DMH 393
Memorandum from
Scottish Deputy Minister for Health Services and Community Care
INTRODUCTION
1. Thank you for this
opportunity to provide evidence to the Joint Committee. The Mental
Health (Care and Treatment) (Scotland) Act 2003 ("the Act")
represents the culmination of a lengthy process by which the Scottish
Parliament has reformed mental health and incapacity legislation
in Scotland. These reforms have resulted in the passing of the
Adults with Incapacity (Scotland) Act 2000 and, more recently,
of the Mental Health (Care and Treatment) (Scotland) Act 2003
in March 2003. The provisions of the former Act have already come
into effect while the vast majority of the provisions of the latter
Act are due to come into effect in 2005.
2. The evidence contained
in this submission covers two subjects: firstly, the genesis,
principles and provisions of the Act; secondly, the processes
by which the Scottish Executive is implementing the Act.
THE ACT
Genesis of the Act
3. The Act is the fulfilment
of the Scottish Executive's commitment in its Programme for
Government: Making it Work Together[1]
to modernise the statutory framework for meeting the needs
of people with mental illness. In December 1998, the then Minister
for Health at the Scottish Office invited the Rt Hon Bruce Millan,
a former Secretary of State for Scotland, to chair a review of
Scottish mental health law. In January 2001, the Millan Committee
set out its recommendations in its report New Directions: Report
on the Review of the Mental Health (Scotland) Act 1984.[2]
In October 2001, the Scottish Executive published Renewing
Mental Health Law - Policy Statement.[3]
That statement set out proposals for a Mental Health Bill,[4]
proposals which largely accepted and built on the recommendations
of the Millan Committee.
4. The Millan Committee
consulted extensively with a wide range of people and organisations
with an interest in mental health legislation. The Committee issued
a number of consultation documents, as well as holding a series
of consultative events and oral evidence sessions, and visiting
services and facilities in Scotland and England. Once the Committee
had developed its preliminary recommendations, it issued a detailed
consultation paper to interested parties. As a result of this
approach which emphasised stakeholder consultation and involvement,
many of the Committee's recommendations reflected a broad consensus
among key stakeholders.
5. Wishing to further
the spirit of consultation and consensus within which the Millan
Committee had operated, the Scottish Executive established a Mental
Health Legislation Reference Group to consider and comment on
the recommendations of the Millan Report, particularly those which
were complex or contentious. The Reference Group represented user,
carer, service provider, legal and professional interests. The
Scottish Executive also sponsored a number of consultative events
with a range of stakeholders to enable them to comment on the
Millan Report and its implications for policy and practice. In
addition, the policy statement indicated that views on its contents
would be welcome.
6. In parallel to the
work of the Millan Committee, the MacLean Committee on Serious
Violent and Sexual Offenders was established in March 1999 by
the UK Government with the remit to consider experience in Scotland
and elsewhere, and to make proposals for the sentencing disposals
for, and the future management and treatment of, serious sexual
and violent offenders who may present a continuing danger to the
public.[5] The MacLean
Committee's report included proposals relating to mentally disordered
offenders. The relevant recommendations of that report were subsequently
incorporated into the framework of the Mental Health Bill.
Establishment of the
Act on the "Millan Principles"
7. One of the key recommendations
of the Millan Committee was that the proposed Mental Health Act
should contain a statement of principles. The principles which
the Committee recommended (which have become known as "the
Millan Principles") are set out in annex A of this submission.
8. The Scottish Executive
accepted the Millan Principles believing them to provide a sound
framework within which mental health legislation and service provision
in Scotland could operate and develop. The principles therefore
acted as the key policy driver in the development of the Mental
Health Bill, and they continue to do so today in the process of
implementing the Act. Sections 1 and 2 of the Act attempt to give
legal effect to these principles.
