 It took good morning and welcome to the 16th meeting 2015 of the health and Sport committee. It is to ask everyone to this point to switch off mobile phones as we know they can often interfere with the sound system. I should point out, as I normally do, that members in class will be using tablet devices instead of a hard copies of papers. Mae'r first item on the agenda today is a decision on taking business in private, and I invite the committee to agree to take item 3 on today's agenda in private. Can I have the agreement of the committee? Thank you very much for that. We now move to our agenda item number 2, stage 2 of consideration of the Mental Health Scotland Bill. Members should have a copy of the groupings and the marshal list. I should for the record remind members that ministers and officials are here in a strictly supportive capacity this morning. They can speak during proceedings or indeed be questioned by the members. Everyone should have a copy of the bill, as introduced, the first marshal list of the amendments and the first grouping of the amendments. I'm assuming that everyone has them. There will be one debate on each grouping of amendments. I will call the member who lodged the first amendment in that group to speak and to move that amendment and speak to all other amendments in the group. I will then call on the other members who have amendments in the group. Finally, the member who lodged the first amendment in that group will be asked to wind up the debate and press or withdraw their amendment. Members who have not lodged amendments in the group who wish to speak should catch my attention and make that a request in the usual way. If a member wishes to withdraw their amendment after it has been moved, I must check whether any member objects to it being withdrawn. If any member objects to the committee, the committee immediately moves to the vote on the amendment. If any other member does not want to move their amendment when called, they should say not moved. Any other MSP can move it, of course, but I will not specifically invite other members to do so if no one moves it. I will call the next amendment. I will now call amendment 1 in the name of Baldoris, grouped with amendments 2, 3, 66, 4 and 64. I should point out that, if amendment 3 is agreed to, I cannot call amendment 66, which is preemptive. Bob Doris, to move amendment 1 to speak to all amendments in the group. Thank you, convener, and good morning. In moving amendment 1 and speaking to all amendments in the group, can I thank the Government for the dialogue that they have had with many preparation of those amendments, in particular to amendments 1 and 2, the tribunal in particular raised concerns to the committee that the changes for removing a period of time from the end of the treatment order through section 1, 2 and 3 could be unclear. They noted that that provision could also be inequitable, as it did not take into account the extension certificate. In our committee stage 1 report, we asked the Scottish Government to respond to concerns raised and to provide further clarification on how it would operate in conjunction with certain detention orders. Therefore, the amendments that I have prepared in the moving today will have the effect of removing any period of detention between the expirer of the original short-term detention certificate and the first tribunal hearing from the end of the CTO or interim CTO. Those amendments will hopefully meet the concerns of fellow committee members that we had in our stage 1 report. In moving to amendment 3, the provision in the bill that would have extended the period of short-term detention possible under section 68A from five days to 10 days to allow the tribunal to arrange the first hearing in relation to a CTO application and the consequent amendments to section 39 of the 2003 act. That means that the existing arrangements in the 2003 act are retained, which limits the period authorised to five days. In closing, convener, I will say that we were all keen initially to see moving through five to 10 days in relation to this, but the evidence that was presented to the committee was that the problem that it was seeking to solve seems to have asswaith somewhat in recent years, and that is the reason for amendment 3 to go back to the status quo position. I now call on Dr Richard Simpson to speak to amendments 66 and other amendments in the group. I begin by welcoming the amendments that were moved in the name of Bob Doris, numbers 1, 2 and 3, because that means that, if passed as you have indicated, convener, my amendment will fall. However, the justification for the proposed extension in the bill as tabled for a tribunal hearing from five to 10 days was that it was in the patient's interest to ensure a reduction in repeat tribunals. There was a firm denial that the rationale behind this proposal was for administrative convenience, but it was to focus on protecting the patient. However, as Dr Doris has already indicated, many witnesses suggested that an extension might become the norm rather than the exception. Furthermore, providing the increased flexibility would lead to a lowering of pressure to reduce the number of repeat hearings, which it was acknowledged had already been significant under the current tribunal chair. Caden Kirk of legal services agencies suggested, however, that a further reduction of hearings may not be an entirely appropriate ambition and also raise concerns that the provision as drafted might not be compliant with article 5, the right to liberty and security in the European Convention on Human Rights, and that view was partly supported by the Scottish Human Rights Commission witness. Despite the reservations that were expressed, I think that the rest of the committee did support the extension from five to 10 days. What my amendments would do if amendment 3 was not passed would ensure that that only occurs in specific circumstances. In essence, what I am proposing is that the extension should only be granted either on an application by the patient or the patient's representative because they wish to have further time, or where the application was made by the health professionals, it should only be with the consent of the patient or the patient's representative. That would leave the extension to 10 days occurring in circumstances where the patient or the patient's representative consented, or an exceptional condition where the tribunal itself had stated clearly the reasons for the extension. I would expect that, either in regulations or guidance, those exceptional circumstances would be more clearly spelled out if not fully defined. I believe that this set of amendments are more broadly in line with the committee's report and will allow the flexibility. I am not clear, and I will ask Mr Dorison summing up and perhaps the minister when he is addressing those amendments, whether the tribunal is now happy for the extension to 10 days to be completely removed. If that is the case, clearly my amendment will not be necessary. Thank you, Richard. I welcome the minister formally to the committee and ask the minister to speak to amendment 4 and other amendments in the group. Thank you, convener. I thank Bob Dorison and Dr Simpson for introducing amendments on the issue. In relation to the extension of a short-term detention certificate and the Scottish Government's response to the committee's stage 1 report, I recognised the concerns about the extension applying in all cases. On the other side, the views of the mental health tribunal know that there could be benefits from allowing service users more time to prepare. The response committed to exploring whether an amendment could be made, which would mean that the extension does not apply automatically in all cases. We explored several solutions, including giving the patient and their representatives the option to request longer, either as part of the interview with a mental health officer when an application for a compulsory treatment order is being considered, or after the application had been made, the latter option seems to be most similar to what has been proposed by Dr Simpson. Another was to have a procedural or paper hearing of the tribunal look at whether it would be appropriate for it to be an additional five days before the hearing. However, I understand that this might take some of Dr Simpson's remarks about the views of the tribunal. I understand that the tribunal has expressed some reservations with pursuing any of the approaches on balance that it does not seem to us a practical solution to ask an unwell patient who may not yet have seen the application full or appointed legal representation to make a decision as to whether they would like to be detained for a longer period when they may be distressed by detention in the first place. Allowing a hearing to be arranged and then postponed on request at short notice as it becomes clear that the patient is not ready is likely to be expensive and cause last minute issues for all involved, including panel members, responsible medical officers and mental health officers, let alone the patient and the named person. I understand that the tribunal also gave views on whether it can make a judgment as to whether more time is required or a view. Reflecting on this, it would not be fair to expect the tribunal to make such a judgment without significant information from the patient, but it would also be an unfair additional request of an unwell patient. Overall, having taken views expressed by the tribunal into account, our concerns is that amendments to this effect, including those proposed by Dr Simpson, could be adding a cumbersome process to what is quite a tight time period to ensure that a patient has a hearing proper. I would thank Dr Simpson for applying some thought to seeking a resolution to the issue, but I ask that members support amendment 3, in preference to amendment 66. In relation to amendments 1 and 2 on reducing the overall period of detention, I agree that it is a fair and more equitable system, and I ask members to support the amendments. I gave a commitment at my appearance at stage 1 to propose amendments along the lines of amendments 4 and 64 that the amendments relate to the new duties brought in by the bill, where a mental health officer must provide a report to the tribunal in relation to the determination to extend a compulsory treatment order or compulsion order. The amendments mean that the report will only be required where there has been a change in diagnosis, where the mental health officer disagrees with the determination, or where the mental health officer has failed to comply with her duty to express a view. It removes the requirement to provide a report to the tribunal for all two-year views of compulsory treatment orders and compulsion orders. I would ask members to support these amendments. Bob Doris, to wind up press or withdraw. I have not had an indication of any other member. Bob Doris, to press or withdraw. Thank you, convener. In winding up, I reflect on Dr Simpson's comments and thank him for elaborating further on the reason why amendment 3 has been placed in relation to the reduction in multiple hearings over the year, since the initial recommendation was made to allow the extension from 5 to 10 days, which is the driving force behind amendment 3 that I have placed today. I note that Dr Simpson's amendment could, in theory, provide an alternative solution to that, but I am tending to agree with the minister that that could provide additional and necessary complexity bureaucracy and put burdens on patients also, which is why I am keen to see amendment 3 passed as opposed to the alternative by Dr Simpson. Finally, in relation to amendments 1 and 2, there could have been other solutions to having the policy and practical effect that amendments 1 and 2 achieved. However, in drafting those amendments, I have been minded to keep it as simple, straightforward, unbureaucratic and as uncomplex as possible so that it can be used effectively in practice, if passed here today. I press amendment 1. The question is, then, that amendment 1 be agreed to. Are we all agreed? We are all agreed. Thank you. We now move to call amendment 2 in the name of Bob Doris, already debated with amendment 1. Bob Doris, to move or not move. The question, therefore, is that amendment 2 be agreed to. Are we all agreed? Thank you. Call amendment 3 in the name of Bob Doris, already debated with amendment 1. Bob Doris, to move or not move. I am moved. Members at this point of amendment 3 is agreed to. I cannot call amendment 66. Question is, then, that amendment 3 be agreed to. Are we all agreed? We are all agreed. Thank you. The question, then, is that section 1 be agreed to. Are we all agreed? Thank you. Can I now call amendment 4 in the name of the minister, already debated with amendment 1. Minister, to move or not move. I am moved. Thank you. The question is that amendment 4 be agreed to. Are we all agreed? Yes. Thank you. The question is that section 2 be agreed to. Are we all agreed? Yes. Thank you. Can I now call amendment 93 in the name of the minister, group with amendments 22, 23, 96, 112, 61, 62 and 63. Can I ask the minister to move amendment 93 and speak to all amendments in the group? Can be the main policy driver for this group of amendments is to clarify the position that a patient could be detained in a specific unit of a hospital rather than a hospital at large. Those amendments will make it clear that detention orders made in both a civil and criminal context may set out a specific hospital unit at which the patient is to be detained and that supports the movement of patients within hospitals as well as between them. Related to this is the need to address the fact that there is currently no procedure for transferring patients subject to interim compulsory treatment orders and response to concerns expressed by the Mental Welfare Commission. It is a complex group of amendments and it is going to take me some time to go through them, so I hope you will bear with me. It can be on the civil side as amendment 22 that means that references in sections 36, 44 and 62 to 68 of the 2003 act to a hospital may be read as references to a hospital unit. It will allow for emergency detention orders, short term detention orders into compulsory treatment orders and compulsory treatment orders to authorise detention in a specified hospital unit and a mental health officer's proposed care plan may propose that a patient is detained in a specified hospital unit. The amendment will also enable the removal of patients subject to emergency or short term detention certificates to particular hospital units or to a different unit within the same hospital. On the criminal side, amendment 112 proposes to introduce a new section to part 6 of the Criminal Procedure Scotland Act 1995 on the specification of hospital units part 6 of that act makes provision dealing with mentally disordered people within the criminal justice system in Scotland. The purpose of the amendment is firstly to provide that any reference to hospital in that part of the act may be read as a reference to hospital unit, where a hospital unit means any part of a hospital which is treated as a separate unit. That means that any order or direction which may already be made under part 6 of the act authorising the detention of a person or patient in a specified hospital may be made authorising detention in a specified hospital unit. That relates to assessment orders and treatment orders relating to remanned patients as well as the following orders relating to mentally disordered defenders and to them compulsion orders, temporary compulsion orders, compulsion orders, compulsion orders and restriction orders, hostile directions and transfer for treatment directions. That goes further than the effect that would have been achieved by sections 36 to 38 of the bill, which are consequently to be removed by amendments 61, 62 and 63. Sections 36 to 38 relate only to compulsion orders made with a restriction order, hostile directions and transfer for treatment directions. Amendment 23 amend section 136 of the 2003 act, which provides for the Scottish ministers to authorise the transfer of prisoners to hospital for treatment for mental disorder. It will allow references to hospital to be read as references to a hospital unit and to provide the definition of hospital unit as meaning any part of a hospital which is treated as a separate unit. Amendment 112 also makes provision as how section 61A of the act inserted by section 35 of the bill is to apply and release the transfer from one hospital unit to another within the same hospital. In terms of the secondary driver, I refer to amendment 93 amend section 124 of the 2003 act to include reference to interim compulsory treatment orders. Interim compulsory treatment orders are orders authorising the detention of a patient in hospital made under section 652 of the 2003 act. That will enable the transfer between hostels of patients subject to interim compulsory treatment orders as well as patients subject to compulsory treatment orders. That provides a formal process to authorise a transfer from one hospital to another for a patient detained under an interim compulsory treatment order. Amendment 96 proposes to insert a new section 124A into the bill to make new provision in the 2003 act about transfers between hostile units. Section 124A would apply to patients subject to compulsory treatment orders and interim compulsory treatment orders, where the order specifies the particular hostile unit in which the patient is to be detained. The new section 124A would enable the managers