 Good morning and welcome to the 24th meeting in 2014 of the Health and Sport Committee. Usually at this point I could ask everyone in the room to switch off mobile phones and other wireless devices in order to minimise any potential disruption. I should also draw attention to officials and members of the public that there are officials and members using tablet devices instead of their hard copies of their papers this morning. First item on the agenda today is a decision to take item 3 in private, which is a consideration of our work programme. Can I have the committee's agreement that we take item 3 in private? Thank you. Item 2, which we now move to, is stage 1 scrutiny of the Mental Health Scotland bill. This morning we have one panel of witnesses, Dr Joe Moro, President Mental Health Tribunal for Scotland. Mr Colin Mackay, Chief Executive Mental Welfare Commission for Scotland, welcome to you both. To help us, I offer one or both of you to make some introductory remarks and then we would move directly to questions from the committee. I haven't really prepared anything, but generally I suppose to say something about the bill. First of all, thank you very much for inviting us to give evidence on this. The tribunal, just to be clear, is the body which authorises and makes decisions on measures of compulsion under the bill. The commission is a statutory body which we don't make decisions on detention. Dr Moro will be much better placed to tell you about the detail of how some of the processes of compulsory treatment operate in practice, but we do monitor the operation of the act and we may hopefully have some information we can give you about how the act is working. The commission also visits people who are subject to compulsion under the act, where we have concerns about people's welfare. We investigate that and we also publish guidance and advice on the operation of the act and particularly around ensuring that the operation of the act properly balances the ethical, medical and legal issues that need to be taken into account when making decisions about care and treatment. We have a particular responsibility for ensuring that the milling principles are promoted and upheld in the operation of the act. If you would like to briefly comment on the bill, I think that the commission's general take on this is that this is, as I think the Government has been clear, a relatively modest bill and I think that it's a helpful bill as far as it goes. It's got a number of provisions in it which will improve the efficiency and operation of mental health legislation. First of all, the milling report was a visionary report, but it was also a very carefully balanced report between the protection of people who are subject to compulsory treatment and an important principle that we need to ensure that people don't have to be detained or sectioned in order to get the care and treatment that they require. That was something that greatly exercised milling that we can't have a situation where in order to get a kind of gold standard of care or even an acceptable standard of care doctors have to force you to be detained. There are important aspects of the milling report and the 2003 act about voluntary care, particularly the duties on local authorities in sections 25 to 27 and the duties to promote advocacy. One of the concerns that we have is that those duties are actually quite strong and powerful duties and we are very much part of the scheme of the act and we do have concerns about whether or not those duties are being fully fulfilled in practice. I think that some of the other evidence that the committee has received, we tend to support that there is a general anxiety that some of the aspirations of the 2003 legislation are not being fully met. We also recognise that local authorities are under very great pressure and that mental health officers in particular are under pressure both from the increasing use of this act and the use of the Adults with Incapacity Act. While we don't have any huge principal concerns about the way in which the act increases the duties on MHOs, we do have real concerns that unless the Government invests in some kind of strategic review of the provision of MHOs, there is not going to be possible for the protections in the act to work effectively. It is important to remember in that context that 44 per cent of compulsory treatment orders are now in the community, so the role of local authorities is increasingly important. In relation to what is in the bill, we generally think that it is good and helpful. The concerns that we have are that there are a number of areas where timescales are being extended and we are sometimes not entirely sure of the justification of that in terms of timescales for statutory bodies to do certain things, whereas some of the timescales in relation to patients and their rights are being contracted. We hope that the committee will examine those provisions very closely. We think that there has been quite a long delay in sorting out issues around excessive security and the bill seems to be, as it were, taking a step back and saying, let's start again and try to get it right this time, which may be technically correct. We would be looking to see some clarity and some clear timescales on improving the appeal rights in relation to excessive security. In some of the areas, it is important to see the bill, where it delivers McManus recommendations, in the context of the wider implementation of McManus. I point to advanced statements. For example, there is a modest and perfect sensible provision in the bill to create a register of advanced statements in the hope that that will help to promote the use of advanced statements. We strongly believe that there should be a much greater use of advanced statements, but it's not going to happen just by that measure. It needs to be something where there's really a concerted effort to look at what the barriers are, why people don't use advanced statements and helping service users to use them, and generally to advance the extent to which service users have increasing control and ability to negotiate and participate in decisions about them, even where they may have an impaired level of capacity or understanding. If you want me to give an opening statement, I can, but I'm really very keen that we get questions from the committee that might be of interest to them. In a very short opening statement, I would say that the tribunal is there primarily to administer the justice within this particular arena. The second thing I'd want to say is that, throughout my presidency of the tribunal, the focus has been on the patient and actually the patient's participation, and these are often what were referred to as the million principles. As for the bill itself, in general terms, I think it's a good thing. It states out in the policy objectives that it's there to improve efficiency and effectiveness of the mental health system in Scotland, and I think it will assist in some of the amendments that are before us in actually making that legislative framework much more efficient and effective, and hence much more focused to assist the patient in that process. Secondly, I think there's some minor technical amendments going on that are well overdue for those of us who get ourselves into a chair where we have to deal with technical issues around legislation, so that will be welcomed. The other thing that I welcome greatly is the creation of the victims notification scheme. As president, I have to sit on a large number of compulsion and restriction order cases, which there are often victims involved in them. To see the process of victims before the tribunal and its effectiveness is something that has been quite moving for me, but also very significant in providing a humane system of mental health law, and as such the creation of the scheme is something that I greatly welcome. The only thing I would want to do by way of explanation is for the committee, and I'm sure they do understand that the issue is about our support for the extension of five to ten days in terms of the period between a short-term detention and a hearing. I know there's developed a number of views concerning this, and it arose initially out of the number of duplicate hearings that took to get a decision resolved. I've worked away at that, and that's now eradicated as a real serious issue for the tribunal. The tribunal's support of the ten-day period is to allow the patient and the named person more time to prepare, so that's where we're coming from there. Often a patient will receive an application for a compulsory treatment order at the end of a short-term detention, and they have five days to instruct a solicitor to get an advocate put in place and arrive at the hearing. In many cases, by the time the named person who has a very significant protection within the system is engaged, it's day three, and we find that often hearings are going off to allow a preparation