Hansard

I am pleased to speak to the motion and proud to lead a debate on such an important issue.

This afternoon we are debating the Executive's proposals for renewing mental health law. Those proposals were set out in full in a policy statement published on 18 October. Legislation in this area is a difficult and often complex subject, but it is vital. I hope that the chamber will give a clear signal that it takes the matter very seriously.

Rightly, mental health is one of the three clinical priorities for the national health service. The Executive has worked hard to ensure that it is made a priority in practice. Sadly, for too many years the approach to people with mental illnesses or learning disabilities could be summed up as one of "out of sight, out of mind". Thankfully, that is changing. People with mental health problems want to be part of the community and have a right to be part of it. That has meant huge changes in services: more community-based care, more flexible services and more recognition that the people who use services should have a say in what happens to them.

However, services are only one part of the equation, because in one vital respect mental illness is different from other forms of ill health. A person who is mentally ill—for example, with manic depression—may not appreciate the nature of their illness or the need for treatment. Sometimes treatment must be imposed, rather than agreed. That is why we need effective legislation that balances the needs of patients with their rights as citizens.

The current basis for legislation in this area is the Mental Health (Scotland) Act 1984, which is based largely on an earlier act dating back to 1960. In its day, the act was a huge step forward, but now our mental health law is out of date. My predecessor, Sam Galbraith, recognised that. That is why in 1999 he invited Bruce Millan, the former Secretary of State for Scotland, to chair a committee to conduct a fundamental review of our mental health law. In January this year, Bruce Millan delivered his committee's report to ministers. The Millan report is a landmark. It is a very thorough and robust piece of work, stretching to some 520 pages and 416 recommendations.

I would like to place on record our thanks to Bruce Millan and the members of his committee for their immense contribution. We are determined to do justice to their work, which is why we have been carefully considering the committee's recommendations since January. To help us in that task, we set up a reference group and involved a wide range of individuals and organisations. I express my thanks to the Scottish Association for Mental Health and to all the other people and organisations—too many to mention—that have helped us in our on-going work.

The feedback from the seminars and the advice from the reference group have greatly informed the development of our proposals for a new mental health act, which is set out in the policy statement "Renewing Mental Health Law". Quite simply, the proposals represent the most fundamental overhaul of mental health law in a generation. Our mental health bill will provide clearer, fairer and safer mental health law and will underpin best practice in delivering mental health care.

Time does not permit me to go into the detail of our proposals, but I will highlight some of the most important. The new bill will establish a clear set of principles that must be taken into account by service providers and by courts and tribunals. The principles include: equality and diversity, to ensure that people with a mental disorder receive appropriate care and support whatever their race, gender, sexual orientation, ethnic group or social, cultural or religious background; participation, to allow service users to be as fully involved as possible in all aspects of their treatment; and respect for carers, to ensure that account is taken of the views and needs of those who provide care informally.

The bill will apply to people with all kinds of mental disorder, including mental illness, learning disability and personality disorder. That does not, of course, mean that any person who has such a diagnosis will be liable to compulsory treatment. One of our fundamental aims is to set out more precisely when and why such compulsion is justified. Although personality disorder will be retained as a category that is covered by mental health law, that does not mean that we anticipate any increase in the numbers of people who are detained with such a diagnosis.

Some have argued that people with learning disabilities should not be dealt with in a mental health act. We understand that the needs of those with learning disabilities are different, but we agree with the Millan committee that it would be wrong to remove learning disability from mental health legislation at this stage. However, we are reviewing how well the legislation meets the needs of people with learning disabilities and we will continue to give that careful consideration.

Provisions for compulsory care and treatment are at the heart of all mental health law. We believe that the law must state more clearly why it is right that, in individual cases, the law should be able to require a person to accept medical treatment that has not been agreed to.

The other fundamental change that we propose is that compulsion will be tailored to the needs of the individual patient and will be the least restrictive intervention that is necessary to meet those needs. At the moment, compulsion quite simply means admission to hospital. However, that one-size-fits-all approach is no longer good enough.