of the hostel in which the patient is detained to transfer the patient to another unit within the same hospital or hostel unit. The effect of both amendments 93 and 96 will be that interim compulsory treatment order patients will also be able to be transferred from one hospital unit to another, where the interim compulsory treatment order authorised detention in a specified hostel. I move amendment 93. Thank you, minister. Any members who see Richard Simpson? Just one question for the minister when he's summing up and that is one of the concerns that's been expressed to me is the fact that we do not have accommodation now in the state hospital for female prisoners and sort of for those charged and I'm just wondering whether this these amendments as they stand or the later amendments on cross-border issues will allow the minister to transfer individuals south of the border just to get that straight because at the moment I'm not quite sure whether where people female individuals who are charged and have an interim order placed against them because of criminal acts, where they're going to be detained, are they going to be detained in a medium secure unit, are they going to be detained in a unit in England because we have no we have no top secure units for female prisoners any longer. No other members, minister, to wind up? Okay, well just picking up on the point that's been made by Richard Simpson, I think probably it will come back in a greater detail in writing to Richard Simpson at that point, but my instinct is that I think both would probably be likely that the court could direct to either medium secure unit or it could be to a place first of Scotland, so it could be the case that the amendments that come down the line later, which will be later, will be relevant here, but I would observe that I think there is a great merit in these particular amendments. It seems somewhat onerous that at present you can't go through the process of referring from one part of the hospital to another, so I think there is great merit in these amendments and I hope they will be supported by the committee. The question is then that amendment 93 be agreed to, are we all agreed? Thank you. Can I now call amendment 67 in the name of Dr Richard Simpson, group with amendments 68 and 69, Dr Simpson to move amendment 67 and speak to all amendments in the group. Partly from the fact that I felt that the original bill as presented was, to a very great extent, a diminution of patient rights and it was a fairly administrative or provider bill and, of course, much of many of the changes that are being moved today by the Government indeed do actually roll back on some of the reductions in patient rights that did concern me, but this is a particular one where the language really was something that I felt rather worried about and I want to have the Government's reply on record when I decide to whether to press the amendment or not. My amendment relates to the section in line 20 of section 3 of the bill, 3A, where it says that the managers of the hospital may, so far as they consider it appropriate, give notice of matters notified to them under section 37 of this act to the persons mentioned in subsection 4 below. I just think that when managers have a May instruction, that simply allows them to make it and when it's further caveated by saying they can decide if it's appropriate or not, it really worries me, so this amendment is changing it to must and saying unless it's impractical to do so. It does allow a get-out for the managers if it's not possible for them to notify people, but I think that they actually should notify people of things that are going on. The other amendment is to simply include advocates in those who are notified of these matters, so that section 68 is dealing with that and section 69 is merely a consequential amendment, so I look forward to hearing the Government's response to that. No other members. Minister? Thank you, convener. Let me address amendment 67, and I say to Dr Simpson and understand his rationale, but I hope to be able to reassure him. The rationale for allowing hospital managers to only share information where they consider it appropriate is to give them discretion in relation to sharing information with, for example, the person's nearest relative or someone who resides with them. Currently, the hospital manager is required to provide a copy of the emergency detention certificate to those people, even if it contains very sensitive information that a patient may not want them to have. The provision in section 3 was not introduced for hospital managers to excite discretion as to whether it was practical to inform relatives, carers or named persons discretion. The discretion would not be available if amendment 67 is agreed to. I would hope that it would be possible for Dr Simpson's concerns to be addressed through the code of practice, which could set it in further detail the circumstances when and how that discretion should be used. Therefore, I would be very happy to have further discussions with Dr Simpson to see if an alternative way forward can be agreed. On that basis, I would invite Dr Simpson not to press amendment 67. We can have that discussion. Amendment 68 in consequential amendment 69 would seem to go beyond the current role of the independent advocate under the act and be dependent on the changes in amendment 67, which I have already argued against, noting that the discretion is not in relation to the practicability of informing the nearest relative or person who resides with the patient. Again, I would request to Dr Simpson not to press amendments 68 and 69. I do not need to wind up, convener, just to move us on, and I will not press these amendments. I presume that all other members are content with that. We now move to amendment 68, in the name of Dr Richard Simpson, who is already debated with amendment 67. Dr Simpson is not moving. The call amendment 69, in the name of Dr Richard Simpson, is not moving. The question is that amendment 69—no, that is the next one—is that section 3 be agreed to, are we all agreed? The question is that section 4 to 7 be agreed to, are we all agreed? I now call amendment 5, in the name of the minister, group with amendments that are shown in the groupings. I point out at this point that, if amendment 8 is agreed to, I cannot call amendment 94 as preempted. I also point out that if amendment 95 is agreed to, I cannot call amendments 9, 10, 11, 12, 13 and 70, which are all preempted. Can I now call on the minister to move amendment 5 and speak to all amendments in the group? Thank you, convener. Our overall policy aims in relation to the suspension of detention have always been to best realise the suggestions made in the McManus report those recommendations, including removing brief periods of suspension of detention from the cumulative total and aiding calculation of total periods by converting them to days rather than months. It also included a total cumulative permissible period of suspension of 200 days, which could be extended by the tribunal in the small number of cases where a patient reached the limit, but because the patient's individual mental state and care circumstances, it was not yet appropriate to apply to vary the order. Our proposals will provide a sensible and workable framework for suspension of detention that suits the individual requirements of a patient and provides safeguards to ensure that it is used in the most appropriate way. I have proposed amendments 5 to 7 to provide for more effective legislation in relation to the suspension of detention to complement the changes already introduced into the bill. Amendment 5 makes changes for compulsory treatment orders and interim compulsory treatment orders. It allows a single certificate to authorise either a single period of suspension of detention or a series of periods of suspension of detention. For compulsory treatment orders, any single continuous period of suspension of detention cannot exceed 200 days and this change is to express this period in days rather than months and come with other changes in the bill in relation to suspension of detention. Also for compulsory treatment orders, the amendment states that the maximum duration for any certificate authorising multiple periods of suspension of detention is six months. The aim of this amendment is to produce a consistent and administratively sensible system of suspension of detention in a way that is not burdensome to responsible medical officers and it can be used in the best interests of patients. The changes will also carry across the compulsion orders by virtue of section 179 of the 2003 act. Amendment 6 allows a single certificate to specify either a single period of suspension of detention or a series of periods of suspension of detention in respect of assessment orders. Amendment 7 relates to treatment orders, interim compulsory orders, compulsory order and restriction orders, hospital directions, transfer for treatment directions or temporary compulsion orders. The amendment allows a single certificate to specify either a single period of suspension of detention or a series of periods of suspension of detention. Any single period cannot exceed 90 days and this changes to address an anomaly where the bill expresses certain timescales in relation to the suspension of detention in months rather than days. It also states that the maximum period of time for any certificate authorising multiple periods of suspension of detention is three months. The main changes to policy brought about by amendments 8 and 15 have the effect that any period of suspension authorised of up to eight hours does not count towards the total of 200 days. The bill as introduced did not count periods of up to 12 hours towards the total. We listened to concerns from stakeholders that 12 hours might not quite reflect the brief periods that the McManus report suggested should not be counted towards the cumulative total. Broadly speaking, suspension of detention is used in two different ways. Firstly, for short trips out of hospital, it is usually escorted during the working day. Secondly, for testing out which sees the patient having overnight stay out of hospital and eventually several nights out at a time, testing out helps the patient and their care team to see how the patient will cope with being out of hospital when their orders revoked or varied to community order. It changes the time period to eight hours roughly the standard working day. We are ensuring that the first type of a Scotland suspension of detention does not count to the cumulative total but testing out periods do. We believe that this is the best reflection of the recommendations that McManus report on the subject. The amendment also makes provision as to how periods of more than eight hours and less than 24 hours are counted towards the cumulative total. It also makes changes as to how the maximum cumulative period of 200 days is calculated and the manner of granting certificates. Amendment eight relates to compulsory treatment orders. Amendment 15 is in relation to treatment order, interim compulsion order, compulsion order, restriction order, hospital direction, transfer for treatment order or temporary compulsion order. Amendments nine and 16 make clear that where the tribunal approves an additional 100 days suspension of detention, it does so by an order. Amendments 10 and 17 remove certain texts from section 9 of the bill related to how the additional 100 days of suspension of detention that could be authorised by the tribunal. This is a consequence of other amendments. Amendments 11 and 18 will clarify requirements in the small number of cases where responsible medical officer applies for an extra 100 days of suspension of detention in relation to patient's treatment. This will ensure that the mental welfare commission receives notification that this has occurred to help with their wider monitoring of the 2003 act. Amendments 12 and 19 will give patients and their named person the opportunity to make representation to the tribunal in relation to hearing to extend the maximum total of cumulative detention or to vary order to community-based order. This will also ensure that the patient named person will be informed of the result of the application. This adds to the safeguards for the patient in relation to any application extending the total of cumulative detention. Amendment 13 is introduced in response to concerns that an extension of 100 days to the cumulative total of suspension of detention might be granted by the tribunal when it would be more appropriate to vary order to community-based order. The amendment gives the tribunal the ability to reject the additional 100 days and, instead, vary the order to a community-based order. That should both ensure that suspension of detention is not used on a long-term basis when a community-based order would be more appropriate. It should also avoid unnecessary extra hearings where the tribunal judges a community-based order more suitable. At the same time, by retaining the additional 100 days, we have kept the flexibility for the very small number of patients that the MacManus report identified as needing further testing out before a community-based order would be more appropriate. The disposal will be available in relation to a compulsive treatment order or a compulsion order. Amendment 14 relates to suspension of measures other than the detention for compulsive treatment orders. It changes the maximum period of suspension of measures other than detention to 90 days from three months. That is to be consistent with other changes made by the bill that converts times and months to time and days to facilitate calculation of those periods. I have proposed amendment 21 to provide an additional safeguard for patients that will only apply for the small number of patients where an application is made to extend the maximum cumulative limit by a further 100 days, although certain persons, including the patient and named person, to appeal the decision of the tribunal in relation to varying the order to a community-based order. I will not be moving amendment 20. I thank the Committee for its understanding in relation to that. The intention behind us was to provide a consistent approach in line with amendment 13, but for certain other orders and directions. However, in further reflection, I am not satisfied that it is appropriate to confer powers on the tribunal to vary those orders and directions to remove the detention requirement. The tribunal does not elsewhere in that act have powers to remove the detention element of those orders, and we do not want to introduce that only unless there is an application that the tribunal has been made to increase the total period of suspension of detention. Suspension of detention in relation to those orders is for rehabilitative purposes. Converse the community-based order as a formal decision in relation to their order. For a compulsion order and restriction order, the compulsion order would only be varied when the restriction order has been lifted. If a patient is subject to a hostile direction or a transfer for treatment direction no longer requires to be detained in a hospital, the mechanism would be for them to return to prison to serve the remainder of their sentence. Amendments 18A, 19 and 21A make consequential changes to those amendments as a result of the intention not to move amendment 20 by removing references to subsection 12B, which would have been inserted by that amendment. I am grateful to you, convener, for accepting those manuscript amendments. The amendments proposed in this section by Dr Simpson look to alter or remove the ability of the tribunal to extend the 200-day cumulative limit of suspension detention by a further 100 days. I thank Dr Simpson for bringing those amendments forward. As I have now described, we have responded to concerns that the cumulative total may be extended where conversional community-based order would be more appropriate and brought in safeguards for the patient. Amendments 94 and 95 would remove the ability to increase the total of suspension detention up to 100 days, although only in relation to compulsory treatment orders. Amendments 17, 71 would only allow an extension by a further 30 days. I do not believe that that provides as much flexibility for the individual circumstances of the patient as the Government suggests that the way forward does. Our proposals provide the best balance between a flexible system that meets individual needs and protection for patients. I ask that those amendments are not pressed and I move amendment 5. I now move to Dr Richard Simpson to speak to amendment 94 and other amendments in the group. I thank the minister for addressing some of the concerns that were being expressed to the committee. There is a view that the community orders, which were one of the new things that came in with the 2003 act, have been highly successful. My only concern with the introduction that the minister has made is that he talks about a small number of patients, but we have no indication as to what that means. Is that single digits? Is that 30 or 40? How many in relation to the community treatment orders is likely to apply? However, I recognise that the minister has gone some way to reinforce the patient's rights to say that that should not be extended and that the tribunal has given some powers now to ensure that it is not extended. However, my amendments were based on the written evidence from the Mental Welfare Commission. As it stands, I believe that the act, with a 200-day period or changing from months to days, is sufficient. If by 200 days we