“Report on post-legislative scrutiny: the Mental Health (Care and Treatment) (Scotland) Act 2003”
The next item of business is a debate on motion S3M-7534, in the name of Margaret Mitchell, on the Equal Opportunities Committee’s “Report on post-legislative scrutiny: the Mental Health (Care and Treatment) (Scotland) Act 2003”.
14:34
I am pleased to open the debate on behalf of the Equal Opportunities Committee and to put on record at the outset my thanks to all those who provided written submissions and gave oral evidence to the committee at the round-table evidence sessions on post-legislative scrutiny of the equalities principles and duties in the Mental Health (Care and Treatment) (Scotland) Act 2003. I also record my thanks to my fellow committee members and to the committee clerks for compiling the report.
As we hurtle towards the end of the third session of the Scottish Parliament, this is an opportune time to remind ourselves that, as well as scrutinising current legislation, committees play a vital role in scrutinising legislation that has already been enacted by the Parliament, examining how effectively it has been implemented and assessing whether its aims have in fact been achieved. To date, however, examples of committees undertaking post-legislative scrutiny are fairly thin on the ground. Where committees have carried it out, it has consisted largely of one-off evidence sessions and correspondence with ministers; there are few instances of committees undertaking it in depth.
However, where problems are highlighted to committees and questions emerge over the effectiveness of legislation that is in force, it makes sense to investigate them through post-legislative scrutiny of the act in question. To put today’s debate in context, I point out that the decision to scrutinise the Mental Health (Care and Treatment) (Scotland) Act 2003 was taken after the Equal Opportunities Committee identified as a key issue in its inquiry into female offenders in the criminal justice system the prevalence of mental health disorders in offenders. That inquiry revealed some startling statistics, including the fact that at least 1 to 2 per cent of the 80 per cent of women in Cornton Vale who have mental health problems ought to have been hospitalised instead of being sent to prison, and that a further 8 to 10 per cent would, in recognition of the fact that their mental health problem was more prominent than their offending, be satisfactorily dealt with in the community, highly supported by the national health service and other agencies.
Although prison staff do their best to cope with prisoners with mental health problems, they are neither qualified nor sufficiently resourced to address the issues. To be blunt, I believe that if some women—and inevitably some male offenders—are being incarcerated when they should be hospitalised, we are witnessing in 21st century Scotland scenarios that are more in keeping with Dickensian Britain.
As a result, the committee decided that scrutiny of the 2003 act would help to establish how that appalling state of affairs—which itself raises legitimate equalities issues—had come to pass. For the avoidance of doubt, I make it clear that this post-legislative scrutiny was not a comprehensive review of the whole act but a focused study of the equalities principles and duties in the legislation.
The act’s provisions were intended to enshrine a set of 10 principles proposed by the Millan committee, including three equality-related provisions of non-discrimination, equality and respect for diversity. Significantly, a duty to encourage and observe equal opportunity requirements when discharging the act’s functions applies to public bodies, such as the Mental Welfare Commission for Scotland, local authorities and health boards, as well as to Scottish ministers and to individuals who deliver front-line services, including mental health officers, medical practitioners and nurses.
The committee heard that, despite the statement in section 259 of the 2003 act that
“Every person with a mental disorder shall have a right of access to independent advocacy”,
advocacy provision was poor for specific groups and was in effect non-existent for prisoners with mental health issues. It is worth pointing out, however, that members felt that bringing forward the transfer of responsibilities for prisoners’ health care to NHS health boards would help to address the lack of advocacy for those offenders. We would welcome further details from the minister about the timetable for that transfer and the steps that the Scottish Government is taking to ensure that it is achieved by its deadline of autumn 2011. The committee has stated that, overall, the Scottish Government must develop approaches to tackle the difficulties that groups are facing in accessing their entitlement to advocacy services. Quite simply, advocacy provision should be available to all groups, not just to those who present as crisis cases.
Sections 25 to 31 of the 2003 act cover a number of provisions related to the duty on Scotland’s local authorities to provide care and support for and to promote the wellbeing of people with mental health problems. Those sections are vital, but there was evidence from some witnesses, including the Scottish Association for Mental Health, that their implementation has been patchy across the country and that, worryingly, cuts are being made to lower-level and preventive services that promote wellbeing, social development and employability. That led to questions being raised in evidence about the monitoring of services that are provided under those sections. Consequently, the committee seeks clarification from the minister on how those sections are being monitored, especially as the committee understands that some changes are being made to the Mental Welfare Commission’s functions under the Public Services Reform (Scotland) Act 2010.
The committee considered other issues, including children and young people, and the need to ensure that they are placed in accommodation that is appropriate to their mental health needs as opposed to being admitted to adult wards.
In conclusion, the Mental Welfare Commission collects qualitative and quantitative monitoring data on people who are subject to the 2003 act. One of the main issues to emerge from our post-legislative scrutiny was the existence of gaps in those monitoring data, particularly in ethnicity statistics. It is disappointing that the on-going problem of baseline equalities data was perceived to be a problem in scrutinising the act.
I move,
That the Parliament notes the conclusions and recommendations contained in the Equal Opportunities Committee’s 4th Report 2010 (Session 3): Report on post-legislative scrutiny: the Mental Health (Care and Treatment) (Scotland) Act 2003 (SP Paper 468).
14:41
I welcome this opportunity to debate equalities issues in the context of the Mental Health (Care and Treatment) (Scotland) Act 2003, and recognise the Equal Opportunities Committee’s interest in the area, which accords with the Scottish Government’s commitment to a fundamental improvement in how mental health service users are treated in Scotland. This is, of course, a timely point to take stock, as the fifth anniversary of the act’s coming into force was just recently.