Compulsory treatment in the community is a controversial and sensitive issue. We agree with the conclusion of the Millan committee that it should not be necessary to detain people in hospital if the necessary care and treatment can be provided in the community, closer to an individual's home and family. We will ensure that any order for long-term compulsion—whether in the community or in hospital—is rigorously scrutinised and regularly reviewed. We need to balance the rights of the patient with the safety of the community. Compulsory treatment in the community will clearly not be a cheap option. Services will have to put forward a plan of care that demonstrates that the patient will receive the proper support to back up the compulsory treatment. Services will also be under a legal obligation to ensure that the support is delivered.

One of the main areas of concern about the current system is its reliance on the sheriff court. Many service users and carers gave evidence to the Millan committee about the shame and distress they felt at being required to attend a mental health hearing in a setting that seemed to them to be for dealing with criminals. That is no criticism of the courts. Some sheriffs go to great lengths to meet the special needs of that kind of case. However, our new system will be radically different; we have concluded that it needs a different kind of legal forum. We therefore intend to establish a new mental health tribunal system. Each tribunal will have three members with expertise in the law, medicine and social care. The arrangements for a tribunal will encourage real participation from patients and families. They will be more informal, more accessible and less bureaucratic.

There are, of course, some treatments for mental disorder that require extra safeguards. The Mental Health (Scotland) Act 1984 provides that certain treatments cannot be given unless the patient has consented or an expert second opinion has been obtained. We will extend that protection to treatments such as forcible feeding and medication above the recommended dosage. We are also increasing the safeguards for electroconvulsive therapy—ECT.

Our proposals are not only about compulsory treatment. They are also about strengthening the rights of all patients. The 1984 act contains important duties on local authorities to provide care and support to people with mental health problems and learning disabilities. We will update and extend those duties to reflect the range of community-based services that all mental health service users should be entitled to expect.

A major area of concern for many families is whether services will respond quickly enough if a family member who has had mental illness before begins to deteriorate again. We will create a new right for users and carers to request, in such circumstances, that the NHS and the local authority carry out an assessment of their needs.

The ability of the patient to make their voice heard is essential in any patient-centred system. That is why we will create a new legal duty on NHS boards and local authorities to support independent advocacy services for mental health service users. This will be the first time that such a requirement has been enshrined in legislation. It will provide a catalyst for our wider aim of ensuring access to independent advocacy for all patients who need it.

The principles that we have set out include, as I said earlier, respect for carers. That is in recognition of the invaluable contribution made by family members and informal carers in Scotland. The greater rights to assessment and the reforms to the legal process that I have outlined will benefit carers as well as service users. That, alongside other measures that the Executive is introducing, is further evidence of our commitment to acknowledge and support the vital contribution that informal carers make.

The Mental Welfare Commission for Scotland will continue to play a key role in protecting the interests of service users. As its recent annual report shows, it needs no encouragement from ministers to do so—but it does need powers that fit the new legal framework. We intend to clarify and strengthen the commission's powers to encompass both hospital and community services. The commission will be the guardian of the principles of the new act but will retain its focus on individual patients. To ensure that it is best equipped to carry out its vital role, we will initiate a review of its management and organisation.

Our proposals include additional protections against abuse and neglect for people suffering from mental disorder. For the first time, there will be a clear statutory responsibility on local authorities to make inquiries where there is evidence that a mentally disordered person may be at risk of neglect or abuse. We will strengthen the powers of local authorities to intervene, building on proposals made by the Scottish Law Commission. It is a sad fact that people with learning disabilities and people with mental illness may be victims of sexual abuse. Our bill will update the special offences laws designed to protect people with mental disorders from such abuse and will ensure that the punishment fits the crime.

We acknowledge that mental health law has a crucial role to play in protecting public safety. However, we should remember that people with mental health problems are often at more risk from society than the other way round. Nevertheless, a small minority commit offences and may present a risk to others.

