibility for meeting the needs of young people with mental disorders for a long time and they have not fulfilled that responsibility. Unless amendment 34 is agreed to, the health boards will continue to act as they have done in the past. It is vital that all members support amendment 34. Even at this late stage, I would like to hear the minister say that she will support it, too.
If Tricia Marwick would like to listen to the comments that I am going to make, she will hear that I intend to lay out the way in which we can ensure that health boards do not ignore the very real needs that we see in our communities.
The intention behind Margaret Jamieson's amendment 34 is to ensure that children and adolescents are provided with appropriate care and treatment in an environment that is appropriate for them. I fully support her intention, but unfortunately the wording of the amendment makes it difficult for me to support it.
The whole basis on which the NHS is organised is to provide a comprehensive health service with no provision in legislation for prioritising particular types of health care or particular types of patient. To follow that path might result in a disproportionate focus, no matter how deserving those who are mentioned in statute are, to the detriment of those who are not mentioned. Shona Robison referred to that issue.
Amendment 34 would place a duty on NHS boards that would perhaps result in a focus in planning on, and in the allocation of resources to, in-patient treatment, which could reduce the wider and perhaps more important priority for early diagnosis and community treatment. I am sure that that was not Margaret Jamieson's intention in lodging the amendment.
Will the minister give way?
No, not at the moment.
Amendment 34 does not specify exactly what NHS boards would have to do to fulfil the duty satisfactorily. Children and adolescents present a diverse and wide range of needs, which might change over time. I cannot see how those can be sufficiently covered in primary legislation.
Will the minister give way?
No, not at the moment, but let us see how I get on—I might be able to let Mr Rumbles in later.
In short, amendment 34 would not succeed in improving child and adolescent mental health services as Margaret Jamieson intends. I believe that there are much more effective ways of achieving that goal.
I totally accept that the current arrangements are not satisfactory. Our starting point has to be credible information, which is why we commissioned the Scottish needs assessment programme review of need and provision for child and adolescent mental health. The Public Health Institute of Scotland plans to publish the full final report of the review as one of the first publications from the new NHS health Scotland organisation. The executive summary of the report was made available this week. I had spoken to the Health and Community Care Committee about trying to make it available earlier, so I apologise that it was published late—unfortunately, that was beyond my control.
The summary highlights key themes for improvement and investment in services through a focus on the rights of young people and a concentration on mental health and emotional well-being, health promotion, early detection, research and strengthening the local, regional and national responses to care. I say to Margaret Smith that the review is about more than buildings; it is about providing the service.
The minister says that the review is about providing the service. Ministers give instructions or directions to health boards on many issues, but the boards simply do not carry them out. We have had that discussion in relation to digital hearing aids. The minister's argument in opposing amendment 34 is: "We do not do it this way and so we are not going to do it." Surely we have to do things in a better way.
I welcome the review and its findings. The instructions and information will provide a way forward for NHS boards. I will come on to address how we will monitor what happens and how we will ensure that the Parliament—and not only the Executive—is involved in ensuring that the instructions are followed.
I am committed to ensuring that the SNAP recommendations for improvement are tackled in full by all concerned. The health department's child health support group will consider how we take forward that pressing agenda. It will also provide leadership for the development work, which will involve all the key stakeholders and build on current multi-organisational and integrated care approaches. A spectrum of care is of course required. We are committed to addressing the issue and have proposals in train to develop a range of specialist provision in secure health and social care sectors. We will also support the regional commissioning of in-patient provision in order to ensure efficacy and good access.
I hope that Margaret Jamieson and other members will accept why the Executive is unable to support amendment 34 as drafted. However, I am happy to give an assurance that, in order to maintain the momentum, the Executive will act to ensure a positive response from the NHS and its partners.
I recognise that members may be sceptical about the general assurances that all those matters are being looked at—we have heard that concern from members this morning. To ensure that progress is real and that it is maintained, the child health support group will report quarterly to ministers on progress. I am more than happy to share those reports with the Health and Community Care Committee.
We will require all health boards to include their response to the SNAP recommendations within the performance assessment framework in child health. That will keep the pressure up for real improvements to all services, including in-patient care.
Will the minister give way?
Not at the moment.
On amendment 106, I am grateful to Bill Butler for the strong personal interest that he has shown in the issue of post-natal depression on behalf of his constituents and the people of Scotland. He has drawn to the Parliament's attention the real difficulties that exist in the care and treatment of mothers who suffer in such a way. I reassure him that he is not alone; expert opinion has identified the importance of jointly admitting mother and child where it is safe and appropriate to do so and the need for appropriate facilities to support joint admissions.
The Scottish intercollegiate guidelines network guidelines that were issued in 2002 made recommendations to that effect. Following Malcolm Chisholm's response to Bill Butler's members' business debate, the health department has written to all NHS boards to ask them to undertake, in light of last year's SIGN guidelines, a regional review of in-patient services for mothers who are suffering from post-natal depression, as the treatment needs of individual board areas are unlikely to justify dedicated facilities within each board.
The minister said that, if amendments 34 and 106 are put into statute, that might result in a disproportionate focus to the detriment of people who need other services. Surely boards should be able to manage their resources to ensure that such a disproportionate effect does not occur. [Interruption.]
Before the minister replies, I remind members of Sir David Steel's caution this morning. There is a lot of extraneous noise in the chamber. There is a perfectly adequate coffee bar that members can use for discussions if they wish. I ask them not to have those discussions in the chamber.
I appreciate Bill Butler's point. It is up to health boards to decide their priorities and manage their resources. However, we must allow them the flexibility to do so. Putting such a stipulation into statute might hinder that process.
It is entirely right to ensure that facilities are available for mothers who require in-patient treatment to be admitted with their babies. I hope that my following comments on guidance will convince Bill Butler that we will be able to take the matter forward without resorting to legislation at this stage.
We must give the service time to undertake the necessary work to plan and develop schemes and staffing models. Clearly, as Bill Butler pointed out, good progress is being made in Glasgow. However, other good developments in the diagnosis, care and treatment of post-natal depression are happening in other NHS board areas and are not necessarily linked to in-patient treatment. We are committed to the same aims as Bill Butler is and we are taking the necessary steps to turn those aims into reality. However, although amendment 106 represents an important means of highlighting such a crucial issue, we do not think that it would be right to include its provisions in the bill.
We must also be mindful that any consideration of joint admission is and always should be determined by the child's best interests. The Children (Scotland) Act 1995 makes it clear that the welfare of the child should be paramount in any decisions that are made by public bodies and the appropriateness of joint admission might be a matter for more than the mother and her clinician. As a result, although we must ensure that provision is made, we should not enshrine a particular option as the preferred one in every case. Our legislation should be empowering rather than restrictive.
Given all those circumstances, the Executive is unable to accept amendment 106. However, I am happy to assure Bill Butler that the Executive will continue to follow up progress with the implementation of the SIGN guidelines, including on the provision of facilities for mother and baby admissions.
I declare an interest, which I will do once only. As a psychiatrist and general practitioner, I am a member of the Royal College of Psychiatrists, the British Medical Association and the Scottish Association for Mental Health.
In responding to amendments 34 and 106, the minister has twice referred to the performance assessment framework, which I think is excellent. However, as Mike Rumbles and others have asked, what will she do if the health board does not comply? The Executive must have some teeth to intervene in cases where mothers are repeatedly refused admission with their child because the health board repeatedly fails to prioritise the matter.
Members will understand that the performance assessment framework ensures that health boards respond to instructions, directions, guidelines and other assistance that they are given. We must enable the boards to have the flexibility to respond according to local circumstances while instructing them on the priorities that clearly concern members. The processes that are already in place will ensure that that happens.
Will the minister give way?
Not just now.
The best way of dealing with the situation in relation to mothers and babies is through the SIGN implementation process and Executive oversight of NHS board plans rather than through legislation.
I should point out that the bill is not totally silent on the relationship between parents and children. Bill Butler would do well to consider the fact that the bill contains certain coverage that ensures that the spirit of his proposal will be carried forward. For example, section 190 provides that, where either a parent or a child is subject to compulsory measures, any person or body exercising functions under the legislation must take whatever steps
"are practicable and appropriate to mitigate the impairment"
of the relationship between the parent and child. We will give guidance on that provision in the code of practice. Moreover, I am happy to undertake that we will take account of the points that members have made this morning when we prepare the code. I can also confirm that I have asked Dr Sandra Grant to take account of the issue as part of her assessment of mental health services prior to the implementation of the legislation.
In light of those comments, I ask Bill Butler to consider not moving amendment 106.
I have listened to the minister's comments. She indicated that people might well be sceptical of what NHS local systems deliver. I would not say that I was sceptical; I just do not trust them. Throughout the Health and Community Care Committee's consultation and evidence sessions on the bill, reference was made to the 1997 framework for mental health, which was supposed to be a priority for the Parliament. It has not been a priority for local health systems. For that reason, I will press amendment 34.
The assurances that I have been given bear no resemblance to what is happening out there. For example, I am a member of the Parliament's Audit Committee and have examined the performance of NHS systems year after year. As we have heard, the performance assessment framework has no teeth and does not empower ministers—except in financial terms—to take any account of what is happening out there. There are disproportionate emphases within the NHS, which has placed mental health service provision at the bottom of the ladder. It is not a key priority in the local services that our constituents—particularly our young ones—deserve and expect. On that basis, I will press amendment 34.
Amendment 34 agreed to.
Amendment 69 is grouped with amendments 70 to 73.
The amendments relate to the principle of reciprocity. Their purpose is to give effect to the principle, which the Millan committee recommended. The Millan definition of reciprocity is:
"Where society imposes an obligation on an individual to comply with a programme of treatment and care, it should impose a parallel obligation on the health and social care authorities to provide safe and appropriate services, including ongoing care following discharge from compulsion."
As the bill stands, it requires only that those exercising functions under the bill
"have regard to the importance of the provision of appropriate services".
Although that important principle should stay in the bill, it is not enough in itself to ensure that reciprocity is truly enshrined in the bill. My amendments would ensure that a duty to provide appropriate services falls on health boards and local authorities, as Millan intended.
The Health and Community Care Committee supported the inclusion in the bill of all the Millan principles and felt that reciprocity was a key principle, as did all the mental health organisations that gave evidence.
The Executive expressed concerns about the wording of an amendment that was lodged at stage 2. Those concerns have been taken on board in my amendment, because it would ensure that the duty falls on health boards and local authorities, rather than on individuals. On that basis, I hope that the Executive will support my amendment.
I move amendment 69.
I support Shona Robison's amendment on reciprocity. The Health and Community Care Committee supported the inclusion in the bill of all 10 Millan principles and, in the course of its discussions, singled out reciprocity as being particularly important.
