Plenary, 20 Mar 2003

Meeting date: Thursday, March 20, 2003

Official Report 592KB pdf

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Mental Health (Care and Treatment) (Scotland) Bill: Stage 3

Resumed debate.

Before we start, I remind members that they should have before them the revised marshalled list of amendments, which was published this morning, and not yesterday's list.

Section 167—Treatment mentioned in section 165(3): patients incapable of consenting

The first group of amendments for consideration today is group 58. Amendment 655 is grouped with amendments 216, 217, 656, 657, 664 and 665.

This group of amendments deals with the issue of electroconvulsive therapy, which is something that the Executive and the Health and Community Care Committee have thought very carefully about. Understandably, the treatment raises strong concerns, and even fears, but some people will testify that it has helped to alleviate their terrible and crippling illness. Our concern has always been to reassure people that the necessary safeguards are in place, while not imposing restrictions that could prevent some patients from receiving treatment that they desperately need. Those safeguards have already been strengthened under the bill. Today, I propose to strengthen them further in two significant ways.

The bill already provides that a patient who is liable to be treated compulsorily can be given ECT only if a second doctor authorised by the Mental Welfare Commission for Scotland certifies that that is in the best interests of the patient. The only exception is where treatment is required as a matter of urgency. If a patient is capable of making a treatment choice and refuses ECT, the second doctor may not overrule that decision. That is already a major and significant advance on the current situation. Amendments 664 and 665 strengthen that provision further.

Concern was expressed at stage 2 that the refusal of a competent patient could still be overruled in an emergency situation. We accepted that, as long as a patient is able to understand the implications of their decisions and to make a competent choice, that choice must be respected, and we undertook to lodge appropriate amendments at stage 3. Amendments 664 and 665 give effect to that undertaking by disapplying the emergency provisions of section 171 where the patient is capable of consenting but does not so consent.

Some of the patients for whom ECT might be considered will be incapacitated by illness, such as severe clinical depression, and will not be in a position to make an informed treatment choice. At stage 2, it was suggested that ECT should not be given to incapable patients. The committee considered the issue carefully, and concluded that that would be wrong.

Amendments 216 and 217, in the name of Shona Robison, are a refinement of that approach. They provide that ECT could not be given to an incapable patient who resisted or objected to the treatment, except in an emergency. That may appear to be an attractive option, but ECT is the only treatment for some severely depressed patients, according to clinical advice. I am advised that, as a consequence of their illness, such patients may be agitated, disturbed or even delusional and may object to the treatment when they are not well enough to know what the treatment is. Amendments 216 and 217 would deny people in that desperate situation access to the very treatment that might help them to recover their capacity. It is true that the treatment could still be given if the responsible medical officer—RMO—decided that it was a matter of urgency. However, that could mean patients having to endure prolonged suffering and physical deterioration before their condition became so acute that they could be treated.

We appreciate the concern that this issue causes among many service users. In its stage 1 report, the Health and Community Care Committee asked the Executive to consider ways in which it could strengthen the safeguards for incapable patients. Amendments 655, 656, and 657 respond to that request. Their effect is to tighten up the criteria for giving ECT where an incapable patient objects to or resists the treatment. Instead of it being necessary for the second doctor to certify that the treatment is in the best interests of the patient, one of the stricter tests in paragraphs (a) to (c) of section 171(3) must be met. In other words, the independent doctor must certify that the treatment is necessary for

"(a) saving the patient's life;

(b) preventing serious deterioration in the patient's condition";

or

"(c) alleviating serious suffering on the part of the patient".

Those are the same grounds that would entitle a doctor to treat a patient who objected to ECT on the basis of Shona Robison's amendments, but without requiring the RMO to allow the patient to deteriorate until the situation became an emergency. I hope that members will agree that our way forward is reasonable.

I move amendment 655, and I hope that Shona Robison will agree not to move amendments 216 and 217.

I appreciate what the minister has said about the complexity of this issue. By no means is it a simple matter to resolve. The purpose of my amendments 216 and 217 is to prevent ECT from being given to patients who are incapable of consenting to treatment, or who resist or object to its being administered. The only exception would arise in urgent situations, where the treatment could be given under the urgent treatment provisions in section 171.

The reason why I lodged my two amendments and why I am persuaded that there is a debate to be had on the issues involved is based on the written and oral evidence that the Health and Community Care Committee received on ECT.

One of my constituents had ECT when he was 16 years old. He underwent the treatment as a voluntary patient, although it might perhaps be difficult to make an important choice about that and to agree to the treatment at 16. He now regrets the treatment very much, because it completely wiped out all his primary school learning. He was unfortunate that that was the effect that the treatment had on him and, on reflection, he feels that he did not make an informed choice, as he was in no position to do so.

The National Institute for Clinical Excellence—NICE—produced an appraisal consultation document on ECT, from which I quote:

"The evidence submitted to the Committee, both written and verbal, demonstrated that, on balance, current opinion is that ECT is an effective treatment for certain subgroups of individuals with mental disorders. However opinion varies from those who consider that its adverse effects are tolerable to those who consider that it is associated with significant side effects including brain damage, severe confusion and considerable cognitive impairment in both the short and longer terms. Whilst some patients consider ECT to be a beneficial and lifesaving treatment, others report feelings of terror, shame and distress, and find it positively harmful and an abusive invasion of personal autonomy."

There is clearly huge division over whether ECT is effective or ineffective and over the lasting effects of ECT on patients. Service users expressed mixed views about ECT to the Scottish Association for Mental Health.

In its stage 1 report, the Health and Community Care Committee recommended that the Executive introduce

"additional protections for patients for whom ECT is proposed, who are incapable of consenting and who are objecting to or resisting the treatment."

That is what my amendments seek to achieve.

Preventing ECT from being given to patients who are incapable of consenting would make the safeguards for ECT for incapable patients closer to those that apply to neurosurgery for mental disorder and incapable patients, without going as far as those NMD safeguards.

I accept that the Executive amendments represent a tightening up of safeguards for incapable patients who resist or object to ECT. As the minister outlined, a patient would not be given ECT under section 167 unless the circumstances that are stated in section 171 apply. I could be persuaded to compromise on the matter if certain safeguards are put in place.

The primary concern about amendment 656 is the wording of the phrases used in section 171. The treatment can be given if its purpose is

"(b) preventing serious deterioration in the patient's condition"

and

"(c) alleviating serious suffering on the part of the patient".

Those terms already appear in the urgent treatment provisions in the Mental Health (Scotland) Act 1984 and in section 171 of the bill. However, those urgent treatment provisions include the phrases "immediately necessary" and

"necessary as a matter of urgency".

Amendment 656 would effectively incorporate the terms of the urgent treatment provisions, but without the use of the phrases "immediately necessary" or "urgent". I am concerned that that could mean there is a lack of clarity about how the terms could be interpreted in practice. There is a danger that they could be interpreted too widely when treatment is given under section 167.

If the minister can give an assurance that the terms will be clarified outwith the bill so that they can be clearly interpreted in practice, that clear guidance will be given in a code of practice or good practice guidelines—whichever is most appropriate—and, importantly, that there would be wide consultation, involving user groups in particular, on the preparation of such guidance, we could reach a compromise this morning on ECT.

I support Shona Robison's amendments 216 and 217. I also ask for further clarification from the minister. I am very much at one with Shona Robison's comments.

When opinion is so divided on the benefits and the side effects of ECT—the potential side effects are inestimable for each individual—how can anyone recommend that the treatment is beneficial? This controversial issue is probably the one that patients with mental illness who spoke to us feared the most. They feared that their lives would get out of control and that they would be given ECT, although it is difficult to predict whether it would be beneficial or, as Shona Robison said, whether it would wipe out all long-term memory. Those are serious concerns.

I am minded to support the Executive's amendment 656, because I think that it is a good compromise, but I have difficulties in respect of the points made in the 1984 act, which provide the basis for urgent treatment under section 171(3). That section states that ECT can be given to save a patient's life, alleviate serious suffering or prevent deterioration. I am not a clinician, but I would have thought that, in any circumstances, any treatment surely has to be intended to save a patient's life, alleviate suffering or prevent deterioration. My fear is that the use of those three phrases could open the door for any patient who has mental illness to be given ECT, as it would only have to be stated that its use would prevent deterioration of the condition.

I struggle with this issue because although we have heard that ECT is beneficial for many people, it has serious, detrimental and long-lasting side effects for many others. The minister must clarify exactly what the phrases mean, as they could be interpreted widely. The bottom line is that I would like patients to have faith and trust in the advance statements that they write. If, when they are well, they write that they do not want ECT, I hope that at the point at which they need help someone does not overrule their advance statement on the basis that the purpose of the treatment is to save the patient's life, alleviate serious suffering or prevent deterioration. Those phrases could be used to justify the use of ECT treatment in any case. I seek the minister's assurances on those three phrases, but I am minded to support amendment 656.

Colleagues in the chamber who have not been part of the discussions at the Health and Community Care Committee are probably getting a flavour of the difficulties that the issue has thrown up for committee. It is one of those issues for which there does not seem to us to be a black-and-white solution. We are trying to find a suitable shade of grey in order to cover many of the concerns that have been raised on both sides of the debate. SAMH is concerned about anybody being given ECT treatment who has not consented fully to it. That concern took us to the point at which it was necessary to consider people who, because of their condition, are incapable of giving consent. That is the point at which the committee found real problems, and I welcome the compromise position that the Executive has proposed.

The NICE document, from which Shona Robison quoted, shows that there is evidence on both sides of the argument. If ever a situation called for the decision to be in the hands of the individual and their clinical team, this is such a situation.

I have complete faith in the fact that Shona Robison believes that the route that she proposes is a good one. She has argued for it consistently throughout our discussions, without, I think, being able to sure that it is the right position—none of us can be sure that we are advocating the right position on the issue. On the other side of the argument, we must take on board the comments that the Mental Welfare Commission for Scotland made to the committee. It said that if we go down the route that SAMH advocates, we might prevent people from getting treatment that, in some cases, might help them. I do not think that any of us wanted to close an option down. That is why the committee recommended, at stage 1, that the Executive should

"introduce additional protections for patients for whom ECT is proposed, who are incapable of consenting and who are objecting to or resisting the treatment."

The Executive's amendments give a clear indication that extra safeguards would be put in place, as an independent doctor would have to certify that ECT treatment would be given to save life, prevent serious deterioration or alleviate serious suffering. I am content to go along with those safeguards. However, time and again we are left with the feeling that we must ensure that the implications of the bill are carefully monitored when it is enacted. I call upon the minister to give us assurances on that matter. If he gives us those assurances, I will be content to support the Executive's amendments.

I think that we have reached a degree of consensus because there is no great difference between the original position stated by Shona Robison and my proposal. There is also an underlying agreement about the direction in which we want to travel and the intention of our policy.

