1. UPDATE ON LEGISLATION 2010/2011 Joanna Keating Head of Protection of Rights Unit Reshaping Care & Mental Health Division

2. Intro & new SG structures  DG Health & Social Care  Directorate for Health & Social Care Integration  Reshaping Care & Mental Health Division  Protection of Rights Unit  Mental Health Legislative & Adult Protection Team – 2003 Act/Part 5 AWI/ASP/PVG adults  Mental Health & AWI Amendment Bill Team  Sponsorship & Social Services Improvement Team: care standards/sponsor SCSWIS & MWC

3. Recap on the Bill: McManus SG Response (Oct 2010): how Ministers would take forward McManus issues:  advance statements  advocacy  named persons  medical matters; and  tribunals

4. Bill Recap: McManus contd … and for each agreed recommendation, indicating where:  primary legislation required – a Bill to amend an Act  secondary legislation required (Regs, Tribunal Rules)  policy initiative only needed (eg Guidance)

5. Since McManus: consultations! Primary legislation:  flu pandemic powers consultation  MDO victim notification scheme statutory scheme consultation  AWI Part 5 – s47 certificates consultation Secondary legislation:  Rule 58 (“paper hearings”) consultation – change to Tribunal Rules

6. Bill now = McManus +  McManus Review changes to 2003 Act  SG and stakeholder identified other minor /technical issues to 2003 Act  poss new flu pandemic powers – 2003 Act  new MDO victim notification scheme  AWI Part 5 – research (RECs)  AWI Part 5 – medical treatment??

7. Mental Health & Adults with Incapacity Amendment Bill  not in this year’s legislative programme  earliest now will be 2012/2013 Parly session  subject to: Cabinet clearance; Govt priorities in health in next session  bills time intensive: time to prepare/get it right!  means changes take effect around 2013/2014

8. Secondary legn: Rule 58  Rule 58 of the Tribunal Rules empowers the MHTS to decide cases without an oral hearing  but can only currently use if:  all the parties agree in writing,  MHTS considers that, having regard to the nature of the issues raised in the case, sufficient evidence is available to enable it to come to a decision; and  to do so will not, in MHTS’ view, be contrary to patient’s interests.  2011 consultation re amending R58 to give MHTS power to decide cases w/o oral hearing on its own initiative – 4 options given re how this could work

9. Secondary legn: Rule 58 contd Option 2 favoured: MHTS given power to deal with cases w/o a hearing on its own initiative, by writing out to parties, stating it has identified a particular case as being appropriate to be dealt with under rule 58 and intends to deal with the case under rule 58:  patient can trigger automatic right to oral hearing:  patient notifies MHTS they want an oral hearing,  if patient does nothing, assumption that patient is content for MHTS to proceed with hearing under rule 58;  the other parties may also still request an oral hearing on cause shown. But additional safeguards also sought by consultees, & being taken into account by SG in drafting changes.

10. Challenges to the legislation: RM  excessive security appeals judicial review  “failure” of SMs to make regulations under s268 to “give life” to provisions extending ESR beyond TSH  Ministers not ruled out, keeping need under review  Court of Session (Inner House) held Jan 2011 that no duty and no failure, upholding Outer House decision of July 2010  will now be first appeal to Supreme Court (London) of case involving 2003 Act

11. Challenges to the legislation: G  another excessive security appeals case, but different point here from RM case  “discretion” of MHTS not to make an order (even where MHTS agreed patient did not require conditions of special security)  Ct of Session held (Aug 2011) that discretion exercised appropriately with adequate reasoning provided by MHTS  patient’s appeal refused

12. Challenges to the legislation: S  another excessive security appeals case!  lead damages case involving a health board (so SMs not directly involved)  Action for damages against health board for failure to implement s264 order – ie health board has not identified/moved patient to lesser security hospital

13. Challenges to legislation: Black  re curators ad litem  lack of appeal for curators from Tribunal to Sheriff Principal  ECHR incompatability of s320?  case being heard in November

14. Other legislative changes CJL (S) Act 2010:  new CPOs have replaced probation orders (s230 of 1995 Act): w/e 1 Feb 2011  implements 2004 SLC Report recommendations on mental disorder & unfitness for trial, to update laws on insanity and fitness for trial by an accused at court: commencement not likely till 2012 PSR (S) Act 2010:  changes to MWC governance structure  now separate Board / new Commission Visitors  w/e 1 April 2011

15. Contact: Joanna.Keating@scotland.gsi.gov.uk Mentalhealthlaw@scotland.gsi.gov.uk More info: www.scotland.gov.uk/Topics/Health/health/me ntal-health/mhlaw/mhareview