Reciprocity is not separate from the debate that we have just had on the provision of services and accommodation. However, it is totally vague and meaningless to include in the bill the words
"have regard to the importance of the provision of appropriate services".
As has just been said, the Scottish Parliament may pass legislation with the best of intentions, but if health boards and local authorities decide not to comply, it is meaningless.
As a member for the Highlands and Islands, I note that Highland Council is already trying to change the eligibility criteria for free personal care—a local authority has tried to rewrite an act of the Scottish Parliament. It is fortunate that there were enough sensible councillors to vote down the change. I go along with Margaret Jamieson's point that we cannot make vague and meaningless statements in Parliament and in legislation under the assumption that health boards and local authorities will comply.
We are dealing with one of the most vulnerable groups in Scotland. The mental health service is undoubtedly a cinderella service. Amendment 69 would place a duty on health boards and local authorities rather than on individuals.
I ask members to support amendment 69. It is not only crucial, but reflects what should be a basic principle of the Mental Health (Care and Treatment) (Scotland) Bill, as outlined by Millan.
Amendment 69 is one of the more important amendments that we will debate over the course of the next two days. As Shona Robison said, according to the Millan report, the principle of reciprocity is one of the principles that should be enshrined in legislation. Shona Robison's amendment would ensure that that happened in a meaningful way.
As it currently stands, the bill states that regard must be had to
"the importance of the provision of appropriate services".
We all know from experience that provisions worded in that way can be rendered virtually meaningless. Shona Robison's amendment would impose a duty on health boards, which is the correct way to ensure that reciprocity is enshrined in the bill.
That is of fundamental importance. The bill gives details of circumstances in which the liberty of individuals—who in most cases have committed no offence—can be restricted or taken away completely by the state. In those circumstances, there should be an obligation on the relevant authority to provide the services that such an individual requires on the basis of reciprocity, as a matter of principle.
Throughout consideration of the bill at stages 1 and 2, a range of people from interested organisations expressed concerns about the inadequate resourcing provided for in the bill. I dare say that we will return to that issue. At this stage, suffice it to say that health boards might well be constrained in the delivery of services by a lack of resources. The danger that we face is that, if the principle of reciprocity is not enshrined in the bill in a meaningful way, the problem of service delivery might become simply an accepted norm. That would be against the interests of the patients affected by the bill and would run counter to the bill's intention.
Amendment 69 would give valuable and essential protection to some of the more vulnerable patients in our society and, for that reason, it should be supported.
I will be brief, as I agree with everything that members have said.
Amendments 69 and 70 go to the heart of the bill and would help to bolster the principle of reciprocity, as outlined by Millan.
As we all know, the current provision of community services throughout the country is patchy. The requirement on authorities to
"have regard to the importance of the provision of appropriate services"
could be meaningless if such services do not exist. We need to impose a duty on authorities to provide appropriate services, otherwise we only pay lip service to the improvement of support to some of the most vulnerable and stigmatised members of society.
I ask members to support amendments 69 and 70.
As Shona Robison and others have said, one of the key Millan principles, which I strongly support, is the principle of reciprocity. Where society imposes an obligation on an individual to comply with a programme of treatment and care, it should impose a parallel obligation on health and social care authorities to provide appropriate services.
We have stressed repeatedly that we fully accept that as a general principle, but there is a vast difference between stating a general principle and setting it out as a series of coherent, legal propositions in primary legislation. That is an important point to make about amendment 69 and, possibly, about other amendments.
As Nicola Sturgeon said, we must enshrine the principle of reciprocity in a meaningful way. Mary Scanlon put it in a negative way, saying that we must not make vague and meaningless statements.
The fundamental problem with amendment 69 is that it contains no definition of what is meant by "appropriate services". If a duty to provide services is to be imposed, as distinct from a need to "have regard to" such provision, there must be absolute clarity about what "appropriate" means. Otherwise, it will not be possible for health boards and local authorities to implement the duty or for the courts to say whether the duty has been fulfilled.
I ask members to reflect very carefully on amendment 69, because we must pass clear legislation, which can be followed—in this case by health boards and local authorities—without ambiguity and without having frequent recourse to the courts for an interpretation of what is meant and intended.
It is my understanding that the Executive included in the bill a requirement on individual persons exercising functions under the bill to
"have regard to the importance of the provision of appropriate services".
What does the minister regard as an appropriate service? How can the minister judge what is an appropriate service? Who makes that judgment—the patient, the clinician, the tribunal or mental health officers? The minister criticises Shona Robison's amendment for using the words, "appropriate services", but he also uses them. We need to know what "appropriate services" means.
That is a fair point but, with respect, I have already answered it. There is all the difference in the world between imposing a duty on someone, which then has to be carried out, and failing to clarify what is meant, so that the duty cannot be performed. The phrase "appropriate services" that is in the bill at present refers to existing duties. I was going to go on to raise the question whether the term "appropriate" in the amendment refers to existing duties or to services that are somehow different from the services that health boards and local authorities are already under duties to provide. The drafting seems to imply that that is the case, but it is hard to see what new services are meant. There is no clarity in the definition about what exactly is referred to. Local authorities and NHS boards already have a plethora of legal duties towards people who may be subject to compulsory measures, apart from the new duties that are being imposed in the bill. I will go on to list those duties in a moment.
The minister may—advertently or inadvertently—have made the same case as the mover and supporter of the amendment. He makes the point that, if there is a duty, health boards must deliver on it, and so there must be clarity. Surely the other side of that argument is that, if there is no duty, they do not have to deliver the services. That is the key weakness in the current drafting of the bill.
Will the minister accept another intervention on that point?
There are duties, which I will go on to describe. I will allow Richard Simpson to intervene once I have described them.
As I have already said, if there is a duty, we must know exactly what "appropriate" means. I am not a lawyer, but it may well be that a board or local authority could say that, in its opinion, services were appropriate. That is precisely the legal problem that we must have regard to when passing legislation.
Local authorities have duties to provide community care services under the Social Work (Scotland) Act 1968 and services for children under the Children (Scotland) Act 1995. They also have various specific duties to disabled people, which apply to people with mental disorder, and other duties in respect of matters such as education, housing and transport. NHS boards have wide-ranging duties under the National Health Service (Scotland) Act 1978. As I have indicated, it is impossible to be clear about what impact, if any, amendment 69 would have on those various duties. We certainly have no reason to suppose that whatever legal effect it might have would benefit people who use mental health services.
I wonder whether the minister can give us a slight further reassurance. The concern of the mover and supporter of the amendment is that there is a lack of clarity about the current wording. I understand the minister's legal concerns, but will he assure us that, in monitoring the operation of the act and promoting best practice, under paragraphs (a) and (b) of section 3, the Mental Welfare Commission for Scotland will ensure that the principle of reciprocity is embodied in practice? Will he assure us that, in reporting to ministers, the Mental Welfare Commission will be required specifically to take that into account? Will he further assure us that, as we discussed in the very first amendments, the ministers will then take action where the principle of reciprocity is not being followed through by health boards?
I am happy to agree with Richard Simpson, because the principle of reciprocity is absolutely at the heart of what Millan proposed. I will go on to describe the ways in which we will ensure that that principle is implemented in mental health services in Scotland, but before I do so, I would like to make one final point, which is perhaps at the heart of members' concerns.
At stage 2, members expressed concern that duties on public bodies might not have the intended effect if those bodies simply do not have the resources to implement them. I can fully understand that concern, but amendment 69 would not solve the problem, either in a practical or in a legal sense. In so far as existing duties can be constrained by limitations on resources, the same would apply to amendments 69 and 70.
Having described why the amendments would not work, I shall turn to why I do not believe that they are necessary. They are not necessary both because the bill contains measures to implement the reciprocity principle and because we are taking steps to ensure that services are available on the ground.
At the heart of the new procedures for compulsory treatment orders is the plan of care. Any application for a compulsory treatment order must include a detailed and multidisciplinary plan of care. If the care and support set out in the plan are not adequate to underpin the compulsory measures, the tribunal would be within its rights not to approve the order. Furthermore, if there are aspects of the plan of care that the tribunal regards as particularly important, the tribunal can specify in the compulsory treatment order that they cannot be dropped without the matter being referred back to the tribunal for a review of the order. The bill also contains a duty on anyone exercising functions under it to have regard to the importance of providing appropriate services to people who are or have been subject to compulsion, and I have already discussed that in response to Mary Scanlon's intervention.
Moreover, part 4 provides clearer and stronger duties on local authorities towards all mental health service users. That is an important feature of the bill that has perhaps not attracted the attention and publicity that it deserves. The duties under that part of the bill include duties towards service users who are subject to compulsory measures, but are not restricted to them.
If a service user is given a care plan that outlines all the care, support and treatment that they need, and they do not get that care and treatment, the minister says that they can go to the tribunal. If the tribunal bats that back to the local authority, which says that it does not have the staff, resources or wherewithal to provide what is necessary, the matter is batted back again to the tribunal. Who takes ultimate responsibility for providing appropriate services for the needs of people with mental health problems?
I hope that I gave a reassurance in response to Richard Simpson's helpful intervention on that point. My fundamental point is that amendments 69 and 70 would not solve that problem. I accept that there is always a problem with resources, which we must deal with in different ways—including, if necessary, being more directive from the centre. However, an amendment that talks about a duty to provide appropriate services does not get round the problem. The fundamental issue is that there is absolutely no clarity about what "appropriate services" means, and we cannot pass laws that are not clear in their intention and effect.
I will go on to describe how we are dealing with the serious issue of reciprocity.
Does the minister not think that it is incumbent on him to define what he means by "appropriate" in order to provide clarity?
The reality is that an amendment such as Shona Robison's amendment 69 would have to define absolutely what the term means. I am sure that Mr Sheridan will understand that it is quite difficult to say in detail what "appropriate" might mean for any one of the many individuals who might be involved. There is a fundamental problem, which is why I am arguing that the way to deal with the issue is by a series of other measures. I am in the middle of describing what those measures are, but they include the powers of the tribunal to which I have already referred.
The bill is a huge step forward in strengthening the rights of mental health service users, and we are ensuring that the resources are available to deliver those rights. As a result of the spending review, we have made significant additional resources available to NHS boards and local authorities to enable services to meet the demands identified in the financial memorandum to the bill. That includes an additional £14.5 million of expenditure per annum on improved services. Concern was expressed in the stage 1 debate about the capacity of services to meet the demands of the legislation, even with those significant additional resources being made available. I announced then that we intended to set in train an assessment of existing mental health service provision, to consider how current facilities, augmented by the additional resources that are coming on stream, could best meet the objectives of the bill.
