Hansard

The amendments in this group relate to mandatory fatal accident inquiries for patients detained under mental health legislation. Such inquiries were introduced at stage 2 by amendments that were lodged by Margaret Mitchell and agreed to by the Justice Committee.

Margaret Mitchell’s amendments mean that there will be a mandatory fatal accident inquiry into every death of a person detained under mental health legislation, unless certain exceptions apply. The Scottish Government’s amendments in the group seek to reverse the effect of Margaret Mitchell’s amendments. Amendment 4 removes a redundant definition of “mental disorder”, which is not referred to in the bill and which should be removed whether or not the other amendments in the group are agreed to. The definition is no longer required as it is relevant only in relation to patients receiving treatment in hospital voluntarily.

Subsequent to stage 2, several bodies wrote to the Scottish Government and MSPs to express their opposition to Margaret Mitchell’s stage 2 amendments and offer their support for the reversal of those amendments at stage 3. That is what the Government’s amendments in the group seek to do.

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”.

The Scottish Association for Mental Health, which is a charity that supports and campaigns for people with mental health problems, says that the stage 2 amendments

“are disproportionate and could add to the distress of bereaved families”.

The British Medical Association Scotland said:

“There are of course deaths which would benefit from further investigation, but it is more appropriate for the fiscal to make the decision than to have a mandatory FAI for all cases.”

The amendments were not supported by the Mental Welfare Commission for Scotland, which believed that the provision was disproportionate and would not achieve the aim of national learning. Penumbra and the mental health nursing forum Scotland also expressed their opposition.

I understand members’ concerns that we must ensure that proper care is given to those who are detained by the state due to their mental health problems, especially as they are some of the most vulnerable people in our society. However, I believe that the systems that are in place and the statutory review that will soon be undertaken best ensure that that will happen.

Currently, the Mental Welfare Commission for Scotland may undertake an investigation when it is alleged that a mental health patient may have been subject or exposed to ill-treatment, neglect, or some other deficiency in care or treatment.

The chief medical officer issued a formal circular to practitioners in November this year that made it mandatory for all deaths that occur while the person is subject to compulsory treatment under mental health legislation to be reported to the procurator fiscal. That ensures not only that an independent investigation can be carried out by the procurator fiscal to establish whether there is any issue of criminality but that, if there is no criminality and it is in the public interest, perhaps because of a suspicion of a deficiency in care or treatment, the Lord Advocate can hold a discretionary FAI. That demonstrates that, if no FAI is to be held, it does not mean that there has been no investigation of the death. Indeed, of the 5,500 death investigations that are carried out each year by the Crown Office and Procurator Fiscal Service, only 50 to 60 lead to an FAI. As for all the other deaths that are reported to the Crown Office, the circumstances have been explored by the procurator fiscal.

In addition, section 37 of the Mental Health (Scotland) Act 2015 requires a statutory review of the arrangements for investigating the death of a patient who was detained in hospital by virtue of the Mental Health (Care and Treatment) (Scotland) Act 2003 or the Criminal Procedure (Scotland) Act 1995, or who was admitted voluntarily to hospital for the purpose of receiving treatment for a mental disorder. That provision was inserted by an amendment that was lodged by Dr Richard Simpson and supported unanimously by the Parliament. On the instruction of the Minister for Sport, Health Improvement and Mental Health, the Scottish Government this week laid an order commencing the provision, which will come into force on 24 December. Any change to FAIs in relation to such cases would pre-empt the review, which has been and will be widely welcomed by stakeholders. Indeed, in its stage 3 briefing to MSPs, the Mental Welfare Commission considers the review to be an

“important opportunity to create a system of investigation of non-natural deaths of psychiatric patients which is proportionate, streamlined and effective.”

Although not a primary consideration of the potential impact, it is important to note that, as detailed in the supplementary financial memorandum to the bill, mandatory FAIs for detained mental health patients would effectively double the number of FAIs held per year. It would mean that one out of every two FAIs would relate to a mental health patient, which would be disproportionate and would, in my view and in the view of stakeholders, cause unnecessary distress to the families of the deceased.

I suspect that Dr Elaine Murray’s amendments have been lodged to mitigate that impact, as they would mean that the Lord Advocate may decide that an inquiry is not to be held into a death, if satisfied that the death is from natural causes. Perhaps that is an acknowledgment by Dr Murray that the provision, via an exception, in Margaret Mitchell’s stage 2 amendments for the Lord Advocate not to hold a mandatory FAI if there has been a Mental Welfare Commission investigation is not enough. However, amendment 37, in Dr Murray’s name, could give rise to practical issues of interpretation and application. There is no definition of “natural causes”, and it also raises more questions than it answers. For example, on what basis would the Lord Advocate be satisfied that the death was from natural causes? How is the phrase “natural causes” to be defined for the purposes of the provision? The amendment could also lead to challenges, by judicial review, to the Lord Advocate’s decision not to hold an FAI if, for example, the family believed that the death was not from natural causes.

For those reasons, the Government wishes to reverse Margaret Mitchell’s stage 2 amendments in order to return the bill to the original policy in respect of the treatment of mental health patients. As Dr Murray’s amendments are based on Margaret Mitchell’s stage 2 amendments remaining in the bill, Dr Murray has nothing to gain by pressing her amendments if those provisions are removed.

For the reasons that I have outlined, the Government opposes the amendments lodged by Elaine Murray. As the Scottish Government’s position is supported by a broad range of mental health organisations that work on the front line and which represent mental health patients and those who work with and care for them—to recap, the Mental Welfare Commission for Scotland, the Royal College of Psychiatrists, BMA Scotland, Penumbra, the mental health nursing forum Scotland and Enable—I ask Elaine Murray not to move her amendments.

I move amendment 2.