We have listened—I certainly have—to the serious concerns of some service users about the matter. We must concede that other service users testify to the benefits that they have received from ECT, but there is no doubt that some service users have concerns—often based on their own experience—about ECT. A significant advance in the bill is that we are saying clearly that anyone who is capable, even if they are subject to compulsory treatment in general, will not receive ECT against their wishes—not even in an emergency. That is a significant step forward in terms of the history of ECT and the rights of service users more generally. We should acknowledge that point, because some recent reports about the matter in the media have suggested that we are turning the clock back. We have already made significant progress in the bill as drafted and in the bill as amended at stage 2. Today, we seek to push that progress further.

The exemption of those who are capable from the emergency provisions is proposed in amendments 664 and 665, with which no one disagrees. That matter was discussed in general terms at committee and today we are trying to engage with the position of people who are incapable and how their objections should be dealt with. We take on board what the Health and Community Care Committee said in its stage 1 report about additional protections for patients in that particular situation.

Shona Robison's comments were helpful, and I acknowledge the potential danger that the conditions we are applying could be interpreted too widely. I make it absolutely clear that the code of practice will give clear guidance on the effect of the provisions and that it will take on board the spirit of the debate in which we have agreed that, unless there are overriding reasons, if someone says no to ECT, that means no. I also assure her that there will be consultation on that guidance, and it is particularly important that we listen to service users on the subject.

Will the code of practice and the guidance go further than having regard to or listening to service users? What role will the advance statement play in the code or guidance? How much weight will be given to the advance statement in the judgments that are made on whether to use ECT?

Wider issues concerning advance statements, which we will revisit soon, have been partly debated. The bill says that advance statements that object to ECT have to be taken into account by both the RMO and any doctor who gives a second opinion. That is the position. I know that Mary Scanlon wants to argue another point—she will have a further opportunity to do that.

Any decision not to comply with an advance statement would need to be reported to the Mental Welfare Commission. There are more complex issues surrounding advance statements, as the Health and Community Care Committee acknowledged in its stage 1 report. However, we are building so much into the matter that perhaps the question of advance statements is not quite so critical. Basically, we are saying, "If you are capable, ECT will not happen under any circumstances." We are saying today that there is also a presumption that someone who is incapable will not receive ECT, unless the clear conditions that are stated in section 171 are met. Those conditions will be further described in the code of practice on which there will be consultation.

The position reflects the clear consensus of the Parliament on the matter today, and that is the spirit in which we should advance. Most of us, including Margaret Smith, who was explicit in her comments, and me—and I am following clinical advice—do not want to go as far as Shona Robison proposes, although in many ways it is my instinct to do so. However, as a responsible health minister, I must pay heed to clinical advice and to the situations in which a difficulty would be caused by the more absolutist position proposed by Shona Robison. I admitted in my opening speech that her proposal was an attractive option, but we have to be responsible, as Margaret Smith said, and ensure that we pass a law that covers all eventualities.

I understand people's concerns about the Executive's position. That is why I make it clear that a code of practice will give guidance on the effect of the provisions and that there will be consultation on that guidance. ECT is an area about which some service users feel strongly, and SAMH has reflected the concerns that are expressed to that organisation by service users.

I am sorry if this sounds like a daft lassie question, but I have struggled to understand the bill. At what point does a capable patient with mental illness become an incapable patient?

That is a very good question, which I have also asked. There are definitions in the Adults with Incapacity (Scotland) Act 2000, with which we are all familiar. Whichever amendments we agree to today, including the Executive's amendments, we will have to examine what is said in the 2000 act because we are extending the rights of incapable people in relation to ECT beyond what is stated in that act.

I hope that there can be agreement on Executive amendment 655 and that members will accept the undertakings I have given about further work on the code of practice. I also accept what Margaret Smith said about the need to monitor the situation—along with the bill's other provisions—closely.

Amendment 655 agreed to.

In the light of what the minister said about the guidance and the consultation on it, and in the interests of compromise and agreement, I will not move amendments 216 and 217.

Amendments 216 and 217 not moved.

Amendments 656 to 658 moved—[Malcolm Chisholm]—and agreed to.

Section 168—Treatments given over period of time etc

Amendment 659 is grouped with amendment 660.

Amendments 659 and 660 are drafting amendments that are intended to make clearer the effect of section 168. They respond to points made by Shona Robison at stage 2, and I am grateful to her for drawing attention to the matter.

I move amendment 659.

Amendment 659 agreed to.

Amendment 660 moved—[Mrs Mary Mulligan]—and agreed to.

Section 169—Treatment mentioned in section 168(3): patients refusing consent or incapable of consenting

Amendment 661 moved—[Mrs Mary Mulligan]—and agreed to.

Section 170—Treatment not mentioned in section 162(2), 165(3) or 168(3)

Amendment 662 is grouped with amendment 663.

Amendments 662 and 663 fulfil a commitment that we gave at stage 2 to lodge amendments at stage 3 to provide a further safeguard with respect to the authorisation of medical treatment for persons who are subject to an assessment order.

Essentially, the amendments ensure that, where treatment is to be given under part 13 to a patient who is subject to an assessment order, the responsible medical officer must get a second opinion before proceeding with the treatment.

I move amendment 662.

Amendment 662 agreed to.

Amendment 663 moved—[Mrs Mary Mulligan]—and agreed to.

Section 171—Urgent medical treatment

Amendments 664 and 665 moved—[Mrs Mary Mulligan]—and agreed to.

Section 174—Sections 163, 164, 167 and 169: review of treatment etc

Amendment 666 is in a group on its own.

Amendment 666 fulfils an undertaking given at stage 2 in response to an amendment lodged by Shona Robison. It broadens the provision that the commission may revoke a certificate that authorises treatment, so that it applies to all certificates in part 13. That reflects concern expressed in the commission's annual reports that some certificates stated that the patient had consented to the treatment, when the patient's ability to give such consent was doubtful.

I move amendment 666.

Amendment 666 agreed to.

Section 175A—Named person: mental health officer's duties etc

Amendment 667 is grouped with amendments 77, 78, 99 and 103.

Amendment 667 adds a reference to the Criminal Procedure (Scotland) Act 1995 to section 175A. That is necessary because named persons also have a role where a person is subject to a mental health disposal made by a criminal court under the 1995 act.

Amendment 77 is a technical amendment that moves section 175A to a more appropriate place in the bill.

Amendments 78 and 103 move the definition of "named person" from part 14 to section 228, which is the general interpretation section. Amendment 99 removes a cross-reference to the deleted section 176 from section 181C.

I move amendment 667.

Amendment 667 agreed to.

Amendment 77 moved—[Mrs Mary Mulligan]—and agreed to.

Section 176—Meaning of "named person"

Amendment 78 moved—[Mrs Mary Mulligan]—and agreed to.

Section 177—Nomination of named person

Amendment 79 is grouped with amendments 80 to 87 and 95 to 98.

At stage 2, Shona Robison lodged an amendment that sought to provide that any named person should be aged at least 16. Our initial view was that that was unnecessary, as the tribunal could take steps to appoint a new named person if a child was nominated by the patient or was the primary carer. On reflection, we agree that it would be helpful to put the matter beyond doubt. As a result, amendments 79 to 87 and 95 to 98 seek to provide that the named person can in no circumstances be aged under 16.

I move amendment 79.

Amendment 79 agreed to.

Section 178—Named person where no person nominated or nominated person declines to act

Amendments 80 to 82 moved—[Mrs Mary Mulligan]—and agreed to.

Section 179—Named person in relation to child

Amendments 83 to 87 moved—[Mrs Mary Mulligan]—and agreed to.

Section 181—Meaning of "nearest relative"

Amendment 88 is grouped with amendments 89 to 94.

Amendments 88 to 93 respond to an amendment lodged at stage 2 that sought to shorten the list in section 181 of "nearest relatives" who could become the named person in certain circumstances if no specific appointment is made. We undertook to consult the mental health legislation reference group on the matter. As there was general agreement that the list was too long, we have lodged amendments that delete in-laws and other more distant relationships through marriage.

Amendment 94 deletes an unnecessary reference to "welfare" in relation to a patient's guardian. Section 228 makes it clear that the word "guardian" in the bill means a welfare guardian.

I move amendment 88.

Amendment 88 agreed to.

Amendments 89 to 93 moved—[Mrs Mary Mulligan]—and agreed to.

Section 181A—Named person: application by patient etc

Amendment 94 moved—[Mrs Mary Mulligan]—and agreed to.

Section 181B—Named person: Tribunal's powers

Amendments 95 to 98 moved—[Mrs Mary Mulligan]—and agreed to.

Section 181C—Interpretation of Chapter

Amendment 99 moved—[Mrs Mary Mulligan]—and agreed to.

Section 182—Advocacy

Amendment 14 is grouped with amendments 15 to 17.

This important group of amendments follows extensive discussion at committee on the right to advocacy. Indeed, amendments were lodged on the provisions on that. In response to other points that were made during the committee's consideration of the bill and amendments that were lodged by John McAllion, we have discussed the issue further with the Advocacy Safeguards Agency and the mental health legislation reference group, and I am pleased to say that we have reached agreement on the way forward.

Amendment 14 deletes section 182(4)(b), which defines the term "advocacy services". As I have said, that change was proposed by John McAllion at stage 2 because of concern that the wording of the subsection gave undue emphasis to the notion that the mentally disordered person is unable to state an opinion. It is fundamental that the advocate represents their advocacy partner's views, not their own.

Amendment 16 tightens up the definition of "independent advocacy" to ensure that voluntary or other organisations that provide care services to a person under arrangements with the national health service or a local authority cannot also provide that person with advocacy services. However, Enable and other members of the reference group pointed out that excluding "employees" of the NHS and local authorities from being advocates under the bill went too far. Such a provision could have excluded people who happened to work in public services but not in a way that would create a conflict of interest with an advocacy role. As a result, amendments 15 and 17 delete the provision.

I move amendment 14.

Amendment 14 agreed to.

Amendments 15 to 17 moved—[Malcolm Chisholm]—and agreed to.

Amendment 756 is grouped with amendment 757.

Amendment 756 seeks to remove a reference to section 145 from section 182(11). Because section 145 was deleted at stage 2, that reference is incorrect. Amendment 757 seeks to tidy up the drafting of section 215(1), which should now refer only to one further subsection.

I move amendment 756.

Amendment 756 agreed to.

Section 185—Provision of information to patient

Amendment 668 is grouped with amendments 669 to 676.

Amendments 668 and 669 are technical amendments that seek to clarify that the duties in section 185 continue to apply, even if the detention of a patient has been temporarily suspended. Amendment 670 is a drafting amendment that seeks to make it clear that the permanent copy of the information given to the patient under section 185 must be in a form that is appropriate to the patient's needs. Amendment 672 seeks to do likewise for the information that is to be provided to the named person.