On 5 February, I announced in answer to a parliamentary question that Dr Sandra Grant, the former chief executive of the Scottish Health Advisory Service, has agreed to lead that work. The aim is to complete that work by 31 August, and a report of the outcome will be published. I have the highest regard for Sandra Grant. I knew her when she served on the care development group and I assure members that she will take a robust and independent approach to the important work that she has been given. The assessment will play an important role in helping services to develop and to adapt to meet the demands of the new legislation. It will be carried out in consultation with all the key interests, including service users and carers.
I apologise for speaking at length, but I am totally at one with Shona Robison in feeling that the aim of delivering on the reciprocity principle lies at the heart of the bill. I hope that she will accept that we have done all that we can to make that aim a reality and will feel able to withdraw her amendment.
I feel that the minister is hiding behind the legal issues that have been raised throughout the debate on the principle of reciprocity. It is a bit strange that he should focus on the definition of "appropriate services". Not only did Millan use that term, but the minister himself has used the term "appropriate services" in the much watered-down need to
"have regard to the importance of the provision of appropriate services".
Unless the minister is saying that the phrase "appropriate services" is nonsense and is so vague that it should never have been in the bill in the first place—which I am sure he is not—and given that the words are a term of reference that is used in the bill, I do not see a problem with imposing a duty on health boards and local authorities. Doing so would go some way towards solving the problem.
Obviously, the other end of the road is that health boards and local authorities must provide the services. I return to a point that was raised before. Unless a duty is imposed on health boards and local authorities, our fear—and the fear of many organisations out there that have expressed concerns about the matter—is that such services will not be provided.
I am repeating myself to some extent, but what I will say is important with respect to the amendment and making laws in general. The matter must be focused on. I want to ensure that reciprocity is at the heart of the bill in the many ways that I have described. However, amendment 69 has no meaning in respect of being a duty that can be implemented clearly by boards and local authorities or that the courts can clearly interpret. We have a duty to pass laws that make legal sense. We all agree on the objectives, but we must take our duties seriously and pass clear legislation.
I do not agree with the minister's analysis. Amendment 69 would make health boards and local authorities do what all members want them to do and provide the services that are required. The minister knows that this debate goes to the core of the issues of concern in the bill. He and I have heard all the mental health user groups and individuals say that there are two sides to the bargain. The bill extends the use of compulsory measures, particularly with the extension of community-based compulsory treatment orders. Such extension is accepted by many organisations and individuals, but only if the other side of the bargain is fulfilled, which is that health boards and local authorities provide services on the ground to meet the service users' needs. They feel that, if the principle of reciprocity is not explicitly stated as a duty on health boards and local authorities, that side of the bargain will not be met. The minister knows as well as I do that that has been the key concern of all the groups and individuals who have given evidence.
I press amendment 69.
The question is, that amendment 69 be agreed to. Are we agreed?
No.
There will be a division.
For
Adam, Brian (North-East Scotland) (SNP)
Aitken, Bill (Glasgow) (Con)
Campbell, Colin (West of Scotland) (SNP)
Canavan, Dennis (Falkirk West)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Douglas-Hamilton, Lord James (Lothians) (Con)
Elder, Dorothy-Grace (Glasgow) (Ind)
Ewing, Mrs Margaret (Moray) (SNP)
Fergusson, Alex (South of Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gibson, Mr Kenneth (Glasgow) (SNP)
Goldie, Miss Annabel (West of Scotland) (Con)
Grahame, Christine (South of Scotland) (SNP)
Hamilton, Mr Duncan (Highlands and Islands) (SNP)
Ingram, Mr Adam (South of Scotland) (SNP)
Johnstone, Alex (North-East Scotland) (Con)
Lochhead, Richard (North-East Scotland) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Matheson, Michael (Central Scotland) (SNP)
McGugan, Irene (North-East Scotland) (SNP)
McLeod, Fiona (West of Scotland) (SNP)
Monteith, Mr Brian (Mid Scotland and Fife) (Con)
Morgan, Alasdair (Galloway and Upper Nithsdale) (SNP)
Mundell, David (South of Scotland) (Con)
Neil, Alex (Central Scotland) (SNP)
Paterson, Mr Gil (Central Scotland) (SNP)
Robison, Shona (North-East Scotland) (SNP)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Sheridan, Tommy (Glasgow) (SSP)
Sturgeon, Nicola (Glasgow) (SNP)
Tosh, Mr Murray (South of Scotland) (Con)
Ullrich, Kay (West of Scotland) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Young, John (West of Scotland) (Con)
Against
Baillie, Jackie (Dumbarton) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Fitzpatrick, Brian (Strathkelvin and Bearsden) (Lab)
Gillon, Karen (Clydesdale) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (Edinburgh Pentlands) (Lab)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, Mr John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Jenkins, Ian (Tweeddale, Ettrick and Lauderdale) (LD)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macintosh, Mr Kenneth (Eastwood) (Lab)
MacKay, Angus (Edinburgh South) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
McAllion, Mr John (Dundee East) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McLeish, Henry (Central Fife) (Lab)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Raffan, Mr Keith (Mid Scotland and Fife) (LD)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
Scott, Tavish (Shetland) (LD)
Simpson, Dr Richard (Ochil) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North-East Fife) (LD)
Smith, Mrs Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Thomson, Elaine (Aberdeen North) (Lab)
Watson, Mike (Glasgow Cathcart) (Lab)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
The result of the division is: For 38, Against 59, Abstentions 0.
Amendment 69 disagreed to.
Amendment 106 moved—[Bill Butler]—and agreed to.
Before section 20
Amendment 70 not moved.
Section 20—Care and support services etc
Amendment 107 is grouped with amendments 109 to 112, 143, 146, 149, 150, 153, 154, 159 to 161, 164, 113, 218, 219, 242, 243 and 252 to 271.
At stage 2, the Health and Community Care Committee accepted Adam Ingram's amendment to change the name of the bill from the Mental Health (Scotland) Bill to the Mental Health (Care and Treatment) (Scotland) Bill. The amendments make the necessary changes to provisions throughout the bill that refer to the name of the act that will result from the bill.
I move amendment 107.
Amendment 107 agreed to.
Section 23—Services under sections 20 to 22: charging
Amendments 109 to 112 moved—[Mrs Mary Mulligan]—and agreed to.
Section 24—Relationship between duties under sections 20 to 22 and duties under Social Work (Scotland) Act 1968 and Children (Scotland) Act 1995
Amendment 71 not moved.
Section 25—Co-operation with Health Boards and others
Amendment 72 not moved.
Section 26—Assistance from Health Boards and others
Amendment 73 not moved.
Section 27—Appointment of mental health officers
Amendment 277 is grouped with amendments 278 and 279.
Amendments 277 and 278 make it clear that mental health officers not only must be appointed by a local authority, but must be officers of a local authority. Amendment 279 is simply a drafting amendment to reflect the change in the structure of section 27 resulting from amendments 277 and 278.
I move amendment 277.
Amendment 277 agreed to.
Amendments 278 and 279 moved—[Mrs Mary Mulligan]—and agreed to.
Section 31—Emergency detention in hospital
Amendment 280 is grouped with amendments 281 to 287, 304 to 311, 318 to 322 and 734.
Amendment 282 will provide that there must not be a conflict of interest in relation to the medical examination when emergency detention is being considered. Amendment 287 will provide a regulation-making power in order to specify the circumstances that do or do not constitute a conflict of interest. Amendments 307 and 311 will make similar provision for short-term detention and amendments 318 and 321 will make provision for the three-day extension to short-term detention.
Amendment 283 takes account of the fact that an emergency detention certificate may be granted in respect of a patient who is subject to a community-based compulsory treatment order by removing the reference to CTOs from the criteria for emergency detention. Amendments 285 and 286 will make minor adjustments to section 31(7).
Amendments 309 and 310 will clarify that a patient who is subject to a short-term detention certificate may be transferred administratively between hospitals at any time during the 28-day period of detention, and amendment 280 will change the reference in section 31(2) to the three-day extension to a reference to short-term detention. Amendment 305 will change the reference in section 35(2) to a three-day period of detention following short-term detention.
Amendments 281 and 306 will ensure that an emergency detention certificate or a short-term detention certificate cannot be granted immediately following, respectively, detention for breach of an interim compulsory treatment order or a compulsory treatment order.
I would like clarification on amendment 282. What would constitute a conflict of interest in relation to a medical examination?
That would be when the medical practitioner had already been involved in the circumstances.
Amendment 284 will clarify that when the medical practitioner who is considering granting an emergency detention certificate is able to consult the mental health officer and the MHO has the opportunity to consent and declines to do so, the medical practitioner is not allowed to grant an emergency detention certificate. Amendment 322 will clarify the same situation for extensions to short-term detention certificates.
Amendment 304 is a technical amendment and amendment 308 will improve drafting. Amendments 319 and 320 will improve the drafting of section 41 and amendment 734 will improve the drafting of section 228.
I move amendment 280.
Amendment 280 agreed to.
Amendments 281 to 287 moved—[Mrs Mary Mulligan]—and agreed to.
Section 33—Duties on hospital managers: examination, notification etc
Amendment 288 is grouped with amendments 289, 314, 317, 347, 348, 358, 359, 361, 435, 441, 457, 468, 471, 472, 165, 186, 191, 192, 479, 481, 483, 574, 588, 589, 614, 622, 623, 646, 650, 651, 652, 653, 691 and 738.
Amendment 651 will introduce a new section that makes general provisions for the appointment of responsible medical officers throughout the bill. That will make it possible to remove specific references to appointing RMOs.
Amendments 288 and 289 will remove the requirement on hospital managers to appoint an RMO in respect of a patient who is made subject to emergency detention, and amendment 314 will remove from section 37 the duty on hospital managers to appoint an RMO in respect of a patient who is made subject to short-term detention.
Amendments 347, 358, 435, 441, 165, 186, 191, 479, 574, 588, 614, 622, 646 and 691 will remove the sections that deal with the appointment of an RMO in respect of the various orders in the bill and amendments 359, 457 and 468 will remove the references in the bill to the sections that will be deleted by those amendments. Amendments 471, 472 and 481 will add other appropriate references to the new section.
Amendment 652 will introduce a new section that makes general provisions throughout the bill for the times when a social circumstances report should be prepared. That will make it possible to remove specific references to preparing social circumstances reports. Amendments 317, 348, 361, 192, 483, 589 and 623 will remove the sections that provided for preparation of the social circumstances reports.
Amendment 650 will introduce a new section that will make general provisions, throughout the bill, for designation of mental health officers who are responsible for a patient's case.
Amendment 653 will insert in the bill a necessary definition of "relevant event", as the term is used in amendment 650. Amendment 738 will delete the definition of social circumstances reports that is used in section 288, because it is no longer required.