for the patient and named person, so that's really where we're coming from on that issue. I will continue to work to improve the number of multiple hearings, and I think that at one stage we were down to only 20 per cent went to a second hearing, and there was a variety of reasons for that, but I do think that there's evidence now available to us to suggest that that wee bit of time will allow a more mature thought with a patient instructing solicitors, instructing advocates and also obtaining of the patient's named person's involvement in it. That's where we're coming from in there. There was suggestions that there was no need for it made to me because the tribunal had done a good job at getting the number of multiple hearings down. That's not where I'm coming from on that. That's a separate issue altogether. The efficiency and effectiveness of the administration of justice within the tribunal is something that I'm committed to and will continue to actually progress as part of the improvement mode of the tribunal focused on the patient. The issue of the 10 days is to help us to further focus on the patient's involvement. I think that you need to bear in mind what's going on at this time as well, that the patient is, until through the tribunal, mentally disordered, so it's quite a stressful situation to come to a tribunal. It's also stressful for a patient's carer or named person to come along and that wee bit time for consideration is really what this is all about now in terms of us supporting it. As I've said on regular occasions, I'm in your hands on this matter, but it's not to do with the efficiency of the tribunal. It's to do with the provision of actual time for the patient. In general terms, that's where we are with regard to the actual bill itself. I never know what to say about these things, but it's probably time that we had this tidy up with regard to the act because there's lots of practice that's gone out there and lots of development under the 2003 act. It now requires that this kind of level of actually focusing and tidying up, so that's why I welcome it. Thank you, sir. Thank you both for that. We go directly to questions. Richard Simpson. Can I just ask a very specific question in a general one, or would you rather have stuck to the general one at this point? Just to clarify the issue that Dr Morrow raised, do you feel that the act, as it's now proposed, actually gives that power to the named person, carer or independent advocate to seek an extension to 10 days? Who is it that will be able to seek that extension? Is it the tribunal, the RMO? On the principles that you've laid out, I really am much more comfortable, but I want it to be clear in the act that it is for the named person, carer or independent advocate to say that I needed more time. In reality, the 10 day period will be there in law, so that will allow us to have that period to actually get all of that stuff put into place that you're talking about. In practice, I would intend to actually intimate the hearing as soon as practically possible. That involves a wee bit of work with the patient's advocate and with the named person, so that we're not just a day short to getting everybody lined up and then having to put it off for another period. I also welcome in terms of the bill the idea that this could come off any other period of detention. I have no desire for a patient to be detained any longer than necessary, and there are suggestions that it could come off the overall period of detention or off the period of any interim. The difficulty that we have now with the legislation is that if we have to put a hearing off, then we're allowed to put the hearing off for up to 56 days over two periods, so these are called interim orders, and that radically can extend the period of detention simply because we're not at a stage of preparedness in relation to the named person or to the patient. Your anticipation would be that if we do get this right, that the use of interim orders in order to just take the thing forward would actually be reduced. You'd get a more definitive result to either detain or not detain. It's back to an old mantra that the Minister of Justice is getting at right first time. It's done in a different setting, but I think that when you're dealing with someone's mental disorder, dealing with the suspension of their liberty and dealing with forcible medical treatment, which must be at the highest end of any interstate intervention, we need to do it as quickly as possible and not to drag it out any longer than necessary, so that would be my views, sir. Richard, I would like to offer the committee given that we're focused on this issue, so we can move on. It might be useful to see if any committee members have got any supplementary strictly on this issue about the tribunal. Are we all satisfied that it's been explored and that we've got good evidence about the motives that are set? Cy has a comment because the NWC had a bit in their submission about it. Thank you. We did take a slightly different view in our response and I think that was very much on balance. We do recognise and agree with the wish to reduce the number of interim hearings and repeat hearings because we know that's extremely distressing for the patient and for the family. The more hearings go on, the more likely they'll be disengaged from the whole process. We're more persuaded of the argument that if this will allow the service user or the patient to prepare and to get legal advice and to get a medical opinion in order for the matter to be dealt with at the first hearing, then that's a good thing. Against that, I suppose that we have a nervousness that this 10-day extension is automatic and although I have great faith in Dr Morrow and his administration of the tribunal, in terms of just general practice, there's always a risk that when you stretch out timescales that people start to work to the new timescales. It's effective in that sense for everybody, meaning that it's quite a long time before a decision to detain you and give you compulsory treatment, potentially forcible treatment is reviewed. We have a nervousness about that and I guess what we would like to see if Parliament does decide to meet this extension is I suppose some commitment to making sure that the good outcome that we want, which is far fewer interim hearings, actually happens and possibly a provision that if that doesn't happen or it turns out that there are other negative consequences that that could be scaled back again. There might be ways in which that could be done to allow the timescale to be reduced by order, but at the moment we're not sure that the case has yet proved. I think that the committee might want to, I don't know if they're taking evidence from some of the legal bodies that have responded like the Law Society in the LSEM and I think it's interesting that they've said they don't welcome these although you think if it was to give them more time they would welcome it. So I think it'd be interesting to test out what their view is on that. I should have declared my psychiatric connections and my SAMH connections, but the SAMH have proposed a sunset clause which might satisfy Colin McKeith's mental welfare commission if we test it and try it but have a sunset clause then that might actually be a reasonable way to proceed because then you would have a review by Parliament. I think something like that which would make sure that, as I say, the things that we want to achieve happen and the things that we don't want to achieve don't happen would be helpful. Talk to him on, O'Hean. The only thing I would say is that there's absolutely no evidence in terms of the tribunals practice that we've ever been delayed dealing with a case where we could move it forward. In terms of extension to the 10 days, I would always give you a commitment that I will work extremely hard and focused in making sure that that's delivered for the patient as soon as possible and if you look at the results of the tribunal in terms of the reduction of multiple hearings or intrams or adjournments over the last six-year period it's been radical and I'm committed to that because it's not because I'm committed to it for some kind of structural reason or legal reason I'm committed to it because it's the best practice I can provide for the patient who's mentally disordered that appears before the tribunal and administering the justice system for it and all the fears and the anxieties that people talk about are not evidenced by our practice within the tribunal at present. So that's what I want to give assurance to. It's not about making it more comfortable for the tribunal. It's about getting it right for the patients in terms of the procedure and that's why I'm supporting the extension to 10 days. Bob, I think you've got supplementary on this. I forget any others on this specific before we move on. Bob, you've got final supplementary before we move on. A couple of very brief