Winter Newsletter December 2013
An opportunity to network over coffee at the Members’ Conference
INSIDE
: : Reflections from the Members’ Conference : : Peer Guided Advance Statements: : : : Video Conferencing: : : : Appeals Update: :
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President’s Foreword 3
Member news and views Advance Statements 7 Peer-guided Advance Statements in Glasgow & Clyde 8 Rohallion Clinic 9
Members Conference 2013 10
Poetry by Jo McFarlane 13
Webroster 14
Scottish Independent Advocacy Alliance (SIAA) 15
Edinburgh Napier University: Centre for Mental Health 16 & Incapacity Law, Rights & Policy
Alzheimer Scotland: New national Dementia Strategy 19
Video Conferencing 21 STS Video Conferencing Protocol 22
RMO/MHO Forums 23
Mental Health and Incapacity Conference 24
Scottish Tribunals Service (STS): Interim Orders and Adjournments of Hearings 25 First class Mail Pilot 26 New Head of Finance 27
Appeals Update 28
Practice Guidance Update 30
Keeping up to date (Legislation, Caselaw, etc) 31
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Dear members,
As we approach the end of 2013 I draw your attention to the Annual Report for 2012/2013 which was published and laid before Parliament towards the end of November 2013. The Report takes a look back at the Tribunal’s last five years, during which time I have been President. The Annual Report emphasises that, while the Tribunal has constantly focused on the patient and had regard to the principles of the 2003 Act, nevertheless at the same time, there have been considerable improvements with regard to the efficiency and the effectiveness of the Tribunal. I wish to record my thanks for your work with the Tribunal ensuring that the focus is correctly concentrated on the patient but also working to make the Tribunal an effective and efficient organisation.
Members’ Conference I was delighted to see so many of you at our five year Members’ Conference. Two hundred and eighty-four members attended the Conference. This five year event is important not only in relation to its content but also in the way in which it helps to bring together the membership of the Tribunal to consider our aims and objectives. While it was focused on the way forward – with presentations from Rosanna Cunningham MSP, Minister for Community Safety and Legal Affairs and the Right Honourable Lord Gill, the Lord President, about Tribunal reform – there was a significant contribution made by Professor Dame Hazel Genn, Dean of Laws at University College, London, who provided many insights on her work and research on service user views. These insights stimulated much debate and a call for further research within Scotland and the debate continues within the Tribunal to date. I would hope that in the debate on service user involvement within the Tribunal we focus on the principles contained within section 1(3) of the 2003 Act, and in particular the effective participation of the patient in Tribunal proceedings. We may return to some of these topics in training in 2014.
“These insights stimulated much debate and a call for further research within Scotland and the debate continues within the Tribunal to date.”
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There was a great deal of positive feedback for Miss Jo McFarlane, who is a poet and performance artist as well as a service user. Attendees described it as a privilege to hear from her. She provided through her poetry a service user’s perspective on attending a tribunal hearing. This was an effective mode of expressing something that often cannot be articulated any other way. Miss McFarlane wrote a poem dedicated to the Tribunal, “Verbiage a Trois”, and read it for the first time at the Conference. It is re-printed on page 14 of this Newsletter. The content of her poetry was profound and her performance included some welcome humour. A booklet of the poetry which Miss McFarlane shared with us at the Conference has been included with this Newsletter, with her kind permission.
Child and Adolescent Tribunals As you are aware, we provided training for some members on child and adolescent tribunals in 2012. The Tribunal in the twelve month period 2012 to 2013 heard 82 applications, reviews or appeals concerning young patients who fell within the age range of 9 to 17 years. Of these, the most common application was for a compulsory treatment order under section 63 of the 2003 Act. The majority of these cases arose within the Greater Glasgow Health Board, followed by Lothian Health Board.
Section 2 of the 2003 Act specifies that any person discharging a function under the 2003 Act in relation to a patient who is under the age of 18 years requires to discharge the function in the manner that best secures the welfare of the patient. Section 2 refers also to the statutory principles set out in Section 1(3) of the 2003 Act and Tribunal members must have regard to these when deciding a case involving a child or adolescent patient. The training provided and the developing practice in this area enhances the Tribunal’s ability to meet its duties with regard to the welfare of the child or adolescent patient. We have considered the physical environment in which a tribunal is heard and the difficulties that can exist in obtaining the views of child and adolescent patients, as they can remain silent and non participative at hearings. We are developing a mechanism for hearing from child or adolescent patients through a “having your say” style of form. This will be informed through direct contact with child and adolescent patients, their named persons, advocacy workers and health and social work professionals. This work continues to develop and in my view is an attempt to address a particular sub-group within the vulnerable group of those who have mental disorder.