I move amendment 288.
Amendment 288 agreed to.
Amendment 289 moved—[Mrs Mary Mulligan]—and agreed to.
Amendment 290 is grouped with amendments 297 to 299.
Amendment 297 will introduce a new section that will place a duty on the approved medical practitioner to revoke an emergency detention certificate if he or she is not satisfied that the criteria for emergency detention are met. The new section will replace section 33(3), which will be removed by amendment 290.
Amendment 298 will remove section 34A, which gave the Mental Welfare Commission for Scotland power to revoke an emergency detention certificate. The commission has advised us that, because it requires a full meeting of the commission to approve such an intervention, it would never be practical for such a power to be used within the 72-hour time limit that is set for emergency detention. Accordingly, that power is not required.
Amendment 299 will, as a consequence of amendments 297 and 298, revise section 34B, which will, if amended, provide a duty on the approved medical practitioner to notify the patient and the managers of the hospital if he or she decides to revoke an emergency detention certificate.
I move amendment 290.
Amendment 290 agreed to.
Amendment 291 is grouped with amendments 292 to 296, 300, 315, 316, 323 to 326, 328 and 329.
Amendment 291 will provide that hospital managers should "inform" rather than "give notice" to certain persons of the granting of an emergency detention certificate. That will mean that notice does not have to be in writing and it will enable managers to do so faster.
Amendment 292 will clarify the start and end point of the period of seven days in which hospital managers must pass on the information that has been provided to them by the medical practitioner as per section 32(2), concerning emergency detention. Amendment 316 will clarify the start and end point of the period of seven days within which the managers of the hospital must inform the tribunal and the Mental Welfare Commission of the granting of a short-term detention certificate. The period will begin at the start of the day on which the hospital managers receive the information or on which the certificate is granted, so that that full day counts towards the seven-day period.
Amendment 293 will tidy up the drafting of section 33(4)(b)(i) and amendments 294, 295 and 296 will tidy up the drafting of sections 33(5) and 33(5A).
Amendment 300 will revise section 34B to place a duty on the approved medical practitioner to notify the patient and the managers of the hospital if he or she decides to revoke an emergency detention certificate. The hospital managers are then required to inform the persons who are mentioned in sections 33(5) and 33(5A).
Amendments 315, 324, 325 and 328 will ensure that any guardian and any welfare attorney of a patient are informed of the granting of a short-term detention certificate, the granting of an extension certificate and revocation of short-term detention or its extension by the responsible medical officer or the Mental Welfare Commission.
Amendments 323 and 324 will require the approved medical practitioner who grants an extension certificate to give the certificate to the managers of the hospital in which the patient is detained, and to give notice to the mental health officer who has responsibility for the patient's case. Amendment 324 will also remove local authorities from that list.
Amendment 326 will add a guardian or welfare attorney of the patient to the list of persons who are entitled to make representations, or to lead or produce evidence to the tribunal, when the patient or named person applies to the tribunal for revocation of a short-term detention or extension certificate. Amendment 329 will require the Mental Welfare Commission to inform the tribunal when it revokes a short-term detention or extension certificate.
I move amendment 291.
Amendment 291 agreed to.
Amendments 292 to 296 moved—[Malcolm Chisholm]—and agreed to.
After section 33
Amendment 297 moved—[Malcolm Chisholm]—and agreed to.
Section 34A—Commission's power to revoke emergency detention certificate
Amendment 298 moved—[Malcolm Chisholm]—and agreed to.
Section 34B—Revocation of emergency detention certificate: notification
Amendments 299 and 300 moved—[Malcolm Chisholm]—and agreed to.
After section 34B
Group 13 is on the suspension of measures authorising detention and other measures. Amendment 301 is grouped with amendments 302, 330, 331, 37 to 55, 144, 145, 147, 148, 151, 152, 166 to 174, 476, 175 to 178, 180 to 183, 477, 184, 185, 478, 187, 188, 190, 193, 194, 196, 586, 197 to 207, 647, 208 to 213, 648, 214, 215, 709 and 710.
Amendments 301 and 330 will introduce new sections that will enable a responsible medical officer to grant a suspension of the detention requirement in respect of a patient who is subject to emergency detention or short-term detention. The amendments will enable the responsible medical officer to set conditions in relation to the suspension and are broadly in line with provision that was made in the Mental Health (Scotland) Act 1984 regarding leave of absence.
Amendments 302 and 331 will provide the responsible medical officer with a power to revoke a suspension certificate that is granted in respect of emergency or short-term detention. Amendment 302 will provide notification requirements that are similar to those for the revocation of emergency detention. Amendment 331 will require the responsible medical officer to give notice of revocation of a suspension certificate in respect of short-term detention to the patient, the named person, the mental health officer, any person who is empowered to escort the patient while on suspension and the Mental Welfare Commission.
Amendments 709 and 710 will authorise any person who accompanies a patient as a condition of suspension of emergency or short-term detention to take into custody or resume the charge of that patient if he absconds. The amendments will modify section 205(2)(a) and (3)(b) and are consequential on amendment 708.
On 29 January, during stage 2 consideration of the bill, the Health and Community Care Committee voted in favour of amendments 257 and 258, which were lodged by Mary Scanlon and which sought to adjust section 83. However, section 83 was deleted following a vote in favour of Executive amendment 604, which replaced section 83 with section 90A. The Executive undertook to lodge amendments at stage 3 to take account of the views that lay behind amendments 257 and 258. We have therefore lodged amendments to sections 90A and 91 that will implement the spirit of amendments 257 and 258. I note in passing that those are the kind of amendments to which I referred earlier—they are responsive to the will of the committees, as is our custom in the Scottish Parliament.
In particular, amendment 49 will require the responsible medical officer to inform the patient, the named person and the mental health officer of the measures that are to be suspended and the period for which the responsible medical officer proposes to suspend them. Amendment 49 will also require the responsible medical officer to give his reasons. Amendment 50 will ensure that the Mental Welfare Commission is also made aware of those matters.
At stage 2, amendment 258 proposed that the responsible medical officer should specify in advance any circumstances that would be likely to lead to the premature end of the period of suspension. Through amendment 55, which will amend section 91, we will provide that the responsible medical officer should inform the patient, named person and mental health officer of the reasons for ending the period of suspension, if and when he does so. That is because we do not think that it is possible for the responsible medical officer to predict every scenario in which he might wish to end the period of suspension. Amendment 54 is consequential on amendment 55. Certain other matters that were raised at stage 2 in amendments 257 and 258, such as the period of notice that should be given, were tightened up by Executive amendments at stage 2.
Amendments 41 and 42 will enable a suspension of detention under section 90 to be granted for a series of events, whether or not they include travel, and will implement the spirit of amendment 510, which Shona Robison lodged at stage 2.
Amendments 38 and 40 will remove section 90(3A) because the provision that the suspension of detention cannot exceed the period for which detention is authorised is no longer believed to be necessary.
Amendments 45 and 46 will modify section 90(6) to implement the policy that notice should be given to the persons who are listed in section 90(6) where successive periods of suspension of detention exceed 28 days. The bill already provides a similar provision for cases in which a single period of suspension of detention exceeds 28 days.
Amendment 168 will insert text, the consequence of which is that all persons who are subject to an assessment order cannot be granted a suspension of detention without prior authorisation by the Scottish ministers. That will ensure that better risk assessment is undertaken for patients whose risk to others has perhaps not been quantified.
Amendment 169 will remove section 99B(3). We do not now consider it necessary to state that the period for which the person can be granted a suspension of detention cannot be longer than the period for which the assessment order would exist. Amendment 166, which is consequential on amendments 168 and 169, will remove text that is no longer necessary.
Amendment 170 will change section 99B to make it consistent with the civil provisions in the bill and will enable a suspension of detention to be granted for an event or a series of events. Amendments 171, 178 and 478 will move the relevant sections to a more appropriate place in the bill. They will move the provisions on suspension of detention in parts 8A to 11 to one location.
Amendment 144 will remove section 52C(9), which will no longer be necessary because of the changes that amendment 168 will make to section 99B. If all assessment orders require the consent of the Scottish ministers prior to the granting of a suspension of detention, the court does not need the power to make an order under section 52C(9). Amendment 145 is consequential on amendment 144, as are amendments 147 and 148. Amendment 147 will ensure that the Scottish ministers will receive from the RMO the report on the review of the assessment order after 28 days and amendment 148 will ensure that the court will tell the Scottish ministers if it extends the order by seven days.
Amendments 151 and 152 will have the same effect for treatment orders as amendments 144 and 145 will have for assessment orders.
Amendment 180 will delete section 99E(1) and follows from amendment 168, which will insert a new subsection into section 99C to reflect the policy that suspension of detention certificates for persons who are subject to an assessment order should be granted only with the prior consent of the Scottish ministers.
Amendments 187, 188, 190, 193, 194 and 196 will delete sections in parts 8B and 8C that relate to suspension of detention for persons who are subject to treatment orders or interim compulsion orders. Those sections will not be required following amendment 197, which will add treatment orders and interim compulsion orders to section 160D. That will have the effect that sections 160D to 160F will apply to those orders in the same way as they apply to compulsion orders with a restriction order, hospital directions and transfer for treatment directions. Essentially, that means that suspensions of detention for persons who are subject to those orders and directions can be granted only with the consent of the Scottish ministers; that the total duration of a suspension cannot exceed nine months in a 12-month period; and that the Scottish ministers, as well as the RMO, can recall a patient to hospital from suspension.
Amendment 202 will make it clear that the notification requirements in section 160D(9) apply when suspension of detention that would total more than 28 days has been granted to a patient.
The remaining amendments in the group are technical and will improve drafting of relevant sections.
I move amendment 301.
Amendment 301 agreed to.
Amendment 302 moved—[Malcolm Chisholm]—and agreed to.
Group 14 is on the effect of certain certificates or orders on other certificates or orders. Amendment 303 is grouped with amendments 332 to 357, 140 to 142 and 470.
Amendments 303 and 333 will clarify the status of the patient on a community-based compulsory treatment order who is made subject to, respectively, an emergency detention or short-term detention certificate. All the measures in the compulsory treatment order will be suspended for the duration of the emergency or short-term detention. The only exception is any treatment authority that is specified under section 54(1)(b), which persists through emergency detention.
Amendment 334 will extend section 44 to cover interim compulsory treatment orders. That section will now provide that a short-term detention certificate is automatically revoked when an interim compulsory treatment order or compulsory treatment order is made in respect of the patient by virtue of amendment 335.
Amendment 336 will move section 44 into chapter 1 of part 7.
