Hansard

I congratulate the minister on her impending happy event and pay tribute to the lengths to which she is prepared to go to scrutinise Scotland's maternity services framework.

I welcome the policy document "Renewing Mental Health Law", which is the first major review of mental health law in Scotland for 40 years. I welcome the new focus that the minister outlined not only on mental health services, but on finding a just legal framework that delivers for people who suffer from mental illness and, in particular, for those very vulnerable people who have not agreed or cannot agree to treatment and require the state to take a decision on their behalf.

The Scottish Liberal Democrats recognise that the law must be renewed and reformed to reflect the development of community-based mental health services, the greater involvement of service users and carers in decisions concerning treatment and the greater awareness of—as well as the statutory place of—the human rights of every Scot in our modern society.

I am sure that I speak for all my colleagues on the Health and Community Care Committee when I say that I look forward to considering the policy in detail when a bill is introduced next February.

Members have mentioned the fact that mental health is one of the Executive's priority areas. One in four Scots will suffer from mental ill health at some point in their lives. The chief medical officer's annual reports states that 30 per cent of general practice consultations are for mental health problems.

For many, mental health problems may be temporary and mild and may involve stress, depression, anxiety or panic attacks. Nevertheless, such problems bring concern, distress, stigma and a reluctance to tell others. Despite greater recognition of the prevalence of mental health problems and despite greater funding, how many members would be happy to go to their business managers—kind beings though they are—and admit to stress or depression? Many would be happy to say that they had broken a leg, but they might be less inclined to say that they were suffering from mental stress.

The reluctance to come forward to health professionals or in the workplace is all too common. We should do everything that we can to educate people about mental health issues and work closely with all agencies and employers to recognise the impact of this hidden epidemic on Scottish life, businesses and health. According to Depression Alliance Scotland, stress-induced anxiety and depression are responsible for the loss of 6.5 million working days each year at a cost of £3.75 billion. The problem is massive.

Through our constituency surgeries, all members are aware that there are gaps in services, including in the crisis services that Mary Scanlon mentioned. No one should be left as their condition deteriorates from mild temporary problems to something much worse while over-stretched services cannot be accessed until the condition is diagnosed as more severe or enduring.

I welcome the SNP's amendment and the Executive's acceptance of that amendment. For too long, the service has been a cinderella service. Undoubtedly, there are resource implications in the policy document in respect of the availability and quality of services in the community and primary care and I trust that the Executive will resource properly. However, almost inevitably, the focus of my speech will be on those who suffer from the most extreme symptoms and conditions and who require the protection of mental health legislation.

The policy document paves the way for legislation that will replace the Mental Health (Scotland) Act 1984. In so doing, the document accepts the main recommendations of the Millan committee's report, which was published in January. The Millan committee's remit was broad: to review the 1984 act, the definition of mental disorder, the criteria and procedures for detention and discharge from hospital and the role of the Mental Welfare Commission. Like other members, I pay tribute to the committee's work.

The Mental Welfare Commission described the proposals as an up-to-date and ethically sound basis for mental health law. We are pleased that the proposed mental health bill will be based on key principles of non-discrimination, equality, respect for diversity, reciprocity, informal care, participation, respect for carers, least restrictive alternative, benefit for the service user and child welfare. We expect those principles to be enshrined in the bill in due course.

I want to pick up on a few of those principles. Members have commented on the principle of reciprocity. The meaning of that principle is that where a society imposes on an individual an obligation to comply with a treatment of care, it imposes on itself—and on health and social care authorities in particular—a parallel obligation to provide safe and appropriate services, including on-going care following discharge from compulsion. That is why we are keen to embrace Nicola Sturgeon's amendment. It is essential that we see the policy as a framework that will allow a balance of care. When an individual is compelled to accept treatment, they have the right to expect that that treatment will be of the highest possible quality.

I return to the issue of compulsion. The proposed mental health bill will be based on the view that wherever possible, care and treatment should be provided without recourse to compulsion and should take the form of informal care, which should be given in the least restrictive manner and in an environment that is compatible with the delivery of safe and effective care. Where appropriate, treatment should take into account the safety of service users—mentally ill people—and others.