little questions that I'm very sympathetic to the proposals, but there's one or two things that I want to check, for example. If someone's on a short-term certificate, I'm just wondering as things currently stand, if say after 23 days as it would be currently, whether or not because it's currently a five-day extension that's permissible, after 23 days, is it usually pretty clear about whether or not you want to apply for another form of order? Another point I'm trying to get to is what is it about 28 days in the first place? If someone's going to a tribunal for a more meaningful extension or looking at what the disposal should be, surely after 23 days mental health professionals should have a pretty good idea. So, within the 28 days, if you know after 23 days you've already got that information and if it's a 10-day extension, in some cases, after 18 days, does it become quite clear to some mental health professionals that an extension is going to be required? I'm just trying to get beneath the numbers. Why is it 28 days in the first place, I think, would be helpful to know? I can't answer that, but Colin might be able to in terms of, that's what's in the act, it's 28 days. What I can tell you about the practicalities around about it is that between roundabout day 23 and day 28 is when we start getting the applications in for compulsory treatment orders. That's just as a matter of practice, but you can never hold it to every case. Sometimes they come in much earlier, sometimes they come in right at the end of the 28-day period. When I've attempted to try to find some reasons for it, the medical people tell me that it's really about the assessment process. They require a piece of time to do a proper medical assessment and they've suggested to me, although you couldn't really hold it as a rule if that's what you're looking to, that roundabout three weeks is necessary to do an initial assessment. In that fourth week, which would be day 21-28, the discussions with the multidisciplinary team are made to whether we continue towards compulsory treatment order. I think I would generally reinforce that. I have a legal background rather than a medical background, so you might want to take some of this from some of the medical people who might be giving evidence to you, but that's my general understanding as well that it will vary. Obviously, some people may be in recurrently and it will become clear much earlier on if you know the patient already, what's going on and that their situation is deteriorating, they're going to need a longer term of stay, but often it will take about three weeks or so just to get a sense of is this going to be required as a to you. Very many orders will not go beyond the short-term 28-day order. It's been 28 days. It was 28 days in the 1984 act and the 1960 act, so it's a long-standing period which I think is deemed enough time to make an assessment. I think that what's more challenging now is obviously that the tribunal does require a more detailed proposition to be put to it than the old Sheriff Court did back before the 2003 act, so we recognise that there are quite a lot of pressures on both sides to get this stuff ready at the end of that 28-day period. That's helpful because we get a bit of agreement between the witnesses that 28-day is not plugged out of thin air, it's based in its practice built up over the years of what's needed. That's helpful. The other figure that Dr Morrow gave was that 80% of hearings don't lead to a duplicate or multiple hearing now. That was one crazy month, but in fact it's in between 20% and 30% each month go to a second hearing, but the best month we've had is 20%. The best month is 20%, but it's between 20% to 30% on average, depending on a good or bad month. In terms of that 70% to 80% that don't require a duplicate hearing, are you content that family named persons have the opportunity when there isn't a second hearing to have their views known? So are you content that when you talk about 80% or 70% to 80% in that case then you're completely content that families named persons have the full opportunity to make their views known with the vast majority of cases? I wouldn't say that I was completely content because in fact I don't know the answer to that question because I don't hear every case myself personally, but what I do know is that every process has been put into place that's possible to engage with the family and with the named person. Some named persons are automatically appointed because of who they are in relation to the relationship to the patient but don't really want to be the named person, so they may not engage. Sometimes the named person doesn't want to have someone, so the patient doesn't want a named person. What I can tell you, probably from my own experience, of the cases that I hear, I'm content that the families named persons who come before me have often had an opportunity to engage with the process. That's the clear thing, they've had the opportunity, you can't force to engage in the process but they've all had a clear opportunity for that 70% to 80%. I wonder if I might just explain to you though that all of our cases are not on short timescales, it's only the compulsory treatment orders at the initial stage. Around about 50% of our cases are what are commonly called two-year reviews, so there's a much longer lead-in to them. Often people are in a settled position and that allows much more time to engage with families and named persons. It also means that it's a much longer time of which professionals may have been working with the carers and the named persons. It's only in those ones that go from short-term detention to compulsory order that we've got this short timescale, it's the only real timescale we have in the act. It's that group that we're trying to tackle in terms of the extension. That's the group of patients who are often, and again I don't like talking generally, but are often most unwell. So there's a difficulty there. That's fine, thank you. Thank you very much. Thank you, thank you, thank you Bob. Richard Lyle, please. Thank you, you can do that. Mr Mackayn, you're opening the march, he actually touched on the point I wanted to question you on, and I welcome Dr Morrow's viewpoint on this also. Section 2 of the bill would insert a new section into the 2003 act, which sets out new duties for mental health officers, including submitting a written report to the tribunal when the tribunal was required to review a determination about compulsory treatment. Your commission, the Mental Health and Welfare Commission of Scotland noted that it would be concerned if large numbers of additional MHO reports were required. The commission also estimates, couldn't you tell me your estimates regarding the number of additional reports that would be required, your concerns about the workforce and the capacity of MHOs to do these sort of reports, and also the viewpoint of the tribunal in regards to that? First, on our concerns, in principle we love mental health officers' reports all the time, but the reality is that they have other things to do, and there are other very important duties that the mental health officers or social workers have to do, and sometimes we have to balance the wish for MHO involvement with the kind of practicalities of that. Our difficulty in finding the figures is that we can't quite reconcile what's in the policy memorandum with what's in the bill, because the suggestion that there would only be a few reports seemed to be if it was particularly cases where the MHO disagreed with the RMO. In those cases, we would very much agree that the MHO should be saying, well, why do I disagree with the RMO? Those would be a very small number of cases. The two-year review cases, which the bill seems to suggest, would also require an MHO report, where again as a principle we would have no problem with that. We think that it's of the order of about 500 cases a year that that would involve. We just think that that is just going to place increasing pressures on MHOs. If I can say a little bit briefly about what those pressures are, a lot of the pressures derive not just from the Mental Health Act but from the Adults with Incapacity Act. We will be publishing in the next few days our statistics on monitoring of the Adults with Incapacity Act. There's been a pretty consistent year-on-year rise in the use of guardianship applications under the Adults with Incapacity Act and they place duties on mental health officers to prepare reports and to supervise guardians. The numbers are really quite startling and local authorities report long delays in preparing reports for private guardianship cases. In relation to this act, we're also going to publish our statistics in relation to the use of this act. I'm just trying to find out over the next few days. There's been substantial decrease in the number over time and the number of social circumstances reports prepared, for example, where a short-term