Amendments 332 and 357 will improve the drafting of sections 43 and 56G, respectively, by clarifying that the granting of short-term detention terminates emergency detention and that the granting of a compulsory treatment order terminates an interim compulsory treatment order.
Amendments 140, 141 and 142 will clarify the status of the compulsory treatment order or interim compulsory treatment order during the period of detention authorised by sections 85(5A) or 86(2), or by subsection (2B) of the new section that will be created by amendment 131. The amendments will introduce three new sections that will ensure that the terms of the pre-existing order will be suspended during the period of hospital detention. However, each new section will provide that any treatment authority that is granted under section 54(1)(b) will continue in effect throughout the period of detention.
Amendment 470 makes it clear that, should a person be made subject to an assessment or treatment order who is currently subject to an interim compulsory treatment order or a compulsory treatment order, the latter orders will be suspended while the person remains subject to the assessment or treatment order.
I move amendment 303.
Amendment 303 agreed to.
Section 35—Short-term detention in hospital
Amendments 304 to 311 moved—[Mrs Mary Mulligan]—and agreed to.
Section 36—Mental health officer's duty to interview patient etc
Group 15 is on the duties of the mental health officer. Amendment 312 is grouped with amendments 313, 340, 385, 386, 409 and 410.
Amendments 385, 386, 409 and 410 will qualify the duty on the mental health officer to interview the patient when the responsible medical officer has determined that a compulsory treatment order should be extended with or without variation. The mental health officer need not interview the patient when it is impracticable for him to do so.
Amendments 312 and 313 will improve the drafting of section 36.
Amendment 340 will make a necessary consequential amendment to section 51(6), following amendment at stage 2. That subsection will, if the amendment is agreed to, correctly refer to subsection (3A).
I move amendment 312.
Amendment 312 agreed to.
Amendment 313 moved—[Mrs Mary Mulligan]—and agreed to.
Section 37—Hospital managers' duties: notification etc
Amendments 314 to 316 moved—[Mrs Mary Mulligan]—and agreed to.
Section 38—Social circumstances report
Amendment 317 moved—[Mrs Mary Mulligan]—and agreed to.
Section 41—Extension of detention pending application for compulsory treatment order
Amendments 318 to 322 moved—[Mrs Mary Mulligan]—and agreed to.
Section 42—Extension certificate: notification
Amendments 323 and 324 moved—[Mrs Mary Mulligan]—and agreed to.
Section 39—Responsible medical officer's duty to review continuing need for detention
Amendment 325 moved—[Mrs Mary Mulligan]—and agreed to.
Section 40—Patient's right to apply for revocation of short-term detention certificate or extension certificate
Amendment 326 moved—[Mrs Mary Mulligan]—and agreed to.
Group 16 consists of amendments that are consequential on amendments that were agreed to at stage 2. Amendment 327 is grouped with amendments 431, 437 to 440, 475, 489, 493, 541, 545, 564, 567, 602, 613, 616, 625, 626, 629, 644, 248, 735 and 737.
As the title of the group makes clear, these amendments are all minor technical amendments that follow amendments that were agreed to at stage 2.
I move amendment 327.
Amendment 327 agreed to.
Section 42B—Revocation of short-term detention certificate or extension certificate: notification
Amendments 328 and 329 moved—[Mrs Mary Mulligan]—and agreed to.
After section 42B
Amendments 330 and 331 moved—[Mrs Mary Mulligan]—and agreed to.
Section 43—Effect of subsequent short-term detention certificate on emergency detention certificate
Amendment 332 moved—[Mrs Mary Mulligan]—and agreed to.
After section 43
Amendment 333 moved—[Mrs Mary Mulligan]—and agreed to.
Section 44—Effect of subsequent compulsory treatment order on short-term detention certificate
Amendments 334 to 336 moved—[Mrs Mary Mulligan]—and agreed to.
Section 48—Application for compulsory treatment order: notification
Group 17 is on the application for and making of compulsory treatment orders in respect of notification and the right to be heard. Amendment 337 is grouped with amendments 341 and 346.
Amendment 337 will require the mental health officer to notify the commission that he is going to make an application for a compulsory treatment order as soon as practicable after the duty to do so arises.
Amendment 341 will allow the patient's responsible medical officer—in the case that he was not one of the doctors who provided a medical report in respect of an application for a compulsory treatment order—to make representations or to lead or produce evidence at the tribunal hearing in relation to the application.
Amendment 346 will tidy up the drafting of the requirement in section 53A for the tribunal to afford persons the opportunity to make representations and lead evidence before it grants an interim compulsory treatment order.
I move amendment 337.
Amendment 337 agreed to.
Section 51—Mental health officer's duty to prepare proposed care plan
Group 18 is on proposed care plans, care plans and part 9 care plans. Amendment 338 is grouped with amendments 339, 360 and 482.
Amendment 338 will make a necessary consequential amendment to section 51(4)(f), following that section's amendment at stage 2.
Amendment 339 will remove the requirement for the proposed care plan to be signed by the medical practitioners who submitted the mental health reports in respect of an application for a compulsory treatment order. That is in response to views having been expressed to the Executive that such a requirement is unnecessarily bureaucratic and time consuming and does not offer any additional safeguards. We believe that it is sufficient for the proposed care plan to be signed by the mental health officer alone.
Amendment 360 will adjust the wording of section 58 to make it clear that the care plan should record the treatment that is currently being given to the patient as well as treatment that is proposed.
Amendment 482 will bring section 101A into line with changes made to the equivalent civil provision in part 7. The amendment makes it clear that the part 9 care plan should record both the treatment that it is proposed be given to the patient and that which is already being given to the patient.
I move amendment 338.
Amendment 338 agreed to.
Amendments 339 and 340 moved—[Mrs Mary Mulligan]—and agreed to.
Section 53—Powers of Tribunal under section 52: compulsory treatment order
Amendment 341 moved—[Mrs Mary Mulligan]—and agreed to.
Group 19 is on compulsory treatment orders not authorising detention, in respect of the conditions to be satisfied. Amendment 74 is grouped with amendments 342, 343, 75 and 344.
Amendments 74 and 75 are responses to the concerns that have been expressed by mental health organisations and user groups in the light of the 284 per cent rise in the number of episodes of long-term orders between 1985 and 2001.
The bill does not differentiate between the type of patient for whom a community-based CTO would be more appropriate and the type of patient for whom a hospital-based CTO would be more appropriate. My amendments in this group attempt to make such a definition.
Research undertaken by the Scottish Executive's central research unit considered the international use of compulsory treatment orders. On the question of whom the orders suit, that research stated:
"Guidance is generally unclear. With no clear guidelines as to who is suitable it is difficult to assess whether CTOs are under or over used."
The Millan committee suggested that the new orders be used for patients in three categories in particular: patients
"who have relapsed whilst off medication in the community in the past, presenting a risk to themselves or others …
who have a history of refusing to take their medication once there is no legal compulsion to do so; and …
for whom all other means of trying to negotiate with them and maintain them in the community without compulsion have been tried and failed."
It is clear for whom the Millan committee thought community-based CTOs would be appropriate. I believe that those factors should be stated in the bill, as Millan recommended, so that it will be clear to all for whom community-based CTOs are appropriate. That will reduce the likelihood of an inappropriate rise in the use of the orders, which is the fear of many of the organisations that I mentioned earlier.
I move amendment 74.
This group of amendments deals with one of the issues that has caused the most controversy during the bill's passage and during the wide consultation that took place prior to its introduction. That subject is, of course, compulsory treatment in the community.
The Executive amendments do not seek to rule out the possibility of community-based compulsory treatment, but seek to impose limitations on its use. We are satisfied that Millan was right to recommend that it should no longer be necessary in every case to detain in hospital a person who requires compulsory treatment. That view was endorsed by the Health and Community Care Committee in its stage 1 report and during stage 2 consideration. However, we know that there are still fears that the new provisions might be misused.
Amendments 74 and 75 seek to limit community-based orders to a particular kind of patient. They are similar to amendments that were lodged at stage 2 and that were not accepted by the committee. Those amendments seek to identify the kind of patient for whom a community-based order might be appropriate and to limit the orders to them. The situation envisaged under amendment 75 covers the sort of case where community-based orders might be particularly appropriate, but we cannot say that that situation is the only one where such an order might be the best option.
For example, a person with learning disabilities might be involved in dangerous or inappropriate behaviour. They might be able to be given a structured programme of support and treatment in the community, backed up by a residence requirement imposed under a CTO. If that were to be provided, that would surely be better than doing nothing, detaining the patient in hospital or allowing them to be dealt with under the criminal justice system. That is absolutely consistent with the Millan report.
Amendment 75 is, to an extent, sourced from paragraph 36 of the Millan report, but the examples that it outlines are prefaced by the words:
"The kind of patients for whom such an order would be particularly relevant might include".
It goes on to give illustrative examples, which have now become the exclusive subject matter of amendment 75.
I have referred to one example relating to learning disabilities, but there could well be others. One of the fundamental aims of the Millan report and of the bill is to provide for flexible orders, based on the needs of the patient, and to respect the principle of the least restrictive alternative. Shona Robison's amendments could work against that. They could mean that a tribunal could not make a community-based order, even if an order was necessary and if the patient preferred an order in the community to detention.
It is important to remember that the bill contains comprehensive safeguards. The mental health tribunal for Scotland has to be persuaded that the criteria for making an order are met and that the order is necessary. It will consider the specific terms of the order against the background of the care plan, and it must exercise its powers in the way that appears to it to involve the minimum restriction on the freedom of the patient that is necessary in the circumstances.
Those are stringent tests, but they allow the tribunal the flexibility to ensure that the order is truly based on the needs of the individual patient. We must be careful not to remove that flexibility. It is one of the fundamental aims of Millan to move away from a one-size-fits-all model of detention to a patient-centred model of care and treatment.
Amendment 343 is set out in more general terms. It would require regulations to specify further conditions that must be met before a community-based order could be imposed. That clearly allows more scope for flexibility, but we cannot be sure at this stage that it would be possible to draft regulations that would improve on the safeguards in the bill but that would not have unintended adverse consequences for some service users.
However, we have listened carefully to the concerns and fears expressed by some service users, and we have concluded that we should not reject such regulations out of hand. Executive amendments 342 and 344 allow—but do not require—further regulations to be made. Such regulations would set out further conditions to be met before a compulsory treatment order that does not involve detention is authorised. As we prepare for implementation, we will consult further on the possible content of any such regulations.
I apologise that the Executive amendments were submitted late, but I was personally involved in discussions with the Scottish Association for Mental Health. I am not saying that its members support my amendments, but I understood the SAMH's concerns, and I wanted to make some movement on this issue.