really have not got to the point of recognising that that period, perhaps longer with suspensions in between, because it can be a series of periods that are mounting in total to 200 days, but over a much longer period, if by that time there is no decision being made as to whether the patient should continue under what is still a restrictive order, it is obviously better than being detained within hospital, but it is still a restrictive order, then there is a feeling that has been expressed by a number of witnesses that this is inappropriate and that we should leave the act as it is and decisions should be made by the 200 days. That is the First Amendment. The second set of amendments, which will only occur provided that the first lot is not passed, is an alternative, which is to allow 30 days beyond the original 100 days to allow a very short period of extension rather than a further 100 days, which is 50 per cent of the original period, which seems to me still to be rather excessive. I am not sure why 100 days was decided upon as opposed to a shorter period, which would have allowed those concerned with the patient's health to determine whether continuation of the compulsory order was appropriate or not, or whether some other order should be put in place, or whether the patient should be moved to an entirely voluntary basis. If by 200 days the patient has not seen to be taking their medication, for example, which is one of the things under the compulsory treatment order, frequently enough to warrant them relapsing or to contribute to their relapse, then I can understand that they may wish to extend it for a further period of time. In conclusion, convener, I welcome the fact that the minister has gone some way to addressing my concerns. I am not sure if he has gone far enough, but I will wait to see what he is summing up before making a decision on how to proceed. Any other member wishes to participate in the debate? I do not have any indication that any other member wishes to speak at this time. Can I ask the minister then to wind up and respond? Okay, thank you. We have taken on board some of what has been raised by Dotson. I should say that it is not at this stage been possibly the exact figures on how many patients reach the current nine months. However, the snapshot that we have received from the commission suggests that very few reach the current limit is likely to be single figures. Let me recognise that there is validity in what Dr Simpson says. I think that there is still merit in having a more flexible system, which our amendments would allow for. I think that that is more in line with what was recommended in the McManus approach. On that basis, I would urge that the committee supports the amendments that are presented by the Government. Thank you, minister. The question now is that amendment 5 be agreed to. Are we all agreed? I call amendment 6 in the name of the minister who is already debated with amendment 5. Minister, you move formally. Thank you. The question then is that amendment 6 be agreed to. Are we all agreed? I call amendment 7 in the name of the minister who is already debated with amendment 5. Minister, you move formally. Thank you. The question is then that amendment 7 be agreed to. Are we all agreed? The question is then that section 8 be agreed to. Are we all agreed? I call amendment 8 in the name of the minister who is already debated with amendment 5. Minister, you move formally. I remind members at this point that if amendment 8 is agreed to, I cannot call amendment 9 to 4 as previously indicated. The question is that amendment 8 be agreed to. Are we all agreed? No, there is a division. Can I have a show of hands, please, raise your hands for all those favour of the amendment? Those against the amendment? Abstentions? The result of the amendment is therefore agreed to. I now move to amendment 95. I call amendment 95 in the name of Dr Richard Simpson, who is already debated with amendment 5. I call amendments 9, 10, 11, 12 and 13 all in the name of the minister and all previously debated. I invite the minister to move amendments 9 to 13 in block. Thank you. Does any member object to the single question that is being put on the amendments 9 to 13? No. The question is then that amendments 9 to 13 are agreed to. Are we all agreed? Thank you. I now call amendment 70 in the name of Richard Simpson, who is already debated with amendment 5. Dr Richard Simpson, to move or not move? Move. The question is that amendment 70 be agreed to. Are we all agreed? There is a division. Those in favour of the amendment? Those against? Thank you. For the amendment 4 against amendment 5, the amendment therefore is not agreed to. I now call amendments 14, 15, 16 and 17 all in the name of the minister and all previously debated. I invite the minister to move amendments 14 to 17 in block. Does any member object to the single question that is being put on amendments 14 to 17? Thank you. The question is then that amendments 14 to... Sorry, wait a minute then. Where are we? I've rushed on, I'm sorry minister. Can I invite the minister to move amendments 14 to 17? I've got a wishful thinking there, I've got anyway. I feel we've got to go through. I invite the minister to move amendments 14 to 17 in block. Thank you. The question then, of course, is that amendments 14 to 17 are agreed to. No, we'll put me off altogether. Is there any member object to put the question in each amendment individually? We're all agreed to have those amendments in block. Is that correct? Are we all agreed to the amendment? She was. Just as well we're all agreed to that one, I think. Can I now call amendment 18 in the name of the minister already debated with amendment 5? Minister to move on. Thank you. Can I call amendment 18A in the name of the minister already debated with amendment 5? Minister to move on. Moved. Thank you. The question is then that amendment 18A be agreed to. Are we all agreed? Thank you. The question is then that amendment 18 be agreed to. Are we all agreed? Thank you. I now call amendment 19 in the name of the minister already debated with amendment 5. Minister to move on. Moved. Thank you. I call amendment 19A in the name of the minister already debated with amendment 5. Minister to move on. Moved. Thank you. The question is then that amendment 19A be agreed to. Are we all agreed? Thanks. The question is then that amendment 19 be agreed to. Are we all agreed? Thank you. I now call amendment 20 in the name of the minister already debated with amendment 5. Minister to move on. It not moved. I now call amendment 71 in the name of Dr Richard Simpson already debated with amendment 5 not moved. I then call amendment 21 in the name of the minister already debated with amendment 5. Minister to move on. Moved. Thank you minister. I call amendment 21A in the name of the minister already debated with amendment 5. Minister to move on. Moved. Thank you. The question is then that amendment 21A be agreed to. Are we all agreed? Thank you. The question is then that amendment 21A be agreed to. Are we all agreed? Thank you. The question is then that section 9 be agreed to. Are we all agreed? Yes. I now call amendment 22, 23 and 96 all in the name of the minister and all previously debated. I invite the minister to move amendment 22, 23 and 96 all in the name of the minister already debated with amendment 22, 23 and 96. It moved. Thank you. Does any member object to the single question being put on amendments 22, 23 and 96? There is no objection. The question is then that amendment 22, 23 and 96 are agreed. Are we all agreed? Thank you. I now call amendment 24 in the name of the minister, grouped with other amendments as shown in the groupings. I point out that if amendment 26 is agreed to, I cannot call amendment 73 as it is preemptive. Minister to move amendment 24 and speak to all amendments in the groupings. Thank you minister. Thank you convener. This group of members relates to an important issue and I hope that you will understand that I take some time to talk about the Government's position. The Government's stated intention was set out in the draft amendments, draft regulations and a draft timetable for the introduction of the right of appeal outwith the state hospital provided to the committee on 24 April. I hope that the committee has found that helpful in clearly setting out our position and demonstrating our commitment to bringing effective regulations into force as soon as possible after royal assent. The group relates to sections 10 to 12 of the bill that make amendments to the sections of the 2003 act relating to appeals against being detained in conditions of excessive security in the state hospital and in hospitals other than the state hospital. I am going to focus first on those amendments that only relate to hospitals other than the state hospital as they go to the heart of the differences between the Government's approach and the alternative approach that appears to be proposed by Dr Simpson. Those are amendments 26 to 31. First, it is clear from the debate on those provisions at the time of the bill for the 2003 act that the intention of introducing them was to enable patients in the state hospital and those in the future in medium-secure units to seek to move to a lower level of security. That was the mill on recommendation. The bill seeks to ensure that the intention is fulfilled and those amendments build on that intention. As far as the Government is concerned, what is needed at this present time is to take the scheme provided for in 2003 and ensure that it can operate effectively in the present secure estate. We do not seek to extend that scheme to persons or purposes that it was never intended to cover. It is clear that the scheme has always been about a move from one place to another. It is not about challenging the imposition of particular measures of security in the place that the patient is in. That is clear when considering that the only available remedy is a move to another hospital unit and not, for example, an order for certain measures to be lifted. If there was a wish to change the nature of the appeal in a way that it could be sensibly extended to all patients, that would require more fundamental reworking of the scheme set out in the 2003 act, which has not been consulted on as far as I am aware. There is no consensus in favour of that. The committee in its stage 1 report asks for consideration given as to whether the scenario where an individual in a low-secure setting could appeal and move from one level of security to another and still remain in low-secure accommodation and an appropriate one to merit inclusion of the right of appeal for individuals in low-secure settings. I will answer that as I have explained. The scheme provided for in the act is not about challenging particular measures, including the measure of being locked. I do not consider that scenario to be one where the level of security is excessive. That is what we are talking about here—levels of security that go beyond the proper limit or degree. In general, patients in low-secure settings would initially be cared for within a ward for a period of time and then to have gradually increased periods of time with the ward, when the wider hospital environment is either escorted or unescorted, then community access progresses into overnight passes and finally discharges. You have already considered amendments that allow for patients being treated in a hospital to have access to the community for up to 200 days, possibly even up to 300 days with tribunal agreement in every 365 days. There are other applications that may be made under the 2003 act that would allow such patients to seek to vary or evoke their detention orders. We should also be mindful of the fact that everyone discharging functions under this act has a legal duty to do so in a manner that appears to them to involve the minimum restriction on the freedom of the patient that is necessary in the circumstances. I will be interested in Dr Simpson's explanation of his amendments. If they are intended to lay the ground up for regulations that do not learn at the right of appeal to patients in medium-secure units, then with respect, I will be unable to support them. If it is this Government's clear position that the right to make an application under section 268 should be made available to patients in medium-secure units, only we cannot support amendments that seek to provide. Otherwise, if that is not the intention, I would nonetheless prefer my proposed approach that seeks to build on what is currently in the act by providing additional powers to make regulations in relation to the test to be applied by the tribunal, as well as making provision for support of medical reports. I will go on to discuss those and I hope to persuade you that my proposed approach is the better option. In terms of delivering the current scheme, amendments 26 to 29 aim to ensure that the core element of the test currently set out in the 2003 act remains unaltered whilst allowing flexibility for the test to be refined through subsequent regulations by the addition of extra limbs to the test, should the experience of the tribunal's operation of the test indicate a need for it to be refined. Amendments 26 and 27 do that by replacing the requirement for the tribunal to be satisfied before making an order that the detention of the patient at the qualifying hospital involves a patient being subject to a level of security that is excessive in the patient's case, where the requirement of the tribunal may only make an order if it is satisfied that the test specified in regulations under new section 271A introduced by amendment 29 is met in relation to the patient. Amendment 28 is similar, but it would require the tribunal to be satisfied that the test specified in regulations is not met in relation to the patient before an order can be recalled. Amendment 29 introduces the new section 271A setting out regulation, making powers relating to detention and conditions of excessive security. It allows for a definition of qualifying hospital so that the scheme that was provided in 2003 can operate effectively in the present security state by allowing those in the medium secure units to seek a move to a lower level of security. It provides a framework for the test that must be met for the tribunal to make an order that the patient has been detained in conditions of excessive security. That test must include a requirement that the tribunal be satisfied that the detention of the patient in the hospital in which the patient has been detained involves the patient being subject to a level of security that is excessive in the patient's case. It allows regulation to include further requirements for the test to be met in relation to a patient. That could, in the future, include factors like the impact on a patient's care and treatment if they were to be moved, if that was felt to be an important consideration. It allows for flexibility around the test in light of changes in practice and in the light of the tribunal's experience of hearing appeals and the subsequent effect on patients. Of course, anything that was included in regulations is subject to scrutiny by the committee and by the Parliament. Amendment 31 will make regulations on the new section 271A, subject to the affirmative procedure. Amendment 30 is a minor technical amendment to re-order the words on the first line of the definition of relevant patient so that instead of authorised in hospital reads, in hospital is authorised, that this has no impact on the effect of the provision. It will turn to those amendments that relate to appeals under section 10 to 12 of the bill whether they relate to the state hostel or hostels other than the state hostel. Those are amendments 24, 25, 32 and 33. In relation to amendment 24, we know that appeals that have support of a medical practitioner are significantly more likely to succeed of the first 100 state hostel patients to make an application. 