I will kick off, although I have not prepared anything.
Thank you very much for inviting us to give evidence. I make it clear that the tribunal, which is a statutory body, authorises and makes decisions on measures of compulsion. The commission does not make decisions on detention, so Dr Morrow will be much better placed to tell you about the detail of how some of the compulsory treatment processes operate in practice. The commission monitors the operation of the Mental Health (Care and Treatment) (Scotland) Act 2003 and have information to give you on how the act is working.
The commission also visits people who are subject to compulsion under the act. Where we have concerns about people’s welfare, we investigate those. We also publish guidance and advice on the operation of the act, particularly around ensuring that it properly balances the ethical, medical and legal issues that need to be taken into account when decisions are made about care and treatment. We have a particular responsibility for ensuring that the Millan principles are promoted and upheld in the operation of the act.
Briefly, the commission’s general take on the bill is that, as the Government has made clear, it is relatively modest. It is helpful as far as it goes, and it has a number of provisions that will improve the efficiency and operation of mental health legislation.
We have one or two general points. First, the Millan report was a visionary report but it was also carefully balanced between the protection of people who are subject to compulsory treatment and the important principle of ensuring that people do not have to be detained or sectioned in order to get the care and treatment that they require. Millan was greatly exercised by that; we cannot have a situation in which, in order for people to get a gold standard of care or even an acceptable standard of care, doctors have to force them to be detained.
There are important aspects of the Millan report and the 2003 act in relation to voluntary care, particularly the duties on local authorities in sections 25 to 27 and the duties to promote advocacy. We have concerns about whether those duties, which are quite strong and powerful and are very much part of the scheme in the act, are being fully fulfilled in practice. Some of the other evidence that the committee has received tends to support that point. There is a general anxiety that some of the aspirations of the 2003 act are not being fully met.
However, we also recognise that local authorities are under great pressure; mental health officers in particular are under pressure both from the increasing use of the 2003 act and from the use of the adults with incapacity regime.
Although we do not have any huge concerns in principle about the way in which the bill increases the duties on MHOs, we have real concerns that, unless the Government invests in some kind of strategic review of the provision of MHOs, it will not be possible for the protections in legislation to work effectively. It is important to remember in that context that 44 per cent of compulsory treatment orders are now carried out in the community so the role of local authorities is increasingly important.
Although, in general, we think that the bill is good and helpful, we have concerns about a number of areas where timescales are being extended. We are sometimes not entirely sure of the justification for extending timescales for statutory bodies to do certain things, whereas some of the timescales in relation to patients and their rights are being contracted. We hope that the committee will examine those provisions very closely.
There has been quite a long delay in sorting out issues around excessive security. The bill seems to be taking a step back and saying, “Let’s start again and try to get it right this time.” That may be technically the correct approach, but we will be looking for some clarity and some clear timescales around improving appeal rights in relation to excessive security.
It is important that you look at the bill’s delivery of the McManus recommendations. In the context of the wider implementation of McManus, the bill has a modest and perfectly sensible provision to create a register of advance statements in the hope that that will help to promote the use of advance statements. We strongly believe that there should be a much greater use of advance statements, but that will not happen just as a result of that measure. There needs to be a concerted look at the barriers and at why people do not use advance statements. Service users need to be helped to use them, and there needs to be an advance in relation to the extent to which they have increasing control and the ability to negotiate and participate in decisions that affect them, even if they have an impaired level of capacity or understanding.