Overview of the Act's
provisions
9. The Act is without
doubt a lengthy and complex document. Its over-riding aim is to
put in place a framework for the care and treatment of persons
who have a mental disorder but who require that care and treatment
to be provided on a compulsory basis. Within that framework several
key provisions and changes from the preceding legislation should
be highlighted. The Act:
· provides
greater clarity and precision with respect to the criteria which
must be met before a person with a mental disorder can be made
subject to compulsory powers under the Act;
· establishes
a new forum (i.e. the Mental Health Tribunal for Scotland) within
which decisions relating to the compulsory care and treatment
of persons with mental disorder can be made, thereby transferring
to the Tribunal many of the functions currently carried out by
the Sheriff Court in this domain;
· expands
the role of the Mental Welfare Commission and places a duty on
it to monitor the Act and promote best practice;
· aims
to ensure that, where appropriate and practicable, mentally disordered
offenders are dealt with in as similar a manner as possible to
persons with a mental disorder who are not offenders but wish
some adjustments to reflect legitimate issues and justice and
public safety;
· places
a duty on local authority and Health Boards to secure the availability
of independent advocacy services in their areas to ensure that
every person with a mental disorder (that is, not merely those
who are being treated on a compulsory basis) has a right of access
to independent advocacy;
· confers
on patients a right of appeal against detention in conditions
of excessive security.
Definition of mental
disorder
10. The Act refers throughout
to a person with mental disorder. 'Mental disorder' is defined
in section 328(1) of the Act as including "any mental illness,
personality disorder, or learning disability, however caused or
manifested".
11. The Act's provisions
extend not just to compulsory measures in relation to care and
treatment but also to the assessment and provision of services
for any person who is or has been a user of mental health services.
The definition of mental disorder has been drawn widely to ensure
that no-one who needs these services is excluded from them by
the provisions of the Act. A person with a mental disorder as
defined by the Act will only be made subject to compulsory measures
if they meet the criteria for measures which are set out in the
Act.
12. The Millan report
recommended that the three categories of mental disorder (that
is, mental illness, personality disorder and learning disability)
should be defined further and that for the avoidance of all doubt
exclusions should be made to the three categories. The Scottish
Executive accepted this recommendation and, as a result, section
328(2) of the Act makes clear that "a person is not mentally
disordered by reason only of […] sexual orientation, sexual
deviancy, trans-sexualism, transvestism, dependence on, or use
of, alcohol or drugs, behaviour that causes, or is likely to cause,
harassment, alarm or distress to any other person, or by acting
as no prudent person would act".
13. It is not, however,
intended that a person who falls within any of the categories
described in section 328(2) of the Act but who also suffers from
mental disorder be excluded from consideration for assistance
treatment or services. Compulsory powers under the Act may be
invoked in respect of those people with mental disorder who, for
example, also have alcohol problems or misuse drugs. The exceptions
apply so that it is clear to all that a person will not be regarded
as mentally disordered by reason only of their sexual orientation,
deviancy, trans-sexualism, transvestism or dependence on drugs
and alcohol or by their behaviour.
Criteria to be met before
compulsory powers can be used
14. Before compulsory
powers under the Act can be used, certain criteria must be met.
These vary according to the order being considered (e.g. an emergency
detention certificate, a compulsory treatment order, or a compulsion
order). For a compulsory treatment order (the equivalent of an
order under section 18 of the Mental Health (Scotland) Act 1984
or under section 3 of the Mental Health Act 1983), these criteria
are:
(a) that the patient has
a mental disorder;
(b) that medical treatment
which would be likely to prevent the mental disorder worsening;
or alleviate any of the symptoms, or effects, of the disorder,
is available for the patient;
(c) that if the patient
were not provided with such medical treatment there would be a
significant risk to the health, safety or welfare of the patient;
or to the safety of any other person;
(d) that because of the
mental disorder the patient's ability to make decisions about
the provision of such medical treatment is significantly impaired;
and
(e) that the making of a
compulsory treatment order is necessary.
15. Criterion (b) concerns
the concept of significantly impaired decision-making ability,
a concept which has similarities to that of "(in)capacity".