detention is being sought. We don't think that there needs to be a social circumstances report in every case, but Glasgow, for example, is now down to only 14 per cent of cases where they prepare a social circumstances report. There's also been a 5 per cent fall in the number of cases of emergency detention where an MHO has consented, as ideally they should. Our worry is that the system has already started to come apart at the seams of it. What we've said is that there's not so much about the provision of the bill. This is about the Government looking at the workforce strategy for recruitment and retention of MHOs. They need to get serious about some way of ensuring that there is a degree of MHO cover that is necessary for the act to work effectively. Has there been any off-hand tribunals that have not been able to go ahead because reports have not been submitted timely? You might allow me to say, and I get teased for saying this by lots of professionals who think that I'm sweeter than I am, which is that I think that the MHOs are the stars of the mental health tribunal system. We could not work without them. They're the ones who actually co-ordinate and make a whole lot of things happen. After this committee I'm going off to speak to MHOs in Pullman College and I'll be telling them that. Until the day I retire, I'll get up and tell them the stars of the system because they hold it all together. They also bring a dimension that's essential for us to understand the context of which we're actually detaining people in. In general terms, if we have no report, we often have the MHO there. The MHO gives oral evidence before us and they are very committed to trying to turn up at the tribunals. We have very little non-attendance and it's often holiday or the reasons that any of us would not attend and they provide reports for the tribunal. The other thing that they do is that, while they have distinct and independent functions in the tribunal, they participate in the multidisciplinary teams. They've already often contributed to the annual report or the annual review or the statement that's come before the tribunal. In general terms, from the tribunals point of view, we have an effective system and provision from the MHOs. In moving out the tribunal setting and probably bearing in mind that we are just set up for that judicial purpose, I recognise the pressures that Colin Mackay's referred to with regard to the Adults Within Capacity Act and the work that's done there by MHOs. If I could just add a bit, another piece of helpful data that's just been published is the Scottish Social Services Workforce Data, which has just been produced by the SSSC. Among the statistics reports, the number of practicing MHOs decreased by 3.4 per cent last year. A third of MHOs are 55 or older, so it's an aging workforce. The number of MHOs on out-of-hours rotor duty is at an all-time low, and that maybe has something to do with some of the issues around emergency detention, because often that will happen in the middle of the night or whatever. There appear to be difficulties sometimes in accessing MHOs in those kinds of cases. I'll give you—I've said this many times before—that I previously worked with the out-of-hours doctor's service, and I had two occasions where we had to wait for a mental health officer to attend, and I actually took whilst they were on standby, they'd taken a couple of hours to come along. Do you feel as though the system of the service is under pressure at this moment? Yes, and we say that it is under pressure. It's not that it's collapsing, but it is under a very severe strain, and local authorities are having to balance some statutory duties with very strict timescales with some other things that they would like to do but often can't. We think that the whole system needs to be looked at. It's not just about money, there are issues about what training you need to do to meet MHOs, how you recruit them, how you incentivise people to want to be MHOs. There are all those meeting-potatoes workforce issues that need to be looked at to make it attractive for social work professionals to want to become MHOs and to make sure that they are able to do an effective job when they are in post. Do you feel as though we are doing enough to attract people to the profession? The social work profession? Yes, to become an MHO. I suspect not. I think that it's quite a commitment to choose to become an MHO. The training requirements are quite extensive. It isn't necessarily a huge boost in terms of your career or your salary prospects, and one concern that some local authorities have is that if they invest in MHO recruitment, the MHOs will then go and work for another local authority once they're recruited. A lot of those are very practical issues around making it attractive, and I think that at the moment it's probably not an attractive enough option. Rhoda Grant, please. Can I just ask a short sentence from the back of that one first? Just as you were talking there about MHOs and the increase in the time that a nurse can detain somebody before an MHO is present, I cover the highlands and islands, lots of small islands. Wondering if it's sufficient time within the legislation for a nurse to detain if there is a shortage of MHOs, how quickly can we physically get someone there? That's a tricky one because, again, you're balancing, I suppose, two desirable things. One is that the period of the nurse holding a patient before a decision is made about detain should be as short as possible. On the other hand, ideally, you'd want both the doctor and the mental health officer there at the moment. As you'll know, the power is to hold for two hours and then, if the doctor arrives within two hours, you can detain the person for a further hour while the doctor makes an assessment and decision. The bill proposes that three hours would be the new time limit and the commission have said again on balance that we don't support that because we think this is potentially a quite distressing situation for everybody if a nurse is in a sense physically ill. We're not really sometimes holding a person until a doctor can come and examine them. While we recognise that it would be good if more MHOs came out, I think across the piece we're not sure that just extending the two-hour-three limit to three hours is going to make the difference. I think that in some cases they were never going to come out anyway because they weren't available at all. On balance, we wouldn't support extending the time limits. As we said in our evidence, the evidence at the moment is that doctors can attend even in remote areas. There doesn't seem to be a huge concern that doctors can't make it within the two-hour period. We would like MHOs to be able to make it as well and there may be things that can be done in terms of systems and on-call systems and so on that can help that. I don't think that we would support extending the time period simply in the hope that that will increase the number of MHOs participating in these cases because we think that the numbers will probably be limited. It's just that in a lot of rural remote areas we're now seeing out-of-hours care being provided by nurses. There are no GPs on call at any point. That's happening in Harris and many of the other islands as well, where nurses are the person that is there providing out-of-hours care. I think that the nurses' holding power would typically be when people are already impatient. This is about a person saying, I'm not staying here, I'm going, and the nurse is saying, you'll have to wait here until a doctor comes to examine you because we think that you're not well enough to go out on your own. I think that it's a slightly different position from nurses providing care within the community. I'm not sure how often they would use the nurses' holding power if that's the kind of situation that you're describing. My main question is about named person. There are concerns about reverting back to the 2003 bill if someone hasn't either stated their desire not to have a named person or indeed appointed a named person, and that's causing concern. There's also concern on behalf of families and carers that they may not be involved because the person doesn't want them to have access to their medical records, which is a fair enough comment. How do we balance all those needs and make sure that we get it right for the patient at the same time? Well, I mean, Dr Morrow will be able to say much more about how this operates in the hearing, but our general position within the commission is that we're broadly supportive of what Mike Mann has said that people should choose to have a named person and that it's something that carries with it as a significant amount of information will have to be passed to that person. We're about to produce a report on the operation of the named person system, which we'll share with the committee when it's published in the next few days. Generally, we find