Amendment 671 seeks to make it clear that information on advocacy relates to the duties to secure independent advocacy services under section 182. At the moment, duties to provide information to the patient in section 185 are imposed on hospital managers for detained patients and on the mental health officer for patients in the community. After reviewing that provision, we feel that it is not the correct approach. Whether a patient is in hospital or in the community, the primary purpose of a compulsory treatment order is likely to be to ensure that the patient can receive medical treatment under the supervision of a responsible medical officer. The RMO will have a continuing involvement with the patient. That may not be the case for the mental health officer. As a result, we have concluded that it makes more sense for hospital managers to have the duty to ensure that the patient is given appropriate information—for example, where a CTO is renewed. That is the intention behind amendment 673.

Amendments 674 and 675 are technical amendments that seek to make it clear that the duties in section 186 continue to apply, even if the detention of a patient has been temporarily suspended. Amendment 676 seeks to clarify that the duties also apply where the patient is subject to a review of a mental health order imposed by a criminal court.

I move amendment 668.

Amendment 668 agreed to.

Amendments 669 to 673 moved—[Malcolm Chisholm]—and agreed to.

Section 186—Provision of assistance to patient with communication difficulties

Amendments 674 to 676 moved—[Malcolm Chisholm]—and agreed to.

Section 183—Access to medical practitioner for purposes of medical examination

Amendment 677 is grouped with amendments 678 to 680.

Sections 183 and 183A provide that a medical practitioner may examine a patient or the patient's medical records for the purposes of advising the patient or named person in connection with an application to the tribunal, or of providing information to the patient or named person in connection with a tribunal hearing.

The mental health legislation reference group expressed concerns that such a provision might mean that a named person could have access to private medical information concerning the patient, even if the patient did not agree to that. In order to ensure that that does not happen, amendments 677 to 680 provide that a competent patient can rescind any authorisation given by a named person for a doctor to carry out an examination or to examine medical records.

I move amendment 677.

Amendment 677 agreed to.

Amendment 678 moved—[Malcolm Chisholm]—and agreed to.

Section 183A—Inspection of records by medical practitioner

Amendments 679 and 680 moved—[Malcolm Chisholm]—and agreed to.

After section 183A

Amendment 681 is grouped with amendments 682 to 690, 719, 720, 726 to 728, 755, 732, 740 and 741.

We have faced many difficult issues during the bill's passage, but one of the most difficult concerns patients who are detained at an excessive level of security, in particular those in the state hospital who are ready to move on but have not been found places in local services. That issue is, rightly, of great concern. Through discussions with the Health and Community Care Committee, we have been able to make considerable progress. I believe that our amendments meet the aspirations of both Millan and the committee.

Before I explain the details of the amendments, I will set out the context. We have always recognised that it was wholly wrong that some patients should spend prolonged periods at the state hospital after their condition had improved to the extent that they could be safely treated in a less secure and more local environment. However, when we first considered the Millan recommendations, it seemed to us that the real problem was the lack of appropriate local services. An appeal right is of little use if there is genuinely no bed available that can meet the patient's needs.

We now accept that an appeal provision is not only an important protection for the individual patient, but should act as a spur for the development of the local forensic services, which are a key component of our strategy for mentally disordered offenders.

We recognise that if the amendments are to achieve their objective, they have to be backed up by the Executive intensifying the pressure on boards and local authorities to agree and implement plans that will address any remaining shortcomings against the assessed need. We need to build on the progress made with the development of the Orchard clinic here in Edinburgh and with the new facility at Stobhill in Glasgow by ensuring that the west, north and north-east of Scotland produce proposals that will secure local services for those areas.

We believe that key to that is the development of a managed network for mentally disordered offenders, the requirement for which was highlighted in the consultation document on the review of the state hospital, "The Right Place, The Right Time". Having considered the response to the document, the Executive has asked Andreana Adamson, the chief executive of the State Hospitals Board for Scotland, to lead the development of such a network. The objective is to bring a pan-Scotland dimension to the planning process for services for this patient group, to support the development of local services where such development is required, and to secure protocols that will ease the management of patients through the system.

I turn to the amendments, an early draft of which we shared with the Health and Community Care Committee. The committee identified a number of concerns about the drafting and we have addressed those concerns in the amendments that are before members today. Amendment 681 sets out the right of patients who are detained in the state hospital to apply to the tribunal for an order declaring that the patient is held in conditions of excessive security. The application may be made by the patient, the patient's named person, guardian or welfare attorney, or by the Mental Welfare Commission. An application may be made on an annual basis, after the patient has been detained for a period of six months.

The basis for deciding that the patient is held in conditions of excessive security is that the statutory criteria for detention in the state hospital are no longer met. If the tribunal decides that the patient is being held in conditions of excessive security, it may make an order giving the appropriate health board up to three months to find a suitable hospital place. At the suggestion of the committee, we have reduced the maximum time period from six months to three and made it clear that the place found must be available for the patient. Where the patient is a "restricted" patient, the board must ensure that the place that it identifies is one that the Scottish ministers agree is suitable.

Amendment 682 provides that if at the end of the specified period the patient has not been transferred from the state hospital, the tribunal must hold a further hearing. That addresses a concern of the committee that the patient should not have to take formal steps to raise the case again. At the review, the tribunal can give the board another chance, by allowing it another period of up to three months to find a suitable place, or the tribunal can move straight to a final order. Amendment 683 provides that if the tribunal allows the board more time, there can be a final tribunal hearing at the end of that period if the patient has still not been transferred. At that stage, the tribunal again may make a final order. The effect of the final order is that the board has 28 days to find a suitable place for the patient.

We are confident that boards will comply with the new statutory duty imposed by the amendments. As with any such duty, failure to comply would leave the board open to proceedings in the Court of Session for breach of statutory duty. Amendment 689 provides that such proceedings cannot be taken at the earlier stages, where the matter still falls to be considered by the tribunal, but the failure to comply with the final order would render the board liable to legal proceedings.

The committee felt that it might be unreasonable to expect a patient in the state hospital to raise an action in the Court of Session. One suggested way round that was that the Mental Welfare Commission should, if necessary, be able to raise an action on a patient's behalf. We have discussed that option with the commission, which has confirmed that it is prepared to take on that role where necessary, and subsection (2) of the new section inserted by amendment 689 provides for that.

Of course it is possible that circumstances might change, so that an order made by the tribunal is no longer appropriate. Amendment 684 allows the board and the RMO or the Scottish ministers to seek a recall of an order. That might be justified if, for example, the patient's condition deteriorated so that the level of security at the state hospital was still necessary.

At the moment, the problem of entrapped patients particularly concerns the state hospital, but it is possible that similar problems might arise in other secure facilities in future. Amendments 685 to 688 allow for regulations to grant similar rights in future to patients detained in hospitals other than the state hospital. Amendment 732 provides that those will be dealt with by affirmative procedure. Amendment 690 sets out the definitions for the purposes of those provisions.

Amendments 719, 720 and 726 to 728 deal with appeals against decisions of the tribunal concerning excessive security. Essentially, the appeal regime is the same as it is for other tribunal decisions concerning non-restricted patients.

We are happy to accept amendments 740 and 741, which Mary Scanlon lodged—she should not get used to that—subject to a small technical manuscript amendment to 741. That will provide a guarantee that the new rights will be brought into force no later than May 2006. The committee pressed the issue and I believe that the Executive has responded appropriately to what is a serious concern.

I move amendment 681.

On this great historic occasion, I think that a cheer is appropriate. I am delighted that the Executive has accepted amendments 740 and 741. The thread that ran through all the proceedings—this came up in what Margaret Jamieson and Bill Butler said yesterday—is that, despite the fact that mental health is unquestionably a priority of the Parliament and the Executive, it is not always a priority at health board and local authority level.

There is almost a domino effect with Carstairs. People cannot get out of Carstairs and up to 29 people have been blocking beds through no fault of their own. When they get into the only medium-secure unit—we all visited Carstairs and the Orchard clinic—they cannot get out, because there are not sufficient day centres or places in supported accommodation.

MSPs might like to jump on a bandwagon and say that we do not want medium-secure units in our backyard. All of us who agree to pass the bill must be more tolerant and understanding of, and more sensitive to, this unique client group. It might be all right to get a few petitions to the Public Petitions Committee and a few votes locally before an election—

Does Mary Scanlon agree that it is important that the local health boards consult communities prior to making proposals for a medium-secure unit? Does she agree that it is important that we do not have the negative attitude of consulting communities and then saying that they will get a medium-secure unit whether they like it or not, because the local quango board has taken that decision?

We have certainly received petitions from Father Stephen Dunn in Glasgow, which Paul Martin has talked about. Greater Glasgow NHS Board and other health boards have a lot to learn in the consultation process, which should not be about the presentation of a fait accompli. However, notwithstanding all the arguments for consultation, we still must be much more sensitive, tolerant and understanding. Let us have less of the nimby culture for medium-secure units. Frankly, if it is all right to have the Orchard clinic in Morningside in Edinburgh, I expect the people of Glasgow to be equally tolerant of that client group.

I do not know that I can follow that contribution, Presiding Officer. I am delighted that the Executive has accepted Mary Scanlon's amendments, which have the support of the Mental Welfare Commission, the Law Society of Scotland and, I guess, all the members of the Health and Community Care Committee. We have now had several discussions with the minister and the bill team about the issue. You will hear a few of us moan and groan and say that parliamentary procedure has not covered itself in glory over the bill. On the other hand, its success rate lies with several of these amendments and with the discussions that we have had with the Executive and the bill team; we have arrived at an end point that is better than where we began. We have all worked in partnership during those discussions. Indeed, the question of detention in conditions of excessive security has proved a classic example of the partnership approach.

The committee shared the concerns expressed by the Millan committee about patients who were detained under levels of security in excess of those required. People have focused on those who are entrapped at the state hospital, because there are up to 30 patients in that situation at any time. Some patients are entrapped there for up to three years—we should imagine ourselves in their shoes. We heard evidence from a mother whose young son had been in Carstairs for that length of time. We are dealing not only with inappropriate services in inappropriate conditions, but with an issue that could well be challenged under human rights legislation.

At paragraph 199 of our stage 1 report on the bill, we described the entrapment of patients in the state hospital as scandalous and noted that every witness who commented on it wished to see the addition of a right to appeal. For that reason, we welcome the work advanced by the Executive and the amendments before us today. I am very pleased that the Executive has picked up my suggestion that patients should not have to take their appeals all the way to the High Court, but that the Mental Welfare Commission should have a part to play in the process.

We were very impressed by our visit to the Orchard clinic in Morningside. It stands in stark contrast to the unfortunate situation at Stobhill, of which we heard so much in our committee deliberations. However, to agree to these amendments today is to recognise that when people are taken out of the state hospital because they should not be there, they must nevertheless be placed somewhere else. We must invest in medium-secure units. Indeed, we must also be able to move people out of medium-secure units and place them elsewhere when appropriate.

I cannot express it any better than my colleague Mary Scanlon has. This is not an easy matter for us to tackle and it is perhaps even more difficult to bring it to our constituents. We must say that these people require our assistance and support; that is the logical end point of the amendments that we will agree to today, and it is right that we do so. I support the amendments in the name of the Executive and Mary Scanlon. If it is to be done, let us make sure that it is done quickly.