93 per cent of those who were successful had responsible medical officer support and those whose applications were unsuccessful, 91 per cent did not have responsible medical officer support. Research into the first 100 state hostel patients to appeal found that 23 per cent of appeals were rejected and a further 23 per cent were withdrawn. There may be a number of reasons at play here but would not be unreasonable to assume that the majority of those 46 per cent of cases would not have been a supportive report by a medical practitioner. This amendment would allow a medical practitioner to consider a patient's case and assess whether their opinion or test that is intended to be set out in regulations is met or not. It will not prevent any appeals that would have succeeded without the new requirement for a supportive report by a medical practitioner. Additional criteria that a medical practitioner might require to meet could be set out in the regulations introduced by amendment 29. Amendment 25 takes out subsection 9 of section 10 of the bill. This subsection was included in the bill in the introduction to allow an application to be made, even one of previous that would be made and then withdrawn. However, in further reflection, we are not persuaded of the need for this provision. We are not aware of the 10 years of operation of appeals from the state hospital and the acts provisions, which only allow for one application per 12-month period. Respect to the same patient has been a real issue. There have not been calls for change in following discussions with the tribunal. We have also taken into consideration the possibility of applications being made and withdrawn multiple times from any of the people with the right to make an application that results in potential impact on an increase in tribunal hearings. On balance, the effort was felt that we should maintain the considered position that was set out in the 2003 act. However, we are, of course, open to considering this matter again if there is evidence of a practical issue. Amendment 32 sets a new subsection that provides that in that chapter a reference to hospital may be read as a reference to hospital units. For the purposes of the chapter, hospital unit means any part of a hospital that is treated as a separate unit. That will, for example, mean that the duty on a health board under section 2683 to identify a hospital can be fulfilled by identifying a hospital unit, whether it is not in the same hospital as the patient that is currently detained. Finally, amendment 33 removes section 12 of the bill, which inserted a new section 272A into the 2003 act, as its terms are now included in other provisions, power to meet regulations, under the definition of qualifying hospital. The question of whether a patient is detention in the hospital involves the patient being subject to excessive security or instead found a new section 271A introduced by amendment 29 and provisioning and release to hospital units extending to all of chapter 3. Not just provisions related to patients, not in the state hospital, is in section 2732 introduced by amendment 32. It can be our move at amendment 24, my name. I now call on Dr Richard Simpson to speak to amendment 72 and all other amendments in the group. Thank you very much. Can I begin by welcoming the proposals both in the bill and the amendments as proposed by the minister? Those appeals against the level of detention being applied now in medium-secure units is being overly restrictive and very welcome. It was, as the minister has said, one of the major principles of the Milan Commission, which was incorporated into the 2003 act, that restrictions should be at the minimum level compatible with the safety of the patient and the safety of others. Hither 2 has meant that there could be appeals against continued excessive security found in the state hospital. At the time we passed that act, there was only one medium-secure unit—that was Orchard House in Edinburgh—and the numbers that were being held in the state hospital were more than twice those that are currently held. We now have the additional medium-secure units at Stubb Hill and the U unit at Murray Royal infirmary in Perth in my constituency. I very much welcome the fact that the minister tabled the regulations at an early stage, which allowed us to be very clear that this is about appeal against the restriction in those units, and that is to be very welcome. The purpose of my amendments is to take us further. If we look back to 2003, and as I have said, we had the state hospital and one medium-secure unit, the possibilities for transfer were not particularly high. The situation now is that we have low-secure units, which are at the state hospital level, medium-secure units and low-secure units, but they are not actually discreet. They are increasingly, as we go forward, there will be different levels of security in my view within the low-secure units. In line with the Milan commission requirement that the restriction should be at a minimum level, I believe that the time has come to consider whether, in fact, people should have the right of appeal without having to repeal against the detention order itself. They should be able to appeal against being held in a particular low-secure unit and should be able to move to another low-secure unit that may have a different approach. That is the purpose of the amendments that are in my name, table today. I recognise, however, that in discussions with mental health professions that, although they are ready for the changes that are proposed by the Government in respect of medium-secure units, they are not ready yet to look at the question of tackling low-secure units. Therefore, having that in regulations, we have been more sensible because they can be put through at a time in which the service is ready to deal with it. The question that I would ask the minister to sum up is whether he agrees in principle that we should now be looking at the matter of transfer between low-secure units or whether he believes that the time is not ripe. If he believes that the time is not ripe and therefore does not accept the principle at this time, I take it that he would not be prepared to work with me to produce suitable amendments at stage 3. However, I would hope that he might undertake that if he agrees to a major review of the act at a future date, which I hope that he will do later when we come to further amendments. However, that will be an element that is contained within that, because I do believe that we have to move to giving the patients greater rights against attention in a particular type of secure unit. That is reinforced by the fact that the minister himself has moved from changing the situation from a hospital to a unit. It is the differentiation between the units that are going to become increasingly supportive. My amendments would future-proof this bill at this time. I will conclude at that point. Are there any other members? I know Bob Doris and Rhoda Grant. Oh, sorry, I am first. I thank the minister and Dr Simpson for the arguments that I was looking at on whether to lodge amendments at stage 2. I found some of the minister's comments quite interesting. I got me thinking more about whether or not appealing against low security is actually appealing against excessive security or against security itself. I think that there was a point well made within that that the various settings within low security may be a part of a continuum and a preparation towards a community disposal for someone who is in the low security setting. I am just wondering some more information about whether at medium security settings, for example, are there various levels of security within medium security settings, because my understanding of the amendment in the bill specifically allows you to appeal against medium security rather than the various types of settings within medium security settings. Therefore, I would be more content with the minister's suggestions on the basis that, if we are viewing the low security setting as a continuum towards a potential community disposal, we have heard on the record the possibility to suspend a CTO by 200 days. I am also wondering whether the minister would agree. Perhaps there is more work to get a greater understanding of precisely what happens in relation to the low security setting and preparing those who have their liberty withdrawn from the low security setting and preparing for the community. At this stage, I am minded to support the minister's position, but I think that Dr Simpson makes some interesting points that require further discussion at a later date about how we look at various settings of security within low security and, indeed, both medium and the state hospital itself. Thank you, Rhoda Grant. Some H have raised some concerns about amendments in this group. Firstly, on amendment 29, that defines a qualifying hospital. You must be in a qualifying hospital to appeal against attention on the grounds of excessive security. Their concern is that it should be the conditions in which a patient is held rather than the hospital that they are held in. I look forward to the minister's comments on that. There are also flag-up concerns with 24 and 25, where an appeal must be accompanied by a medical practitioner's report. I heard the minister correctly when he spoke to the amendment. He said that 91 per cent of appeals were rejected if they were not accompanied by a medical practitioner's report. However, that would say that there are 9 per cent that go through without that support. I wonder what would happen to those appeals if the amendment was to be passed. Lastly, on amendment 25, on the withdrawals of appeal, I heard what the minister said in his remarks, saying that he would consider evidence on that if it seemed to provide a barrier. However, it seems to me that, if you withdraw an appeal and then you cannot lodge a further appeal in 12 months of your circumstances of change, that seems like a long period of time to elaps before you can do that, so I would also welcome his concerns. Although he acknowledged that, he said that he would look at this again if evidence came forward. I can be a member of the things that have been remarked upon, so let me try to pick everything up as well as I can. The first point is to say that Mr Doris is correct that this would be an appeal against the level, not about the specific, circumstances at medium-secure levels within the estate. Rhoda Grant suggests that Sam H has concerns about the fact that we have worded about the qualifying host on which she says that it should be about the condition that the patient is held in. I would suggest that that is a bit of a moot point, because the condition that they are held in is defined as being held in a medium-secure estate, but I am always happy to look at any other concerns that are expressed in relation to Rhoda Grant's other concerns about what would happen to her. She is right that I mentioned that 91 per cent of those who made an application that were unsuccessful did not have a responsible medical officer in support. She said that that was only of the first 100 state hospital patients to make an application, so it is of that particular sample. She asked what would have happened to the 9 per cent who were successful—I think that I tried to cover that in my opening remarks—that they would still be successful, because under those regulations, they would have had to get the report in the first instance and then would have been successful when they went forward, just because they did not have to have the report before, as opposed to the point. Now they would get that in support of their particular application and still be successful would be my expectation. In relation to Dr Simpson's amendments, he has set out a different approach. I understand his perspective entirely. I think that he did make the point that the professionals in the field do not feel that at this stage they would be ready for the approach that he has set out. I agree that we should always be looking at reinforcing patient rights. That is why we have brought forward those amendments. We are not convinced that, at this stage, we should go with Dr Simpson's preferred way forward. I should say that he asked to know that we could have a discussion with him. Of course, I am always happy to have that dialogue, so let me commit to doing that. However, I do rather suspect that this might be something that, if we were to look at, it would be a longer term thing rather than being achieved through the bill. Okay. Thank you for that. The question is then that amendment 24 be agreed to. Are we all agreed? Call amendment 25 in the name of the minister. Are we already debated with amendment 24? Minister, to move formally. Moved. The question is then that amendment 25 be agreed to. Are we all agreed? Thank you. Can I now call amendment 72 in the name of Dr Richard Simpson? Already debated with amendment 24. Dr Simpson, to move or not move? Not move. Not move. I then call amendment 26 in the name of the minister. Already debated with amendment 24. Minister, to move formally. It moved, convener. Thank you. Can I remind again members that if amendment 26 is agreed to, I cannot call amendment 73. The question therefore is that amendment 26 be agreed to. Are we all agreed? Yes. No, there is a division. All those in favour of the amendment, please raise. Those against. Those abstaining. For the amendment 5, against the amendment none, abstention is four. The amendment is therefore agreed to. Now call amendment 74 in the name of Richard Simpson. Already debated with amendment 24. Dr Richard Simpson, to move or not move? Not move. Not move. I then call amendment 75 in the name of Dr Richard Simpson, just for the record. I am already debated with amendment 24. Dr Simpson, to move or not move? Not move. Not move. I call amendment 76 in the name of Dr Richard Simpson. I am already debated with amendment 24. Dr Simpson, to move or not move? Not move. I then call amendment 77 in the name of Dr Richard Simpson. I am already debated with amendment 24. Dr Simpson, to move or not move? Not move. I call amendment 27 in the name of the minister. I am already debated with amendment 24. Minister, to move or not? Moved, convener. Thank you. The question is that amendment 27 be agreed to. Are we all agreed? Yes. I move to call amendment 78 in the name of Dr Richard Simpson. I am already debated with amendment 24. Dr Simpson, to move or not move? Not move. I now call amendment 79 in the name of Dr Richard Simpson. I am already debated with amendment 24. Dr Simpson, to move or not move? Not move. I now call amendment 28, 29, 30 and 31, all in the name of the minister. I am previously debated. I invite the minister to move amendments 28 to 31 in bloc. Does any member object to the single question being put on the amendments 28 to 31? No objection. I have not moved the one again. My apologies. I need to remember that you are here, minister. Can I ask the minister to move? You are keeping me on my toes today. You are helping me out, I am appreciative. The question is then that amendments 28 to 31 are agreed. Are we all agreed? Yes. Thank you. I now call amendment 80 in the name of Richard Simpson. I am already debated with amendment 24. Dr Simpson, to move or not move? Not move. Not move. The question then is that section 11 be agreed to. Are we all agreed? Yes. Thank you. Call amendment 32 in the name of the minister. I am already debated with amendment 24. Minister, to move formally? It moved, convener. Thank you. The question is that amendment 32 be agreed to. Are we all agreed? Yes. I now call amendment 33 in the name of the minister. I am already debated with amendment 24. Minister, to move formally? Thank you. The question is that amendment 33 be agreed to. Are we all agreed? Yes. We are. Thank you. Section 13. The question is that section 13 be agreed to. Are we all agreed? Yes. I am proposing at this point, hopefully with your agreement, to have a 10-minute comfort break and then we will resume for another approximately another hour at 10 past. Okay, thank you for that. Can we now reconvene? Can we welcome Adam Angham to the meeting and there's amendment coming up later and a wee while? We hope. Can we now call amendment 34 in the name of the minister group with amendments 97, 98, 35 and 81? Minister, to move amendment 34 and speak to all amendments in the group. Thank you, convener. The Scottish Government's key reason for amending this provision was to make the maximum period of detention and the purposes of that detention clearer for everyone involved particularly around detention being for the purposes of the medical examination. I'm very clear that the provision does not extend the period of detention, the maximum period of detention under the provisions introduced by the bill remains as now three hours. The only difference is that the maximum period of detention under the 2003 act is currently for a period of two hours extendable to three and under the bill's proposals the maximum period will be three hours from the outset. I consider this added clarity will be beneficial to service users and will not result in patients being detained for any longer than under the current legislation. It's also important to note that the three hours is an upper limit, not a fixed period. The provision will be accompanied by clear updated guidance in the code of practice, which will confirm that the provision should be used in line with the principle of least restriction. A working group has been set up involving a range of stakeholders to advise the Government on updates to the code. Aside from the issue of the maximum period of detention, I'm aware that a number of stakeholders have concerns that the proposals could result in the restriction of a service user's liberty. Amendment 35 responds to those concerns by removing the provision, which would allow the nurse's holy power to be used for the purpose of detaining the patient to ensure that he did not leave the hospital before the granting of an EDC or STDC. On reflection, I do not believe that this would be in line with the principle of least restriction. Amendment 34 simply removes certain text from section 14 that is no longer required because of the changes that are made by amendment 35. I turn to amendments 97 and 98 in the name of Naik Milne. Amendment 98 intends to remove any suggestion that patients must actively leave the hospital before nurses can exercise the holding power. I'm not convinced that that addresses a significant practical problem. The mental welfare commission's guidance covers the fine line between encouraging a patient to stay in the hospital, which does not require use of the nurse's power to stay in under section 299 of the 2003 act, until a patient cannot leave and will restrain the moment to try to do so, which could amount to de facto detention and should normally trigger use of the power. Amendment 97 is a structural amendment that is necessary to allow amendment 98 to work at Aston and Naik Milne not to press the amendments. Amendment 81 would remove the entirety of section 41. I believe that it was right to remove the provision that would have allowed the nurses holding power to be used for the purpose of detaining the patient and ensuring that they did not leave the hospital before the