I thank the committee very much for its fourth report of 2010, on post-legislative scrutiny of the 2003 act. I am particularly pleased that the report highlights the ground-breaking nature of the act, particularly its being based on a set of founding principles, which include requiring all those who act under its powers to have respect for the principles of equality and diversity; non-discrimination; participation by the patient in decisions; the least restrictive option; informal care where possible; maximum benefit to the patient; reciprocity; welfare of the child; and, of course, respect for carers. Those principles are found in the very first section of the act, but they do not sit in isolation either within the act or within mental health care and treatment generally. Rather, those principles represent a fundamental attempt to improve how mental health service users are treated generally in Scotland. The very name of the act, with its deliberate reference to “Care and Treatment”, also emphasises the core approach to mental health services that Scotland has embraced, whether in relation to those who are in need of compulsory treatment measures or otherwise.
Although the act is still relatively young, ministers have been pleased that it has been generally well received by service users, their carers and mental health professionals since it came into force in October 2005, and that its approach and principles have been popular. Legislative change is, of course, only one cornerstone of a modern and fit-for-purpose mental health system in Scotland, and the Government recognises that new legislation in itself does not develop services nor create new treatments for mental disorder, although the act’s principles, such as reciprocity and maximum benefit, can be seen to influence them. Therefore, in addition to legislative change, other policy initiatives, such as on service development and delivery, mental health improvement and support for change, are equally important. One can see, for example, the principles of non-discrimination, participation and respect for carers reflected in the introduction of a statutory right for everybody with a mental disorder to access independent advocacy. The act places a duty on local authorities and the NHS to secure the provision of advocacy services at the local level for everybody who needs them.
The Government recognises the vital work that carers do. As members know, the new carers and young carers strategy for Scotland, which we produced jointly with the Convention of Scottish Local Authorities, was launched on 26 July. It emphasises the importance of advocacy support, especially to those who care for the most vulnerable, and identifies a suite of action points to provide information, advice and advocacy support to adult carers and to improve the quality, consistency and availability of advocacy support for children and young people.
Similarly, the principles of equality and welfare of the child—whereby the welfare of the child must be paramount—has led to the development of specialist child and adolescent mental health services in Scotland for children and young people, and for their families and carers, who are dealing with the most serious mental health problems.
That development also extends to forensic mental health services to meet the needs of children and young people in Scotland. There are currently three dedicated young people’s in-patient facilities in Scotland. The number of young persons who require secure care for mental health problems is currently too small to support a dedicated unit. However, the Government is working closely with NHS boards to ensure that, when a young person has to be admitted to an adult ward, their care is age appropriate and tailored to their specific needs.
A recurring theme of the committee’s work more generally has been the lack of available baseline equalities data on which comprehensive and meaningful scrutiny of equalities impacts can be undertaken. In September 2009, the Government wrote to all the chief executives of NHS boards, asking them to make improvements in equalities data capture and monitoring, and in March 2010, an NHS action group—improving equalities data monitoring—was established. Action plans were put in place and there have already been some signs of improvement in the level and quality of information that is being recorded. I would be happy to keep the committee updated on that.
The act also makes provision for the Mental Welfare Commission to monitor the key principles of equality and non-discrimination. The Government will be considering with the commission and other stakeholders how best to address any gaps in certain types of data and the scope for capturing more data in all the equality strands. Again, I will be happy to keep the committee informed of those discussions.
In 2008, the Government commissioned an independent review of certain aspects of the act. Following that report, which was published in 2009, we went out to consultation on the package of recommendations that were made by the review group. In October 2010, we published our response to the review group’s report and indicated how we intend to take forward issues in relation to advance statements, named persons and independent advocacy, among others, through changes to legislation and existing practice, where appropriate. The Government therefore remains committed to improving mental health legislation.
I look forward to hearing members’ comments during the debate.
14:48
I want to focus on the issue of children and young people, which was the focus of the Health and Sport Committee’s child and adolescent mental health services inquiry—many of the concerns of the Health and Sport Committee are mirrored in the Equal Opportunities Committee’s report.
We need to tackle with much more urgency the issue of improving the mental health and wellbeing of children and young people. In the late 1990s, concerns were expressed about the increasing prevalence of mental health problems in children and adolescents. Research shows that, over a period of time, there has been a significant rise in the number of 15 and 16-year-olds suffering from a variety of conditions, such as behavioural problems, attention deficit hyperactivity disorder and autism spectrum disorders. Last week, we saw that the number of Ritalin prescriptions had risen, which is another indicator of the increasing number of such problems. Another indicator was a United Nations review of children, which showed that children in the United Kingdom were doing badly in terms of health, wellbeing and happiness.
The degree to which teenagers in Scotland are stressed and unhappy has been shown by a paper on 15 and 16-year-olds in Stirling and Glasgow by Professor O’Connor of the University of Stirling, which I have quoted before and which reports that nearly 14 per cent of those children had self harmed and that a further 14 per cent had had serious and repeated thoughts of self harm. When one in three of our children is having those thoughts or undertaking those actions, we have a serious problem.
A factor that has contributed to that significant change has been the growth in drug use. Today, some 100,000 children are growing up in households where there are drug or alcohol problems. We have long recognised abuse, but neglect, particularly in the first three years, has now been identified as having a marked effect. The chief medical officer, Harry Burns, illustrated that graphically in his 2008 annual report.