The provisions in this area of the bill are not the only way in which we are approaching this issue. I said during the stage 1 debate that we would be monitoring carefully the overall numbers of community-based compulsory treatment orders. I am mindful of what Shona Robison said about the increasing number of compulsory orders now, although those are hospital-based orders.
The issue needs to be kept under review and, among its other responsibilities, the Mental Welfare Commission for Scotland has a specific remit to do that. The commission will fulfil that role under the bill, and research will be carried out. We will be monitoring the situation very closely because I understand the concerns that people have. The controversies around community treatment orders suggest that they could be used wrongly.
The safeguards in the bill are strong, but I am happy to move my amendments in this group in order to allow the Parliament at a future date, very easily and without recourse to primary legislation, to require that more specific restrictions be placed on the way in which the important new orders are used. The Health and Community Care Committee agreed that the orders represent a progressive move, although I know that others do not agree. The committee took the view that, in principle, community-based orders are in the interest of patients.
Through my amendments in the group, I hope to reassure the Parliament, services users and the voluntary organisations that raised the issue that we have provided for another way to ensure that the orders are used for their intended purposes. There are also all the additional ways in which we shall ensure that we keep a very close watch on the orders, and that we use them only where they are the least restrictive alternative and are in the interest of the patient.
I hope that members agree that that is a reasonable compromise. That is the basis on which I will move my amendments and ask Shona Robison not to press her amendments.
I listened carefully to what the minister said. It is difficult for us to know whether the Scottish Association for Mental Health, the National Schizophrenia Fellowship (Scotland), Depression Alliance Scotland, Children in Scotland, the Scottish Human Services Trust and the 63 other organisations that signed up to Shona Robison's amendments are satisfied with the minister's amendments, given that they were lodged so late.
I hope that the minister appreciates that that presents a difficulty for us. I empathise with him on this point, because the bill is about balancing the needs of the patients and the duties of health and other professionals. Nowhere is that more important than in the advance statements.
Amendments 74 and 75 are intended to define which patients could be considered. The 284 per cent rise in the section 18 orders between 1985 and 2001 should give us cause for concern. Concerns were raised at stages 1 and 2 about the fact that there has been no research into why that rise occurred. There is a worry that that trend is likely to continue or even escalate when the community-based compulsory treatment orders are introduced. As Shona Robison said, the guidance is generally unclear, and with no clear guidelines as to who is suitable, it is difficult to assess whether CTOs are under or over-used.
However, taking a balanced view, I note that the Royal College of Psychiatrists sent in another last-minute submission. I find this area difficult to deal with because the late lodging of the Executive amendments means that I did not have time to get back to the organisations and ask whether they are satisfied with them. The submission from the Royal College of Psychiatrists states:
"Essentially they are seeking to limit the applicability of CTO's by defining the ‘type' of patient and the kind of situation in which a CTO would be most appropriate. While Millan did comment on the kinds of clinical situations where a CTO might be helpful, we think it would be very ill-advised to enshrine these descriptions in an Act that is likely to be in place for decades to come."
The final point states:
"decisions made by Psychiatrists will have to balance the need for patient autonomy and ‘least restrictive alternative' against an individual's need for treatment or public safety. These decisions are always difficult ones, and in our view can only be made on an individual case-by-case basis."
I fully understand that point. Those are the difficulties in balancing the patient's needs and wishes against the psychiatrists' duty to care.
Amendment 343 would allow ministers to specify in regulations the additional conditions that must be met before community-based treatment orders are made. The amendment would also impose on ministers a requirement to consult. Indeed, the minister seemed to make that point.
The Millan committee suggested that the new order should be used, as Shona Robison said, for patients
"who have relapsed whilst off medication in the community in the past, presenting a risk to themselves or others"
and
"who have a history of refusing to take their medication once there is no legal compulsion to do so".
Therefore amendment 343 would enable those and other conditions to be specified in regulations. That would introduce some flexibility, and if it were decided over time that those conditions could be changed, amending the regulations could achieve that.
The minister talked about the least restrictive alternative to compulsory treatment orders. Many of those who gave evidence at stage 2, particularly Maggie Keppie of the Edinburgh users forum, stated that they did not want their homes to become hospitals. For many people, their home is a private place in which they wish to live in dignity with respect and privacy. The home is, for many people, not the least restrictive alternative. For some people, the hospital is the preferred choice. I appreciate the difficulties, but we must not lose sight of the patient's needs and the enormous patient experience that dealing with mental health produces. We all recognise that that voice has not been listened to sufficiently in the past.
I listened carefully to what the minister said this morning and welcome the movement that he has made in amendment 342. However, I believe that amendment 343, in the name of Shona Robison, addresses more completely concerns about the advent of community-based CTOs.
I want to speak to amendments 74 and 75 and to articulate some of those concerns. The amendments are supported by all the voluntary organisations that are involved with the mental health community and would qualify the use of community-based compulsory treatment orders in line with the original intent of the Millan committee. User groups are deeply sceptical about the notion that community-based compulsory treatment orders will always be the least restrictive alternative. Because of the many gaps that exist in community-based services, there is suspicion that the new orders will amount to little more than compulsory medication in people's homes, as Mary Scanlon outlined, and will involve no reciprocity.
The bill does not specify the types of patients for whom a community-based compulsory treatment order would be more appropriate than a hospital-based compulsory treatment order. Surely the last thing that we want to do is to refuse people who need it the kind of asylum—in the true sense of the word—that hospital provides.
Amendments 74 and 75 spell out the Millan committee's recommendations concerning those who are most suitable for community-based treatment. As proposed new subsection (5B) indicates, the committee's clear intention was that community-based CTOs should be used as preventive measures to stop people becoming so ill that they have to be hospitalised. The fear is that, unless conditions for their use are tightly drawn, community-based compulsory treatment orders may increase compulsion significantly. Furthermore, it is feared that the orders may be used as a resource management tool to relieve pressure on an understaffed national health service that has a decreasing bed capacity.
If the Executive were to accept amendments 74 and 75, people's fears could be effectively allayed and the bill's credibility with service users would be enhanced considerably. That is why I support amendments 74 and 75.
As colleagues have said, this is one of the areas of controversy in the bill. The minister said that the Health and Community Care Committee supported community-based compulsory treatment orders when it considered the matter. This is one of many issues on which we had to make a judgment call and to balance the evidence that was before us.
In the end, we supported community-based compulsory treatment orders on the basis that there was a need for greater flexibility in dealing with individual patients. Some of the points that members have made bear that out. We need a system that ensures that any person who does not want to be treated in the community will not be treated in the community or their own home and will have the place of asylum to which Adam Ingram eloquently alluded.
However, there are others who want the least destructive influence on their life and the option that is least restrictive for them and their family. We heard evidence on both sides of the argument from service users. We cannot get away from the fact that a certain stigma is still attached to mental health difficulties in our society, although we should do everything possible to remove that. For some people, a stigma is attached to being taken away from their families and placed in a psychiatric ward. A balance needs to be struck.
In giving its support to the Executive's point of view, which to a large extent echoes the Millan report, the committee was saying that it shared many of the service users groups' concerns. That is why, at stage 1, we supported Shona Robison's suggestion of a trigger—some way in which, if an unacceptable number of community-based compulsory treatment orders was made, that would be brought to the attention of the Mental Welfare Commission for Scotland and ministers. The Executive did not accept that but accepted that there was a need for close monitoring of the bill's impact and effect. Community-based compulsory treatment orders are one of the key areas in which the bill's impact must be monitored. Obviously, a role exists for the Health and Community Care Committee's successor committee in that regard.
I welcome the minister's comments. He has obviously listened to many of the service users' concerns, moved on the issue and lodged amendment 342. We need monitoring and we need to ensure that the tribunals' safeguards and powers will work. However, further consultation of service users on regulations to be made about which patients community-based CTOs would most benefit will prove beneficial. It is a question of balance. Mary Scanlon mentioned the Royal College of Psychiatrists taking the view that decisions to be made by psychiatrists will always be made on an individual, case-by-case basis. We do not want to rule out the community-based CTO as a flexible option for somebody whom it might assist in giving the least restrictive alternative.
The other important point that Adam Ingram made is that what lies behind many service users' concerns is the idea that services and actions should be geared to the needs and circumstances of the patient and their families. We therefore need a substantial investment in community-based services to ensure that those who are subject to community-based CTOs are supported properly in the community. Otherwise, the flexible approach will ultimately fail.
The greatest concern of most of the users organisations is the increase in the number of compulsory orders between 1985 and 2001, which is estimated to be around 280 per cent. There is no clear evidence as to why that has occurred, but I suggest that the most likely cause is the increasing use of drugs in association with mental illness. They are not necessarily causally related, but are nevertheless interrelated. That is causing a major problem.
It is important that we consider the bill in the round. The basic principle is that the least restrictive approach should be applied. The minister has referred to that. Amendments 342 and 344 in the minister's name go a long way to answering my concerns in that regard, because the minister now proposes to ensure that he consults people about regulations and that those regulations should be specified. That is helpful.
However, we need to go further than that. As Margaret Smith said, it will be important to monitor the bill's progress. The community-based compulsory treatment order is a new area for us and we need to be sure that the new order works effectively and is not abused. I have fewer fears about its abuse because the tribunal will manage it and each individual will have to have a care plan. Those two facets will prevent the abuse of the community-based CTO.
However, although I will vote for the Executive amendments 342 and 344 and not for amendments 74, 343 and 75, I ask the minister for an undertaking that adequate research will be done from the outset. As I said at stage 1, the verdict of the international research on community-based compulsory treatment orders—they are called various things in various countries, but other countries have the same sort of order—is at the moment not proven. There is considerable evidence that, if the resources applied in the community are adequate, the need for CTOs or some equivalent diminishes. The test for the Executive will be whether the number of CTOs is minimised by the effective input of resources into the community.
I therefore ask that the CTOs be monitored effectively and for an undertaking that a research programme into CTOs should be commissioned from the outset. On that basis, I offer my support for amendments 342 and 344.
I will start with Richard Simpson's last point. I assure him that we have established a research programme that will monitor the bill's operation, including community-based compulsory treatment orders. I agree with Richard Simpson entirely and made it clear in my opening speech that it is very important to research the effectiveness of the orders and monitor their implementation.
I understand fully—and have done from the beginning—the concerns that some service users have. I note and understand the comments of Maggie Keppie, who is a member of the Edinburgh users forum. I have discussed the matter with her. I am honoured to be the forum's honorary president, so I hope that it does not throw me out of office if I do not entirely support the views that it has put forward.
Adam Ingram also reflected those fears that compulsion will increase as a result of the CTO. That is precisely what, in various ways, we must and shall avoid.