“We are developing a mechanism for hearing from child or adolescent patients through a “having your say” style of form.”
Reference Groups The Tribunal continues to meet regularly with those who are involved in our activities at service users’ and carers’ reference groups, professional reference groups, MHO and RMO forums. I was of the view that there was also a need to engage with advocacy workers and we have now formed an Advocacy Workers Reference Group which will meet a couple of times a year to look at the issues in this area. The first meeting took place on 26 September 2013 and advocacy representatives attended from all parts of Scotland, from Argyle and Bute Advocacy Service to Advocacy North East and Moray and Elgin. The discussions were lively and of a practical nature and one of the outcomes was to look more closely at the fitness of some of our community ______Page 4 of 32
______venues for hearings. I am confident this Group will inform the Tribunal and the Advocacy movement itself in the provision of services under the 2003 Act.
Centre for Mental Health and Incapacity Law, Rights and Policy at Edinburgh Napier University I was delighted to speak at the launch of the Centre for Mental Health and Incapacity Law, Rights and Policy at Edinburgh Napier University in November 2013. The vision of the Centre is to be a Centre for promoting excellence in Mental Health and Incapacity Law, Rights and Policy, including the interface between theory, practice and policy, both nationally and internationally. I welcomed the work the Centre will focus on, such as legal practitioners advising patients who are appearing before the Tribunal. I also encouraged the Centre to look towards academic excellence and the theoretical framework for good practice in the mental health field, to offer a workable and a high level model of partnership working and to focus on an approach to training of professionals working in the mental health field. Finally, I encouraged the Centre to act as an ambassador for the Scottish mental health system, for example the principles contained in the 2003 Act, particularly the principle of patient participation. The Centre holds many areas of common interest with the Tribunal, such as the issue of child and adolescent patients and the views of service users. I look forward to seeing the research and evidence from the Centre, which will assist in the process of delivering an effective and efficient Tribunal service.
“… I encouraged the Centre to act as an ambassador for the Scottish mental health system, for example the principles contained in the 2003 Act, particularly the principle of patient participation.”
Member Re-appointment and Training A Working Party will be set up in 2014, from within my Office, to consider the processes for re-appointment of those members appointed originally in 2005. We will look at training patterns, appraisal, professional development and sitting patterns, to identify the way forward in terms of future membership. Alongside this we will continue to provide a single day’s continuity training for all members of the Tribunal in 2014. While the content of that training is yet to be finalised, I am certain that it will reinforce the good practices we have developed in the last five years and re-focus on how we best deliver access to justice. Please feel free to make suggestions of training topics to Heather Baillie, In-house Convener, as soon as possible so we can firm up our programme in the new year. This training will be in mixed groups of general, medical and legal members and the topics will be of a general interest to all participants.
Legislative Reform There is a great deal of change in the pipeline for the Tribunal which includes not only Tribunal reform and Administration mergers but also the amendments to the 2003 Act. The Scottish Government has indicated it will publish amendments to the 2003 Act by way of a Bill in 2014 on which consultation will be carried out towards the end of the year. It is my hope that these amendments will include many of the proposals set out in the McManus Review, and I would encourage you to engage in the process of consultation. ______Page 5 of 32
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G (Appellant) and (1) the Scottish Ministers and (2) the Mental Health Tribunal for Scotland (Respondents) Finally, some of you will be aware we have been involved in an appeal case that went to the Supreme Court. The case is known as G (Appellant) and (1) the Scottish Ministers and (2) the Mental Health Tribunal for Scotland (Respondents) and concerns the extent of the Tribunal’s discretion to make, or decline to make, an order under section 264 of the 2003 Act. This was heard in the early part of October 2013. A note on the case appears in the Appeals Update section of this Newsletter. I will advise you when the Supreme Court’s judgement is published.
Thank you again for all your commitment and work to the Tribunal and may I wish you every seasonal greeting and best wishes for the forthcoming New Year.
With best wishes,
Dr Joe Morrow President
Annual Report 2013
The Tribunal’s Annual Report for 2013 was laid before Parliament on 21 November 2013 and can be viewed on the Tribunal’s website at the following link:
https://www.mhtscotland.gov.uk/mhts/Annual_Reports/Annual_Reports_main
A Media Guide for Tribunal Members
All members have been provided with a copy of the Media Guide for Tribunal Members with this month’s Newsletter.
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Any member views presented in this section of the Newsletter represent the author member’s personal views
Advance Statements
My experience as a Tribunal member of patients having an advance statement is that very few have ever made one. This concerns me, as advance statements are important. They provide an ideal opportunity for patients to express their views, when well, on what care and treatment they would like to receive, what if anything they believe to have benefited them to stay well in the past, and what care and treatment they would not wish to receive in the future if they were to become unwell.