The Scottish needs assessment programme review of 2003 had seven conclusions, two of which were that all four tiers of the services were “working beyond reasonable capacity”, and that there was a lack of training, especially in tier 1. The review resulted in the development of the 2005 framework, which the Health and Sport Committee reported was robust and should be implemented. However, CAMHS have never been a top priority.
The specific problems identified in the Equal Opportunities Committee report include the continued admission of children to adult wards; the fact that the 2003 act makes the parent or person with parental responsibilities the named person rather than giving the young person a choice—that will simply need to be addressed by changing the act or in regulations; the lack of tier 1 counselling services; and problems in transitioning from young persons’ services to adult services.
In its 2008 report, the Mental Welfare Commission said that although it was commendable that the number of admissions of children to adult wards had reduced to 140, the target of complete elimination by 2011 would require considerable effort. It is now clear from its latest report, which shows an increase in those numbers, that that target is unreachable. I ask the minister whether the interim target of 56 beds by 2010 was reached, and perhaps she will indicate what the target and the timetable are for achieving that now. Fifty-six beds is half the number recommended by the European Union. Learning disability services also remain rudimentary.
Stuart Lennox said in evidence to the committee:
“we ... need to invest at an earlier stage and get into prevention much sooner and more constructively.”—[Official Report, Equal Opportunities Committee, 16 March 2010; c 1488.]
This session, I have worked with an organisation called the Place2Be, which works across a number of local authorities in England and with City of Edinburgh Council, although it now has a pilot in Glasgow and a link in East Lothian. It is funded by health boards and local authorities, as well as by host schools, but most of the funding comes from the charity. The organisation provides counselling to children, who sometimes need significant and intensive work, and also provides the place2talk service, which I want to speak about before I finish.
The service, which is based in the school but is independent of it, is used by a staggering 60 per cent of pupils, who have the opportunity to discuss with a counsellor problems and problem solving. The results, which the organisation has audited, are a reduction in exclusions and an improvement in attainment. I find it impressive that not a single local authority has stopped using the service once it has been introduced. I commend to colleagues that service, which deals with the tier 1 problem identified by the committee.
14:53
First, I thank the Equal Opportunities Committee for the report that we are debating on post-legislative scrutiny of the Mental Health (Care and Treatment) (Scotland) Act 2003. I also thank the members of the McManus group, who carried out a limited review of the act.
I appreciate that not all aspects of the complex 2003 act were implemented in the year that it was passed. Nonetheless, it was right and proper for the Equal Opportunities Committee to undertake the inquiry almost eight years after the act was passed and around five years after its implementation.
My starting point for today is my speech at stage 3 of the Mental Health (Care and Treatment) (Scotland) Bill in March 2003, when we supported Shona Robison’s Scottish National Party amendment to monitor continually what the bill set out to achieve and to ensure that services were provided. It is worth stating that the bill extended to 242 pages at stage 2, with a total of more than 2,000 amendments at stages 2 and 3. I thank the two committee clerks—Irene Fleming and Jennifer Smart—who did an excellent job at that time. I see Jennifer Smart sitting next to the Presiding Officer today.
At that time, I pointed out the 29 psychiatrist vacancies in Scotland and the need for an additional 28 psychiatrists and many other health professionals to implement the act fully. I do not know whether any of those health professionals were recruited, but this debate points to the need for wider post-legislative scrutiny of that complex act.
It is right, as Margaret Mitchell said, that the Equal Opportunities Committee undertook the scrutiny, as three of the principles that the Millan committee set out to underpin the legislation were non-discrimination, equality and respect for diversity.
Like the minister, I appreciate that some progress has been made, but it is disappointing to read the committee’s conclusions. The report states at paragraph 26 that there is a
“lack of data monitoring ... so that the Mental Welfare Commission can make a comprehensive assessment of whether the Act delivers on its equalities duties.”
Paragraph 38 states:
“The difficulties some specific groups are currently facing in accessing advocacy services suggest equality is not being achieved”,
and paragraph 62 states:
“The Committee is concerned at the failure to”
reduce
“the number of admissions of children and adolescents to adult”
wards.
The committee asked why the
“use of compulsory powers in Tayside is 23% higher than the average, while their use in the Borders is 34% below it”,
and at paragraph 85 it requested
“further investigation ... so that ... inequalities ... may be identified”.
On advance statements, the committee concluded at paragraph 97 that they “are not widely used”.
In my view, mental health does not enjoy anything near to equality of status across the NHS. The Equal Opportunities Committee has highlighted the failure of the 2003 act to address those issues.
The committee’s report provides a limited insight into the implementation of the act, which has certainly not met the expectations that we had as Health and Community Care Committee members when the bill was passed. A wider review is undoubtedly needed.
The increase in the known number of people with dementia highlights the need for better communication with carers to ensure that they are aware of their own rights and responsibilities. The report highlights the need for better post-legislative scrutiny, given that the Parliament is almost 12 years old and given the absence of a second chamber to scrutinise, revise and review.
14:57
The Parliament has been effective, and over the years comparatively efficient, at passing legislation. However, it has not, as other members have said, been quite so good at reviewing and revisiting the laws that it has passed. A space must be created in the parliamentary framework for post-legislative scrutiny.
I was pleased to be part of the committee that examined the 2003 act. I will concentrate, using the committee’s report as a vehicle, specifically on the provision of appropriate advocacy services and the independent aspect of that support.