Richard Simpson referred to how CTOs will be managed by the tribunal and to the fact that each individual should have a care plan. That is an important part of the bill's provisions. Research and monitoring have been referred to.
Amendments 342 and 344 provide a further avenue for the Parliament to take action if it starts to have concerns about the operation of community-based compulsory treatment orders. That is the right way to do it. We should let the orders start and watch them carefully. If there are problems, we should act, which amendments 342 and 344 will enable us to do.
That is the right way. If we go down the route that Shona Robison proposes in different ways in her amendments 74, 75 and 343, we shall put at risk the flexibility that is potentially a positive feature of community-based compulsory treatment orders.
Members have spoken about service users wanting to be in hospital rather than the community when they are under compulsion. In a way, that has happened, because part of the response to Maggie Keppie's evidence is that the bill explicitly provides that forcible treatment can be administered in a hospital only. There is no question of that taking place in the patient's home.
However, we should also reflect on the opposite situation: someone who would prefer to have the compulsory treatment in the community rather than the hospital if the choice had to be made. The danger of Shona Robison's amendments is that we will disadvantage those people by removing the flexibility that the bill contains.
Although I acknowledge all the understandable concerns of members and service users—I share those concerns, which is why I will be watchful of how the community-based CTOs work—I strongly urge members to support amendments 342 and 344, which I lodged to address those concerns, rather than support the ultimately inflexible approach that Shona Robison recommends.
I will be brief. I suppose that to speak on others' behalf is always dangerous to do. However, it would be fair to say that the mental health organisations, user groups and most of the individuals to whom I have spoken would prefer amendments 74 and 75 to be agreed to for the reasons that Adam Ingram outlined eloquently. For that reason, I will press those amendments.
However, if amendments 74 and 75 are not successful, I would regard amendment 343 as a compromise amendment. I welcome the minister's movement, but if there are to be regulations, let us have them. If the minister is going to consult on regulations, let us have them to consult on. He should not say that he may have them, because to lead organisations up the path by talking about having regulations and then not to have them is not the best approach. That could lead to further feelings of alienation among some of the organisations that are concerned that their views have not been taken on board.
I strongly urge the minister to compromise on amendment 343, which would mean that ministers would put further restrictions on the use of community-based CTOs. The minister would be able to go out and consult on the regulations. That would be better than leaving the situation so vague. There is no indication of whether there will be regulations. If there were no regulations, that would be too much of a compromise for most of the mental health user groups that I have spoken to. Therefore, I intend to press my amendments.
The question is, that amendment 74 be agreed to. Are we agreed?
No.
There will be a division.
For
Adam, Brian (North-East Scotland) (SNP)
Campbell, Colin (West of Scotland) (SNP)
Canavan, Dennis (Falkirk West)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Douglas-Hamilton, Lord James (Lothians) (Con)
Ewing, Mrs Margaret (Moray) (SNP)
Fergusson, Alex (South of Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gibson, Mr Kenneth (Glasgow) (SNP)
Goldie, Miss Annabel (West of Scotland) (Con)
Grahame, Christine (South of Scotland) (SNP)
Harding, Mr Keith (Mid Scotland and Fife) (Con)
Ingram, Mr Adam (South of Scotland) (SNP)
Johnstone, Alex (North-East Scotland) (Con)
Lochhead, Richard (North-East Scotland) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
McAllion, Mr John (Dundee East) (Lab)
McLeod, Fiona (West of Scotland) (SNP)
Monteith, Mr Brian (Mid Scotland and Fife) (Con)
Morgan, Alasdair (Galloway and Upper Nithsdale) (SNP)
Mundell, David (South of Scotland) (Con)
Neil, Alex (Central Scotland) (SNP)
Paterson, Mr Gil (Central Scotland) (SNP)
Quinan, Mr Lloyd (West of Scotland) (SNP)
Robison, Shona (North-East Scotland) (SNP)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Sturgeon, Nicola (Glasgow) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Against
Baillie, Jackie (Dumbarton) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Fitzpatrick, Brian (Strathkelvin and Bearsden) (Lab)
Gillon, Karen (Clydesdale) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (Edinburgh Pentlands) (Lab)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, Mr John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Jenkins, Ian (Tweeddale, Ettrick and Lauderdale) (LD)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macintosh, Mr Kenneth (Eastwood) (Lab)
MacKay, Angus (Edinburgh South) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McLeish, Henry (Central Fife) (Lab)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Raffan, Mr Keith (Mid Scotland and Fife) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
Scott, Tavish (Shetland) (LD)
Simpson, Dr Richard (Ochil) (Lab)
Smith, Iain (North-East Fife) (LD)
Smith, Mrs Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Thomson, Elaine (Aberdeen North) (Lab)
Watson, Mike (Glasgow Cathcart) (Lab)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
Abstentions
Smith, Elaine (Coatbridge and Chryston) (Lab)
The result of the division is: For 31, Against 61, Abstentions 1.
Amendment 74 disagreed to.
Amendment 342 moved—[Malcolm Chisholm]—and agreed to.
Amendment 343 moved—[Shona Robison].
The question is, that amendment 343 be agreed to. Are we agreed?
No.
There will be a division.
For
Adam, Brian (North-East Scotland) (SNP)
Campbell, Colin (West of Scotland) (SNP)
Canavan, Dennis (Falkirk West)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Douglas-Hamilton, Lord James (Lothians) (Con)
Ewing, Mrs Margaret (Moray) (SNP)
Fergusson, Alex (South of Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gibson, Mr Kenneth (Glasgow) (SNP)
Goldie, Miss Annabel (West of Scotland) (Con)
Grahame, Christine (South of Scotland) (SNP)
Hamilton, Mr Duncan (Highlands and Islands) (SNP)
Harding, Mr Keith (Mid Scotland and Fife) (Con)
Ingram, Mr Adam (South of Scotland) (SNP)
Johnstone, Alex (North-East Scotland) (Con)
Lochhead, Richard (North-East Scotland) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
McAllion, Mr John (Dundee East) (Lab)
McLeod, Fiona (West of Scotland) (SNP)
Monteith, Mr Brian (Mid Scotland and Fife) (Con)
Morgan, Alasdair (Galloway and Upper Nithsdale) (SNP)
Mundell, David (South of Scotland) (Con)
Neil, Alex (Central Scotland) (SNP)
Paterson, Mr Gil (Central Scotland) (SNP)
Quinan, Mr Lloyd (West of Scotland) (SNP)
Robison, Shona (North-East Scotland) (SNP)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Sturgeon, Nicola (Glasgow) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Against
Baillie, Jackie (Dumbarton) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Fitzpatrick, Brian (Strathkelvin and Bearsden) (Lab)
Gillon, Karen (Clydesdale) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (Edinburgh Pentlands) (Lab)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, Mr John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Jenkins, Ian (Tweeddale, Ettrick and Lauderdale) (LD)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macintosh, Mr Kenneth (Eastwood) (Lab)
MacKay, Angus (Edinburgh South) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McLeish, Henry (Central Fife) (Lab)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Raffan, Mr Keith (Mid Scotland and Fife) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
Scott, Tavish (Shetland) (LD)
Simpson, Dr Richard (Ochil) (Lab)
Smith, Iain (North-East Fife) (LD)
Smith, Mrs Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Thomson, Elaine (Aberdeen North) (Lab)
Watson, Mike (Glasgow Cathcart) (Lab)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
Abstentions
Smith, Elaine (Coatbridge and Chryston) (Lab)
The result of the division is: For 32, Against 61, Abstentions 1.
Amendment 343 disagreed to.
Amendment 75 not moved.
Amendment 344 moved—[Malcolm Chisholm]—and agreed to.
Section 53A—Powers of Tribunal on application under section 52: interim compulsory treatment order
Group 20 relates to the time limit for determining applications for compulsory treatment orders in a special case. Amendment 345 is grouped with amendment 754.
Amendment 754 seeks to introduce a new section that will provide that, where a patient is detained under section 56, following short-term detention and the making of an application to the tribunal, the tribunal must either grant an interim compulsory treatment order or determine the application before the five-day period of detention expires. Amendment 345 will insert a reference to that new section in section 53A, which provides the tribunal with a power to grant interim compulsory treatment orders.
I move amendment 345.
Amendment 345 agreed to.
Amendment 346 moved—[Mrs Mary Mulligan]—and agreed to.
Section 54—Measures that may be authorised
For group 21, amendment 114 is in a group on its own.
Amendment 114 would give the tribunal the power to exclude particular treatments from being given to patients who are subject to a compulsory treatment order. The amendment would allow the tribunal to provide a general treatment authority that would be subject to such exclusions or limitations as it may consider appropriate. That would allow the tribunal to have regard to patients' views. The patient could put all the arguments to the tribunal, which could then exercise its discretion in recognition of the patient's views.
Amendment 114 is supported by the Scottish Association for Mental Health and 63 other organisations that support people with mental health problems. Those organisations believe that the tribunal should consider whether a particular treatment should be given only when an individual has expressed strong wishes about the treatment. That brings us back to the need to strike a balance between the views of the patient and the views of the clinician. It also brings us back to the point about advance statements, to which we will return either later today or tomorrow. Amendment 114 is important to users of mental health services.
The experience of being subject to compulsory powers under the mental health acts can be extremely traumatic for many individuals, not only because they may be deprived of their liberty but because they may be compelled, sometimes forcibly, to accept treatments that may be controversial or invasive or that may involve unpleasant and distressing side effects. Service users who have been in receipt of services for a significant period of time often build up considerable expertise about which treatments work for them. Many service users feel that the distressing effects of certain treatments are such that they do not wish to accept them under any circumstances, regardless of any benefits that such treatments may have. Again, we come back to the recognition of the power and autonomy of patients to express their wishes. The bill should reflect that.
The Millan committee proposed a scheme whereby compulsory intervention would be tailored to the needs of the individual patient. The framework for such intervention was to be a plan of care that would be submitted to, and approved by, a tribunal. The plan of care would be a single document that would set out what treatments and care were proposed by the range of agencies and it would identify which of those treatments would require compulsion. The Millan committee envisaged that, if the patient had concerns about particular kinds of treatment, those concerns could be taken into account by the tribunal before it decided whether to approve the plan of care.
The Scottish Association for Mental Health and the other organisations that support amendment 114 believe that the implication of the Millan report was that, if an individual expressed strong wishes not to have a treatment such as electro-convulsive therapy, the tribunal could take those wishes into account when it decided whether to approve the plan of care.
Disappointment has been expressed about the fact that the tribunal will not have the power to exclude specific treatments from being given, regardless of an individual's wishes and feelings. The effect of section 54(1)(b) as currently drafted would be that the tribunal would be faced with a blunt choice: it would have to decide whether to grant or refuse a general authority for treatment that was given in accordance with part 13.
