Meeting of the Parliament 10 December 2015
At stage 2, the committee agreed by majority vote to amend the bill to require a mandatory fatal accident inquiry when a person who is in compulsory detention under the Mental Health (Care and Treatment) (Scotland) Act 2003 dies. The amendment accorded with Lord Cullen’s recommendations in his review and had been supported during his consultation by organisations such as Enable. I also note that the deaths of patients in compulsory detention in England and Wales are subject to a coroner’s inquest.
The bill as amended also allowed the Lord Advocate to make an exception where the circumstances of the death had been established through an investigation under section 11 of the 2003 act. However, it did not allow the Lord Advocate to make an exception where the death was from natural causes, which would not be subject to investigation under the 2003 act. Therefore, the death from natural causes of persons who had been compulsorily detained would always be subject to a mandatory inquiry without any exception, which could be unnecessary and distressing to friends and family.
Amendment 37 would enable the Lord Advocate to make an exception for deaths from natural causes. Two thirds of people who die in compulsory detention die of natural causes, and there should be no requirement to conduct an FAI into those deaths.
However, since the bill was amended, we have received representations from a number of professional organisations and, crucially, organisations that represent people with mental health conditions and their families that urge us to remove the provisions in question. The Mental Welfare Commission believes that the priority should be to establish the review of the arrangements for investigating the deaths of detained patients and that legislating at this stage would pre-empt the results of that review.
Carer representatives from the Royal College of Psychiatrists in Scotland advised that the delays involved in the FAI process would have a “significant and negative” impact on bereaved carers. Penumbra agrees with the views of the MWC and the Royal College of Psychiatrists. Enable made the original submission to Lord Cullen, but its briefing, which was sent to us yesterday, was ambiguous, so I contacted its policy officer to clarify its position. She advised me by email that Enable has accepted the Government’s position on the amendments, provided that there is a firm commitment that the review into the investigation of deaths of detained patients that is required by section 37 of the Mental Health (Scotland) Act 2015 is progressed as a matter of urgency. As the minister has said, that review is the result of an amendment that was lodged by my colleague Richard Simpson and unanimously supported by Parliament.
The Minister for Sport, Health Improvement and Mental Health wrote to the chair of the Health and Sport Committee, Duncan McNeil, earlier this week to advise that he intended to lay an order yesterday, which will come into force on 24 December and will clarify the deadline for the review’s completion. If the minister can confirm that that order has been laid and can advise us of the deadline for the review’s completion, I will consider that the stage 2 amendments have made an important contribution to the debate and to the acceleration of the review.