Introduction

In the Newsletter’s April 2014 issue comment was made about the draft Mental Health (Scotland) Bill (amending the Mental Health (Care and Treatment)(Scotland) Act 2003(the 2003 Act)) which the Scottish Government was consulting on. The final Bill was introduced into the Scottish Parliament on 19 June. Whilst detailed discussion is probably more appropriate as it progresses the following are some brief initial comments on the Bill as introduced into the parliament.

By way of a reminder, the draft Bill addressed some, but arguably not enough, of the McManus Review recommendations6. Some other matters raised by service users and practitioners in response to the Scottish Government’s own consultation on such recommendations were also incorporated7. The introduction of a notification scheme for victims of mentally disordered offenders was also introduced8.

Overall, the final Bill does not depart significantly from the draft.

Issues that remain unaddressed

The advance statements provisions have not been altered to reinforce these important expressions of individual will and preferences, in other words, autonomy, despite several consultation responses emphasising their importance. Nor have provisions to bolster independent advocacy been introduced.

It seems that the increased responsibilities for Mental Health Officers remain so important resourcing issues require to be addressed here9. Issues such as clarity regarding the use of covert medication and restraint, deaths of psychiatric patients and the ability of substituted decision-makers (in other words, welfare guardians and attorneys) to consent to treatment under the 2003 Act also remain unaddressed.

“New” provisions in the final Draft

It would be unfair to say that the Scottish Government has not taken any matters raised in responses to its consultation into account. Departures from the draft Bill that are relevant for the purposes of this Newsletter can be summarised as follows:

  1. Named persons

There is no further clarity, by way of a definition, provided as to precisely what is a ‘named person’. It will be recalled that in the April issue it was mentioned that there is a lack of understanding by many service users, named persons and even by professionals about the precise role of named persons10. However, the ‘default’ provision whereby the Mental Health Tribunal may appoint a named person where there is no one so appointed is to be removed although for individuals appearing before the Tribunal under 16 it may substitute another person to act as named person11.

The draft Bill provided for the removal of the current automatic right of a named person to be involved in Tribunal proceedings and a requirement that leave must be applied for to be involved. These are now gone.

  1. Removal of requirement for a second medical report in Compulsory Treatment Order (CTO) applications

The requirement for the second medical report has been retained. This is welcome in light of the consequences CTOs have in terms of an individual’s liberty and autonomy.

  1. Nurse’s holding power under s299, 2003 Act

The Bill retains the provision extending the maximum period for a nurse’s holding power12 from two to three hours. As previously mentioned, no justification was given for this in the consultation document which is 

disappointing given the implications this has for a patient in terms of their liberty and autonomy and the inability of a patient to challenge this. The comment in the Policy Memorandum13 accompanying the Bill arguably adds nothing to this either when it states “This additional time seeks to balance the need for flexibility to arrange for a medical examination with maintaining the need for minimum restriction on patients. This additional time seeks to balance the need for flexibility to arrange for a medical examination with maintaining the need for minimum restriction on patients.”

  1. Mental Health Tribunal: timescales for referrals and disposals

The proposal in the draft Bill that the Tribunal “must do its utmost” to comply with timescales within which it must deal with various disposal has been removed. In the April issue it was commented that, given the Articles 5(4) and 6 ECHR obligations on the Tribunal, the requirement on the Tribunal to comply with timescales should be imperative.

  1. Victim Notification Scheme

Concern was expressed in the April issue that the proposal in the draft Bill to extend the right for victims to receive information on offenders subject to compulsion orders may lead to discrimination14. Offenders subject to compulsion order have often committed only minor offences. The final Bill contains an additional provision that the right to receive information concerning an offender subject to a compulsion order applies only where “an offence has been perpetrated against a natural person”15. However, care will nevertheless still have to be taken that the effect of the operation of the VNS is not discriminatory.

  1. s268, 2003 Act – detention in conditions of excessive security in non-state hospitals

As was previously mentioned, the necessary regulations or legislative changes needed to be effected to ensure that the right not to be detained in conditions of excessive security can be effectively exercised given that Article 8 ECHR and, potentially, even Article 3 (with corresponding Articles 17, 22 and 15 CRPD) are likely to be engaged. The requirement for this was emphasised in the 2012 Supreme Court ruling in RM v The Scottish Ministers16. This was a ‘wish list’ item for inclusion in the Bill in several consultation responses.

The final Bill deals with the matter to some extent but not entirely. It clarifies17 who may appeal against excessive security for patients detained in a hospital other than in the State Hospital, namely patients detained by virtue of a restriction order, a compulsion order a hospital direction or a transfer treatment direction and provides some clarity regarding the definition of non-state hospitals. Otherwise, this is not progressed further and the regulations that the Supreme Court stressed were vital to make the right a  genuine right are still absent.

The Bill also reduces the time in which a relevant Health Board must find suitable alternative accommodation to a maximum of 6 months where the Tribunal has made an order under s.264 that a patient detained in the State Hospital is being detained in conditions of excessive security18. Currently, the maximum period is 3 months plus 28 days.

Conclusion

The final Bill remains fairly ‘light’ in terms of legislative change and leaves unaddressed and unacknowledged several issues raised in the McManus Review and subsequently19. It would also appear that the Scottish Government has decided on this occasion to body-swerve the issue of the UN Committee on the Rights of Persons with Disabilities’ General Comment on Article 12 CRPD (the right to equal recognition before the law) although this will have to be considered in due course. However, as stated, some matters raised during the consultation on the draft Bill have been taken on board.