granting of an emergency detention certificate or a short-term detention certificate, as covered by amendments 34 and 35. However, I believe that the nurses holding power will benefit from being made more clear in terms of its purposes for arranging a medical examination that is clear to the patient with the outset that the power can last for up to three hours. If I ask Dr Simpson not to press his amendment, the convener will move amendment 34 in my name. Can I call Naik Milne to speak to amendment 97 in all other amendments in the group? Thank you, convener. I appreciate the minister's comments. I think that what he said probably does make my amendments more or less redundant. The reason for bringing them was that the subsection 3B of section 299 of the 2003 act required only where necessary for the protection of health, safety and welfare of the patient or the safety of any other person to be immediately restrained from leaving the hospital. It was the four words that the amendments sought to address. The law society has highlighted those words of cost confusion, leaving a question as to whether detention under this section is lawful when a patient hasn't made any overt attempt to leave the hospital. I'll leave it at that. Thanks. I call Richard Simpson to speak to amendment 81 and other amendments in the group. Can I begin by saying, convener, that I welcome amendments 34 and 35 as clarifying aspects of the nurse's part of detention. However, my amendment was made before those amendments were tabled or was formulated before those amendments were tabled. I might have therefore done it slightly differently. My amendment to delete the whole of section 4, to return the situation to status quo ante, was made because both the Sam H and Royal College of Nursing representative, the chair of the mental health section, and then mental health nursing forum Scotland, would have the view that amendment was unnecessary. That is the change from two hours with an extension to three to three. It does appear like a tidying up amendment, but it is again suggesting that, although the minister has said that this would be a maximum, of course, knowing as I do the way things go, it is likely to drift towards the maximum because the maximum is there. The two hours extending to three was a deliberate thing within the 2003 act. If the minister had produced some justification from the Government based on a statistical analysis or data collection for this proposal, I would have been more happy to support it. However, as Mr Barron said, and I quote from our report, we do not even know where that proposal came from. It certainly did not come from nurses. That seems to me a real problem, so I remain confused as to where that proposal came from. Furthermore, the supposition that without considerable enhancement of both the numbers and availability of mental health officers appears unlikely that that proposal, if that is what it is about, will lead to a greater involvement of MHOs. We know that they are already under pressure, and I do not think that changing the situation is going to increase the involvement of MHOs in that situation. Although it is true that psychiatry is also facing significant challenges at the present time, particularly in view of the fact that the latest report from the Royal College indicates that 42 per cent of all those psychiatrists in training completing the foundation exams are emigrating, failure in workforce planning should not be a basis for changing something and extending it to allow a smaller number of psychiatrists the opportunity of attending for the purposes of a medical examination. Overall, that, in my view, is a necessary diminution of the patient's rights and should be deleted. However, had I seen the amendments 34 and 35 before, I would have moved simply to return the situation to the status quo ante with the enhanced power that they could only be detained for the purposes of a medical examination, and I will look at that in stage 3. I wish to take part in the debate, but there is no other member to take part in the debate. The question is that the minister again. Thank you, convener. I will wind up, so I will not say too much. First of all, thank Nenette Milne for her comments. I am glad that she perceives it through the case that we have laid her take. I think that she said that it takes care of her concerns to Dr Simpson's perspective. We could have run around and sought to bring for a statistical justification for the change that we are taking. I should not call it a change, because I do not perceive it to be a change particularly. I think that what is on the face of the bill is far clearer for patients than the position that it is now. If they know at the outset that the maximum that they could be held is for a three-hour period, whereas at the moment it is two hours extendable to three, I do not particularly consider it to be a great diminution of patients' rights, particularly when you consider the other safe guards that we have put in here. I think that this has enhanced the level of patient rights. I think that this offers greater clarity for the patient. I hear that the RCN and the RCN have made a submission to the Government setting out the position. I have to say that they have not sought to meet with me directly. I am meeting them later today in relation to another matter, so that might be something that we can discuss. However, I am comfortable with the position that we have put on the face of the bill. I urge members to support the Government amendments and reject the amendments in the name of Richard Simpson and Ms Millan. The question is, therefore, that amendment 34 be agreed to, are we all agreed? Thank you. I now call amendment 97 in the name of Nanette Millan, already debated with amendment 34. I now call amendment 98 in the name of Nanette Millan, already debated with amendment 34. I now call amendment 35 in the name of the minister, already debated with amendment 34. The question is, therefore, that amendment 35 be agreed to, are we all agreed? Thank you. I now call amendment 81 in the name of Dr Richard Simpson, already debated with amendment 34. The question is, therefore, that amendment 81 be agreed to, are we all agreed? No. The committee has not agreed that there will be a division. Those in favour of the amendment, those against, no abstentions, for the amendment 4 against amendment 5, the amendment is therefore not agreed to. I now call amendment 36 in the name of the minister and in a group on its own. Minister to move and speak to the amendment. Thank you, convener. Amendment 36 removes section 15 of the bill as introduced, which would have shortened the period for appeal against transfer to the state hospital from 12 weeks to 28 days. This amendment means that patients will continue to have 12 weeks to appeal under section 220 of the act against their transfer. This provision was intended to ensure that potential treatment was not delayed. However, we have listened to the views of stakeholders and, indeed, of the committee about the potential difficulties for patients to appeal in the proposed timescale of 28 days and accept that those concerns outweigh the potential benefits and therefore move amendment 36. Thank you. Any members wish to participate in this debate? No. Minister, do not presume that you would wish to wind up the question. Therefore, then, is that amendment 36 be agreed to? Are we all agreed? Thank you. I now call amendment 37 in the name of the minister, group with amendments 38 and 39. Minister to move amendment 37 and speak to all amendments in the group. Thank you, convener. Amendment 37 amends section 16 of the bill to make it clear that, in relation to compulsory treatment orders, the periodical referral by the tribunal is to take place where no application has been determined by it rather than made to it in the preceding two years. That will avoid the situation where the review is not triggered because an application has been made to the tribunal and then withdrawn by the patient. It makes this consistent with the changes made to two-year reviews of compulsion orders and restriction orders by section 16 of the bill. Amendment 38 makes an amendment consequential upon amendment 37 so that paragraph 13A of schedule 2 is repealed in its entirety as it is no longer necessary. Section 16 of the bill is intended to solve a genuine problem that has led to reviews under section 189 being delayed. The need for a section 189 reference is currently calculated by whether a reference was made in the two years prior to the relevant day, which is the anniversary of the order, as I described, in relation to amendment 37. The provisions in section 16 particularly relate to where a review is not triggered because an application is made to the tribunal and then withdrawn by the patient. That can lead to substantial delays to the two-year review. Therefore, I invite Dr Simpson not to press amendment 99, given the benefits that will result from section 16 of the bill. I move amendment 37. Thank you, minister. Dr Simpson, to speak to amendment 99 and other amendments in the group. This amendment was raised with me by the Law Society, which considered that any reference should be dealt with efficiently and effectively by the tribunal, thus avoiding any unnecessary delay in determining the reference. Patients should not be disadvantaged by delays in the tribunal process and have a right to have their orders reviewed two-yearly by reference the date on which the reference is made, to maintain consistency and to avoid confusion and to ensure that patients are not disadvantaged. Two-yearly reviews of all orders should be timetabled in the same way. However, if I am hearing the minister correct that his further amendments deal with the issue, I will be content. Any other members? No? Minister? The question is that amendment 37 be agreed to. Are we all agreed? I call amendment 38 in the name of the minister. I already debated with amendment 37. Minister, to move on. The question is that amendment 38 be agreed to. Are we all agreed? I call amendment 99 in the name of Dr Richard Simpson. I already debated with amendment 37. Dr Simpson, to move on or not? This amendment deletes section 17 in its entirety. The Law Society has indicated to me that it feels that this section depends upon the Scottish Government. Oh, sorry, was that moving or not moving? Yes. Oh, sorry, not moving, sorry. Okay. Yeah, yeah, yeah. That's okay. You're on. That's okay. Okay. I now put the question to say agreement in section 16. Yes. I agree. Thank you. Can I call amendment 100 in the name of Dr Richard Simpson in a group on its own? Dr Simpson, to move and speak to amendment 100. This again has arisen from discussions with the Law Society and would have the effect of deleting section 17 from the bill. This section would appear to depend on the Scottish Government introducing statutory timescales, which do not appear in the bill. Accordingly, this section does not make sense as things currently stand and they believe that the section should be deleted. Sorry. Any other members? No, minister. Convener, Richard Simpson's amendment makes the argument that there are no statutory timescales in the bill. That's not quite right in the 2003 act. There is at least one timescale for the tribunal that applies in section 69 in relation to extension of short-term detention, pending the termination of application. It's also possible that timescales could be, it could also be set by tribunal rules or provisions, leave open the question of where the timescales come from. I would argue that section 17 of the bill could still have a purpose, however, having reflected on changes to the bill since it was originally a consultant, I'm content to accept this amendment. I would support it and urge members to vote for it. Dr Simpson, presser with the law, I think. The question is that amendment 100 be agreed to. Are we all agreed? Yes, we are agreed. Can I now call amendment 101 in the name of Adam Ingram, group with amendment 102. Adam Ingram to move amendment 101 and speak to both amendments in the group. Thank you, convener. Although there are a few people who would challenge the powers to keep mentally ill patients in a place of safety or a place of care, treatment with psychiatric drugs should not be the sole means of treating mental illness, which appears to be the situation prevailing at the present time in Scotland. Many contend that physical health conditions, which may underline mental illness, too often go untreated within mental hospitals. Some 25 per cent of long-stage patients have no record of health checks, for example. Similarly, people with behavioural issues such as those on the autism spectrum may also be doubly disadvantaged. Treating people with autism spectrum disorders with psychiatric drugs has serious consequences, which are outlined in detail by autism rights in their written evidence to the committee. None of the current practice takes account of individual tolerance of these drugs and little is known of the effects of polypharmacy. To give one example, it is not current practice to record prescription of drugs for epilepsy in mental health institutions. Many people with autism also have epilepsy. It is not well known that seizure activity, even at subclinical level, can induce hallucinations with obvious dangers of misdiagnosis. Psychiatrists are not considered to be knowledgeable about autism, so access to other professional expertise is essential, particularly for people on the artistic spectrum. Far greater care should be taken with psychotropic drugs, and my amendment seeks to promote this. Some people cannot tolerate psychotropic drugs at all or can only tolerate them in tiny doses over a short period of time, so there has to be a real choice of treatment options for these people. It should also be noted that the nice guidance on ASD states that psychotropic drugs should only be used for six weeks and discontinued if there is no significant improvement. That is a major change from current psychiatric practice and needs to be applied and respected. Amendments 101 and 102 are designed to address what appears to be the default position of psychotropic drug use in the treatment of mental illness in favour of a more holistic approach. Any other members who speak with Dr Simpson? I speak in support of Adam Ingram's amendments. I think that this is a very important issue. I would take issue with some of the things that he said about my psychiatric colleagues, if I can remind our members of my declarations, as a fellow of the college. Nevertheless, the issues that he raises are important. I would like to add to it that one of my major concerns at the moment is the treatment of people with dementia in acute hospitals with psychotropic drugs. That seems to me to be something that is really unacceptable. That is, of course, not being ordered by psychiatrists. It is being ordered by those serving in the acute hospital, often without the use of liaison psychiatry. It is a matter of grave concern to me that that is happening. In addition, of course, there is the question of the use of psychotropic drugs in care homes, which the committee has looked at on a previous occasion. Again, although the care inspectorate has looked at it, I do not believe that it has been looked at in as effective a way as it might be. That is despite the fact of excellent reports by the Mental Welfare Commission looking at those issues. I think that the general purpose of Mr Ingram's amendments are extremely welcome, and they are worthy of consideration. The name is Milan. Yes, I would also speak in favour of Adam Ingram's amendments. I think that this is an opportunity to address something that has really been a running sore for quite a long time. There have been a lot of concerns expressed about the use of psychotropic drugs, both in acute hospitals and, as Richard Simpson said, in care homes. I happily support those amendments. Thank you. Can you say at the outset that I recognise that Adam Ingram has introduced those amendments to highlight some strongly held concerns that have been raised by some individuals and organisations? Let me commit to being very willing to meet Mr Ingram and, indeed, Dr Simpson and other members to discuss in greater detail any of the particular concerns that they have raised. Let me say at the outset that the bill that we are presenting or debating today is a very focused bill. My slight concern here is that the area that Mr Ingram has brought forward seeks to go slightly wider than what we have before us. The 2003 act is designed to improve the safeguards of patients, all medical practitioners who are giving treatment for a mental disorder must have regard to the principles that are set out in section 1 of the 2003 act into any advanced statement that a patient makes. In particular, the code of practice already highlights the responsibilities that medical practitioners have, including that the views that the patient should be taken into account and the patient should be given information assisted to understand the treatment and its aims and effect. My view is that the 2003 act already makes the original provision that treatment, including the use of psychoactive substances, has appropriate safeguards in place, including that patients have the information that they need to understand the treatment and to make their views known. It might also be helpful to highlight provisions from the patient rights. Scotland Act 2001 says that healthcare is to be patient focus. That is to say that anything done in relation to the patient must take into account the patient's needs and have regard to the