The Millan Committee considered at some length whether a "capacity
test" should form part of the criteria to be met before compulsory
powers can be invoked. The Committee rejected the use of a capacity
test for a number of reasons. These are set out at pages 55 to
57 of their Report. They proposed instead that compulsory interventions
could only be justified where there is evidence that a patient's
judgement is significantly impaired as a result of mental disorder.
16. The Scottish Executive,
while accepting the Committee's view that a capacity test was
not appropriate, amended the Committee's recommendation with respect
to "impaired judgement" to "impaired decision-making
ability" as it was felt that impaired judgement was too narrow
and subjective a test which focussed on one aspect of making a
decision rather than the broader decision-making processes.
17. It should be noted
that with respect to a mentally disordered offender the criteria
for a compulsion order are very similar as those for a compulsory
treatment order. However, a mentally disordered offender does
not need to have significantly impaired decision-making ability
with regard to their medical treatment for a compulsion order
to be made.
Offenders with mental
disorders
18. The Act amends substantially
the processes by which mentally disordered offenders are cared
for and treated in line with many of the recommendations of the
MacLean Committee, as described above. It amends the Criminal
Procedure (Scotland) Act 1995 to give the courts a range of new
options in how they deal with people with mental disorders.
19. It is important
to note that the Act retains the effect of what is sometimes referred
to as "the Ruddle Act": that is, the Mental Health (Public
Safety and Appeals) (Scotland) Act 1999 which was passed after
the successful appeal of Noel Ruddle against his detention at
the State Hospital, Carstairs. (The 1999 Act will be repealed
upon the Act's coming into effect in 2005.) The Act ensures that
certain high risk mentally disordered offenders may continue to
be detained in hospital on grounds of public safety whether or
not medical treatment is available. It should be noted, however,
that this criterion is an "exit test" and not an "entry
test": in other words, under this Act a mentally disordered
offender could not become detained in hospital on grounds of public
safety alone.
IMPLEMENTATION OF THE
ACT
20. The Scottish Executive
is undertaking a considerable programme of work to ensure the
effective implementation of the Act in 2005. To carry out this
work, a Mental Health Act Implementation Team was established
within the Scottish Executive Health Department several months
in advance of the Mental Health Bill being passed. Early establishment
of this team facilitated a smooth transition between the team
responsible for the passing of the Bill and the team responsible
for implementing the Act.
21. Throughout the implementation
phase, we have been keen to foster the spirit of consensus and
consultation which characterised the work of the Millan Committee
and the passing of the Mental Health Bill. To that end, we have
continued to convene regular meetings of the Mental Health Legislation
Reference Group and its sub-groups as well as to consult widely
with all relevant stakeholders through a range of consultation
events and formal consultation exercises.
Establishment of the
Mental Health Tribunal for Scotland
22. A key element of
the implementation process has been the setting up of the Mental
Health Tribunal for Scotland. This body is being established as
a Tribunal Non-Departmental Public Body. A full-time President
is about to be appointed along with approximately 100 each of
legal, medical and general members from whom will be drawn the
members for each three-person hearing panel. It is estimated that
in the Tribunal's first year of operation up to 4000 hearings
may be held.
Completing the legislative
framework and drafting the Code of Practice
23. The implementation
of the Act requires the completion of a substantial amount of
secondary legislation as the Act provides for a large number of
regulation-making powers with respect to, for example, the cross-border
transfer of detained patients, the withholding of correspondence
or conflicts of interest with respect to medical examination.
Consultation exercises on the policy we plan to adopt with respect
to these regulations are now complete, and we plan to begin laying
these regulations before the Scottish Parliament over the coming
months.
24. The Act also requires
the Scottish Executive to prepare and lay before the Scottish
Parliament a draft Code of Practice before the Act is implemented.
We have developed the draft Code with extensive support from a
number of health and social work practitioners seconded to the
implementation team. We have also recently undertaken an extensive
formal consultation exercise on the draft Code of Practice and
plan to lay the finalised Code of Practice before the Scottish
Parliament in early 2005 well in advance of the Act coming into
effect.