During stages 1 and 2, I often spoke about advance statements, which are all about patient power. However, I am sympathetic to the arguments that were made by Professor David Owens of the University of Edinburgh to the effect that an advance statement could in fact inhibit the level of care and the treatment that could be given to patients. Again, we need a balance between the wishes of patients and the duty of clinicians. As I said, many patients have long-standing experience of the service, which should be taken into account. We also need to take cognisance of the clinician's duty of care against the rights of the patient.
A similar amendment at stage 2 caused a vote in the committee. It is not often that I quote John McAllion—I do not think that I am qualified to do so—but he argued that the amendment
"would increase the tribunal's flexibility and improve its ability to put the patient's interests first."—[Official Report, Health and Community Care Committee, 21 January 2003; c 3672.]
That is an important factor for all members to consider and I ask them to support amendment 114.
I move amendment 114.
It is with pleasure that I speak to amendment 114, given that I lodged a similar amendment at stage 2. My amendment was defeated only by the convener's casting vote.
As Mary Scanlon said, amendment 114 has widespread support in the mental health community. It would allow tribunals to exclude particular treatments from being given to patients who are subject to CTOs, while allowing the tribunal to make a general treatment authority subject to such exclusions or limitations as it might consider to be appropriate.
Such powers would be in line with the Millan committee's proposal that compulsory intervention should be tailored to the individual patient's needs. If the patient had concerns about a particular type of treatment, the tribunal could take those concerns into account before it decided whether to approve the plan of care. The implication of the proposal is that if an individual has a strong wish not to have a particular treatment, such as ECT, the tribunal could take that into account. That would allow the tribunal to exclude such treatments from being given.
Through experience over time, service users become knowledgeable about treatments that work for them and others that are so distressing that they would not wish to accept them under any circumstances regardless of any benefit that professionals might claim they will have. Too often, professionals dismiss those wishes in what is often regarded by recipients as an arrogant and patronising way on the ground that the recipient lacks insight into their condition. The bill will reinforce that approach.
As Mary Scanlon said, the effect of section 54(1)(b) as drafted would give the tribunal a blunt choice. It would have to decide whether to grant or refuse a general authority for treatment in accordance with part 13. I suspect that few, if any, CTOs will be refused and that many people will thus be forced to endure unnecessary ordeals during treatment. A more humane, sophisticated and flexible regime is called for and I call on members to support amendment 114.
I also refer to the minister's earlier arguments calling for the tribunal to have flexibility. I suggest that this is a clear case for consistency.
We do not support amendment 114, the effect of which would be to allow the tribunal to exclude certain treatments, or to impose limitations on their use, when granting authority for a compulsory treatment order. A similar amendment was considered by the Health and Community Care Committee at stage 2 and was not accepted.
The Millan committee also rejected the suggestion. The Millan report recommended that, in approving a plan of care, the tribunal should be entitled to satisfy itself that the necessary safeguards will be followed, but not to add additional safeguards. The appropriate safeguards are elsewhere, particularly in part 13.
We agree with the Millan committee's analysis. It is important to be clear about what is reasonably within the remit of the tribunal and what is within the responsibility of the treating clinician.
Can the minister clarify whether, if an individual had strong wishes against a particular treatment—for example ECT—and that view was contained in an advance statement, the tribunal could overrule that wish?
The position on advance statements is that we would ask that everybody take due cognisance of them. However, we are not intending to legislate so that advance statements are the only way forward. There needs to be flexibility in interpretation, to which Adam Ingram referred. If amendment 114 is agreed to, we will be asking the tribunal to override the position of the responsible medical officer, who has the closest contact with the patient and is most aware of the patient's needs. That is why amendment 114 is wrong. It is the job of the tribunal to consider whether compulsory powers are justified and what those powers should be but, at the end of the day, the responsible medical officer has responsibility for the care of the patient and must choose which treatments are appropriate.
We must remember that the tribunal is primarily a legal, not a medical, body. It will have a medical member, but that member will not have examined the patient and so will not be in a position to overrule the clinical judgment of the responsible medical officer. It is not realistic to expect the tribunal to consider detailed medical evidence and to evaluate which individual treatments might not be appropriate.
Furthermore, amendment 114 does not simply ask the tribunal to consider what treatment is not justified now, but also what treatment might not be justified in the future. The tribunal does not have the RMO's clinical knowledge and cannot predict how the patient's mental state might develop. Do we really want the patient's mental state to have to deteriorate so much that an emergency order can be called for? I do not think that we do.
We recognise that there will be treatments that particular patients dislike, but the bill provides suitable protection. Many of those treatments will be covered by part 13, which will require an independent doctor to certify that the treatment is appropriate and necessary. The RMO and any second-opinion doctor will have a legal duty to apply the principles of part 1 in deciding what treatment to give. That means that they must have regard to the wishes and feelings of the patient—I say to Mary Scanlon that that is essential and is part of the bill—as well as take account of any advance statement that the patient might have made. They must also consider the full range of options that is available in the patient's case and act in a way that involves the minimum restriction on the freedom of the patient, which is the principle to which we keep coming back. If a patient has a strong objection to a particular treatment, and even if that patient is too unwell to make a competent treatment decision and is liable to be treated compulsorily, a doctor cannot lawfully give that treatment without having a compelling reason for doing so.
That is not to say that the issue of the proposed treatment is irrelevant to the tribunal. If the tribunal was persuaded that the patient would accept alternative forms of treatment, it would have to consider whether the CTO was truly necessary, and may decide not to grant it. That is an appropriate role for the tribunal to play.
It is also possible that discussions on the care plan will allow the patient to be reassured about the treatment that might or might not be indicated, although we would hope, of course, that those discussions would happen without the need to go to the tribunal. However, to go further than that would not be appropriate to the role of the tribunal and could throw up a host of practical problems. I hope, therefore, that Mary Scanlon will choose not to press her amendment.
I call Mary Scanlon to wind up the debate and to indicate whether she will press or seek to withdraw amendment 114.
I will certainly press amendment 114.
The point that I made is that if we are to reduce stigma, which is one of the principles of the bill, we must treat the users of mental health services with the respect and dignity that their experience accords them. Their views about their treatment should be taken into account fully. As I said, service users build up considerable expertise about the treatments that work and do not work for them.
I accept what the minister says about the fact that, under section 171, urgent medical treatment can be given to a patient but I noticed that she said that the matter was not about having additional safeguards but about the need to "have regard to" the patient's wishes. There is an awful lot of talk about having regard to things. To be honest, having regard to something could mean taking on board the patient's every wish or reading the patient's wishes then throwing them in the bin. I am not a lawyer, but I do not think that the phrase "have regard to" means much. If I were a service user, I would have to ask why I should bother writing an advance statement.
Will the member give way?
In a moment.
People are fearful of ECT because of the potential side effects, such as memory loss. If a patient writes in an advance statement that they do not wish to have ECT, will the fact that the tribunal has only to have regard to the wishes and feelings of patients but retains flexibility in the interpretation of those wishes mean that the advance statement can be totally ignored?
When I tried to intervene earlier, I was going to talk about patient deterioration and my concern that the ability to take action, even if that action is contrary to the wishes that were expressed previously, is important. Mary Scanlon is suggesting that we should wait until a person is so ill that they need emergency treatment before we do anything.
In relation to the question that Mary Scanlon asked before she gave way, I wonder whether she is aware that Executive amendments that we will come to later in stage 3 deal with additional safeguards around ECT that provide that a patient will not be given ECT without consent and which strengthen the safeguards for patients.
In that case, I do not see why the minister has any problems with my amendment, which I intend to press.
I can answer that.
Not at the moment.
This is about treating the users of mental health services with some respect. Many of the people who will be liable to receive compulsory intervention are those who have been in and out of mental health services over many years and have built up an enormous amount of expertise. Amendment 114 asks that their wishes be treated with the respect that is due them because of their experience of the service.
I will take the minister's intervention now.
The minister is indicating that she no longer wishes to intervene.
In that case, I have nothing to add.
The question is, that amendment 114 be agreed to. Are we agreed?
No.
There will be a division.
For
Adam, Brian (North-East Scotland) (SNP)
Campbell, Colin (West of Scotland) (SNP)
Canavan, Dennis (Falkirk West)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Douglas-Hamilton, Lord James (Lothians) (Con)
Ewing, Mrs Margaret (Moray) (SNP)
Fergusson, Alex (South of Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gibson, Mr Kenneth (Glasgow) (SNP)
Goldie, Miss Annabel (West of Scotland) (Con)
Grahame, Christine (South of Scotland) (SNP)
Hamilton, Mr Duncan (Highlands and Islands) (SNP)
Harding, Mr Keith (Mid Scotland and Fife) (Con)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Mr Adam (South of Scotland) (SNP)
Johnstone, Alex (North-East Scotland) (Con)
Lochhead, Richard (North-East Scotland) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
McAllion, Mr John (Dundee East) (Lab)
McLeod, Fiona (West of Scotland) (SNP)
Monteith, Mr Brian (Mid Scotland and Fife) (Con)
Morgan, Alasdair (Galloway and Upper Nithsdale) (SNP)
Mundell, David (South of Scotland) (Con)
Neil, Alex (Central Scotland) (SNP)
Paterson, Mr Gil (Central Scotland) (SNP)
Quinan, Mr Lloyd (West of Scotland) (SNP)
Raffan, Mr Keith (Mid Scotland and Fife) (LD)
Robison, Shona (North-East Scotland) (SNP)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Sturgeon, Nicola (Glasgow) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Wilson, Andrew (Central Scotland) (SNP)
Against
Baillie, Jackie (Dumbarton) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Fitzpatrick, Brian (Strathkelvin and Bearsden) (Lab)
Gillon, Karen (Clydesdale) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (Edinburgh Pentlands) (Lab)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, Mr John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Jenkins, Ian (Tweeddale, Ettrick and Lauderdale) (LD)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macintosh, Mr Kenneth (Eastwood) (Lab)
MacKay, Angus (Edinburgh South) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McLeish, Henry (Central Fife) (Lab)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
Simpson, Dr Richard (Ochil) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North-East Fife) (LD)
Smith, Mrs Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Thomson, Elaine (Aberdeen North) (Lab)
Watson, Mike (Glasgow Cathcart) (Lab)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
The result of the division is: For 34, Against 58, Abstentions 0.
Amendment 114 disagreed to.
Amendment 754 moved—[Mrs Mary Mulligan]—and agreed to.
I have been asked to advise members that a Consumers Association briefing on dentistry will take place shortly in committee room 1.
Meeting suspended until 14:30.
On resuming—