Mental Health Bill
The UNISON Scotland Submission To the Health
& Community Care Committee On the Mental Health (Scotland)
- 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
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
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
VII Mentally Disordered Persons: Criminal
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
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