that for a lot of relatives it is quite a confusing and distressing experience. Sometimes the first they hear about this named person role is a bundle of papers that comes through the letterbox sometimes with very personal and sometimes distressing information in it. We agree that the current system isn't really working and we probably should so far as the named person role is concerned move towards a situation where if the patient wants one, they'll have one. I would do much more to explain to the patient and indeed to the named person what the role involves and how they can participate effectively in the hearing, which goes back again as opposed to the importance of the role of the mental health officer in actually leasing with the family and indeed the role of advocacy. But I do have to say, although we generally support that, we do worry about carers and families, particularly where the person may be so unwell, they're not really able to say what they want or whether they want to appeal or whatever. And there are already provisions within the tribunal that carers and family members can participate in the tribunal, but they don't have the formal rights, for example, to appeal that a named person has. I know that some of the evidence from carers organisations has suggested that carers should have a right of appeal, particularly if the patient, the person is not able to do so themselves. I think that there is something perhaps in that, that if we're going to take away the named person role, there might still need to be more done in the legislation to allow carers and family members to step in the shoes of the patient where the patient is really too unwell to make those kind of decisions for themselves. In practice, it would be fairly well established that, as far as the family and carers can be integrated, the overall outcome for a patient within a tribunal setting is higher if we can get that level of participation. The other thing that many of you will remember is that under the old 1984 act there was a special role for the primary carer and the named person in a way sort of developed that role forward into the 2003 act. The difficulties that have emerged are really around the patient having no say in who that named person is, if someone can be identified because it's almost an automatic procedure in law that you work through relatives and they become the named person. The patient has no say in that, and the named person may not have any say in that other than to say no to it. You've got a situation where there may be highly sensitive material that may or may not be of assistance to share with family members who are named persons, kicking around in a tribunal setting where we're obliged to serve that material onto the party. The new provisions allow for a much more proactive engagement by the patient in the choosing of the named person and the idea that someone who is going to be a named person has to buy into the process. Let me just talk personally about this. My mother had long-term mental disorder and I was her primary carer under the old system. I simply did not want as a young man to receive the material that I received on that. I didn't want to know that about my mum. I knew that she required care. I knew that she required me to be engaged in the process, but the detail was quite... I wasn't even experienced enough at that time to understand what that detail meant as a young 20-something. You can see the role reversed. If it was a son or a daughter and a mother or a father, the son and daughter may not want the mum and dad to know. At the moment, there's almost a compulsion that that material has to go out. I'm not sure it's actually the best relationship that exists in terms of getting family engagement and carer engagement in the process. The proposals here for me seem to me to be wising up the system, in a sense, in response to what the patient say and also what the named person say, that there's much more buying into it. However, I would not want to say that the named person does not have an absolute critical role in this, because the named persons are often people who will stand up for the patient in a way when they're at most critical. In most vulnerable stage, with a context that actually helps the whole tribunal process to understand where to go next. It is important to name persons' roles important, but it's also important to get the right person and also to get the relationship right between the patient and the named person so that, in fact, it isn't compromising ongoing activity as well. I mean, I suppose if I go back and I apologise, I don't make no apology for actually talking personally, because I think it often puts the points through. I still have information in my head about my mother. I just wish I had never been given by the doctors. You know, and that would meant I would have cared for her any less or responded as a principal carer any less. And I think it actually changed the relationship. And therefore, I think that's why we need to look very carefully and sensitively about the interplay between patients and named persons. My understanding is that the act allows a more proactive approach, but if someone hasn't taken that proactive approach, it goes back to the 2003 regulations, which goes back to the case in point. Do we maybe need to find a different way than reverting back if someone hasn't actually expressed the said they don't want to name person or indeed have named a person? We maybe need to look back at the role of family and carers so that they have input but maybe not the level of information that you describe so that you're protecting someone's privacy but also allowing someone's nearest and dearest to express a view and maybe not represent that person but represent what would be in the best interests of that person. This is the bit I find hard because obviously I'm here in a judicial capacity, not in a kind of general policy capacity, but I think that in fact the outcomes judicially are absolutely more positive for a patient when the family is engaged. And I think that we need to seek to get proper ways of actually doing that. I was recently dealing with a hearing not far from here involving a patient whose mother, if she wasn't there and put in the input, would have missed very significant points both for the patient and for the tribunal in terms of its decision making. I think that there is merit in actually getting this right and having a look at how families are involved and certainly the engagement of families in the overall care and treatment of a patient as a matter of principle for me is solid. It doesn't always work and we all know complexities of families but it is a solid principle to work on and has good outcomes both judicially and I think in general terms for a patient in the long term. I think that I would just generally agree with what Ms Grant has suggested that the name person role isn't quite right to do what it is that we need to do but we do need to find a way both to make sure that people's insight and knowledge of the person is as it brought before the tribunal where that's appropriate and also where they can sometimes if the person, if you're talking about a person with profound depression or a florid psychosis really isn't able to say well I want to exercise certain rights, sometimes it might be appropriate for a carer to be able to do that. I mean I know there are provisions in the legislation for a curator, I'd like them to be appointed where a person can't instruct legal representation for example but you can only have a curator once the process has already begun. So you know if there's an issue of somebody else wanting to actually say on behalf of the patient I want to challenge that order it's difficult for that to be done. So I think that that's the balance we need to strike is allowing those things to happen so that the nearest and nearest can have a say particularly where the person can't make those decisions for themselves but without all the baggage that goes with the name person. Colin Keare's got a supplementary on the name person, I mean if anyone else has around that theme then I'll take those before moving on, Colin. OK, thank you, convener. I have every sympathy with your view on the name person aspect although not in terms of a tribunal I've been there myself and it can be torturous in parts. So thank you for bringing forward your own experience because it did sort of ring a few bells for me about 15-16 years ago. Really the difficulty and I think you probably mentioned most of the difficulties is particularly for those members of the family who or member of the family who's been a name person doesn't necessarily want to go into the difficulties in understanding the problems of whatever part of mental health it is. The sake of argument a hereditary thing that maybe they're blocking off their own possible future difficulties shall I put it that way. And it's really just a case of at