The report poses a challenge to the mistaken belief that any organisation in the statutory or voluntary sector can provide independent advocacy to anyone to whom they provide other services. What if the person has an issue with the other services that are provided by those who propose to offer advocacy? There is the clear possibility of a conflict of interest, particularly with regard to people with mental health issues, whether they are children or adults. The opportunity for undue influence to be brought to bear by those who provide the other services is particularly sensitive, especially if the services that are provided are the subject of the patient’s concern.
Best practice seems to indicate—and certainly my own previous professional experience shows—that truly independent advocacy can be provided only by a third-party organisation, or in some instances by individuals. Services should have that sole purpose. I am concerned that the process of involving associated organisations in service provision may detract, in the case of children, from the getting it right for every child principles, which place the child at the centre of service provision.
The Scottish Independent Advocacy Alliance is the Government-funded body for independent advocacy. It has published principles and standards, codes of practice and guidance for the commissioning and evaluation of all advocacy services. It is a widely recognised, coherent set of documents, some of which have been endorsed by the minister. The SIAA titles, which independent advocates work to, are substantial documents based on experience, best practice and wide consultation.
It is a little concerning, therefore, given the Government’s response to McManus, that it appears that another set of draft documents is being prepared that is supposed to sit side by side with the current framework. That will only lead to confusion about which guidelines are being followed. It also runs contrary to the principle of the independent advocacy perspective. My understanding is that a number of third sector organisations are claiming that they can provide independent advocacy within the framework of other services that they provide. In my view, that is not acceptable. There are serious concerns in the wider advocacy community about any suggestion of that.
As other members have said, we need to consider the provision of appropriate equal access services. It is clear from the report and from soundings that I have taken throughout the community that there are some threats to that. I ask the minister to address that issue when she winds up.
We come to the open debate. As members will have realised, speeches must be no longer than four minutes.
15:01
I congratulate the Equal Opportunities Committee on its report. I regret that four minutes is not long enough to cover all of the important points that it raises.
The first issue that I want to consider relates to the complex interaction between those who receive mental health services and those who provide them. The report rightly comments on the lack of hard data concerning the ethnicity of patients at the point at which they enter mental health services. Those who come from a different cultural background may have very different needs and expectations, and it is important that those are recognised and treated sensitively. If we do not know the size of that challenge, that task will be even more difficult to accomplish.
There is a further aspect to that dichotomy, which is hardly touched on when the topic is discussed, namely the causes of a mismatch of needs and expectations due to the different cultural background of those who provide services. In many health service fields, that is relatively unimportant. If someone needs a hip joint replacement or antibiotic treatment for an infection, the background of the people providing the service scarcely matters. However, mental health is inextricably bound up with culture. If there is a marked cultural or language gap between those who provide a service in that area and those who receive it, the quality of care provided will likely suffer.
The reality is that such cultural gaps can often be found in mental health services today. It is not uncommon to find a doctor or other health care worker whose standard of English is high enough to cope with everyday life in this country but is not of a standard to appreciate all the subtleties that define a mental health presentation.
In case anyone thinks that what I am saying is nothing more than a covert attack on black and ethnic minority health workers, let me say that such a cultural gap often exists between people who have spent all their lives in our country, perhaps with a different geographical, religious or—dare I say it—class background.
I am reminded of a neighbour of mine who, some years ago, was moved from the north of England to manage the branch of an Irish bank in Scotland. Hoping to please the Scots, he mounted a huge green display in his window, with a big sign trumpeting “We support the Celtic Connection”. He was genuinely bewildered that not everyone who passed by was pleased with his initiative; indeed, I believe that a brick was thrown a few days later. Similarly, care givers who, for any reason, do not share the cultural background of those in their care can often make false assumptions that inevitably impair outcome. While I do not know how to tackle that problem, I believe that it first needs to be acknowledged.
As Richard Simpson touched on earlier, there is the thorny issue of age-appropriate services for children and young people, with particular regard to in-patient facilities. That is a particular problem in the Highlands, where communities are spread far apart and there are many inhabited islands. In November 2008, Helen Eadie and I had the privilege of meeting specialist child and adolescent mental health team workers in Lochgilphead in an evidence-taking session as part of the Health and Sport Committee’s inquiry into child and adolescent mental health services. What impressed us was not only the huge task that faced this cheerful team but the innovative ways that were needed to address mental health problems that are less of a challenge in urban communities.
I cannot speak for Helen Eadie, but I came to the conclusion following the visit that, if a short period of in-patient care is urgently required for a young person, it is not inevitably desirable for them to be admitted to a faraway specialist unit in Glasgow. Local facilities that are nearer to family and friends can provide a more appropriate service. Indeed, that often has to be the route, given that specialist units are often fully occupied.
There is more to say, but no time, Presiding Officer. I commend this excellent report to members.
15:06
Given that the Scottish Parliament has no second chamber, it is dependent on its committee structure to scrutinise legislation before and after it passes it. As the convener said in her opening speech, there has been little by way of post-legislative scrutiny of acts of the Scottish Parliament. The need for such scrutiny is fairly self evident: legislation may not always do what it was intended to do, there may be unintended consequences or we may simply want to see the impact of the legislation.
With that in mind, the Equal Opportunities Committee undertook post-legislative scrutiny of the equalities principles of the Mental Health (Care and Treatment) (Scotland) Act 2003. The act introduced the statutory right for every person with a mental disorder to independent advocacy services, and placed duties on health boards and local authorities to ensure that such services are made available. Unfortunately, our report identifies gaps in provision alongside a need for improvement in the principles of equality and non-discrimination that underpin the act.
