Chamber and committees

The Scottish Government is committed to all individuals with an assessed social care need accessing a direct payment, if the individual chooses. The eligibility criteria does not impact on this.

Direct payments will continue to be a choice for individuals eligible for social support and the Scottish Government is working to increase the uptake nationally.

Direct payments from local authority budgets usually form the main component of an individual''s complete self-directed support package. Self-directed support encompasses direct payments as well as the other funding streams that an individual may be eligible for, such as disability living allowance or the independent living fund.

The Scottish Government is funding a project hosted by NHS Lothian that is investigating the use of health monies in self-directed support (SDS) packages, the learning from this will be shared across all health boards.

CoSLA is represented on the SDS reference group that I have established. Officials have contacted all local authorities and a number of organisations, including service providers, requesting to meet to discuss local obstacles to uptake, the national strategy and possible legislation.

The draft guidance has been jointly agreed by the Scottish Government and the Convention of Scottish Local Authorities (CoSLA). Local authorities will be asked to confirm by 1 December 2009 that their local arrangements for access to social care services and timescales for access to personal and nursing care services are compatible with the national definitions and standards set out in the finalised guidance. Joint arrangements will be established for the ongoing monitoring of the operation of the eligibility criteria, and waiting times, as monitoring information becomes available.

The Scottish Government will continue to work in partnership with CoSLA to ensure a transparent and consistent approach across Scotland for older people to access appropriate services.

The evaluation of the Scottish Government self-directed support test sites will investigate the impact of direct payments on the lives of all client groups. Some of the test sites have a particular focus of people with learning disabilities.

The draft guidance states that councils and their partners should consider whether the provision of services or equipment or other interventions might help prevent or reduce the risk of an individual''s needs becoming more intensive. It also asks councils to ensure that they have in place clear arrangements for meeting, managing or reviewing the need of individuals who are not assessed as being at critical or substantial risk, including provision of preventative or other support services appropriate to the clients'' needs.

The draft guidance proposes that there should be a national standard maximum waiting time for people assessed as being at critical or substantial risk of six weeks from confirmation of need to delivery of assessed personal and/or nursing care services. Where there are major risks to an individual''s independent living or health and well-being, services will be provided immediately or within approximately one to two weeks of their care needs assessment. Applying the six week target to personal and nursing care services only is intended to allow flexibility for other community care services. For example, major adaptations or specialist equipment may take longer than the six week timescale to deliver.

NHS Health Scotland is continuing to monitor demand and ensure further distribution of this publication through NHS board Health Promotion Departments, Dementia Integrated Care Pathway Coordinators, the Alzheimer Scotland Helpline, the Dementia Services Development Centre and the Scottish Dementia Working Group. A report on the dissemination during 2008-09 is to be made to the Dementia Forum in spring 2010 and whilst there are no plans to publish formally it will be available on request.

There are three ways in which a person may be deprived of their liberty or subjected to compulsory measures of treatment under the civil regime in the Mental Health (Care and Treatment) (Scotland) Act 2003 (the 2003 Act), namely (a) emergency detention, (b) short-term detention and (c) long-term detention or compulsory measures under the authority of a compulsory treatment order. In addition, mentally disordered offenders may be made subject to compulsory measures of treatment by the courts under the Criminal Procedure (Scotland) Act 1995 (the 1995 Act).

The majority of compulsory measures of treatment for mental disorder are first approved by an independent and impartial tribunal, either by the Mental Health Tribunal for Scotland under Part 7 of the 2003 Act (compulsory treatment orders) or by a court under the 1995 Act in relation to mentally disordered offenders. The two exceptions to this prior authority for treatment for mental disorder by a court or tribunal are: civil emergency detention under Part 5 of the 2003 Act and short-term detention under Part 6 of the 2003 Act.

In relation to emergency detention, the authorised period of detention is just 72 hours and the purpose of the detention is to determine what medical treatment requires to be provided to the patient. There is no general authority to give treatment for mental disorder under an emergency detention certificate, and this certificate therefore differs from other measures under the 2003 Act; urgent medical treatment only may be given under section 243 of the Act. Given the very short duration of the certificate and the emergency situation with which it is dealing, and by reference to the leading Strasburg case on lawfulness of detention (Winterwerp), the Scottish Government is satisfied that this measure is European Convention of Human Rights (ECHR) compliant.

Short-term detention is governed by Part 6 of 2003 Act. The authorised period for detention is 28 days and the purpose of the detention is to determine what medical treatment should be given to the patient and/or to give that treatment to the patient. The detention certificate is granted by an approved medical practitioner provided that certain statutory conditions are satisfied, and treatment can be given for mental disorder in accordance with the rules set out in Part 16 of the Act. Protections are built in for the patient within the Act: the patient''s views should be taken into account, including where these are expressed in an advance statement; the patient''s responsible medical officer is under a duty to consider from time-to-time whether it continues to be necessary for the patient to be detained in hospital and to revoke the certificate where he or she is no longer satisfied that this is the case; and the patient and their named person has the right to apply to the Mental Health Tribunal for release. The provision within Part 6 for an appeal by a patient to the tribunal for revocation of a short-term detention certificate ensures access to an independent and impartial tribunal established by law for the purposes of article 6 ECHR.

Any act of the Scottish Parliament requires to be within legislative competence, which includes its provisions being compatible with rights under the European Convention on Human Rights. Both the Scottish ministers and the Scottish Parliament were satisfied during its passage through the Parliament that the 2003 Act, which authorises compulsory measures of treatment for mental disorder, was ECHR compatible.