Meeting of the Parliament 24 June 2015
I add my thanks to the Health and Sport Committee clerks, the bill team, and the many witnesses and stakeholders who have been so helpful throughout the parliamentary process of the bill.
The Mental Health (Care and Treatment) (Scotland) Act 2003 was a very important piece of legislation, which sought to minimise interference in people’s liberty and maximise the involvement of people with mental health issues in their treatment, giving them the right to express their views about their care and treatment, the right to independent advocacy, the right to submit an advance statement about how they wish to be treated when they become ill, and the right to choose a named person to act on their behalf when necessary.
Twelve years on from that act, and following the McManus review in 2009, it became clear that some aspects of the 2003 act were not working as well as intended. The current bill aims to improve and bring additional clarity to the act so that patients indeed benefit from the intended minimum interference and maximum involvement with their treatment.
The principles of this amending bill were generally welcomed at stage 1, but it was recognised that significant amendments would be needed to ensure that the policy intention became effective, and there were serious concerns in certain policy areas. Amendments at stages 2 and 3 have served to allay a number of the concerns that were expressed to the Health and Sport Committee by witnesses and stakeholders, but some remain unresolved.
The minister has made it very clear that he sees the current bill as a light-touch review of the 2003 act and that he does not intend to accept more fundamental changes without further detailed consultation and review.
Among the amendments to be welcomed is the one that removes the initial proposal to extend the period of short-term detention from five to 10 days—an issue of concern that was raised by the Law Society—and the Mental Welfare Commission for Scotland is pleased to see the limit of a suspension of detention kept at 200 days and not extended to 300 days as originally proposed.
The tightening of the bill to ensure that a named person is identified only when the patient wants one, the requirement for health boards to publicise the support that they offer to make or withdraw an advance statement and to respond to requests about such support from the Mental Welfare Commission, the right of appeal for named persons in cases of cross-border transfer, and the steps taken to gather information about the provision of advocacy services so that they may become more readily available to people who wish to use them are all very welcome improvements to the bill as originally proposed.
However, concerns remain, particularly—as we heard a lot this afternoon—around people with learning disability and those on the autistic spectrum, who are currently included within mental health legislation because they have those lifelong conditions, whether or not they are also mentally ill. There are differences of opinion among experts as to whether that is right, but there is strong feeling among those affected that current mental health legislation is inappropriate, and that learning disability should be defined as an intellectual impairment rather than a mental disorder. A strong plea has been made for a wholesale review of mental health and incapacity legislation.
Such a review was proposed by the Millan committee as far back as 2001 and it was again recommended by McManus in 2009, so there is understandable frustration that it has not yet been achieved. The minister’s clear commitment to a comprehensive, participative review of the inclusion of learning disability and autism in mental health legislation is very welcome, and I can understand why he does not want to commit to a timescale that might curb the scale of the review. Nevertheless, there is a degree of urgency about this, and I am sorry that the minister did not accept Jackie Baillie’s stage 3 amendment to ensure that it would be done within three years.