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Justice Committee 03 November 2015

03 Nov 2015 · S4 · Justice Committee

Item of business

Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Bill: Stage 2

Mitchell, Margaret Con Central Scotland Watch on SPTV

During stage 1 consideration, the committee came to the conclusion that there was no need for mandatory fatal accident inquiries into the deaths of those who are detained under mental health legislation, because some deaths of such people are straightforward. The decision was influenced by the Mental Welfare Commission for Scotland’s comments about the number of deaths of detained patients that are a result of natural causes. However, in preparation for the stage 1 debate, I revisited Lord Cullen’s review and note that he stated: “even investigations into deaths by natural causes may reveal unsafe conditions.” He continued: “it is in the public interest that an FAI should be held into the deaths of those detained by the state, especially those who are most vulnerable.” I am therefore not convinced that the monitoring and investigation of cases by the Mental Welfare Commission are adequate safeguards for protecting some of the most vulnerable people in society, particularly when such individuals have no family members to advocate for them. It is that scenario that prompted amendment 2, which would provide for mandatory FAIs into deaths of those who are in mental health detention or those who are receiving treatment voluntarily, although there would be an opt-out provision. The Mental Welfare Commission and the Royal College of Psychiatrists expressed concern that having mandatory FAIs for the approximately 73 deaths a year of patients who are detained under mental health legislation would vastly increase the number of FAIs. However, that fails to take account of the effect of my amendment 5, which would put in place an opt-out provision for the Lord Advocate, provided that he gave the reasons why he considered that no FAI was necessary. As the authorities are confident that the vast majority of such deaths are easily explained, the provisions should not be onerous. Crucially, the opt-out and the compulsory explanation that would be required would ensure that, where patients who were detained by the state had no family members to advocate on their behalf, the conditions and circumstances of their death were properly scrutinised. That would ensure complete accountability and transparency regarding such deaths. Furthermore, in England and Wales, all deaths of patients in compulsory mental health detention are subject to an inquest by the coroner, unless it has been ascertained that the death was from natural causes. To put the necessity for my amendments in perspective, in 2013-14, there were 60 deaths of patients in formal detention under mental health legislation in Scotland, but there were six times as many deaths—364—of informal or voluntary patients. Given that, my amendments not only provide important safeguards but ensure compliance with article 2 of the European convention on human rights, on the right to life. The state has a general duty to protect life, and it is therefore only right that deaths of those detained by the state are thoroughly scrutinised. However, I have taken on board the comments about the number of cases that that approach may involve, and although that is not a reason in itself to exclude the deaths of individuals who have voluntarily received treatment for a mental disorder, I consider that the amendments in the name of Alison McInnes, which complement the amendments in my name, strike the right balance at this time. I move amendment 1.

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Justice Committee 03 November 2015

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