Hansard

I welcome today's debate. I have no doubt that there will be considerable consensus across the chamber about the Scottish Executive's proposals. I agree with the vast bulk of Susan Deacon's comments.

The Millan committee's report is an excellent and comprehensive piece of work and I am delighted that the Scottish Executive has accepted the vast majority of its recommendations. The Millan committee made a convincing case for a new mental health act. In my previous life as a solicitor, I had some experience of dealing with the Mental Health (Scotland) Act 1984, and I know from that experience that it is riddled with anomalies. More important, as the Minister for Health and Community Care said, things have moved on since 1984, and even more so since 1960, when the last substantive reform of mental health law took place. Many of the principles and assumptions underlying the existing legislation are outdated and no longer valid. There is no doubt that it is time for a fundamental rethink of the legal framework and for the Parliament to put in place a modern piece of legislation that reflects current thinking on the care and treatment of people who suffer from mental illness.

We should not be under the illusion that a new legal framework alone will improve the quality of care and treatment for people with mental illness. Ultimately, the quality and range of services that they have access to will make the difference. A parallel challenge—with which I am happy Susan Deacon agreed—for the Executive and the Parliament as the new mental health bill is considered is to prove that the provision of adequately resourced mental health services is a priority in reality as well as in rhetoric.

The issue of resources is one that I will return to. I begin by highlighting some of the recommendations in the Millan report that have been accepted by the Scottish Executive, and which are particularly important and welcome. The agreement to articulate in the new bill the key principles that underlie it undoubtedly is a positive move. Some may think that stating principles in an act is a cosmetic exercise, but it is much more important than that. It provides guidance on the use and interpretation of an act and helps to ensure that the intentions of the Parliament are upheld. I am glad that in this case that approach has been accepted for the new mental health bill. I hope that, in drafting that bill, the Executive will stay true to the principles that were endorsed by the Millan committee.

I also endorse whole-heartedly the agreement to establish a new mental health tribunal to deal with cases arising out of the new mental health act and to replace the existing sheriff court procedures for the authorisation and renewal of long-term compulsory care orders and for hearing appeals against short-term detentions. The new tribunal will enable a specialist, expert and multidisciplinary approach to dealing with people who might need compulsory care. It will go a long way to removing the unwelcome stigma that many service users feel is attached to them as a result of having to go through sheriff court procedures.

I also welcome the new tests that must be satisfied before a person can be made the subject of a long-term compulsory care order and the move towards orders that are tailored to meet the needs of the individual. One of the most important principles enunciated in the Millan report and the Executive's policy statement is that one size does not fit all. People who suffer from mental disorders are individuals; they are not all the same and they all have different needs. An application for a long-term care order should be accompanied by a care plan that is based on a multidisciplinary assessment of needs and tailored to the circumstances of the service user. That is vital to ensure that the individual's rights are respected and that the principle of reciprocity, which was given such prominence by the Millan committee, has real meaning. I will return to that issue later.

I also support, in principle, the view that, where possible, people should be able to receive compulsory care in the community. The possibility of compulsory care in the community rather than in a hospital is in keeping with the general trend towards community care. It is also in keeping with the principle that the least restrictive alternative should be pursued when determining what care and treatment a person should receive. Later, I will mention my concerns about how orders for compulsory care in the community might be used in practice. We must never forget that the majority of people who receive care and treatment for mental illness do so voluntarily and not by means of compulsion. I welcome the Millan report's recommendations—which were accepted by the Scottish Executive—to strengthen those people's rights.

I was also pleased to see the acceptance of the recommendation to give service users and their carers the right to request an assessment if their condition appears to deteriorate. That right is crucial if we are to ensure that, at the earliest possible stage in their illness, people have access to care and treatment that might reduce the need for more drastic intervention at a later stage.

The final two areas that I want to mention briefly—but positively—are the measures to support carers and the duty to be placed on local authorities to investigate cases where there is evidence of abuse of a person with a mental disorder.

I turn now to the areas about which I have some concern and on which I seek reassurance—where it has not already been given—when the minister sums up. The first issue is advocacy. The Millan recommendations appear to have lost something in the course of their journey to the Scottish Executive policy statement. The Millan report was unequivocal in recommending that mental health legislation should give service users a right to an independent advocate. I have no doubt that everyone in the chamber shares the view that that right is fundamental.

Those who fall within the ambit of mental health legislation are some of the most vulnerable people in our society, who often cannot exercise or defend their rights or make their views be known to and understood by service providers. They are subject to legislation that can—at the extreme—deprive them of their liberty and force them to receive treatment against their will. It is vital that they are able to make their voices heard and understood. The proposed new act would strengthen their rights and build in safeguards, but those measures will be meaningless for many people without the support that would enable them to make and communicate informed choices and, consequently, exercise as much control over their own care as possible.

That is why many service users are disappointed that the right to advocacy that the Millan committee recommended has been apparently—I stress apparently—downgraded to a duty on the NHS and local authorities to ensure that a range of advocacy services is provided. Similarly, the Millan report recommendation that there should be a statutory obligation on service providers to provide support to collective advocacy groups has not found its way into the Executive's policy statement.