It is worth putting on the record that the Health and Community Care Committee stuck doggedly to the principle behind what it wanted to achieve with these amendments. At one stage, the minister was sent away to think again and come back to us, which, to give her her due, she did. The amendments were only going to mean anything if they forced health boards to do what they were required to do. They will now do that.

I am also pleased that, if a patient has ultimately to go to the Court of Session for assistance, they will be given help to do that by the Mental Welfare Commission as a matter of last resort. That is to be welcomed.

Margaret Smith referred to the Crichton family, who will be pleased to know that in future there should be no one who ends up in the position in which their son found himself. He spent three years that he did not have to spend in Carstairs, waiting to leave. I hope that the bill will have the practical effect of ensuring that no one else is ever in that position again. That is why it is important that Mary Scanlon's amendments have been supported. That will ensure that there is no undue delay in getting to that position, so that the people who are currently in that situation in Carstairs will not have to be there for very much longer. My personal view is that that is one of the most welcome parts of the bill and many people throughout Scotland will welcome it.

I welcome the Executive's view of Mary Scanlon's amendments. Throughout the whole process, members of the Health and Community Care Committee were united in their wish to ensure that, whatever happened in relation to entrapped patients, there would be a compromise that would enshrine in the bill our views about the least restrictive detention of patients.

Mary Scanlon's point about regional secure units is clearly one that the minister has already taken on board, given the many petitions on consultation that the committee has considered. All the local NHS systems should take on board our commitment to full consultation. We indicated long ago, prior to what happened at Stobhill, that communities should be involved in designing services to meet the needs of patients. The difficulty with regional secure units is that people do not understand why we need them. The committee certainly understands why we need them. At Carstairs, we spoke to staff and patients alike, and we then went to the Orchard clinic here in Edinburgh to see the many benefits that can be achieved in the step-down process as patients return to full health. I certainly support the amendments.

The history of medium-secure units, as they are now called, goes back to the late 1970s, when the programme planning group for mental health, which I sat on, was discussing whether we should have such units, in parallel with what was being developed in England and Wales. Regrettably, the minister at that time was of the view that the difficulties that would arise in terms of staffing costs from the development of such units would be too great. As a result, Scotland has been left with a legacy of insufficient medium-secure units. Individuals have been kept in the state hospital for far longer than they should have been, and it is therefore important that we move forward on the issue. I commend the work that the Executive and the Health and Community Care Committee have done in achieving the compromises that are being discussed today.

The original report that I wrote for the Health and Community Care Committee on the medium-secure unit at Stobhill illustrates the difficulties that there can be if health boards do not pre-emptively and openly discuss the situation with their communities. It is an absolute prerequisite that communities have adequate information and that it is explained to them that those units are indeed secure—that word is there not just by chance, but because those units are secure. Our society owes it to our communities to ensure that they are secure. Equally, however, it is a mark of a mature and humane society that we do not retain people in the state hospital unnecessarily. I very much commend the Health and Community Care Committee, the Executive and Mary Scanlon for the amendments.

I support what members have said about regional secure units. We recognise that there is a need to move speedily on the matter, but that does not absolve health boards from the necessary consultation that will bring about successful conclusions within local communities.

On what Margaret Smith said about the Mental Welfare Commission taking on the final appeal stage, we discussed with the committee the issue of the individual not losing their ability to proceed if they wished to do so. The amendment that we have lodged allows that to happen.

Amendment 681 agreed to.

Amendments 682 to 690 moved—[Mrs Mary Mulligan]—and agreed to.

Section 186A—Replacement of responsible medical officer etc

Amendment 691 moved—[Mrs Mary Mulligan]—and agreed to.

Section 187—Advance statements: making and withdrawal

Amendment 18 is grouped with amendments 19 to 25.

Amendments 18 to 20 are minor and technical drafting amendments to section 187. Amendments 20, 21, 22 and 24 are also drafting amendments, as is amendment 23, which clarifies the cross-reference in section 188(3).

Amendment 25 clarifies the drafting of section 188(6). It makes it clear that the decision of the tribunal concerning whether an advance statement is validly made should be treated by a commission-appointed second-opinion doctor as conclusive, just as it would be for the treating doctor.

I move amendment 18.

Amendment 18 agreed to.

Amendments 19 and 20 moved—[Mrs Mary Mulligan]—and agreed to.

Section 188—Advance statements: effect

Amendments 21 to 25 moved—[Mrs Mary Mulligan]—and agreed to.

Group 70 is on treatment that conflicts with advance statements. The amendments in the group are 100, 26 to 30 and 101. I call Mr Chisholm—I beg your pardon; I call Mary Mulligan.

Amendments 26, 27, 28, 29 and 30 are technical amendments that will clarify the duties to record the fact that steps have been taken that are in conflict with the wishes that are recorded in an advance statement. Those duties will now apply also to commission-appointed second-opinion doctors.

Amendments 100 and 101, which were lodged by Adam Ingram, seek to give additional legal force to advance statements and are similar to amendments that were considered, but not agreed to, at stage 2. I am afraid that we still do not believe that such amendments would be desirable.

The bill will, for the first time, give legal status to advance statements that are made by patients who are subject to compulsory treatment, which is a significant development. We think that advance statements have a real role to play in helping to increase the extent to which patients can participate in negotiation and decisions about their treatment. The provisions in the bill concerning advance statements follow the recommendations of the Millan report. The Millan committee considered advance statements carefully and devoted a chapter of its report to considering carefully the extent to which advance statements should have legal force.

The Health and Community Care Committee also heard a considerable amount of evidence at stage 1 about the potential difficulties of advance statements. Some witnesses had profound reservations about the idea of including advance statements in legislation at all. There is good reason to believe that the benefits of advance statements will be maximised when they are used as tools to improve dialogue and negotiation between service users and doctors, rather than being seen primarily as legally enforceable documents.

It might be helpful if I quote from the Health and Community Care Committee's stage 1 report, which said:

"The Committee considers that the provisions on advance statements appear to strike an appropriate balance between increasing patients' autonomy, avoiding practical difficulties, and ensuring that doctors are not inhibited from protecting patients' welfare."

We still believe that Millan and the Health and Community Care Committee were correct in that conclusion.

Concern has been expressed that without a requirement to go to tribunal, an advance statement would be worthless; that is not the case. The bill requires doctors and tribunals to take advance statements seriously. We strengthened the provisions at stage 2 by ensuring that the commission can oversee the actions of doctors who decide not to comply with advance statements and by providing that second-opinion doctors must also take account of such statements. However, there would be serious problems in principle and practice if we were to go further than that.

It is not an appropriate function of the tribunal to decide between one form of medical treatment and another. The tribunal does not have the responsible medical officer's expert knowledge of the patient and will not have examined the patient. If the tribunal is satisfied that a patient requires to be treated compulsorily, it is right that the responsible medical officer—subject to the oversight of an independent second-opinion doctor where appropriate—should be responsible for choosing the best treatment for the patient.

The bill will not allow a doctor to make such a decision regardless of the wishes of the patient. An advance statement must be properly considered and any decision not to follow it must be set out in a report to the Mental Welfare Commission for Scotland. That is on top of the other safeguards that are already in the bill, which include the provisions for an independent second opinion in part 13 and the legal duties in part 1 for doctors to consider the full range of options and to act in a way that involves minimum restriction of the patient's freedom in the circumstances. Therefore, the bill already goes considerably further than does the current law in protecting patients from treatment that they oppose. Its effect will be that there must be truly compelling reasons to treat a patient in a way that contradicts an advance statement.

Adam Ingram's amendments would require any doctor who thought that it was necessary to treat a patient in a way that is inconsistent with an advance statement to seek the approval of the tribunal. The tribunal would have to allow the interested parties the opportunity to give evidence before deciding whether to authorise the treatment. We think that that would be impractical, partly because it could create burdens on doctors and the tribunal, but mainly because it could cause harm to patients. It appears that the amendments would allow treatment to be given without a tribunal hearing if the RMO were to decide that such treatment was a matter of urgency. However, there could be cases in which the matter is not an emergency, but in which treatment's being delayed could nevertheless prolong a patient's distress and cause long-term harm.

At stage 1, the committee expressed concern that the situation might arise in which a patient who had previously made an advance statement subsequently indicated willingness to accept treatment. It was suggested that it should be possible for the doctor to go to the tribunal and seek its approval for the treatment. We do not think that that is necessary, but it highlights one of the many practical and ethical difficulties that are raised by advance statements. Given such difficulties, we think that it is right to proceed cautiously and in line with what Millan recommended. We will certainly emphasise in the code of practice the importance that we attach to advance statements and the need to take them extremely seriously. We hope that the bill will allow advance statements to take root and influence the culture of decision making in mental health services in a way that emphasises partnership between service users and professionals, rather than conflict.

I hope that Adam Ingram will not press amendments 100 and 101.

I apologise to Adam Ingram—I should have called him to move amendment 100 before I called the minister. I must advise members that if amendment 100 is agreed to, I will not be able to call amendments 26 to 30 because they will have been pre-empted. I invite Adam Ingram to speak to and to move amendment 100.

Amendments 100 and 101 are restatements of an amendment that Mary Scanlon lodged at stage 2. The committee was split on the issue and her amendment fell only after the use of a casting vote; therefore, it is right that we revisit the issue today.

That is why I selected the amendment.

I will go over what an advance statement does. An advance statement offers an individual an opportunity, when he or she is well enough to do so, to set out their wishes regarding future care and treatment, should they lose their capacity to make decisions about such matters. As the bill stands, in making any decisions about a patient who has made a valid advance statement, a tribunal must "have regard to"—that phrase is used again—the terms of that statement. Patients who are treated under the eventual act might be given treatment that conflicts with their advance statement, provided that the person who gives the treatment has regard to the wishes that are expressed in that statement and complies with certain recording and notification requirements.

Amendment 100 will not make advance statements legally binding; neither will it prevent clinicians from providing treatment in an emergency, which could be dealt with under section 171. If the patient's RMO wished to give, or direct others to give, treatment that conflicted with the advance statement, the RMO would have to apply to the tribunal for authority to do so. The patient or named person would have the opportunity to have their views heard before the decision was made. That would strike the right balance between giving advance statements significant weight and allowing that they can be overridden by the tribunal in appropriate circumstances.

Professionals have written to several MSPs. Professor David Owens, for example, was concerned that advance statements could inhibit psychiatrists' duty of care. However, the availability of an appeal to the tribunal allows expression of clinical judgments and would protect psychiatrists in their judgments about care for, and treatment of, patients.

The point of my amendments is to reassure service users that their voices will be heard when treatment choices are being made, and that they will not be overridden as a matter of course.

I move amendment 100.