what point when there are responsibilities as the name person does somebody have to sort of come back and say well actually this is not right for the person you're caring for but there's a non-acceptance shall I say. Can we get through that in such a sympathetic manner that it doesn't look as if it's a system overwhelming the person who's the name carer and of course the person we're dealing with ourselves. I mean a quick response to that and it's a long complicated set of relationships that you're describing there. There's often very good positive work done between the professionals prior to a hearing and often these things are brought out prior to a hearing and so the MHO and the responsible medical officer will raise these issues in a very sensitive and appropriate way to try to kind of nurse the situation forward. The other thing is that while we are a judicial body, my thrust has been to make it really as sensitive a process as possible so often these things are aired at a hearing so people will talk about the difficulties of actually being the name person and when it's appropriate and when it's not appropriate. And then the final thing to say is that we do have a very rarely but sometimes used mechanism of revoking the named person because it's become entrenched and it's obviously the professionals have taken a view that it's not in the best interests of the patient and they are always hard because it's very rarely that any carer would have other than focus on what they think. So there's a whole number of things that go on but in practice I'm not aware of too many difficulties in this area and as I say we do three and a half thousand hearings a year so I'm not actually aware of many difficulties and a lot of it's because of the highly professional input that's put at an early stage. The other thing I should talk about in terms of affirming is the excellent work that the advocacy services do in Scotland. Underrated and certainly they do a lot of relationship work in one, undervalued sorry not underrated I think I rate them very high but undervalued because they do a lot of that kind of stuff that you're talking about running between two parties to assist the communication to take place. So there's a whole lot of bits of the system that actually help it not come into a conflict. Just very briefly I think a lot of this is to do with the quality of the communication and interaction before the hearing and some of it's about the mental health officers and the other professionals having the time and space to have a proper engagement with the family rather than just serving papers being served on them and I would endorse what Dr Morris says about advocacy and coming back to one of the other themes about the 2003 act that advocacy is a crucial safeguard there in terms of facilitating that conversation about do you want your spouse or your parent or whatever to be your name person that's a difficult thing to make and you need somebody to help you make that and help you once you've come to a view make sure that that view is heard. The importance of ensuring that advocacy is actually available I think is crucial and I would include in that advocacy for carers as well because often they will require help. Sometimes the service user may know the system better than the family well this may be a completely new and bewildering world for them so I think carers advocacy is a very important part of the mix too. Richard, does the tribunal have the right in the event of a name person not being appointed to require the appointment of an advocate? We don't have the right to do that but in most cases a patient has the right to have an advocate and we would suggest that that was the route to go down. In practice? In practice the advocate is often appointed or someone else is appointed. I know and I've got my eye on the clock but we've also got to be conscious that we don't have so many layers of representation for the patient that the patient gets smothered underneath this because the MHO has an independent role for the patient. The RMO has an independent role and caring role. The patient can have a solicitor, the patient can have an advocate, the patient has a name person, the name person can have an advocate or a solicitor. The trick for the tribunal is to provide all the protections that are required to do our task but not to smother the patient's voice in this layer upon layer. It's one of the options that can assist a patient. I'm just concerned that the decision has now been made that the person has a right to say, I don't want a name to person at all and that's not going to be overruled but in those circumstances under the new proposal would the tribunal have the right to say beyond suggesting an advocate? Would they have the right to say in this particular case that it really is critical that we have an advocate? Do you want that power? As I understand the law at present, no, we don't have that power. I haven't thought about it but I think there will be a lot of implications to that including resource and availability and a variety of things that I would need. If committee want me to address that, I could give you a response in seven days to my thoughts on that and I would take on board to, it wouldn't be a response that would necessarily be about the administrative justice but I would take on board to negotiate with Colin on that. I've never thought of that particular issue. If that's your, if you want that. I'll take on board to write right here and negotiate with Colin on that and we'll probably do a joint thing, I don't think that we've too difficult to handle. Thank you for that. We've got another couple of questions. Eileen McLeod, please. Thank you, convener. Section 21 of the bill, it deals with registering advanced statements and also places a duty on the commission to maintain a central register of advanced statements. Most of the written evidence of the committee received were supportive of those provisions but some concerns were raised regarding privacy with this register and obviously advanced statements can contain highly personal information that's often rooted in very traumatic experiences. I just would be interested in your views, Mr Mackay, of how the commission, how you think, how you consider that the commission can ensure that privacy will be maintained. I mean, I know that we've, you know, Sam H, for example, has proposed that the commission register, you know, the simply, you should simply note that specific care person has made an advanced statement that the date it was last updated and where it's kept because obviously that wouldn't require the disclosure of highly personal information to people that are not directly involved in a person's care. I mean, I think we'd be quite happy to look at whatever system we'd provide reassurance to service users. I mean, first of all, I can give a general reassurance that, I mean, the commission already holds very sense of information about patients because we get notification of every single episode of detention, emergency short term or CTOs and, you know, we see all the reports. So we hold all that data and we keep it securely. There's obviously an issue within the bill about who has the right then to see it. And there's obviously a balance we stuck here because if the advanced statement is to be effective, some people have to know it's there and they have to be able to find out what it says so that they can actually pay attention to what it says. So I think we'd have to have a system which ensures that if a doctor, for example, is having to decide on, you know, a difficult treatment like ECT or depo medication or whatever, and they understand that an advanced statement is in place that they can easily find out what the person has said in that advanced statement, I can give you weight to that. So I think that's the balance that we would need to strike, but I'd be very happy to look at how we can do that in a way which ensures that, as I say, people have confidence in the system. I think the broader point about advanced statements is that, of itself, I can't see this particular provision welcome though it is being transformational. The real issue is looking at why do people not make advanced statements now and often they don't make advanced statements because they don't understand what advanced statements are. Or they don't believe that it's going to be effective and I think there's quite a lot of evidence of that. I think I would go back to what McManus said that you really need a concerted effort to understand why people would feel reluctant to make an advanced statement and understand what might help them to think it's worthwhile and help them to make a statement that's actually effective. I know that Scottish Recovery Network and others are doing work with service users and evangelising in some areas about advanced statements and that has had an impact. One of the other things that we do is we look at how often an