The Millan committee did not recommend major changes in the disposals already available to the criminal courts, but we will implement its proposals for better arrangements for the management of risk, including a greater use of options such as interim hospital orders and hospital directions. Those disposals allow more time for the courts to make decisions, provide additional safeguards and allow for offenders to move between hospital and prison to serve out their sentence after treatment is complete. Those changes do not exist in isolation and will complement the measures being brought forward in the criminal justice bill to provide better public protection from serious violent and sexual offenders.

Members will recall that the last debate of this length on mental health law was during the passage of the Mental Health (Public Safety and Appeals) (Scotland) Act 1999—the so-called Ruddle act. At that time, ministers gave a commitment to review the emergency legislation in the light of the Millan and MacLean reports. We have done so and we have taken careful note of what the Millan committee had to say on the emergency legislation. The changes that it proposes should help to ensure that the situation that arose in the Ruddle case does not occur again. However, we have decided to retain a provision that an offender who has been made subject to a hospital order, which includes special restrictions, may not be discharged from hospital if they continue to suffer from a mental disorder and present a high risk to public safety.

I recognise that some in the mental health field will be disappointed with that decision. They will say that such a provision in legislation is no longer needed. However, although there are few, if any, patients who would be detained by such a provision who are not detainable under the normal criteria, we have concluded that a provision of this kind should remain, for the rare case in which the need might arise. Once again, I stress that we are looking to strike the right balance between the rights of the patient and the safety of the community.

We have also considered carefully the other Millan proposals in relation to high risk patients. We have concluded that Millan was right to recommend that ministers should no longer be responsible for decisions on the discharge of restricted patients. That is a judicial and clinical issue, not a political one. It is already the case that patients may apply to the sheriff for discharge. In future, however, the new mental health tribunal, chaired by a sheriff, will be the only route for discharge of restricted patients.

Ministers will, however, continue to exercise a clear responsibility for overseeing the day-to-day risk management of restricted patients. Ministerial approval will be necessary for decisions such as allowing a patient to spend periods out of hospital. The Millan committee suggested that the risk management authority, which is being established by the criminal justice bill, might take on that role. Having considered the matter carefully, we have concluded that it would not be right to do that at this stage. However, we will review the situation once the authority is better established.

We also feel that there are problems with Millan's recommendation that patients should have a legal right to appeal to be transferred to a lower level of security. We agree, though, that more needs to be done to develop the full range of secure services, and to ensure that patients can move to the level which best meets their needs. We are keen to make progress in this area and accord with the spirit of the views of the Millan committee. To that end, we will discuss with the service ways in which we can deliver on those aims.

Our proposals, which are contained in our policy statement "Renewing Mental Health Law", are a significant step forward. We have come a long way, but there is much more still to do. The new act will bring about major changes in mental health law and practice, but we must continue to work on other fronts as well, to build wider awareness and understanding of the issue of mental health. So too must we work to tackle the stigma and prejudice that is still all too common in this area.

We agree with the Millan committee that services and facilities on the ground must be adequate to meet the modern demands of delivering mental health care. That is why investment in mental health is increasing. Last year alone, more than £500 million was spent on mental health in the NHS, which is an increase of 9 per cent, but money alone is not the answer and we must not pretend that it is. Changes in the law, changes in culture, changes in ways of working and changes in the way that mental illness is perceived and reported in this country must all be driven forward. That should be our focus for debate today.

I look forward to the debate. I assure the chamber that we will listen carefully to the contributions that are made, and will reflect on them as we prepare draft legislation. That legislation, in the form of a mental health bill, will be brought before the Parliament early next year. That will fulfil a key programme for government commitment and will be another significant milestone for devolution: clearer, fairer, and safer laws and real and lasting improvements in the way in which we support and protect people who use mental health services. That is a big ambition and an important aim, but it is a prize that together we can achieve.

I move,

That the Parliament welcomes the publication of the Executive's policy statement Renewing Mental Health Law; agrees that the statement provides a sound framework for new legislation which responds to the needs, rights and aspirations of people who use mental health services, while having regard to the public interest, and looks forward to the introduction of a Mental Health Bill, thus fulfilling the Programme for Government commitment to modernise mental health legislation in the light of the Millan Committee's review of existing law.