Hansard

The group includes amendments in the name of Margaret Mitchell that would require mandatory FAIs into the deaths in hospitals of patients receiving compulsory or voluntary mental health treatment. Mental health patients who die while receiving treatment in hospital for something that is unrelated to their mental health condition, such as a heart attack or cancer, would be affected by the proposal. It is difficult to see how the public interest would be served by holding an FAI in such circumstances. Currently, the Mental Welfare Commission is automatically informed of the deaths of detained patients and has the discretionary power to carry out its own independent investigation and inquiry, and it already liaises with the Crown Office on cases that it feels may merit an FAI. Therefore, if there was any suspicion or suggestion that a death was the result of inadequate or inappropriate treatment, a death would already be investigated by the Mental Welfare Commission and/or the Crown Office. The Crown Office is also updating its guidance to medical practitioners to ensure that all deaths that occur while the person is subject to compulsory treatment under mental health legislation are reported to the procurator fiscal and are, therefore, investigated as appropriate, in common with all other sudden, suspicious or unexplained deaths, of which only 50 to 60 finally result in an FAI. It is highly significant that neither the Mental Welfare Commission nor the Royal College of Psychiatrists supports mandatory FAIs for detained mental health patients. They believe—and we agree—that the provision would be disproportionate and could, as I have said previously, lead to unnecessary distress for the family of the deceased person. In response to the proposal, the Royal College of Psychiatrists said: “it is stigmatising to suggest mental health care and treatment should be subject to special scrutiny in relation to patient deaths, bearing in mind the commonality of mental health problems and physical illness prevalence. We would oppose any amendment seeking to change this at Stage 2 and we urge the Committee to reject any such amendments.” The committee will be aware of a new provision under section 37 of the Mental Health (Scotland) Act 2015 that requires ministers to carry out within three years a review of the arrangements for investigating the deaths of patients who at the time of death were detained under either the Mental Health (Care and Treatment) (Scotland) Act 2003 or the Criminal Procedures (Scotland) Act 1995, or who admitted themselves voluntarily for treatment for a mental disorder. 10:15 The Mental Welfare Commission for Scotland has said that it “believes that this review is an important opportunity to create a system of investigation of deaths of psychiatric patients which is proportionate, streamlined and effective” and that “the priority should be for the review to be established and for its work to begin”. I reassure committee members and other members who are present today that the review of the arrangements for the investigation of deaths of mental health patients will commence as soon as possible, and that initial discussions are already taking place with stakeholders. The Scottish Government will consider with stakeholders the scope of the review and whether it is possible to ensure that there are safeguards to protect against alleged deaths of patients as a result of covert treatment, compulsory electroconvulsive therapy or other treatment, which I know is of concern to Alison McInnes. I do not believe that it would be appropriate or sensible to legislate to extend the mandatory category in relation to deaths of mental health patients in advance of the work of the review that is required under section 37 of the 2015 act. Amendment 5, in the name of Margaret Mitchell, would provide discretion for the Lord Advocate not to hold a mandatory FAI where there has been an investigation or inquiry by the Mental Welfare Commission. Such investigations are, however, carried out by the commission only where there has been apparent ill treatment, neglect or deficiency in care. The amendment would therefore require that FAIs be held for deaths from natural causes and expected deaths. Amendment 7, in the name of Margaret Mitchell, would amend section 8 of the bill, which will place a duty on the Lord Advocate to provide written reasons when it is decided that an FAI is not to be held, but has been requested by the nearest relative. As the convener said, amendment 7 would require the Lord Advocate to give written reasons in all cases in which it has been decided that there will be no FAI for a death in hospital of a patient who has been receiving mental health treatment. In such cases, written reasons would have to be given without, crucially, a request having been made by the nearest relative, as the convener indicated. For all other types of cases, a request is needed before the Lord Advocate’s duty takes effect. There is simply no good reason to make the rule for mental health cases different from that for all other cases. What is important is that the Crown Office maintains with the bereaved family the level of contact that they have indicated they want; we believe that there are better ways of achieving that