The amendments in the group relate to an important issue, so I hope that the committee will understand if I take some time to talk about the Government’s position on it. The Government’s stated intention was set out in the draft amendments, draft regulations and draft timetable for the introduction of the right of appeal outwith the state hospital that were provided to the committee on 24 April. I hope that the committee found them 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 amendments in the group relate to sections 10 to 12 of the bill, which amend the sections of the 2003 act that relate to appeals against being detained in conditions of excessive security in the state hospital and in hospitals other than the state hospital. I will focus first on amendments 26 to 31, which relate only 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 Dr Simpson appears to propose.
It is clear from the debate on the relevant provisions when the bill that became the 2003 act was considered that the intention in introducing them was to enable patients in the state hospital—and, in the future, those in medium-secure units—to seek to move to a lower level of security. That was the Millan recommendation.
The bill will fulfil that intention, and amendment 24 and the amendments grouped with it build on that intention. What the Government considers is needed is to ensure that the scheme that was provided for in 2003 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 security measures in the place that a patient is in. That is clear when we consider that the only available remedy under the scheme is a move to another hospital or unit and not, for example, an order for certain measures to be lifted.
If there were a wish to change the appeal in a way that meant that it could sensibly be extended to all patients, that would require a more fundamental reworking of the scheme set out in the 2003 act than has been consulted on. As far as I am aware, there is no consensus in favour of that.
In its stage 1 report, the committee asked for consideration to be given to whether an individual in a low-secure setting could appeal so that they could move from one level of security to another and still remain in low-secure accommodation and asked whether that would appropriately merit the inclusion of a right to appeal for individuals in low-secure settings.
My response is that, as I have explained, the scheme that the 2003 act provided for is not about challenging particular security measures, including that of being locked. I do not consider the scenario of being locked while in low-secure accommodation to be one where the level of security is excessive. That is what we are talking about—levels of security that go beyond the proper limit or degree.
In general, patients in low-security accommodation are initially cared for in a ward for a period. They then have gradually increasing periods outwith the ward in the wider hospital environment, either escorted or unescorted, and then community access, progressing to overnight passes. Finally, they are discharged.
The committee has already considered amendments that allow patients being treated in 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. Other applications that might be made under the 2003 act would allow such patients to seek to vary or revoke their detention orders. We should also be mindful that everyone discharging functions under the 2003 act has a legal duty to do so in a manner that appears to them to involve the minimum restriction on the patient’s freedom that is necessary in the circumstances.
I am interested to hear Dr Simpson’s explanation of his amendments. I say with respect that, if they are intended to lay the groundwork for regulations that do not limit the right of appeal to patients in medium-secure units, I will be unable to support them. The Government’s clear position is that the right to make an application under section 268 of the 2003 act should be made available only to patients in medium-secure units. We cannot support amendments that seek to provide otherwise.
If what I described is not the intention, I nonetheless prefer my proposed approach, which seeks to build on what is in the 2003 act by providing additional powers to make regulations in relation to the test to be applied by the tribunal, as well as providing for supportive medical reports. I will discuss my amendments and, I hope, persuade the committee that my proposed approach is the better option.
Amendments 26 to 29 ensure that the core of the test that is set out in the 2003 act remains unaltered while allowing flexibility for the test to be refined through regulations that would add extra limbs to it, should experience of the tribunal’s operation indicate a need for the test to be refined. Amendments 26 and 27 do that by replacing the requirement for the tribunal to be satisfied, before making an order, that detention of the patient in the qualifying hospital involves the patient being subject to a level of security that is excessive in their case with a requirement that the tribunal may make an order only if it is satisfied that the test specified in regulations under new section 271A of the 2003 act, introduced by amendment 29, is met in relation to that patient. Amendment 28 is similar, but it will 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 new section 271A of the 2003 act, which sets out the regulation-making powers relating to detention in conditions of excessive security. It allows for a definition of a qualifying hospital so that the scheme that was provided for in 2003 can operate effectively in the present secure estate by allowing those in medium-secure units to seek a move to accommodation with a lower level of security.
Proposed new section 271A provides a regulatory framework for the test that must be met if the tribunal is to make an order that a patient is being detained in conditions of excessive security. That framework includes a requirement that the tribunal is satisfied that detention of the patient in the hospital where they are being detained involves the patient being subject to a level of security that is excessive in their case.
Section 271A also allows regulations to provide for the test to include further requirements in relation to a patient. Those could include factors such as the impact on a patient’s care and treatment if they were to be moved, if that was felt to be an important consideration.
The proposal allows for flexibility for the test in the light of changes in practice or the tribunal’s experience of hearing appeals and the subsequent effect on patients. Anything that was included in regulations would be subject to scrutiny by the committee and Parliament.
Amendment 31 makes regulations under proposed new section 271A of the 2003 act subject to the affirmative procedure.
Amendment 30 is a minor technical amendment to reorder the words in the first line of the definition of a relevant patient so that, instead of saying “is authorised in hospital”, it reads “in hospital is authorised”. That has no impact on the provision’s effect.
Amendments 24, 25, 32 and 33 relate to appeals under sections 10 to 12 of the bill, whether they relate to the state hospital or hospitals other than the state hospital.
On amendment 24, we know that appeals that have a medical practitioner’s support are significantly more likely to succeed. Of the first 100 state hospital patients to make an application, 93 per cent of those who were successful had responsible medical officer support and, of those whose applications were unsuccessful, 91 per cent did not have responsible medical officer support. Research into the first 100 state hospital patients to appeal found that 23 per cent of appeals were rejected and a further 23 per cent were withdrawn. A number of reasons may be in play, but it is not unreasonable to assume that, in the majority of those 46 per cent of cases, there was no supportive report from a medical practitioner.
Amendment 24 allows a medical practitioner to consider a patient’s case and assess whether, in their opinion, the test that is intended to be set out in regulations is met. 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 be required to meet could be set out in the regulations that are introduced under amendment 29.
Amendment 25 takes out section 10(9) of the bill, which was included to allow an application to be made even if one had previously been made and then withdrawn. On further reflection, we are not persuaded of the need for that provision. We are not aware from the 10 years of operation of appeals from the state hospital that the 2003 act’s provisions to allow for only one application per 12 months in respect of the same patient have been an issue. There have not been calls for change. Following discussions with the tribunal, we have also considered the possibility of applications being made and withdrawn multiple times from any of the people with the right to make an application, which could have the impact of an increase in tribunal hearings. On balance, it was felt that we should maintain the considered position as set out in the 2003 act, but we are open to considering the matter again if there is evidence of a practical issue.
Amendment 32 inserts a new subsection that provides that, in chapter 3 of part 17 of the 2003 act,
“a reference to a hospital may be read as a reference to a hospital unit”
and that, for the purposes of that chapter,
“‘hospital unit’ means any part of a hospital which is treated as a separate unit.”
That will, for example, mean that the duty on a health board under proposed new section 268(3) of the 2003 act to identify a hospital can be fulfilled by identifying a hospital unit, whether or not that is in the hospital in which the patient is currently detained.
Amendment 33 removes section 12 of the bill, which would insert proposed new section 272A in the 2003 act, as its terms are now included in other provisions. Powers to make regulations on the definition of a qualifying hospital and the question whether a patient’s detention in hospital involves the patient being subject to excessive security are instead addressed in proposed new section 271A, as introduced by amendment 29. Provision in relation to hospital units that extends to all of chapter 3 of part 17 of the 2003 act and not just provisions that relate to patients not in the state hospital is in proposed section 273(2) of the 2003 act, as introduced by amendment 32.
I move amendment 24.