importance of providing the optimum benefit to the patient's health and wellbeing, allow and encourage the patient to participate as fully as possible in decisions related to the patient's health and wellbeing, have regard to the importance of providing such information support as is necessary to enable the patient to participate in decisions in relation to any related processes, taking all steps to ensure that the patient is supplied with information and support in a form that is appropriate to the patient's needs. Let me reiterate my willingness to meet Mr Ingram and others if they wish to request such a meeting to discuss those issues. I would urge Mr Ingram not to press his amendments, but if he does, I urge members to vote against him. Thank you, convener. I would certainly be more than happy to engage with the minister on this issue. Indeed, I would be very helpful if Dr Simpson accompanied me there. He will keep me right, I have no doubt, with those psychiatric colleagues in mind. I do think that this is an issue as both Dr Simpson and Annette Milne indicated, which has been something of a long-running issue. I think that it does need to be addressed. I hear what the minister says about the scope of the bill, but perhaps if we could have the discussion with a view to revisit perhaps at stage 3, I would be grateful for that opportunity. On that basis, I seek to withdraw the motion. The member is content with the withdrawal. We now call amendment 102, in the name of Adam Ingram, already debated with amendment 101, Adam Ingram, to move or not move. We now call amendment 103, in the name of Annette Milne, grouped with amendment 39, 40, 41, 42, 43, 105 and 108. Annette Milne, to move amendment 103 and speak to all amendments in the group. This amendment relates the ability of a patient to opt out of having a named person. Unusily, perhaps, we are discussing opt out provisions, as the Scottish Government stated in paragraph 90 of the policy memorandum, to a person who should only have a named person if they chose to have one, but the bill, as it stands, retains the default provisions in section 251 of the 2003 act. In the bill, as it stands, any opt out from having a named person requires to be in writing. It is my view that such an opt out should be able to be made by any means available. The Law Society has stated that this amendment would allow people to opt out, for example, by making an oral statement before the tribunal or by communicating that intention to an independent advocate. I realise that, perhaps, if my motion had been put down later, it would not be relevant, because, in fact, I think that the following amendments do address the removal of the concerns by making it quite clear that a person does not have a named person unless they specifically say that they want one. Thank you, Minister, to speak to amendment 39, and other amendments in the group. Thank you, convener. The stage 1 debate highlighted the importance of ensuring that individuals only have a named person if they choose to have one. I noted that it was likely to propose amendments to achieve this. The Government's response to the committee's stage 1 report recognised the need if this was done to provide protections for service users without capacity and who have not been able to appoint a named person. I will begin by addressing the amendments that I have proposed to this effect. Amendment 39 works with amendment 40 to remove the default named person role. Specifically, amendment 39 removes section 18 from the bill, which allowed someone to opt out from having an named person but retained the default for those without the capacity to make the decision. It is amendment 40 that removes the existing provisions for the default named person under the 2003 act. The Government listened very carefully to concerns raised by stakeholders in relation to the default named person. We have taken their view that it can cause considerable distress to both patients and to their carers and relatives. Amendment 40 and its related consequential amendments will mean that a service user will only have a named person if they want one. Amendment 41 is a consequential amendment to amendment 40 that removes a reference to section 251 of the act from section 19 of the bill. Section 251 of the act is repealed by amendment 40. Amendment 42 relates to the provisions in section 20 of the bill that repeals the section of the 2003 act, which gives powers to the tribunal to appoint an named person where the patient does not have an named person. This is a consequential amendment to remove the right to repeal that decision and a mission that was picked up during scrutiny of the bill. As already noted, amendment 40 removes the default named person provisions. As colleagues will be aware, the Government did not remove the default named person role when we introduced the bill. That is because we had some concerns about protections for the most vulnerable service users. I do not think that we are right to remove the default named person role without bringing in some form of appeal right concerning those without capacity to either nominate an named person or initiate an application or appeal to the tribunal. Without some alternative appeal right, the patient would in effect not be able to appeal where they had no named person. In the case of a short-term detention certificate, that could be detained for 28 days with no automatic review or right of appeal, which might be of concern in relation to their ECHR rights. We have therefore introduced a limited right to initiate certain appeals and applications for the patient's guardian, welfare attorney, primary carer or nearest relative. In the absence of a named person is our view that these are the best place people to act. They are referred to in the amendments as listed persons. It is important to emphasise that they can only act where the patient himself does not have the capacity to do so. The amendment would also allow a patient's guardian or welfare attorney to receive certain information or notifications that would otherwise have been given to a named person. In coming to this view, the Government has balanced the range of factors that this includes protecting vulnerable service users but also respecting patient autonomy and privacy. This feels to us about the best solution that meets all these important considerations. Certain provisions of amendment 43 are designed to address our policy of respecting patient autonomy and privacy. That includes subsection 7, which allows the patient to make a written declaration that they would not want their primary carer or nearest relative to have the ability to make applications and appeals on the patient's behalf at the time when the patient does not have the capacity to do so. A patient may, for example, make such a declaration if they made the decision that they did not want a named person. Subsection 6 provides protection in relation to privacy by having the effect that a guardian or welfare attorney does not automatically receive a certain, potentially sensitive information in the same way that a named person would at the section mentioned. For example, if a responsible medical officer determines that a compulsory treatment order is to be extended, the guardian or welfare attorney will receive a notification of that determination but not the full record setting out the reasons for the determination and any views expressed by the mental health officer. It is important that I also put in record an additional provision to this, which is not covered by the bill. Our intention is that the listed person will only be able to initiate the application or appeal with the agreement of—sorry, at the hearing, Curatorad would take over. We will also, with the agreement of the tribunal, seek to amend the tribunal rules so that the listed person does not automatically receive copies of papers, orders, records or certificates, as that could contain sensitive information. We are continuing to work on the best solution to this particular issue, and I will be working closely with the tribunal and commission. I am happy to take views of committee members and stakeholders going forward as the best way to do this, as this is a vital aspect of the bill that I am determined to get right. In that regard, I should refer back to Dr Simpson Reid, who raised the cross-borders transfers earlier, and I will be happy to look at anything that Dr Simpson would like the Government to consider in relation to those matters. If, for any reason, we do not feel that we can achieve this through tribunal rules, then I will look to propose amendments at stage 3. I fully understand the concerns around sensitive information being received by carers and relatives who do not want to receive it and around breaching the service users' privacy or policy intention as this will not happen. Turning to the non-government amendments, amendment 103 relates to how our person does not wish a named person to make such a declaration and, in particular, it removes the request that has been done in writing if the Government amendments to remove the default named person are accepted, as the net mill has noted. That amendment becomes redundant and would ask her not to press her amendment. Amendment 105 would give the mental health tribunal powers to a point-eye person to provide independent advocacy services where the service user has no named person. It would also give ministers powers to make regulations to prescribe the functions of the independent advocate as long as it does not give them access to medical records. The role of an advocate is different from that of a named person convener, and it should remain so. Amendment 105 would blur the lines of what the role of what an advocate should be to express the wishes of the person that they advocate for and not make decisions for them. Although I accept the intent as positive, I do not support this amendment. It seems to envisage that the mental health tribunal might appoint a person to provide advocacy services to a patient. However, advocacy services have to be accepted voluntarily, nor are independent advocates a replacement for a named person who has the right to initiate proceedings and take part in proceedings independently of the patient. On that basis, it would ask Rhoda Grant not to press the amendment. The intention of amendment 108 is to put a right of appeal for named persons against the cross-border transfers in the face of the 2017 act. I cannot accept the drafting of the amendment as it refers to subsection 2901f of the 2018 act. That provision does not exist. However, I am in agreement with the policy intention and I am happy to put it in the record. I will ensure a right of appeal for named persons against cross-border transfers will be covered by regulations on cross-border transfers. I have already made the commitment to Dr Simpson. I hope that that provides the necessary assurance for Melinda Gennag to ask her not to press the amendment. I call Rhoda Grant to speak to amendment 105 and other amendments in the group. I have listened carefully to what the minister says and I am very much welcome the removal of the default named person in the bill. However, I do not think that we are here yet. My amendment was to try and provide some additional support for people who maybe do not have capacity in the situation where they are having to undertake compulsory treatment. I have listened to what the minister said and indeed others and will not move that amendment. However, I think that there are issues with the minister's amendment 43, which also seeks to provide additional support to people in the situation where they do not have a named person. However, I have concerns about that in that it still puts a carer or a relative in that position and does not give them the opportunity to refuse to take that action on behalf of a patient. It also gives the next of kin maybe stronger rights than the carer, who I think it would be important to, as the primary person who is dealing. I am happy to give way. Yes, it may be helpful in the process. Thank you, convener. It is just to clarify where she expressed the concerns about amendment 43 putting requirements on carers and those with power of attorney. It should be clear that no such requirement is placed upon them. It gives them the right to initiate proceedings and they do not have to do so. That is really helpful. However, the minister will be aware that Sam H still has concerns about that amendment. With the ranking between primary carer and next of kin and concerns of people about next of kin, the patient may have issues with being given rights over that patient. I suggest that we have further discussions on that and certainly welcome the minister's discussions on that previously and before today. Just to make sure that we get it right because I think that it is a really crucial part of the bill. While welcoming the steps that have been taken, I think that we have a bit further to go before we satisfy everyone on this. Can I first of all welcome the new amendments by the Government that they do help, but they do not remove the matter raised by Nanette Milne because the thing about producing writing or in any other means relates to, if I understand the Government's suggestion that this one of three should not be pursued, because that relates to capacity. My problem remains, as it does with the act, that what constitutes capacity. Now, in terms of the amendment that has proposed, incapable has the same meaning as in section 250 of the act. That, I take it, is a serious impairment of a decision-making ability and not the total loss of capacity as under the 2000 act, which would be a purpose of being incapable of acting, making decisions, communicating decisions, understanding decisions or retaining the memory of decisions. It is at the nub of some of the discussions that are taking place in civic Scotland, both in health professionals and among patient voices, as to the differentiation between SIDMA and the Capacity Act. I would ask the minister to sum it up whether he is in refernt to section 250. I would be very happy to give way if the convener would allow it. We might be bringing new territory here, but I am sure that it is helpful for the debate. It would be very helpful. Minister, can we just clarify the concerns that have been raised by Nanette Milne, which Dr Simpson seems to be equating, are no longer a consideration, because we are seeking to delete that entire section, so there is no longer a requirement that someone would have to apply in writing in the first place. It is just to clarify that point. No-one would have to apply at all as a point. No-one would have to apply. I am not extending it to a conversation. No, no, okay, that is fine. Anyway, I think that the minister has made his point, and you will need to take with that in consideration. If I can continue, then, the question of the medical officer's report, I have some slight concerns about this, in the situation where it may be that this is passing the responsible medical officer's report to the other persons listed, and that is not something that they may or may not do, depending on what they see as being, whether it is sensitive information or not. I have a slight concern here in that, if the advanced statement by the patient already indicates that, in circumstances where this occurs, that statement should be given, then, at the moment, it remains the responsibility of the responsible medical officer to decide, and not, in fact, the patient's decision when given in full capacity within an advanced statement. So, I have some slight concern about that. Now, I realise that the minister cannot come back, because he is not summing up, but it may be that we would need to look at that in stage 3. The last element is advocacy. Rhoda Grant's amendment is to try and add advocacy on. I understand fully, and it will come to this later when discussing advocacy, that advocates should normally be notified and informed, but they do not actually represent patients or make appeals on behalf of patients. I fully accept the minister's view that that distinction needs to be maintained. However, in the absence of either a guardian, a welfare attorney, a primary career or a near relative, the remains individuals who, where there is no named individual, are not going to have anyone operating on their behalf. In those circumstances, I believe that the Alliance for Advocacy, the independent advocacy alliance, would be prepared to allow advocates to be nominated to be able to carry out these actions, so Rhoda Grant's amendment may have some merit. Those amendments 103 and 105 might not be being pressed, but I do believe that they are required to be addressed before we get to stage 3. I mean, I'm going off script here, I suppose. The net mill and it's got the right to wind up and press on the throne. I'm going to come to her in a moment, but there was a lot of discussion there, and I think there's a will. I don't know where the minister wants to respond to any of that. Just very briefly, obviously, I've been there a couple of times to try and clarify, and hopefully that's been helpful. Let me clarify one other point, Richard Simpson. Dr Simpson seemed to be concerned that the report of a mental health officer could be passed on to those who had ever been listed persons. I should emphasise the point that I made in my opening remarks, so that's not quite the case. The determination of the mental health officer would pass on the content of the report would not be, so I hope that that takes care of some of his concerns. I accept the point that Dr Simpson made laterally in terms of further