than amendment 7. The need for support and guidance that is tailored to individual family circumstances is exactly the sort of thing that will be provided for in the Crown Office’s proposed family liaison charter. I agree with the committee’s observation in its stage 1 report on Patricia Ferguson’s Inquiries into Deaths (Scotland) Bill that, if the scope of mandatory FAIs were to be extended to include the deaths of those who are detained under mental health legislation, the numbers of inquiries would rise significantly and the financial impact would be significant. It would, of course, be even more significant if voluntary patients were included. Although I take the point that Alison McInnes’s amendment 2A would remove voluntary patients from amendment 2, the Scottish Government still cannot support mandatory FAIs into mental health-related detention or compulsory treatment. Data from the Scottish Government and the Mental Welfare Commission suggest that there are each year approximately 78 deaths of patients who are subject to detention or to compulsory mental health treatment. If mandatory FAIs were to be held into all of those deaths, that would at a stroke more than double the number of FAIs in Scotland per annum. At least 39 of those 78 patients died from natural causes, in cases where death was expected; those deaths would trigger mandatory FAIs under the proposed arrangements. There were in 2013-14 424 deaths of psychiatric in-patients, including voluntary patients. Amendment 2 could therefore increase the number of FAIs sevenfold. It is important to consider that the proposals may not be welcomed by bereaved families of mental health patients, who may not wish to have the death in psychiatric care of a loved one become the focus of a fatal accident inquiry in public. We have similar concerns with regard to the amendments in the name of Alison McInnes, which would require a mandatory FAI into the death of any patient suffering from dementia who was receiving treatment in a hospital or care home service, or who was being treated with psychotropic drugs for the three months leading up to their death. As is stated in the recent letter from the Mental Welfare Commission, patients suffering from dementia often die while receiving treatment in hospital for, for example, heart attack or cancer, which are unrelated to mental health conditions, including dementia. I note the point that Alison McInnes made about strokes and take it on board; I hope that the review will be able to look at that issue. Similar to what would happen under Margaret Mitchell’s amendments, deaths from natural causes would be affected by Alison McInnes’s amendments. It is, in my opinion, difficult to see how the public interest would be served by holding an FAI in such circumstances. The amendments incorrectly imply that use of psychotropic medication for people with dementia is a bad thing and requires extra scrutiny. I take the point that Alison McInnes has made, however. It is my understanding that patients with dementia often experience aggression, agitation, loss of inhibitions, delusions and hallucinations, which can, regrettably, require psychotropic medication. I further understand that clinical guidelines and safeguards are in place on the appropriate use of antipsychotics to help to manage those distressing symptoms. The committee will be aware of the upcoming review of treatment of learning disability, autism spectrum disorder and dementia under the Mental Health (Care and Treatment) (Scotland) Act 2003. Scottish ministers committed to that review during the passage of the Mental Health (Scotland) Act 2015. The Mental Welfare Commission will consult key stakeholders in early 2016 to scope the content and detail of the review. In view of the fact that there will be that review and the statutory review of the arrangements for investigating the deaths of mental health patients under section 37 of the 2015 act, I firmly believe that it would be premature and inappropriate in advance of the reviews’ work and recommendations to legislate to extend the mandatory category to deaths of dementia patients. Amendment 5A in the name of Alison McInnes would amend amendment 5 by ensuring that the deaths of mental health patients who are subject to compulsory treatment under part 7 of the Mental Health (Care and Treatment) (Scotland) Act 2003 would not be an exception under section 3 of the bill, which would mean that an FAI would be mandatory in every such case. We do not have exact figures for the number of deaths that could be captured by the amendment; however, we have been assured that the impact would be so fundamental that it would overload the system of fatal accident inquiries as well as leading to unnecessary distress for families and, potentially, staff. Although we, as the committee’s members do, understand and sympathise with Alison McInnes’s concerns regarding that group of vulnerable people, the Scottish Government does not, for the reasons that I and both the Mental Welfare Commission and the Royal College of Psychiatrists have set out, support the amendments, but believes instead that there being discretionary FAIs for such cases strikes the right balance. For all those reasons, I ask the members to not press their amendments.