As my colleagues on the Health and Community Care Committee have witnessed, this is undoubtedly the issue with which I have struggled more than any other during the passage of the bill—the issue is crucial. I support Adam Ingram's amendments. A patient's rights, as stated in an advance statement, will form the basis of controversy for years to come. To be honest, I agree with both sides, and I find the matter to be enormously complex.

Once again, the issue is the balance between patients' rights and allowing clinicians to make good clinical judgments. I do not wish to deny patients respect and dignity, as has been done in the past, because when they are fit and well, many patients wish to have a say in the type of treatment—for example ECT and other treatments—that they want when they fall ill. I do not wish to deny any patient in Scotland that right, but neither do I wish to deny a psychiatrist the duty of care or to inhibit his or her right to make a clinical judgment. Although I support Adam Ingram's amendments, we also want service users to be encouraged to go through the formality of making an advance statement in accordance with the requirements of section 187. We do not want them to wonder what the point is of making an advance statement when that statement can be overridden at the discretion of professionals, with no means being available to service users to challenge such decisions. We want to empower service users and to treat them with the respect and dignity that they have gained through their experience of the service.

However, to do so is undoubtedly difficult when one receives a letter such as that from Professor Owens. I would like to share one or two comments from that letter—I make no apologies for the time that I will take because this is such a difficult and complex issue. Professor Owens states:

"I am concerned about the potential conflict for doctors with regard to their duty of care. I wonder what will be the expectations of someone such as myself when a clearly stated advance directive represents in my clinical judgement an inappropriate plan for management.

I strongly believe that the whole principle of advance directives is based on a false assumption—namely, that the circumstances in which psychiatric disorder presents remain static and predictable. This is totally contrary to my clinical experience. What may be an appropriate treatment plan in one set of social and clinical circumstances may be totally inappropriate in another.

There are a series of further practical difficulties—e.g. over 90% of my work is concerned with emergency cases. The idea of a ‘cold' psychiatric case is rapidly becoming a thing of the past. In these circumstances, it may be impossible to confirm the details of any extant advance directives—or, worse, establishing their presence in volumes of past clinical records, may unduly delay the implementation of an optimal treatment plan.

The proposal, contained in this amendment"—

which I support—

"to refer dispute in these matters to a Tribunal for, in effect, arbitration, fills me with horror. This is in effect, the act of handing over professional—and CLINICAL—judgement to the legal process, something which I ... abhor ... Should Parliament accept that advance directives must be, in matters of dispute, arbitrated by Tribunals, I MOST FIRMLY believe they must also give psychiatrists the LEGAL right to refuse to accept on-going management responsibility for cases in which their clinical plan is over-ridden by a review Tribunal. To fail to do so, would in my view place psychiatrists in the invidious situation of being forced to supervise treatment they believe to be sub-optimal or worse, positively harmful, something that is contrary to every principle of medicine in which they have been professionally raised and nurtured—and something I do not believe Parliament has the right or authority to impose our profession."

I cite Professor Owens's letter because I want MSPs who are not, or have not been, members of the Health and Community Care Committee to understand the difficulties that the committee has had in trying to give patients more rights and a say in their medication or treatment; in trying to reduce the stigma that we all know is associated with mental health; and in trying to treat patients as worthwhile partners in the partnership of care. I find it very difficult to give patients the authority that I want to give them while respecting the clinical judgment of people such as Professor Owens.

The member has argued against herself.

As a true Gemini, I see both sides of the argument clearly. I want to show members how difficult it is not to inhibit clinical judgment while giving patients rights.

How do I follow that? Mary Scanlon has provided classic examples of the difficulties to which I alluded earlier and of questions arising from the bill with which the Health and Community Care Committee has wrestled. We have had to make judgment calls at the narrow edges of a border.

I agree whole-heartedly and sympathise with the views that lie behind amendment 100. It is important that we afford people who have mental health difficulties true dignity and respect and that we listen to what they say because they probably know much more about their conditions than do most of the people who will be involved in treating them. Anyone who does not listen to the patients is not doing their clinical job properly.

How do we afford people with mental health difficulties proper dignity and give proper weight to their judgments about the treatment that they should receive, while taking on board the clinician's duty of care? Mary Scanlon has wrestled with the issue and has cited from the letter that many of us received from Professor Owens about the problems that amendment 100 would present from a clinical point of view. In a sense, I am on the other side of the argument, because I voted against the amendment that Adam Ingram lodged on the issue at stage 2, even though I agree whole-heartedly with his view.

Despite the fact that I am an Aquarian, I am in exactly the same situation as Mary Scanlon. Adam Ingram's argument about the right of appeal is seductive and persuasive, but the problem is that if the answer to an appeal is that the clinician is not correct, the legal tribunal would compel the clinician to do something that he or she thinks is wrong and to go against his or her judgment and the terms of their duty of care.

At stage 1, the Health and Community Care Committee said that we do not want advance statements to be legally binding—as far as I am aware, nobody wants that—because we understand the complexities of the issue, as do the Scottish Association for Mental Health and other bodies. We felt that if greater weight were to be given to advance statements, we would have to resolve the issue of what to do about clinicians who are compelled to do something against their best clinical judgment. If I recall rightly, we said at stage 1 that it should be possible for clinicians who have to act contrary to their judgment to be absolved of responsibility for what happens.

I turn to the compelling arguments that were made by the likes of Professor Owens. People can make advance statements about conditions that they might experience, but time and conditions do not stand still. We always hope that people will get better, but often they deteriorate. Given that conditions do not remain static, it is difficult to say that a clinician should at some point in the future be compelled to act on a person's advance statement.

An example that I have used previously—although not entirely seriously—is the suggestion that I gave to my clinicians when I was expecting a baby. I had a wonderful notion about the care that I wanted and I said that I did not want pain relief. I gave the issue some thought and discussed it with clinicians and my husband, but when it came down to it, I would happily have had my head taken off if the baby could have been brought out that way. I was in so much pain that I would have taken anything, and I tried to do so. [Members: "Hear, hear."] That hit a raw nerve.

I do not mean to be flippant, but that example is the only occasion on which I have been asked what I wanted in advance of treatment, but the reality of what I experienced was different from what I thought it would be. My example illustrates one of the complexities of the issue. A difficult judgment call is involved, but I do not support Adam Ingram's point of view. I ask the Executive to monitor the system closely because we can learn from experience. I will go with the Executive on this one.

I was not paying too much attention to the debate until I heard Mary Scanlon's speech, which reminded me of arguments that we had in relation to the Adults with Incapacity (Scotland) Act 2000. On the one hand, the family of somebody who is incapax might think that they know best how that person should be treated, but on the other hand, the doctor might think that that treatment would be inappropriate. Initially, we decided that the clinician should have the last word, about which the families were up in arms, but when we reversed that decision at stage 2, the families were happy but the medical profession was extremely unhappy.

If my memory serves me well, we decided that there should be a tribunal that, in extremis, would make a decision about what was best for the patient. My memory is vague, but I do not think that the tribunal was necessarily a medical one—lawyers and other people were to be involved. Perhaps the Executive should consider that system as a model for what might happen with advance statements. We are at a late stage, but perhaps the Executive could find out how the advance statement system works and consider introducing a tribunal.

As the back bencher who was instrumental in working closely with the Executive on the provisions of the Adults with Incapacity (Scotland) Act 2000, to which Maureen Macmillan referred, I think that what happened in that act's passage is a good example. The outcome was that the Mental Welfare Commission would appoint a second specialist independent doctor who was an expert in the field and who would listen to the views of the carer and the doctor who proposed the treatment over which there was disagreement. The concept was based on partnership.

The proposed advance statement system will allow a patient who might become incapacitated to make an advance statement, which will ensure as far as possible that the patient's wishes are followed. However, as Mary Scanlon said, there are significant difficulties with the proposal. Psychiatrists often have to move quickly to establish treatment that, although it might not be life saving, is close to it. We are not dealing with absolutes, but with many relative positions. We should consider and take on board the model in the Adults with Incapacity (Scotland) Act 2000, although it has been introduced only recently, so I am not sure whether there is any case history on it.

One great advantage of the parliamentary system is that the Executive, having given an undertaking to monitor advance statements carefully, will be able to return to the Parliament rapidly if the case history in relation to the Adults with Incapacity (Scotland) Act 2000 or the working of the new advance statements prove that additional measures are required. The Executive is right to move cautiously and to try to take the medical professions and the users with us. I support the Executive, but I strongly urge it to monitor the system extremely carefully. The Executive should have an open mind about returning quickly to the issue if users' wishes are not being followed through reasonably.

It is regrettable that some patients who have mental illness are unreasonable—just as some members are unreasonable from time to time. Advance statements are not always in patients' best interests; indeed, they might have serious consequences. A degree of openness about the issue is important.

Does the minister want to add anything before I ask Adam Ingram to wind up?

Thank you, Presiding Officer. I am sorry that I jumped the gun earlier.

That was my fault.

I feel strongly that the bill has moved substantially towards giving service users control over their treatment, which is the message that we received loud and clear. The Mental Welfare Commission, the general practitioners committee of the British Medical Association and the Royal College of Psychiatrists welcomed the bill's provisions on advance statements, although I accept that it was a cautious welcome. Even Professor Owens, who had profound reservations about advance statements, indicated that the policy that is enshrined in the bill—which stops short of giving full legal effect to advance statements—might be workable. We get the feeling that people have serious concerns about how to arrive at a correct balance on the issue, but the Executive's amendments should give us that balance.

Maureen Macmillan mentioned tribunals. In reality, if a patient's need for treatment is such that the responsible medical officer and—where appropriate—the independent second-opinion doctor are satisfied that it would be wrong to comply with the advance statement, it would be absolutely exceptional for a tribunal to seek otherwise. Therefore, a tribunal system might be overbureaucratic and lead to practical difficulties, which is why we have not gone down that route.

I agree totally with members who said that it is essential that we keep the issue under review. We are aware of the range of views—some conflicting—that people hold on the issue.

The minister will be aware of the shortcomings of section 5 of the Adults with Incapacity (Scotland) Act 2000 and the extra work load that it has brought about, which I have pointed out to Minister Chisholm. Will she ensure that the bill will not introduce another unexpected work load for practitioners? When will she proceed with the review of the Adults with Incapacity (Scotland) Act 2000 that Minister Chisholm promised?

Section 5 of the Adults with Incapacity (Scotland) Act 2000 is under review and the minister will shortly produce proposals to try to address the work-force issues that have arisen. However, in the majority of cases, the 2000 act is working well.

Advance statements will need to be monitored. We want service users to feel that their views are being taken into account and that they hold great sway over decisions regarding their treatment. We want to encourage service users to make advance statements and to feel that those statements are worth while. We will ensure that they will be overridden only in rare cases, and we will continue to review that option.

This has been a good and interesting debate. Mary Mulligan has shown her passionate side again, as has Margaret Smith. They both made very good speeches.

This is a question of balance and it is clear that we are all struggling to decide where that balance should lie. I believe that we need to move the balance towards the rights of individual users of the service and away from the historical dominance of the professional point of view. On that basis, I will press amendment 100.

