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Mental Health Bill

The UNISON Scotland Submission To the Health & Community Care Committee On the Mental Health (Scotland) Bill 2002

Executive Summary

  • UNISONScotland welcomes the introduction of the Mental Health (Scotland) Bill 2002, as carrying forward many of the positive aspects highlighted in the Millan report.

  • We support the introduction of measures that will improve the provision of service users and their carers.

  • However, we believe that the rights and protection of staff delivering the services are equally important and wish staff concerns to be taken into account in the passage of the Bill. Staff are already concerned at the increasing level of violence in secure institutions and have been seeking resolution of this already. Widening the criteria for defining mental disorder to include learning disability and personality disorder will increase the number of patients falling under the Mental Health laws and could bring an increased level of violence.

  • UNISONScotland welcomes duties placed on local authorities and the health service to offer specific services to users but we need to be sure that sufficient resources, staff and training programmes are provided to ensure that these services can be provided without detriment to the staff we represent.

  • UNISONScotland believes that the proposed code of practice should be published as soon as possible and should incorporate protocols for dealing with day to day situations that staff might encounter.


UNISONScotland welcomes the introduction of the Mental Health (Scotland) Bill published in September 2002. We believe it enshrines many of the principles raised in the Millan Report: New Directions - Report on the Review of the Mental Health (Scotland) Act 1984, and will ensure that the provision of mental health services to users is clarified and improved and that their rights and those of their carers are protected.

However we feel the rights of staff involved in delivering mental health services need to be equally safeguarded to ensure that they can carry out the duties and tasks required of them in a professional manner and that their safety is ensured at all times.

UNISONScotland is the biggest trade union operating in the Health Service, Local Government and the community and voluntary sector across Scotland. We represent mental health officers, social work staff, psychiatric nurses, including those who operate in the community - all workers who will be stakeholders in the effective implementation of this new Bill.

We welcome the opportunity to submit views on the general principles of the Bill and will attempt to structure the response in order to address the four questions posed in the Call for Evidence. However, there may be other comments that we wish to make on the Bill and these will be set out below.


Question 1 - General Principles of the Bill

In general UNISONScotland welcomes the general principles of the Bill. We believe the 1984 Act is out of date and does not reflect the changes to mental health care which have been made since then, especially relating to care in the community. There have also been legislation which superceded the Act, such as the Human Rights legislation.

We are, however, acutely aware that the aims and objectives of the Bill can only be met if substantial resources are invested in the service provision. We believe the inclusion in the definition of mental disorder of ‘learning difficulties' and ‘personality disorder' will lead to an increase in the number of patients/clients which will require consequential increases in the number of staff needed to treat them in an acute setting or provide them with services in the community.


Question 2 - Consultation prior to the introduction of the Bill

We believe that there was adequate consultation with all parties prior to the introduction of the Bill. However we believe that the time for consultation between the publication of the Bill and the date for responses to be received is very short and did not provide enough time for the major consultation a bill of this nature requires.


Question 3 - Comment on the Content of the Bill

I General Principles

UNISONScotland supported the 10 principles contained in the Millan Report but nevertheless accept the some of the principles have been included in other sections of the Bill. We also accept that issues around equal opportunities are reserved matters but expect the Bill to operate on the principles contained in the various pieces of legislation involved.

Whilst we support the principle of ‘reciprocity' we are concerned at the extent of resources that will be required to put the necessary services in place and we are equally concerned at the adverse reactions that could occur if the perceived reciprocal requirements were not in place.

We welcome the proposals to introduce a code of practice but this must be published before detailed consideration of the Bill takes place in the Scottish Parliament, so that its content can be assessed prior to any amendments being proposed. Our members require protocols for action in the circumstances which may arise from the Bill to give them added confidence and protection.

II The Mental Welfare Commission for Scotland

We support the retention of the Mental Welfare Commission for Scotland as an independent body and welcome the its strengthening by the involvement of service users and carers. However, we also wish to see the inclusion of representatives of the service providers in the composition of the Commission.