advanced statement is overridden and it would be quite interesting to try and join that up and say what is it that would help you draft an effective advanced statement? When is it that if you say something you really aren't wasting your time because that's never going to be upheld because it's perhaps just not a practical thing to say? Where might there be circumstances where you can actually have an effective say? I think there's a lot more work that needs to be done with service users to understand the barriers and to actually help them to make this worthwhile. In relation to the privacy point, we'd be very happy to look at whatever reassurances we can offer on that. That's very helpful. My follow-up question was about some of the barriers to completing advanced statements and looking at some of the training that might be available to help people to draw up advanced statements and for witnesses as well. We have to recognise often that one of the barriers is that people do feel generally quite disempowered in the system so they don't yet feel that this is going to be a worthwhile tool for them because they just think, if I'm able, this decision is going to be taken for me anyway, so what's the point? It's that kind of thing that we need to change. We need to change the sense of disempowerment and use it as a tool that people do think is actually a way of getting some of what I want as part of a dialogue with the professionals that are involved in my care. Dr Murray, do you want to add? No, I don't want to make any response to that, if that's okay. Can I ask a quick supplementary on that? The new act removes the notification to the mental welfare commission of short-term orders. Is that not going to be a disconnect with the register? If you're not informed about an STO, then how are you going to actually let them know that there is an advanced statement on the register? Or is the register going to be published? Because again, that would be confidential. I think it's the notification of emergency detentions. I think so, and I think we suggested that because often it was really just a phone call left on our answering machine in the middle of the night, so it felt like it wasn't anything we were able to do anything about. We do get to hear about orders as they come in, but it's important also that, if advanced statements are made, the local services are also made aware of it, so that they can operate without having to check in with us. Is that supplementary to this? Gil Paterson. Thank you very much, convener. Can I raise with you a share of section 15, and I know that listening to Colin Mackay and his introductory statement that you said that patients rights when it came to this bill in some regards had been contracted. Of course, with the power of transfer of patients from one hospital to another, the proposal is to reduce that from 12 weeks to four weeks, which is quite a substantial number or substantial differential. However, it would seem that what the bill is trying to achieve here is to provide medical care for the patient themselves, so I wonder what your views were in regard to and comment on that aspect of the bill. Again, it's a very difficult balancing act, and we entirely understand the point that if a person requests to be in the state hospital, genuinely requests to be in the state hospital, that means that there are significant risks involved in the care and treatment. There are particular things that the state hospital can do that can't be safely done in local services, so it is not good for a person who does need that level of care and security to be denied that, even though they may not want it for long periods of time. Against that, you have to recognise that somebody who is ill enough to need to be in the state hospital or to be transferred into the state hospital from another hospital is pretty ill and expecting them to negotiate with their lawyer, engage with the lawyer and prepare an appeal within that 28-day period seems a bit heroic to us. I know that there is a suggestion that you just need to lodge in some sort of appeal, so I don't want to be there and that will meet the timescales, but I don't think that's really the appropriate way to go. We suggest that, as can already happen in emergency cases, it might be that two things would say, perhaps there is a meeting in the middle between the very large cut to 28 days from 12 weeks to 28 days, there may be some kind of middle period, or it may be that there is some provision. Particularly, I suppose that the place, if a patient is transferred before an appeal is determined, which I think if they need the care that ought to be possible, there needs to be a guarantee that the place will be held, the place that came from will be held until that appeal is determined. The worst-case scenario for us is that a patient is transferred to the state hospital, appeals successfully and then is told, well, I'm sorry, you've lost the bed that you came from. I think that we would be in favour of provisions that allow early transfer where that is needed, but ensuring that the patient is right to go back where they came from should they win an appeal is upheld. I'm gathering that you're not against the principle in itself that a time span should be restricted for the good of the patient. It's the mechanisms in between that we need to guard against. If the bill could be put into legislation that what you would be effectively asking, the individual's rights would be not exceeded, for a time they would lose a right because it would be placed against their wishes effectively. I think, since they have already said that they're against this move, but it would only be temporary until it might even be not in regards to the mental situation that might be some other ailment that's required to be treated. Therefore, that might exacerbate the mental condition. You're saying that there may be some middle ground. In relation to the appeals to the state hospital, it would normally be in relation to people's mental condition that their risk level had increased or their degree of concern about their mental health had increased. Those would be the cases that we would be talking about. The balance is to allow the person to move quickly to an appropriate care regime where there is evidence that they really need to be in a different place, but to maintain the appeal right for long enough that there's a reasonable chance that the patient will be able to effectively exercise it. I think our concern is that 28 days isn't really long enough for all circumstances at the moment. Have you any idea what the more suitable figure in regards to your own opinion is, rather than the four-week? I don't know if there's any kind of scientific figure. As the going down from 12 weeks forward just seems a bit drastic to us, as there may be as much about maintaining the ability to appeal after the patient has gone to state. The other point about that is that the patient may not know what it's like until they get there. Obviously, they will have a right to appeal eventually around a placement in the state. Six weeks is better than four, but I would say, but I'm not saying that's a particularly scientific figure. I suppose I should ask the next question. Is there evidence what the normal time takes if there is such a thing? Could that give us guidance by, in some way, to look at the situation? I think that this is very important questioning because I think that it relates to the rights that the patient has. I just want to preface it by saying a few things. One is that the patient's rights are almost already compromised because the patient is compulsory treated and detained in hospital at that time. The basis that the state does that is because it provides care and treatment. While it is a kind of further look at rights, the situation is that the state has decided through this legislation that this patient should be detained for care and treatment. The second thing to say is that the cases that I know that move to the state hospital that I've dealt with when it comes to an appeal against the transfer are often highly complex with high-risk factors. That's where my instinct would like to tell you, three weeks, four weeks, five weeks, six weeks, because that gives us a boundary. While we've got to this complex care need to transfer, it's often individual to the patient, so that would be my experience. Therefore, it's hard to give a framework in the way that you're looking for, which I think would be helpful if we could do it, but I'm not sure that we can do it. The other thing that I can say to you, bearing in mind that the rights are suspended because the person has been treated anyway against their will, that the move is because of very complex reasons. When it comes to any form of appeal, we deal with that as a priority. In many cases, I will deal with those appeals myself. It's to redress the balance that you're trying to explore with the committee, that