Workforce implications
25. The Act has significant
implications for mental health services across Scotland not least
for mental health professionals. For example, it places additional
duties on Mental Health Officers (the equivalent in Scotland of
approved social workers in England and Wales) with respect to
a more complex application procedures for long-term orders. With
respect to psychiatrists, the workload implication of fulfilling
the role of medical member of the Tribunal panels alone will be
considerable. To meet these challenges, the Scottish Executive
is supporting work currently being carried out by a range of agencies
(for example, the National Mental Health Workforce Group) with
respect to the re-design of mental health services in Scotland
with a view to managing the workforce demands which the Act will
create.
Service implications
& Joint Local Implementation Plans
26. In 2003 the then
Minister for Health and Community Care, Malcolm Chisholm MSP,
commissioned an assessment of the state of readiness of mental
health services across Scotland to meet the challenges of the
new Act. The report showed that while there were some very good
services in many areas overall there was much still to be done
to be ensure that the new services and approaches that the Act
calls for are in place in time for its implementation.[6]
27. In response, the
Scottish Executive asked each Health Board to plan jointly with
the local authorities and other partner agencies in its local
area for the implementation of the Act. Each area was required
to submit a Joint Local Implementation Plan covering key issues,
namely: crisis response and 24 hr service availability; community
services; hospital services; range of therapies; workforce redesign;
organisational issues; resourcing & accountability. These
plans have helped local areas to focus on service developments
and on their state of readiness for the implementation of the
Act while all the time facilitating the dissemination of best
practice between local areas.
Funding
28. The Scottish Executive
has committed substantial resources to ensure the successful implementation
of the Act. The Financial Memorandum accompanying the Mental Health
Bill, published in September 2002, announced funding to local
authorities of £1.2m in 2003-04; £12.5m in 2004/-5;
and £13m in 2005-06 in order to meet the demands of the Act.
The Financial Memorandum also identified an estimated £6m
per year additional costs for NHS Scotland. The expectation is
that NHS Scotland will meet these costs from within overall uplifts
in their general annual allocations.
29. Since the passing
of the Bill, the Scottish Executive has committed additional funds
to the implementation of the Act. In 2003-04 as a result of the
Partnership Agreement, funds of £750k were distributed to
NHS Boards in Scotland for investment by the partner agencies
on implementation. A further £4.5m was issued on the same
basis in 2004-05, and further allocations at levels yet to be
determined will be issued in 2005-06. £2m capital was also
allocated to local authorities in 2004-05 and the same amount
will issue again next year.
Training/guidance/awareness
raising
30. In February 2004,
the Scottish Executive commissioned a training needs assessment
with respect to the wide range of professionals and other parties
who may require training or guidance on the provisions and implications
of the Act. The findings of this assessment have informed subsequent
training and communications strategies. For example, we are working
closely with the Royal College of Psychiatrists to draft bespoke
training materials for psychiatrists. Similarly, we are collaborating
with NES (NHS Education Scotland) to develop a wide range of training
and guidance materials aimed principally at the large number of
parties who, although they may play no statutory role under the
Act, require a considerable degree of knowledge of the Act's provisions
and implications (for example, nursing staff or A&E staff).
We have also funded the development of a wide range of training
materials for mental health officers.
31. In addition to training
and guidance aimed at professionals and other groups, we have
been keen to raise awareness of the Act's provisions among service
users and carers to ensure that they are able to exercise their
rights once the Act comes into effect. To that end, we have produced
a series of Mental Health Law newsletters and guidance booklets
on specific provisions of the Act such as the right to make an
advance statement and to nominate a named person.[7]
Several more such booklets will be published over the coming months.
CONCLUSION
32. While recognising
that many challenges lie ahead in the course of implementing this
Act, we are confident that the Act is a landmark piece of legislation.
It puts in place a modern and progressive framework for the care
and treatment of persons with mental disorders through balancing,
and protecting, their rights with the desire to ensure that they
receive the effective care and treatment they need and deserve.