III The Mental Health Tribunal

UNISONScotland supports the introduction of Mental Health Tribunals, which we believe will retain the current practice of requiring both medical and social aspects to be assessed when considering applications for compulsory treatment orders. We feel the tribunals will be less formal when they are being held in a hospital or similar venue, instead of the sheriff court, and we also welcome the participation of patients and carers.

We believe that this strengthens the role of the Mental Health Officer as well as the Health professionals involved but feel that additional staff and considerable training will be required for the staff concerned in order for them to carry out their duties under the new legislation.

The principle of ‘reciprocity' is one element that can be considered by the Mental Health Tribunal, which can insist that certain services are in place as a response to any compulsory treatment order. It is possible that when considering any order the Tribunal could assess whether these services should have been provided prior to the order being sought, in which case the order may not have been necessary in the first place. We believe there should be clarification of this issue during the course of the Parliament's consideration of the Bill.

IV Health Board and Local Authority Functions

We are concerned at the staffing implications for both local authority and NHS staff as the Bill increases the functions on staff from both disciplines. We welcome the Bill's establishment of a duty on both local authorities and health services to provide specific services for care and support as well as those for the promotion of wellbeing and social development. Again we reiterate that whilst supporting the principle of the provision of such services adequate resourcing must be made available if current staff are not to be stretched beyond capacity.

We are very supportive of the requirement on local authorities to appoint sufficient MHOs and to insist on appropriate training for them.

The appropriate grades will need to be established for all staff, both qualified and unqualified involved in the provision of services.

V Emergency Detention

Our members are concerned at any additional powers of detention which may create additional problems with staffing levels and accommodation. If better staffing ratios are introduced, staff will be better able to cope with the increasing levels of violence which are now occurring within secure accommodation.

VI Compulsory Treatment Orders

UNISONScotland is concerned that compulsory treatment in the community could leave our members in the community at risk of violence from patients who resist the treatment. Clear protocols must be available to staff who are attempting to administer the community treatment in circumstances where patients refuse to take medication. Some of our nursing members are concerned that their role as nurses could be compromised as they could be perceived as undertaking more of a ‘policing' role, rather than a caring one.


VII Mentally Disordered Persons: Criminal Proceedings

Our members working in the State Hospital at Carstairs are concerned that the inclusion of personality disorder in the definition for mental disorder will lead to many more cases being referred to the psychiatric services, where they may require inpatient facilities, such as Carstairs, whereas at present they are subject to community orders, fines, probation or the prison service. Current treatment for personality disorder is extremely controversial and not guaranteed to succeed.

VIII Medical Treatment

UNISONScotland welcomes the provision for medical personnel to recognise the principles of the Bill as set out in Part I and to take account of any advance statements made by the patient when applying any treatment. We also support the clarification of the criteria which must be met before compulsory treatments are imposed on patients.

We are concerned, however that the advance statements can be disregarded in certain circumstances and treatment administered which run contrary to the wishes expressed. We need additional assurances that procedures such as ECT and NMD can only be contemplated in the most extreme of circumstances and as an absolute last resort. We are somewhat reassured that such treatment can only be given without consent following an application to the Court of Session.

Under paragraph 278 we are concerned that the Adults with Incapacity (Scotland) Act 2000 overlaps certain aspects of the new Mental Health Bill and we feel additional clarification is required. The 2000 Act complies with the recent legislation on Human Rights which is incompatible with, for example, some elements of compulsory treatment and detention.

IX Protection and Rights of people with mental disorders

UNISONScotland welcomes the strengthening of patients' and carers' rights, for example in the provision to appoint a ‘Named Person' rather than the previous ‘nearest relative' provision which was felt to be too restrictive.

We also welcome the duty on health boards and local authorities to ensure that ‘integrated independent advocacy is available to all who need it', although we believe it should be available on request. We need to know, however, which group of staff will be providing this service and whether these services will be additional duties or whether additional staff will be employed. It is be unacceptable to make this an extra duty on staff whose current workloads are excessive at present. Training programmes should also be drawn up for any staff involved in the proposed advocacy service.


For Further Information Please Contact:

Matt Smith, Scottish Secretary
14, West Campbell Street,
Glasgow G2 6RX
Tel 0141-332 0006 Fax 0141 342 2835

e-mail matt.smith@unison.co.uk

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