Provision for compulsion in the community is in keeping with the general trend of care in the community—people should live close to their homes and families. At all times, the compulsion debate should seek to balance the rights and needs of the service user with their safety and the safety of others in the wider community. Interventions under the proposed legislation must be likely to produce a benefit for the service user that cannot be achieved by other means.

The minister said that interventions or compulsions should be on the grounds of impaired decision-making ability. Why is that term preferred to impaired judgment, which is the term used in the Millan report, or incapacity, which is the term used in the Adults with Incapacity (Scotland) Act 2000? Service users should be as fully involved in decision making about their treatment as their capacities allow. They should be given support through advocacy or other means to allow them to participate fully. SAMH raised concerns that the Executive has dropped the right to advocacy that was recommended in the Millan report and replaced it with a duty to provide a range of advocacy services. I welcome the minister's comments, but I seek clarification on her intentions on the matter.

In the wake of the strategy for carers and the Scottish carers legislation working group, carers are recognised as deliverers of services and key partners in the provision of care in the area that will be covered by the bill. I welcome the important new right for service users and carers to request an assessment at the outset of mental health problems and at points of deterioration in their condition.

The policy statement makes it clear that the Executive accepts that, in many ways, the existing framework of emergency detention, short-term detention and long-term compulsion will be retained. However, the new approach will introduce more flexibility into the system with detention orders that are based much more on the needs of the individual and their care plans, rather than being, as the minister said, one size fits all.

Crucially, it will be made possible for the patient to remain in a community setting while subject to a community-based order. In the coming months, more detail will emerge on how we will do that. I echo Mary Scanlon's point about how that initiative will be monitored in the community, which is an important issue.

Key groups such as SAMH oppose the extension of compulsion into the community, question the evidence base for it and suggest that community-based compulsion could lead to service users being denied choice in the treatment that they receive. I hope that the principles that underpin the bill, the assurances that the minister has given and the support of the Parliament will ensure that that does not happen, but I look forward to investigating those issues with SAMH and others in due course.

We welcome the establishment of a new mental health tribunal system to consider the case for and against compulsion and to take into account the patient's care plan and individual needs. We welcome the fact that the tribunal will be a much more informal system than the present sheriff court system and will take away the sense of criminalisation that the minister referred to earlier.

The new system will involve people from a range of disciplines and patients and named persons will have access to free legal representation. Bearing in mind earlier comments about advocacy, it is important that within the tribunal framework people are given the opportunity to have a real voice in the judgments being made about their care. Where patients are able to make judgments on treatment or where their representatives can be consulted, it is essential that that takes place and that whatever advocacy services are required are available.

We believe that there is a need to pursue a discussion on the use of advance statements and we associate ourselves with comments made by others on that matter. I am sure that many organisations will have a great deal to say about the proposals in the coming months and that safeguards for particular treatments will be on their agenda.

We are pleased that independent second opinions will be required before treatment such as ECT and forcible feeding can be pursued without consent. However, I would like the minister to assure us that that—and other aspects of the legislation—will comply with article 3 and other elements of the European convention on human rights. I also ask the minister to outline how the proposals on treatment sit alongside the Adults with Incapacity (Scotland) Act 2000.

I pay tribute to the on-going work of the Mental Welfare Commission and its robust defence of individuals suffering from mental ill health. I welcome the review of its functions. I also note that the commission is concerned that the tribunal alone will be given the power to discharge patients from compulsion, although both the sheriff and the commission can do so under the present system. I will be interested to hear further comments from the minister on that point.

Today, we have begun the investigation of this serious matter. We will return to the planned legislation on a number of occasions in the committee and in the chamber. We all look forward to listening to and taking on board the concerns of interested parties to build on the policy statement, the work of Bruce Millan and his colleagues and the work that is being done throughout Scotland within the mental health services framework.

We believe that this is a welcome move in the right direction to deliver a mental health framework that is based on the principles of fairness, access to clinical service, and partnership between agencies, patients and carers, and which is within a wider human rights framework. We welcome the policy document and the support given to it throughout the chamber.