As other members have noted, one main issue that we identified is entitlement to advocacy services. According to witnesses, priority is given to crisis cases, which has led to gaps in advocacy provision for other entitled groups. The committee felt strongly that, as part of its reflection on the McManus review, the Scottish Government should look closely at prioritisation in order to ensure that advocacy provision is available to all groups—not only to those who present as crisis cases.
FBS Advocacy in my constituency aims to do exactly that. At the moment, it is funded by North Lanarkshire Council, but operates independently. It provides group and individual advocacy services to children and young people with disabilities and mental ill health, with the ultimate aim of enabling the children to become respected and responsible advocates for themselves. FBS Advocacy does that by working with the young people and ensuring that its advisers take fully into account their views and needs. That example could be followed throughout Scotland.
As other members have said, the McManus review raised the issue of the age appropriateness of facilities around Scotland. The 2003 act brought change in the provision of age-appropriate services for children and young people, some of which is positive. However, concern remains, particularly about the recent increase in the number of admissions of young people to adult psychiatric facilities. The increase seems predominantly to be in the category of young men aged 16 and 17.
As Dr McKee pointed out, in certain circumstances, it is better for a young person to be in an adult ward—for example, to avoid the young person’s having to travel miles away from family. However, SAMH raised the concern that, when a young person is admitted to such a ward, they do not always receive age-appropriate care. The Mental Welfare Commission for Scotland estimated that around 20 per cent of young people do not get access to expert medical and nursing care in adult wards, which is concerning. Donald Lyons of the commission suggested that, if a young person is admitted to such a ward, the ward should be designated for that purpose and that there should be input from professionals who work with younger people. In its response to our report, the Government indicated that it is working closely with NHS boards on the issue. The minister also said that in her speech. She has said that she recognises the need to reduce the number of children in adult wards. I would be pleased if she would say in summing up how that work is progressing.
There is currently no secure care facility in Scotland for young people, so the Mental Welfare Commission has called for one to be established, but the minister has said that the numbers are at present too small to justify that. I am interested to know the numbers and what they might need to be before a Scottish unit was established so that young people in Scotland do not have to go down to England.
Stuart Lennox of the Association of Directors of Social Work made the point that, as with advocacy services, resources are often directed away from preventive work and towards crisis care. I would be grateful if the minister would comment on that in summing up. Counselling for young people in schools is particularly important.
The final issue that I want to mention is services for prisoners. The committee’s report on female offenders highlighted that it appears that they are not receiving the advocacy to which they are entitled. The convener raised that issue in her opening speech, and the situation may improve when their care is transferred to the NHS. Can the minister tell us when that will happen?
The report is an interesting and worthwhile piece of work that shows that more post-legislative scrutiny is required.
15:10
I open by supporting the comments that Elaine Smith has just made and those which Margaret Mitchell made. Post-legislative scrutiny is not only advisable to monitor legislation, but is necessary to ensure that the intention behind the legislation makes a difference to people’s lives.
I, too, thank the clerks and all the others who contributed to the inquiry, especially some of the children’s organisations that support young people with mental health issues, and which gave such passionate evidence.
The Mental Health (Care and Treatment) (Scotland) Bill was passed four years before I became an MSP. I must admit to arriving on the committee a bit late for the work that we are debating; my colleagues had already carefully gathered and assessed some of the evidence before I was appointed to the committee. I pay tribute to the committee members who went before me and kicked off work on the report.
However, I have some professional experience from my days with Glasgow City Council social work services, which had to implement some of the Mental Health (Care and Treatment) (Scotland) Act 2003, in particular by ensuring that staff were trained to understand what it meant. The committee’s thorough examination of the equalities implications of the 2003 act was a sufficient grounding to enable me to grab hold of the issue and to begin to understand it.
The report identified some areas of concern, which should be addressed by the Scottish Government, and it identifies both weaknesses and strengths in the operation of the legislation. I hope to hear from the minister a commitment to address those issues and, perhaps, some indication of what she thinks the first steps should be.
As Margaret Mitchell does, I have concerns about the welfare of female prisoners in Cornton Vale. On many occasions, I have heard the Cabinet Secretary for Justice talk about the need to take people who have mental health disorders out of the criminal justice system and to get them into treatment, where they can be helped. I understand that those prisoners represent a substantial chunk of the prison population.
One of the committee’s previous reports on female prisoners, which was a fantastic piece of work, helped to lay out some of the landscape for us. However, as Elaine Smith said, the report that we are debating today makes clear the problems that female prisoners have in getting access to services that they need, including independent advocacy services. I know that the Scottish Government has already made moves to address the issue—as the report notes—but I hope that the minister will be able to expand a little on what is planned. I am happy to wait for her to write to me, if that would be easier than responding during today’s debate, as I know that the issue has come out of left field.
If I understand correctly what the Cabinet Secretary for Justice has said in the past, many of Scotland’s prisoners—male and female—have mental health problems and should be in treatment, not in prison. That is my opinion and, I think, his opinion: he has said it on the record. If we can find ways of treating people more humanely, of acting to help them instead of incarcerating them, and of looking for solutions to their problems instead of shoving them aside to cure one of our problems, perhaps we will build a better society with fewer damaged people and more people who can find a way of making a positive contribution to society.
I welcome the evidence that we received from organisations, especially on issues related to children and young people, and the report’s recommendations. I welcome in particular paragraphs 62 to 66, on age-appropriate services for young people. There is a clear understanding that early intervention is the key to effective support and recovery for such young people. I seek specific support for under-16s, which is especially pertinent in ensuring that recovery can take place. Of course, it will not be easy to provide that. It is not easy to choose between doing what is right and doing what is easy, but we should always do what is right, in this respect.