The question is, that amendment 100 be agreed to. Are we agreed?

No.

There will be a division.

For

Adam, Brian (North-East Scotland) (SNP)
Canavan, Dennis (Falkirk West)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Ewing, Mrs Margaret (Moray) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Grahame, Christine (South of Scotland) (SNP)
Hamilton, Mr Duncan (Highlands and Islands) (SNP)
Harper, Robin (Lothians) (Grn)
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)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
McLeod, Fiona (West of Scotland) (SNP)
Morgan, Alasdair (Galloway and Upper Nithsdale) (SNP)
Mundell, David (South of Scotland) (Con)
Neil, Alex (Central Scotland) (SNP)
Paterson, Mr Gil (Central Scotland) (SNP)
Reid, Mr George (Mid Scotland and Fife) (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)
Wallace, Ben (North-East Scotland) (Con)
Welsh, Mr Andrew (Angus) (SNP)

Against

Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Brankin, Rhona (Midlothian) (Lab)
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)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macdonald, Lewis (Aberdeen Central) (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)
McNulty, Des (Clydebank and Milngavie) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Peacock, Peter (Highlands and Islands) (Lab)
Raffan, Mr Keith (Mid Scotland and Fife) (LD)
Robson, Euan (Roxburgh and Berwickshire) (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 30, Against 56, Abstentions 0.

Amendment 100 disagreed to.

Amendments 26 to 30 moved—[Mrs Mary Mulligan]—and agreed to.

After section 188

Amendment 101 not moved.

Section 189—Education of persons who have mental disorder

Amendments 218 and 219 moved—[Mrs Mary Mulligan]—and agreed to.

Section 193—Correspondence of certain persons detained in hospital

Amendment 56 is grouped with amendments 57 to 66.

Amendments 56 and 65 are technical amendments that provide that section 193, which regulates interference with patients' correspondence, may apply both to correspondence that is delivered by the normal postal service and to any other arrangements for the collection of post.

Currently, important aspects of the procedures on interference with correspondence apply only when the patient is detained in the state hospital. We indicated at stage 2 that we wished to review that and we have concluded that it might be necessary for the powers to apply to some patients in other settings. That particularly reflects the fact that some patients who might in the past have been in the state hospital will, in future, be accommodated in regional secure facilities.

Amendments 57 and 62 therefore remove the restriction to the state hospital but leave provisions that allow regulations to specify the kind of patient or the kind of situation that may justify interference with correspondence—for example, to protect other patients or members of the public. Those regulations will be subject to the affirmative procedure, so the Parliament will have a proper opportunity to consider them before they are brought into effect.

The bill puts in place safeguards, including a list of people whose correspondence cannot be intercepted and powers for the Mental Welfare Commission for Scotland to monitor any such action and, if necessary, to overrule the hospital managers.

Amendment 58 is purely a drafting amendment. I shall not move amendment 59, as the latest advice suggests that the reference to the Scottish ministers should be retained as a fallback in cases in which letters are being received and the identity of the hospital is not known.

Amendments 60 and 61 reflect commitments that were made at stage 2. A member's amendment sought to provide that correspondence between a patient and an advocate could not be interfered with. We agreed in principle, but were concerned to ensure that the drafting was tightly drawn so that the provision applied to properly authorised independent advocates and was not open to abuse. Amendment 61 provides for that. For completeness, we have also added to the list members of the National Assembly for Wales, members of the European Parliament, special health boards and NHS trusts.

Amendment 63 is purely a drafting amendment. Amendment 64 makes it clear that the risk that might justify intercepting a letter that is sent by a patient may relate to the health of that patient as well as to the patient's safety.

Section 197(4) provides that telephone calls by the patient to any one of a list of persons or bodies cannot be intercepted, except in limited circumstances. Amendment 66 adds to the list health boards and the bodies that are listed in amendments 60 and 61, including independent advocacy services.

I move amendment 56.

Amendment 56 agreed to.

Amendments 57 and 58 moved—[Malcolm Chisholm]—and agreed to.

Amendment 59 not moved.

Amendments 60 to 65 moved—[Malcolm Chisholm]—and agreed to.

Section 196—Certain persons detained in hospital: use of telephones

Amendment 66 moved—[Malcolm Chisholm]—and agreed to.

Section 197—Safety and security in hospitals

Amendment 10 is grouped with amendment 67.

Amendment 10 is a technical amendment that makes it clear that the regulations that may be made under section 197, concerning safety and security in hospital, apply to patients who are detained under the bill or the related mental health disposals in the Criminal Procedure (Scotland) Act 1995.

Amendment 67 is also a technical amendment. It broadens the consultation requirements in section 197(6) to any regulations that are made under section 197.

I move amendment 10.

Amendment 10 agreed to.

Amendment 67 moved—[Malcolm Chisholm]—and agreed to.

After section 197

Amendment 692 moved—[Malcolm Chisholm]—and agreed to.

After section 200A

Amendment 693 is grouped with amendments 694 to 700.

Amendment 693 introduces a new section that makes provision for the transfer of patients subject to community-based compulsory treatment orders. The new section provides a regulation-making power in which a detailed framework for the transfer of such patients to destinations outside Scotland can be set out.

It is important to emphasise that a patient subject to a community-based compulsory treatment order can be transferred outside Scotland only when that is in accordance with the patient's wishes or, if the patient is unable to express an opinion, when the named person considers it to be in the patient's best interests. It is envisaged that the powers provided for in the new section will be used primarily where the patient wishes to settle in another part of the United Kingdom.

Amendments 694 and 695 adjust section 201(1)(c) to make it clear that, in relation to the removal of a patient from another jurisdiction to Scotland, the bill can make provision only for the reception of the patient in Scotland. The removal of the patient from foreign territory is a matter for that jurisdiction.

Amendment 696 requires that regulations concerning the cross-border transfer of patients under section 201 must require the Scottish ministers to have regard to certain factors before a patient can be transferred. Those factors are the patient's best interests, the existence of suitable arrangements at the receiving end, any preference that the patient has expressed to the Scottish ministers and any risk to the safety of any person.

Amendment 697 expands the list of persons to whom notice must be given of any decision that the patient be removed from Scotland under section 201. Those persons are the patient, the patient's named person, the mental health officer and the Mental Welfare Commission.

Amendment 698 improves the drafting of section 201(3) by making it clearer that exceptions can be made to the requirements under paragraphs (b), (c), (d) or (f) of section 201(2). Exceptions cannot be made to paragraphs (a) and (e), which provide, respectively, that a patient's removal from Scotland must be authorised by a warrant issued by the Scottish ministers and that a patient may appeal against any decision to remove him.

Amendment 699 adjusts section 201(4) to make it clear that the Scottish ministers can veto the reception in Scotland of any patient removed from another jurisdiction. However, the removal itself is a matter for that jurisdiction. Amendment 700 makes it clear that a patient whose detention is suspended by virtue of a certificate issued under the relevant part of the bill is nonetheless included within the scope of section 201, which deals primarily with detained patients.

I move amendment 693.

Amendment 693 agreed to.

Section 201—Cross-border transfer of patients

Amendments 694 to 700 moved—[Malcolm Chisholm]—and agreed to.

Section 198—Removal from public place

Amendment 102 is grouped with amendments 701 to 703, 220, 704 to 708, 221 to 241, 711, 713 to 717 and 733.

Amendment 708 makes provision in section 204 for patients on suspension of detention from emergency or short-term detention where that suspension of detention is subject to conditions that the patient be accompanied or return to hospital and the patient fails to comply with those conditions.

Amendment 220 extends the absconding provisions contained in section 204 to cover patients who are detained in hospital as a result of section 85(5A). Amendment 223 modifies section 205(8) so that a patient who is absent without leave and in breach of his compulsory treatment order is no longer considered to be absent without leave once taken in under section 85 for breach of the order.

Amendment 225 adds a new provision to section 206 to make it clear that a patient who is subject to a compulsory treatment order and whose period of unauthorised absence has continued for longer than three months is not only no longer liable to be retaken, under section 205(4), but is no longer subject to the order. Without that provision, although the patient could not be retaken, the order would still be alive.

Amendment 226 corrects the drafting of section 207(1)(b) by removing the superfluous reference to a period of two months. Section 207 applies to any patient subject to a compulsory treatment order whose period of unauthorised absence is longer than 28 days and whose unauthorised absence ceases at least 14 days before the expiry of the order.

Amendments 228 and 235 prevent unnecessary duplication of section 60(3) reviews in sections 207 and 209 respectively. If it is necessary to carry out a section 60(3) review for the purposes of part 16 and the 14-day period within which the review is carried out overlaps with the two-month period within which a first or further review must be carried out, for the purposes of renewing the order it is not necessary to repeat those steps. Amendments 229, 231 and 232 are consequential on amendment 228 and improve the drafting of section 207.

Amendments 230 and 233 remove section 207(6), which was incorrect. That subsection provided that, if the patient absconded after the mandatory review procedures in part 7, chapter 2 had begun, those review procedures did not need to be repeated. That is not correct in the case of patients who have been absent without leave for a period exceeding 28 days. That is such a significant event that any such review must be started again from scratch. Amendments 236 and 239 remove the reference to section 207(6) from sections 209(2) and 210(2) respectively.

Amendments 237 and 240 clarify the application of subsections (3) to (5) of section 207 to sections 209 and 210 respectively. Those subsections provide the interface with part 7, chapter 2, which deals with the renewal of compulsory treatment orders. Amendments 238 and 241 provide that a period of unauthorised absence lasting for 28 days or less does not invalidate any of the review procedures carried out for the purposes of part 7, chapter 2 prior to the absence of the patient.

Amendment 711 introduces a new section providing a regulation-making power to enable provisions equivalent to those for absconding civil patients to be drawn up for patients subject to criminal orders. Amendments 701 to 707, 221, 222, 224, 227 and 234 are technical amendments to part 16 that improve the drafting and tidy things up after amendment at stage 2.

I move amendment 102.

Amendment 102 agreed to.

Section 203—Absconding etc by patients subject to compulsory treatment order

Amendments 701 to 703 moved—[Malcolm Chisholm]—and agreed to.

Section 204—Absconding etc by other patients

Amendments 220, 704 to 708 and 221 moved—[Malcolm Chisholm]—and agreed to.

Section 205—Taking into custody and return of absconding patients

Amendments 222, 709, 710 and 223 moved—[Malcolm Chisholm]—and agreed to.

Section 206—Effect of unauthorised absence

Amendments 224 and 225 moved—[Malcolm Chisholm]—and agreed to.

Section 207—Effect of long unauthorised absence ending more than 2 months before expiry of compulsory treatment order

Amendments 226 to 233 moved—[Malcolm Chisholm]—and agreed to.

Section 209—Effect of unauthorised absence ending simultaneously with or within 14 days before the expiry of compulsory treatment order

Amendments 234 to 238 moved—[Malcolm Chisholm]—and agreed to.