The Act was born out of a strong spirit of co-operation and consultation
with stakeholders and, wherever possible, consensus. As a result,
it has been largely welcomed by stakeholders as was demonstrated
by the evidence given by a wide range of stakeholders to the Scottish
Parliament's Health & Community Care Commitment during the
Bill's Parliamentary passage.[8]
Similarly, a recent British Medical Journal editorial described
the Act as "ethically sound modern legislation with principles
supported by most stakeholders"[9];
and the Act has attracted attention from other European countries
also undertaking mental health legislative reforms. In short,
we believe that this is an Act to be proud of.
33. If the Joint Committee
wishes to receive any further details regarding the evidence set
out in this submission, please do not hesitate to contact us.
ANNEX A: MILLAN COMMITTEE
PRINCIPLES
1. Non-discrimination:
People with
mental disorder should whenever possible retain the same rights
and entitlements as those with other health needs.
2. Equality: All
powers under the Act should be exercised without any direct or
indirect discrimination on the grounds of physical disability,
age, gender, sexual orientation, race, colour, language, religion
or national or ethnic or social origin.
3. Respect for diversity:
Service users
should receive care, treatment and support in a manner that accords
respect for their individual qualities, abilities and diverse
backgrounds and properly takes into account their age, gender,
sexual orientation, ethnic group and social, cultural and religious
background.
4. Reciprocity: Where
society imposes an obligation on an individual to comply with
a programme of treatment and care, it should impose a parallel
obligation on the health and social care authorities to provide
appropriate services, including ongoing care following discharge
from compulsion.
5. Informal care:
Wherever
possible care, treatment and support should be provided to people
with mental disorder without recourse to compulsion.
6. Participation:
Service users
should be fully involved, to the extent permitted by their individual
capacity, in all aspects of their assessment, care, treatment
and support. Account should be taken of their past and present
wishes, so far as they can be ascertained. Service users should
be provided with all the information necessary to enable them
to participate fully. All such information should be provided
in a way which renders it most likely to be understood.
7. Respect for carers:
Those who
provide care to service users on an informal basis should receive
respect for their role and experience, receive appropriate information
and advice, and have their views and needs taken into account.
8. Least restrictive
alternative: Service
users should be provided with any necessary care, treatment and
support both in the least invasive manner and in the least restrictive
manner and environment compatible with the delivery of safe and
effective care, taking account where appropriate of the safety
of others.
9. Benefit: Any
intervention under the Act should be likely to produce for the
service user a benefit which cannot reasonably be achieved other
than by the intervention.
10. Child welfare:
The welfare
of a child with mental disorder should be paramount in any interventions
imposed on the child under the Act.
1 This document can be found at: http://www.scotland.gov.uk/library3/government/pfg-00.asp Back
2
The final report of the Millan Committee can be found at: http://www.scotland.gov.uk/health/mentalhealthlaw/Millan/Report/rnhs.pdf Back
3
This policy statement can be found at: http://www.scotland.gov.uk/library3/health/rhml-00.asp Back
4
A copy of the Bill as introduced to the Scottish Parliament in
September 2002 can be found at: http://www.scottish.parliament.uk/business/bills/billsPassed/b64s1.pdf Back
5
Further details on the MacLean Committee's remit and final report
can be accessed at: http://www.scotland.gov.uk/maclean Back
6
Dr Sandra Grant, National Mental Health Services Assessment:
Towards the Implementation of the Mental Health (Care and Treatment)
(Scotland) Act 2003. Scottish Executive, 2004. http://www.scotland.gov.uk/library5/health/mnhsaf-00.asp Back
7
These publications can be accessed at: http://www.scotland.gov.uk/health/mentalhealthlaw. Back
8
The evidence submitted to that Committee along with their final
report can be accessed at: http://www.scottish.parliament.uk/business/committees/historic/health/2002.htm Back
9
Rajan Darjee and John Crichton, "New mental health legislation",
British Medical Journal, 329 (2004) 634-5 (p. 635). Back
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