I look forward to working with SNP ministers—I am always an optimist—on addressing the issues over the next four and half years. Scotland has started moving in the right direction. The committee did a great job of scrutinising the legislation, but we still have some distance to travel and should get on with doing that.
15:14
This has been a short and sharp debate. There are some important principles that Liberal Democrats wish to emphasise as we draw the debate to a conclusion. First, I share with all members who have spoken an appreciation of the importance of a Parliament such as ours engaging in post-legislative scrutiny. I do not apologise at all for our not having a second chamber, which I do not think is always justified. The principles on which we were founded are solid. However, that does not relieve us of the obligation both to take care in the passage of our legislation and to engage actively in scrutinising that legislation once it has been passed.
There is no doubt that the Equal Opportunities Committee’s report has provided a very useful pointer. No member of the Parliament can be other than impressed by the work that the committee carried out. The Parliament is concerned—but without being critical of anyone other than the Parliament itself—that legislation that it passed only five or so years ago can cause a committee, in considering the narrow and crucial issue of equalities, to use language such as:
“The Committee is extremely concerned ... about the gaps in advocacy provision.”
The report goes on:
“The Committee is concerned at the failure to reach the target for reducing the number of admissions of children and adolescents to adult hospital beds.”
It also notes that
“The Committee is deeply concerned about the lack of advocacy provision for prisoners”,
which was mentioned in the previous speech.
Those are genuine major concerns that have been unearthed by the committee, and they point to difficulties in the operation of an act that is only about five years old. Parliament should use the committee’s report as a wake-up call. We continue to be concerned—it must be of concern to parliamentarians in general—about the way in which mental health provision does not seem to be becoming embedded in our system, as other services have, which Mary Scanlon consistently and properly refers to.
It should also be of concern that there are aspects of our legislation that are not up to standard, particularly in relation to equalities. That begs the question whether the 2003 act as a whole is not worthy of broader consideration and review, taking into account the wider aspects of its provisions.
There has been remarkable uniformity during the debate in the approach that has been taken to the issues. There has been broad—if not unanimous—agreement about the points that the committee has highlighted and about the need to take action. In her opening speech, the Minister for Public Health and Sport made it clear that the Government is responding positively to the findings of the report.
There remain serious questions in all our minds. We passed the 2003 act specifically to highlight issues relating to the provision of services for mental health, and we did so because we recognised that mental health services were not receiving adequate provision. How, in that case, can it be that five years later every single speech this afternoon has indicated that there are aspects of delivery of services for people with mental health problems that are not of the standard that we would expect to be provided in other spheres of activity? It will not be possible to answer that question in this debate, but we would support the minister in any measures that she takes to improve the way in which those services are provided and to ensure that, across society as a whole, people with mental health problems do not continue to be treated as second-class citizens.
15:19
I point out to Ross Finnie that I was not advocating a second chamber, but noting that post-legislative scrutiny is even more critical in the absence of such a chamber—as, I am sure, he understands.
The debate could have been much longer than an hour and 15 minutes, given the Equal Opportunities Committee’s excellent work. Issues that have been raised in the debate have not been given the time that they require.
I record my appreciation of the excellent work of Advocacy Highland under the stewardship of Sheilis Mackay. I remind members that advocacy does not involve just one visit or meeting. As Hugh O’Donnell said, many people need regular advocacy support if they are to be able to live independently in the community and to cope with the pressures of daily life. I read about the millions of pounds that have been given to local government for advocacy. How can we be sure that the resources that are allocated are used for the intended purpose? The single outcome agreements and the historic concordat, which promised much, are not clear on specific aspects of spending.
On children’s services, I take the point that Donny Lyons, from the Mental Welfare Commission, made when he said that it can be better for a young person in, for example, Inverness to be briefly admitted to an adult ward to be stabilised. Ian McKee also made that point. However, there is a need for community-based children’s services and for on-going support that is tailored to the needs of the child. That is essential in every health board. The patchiness of provision for children and young people highlights inequalities, as the Health and Sport Committee noted in its report last year on child and adolescent mental health and wellbeing, which Richard Simpson mentioned. The Government’s target to halve the number of child and adolescent admissions to adult wards meant that the number of such admissions should have been reduced to 93 in 2009 but, as the Equal Opportunities Committee’s report says, the figure for 2009 was 149.
The 2003 act is highly regarded internationally, but what matters is not the words of the act, or even the intentions that are set out in the policy memorandum, explanatory notes and statutory instruments, but service users’ experiences and the outcomes and benefits that the legislation brings, as Christina McKelvie said. Mental health tribunals were introduced so that decisions could be made in settings that are more informal than sheriff courts, in cases in which compulsory mental health care might be needed. It is most concerning that the Equal Opportunities Committee noted that more than 50 per cent of tribunals result in adjournments and multiple hearings. The system appears to be highly bureaucratic and labour intensive. Under the 2003 act, tribunals have the power to restrict an individual’s personal freedom, so administrative inefficiencies in the system should be urgently addressed, particularly given that the annual cost is estimated to be £12 million.
Margaret Mitchell and other members talked about the needs of female prisoners. It is not just about the needs of females when they are in prison: if their mental health care needs were addressed in the community, they might not end up in prison. That also applies to males.
Richard Simpson talked about children’s services. There is no doubt that the reduction in health visitors who support children in their families is not helpful.