the judicial process is the protection for the patient and also for the state's intervention at that stage. I'm sure that it's because it's so individualistic in many cases that it becomes complex. It's about the patient and where they are. Just to add to that, it's about the ability of the local services to meet their needs. That will be a complex issue, and it's about a balance around... Sometimes it's actually not about the person, it's about the quality and range of local services. We particularly find that sometimes with people with learning disabilities who might have very complex needs, where actually in an ideal world they wouldn't be in the state hospital, but it may be that just the kind of services that they need locally are just not available. In a case like that, it is very important that the judicial system really tests vigorously. Is it acceptable to say that because we've had a breakdown in this person's placement in a local service that the state hospital is where you're going to have to go? As those cases will take time to prepare and to argue out, the fallback for us is that the person needs to be able to go back where they came from if that's what the judicial determination is, at whatever time that is made. Without putting words in your mouth, you're actually sympathetic to it as long as the rates are guarded after the fact. I think that's right. I'd like to return briefly to the issue of right of access to independent advocacy, which you've both stressed is a very important right, and I understand that that's not consistently available across the country. I know that Sam H has said to me that they are very concerned that there's nothing about that in the actual proposed bill, although the Government don't think that legislation is necessary on this account. What are your views on that? Do you think that there should be something in legislation, or do you think that it can be sorted by other means? First of all, I would agree that the evidence from the surveys that the Scottish Independent Advocacy Alliance undertake, for example, is that the availability of advocacy is patchy. By and large, if you are enmeshed in detention proceedings and you seek an advocate, you'll get one, but the duty in the 2003 act was deliberately not saying that you shall have an advocate if you're subject to a CTO application. The whole point is that advocacy could help you to negotiate a care package that might make compulsion unnecessary, so it's vital that advocacy is available to people before things are broken down to the extent that the professors are saying that we cannot get you to agree to treatment, therefore we're going to have to force treatment on you. That was very much what Millan wanted, and that's what I think the 2003 act set out to deliver. In a way, it's quite hard to strengthen the duty because the duty is already very strong in the act. For me, the answer is around the accountability for that duty, and perhaps there needs to be more. Whether it's for the legislation or whether it's for the Government to commit to proper auditing of the availability and the performance of local authorities and health services, for example. Local authorities are assessed by the care inspectorate in terms of the fulfilment of the statutory duties. I'm not sure whether or not the discharge of the duties and advocates has ever been something that's been looked at. I think that it's something about building in a better accountability mechanism, whether that's through the commission or through the care inspectorate or other means to ensure that where people want advocacy, whatever sort of station process they're at, they can get it, because I think there is evidence at the moment that that's not universal of the case. I think that it's more that than, in a sense, trying to strengthen a duty that is already pretty strong. We have good experiences of fairly active advocates on many of our cases, but I recognise that it's often the hard-end decision-making bit, and that's not where they are always needed, but they certainly are needed there. We have pretty good coverage for tribunals, and why I think that it's significant is because the principal role that the advocate carries out is one of facilitating communication, and it's communication from the patients to the other professionals, to the named person to the tribunal, so it's a very significant role indeed. One of the things that I initiated very early on with the independent advocacy organisation was writing a guidelines for advocates appearing in the mental health tribunal, and everyone's agreed that that's what we should do, and that gives us an element of accountability of practice within the mental health tribunal. However, I think that you need to take into account Colin's comments about the coverage, about negotiating care packages, about negotiating things outside the tribunal, but good experience from them. If you ever have the time to speak to some of the users of service, which I'm sure you do, and ask them about the function of advocates, they talk very highly about the provision of the support that they are given. There's a very good book that I would recommend to you by a lady called Joe McFarland called Skydiving for Beginners, and it has a chapter on her experience of advocacy in terms of how it's supported her through a particular period. To the point, I think that you could all benefit from it, I'd be happy to put the money up to buy you all copies, because I really think that you get it from the independent advocacy, and if you just put it on my account, because I think it's really well worth reading if you're dealing with this bill for a variety of reasons, but the section on advocacy, I would commend to you. There is a question of equity as well here, depending where you are, what advocate you get, and the audit and measurement of what is available, and how freely available that is, and what quality it is. It's very, very important, I'm sure you would agree. I think that we've concluded our general questions though, but I'm aware that there are some additional questions from Richard Lyle, and I think that Bob wants to ask questions. Are there any others? And are those just two final questions? Richard Lyle, please. I'm just as we are getting near the end of the evidence session. I'm quite happy to read the book, but I don't want to go skydiving. I'm quite happy. But basically, can I ask you, are there any other issues that you would like to see addressed in this bill? I've covered what it can at this particular stage, and I have expressed a view, at least in writing to my own members, that it will not be long before we will need to look at an overall look at the whole mental health legislation. But at this stage, this is something that, in fact, addresses where we are in the progress of mental health legislation. I would generally agree with that, but I would also reinforce the point that this is a useful tidying up exercise, but I think that particularly the interface with incapacity legislation and adult support protection legislation does need to address. The law commission, I understand, we're reporting tomorrow about the problems of people being deprived of their liberty by being placed in care homes or in other kind of care settings where they're not able to agree or disagree, and that's going to be another strain on the system. My general sense is that the 2003 act and the adult support protection act were world leading pieces of legislation. I think that, for their time, they did genuinely lead the world. I think that there is a range of thought that, unless we start thinking about the next, we've particularly around supported decision making. I think that they have a fantastic framework for where you have to take decisions away from people and make them, other people make them. I think that they have a good framework for that. What we really need to be moving towards is how do we help support people, and advocacy is part of it, and advanced statements are part of it, but how do we think through how you actually empower and support people to maximise their choice and control in the system so that the use of the mental health act remains the exception rather than the rule? I think not so much for this bill, but something that I would urge parliamentarians to consider in their future plans. I think that the earlier points I was going to raise with some of my colleagues. That's fine. Thanks for that, and thank you both for your time with us this morning and your valuable evidence. I'm sure that we'll see it reflected in our final reports. Thank you both very much for your time with us this morning. Thank you very much, convener and members, and I wish you all the well with your work. Thank you. We suspend momentarily at this point. We're going to private session. As we've previously said, we're going to private session now anyway, so it's a run to the toilet, a run for the coffee, a run for the...