safeguards for those who may not have anyone else to act on the behalf. Ms Grant has asked for further discussion, so let me commit to that further dialogue with her in that matter. Thanks, minister. I now move to the net mill and to wind up the pressure withdrawal. Yes, I'm happy to accept the minister's explanation as to why my motion is no longer necessary and I won't be pressing it. Members agree to withdraw the amendment. I now move to amendment 39. The name of the minister is already debated with amendment 103. The question is that amendment 39 be agreed to. Are we all agreed? Can I now call amendment 14? The name of the minister is already debated with amendment 103. The question is that amendment 40 be agreed to. Are we all agreed? I now call amendment 41. The name of the minister is already debated with amendment 103. The question is that amendment 41 be agreed to. Are we all agreed? The question is that section 19 be agreed to. Are we all agreed? I now call amendment 42. The name of the minister is already debated with amendment 103. The question is that amendment 42 be agreed to. Are we all agreed? The question is that section 20 be agreed to. Are we all agreed? I now call amendment 43. The name of the minister is already debated with amendment 103. The question is that amendment 43 be agreed to. Are we all agreed? The question is that section 40 be agreed to. The name of the minister is already debated with amendment 103. The name of the minister is already debated with amendment 103. The name of the minister amendment 104, in the name of Rhoda Grant in a group on its own, to move and speak to the amendment. The amendment is to reflect the rights of carers and gives the powers to draw up a code of practice on the guidance of the role of carers and relatives, but being very clear that that does not give them access to medical records, so it provides some balance against the next of kin not being involved, but it allows carers and relatives to have an input to a patient's treatment. I think that this is most important when it comes to discharge planning. A lot of people have told me when a patient is being discharged from hospital, that carers very seldom have any information and in some cases carers have told me that this has led to them being unprepared and indeed unable to support. Given that this is a time of a big suicide risk, it is really important that carers are involved in that planning so that they can support and indeed decide whether or not they are able to support that person through that process and I think that that is really important. It gives powers to create the code of practice so that those things can be put in place and given the powers to create a code of practice, I think that it understands that the role of carers may change and move on and therefore can be adapted rather than being put on the face of the bill. Bob Doris, can you hear any other members? Thanks, convener, just very briefly. As far as I can speak on this, listening to Ms Grant's comments, this committee held an event yesterday speaking to a variety of carers in Glasgow and one of the issues that was raised there, not in relation to mental health issues, I have to say, was carers not being routinely informed when there are such things as discharges, discharging from hospital and the like, so it is mainly to put on the record that as we are debating this, this might not be a specific issue to mental health provision but more in connection to carers' rights more generally in communication to them. I am hoping that this is the right place to address this or elsewhere, convener, but I think that it is important to put on the record that I do not think that this is specific to mental health issues. Can you hear me picking up Mr Doris's point? Of course, the Government takes the role of carers very seriously and their responsibility to better support carers very seriously, and that is of course why we have lodged the carers bill, which I know that the committee is beginning to consider. Involving carers and relatives in a patient's care treatment is important. It is one of the strong themes that emerged from the consultation on the mental health strategy, and it is one that is raised with me in correspondence. I welcome the fact that Rhoda Grant's amendments allow us to get this issue on the record that the best care and treatment needs professionals to work with carers and patients collaboratively where all are able to contribute. Making that work can be difficult and it requires good professional judgment and skill about sharing information involving carers while taking account of the patient's views, which are sometimes in conflict. I recognise that Rhoda Grant's amendment is intended to reflect exactly that point. The concern that patients might have about carers having access to information that they would not want shared by emphasising that patient records cannot be shared. Indeed, other legislation already provides safeguards on the confidentiality of medical records. In developing the revised code of practice, I intend to include guidance about involvement of carers and relatives. I will ask the working group that is developing the revised code to do that and to reflect the good practice that exists. My view is that that does not need to be something that is included on the face of the bill, but I want to make my commitment on the record that was to be covered in the revised code of practice. I would be happy to discuss how we can do this with Rhoda Grant. If it is the case that she wants to pursue an amendment at stage 3, in light of that discussion, I would be happy to work with her to try and bring forward a revised amendment at that stage that reflects how the code of practice supports good practice in involving carers and relatives. On that basis, we urge Rhoda Grant not to press her amendment at stage 2. I welcome the minister's commitment to ensure that that is covered in the revised code of practice. Because of that, I will withdraw the stage and maybe come back at stage 3, if that is required. We now move to call amendment 82, in the name of Richard Simpson, grouped with amendments 83 and 84. Dr Simpson, please move amendment 82 and speak to all amendments in the group. During the course of the evidence sessions, it became clear that there was a strong desire among those who were engaged in the mental health field to strengthen the role of independent advocacy and the series of amendments that I have tabled do just that. The first intention is to ensure that, in all situations, whether the patient or the patient's named person, carer or other representatives such as a legal representative are to be informed or notified, the independent advocate, if such a person is in place, providing a service to the patient, should also be notified. The other two roles that the advocate may take on, where it is not simply a matter of notifying or informing, is in respect of making representations or making an application on behalf of a patient. As I mentioned in the discussion of an earlier amendment, those are not usual roles for an advocate, but in the absence of others being willing to undertake that role, it seems to me appropriate that advocates should at least ask if they would make the representations or applications or if they would wish to do so based on their knowledge of the patient. Those additional duties that I recognise go beyond the more usual role of an advocate. The other amendment, which is supported more widely by the Scottish Independent Advocacy Alliance, SAMH and others, is to ensure that there is adequate monitoring of the availability and accessibility of advocacy services. There is considerable evidence that, despite the welcome advance in the deployment and availability and use of independent advocates, the picture is anything but uniform. I believe that we need to be aware of the situation and the monitoring and reporting that I have suggested in this amendment, which has been best undertaken by the Mental Welfare Commission, would help. There should be regular reports from the local authorities and NHS boards, which would allow the commission to determine the adequacy of independent advocacy services and report to the Scottish ministers on this. I would expect thereafter that Scottish ministers would wish to report from time to time to the Parliament or to the Health and Sport Committee on this issue. It is certainly one that has been concerning the committee over a number of years. I wish to move the amendments in my name. Any other members wish to speak on that? No, minister? Thank you, convener. Some of my remarks will be similar to those related to the Rhoda Grant amendment in the group 11 debate. As drafted, Richard Simpson's amendments 82 and 83 make provision for advocates that are extensive in go beyond the role that advocates normally play to assist the patient to access the rights rather than having rights to meet representations, access to information and to lead and produce evidence at the tribunal. However, the amendment might have been developed to fill a gap, which is created by removing the default position of having a named person where a person is not appointed, a named person and where a person is not able to act on their own behalf. The Scottish Recovery Amendment 43, which the committee has just agreed, is intended to provide for that situation by including a limited list of people who can act in limited circumstances on behalf of a patient who does not have a named person and who is not able to act on their own behalf. I am, of course, committed to having some dialogue with Ms Grant, and I am also happy to speak to Dr Simpson about the matter in advance of stage 3. On that basis, I would urge members not to support those two amendments 82 and 83. I recognise that ensuring that people are able to access advocacy is something that is important to many people and organisations that have offered their views during the committee's consideration of the bill. That far indeed I met with the Scottish Independent Advocacy Alliance to discuss some of those matters a couple of weeks ago. I understand, too, that some people have interpreted the fact that we did not include anything in the bill specifically about advocacy as an indication that it is not important. That is definitely not the case, convener. My view is that the 2003 act already sets out duties to provide advocacy. I accept that people's experience of accessing advocacy does not always meet their expectations. It is important that we understand that and ensure that people are able to access services and their rights. The Mental Wealth for the Commission has indicated that it could be possible to develop a report that is not overly resource intensive. That proves to be the case for NHS boards and local authorities as well as the commission. I would be prepared to work with Dr Simpson to bring forward an amendment at stage 3. I urge Dr Simpson not to press his amendment at stage 4 on that basis. Dr Simpson, wind up, please. The issue, as the ministers quite rightly said, is that with the possibility of no-named person that individuals may in fact be unrepresented. I believe that the advocacy role could be extended reasonably in these rather limited circumstances. The situation again is complicated for me by the difference between the Adults Within Capacity Act, Measurement of Capacity and the Mental Health Bill's Measurement of Capacity. That is a fundamental problem to which we will return in later amendments. However, where the capacity is very seriously impaired, individual patients may be left totally unrepresented. In those circumstances, it seems to me reasonable that the advocate, if they have previous knowledge of the patient and they may well do so, should be able to make an application or make representation on their behalf, on the basis of previous understanding. I will accept the minister's view at the present time and not move those amendments on the basis that we can have some further discussions and look at whether the role of the advocate needs to be enhanced within the act or within regulations in order to ensure that patients do not go unrepresented. Amendment 82 has been withdrawn. No member objects. No. Can I then call amendment 83, in the name of Richard Simpson, who is already debating for amendment 82? Dr Richard Simpson, move or not move? We then move to amendment 84, in the name of Dr Richard Simpson, who is already debating for amendment 82. Dr Richard Simpson, move or not move? No. Therefore, I call amendment 44, in the name of the minister, grouped with amendments 45, 46, 106 and 107. I take the opportunity to point out that, at this time, if amendment 46 has agreed to, I cannot call amendments 106 or 107, as they would be deemed. Minister, to move amendment 44 and speak to all amendments in the group. Thank you, convener. The Government's intention with section 21 was to increase the uptake of advanced statements. We had hoped that a central register of statements could do that by giving reassurance that the statement could always be located through the central register. However, we have listened to stakeholder concerns that this could have an adverse effect and deter some service users from making an advanced statement. I had also hoped that such a system would lead to advanced statements being more readily available for relevant practitioners when they required them. It is now clear that this might not be the case. We have therefore worked with the Mental Welfare Commission to develop alternative proposals that will not require the statement to be sent, but it will require certain information to be sent to the commission to help them monitor the numbers of advanced statements made and to provide a central place where the existence and location of an advanced statement is recorded, but the advance statement itself is not held. Amendment 44 removes the provision that required a health board to send a copy of the statement to the commission. It sets out the information that should be sent instead, which includes that a statement or withdrawal document exists, where it is held and that any personal administrative detail is essential for identifying the record as the person's advance statement. Amendment 45 will ensure that there is a central register of information about advanced statements that is kept by the commission. That will provide a source of information if there is any uncertainty as to whether a statement exists for a particular patient or where it is held, by requiring the commission to mark the date of entry. That will ensure that there is no confusion when a subsequent statement is made or if a statement is withdrawn. Amendment 46 is a consequential amendment to amendments 44 and 45. It removes the reference to anything kept in the register to be inspected at a reasonable time by the person to whom the thing relates and replaces it with a reference to an entry in the register to be inspected at a reasonable time by the person whose medical records are referred to in the entry to reflect the changes to the information that is kept in the register. It takes care of the concerns about the legislative terminology that I believe the net millions amendments 106 and 107 that we need to address. Beyond that, there is a problem with amendments 106 and 107, as it would make the provisions refer to an advance statement only and not also to a document withdrawing one. Both things need to be covered with no thing remaining in the text and with the admission to a reference to any withdrawal document. I would ask the net millon respectfully not to press her amendments and I move amendment 44. Thank you. The net millon, to speak to amendments 106 and 107 and other amendments in the group. Yes, as has been said, my amendments are largely technical, altering the language in section 21, which amendments 276 and 273 act. The commission will keep a register of advance statements. If one of the words inserted by the bill as it stands would allow anything in the register to be inspected, the context is clear that it can only refer to advance statements. So the amendment that I am proposing will alter the language in section 21 to provide additional clarity in replacing thing and anything with advance statement. The terminology that the minister has indicated is not exactly the same as that, but I think that it covers the same meaning. Any other members? No? Minister? Question is then that amendment 44 be agreed to, are we all agreed? Call amendment 45, in the name of the minister, are we already debated with amendment 44, minister, to move formally? Moved, Grifure. Thank you. The question is then that amendment 45 be agreed to, are we all agreed? Call amendment 46, in the name of the minister, are we already debated with amendment 44, are the main members that, if amendment 46 is agreed to, I cannot call amendments 106 or 107. Minister, to move formally? Moved, Grifure. Thank you. The question is then that amendment 46 be agreed to, are we all agreed? Yes. I now call amendment 85, in the name of Dr Richard Simpson, grouped with amendments 86 and 87. Dr Simpson, to move amendment 85 and speak to all amendments in the group. First of all, can I welcome the changes that the minister has made to the registration process? I think that that was something that was raised in the evidence that we received about protecting confidentiality and privacy for our statements, but I have drafted a number of amendments seeking to ensure that the privacy and confidentiality was fully protected and that the registration with the commission goes a long way to that. However, the statement itself will now be held