15:23
Ross Finnie’s summary was excellent and covered most of the points. I could almost sit down.
The Scottish Parliament can be proud that the Millan committee and the principles that it established led to the 2003 act. I have been a psychiatrist—I am sorry; I should have declared an interest as a fellow of the Royal College of Psychiatrists. We set up a framework, around 1997, and we passed in Scotland the first act on mental health that was our act rather than a tartanised version of an English act. It took the English some five years to wrestle with producing legislation that is largely regarded by psychiatrists and users as being substantially inferior to the Scottish legislation. Therefore, when we beat ourselves up about the 2003 act—which we are right to do—we should also recognise that it is extremely good. It is the mental health framework that has not made the progress that we want. The Equal Opportunities Committee has served us well in considering whether the 2003 act is working.
In 1987, half a dozen women offenders had drug problems but, since then, the proportion has increased to 100 per cent of women offenders testing positive for drugs. That point was reached in July 2004, so there is a massive drugs problem. As the then Deputy Minister for Justice, I introduced the time out centre, which took 500 women out of short-term sentences to treat drug problems, which is exactly what Mary Scanlon advocated. We need to consider that carefully. According to Dobash and Dobash, 70 per cent of the women on short-term sentences who were admitted to that programme had been abused—they had suffered either domestic violence, neglect or sexual abuse. There is a major problem to overcome if we are to address the growing number of offenders who are inappropriately admitted and not treated.
Christina McKelvie referred to the independent advocacy service. That is important for prisoners and it needs to be addressed fairly quickly. In talking about advocacy, Elaine Smith mentioned the priority of ensuring that all groups are covered, which is correct. Hugh O’Donnell rightly stressed the need for independence in the advocacy service: if it is too closely connected to the other services, it does not work.
The duplication of the documents that we are going to get is an important issue with which, I hope, the minister will deal.
The minister dealt with advance statements. They have not been used as widely as one would have liked and I hope that their use will increase.
There has been some discussion about local authorities’ preventive services. I talked about Place2Be and other services. They must not be cut because cutting them would simply put more pressure on the tier 3 and tier 4 CAMHS, which cannot cope.
Learning disability was not widely covered in the debate, but there is a major problem in that area. A substantial number of people with a learning disability also suffer from epilepsy and significant mental health problems, but the mental health and forensic services for them are sometimes rudimentary.
Many speakers covered children and young people extensively. Elaine Smith, Ian McKee and Mary Scanlon referred to the continued problem of admissions to adult units, which is now growing again. We got a balanced debate on that. Localism is important, but so is whether, even if a child or young person is admitted to an adult unit, they are treated by the appropriate service. That—not the adult ward, but the treatment—is the fundamental point and the committee rightly emphasised that.
The monitoring of ethnicity is important because there are different patterns of psychiatric illness, which needs to be addressed. As Ian McKee said, it is important for the provider, as well as others.
We probably need a further, wider review of the act. Ross Finnie got it right.
15:27
I welcome the speeches that were made during the debate, which was important and interesting. Members across the parties showed their knowledge of, and commitment to, equality in mental health. Many mentioned the need to capture more detailed information to monitor how effectively the Mental Health (Care and Treatment) (Scotland) Act 2003 lives up to its principles of equality and non-discrimination.
The reduction of health inequalities is a key priority for the Government. Inequalities that relate to deprivation are well known, but there are also important health inequalities that relate to ethnicity and other aspects of diversity within the Scottish population.
The Government’s view is that we need to identify ways to collect, store, share and report on equalities data in order that we can do two things: first, we need to monitor and better understand the differences between equality groups’ access to, and use of, services; secondly, we need to profile and capture more detailed information on the individual patient, with the aim of understanding and being able to respond to their specific needs. As I mentioned in my opening speech, work has already begun on improving data capture across health services. We have also included an objective in the health care quality strategy that commits us to developing a programme of action to ensure that, by the summer of next year, people’s equality needs are gathered, shared and responded to across health services.
In the time that I have left, I will respond to some of the points that were made in the debate. I start with bed numbers. A number of members mentioned the number of under-18s who have been admitted to adult wards. Members quite rightly referred to the figure of 149 such admissions, which was an increase from the previous figure of 142. However, we need to put that in context, because it is likely to have resulted in part from the transitional arrangements that accompanied the closure of the in-patient facility for young people at Gartnavel royal hospital and the opening of the new in-patient facility at Skye house.
A number of members—in particular, Richard Simpson—raised the issue of children’s beds. Skye house in Glasgow has 24 beds, which represents an increase from 16. There are currently 12 beds in Edinburgh and six in Dundee. The total so far is, therefore, 42 beds. We are also working closely with boards in the north and the south-east of Scotland in relation to their needs for children’s beds. I am happy to keep the Parliament informed on progress on that.
One issue in getting the right number of beds is the need to strike the right balance between in-patient beds and investment in community services. I point out that we have made an additional £5.5 million available next year for investment in community services. We acknowledge that some people will require in-patient beds, but prevention and early intervention was a theme in the speeches by members throughout the chamber this afternoon, and we hope that investment in community services will, in some cases, prevent the need for admission to in-patient beds.
Members will also be aware of the important additional funding to support CAMHS, with £2 million of new money each year to accelerate the development of specialist services. Importantly, there is also funding for training the workforce, with £6.5 million of new money over three years to ensure that we have enough specialist psychology staff, including support for additional training places and posts. That is an important investment.