I was encouraged by the emphasis placed on advocacy in the minister's opening remarks. However, I urge the minister to signal today that in drafting the new bill there will be a return to—if there was ever a movement away from—not only the spirit but the letter of the Millan recommendations. What the proposed new act could do for those who suffer from mental illness will be undermined if those people do not have the vital support that independent advocacy services can bring. Only a right to those services will ensure that all service users can access them.

While on the general theme of maximising the control over their own lives that users of mental health services can exercise, I make passing reference to advance statements, which allow people, while able, to set out their wishes about their future care. The Executive has been positive about advance statements, while rightly pointing out the difficulties of making such statements legally binding. The Scottish Association for Mental Health has asked whether other ways of affording the statements some formal standing exist, such as allowing only a mental health review tribunal to override them. I hope that the ministers will agree to give that further consideration before the bill is published.

The second issue on which I will touch is compulsory care in the community. I have said that, in principle, I support the view that compulsory care should not necessarily be provided in a hospital. However, the use of community orders in practice will require close monitoring. The danger exists that community orders might be made when community compulsion may not be the appropriate disposal and may not represent the least restrictive alternative. Hospital beds are under pressure and delayed discharge is a big problem. It would concern me—and I dare say everyone—if there were any possibility of people who needed to be in hospital or whose safe discharge from hospital depended on enhanced services in the community that might not exist being given compulsory care in the community simply as a way of relieving that pressure.

That danger also exists at the other end of the spectrum. If advanced services existed in the community, many people would not require compulsory treatment, but because many such services are inadequate, those people may be placed under compulsory orders. In those circumstances, it could not be argued that community compulsion was the least restrictive alternative. It would simply be the least restrictive alternative that resources allowed.

We should support care in the community when it is appropriate for the individual, but we should also be vigilant about ensuring that orders for compulsory care in the community do not become a sticking plaster for service deficiencies elsewhere. I was heartened to hear the minister say that compulsion in the community would not be the cheap option. I hope that that proves true, because it is vital for the quality of care that service users receive that compulsion in the community is not the cheap option.

That brings me neatly to the issue of resources. We are debating a new legal structure, not a package of resources for mental health services, but the Millan committee made it clear that resources could not and should not be divorced from debate about the new legislation. The Millan report says:

"we have no doubt that the aspirations which underlie our recommendations for new mental health law will not be fully met unless services and facilities are adequate to meet the demands placed on them."

The amendment that the SNP has lodged would ensure that that sentiment is reflected in the motion that the Parliament has been asked to approve, to remind us—if we needed reminding—that although a new legal framework is crucial, it will not in itself ensure high-quality services.

For too long, mental health provision has been a poor relation in the national health service. I appreciate that the Executive wishes to address that and I do not quibble with the minister's assertion that resources have increased, but the Millan report reminds us acutely of the scale of the challenge: persistent underinvestment in maintaining the fabric of in-patient units; a poor-quality environment for patients in intensive psychiatric care units; a dearth of therapeutic and recreational services; and too many patients inappropriately trapped in hospital because of a lack of community services.

People are frustrated that receipts from the sale of psychiatric hospitals have not been reinvested in community care, for example. People are frustrated and concerned that too many services are funded from short-term sources such as the national lottery. There is no doubt that resources must be at the forefront of our minds as we consider the proposed bill.

An underlying principle—arguably the most important principle—of the proposed bill is reciprocity, to which I have referred. Reciprocity is the belief that someone who suffers from mental illness and is deprived of their liberty in order to be treated and cared for has a right to receive appropriate care and treatment. That should be a fundamental principle of mental health law. If it is to mean anything beyond the words in a piece of legislation—or anything in the real world—adequate resources must be put in place.

I will make a final point. I do not want to labour it, but because it has been mentioned to me by a number of service users and service providers, it is worth mentioning. There appears to be widespread opinion that the title "mental health act" is not appropriate for this proposed legislation. The bill will not promote good mental health, but it will deal with the consequences of mental disorder. While there may be consensus that the title is wrong, there is no consensus on what would be the correct title. Even the Millan committee failed to come up with an alternative title. Perhaps the Executive will ponder that further as it goes about drafting the bill. The inclusion of a clear set of principles was mentioned. We want to achieve a bill that in its title reflects accurately the task that we are setting about.

I am happy to support the Executive's motion, although I hope that the Executive will support the SNP amendment, which seeks to enhance the motion that we are being asked to support. My colleagues on the Health and Community Care Committee and I will scrutinise the proposed bill closely. It is clear that not all of the Millan recommendations can or should be included in primary legislation. However, it is important that the bill stays true to the principles and the key recommendations that are contained in the Millan report.

I move amendment S1M-2438.1, to insert at end:

"and also supports the view expressed in the Millan Committee's report that the aspirations underlying its recommendations for new mental health law will not be met unless services and facilities are adequate to meet the demands placed on them."