elsewhere and my additional amendment will write in section 276D a requirement upon the minister's by-regulation to set up the circumstances under which a person or persons may have access to advanced statements. I believe that that remains pertinent, though I would be happy to hear from the minister as to whether that is or is not the case. The other amendment in this group is about promotion of advanced statements in the name of Bob Doris, and I would be very supportive of that amendment. Thank you. Bob Doris, to speak to amendment 87 and other amendments in the group. Thank you, convener. Speaking to amendment 87 in my name, I thank Sam H for his partnership work to bring this amendment forward at stage 2. The amendment that has passed would place a duty on health boards and local authorities to promote advanced statements. The amendment is also in support of a wide range of variety of stakeholders. Advanced statements are a powerful tool that allows people with mental health problems to state what treatment they do or do not wish to receive in the event that they are treated compulsorily under the act. However, those statements are not binding, medical staff must notify the person, the person's name person and the mental welfare commission in writing if the statement is overridden, setting out that reason. No information is currently available at present on the number of advanced statements that have been made, but the mental welfare commission was notified of 31 overrides in the year 2013-14. Of course, with other provisions passed in this act, we will start to get some robust data in relation to that matter. Sam H's research suggests that there is a very mixed awareness of the right to make an advanced statement that people do not often feel that they are well promoted and that, whilst there is strong support for the concept, people are sceptical about whether they will be taken seriously or not. A duty to promote advanced statements coupled with stronger guidance in the code of practice about when and how they should take place has the potential to increase uptake and empower people to be clear about what they did and did not want to happen. Our committee noted in our stage 1 report that the Government's preference to raise awareness of advanced statements from the grass roots, I believe, was the expression raised, but we did ask the Government to consider placing a duty to promote within the bill, and that is what the amendment does. If the Government cannot support placing a duty on the face of the bill, I would need some additional assurances about how the four points raised on the face of the bill that I have worked in partnership with Sam H ensured to make sure that advanced statements are indeed promoted can be achieved by another means. Thank you, convener. I thank Dr Simpson for setting out his thinking on amendment 85. I remain unclear, however, about what is envisaged might be set out in the proposed regulations beyond the requirement for access to an advanced statement to relate to the exercise of functions under this act. The act already, for example, requires the designated medical practitioner to have regard to an advanced statement before making a decision under sections 2, 3, 6, 2C, 2, 3, 9, 1C or 2, 4, 1, 1C of the act. I am also mindful of the fact that, when an advanced statement is lodged in a patient's medical records, it should be treated as a medical record in terms of patient confidentiality, and we should also ensure that service users have as much control over who accesses their advanced statement without there being too much bureaucracy governing how they share their information. I am not convinced that the need for this amendment therefore invites Dr Simpson not to press amendment 85 in its consequential amendment 86. In terms of amendment 87, I am conscious that the committee recommended in its stage 1 report that the Scottish Government considers placing a statutory duty on health boards and local authority to promote advanced statements. As I said during the stage 1 debate, I very much agree with the committee's belief that more can be done to promote advanced statements. I was very happy to recently meet Sam H, who was mentioned by Mr Doris, and this was a matter that has been the subject of discussion between himself and myself. I want to ensure that promoting advanced statements is done in the most meaningful way and in a way that has the most impact and remain unconvinced that using legislation would necessarily, in and of itself, achieve that. I think that there are other effective ways for service users to be supported in courage to make an advanced statement exist, including peer support initiatives. Given that, in the burden that such a duty might place in health boards and local authorities, I invite Mr Doris not to press this amendment. I would be happy, of course, to meet him to discuss the work that he has undertaken with Sam H thus far and to have a discussion with him about those matters. In requesting Mr Doris not to press his amendment, I would make it clear that the Scottish Government will look to do more to promote advanced statements as part of the implementation of the bill, and we will, of course, be happy to have the input of the committee as part of that work. Thank you, minister. Richard Simpson, to wind up the pressure withdrawal. Yes, I am not totally convinced that the amendments 44, 46 and 46, to which we have already agreed, covers the situation adequately. I still think that there need to be regulations beyond the current bill's provision for the medical responsible medical officer to have regard to the advanced statement and, therefore, to have access to it. There should be some regulations that allow or do not allow other persons to have access, and, therefore, those amendments may not be perfect, and the Government may wish to amend them further at the next stage. However, if they were passed, I think that they would make a statement about the need for ensuring that there is clarity in the regulations about who should or should not access those advanced statements. I also feel that, on amendment 87, it needs to be supported. Of course, it could be further amended at stage 3 by the Government if it felt that that was necessary, but I do feel that it should be pressed. The question is, then, that amendment 85 be agreed to. Are we all agreed? The members are not agreed. There will be a division. Those in favour of the amendment, those against? No abstentions. For the amendment 4 against the amendment 5, the amendment is therefore not agreed. We now call amendment 86 in the name of Richard Simpson. They are already debated with amendment 85. Richard Simpson, to move or not move. The question is, then, that amendment 86 be agreed to. Are we all agreed? The committee members are not agreed, so there will be a division. Those in favour of the amendment, those against? No abstentions. For the amendment 4 against the amendment 5, the amendment is therefore not agreed to. The question now is that amendment 86 be agreed to. No abstentions. We go to Bob Doris's. Can I call amendment 87 in the name of Bob Doris, who is already debated with amendment 85. The minister has asked me to not press this amendment. He has raised the issue of the burden that this may place on health boards and local authorities. I have to say that I am unconvinced to the extent of the burden that would be placed on health boards and local authorities given looking at the provisions within the bill. I cannot imagine, for example, why health boards and local authorities would not want to promote the existence, effecting the status of the provisions in the act about advanced statements irrespective of whether there was a duty to promote on the face of the bill. That said, I would be happy to meet with the minister to discuss what that burden may or may not be. Or, indeed, I am also conscious that, by putting something on the face of the bill, it does not necessarily mean that there will be a quality and extensive promotion of advanced statements. I would be intent on holding my position to stage 3 with the possibility of bringing back a revised amendment depending on the outcome of any meetings with the minister. I know that Richard Simpson is keen for me to press this amendment and, of course, if he wishes to do so, that would be the prerogative of Mr Simpson to do that. However, on the basis that the minister has agreed to meet with me to look at this matter further, I will not press this amendment. Okay, you are not moving. The question is, then, that amendment 87 be agreed to. The question is—I am looking to Richard here, but, as I said earlier, I am not calling for you to do that. I pointed out earlier that— Am I committed to moving that? Yes. Thank you. I would like to move this amendment. I am moving amendment 87. The question is, then, that amendment 87 be agreed to. Are we all agreed? There is a division. The committee are not agreed. All those in favour of the amendment, please show. All those against. For the amendment 4 against amendment 5, the amendment is therefore not agreed. The question now is that section 21 be agreed to. Are we all agreed? Call amendment 88, in the name of Richard Simpson and the group on its own, Dr Richard Simpson, to move and speak to the amendment. Thank you, convener. The committee will probably realise that I have been wrestling throughout this bill with the differentiation between the definition of incapacity in the adults with incapacity bill and the lower test of capacity, commonly known as SIDMA. The conclusion reached when we debated this in 2003 was that it was appropriate, whilst modernising the 1983 mental health act, that the SIDMA test should be applied and not the incapacity test in the 2000 act. However, as the significant impairment of decision making ability is a lesser test required with adults than the incapacity act, and whilst in the overwhelming majority of cases that serves the interests of the patient well, I believe that there are circumstances in which the patient's rights under the human rights convention to refuse medical treatment is being denied inappropriately. This amendment, as drafted, seeks in a very modest way to ensure that where the patient makes an advanced statement, which they make, of course, whilst they have full capacity, that their wishes should be followed, then they should be followed, unless the capacity is so impaired as to meet the more stringent requirements of test of incapacity in the 2000 incapacity act. I believe that we must recognise that the under usage of advanced statements may in part be because there is a feeling, realistic or not, that the wishes expressed in such advanced statements will not be fully respected. That is despite the fact that there is already a requirement that where and at what time of treatment has to be given, on the orders of the tribunal, such variation must be reported to the mental welfare commission if it does not reflect the advanced statement. This proposed amendment is a rather modest proposal and pens are much fuller review of the acts, which I believe now to be necessary, governing the whole issue of mental health and capacity, including, of course, the protection of vulnerable adults. Since publishing my amendments, I have received some questions as to whether that actually does exactly what I intended, so it may be needed to be modified at stage 3, but I do believe that it should be passed at this point and then modified, unless the minister agrees in principle that amendment is appropriate and is then willing to discuss its inclusion in a modified form in stage 3. Any other members? Will they participate in the debate? No other members? Minister? I share the mental welfare commission's concerns about the intended effect of subsection 3B and what the proposal would mean for urgent cases. Tribunal hearings can take some time to arrange, and during this time, the amendment would mean that the patient could not be given treatment. This treatment could be essential for their immediate wellbeing and their long-term recovery and rehabilitation. I am also not sure of the need for this amendment, advance statements or written statements, setting out how patients would wish to be treated or wish not to be treated for mental disorder should their ability to make decisions about treatment for their mental disorder become significantly impaired as a result of their mental disorder. However, this amendment seems to relate to situations where the patient is capable of consenting to treatment. In such situations where a patient is judged as capable in terms of the 2003 act, we would expect the patient's consent to the treatment to be the primary consideration. In addition, from what I understand, there is not a significant issue that needs to be addressed. There are a relatively small number of instances when advance statements are overridden each year. The current framework ensures that doctors and tribunals take account of advance statements and require them to set out reasons why they are overridden whenever that is the case. On that basis, I would invite Dr Simpson not to press this amendment. Dr Simpson, do you want to press or withdraw? There remains a fundamental point, and that is the right of any individual to refuse treatment if they have the capacity to do so. My proposal is that the SIDMA is not a total loss of capacity. Those circumstances, if the patient chooses to refuse treatment, they should be entitled to do so. They are not entitled under the act as it stands. Therefore, the SIDMA would apply the more severe test of the End Capacity Act, where there was a complete loss of capacity and that would allow treatment to proceed. I do not believe that, moving forward from the original act, which I very much supported at the time, that we have got this balance right. I think that this very modest situation, which allows the advance statement, given at a time of full capacity, to be fully respected unless the patient has lost capacity, reflected in the 2000 act and not the 2003 act. I will wish to press my amendment. The question is, then, that amendment 85 be agreed to. Are we all agreed? The committee is not agreed. The question is, then, that amendment 88 be agreed to. Are we all agreed? There is not a committee that is not agreed. There will be a decision. Those in favour of the amendment, please show those against. For the amendment 4 against the amendment 5, the amendment is therefore not agreed to. I now call amendment 47 in the name of the minister group with amendments 48 and 49. Minister to move amendment 47 and speak to all amendments in the group. Thank you, convener. Amendment 47 seeks to amend an incorrect cross-reference, which was inadvertently left in the version of the bill introduced to Parliament. A prior version of the bill went out to consultation and draft. The consultation version of the bill contained a provision that should have been inserted in new section 57A into the 2003 act. That is related to a previous proposal related to the applications for compulsory treatment orders. However, that provision was removed following comments coming out of a consideration of the consultation responses. The reference to section 57A2, which appears in new inserted section 261A4, is therefore being removed. Amendment 48, in certain new section 291A into the mental health care and treatment Scotland Act 2003, will provide that there must be no conflict of interest in relation to certain medical examinations carried out for the purpose of the variety of sections under the 2003 act. The amendment also has the effect of extending the coverage of existing conflict of interest provisions in the 2003 act to also include compulsion order and compulsion order restriction order reviews. In addition, the new section confers a power upon Scottish ministers to make regulations that may specify circumstances in which there is taken or not taken to be a conflict of interest. The amendment has been proposed following concerns from stakeholders that conflict rules apply in relation to the making of a compulsory treatment order, for example, but not in relation to its extension. Stakeholders have also identified that similar provisions do not also apply in relation to reviews of compulsion orders. There is a strong feeling that conflict rules should apply and where a conflict exists, the responsible medical officer should be required to arrange for the examination carried out by an approved medical practitioner. That is something that can be considered under the proposed regulations. Amendment 49 amends section 245 of the mental health care and treatment Scotland Act 2003. It adds to the list of people who must be consulted in circumstances where certain certificates are granted in accordance with the 2003 act. It will provide additional protections for patients in light of the removal of the default named person that has already been discussed and agreed under amendment 40. I therefore move amendment 47. Thank you minister. Any members wish to speak in this debate? Minister, no further. The question is then that amendment 47 be agreed to, are we all agreed? Question therefore follows that section 22 be agreed to, are we all agreed? That ends today's day 1 of stage 2 consideration of amendments to the mental health Scotland bill. Day 2 will take place at the committee meeting next Tuesday and will start at the point at which we have ended today. A further marshal list and groupings will be issued on Wednesday. We now move to agenda item number 3, which has previously agreed will be held in private session. Thank you all for your cooperation and patience today.