Section 210—Effect of unauthorised absence after expiry of compulsory treatment order

Amendments 239 to 241 moved—[Malcolm Chisholm]—and agreed to.

After section 212

Amendment 711 moved—[Malcolm Chisholm]—and agreed to.

Section 214—Offences under section 213: extended sentences

Amendment 242 moved—[Malcolm Chisholm]—and agreed to.

Section 215—Persons providing care services: sexual offences

Amendment 757 moved—[Malcolm Chisholm]—and agreed to.

Amendment 712 is grouped with amendments 731, 739, 11 and 12.

Amendment 712 is a technical amendment that removes unnecessary text, because the definition of "regulations" in section 228(1) already produces the result that all regulations under the bill fall to be made by the Scottish ministers.

Amendment 731 corrects an incorrect cross-reference to the regulation-making powers in section 168, which concerns safeguards for certain treatments for mental disorder. Amendment 731 also provides that regulations under section 168(5), which amend the length of time that medication may be given before attracting safeguards—currently two months—shall be made under the affirmative procedure. That implements a Subordinate Legislation Committee suggestion.

Amendments 11 and 12 are technical amendments. They provide that the powers of the Scottish ministers to prescribe forms and to make supplementary provisions by order will come into force immediately when the act receives royal assent and do not have to be brought into force by order.

Section 228A allows the Scottish ministers to make supplementary, incidental or consequential provisions by order. Those orders may modify other acts and, where that happens, the affirmative procedure applies. Amendment 739 provides that an order under section 228A may modify the terms of the act that the bill will become. The reason for doing that is simply that the bill will be an extremely detailed and intricate piece of legislation. There are complex interrelationships between the different parts. Once they are examined, it might become apparent that consequential amendments are needed to particular provisions to give full effect to the bill's provisions.

I move amendment 712.

Amendment 712 agreed to.

Section 216—Notification requirements for offenders under sections 213 and 215

Amendment 243 moved—[Mrs Mary Mulligan]—and agreed to.

Section 217A—Inducing and assisting absconding etc

Amendments 713 to 717 moved—[Mrs Mary Mulligan]—and agreed to.

Section 219—Appeal to sheriff principal against certain decisions of the Tribunal

Amendment 718 is grouped with amendments 244 to 247, 721 to 725, 249, 729 and 730.

The amendments relate to the provisions on appeals against decisions of the tribunal. They adjust the set of decisions that can be appealed and the group of people who have a right of appeal.

A right of appeal exists against a decision to make or refuse to make an order under section 160A(5) or section 160B(5) to prevent a transfer or require that a transferred prisoner be returned. However, by necessity, that relates to a restricted patient, so it belongs in section 221 rather than in section 219. Amendment 718 combined with amendment 725 will give effect to that. Amendment 725 will also add rights of appeal against some decisions made by the tribunal under section 154A, which was added at stage 2.

Amendments 721 to 724 perform two functions: they reflect the consequences of earlier amendments to section 133 and make it clear that the relevant persons—who include the patient, their named person and the Scottish ministers—have a right of appeal against any decision of the tribunal under section 133, including a decision to make no order.

Should the Scottish ministers raise an appeal under section 221, section 222 gives the Court of Session the power to order, should it wish to do so, that the patient should remain detained in hospital subject to the original compulsion order and restriction order until the appeal process has been concluded. Amendments 729 and 730 will ensure that that power also applies to decisions under subsections (3) and (4) of section 154A when a patient is subject to a hospital direction or transfer for treatment direction.

Amendments 244 to 246 and 249 add any guardian or welfare attorney of the person concerned to the people who are considered relevant parties for the purposes of an appeal. Amendment 247 is directly consequential to amendment 246.

I move amendment 718.

Amendment 718 agreed to.

Amendments 719, 244, 245, 720, 246 and 247 moved—[Mrs Mary Mulligan]—and agreed to.

Section 221—Appeals to Court of Session against decisions made under section 133

Amendments 721 to 723, 248, 724 to 727, 249 and 728 moved—[Mrs Mary Mulligan]—and agreed to.

Section 222—Appeal by Scottish Ministers under section 221: suspension of Tribunal's decision

Amendments 729 and 730 moved—[Mrs Mary Mulligan]—and agreed to.

Section 225—Orders, regulations and rules

Amendments 755 and 731 to 733 moved—[Mrs Mary Mulligan]—and agreed to.

Section 228—Interpretation

Amendments 734 and 735 moved—[Mrs Mary Mulligan]—and agreed to.

Amendment 736 is in a group on its own.

Like many members, I have received several letters from clinical psychologists who are concerned that the bill omits psychological intervention and treatment. I have some sympathy with the view that the bill does not acknowledge the psychology input to the mental health care system as it should, but the amendments that the clinical psychologists suggested were not the way forward.

To address some of their concerns, I lodged amendment 736, which would include psychological intervention in the definition of medical treatment. The Executive feels that the definition is in case law, but I see no reason not to provide clarity in the bill by specifying psychological intervention in the definition of medical treatment. I await with interest the minister's response.

I move amendment 736.

I support what Shona Robison has said. All members have probably received letters about the issue from the British Psychological Society and from clinical psychologists. The Health and Community Care Committee said in its stage 1 report that the Executive should look into the matter, because clinical psychologists raised their concerns with us then.

It would be unfortunate to proceed with enshrining the bill's current definition of medical treatment. Even if the Executive's intention is that the definition should be broader than just medical treatment in its purest sense, the current wording conjures up ideas simply of doctors and medication, and there is an awful lot more to the picture of what is needed to treat and care for people with mental disorder. The letters that we have received have given examples, such as the treatments that sex offenders receive and anger management classes not only in our prisons but elsewhere. All that is valuable work. In building a statutory mental health system for the future, we do not want to look like we are rooted in the past. We should acknowledge that such treatment is the way forward. There are more ways to assist people in dealing with the conditions from which they suffer.

I agree with the direction in which the member is going. Does she agree that one main problem that we face with other treatments, in particular therapeutic treatments, is the shortage of child psychologists and psychotherapists in Scotland?

I agree. If Mr Raffan cares to ensure that he is present for the winding-up speeches, he will probably find that all members of the Health and Community Care Committee will return to the lack of psychologists, of which we are well aware. I back up the member's comments.

Of course, the situation is not new. Clinical psychologists have been in short supply for the past 10 or 15 years. A proposal has been made to extend the time for their training to about seven years. Does the member feel that that is appropriate when the length of medical degrees has been shortened to five years? In England, faster medical degrees of three years are being introduced for people with associated scientific specialties. A university is being set up to provide such degrees.

In psychology, a person must obtain a first degree with a first or a 2:1, become an assistant psychologist and undertake some practice, then take a course to obtain a clinical psychology qualification. The proposal to extend the length of time for training will make the situation worse. If we are to address the matter properly, we must consider who provides alternative therapies best and which staff can provide them.

Please be brief. You are making an intervention.

I apologise. Does Margaret Smith agree that that area needs to be considered further?

If I could remember what I was saying when Richard Simpson intervened on me, I probably would. I think that I agree with what he says. It links in with another work-force point that the Health and Community Care Committee raised: the shortage of mental health officers. The Executive must examine that.

The bill is laudable. Despite concerns about certain points, I hope that it will command the Parliament's overwhelming support. However, the Executive must examine the resources that are needed to implement it. That includes the work-force resources that are needed.

On MHOs, we have suggested to the Executive that it should consider a form of fast tracking and how it will make MHOs available. Therefore, I am happy to take on board Richard Simpson's point about whether there is any way in which the same thing can be done for psychologists. Over the past week or so, the members of the Health and Community Care Committee have been in discussions with the Executive and the bill team on that issue. We have considered two different proposals. One of them is before members today in the form of amendment 736, in Shona Robison's name, which would insert "psychological intervention" into the list of treatments. That seems to be the easier option in terms of its impact on the rest of the bill.

The bill team tells us that another way might have been to change "medical treatment" to "treatment", with medical treatment and psychological intervention being part of the definition. That would have so many consequential impacts on the rest of the bill that it would not be a good thing to do at this stage, given the time constraints. Those time constraints do not affect Shona Robison's amendment 736. Therefore, we should go ahead with it, so that the bill reflects better the kind of services that are provided to individuals who have mental health disorders now and, I hope, even more so in future.

I, too, support amendment 736. There may be a shortage of clinical psychologists in Scotland, but—my goodness—they got their act together in the final week. They are certainly all talking to one another.

To confirm that point, I have with me today letters that I have received from psychologists in Lanarkshire, Ayrshire and Arran, the Lothians, Argyll and Clyde, Grampian, the Borders, the state hospital at Carstairs, greater Glasgow, the University of Dundee, Gartnavel hospital and the Orchard clinic and from the British Psychological Society. There may be few clinical psychologists, but they have come to the debate. I am sorry that we received their letters late, because we could have done much to acknowledge psychology and to integrate it into the bill at previous stages.

I will make the point that Margaret Smith has just made. I quote from a letter from a psychologist in the Lothians:

"The major difficulty is that ‘medical treatment' is used to cover all care for mental disorder. Within the area of mental health, medical treatments clearly differ from psychological therapies … In many areas of mental health, evidence-based research suggests psychological therapies to be as effective or more effective than medical treatment".

Too often, people came to the Health and Community Care Committee and said, "Nobody talks to me. All I get is some pills—more pills—and I just want to talk to someone." As a result, I have a lot of sympathy with the points that the psychologists make. The letter from which I just quoted goes on to talk about treatment for moderate depression, anxiety, personality disorder, and obsessive-compulsive disorder.

Another clinical psychologist from Argyll and Clyde talks about

"the applicability of psychological interventions like anger management, substance abuse therapy, sex offender treatment, cognitive behaviour therapy for psychosis, dialectical behaviour for borderline personality disorder".

A psychologist from the state hospital at Carstairs—which we have debated in the past—says:

"treatment plans now regularly include … ‘Anger Management', ‘Sex Offender Treatment', ‘Cognitive Behaviour Therapy …' and ‘Substance Abuse Therapy'."

My final point comes from the a clinical psychologist at the University of Dundee, who says:

"As the Bill stands now, I think that it will be unworkable and could lead to an ineffective and poor quality of service provision for patients"—

unless, of course, psychology and psychologists are given their rightful place in the treatment of patients.

I welcome amendment 736. It emphasises the changes that are taking place in treatment throughout Scotland. Treatment of mental disorder was once within the purview of one professional organisation, but the world of mental disorder and its treatment has changed significantly. It is right and proper that a group of professionals who provide a significant service in dealing with people who have many challenges, in particular behavioural challenges, should be recognised. Those with challenges need individuals with a clinical psychology qualification to work with them to ensure that they return to better health.

The point that Richard Simpson made about work-force issues was raised time and again during stage 1 and stage 2. We need to plan better for the national health service work force. That has never been done before. We must look to the future rather than just consider where we are now.