The issue of independent advocacy came to the fore in a number of members’ speeches. The 2003 act is clear in its definition of independent advocacy and the legislation is, of course, always paramount. I return to Hugh O’Donnell’s point: local authorities and health boards have a statutory duty to secure the availability of independent advocacy services. I understand the point that he made, but the legislation is clear about the expectations around that. Nevertheless, we need to ensure that we keep a watching brief on the matter, as we do not want any confusion to arise. I will certainly have a look at that.
Elaine Smith asked a number of detailed questions. I do not have all the information in front of me that would enable me to respond to her questions in detail, and I am also over my time, so I will write to her. Similarly, Christina McKelvie raised a number of important issues about prisoners, so I will also write to her.
I end with a point about the timescale. I confirm that we are still on schedule for the transfer of the service from prisons to the health service to take place in autumn 2011.
I call Malcolm Chisholm to wind up on behalf of the Equal Opportunities Committee.
15:33
This has been an important debate because post-legislative scrutiny is all too rare in the Scottish Parliament and the equalities dimension of legislation is always worthy of our attention. I am particularly pleased that the Equal Opportunities Committee decided to examine the Mental Health (Care and Treatment) (Scotland) Act 2003. As the minister said, the act was a groundbreaking piece of legislation, but we must ensure that we are living up to the principles that were its foundation. As the convener of the Equal Opportunities Committee said at the beginning of the debate, post-legislative scrutiny is important because it lets us know whether an act has done what it set out to do.
We heard in the debate that the committee’s inquiry highlighted several of the same issues as the independent McManus review of the 2003 act. Since the conclusion of the committee’s inquiry in June, the Scottish Government has published its response to the McManus review and has indicated how it will take forward changes to the act. In response to our report, the Scottish Government for the most part simply noted our findings. I hope that as its work in the area progresses, further detail will be provided to the committee.
The debate has covered in some detail the committee’s concern about the gaps in baseline data, the availability of which is essential for comprehensive and meaningful scrutiny of whether the 2003 act is adhering to its equalities principle. The absence of ethnic monitoring in particular was highlighted in evidence to the committee. We welcome the Scottish Government’s statement that, with the Mental Welfare Commission, it will consider how best to address those issues.
The committee’s inquiry highlighted the importance of early intervention services, and other inquiries by the Health and Sport Committee and the Public Audit Committee sent out the same message. It may well be that the Finance Committee will say something similar in its report on its inquiry into preventive spending.
The Equal Opportunities Committee received evidence from several witnesses, including from the Association of Directors of Social Work, about the importance of investing in preventive work, funding for which could sometimes suffer because of the focus on crisis care. I agree with and welcome what Richard Simpson said about Place2Be, which I know has benefited Forthview primary school in my constituency. I spoke to the people involved in the work there a few months ago.
Investment in early intervention services is vital, as it has the potential to prevent admissions to hospital further down the line, thereby saving money in the long term. Consideration should be given to finding more ways of strengthening such provision and ensuring that appropriate resources are directed towards preventive work as well as crisis care. The committee highlighted sections 25 to 31 of the act, which elaborate on the contribution that local government is expected to make in that regard. I re-emphasise our convener’s point about the need for clarification of which body will monitor the implementation of those sections.
One aspect that the committee is particularly keen to see progress on is the provision of access to advocacy. We are keen to ensure that advocacy provision is available to all groups, and not just to people who present as crisis cases. The committee received a lot of evidence that there is a concentration on crisis cases. As the minister highlighted, the wording of the act is paramount. As I well remember, one of the major debates that took place when the matter was being considered seven years ago was about the right to independent advocacy, not just for those in crisis, but for everyone who had mental health problems.
We are pleased that the Scottish Government has looked at issues of advocacy as part of the McManus review, and we welcome its commitment to developing a national plan of action to improve advocacy support for children and young people. However, as the committee emphasised, there is also a need to address the difficulties that other groups face. One group that was highlighted is offenders with mental disorders, whose legal entitlement to advocacy services is not being met. That needs to be addressed.
In the deputy convener’s absence, I stepped in at the last moment to wind up for the committee. I had intended to speak in the general debate and to highlight a particular local issue—the commissioning of advocacy services in Edinburgh. I realise that, as I am speaking on behalf of the committee, it is not appropriate that I go into that in any great detail, but I think that members will forgive me if I mention briefly that there is a live controversy in Edinburgh about whether there is a requirement to put advocacy services out to competitive tender. I refer the minister, in particular, but other members as well, to “Independent Advocacy: A Guide for Commissioners”, which has a foreword by the minister. On page 36, it expresses the clear view that European rules do not require tendering for advocacy services. It goes on to point out several negative consequences of tendering for people who use advocacy services. I simply ask the minister whether she supports what is stated on page 36 of that document and, if she does, I ask her to draw it to the attention of the City of Edinburgh Council.
Finally, it is vital that we get right the provision of mental health services for children and young people. Although the committee received evidence that changes to provision of age-appropriate services for children and young people had been positive, the alarming figures that show an increase in admissions of children to adult wards highlight the fact that further steps still need to be taken.
Moreover, the committee believes that there is an inequality in that children who are under the age of 16 cannot appoint a named person even if they are competent to do so. The committee welcomes the Scottish Government’s commitment, which was reiterated in its response to the independent McManus review, to considering how a young person might have more of a say as to their named person, while still protecting those who are most vulnerable.
In conclusion, I welcome the opportunity to debate this important issue, following on from the committee’s report. We look forward to seeing how the Scottish Government will take forward our recommendations and those of the McManus review.