Richard Simpson made a point about the length of time that the training of clinical psychologists takes. We must address that. We should have limited facilities for individuals to practise while they undertake such training. The fact that the training takes seven years is an issue. That is not appropriate. It should be shortened, as medical training has been. We should allow qualified doctors who will go on to get a subsequent qualification in a particular field to practise and undertake the training. We should consider new ways to ensure that people get the appropriate qualification to assist those who require their assistance.

Not only should secure units be located in the correct areas, but the treatment that is provided in them should be effective. I support amendment 736 because psychological intervention is important. Last week, I met Dr Ramm of the Orchard clinic, to which Mary Scanlon referred, and discussed with him his concerns. It is important that we get the facilities right and ensure that the local communities embrace them, but it is also important that the treatment is correct and proper.

The case for psychological intervention has been well made. I commend the Health and Community Care Committee for allowing that to be developed. Although the psychologists have come to the debate late in the day, it is important that we consider their points. I ask the Executive to consider the amendment, which is serious, in that light.

Amendment 736 would add "psychological intervention" to the definition of medical treatment in the bill. The amendment is not strictly necessary, because there is no real doubt that psychological therapies are included in the current definition, but we are happy to take the opportunity to put the matter beyond doubt by accepting the amendment.

I will say a couple of things on the subjects that have been raised. First, I stress that we fully expect that psychologists will play an important role in assessment, care planning and the delivery of care to people with mental disorders under the bill. The role of psychological therapies, such as cognitive behavioural therapy, in the care and treatment of mental illness and learning disability is increasingly recognised.

We have already emphasised the importance of psychological intervention in guidance to the field. More than a year ago, I was pleased to launch circular HDL(2001)75, "Framework for Mental Health Services in Scotland: (A) Psychological Interventions (B) Eating Disorders". Psychological therapy is an important new area—or rather, an increasingly important area—for mental health services. Members might wish to read the core service elements that are referred to in the document, which highlight some of the key themes of mental health policy. The document refers to the views of

"users of services (including advocates), carers of people with mental health problems, and partner agencies",

and emphasises strongly the importance of

"collaborative working with social work departments and voluntary organisations".

Members who are interested in the subject may wish to read another document, "Psychological Interventions Pilot Implementation Projects", which came out in April 2002. It is interesting to read some of the key issues in relation to mental health services that are highlighted in that report, such as the need to take a "whole systems" approach and to identify

"the different interfaces of the system (eg between Primary and Secondary Care … and Voluntary Sector providers) and improve communication and the person's journey across them."

That links up with some of the key themes of the recent white paper.

The minister is correct to draw attention to those papers, which are very important.

The minister has stated repeatedly his recognition of the fact that general practitioners undertake the vast preponderance of treatment of mental health conditions. The treatment of those conditions rarely proceeds to psychiatrists or clinical psychologists. I wonder whether the minister agrees that that situation gives rise to a number of problems that need to be addressed and that, although those problems go beyond the scope of the bill, they are fundamental to its implementation.

One of the problems is that there is no compulsory requirement on general practitioners to undertake psychiatric training as part of their postgraduate training. That means that a significant number of GPs undertake treatment on the basis of their undergraduate course alone. That is unsatisfactory.

A second problem is that, given the time constraints in general practice—the current consultation time is roughly seven or eight minutes per consultation—there are profound difficulties in undertaking treatments such as cognitive behavioural therapy. Adequate training for GPs will be vital to the implementation of the bill and to ensuring that psychological treatments play an appropriate part for the user. I also know that the minister is working on the implementation of the new general practitioner contract in Scotland. It will be vital to ensure that it makes it possible to implement in general practice the sort of quality treatment that users are entitled to, and that sufficient time will be allowed.

I hope that those remarks are helpful and that the minister will acknowledge the fact that the issue is broad and that considerable impetus from the Executive is necessary to maintain the work that has been done.

I congratulate Richard Simpson on the two longest interventions of recent times. I also acknowledge that he made interesting and important points, to which there are several responses. In summary, I agree entirely with everything he said.

There has been development in a variety of forms. In its report, the primary care modernisation group flagged up mental health as a key area for development in primary care. In our recent work involving stakeholders, which will result in a letter being sent to the stakeholders next week, we have flagged up the increasing role of primary care and local health care co-operatives, in partnership with all the other agencies.

On Dr Simpson's earlier intervention, the other key area is the development of the work force. There are issues about the number of clinical psychologists. Although we have taken action to increase the number of clinical psychologists in training, I agree with Richard Simpson's more general point that the issue does not involve only clinical psychologists. As he said in his last intervention, a wide range of members of the work force—in particular the primary care team—can play an important role in mental health.

The mental health work force is the pathfinder group for our new work-force arrangements, which involve the work-force unit and new structural arrangements for work-force planning and development. The first piece of work on our new work-force planning arrangements will concentrate on the mental health work force. Part of that is about people performing new roles. I agree with Richard Simpson that GPs will want to—and, in many cases, will require to—develop their skills. I recognise that there are time issues. I am sure that Richard Simpson will agree with me about the vital contribution of practitioner nurses, for example, and of many other members of the primary care work force.

It has been useful to respond to the points that have been made. I reassure the psychologists and everyone else who has an interest in amendment 736 that we recognise the increasing importance of their work, not just for the people who are the main centre of attention in the bill, but far more broadly. Part of the new development in mental health policy is to ensure that appropriate services are provided to the thousands of people who suffer from what might be called milder and more moderate forms of mental distress, such as anxiety and depression, which are an enormous issue for the health service and the general population. Psychological interventions are crucial for that area, as well as for the severe and enduring mental illness that was the main focus of the original "Framework for Mental Health Services in Scotland" of six years ago.

In conclusion, I return to the wording of the bill. I ought to give my reasons for saying that amendment 736 is not strictly necessary. Although therapeutic interventions by a psychologist might not always be covered by the day-to-day use of the term "medical treatment", the term has a specialised meaning in the bill, because of section 228—it means "treatment for mental disorder". There is no reason to suppose that any psychological interventions that we would want to be included are not covered by the definition. However, we are aware that strong concerns have been expressed about the issue and it will not cause any problem to have "psychological intervention" stated explicitly in the bill.

In the interest of brevity, I will say only that I am pleased that the Executive will accept amendment 736, which I press.

Amendment 736 agreed to.

Amendments 103, 737 and 738 moved—[Malcolm Chisholm]—and agreed to.

Section 228A—Supplementary provisions etc

Amendment 739 moved—[Malcolm Chisholm]—and agreed to.

Section 230—Transitional provisions etc

Amendment 250 is grouped with amendment 272.

Amendments 250 and 272 seek to make transitional amendments to the 1984 act in the light of a recent ruling by the European Court of Human Rights. The court found that the 1984 act was incompatible with the European convention on human rights because, in cases in which sheriffs were to decide whether to discharge a patient, the act did not provide that the burden of proof must be on the state rather than on the patient. In practice, that makes no difference in the vast majority of cases. Furthermore, the court's decision relates to a period prior to the commencement of the Human Rights Act 1998, which requires courts to read statutes—so far as it is possible to do so—in a manner that is compatible with the convention.

We are of the view that the flaw in the 1984 act that the Strasbourg court identified has already been remedied by the 1998 act. Nevertheless, in the light of the court's decision, we have lodged amendments that will remove all possible doubt and which will correct the position until such time as the 1984 act is replaced by the bill.

I move amendment 250.

My intervention will take the form of a question; it will be briefer than my previous interventions.

My slight concern is about the timetable for the bill's implementation, which is not particularly clear. I am not sure whether details of the Executive's proposed timetable were given to the Health and Community Care Committee, but I certainly have not read anything that states clearly when it is intended that the various sections of the bill should be implemented. Section 230 allows ministers to make provisions for transitional arrangements. Can the minister give us an idea of how the bill is likely to be implemented? I realise that he may be able to speak only in broad terms at the moment, but can he at least give us a clue as to how long the transitional arrangements might need to apply?

As Richard Simpson indicated, the bill does not require to be implemented in one go. However, we intend to start implementing it next year, in 2004.

Amendment 250 agreed to.

Section 231—Short title and commencement

Amendment 740 moved—[Mary Scanlon]—and agreed to.

Amendments 11 and 12 moved—[Malcolm Chisholm]—and agreed to.

Amendment 741 moved—[Mary Scanlon]—and agreed to.

Schedule 2

The Mental Health Tribunal for Scotland

Amendment 104 is grouped with amendment 68.

Amendment 104 will amend the criteria for appointing the third member of the tribunal. We intend that the third member should have a background in mental health, but there could be several types of relevant background, including a background as a professional, a carer or a service user. The amendment will add "skills" to the matters that can be taken into account in deciding whether an existing tribunal member is entitled to remain in post on the expiry of his or her term of office. If he or she does not possess the skills that are prescribed for original appointment, any reappointment will be discretionary rather than mandatory.

Amendment 68 is a technical amendment to clarify the position on the make-up of the tribunal when it makes decisions. The basic rule is as set out in paragraphs 6(2A) and 6(2B), which require that the tribunal consist of three members and be chaired by a legal member or the president or, in respect of restricted patients, a sheriff. However, some preliminary or urgent matters might be best dealt with by, for example, a legal member acting alone. Examples might include a decision about appointing a curator ad litem or a decision to authorise an urgent patient transfer pending an appeal. Amendment 68 provides for rules that can make exceptions to the normal composition of the tribunal in such situations.

I move amendment 104.

Amendment 104 agreed to.

Amendment 68 moved—[Malcolm Chisholm]—and agreed to.

After schedule 2

Amendment 251 moved—[Malcolm Chisholm]—and agreed to.

Schedule 3

Minor and consequential amendments

Amendments 252 to 260 moved—[Malcolm Chisholm]—and agreed to.

Amendment 742 is grouped with amendments 743 to 748, 750, 105, 751, 13, 752 and 753.

As the title of the group makes clear, the amendments in this group concern minor and consequential amendments and repeals.

I move amendment 742.

Amendment 742 agreed to.

Amendments 261, 262, 743, 263, 744 to 748 and 264 moved—[Malcolm Chisholm]—and agreed to.

Amendment 749 stands in a group of its own.

Amendment 749 implements policy concerning the making of hospital directions.

A hospital direction is a mental health disposal that allows the sentencing court, in addition to imposing a prison sentence, to direct that a person be detained in hospital to receive treatment for a mental disorder. The patient can then be transferred to prison once their mental disorder no longer requires treatment in a hospital setting. Amendment 749 will bring the provisions on hospital directions in the Criminal Procedure (Scotland) Act 1995 into line with the rest of the bill.

I move amendment 749.

Amendment 749 agreed to.

Amendments 750, 105, 265, 751, 266, 267, 13 and 268 to 271 moved—[Malcolm Chisholm]—and agreed to.

Schedule 4

Repeals and revocations

Amendments 752 and 753 moved—[Malcolm Chisholm]—and agreed to.

After schedule 4

Amendment 272 moved—[Malcolm Chisholm]—and agreed to.

That ends consideration of amendments.