When patients have advance statements, it benefits them greatly, as their views can then be taken into account during any future care planning. It is also of huge benefit to tribunal panels, as we often only hear the present views of the patients at a time when their decision making ability regarding treatment is significantly impaired.
“It is also of huge benefit to tribunal panels, as we often only hear the present views of the patients at a time when their decision making ability regarding treatment is significantly impaired.”
I believe that much more emphasis should be placed on making patients aware of the fact that they can make an advance statement, and the benefits of having one. Mental health professionals can – and should – play a greater role in providing information, advice and support to patients with regard to completing an advance statement. This would then hopefully increase the number of patients that we see at tribunals who will already have made an advance statement.
Suzanne Sinclair General Member Newsletter Contributions
Members who wish to contribute to the Newsletter can contact the President’s Office: [email protected]
To assist in the editing process, the following timescales will apply for contributions*: April: contributions by the end of February August: contributions by the end of June December: contributions by the end of November *Contributions may occasionally require to be edited
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Peer-guided Advance Statements in Glasgow and Clyde
The number of patients writing advance statements in Glasgow and Clyde has remained low ever since the inception of the 2003 Act. Written information about advance statements has been freely provided at all the resource centres, but there continues to be a lack of awareness amongst service users, with very few presenting completed advance statements or asking for assistance in their development. Awareness amongst the staff is high, but there is no clear structure for engaging with service users with respect to developing an advance statement. There is also some anecdotal evidence to suggest that service users tend not to take advantage of whatever staff support is available: this may be because staff support is not seen as being independent, or because patients may fear that their relationship with the doctor may suffer as a result of an advance statement.
A pilot process was undertaken at the Auchinlea resource centre in 2009, which was supported by the whole multi-disciplinary team, and also by the NHS Greater Glasgow and Clyde (GG&C) mental health legislation team. Advance statement workshops were held, and 10% of the patients who attended wrote advance statements. However the process was perceived as being mainly staff-led, rather than being patient-owned.
A further stage of the project is taking stage at the Brand Street resource centre, but differs from the Auchinlea project in that it involves the Mental Health Network, a service users’ organisation. A re-examination of the previous work made it clear that there required to be a far greater involvement by service users. Sessions are now being held for service users in which the Mental Health Network is holding a leading role, and in which peer workers are taking a supporting and facilitating role. The sessions are freely advertised, and all patients are welcome. During the sessions they will be encouraged to write their advance statements with support and advice from individual peers. It is hoped that this new approach will allow patients to feel that they can develop advance statements in a neutral environment, without a conflict of interest, and without feeling that their relationship to staff could be damaged through the process.
“A re-examination of the previous work made it clear that there required to be a far greater involvement by service users.”
We hope that this will prove to be a good development, and that we shall eventually see a significant increase in the amount of advance statements being written in Glasgow and Clyde. Hopefully we shall be able to provide a positive update for the Newsletter in due course.
Dr Gwen Jones-Edwards Medical Member Chair Mental Health Legislation Group, NHS GG&C
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Rohallion Clinic
It is not unusual to come away from a hearing feeling just a little bit wiser. And so it was when leaving Rohallion a few months ago I thought, “Well, that was me telt.” Rohallion is described on our own website as “the new medium secure facility within the grounds of Murray Royal Hospital”. Rohallion is certainly in the grounds of the Murray Royal Hospital. It is also new and is due to be officially opened by Alex Neil, Minister for Health and Wellbeing on 28 November 2013. But is it a medium secure facility? Well sort of – perhaps. Visitors to hearings are ushered through secure doors to the Tribunal suite, which is well equipped and comfortable. The staff at the reception are friendly and helpful and, although the increased level of security is evident, it is unobtrusive.
On the day in question, the application concerned a patient who was detained under a compulsion order in Lyon Ward. Lyon Ward was described in the application as a low secure ward. During our pre-hearing discussion the panel wondered how you could be in a low secure setting within a medium secure unit. This query was raised in the course of the hearing. We were told that Rohallion was not a medium secure unit. I think I may have remarked something to the effect that “I thought it was”, only to be gently chided by the RMO who responded, “Well you’re the only one who thinks that.” We were told that Rohallion was a forensic unit.
In their own information leaflet Rohallion Clinic is described as a new build forensic inpatient unit incorporating both low secure services and medium secure services. The low secure service comprises 35 beds in 3 wards: Faskally Ward, Lyon Ward and Esk Ward. Low secure services are funded by the NHS. The medium secure service comprises 20 beds in two wards: Spey Ward and Ythan Ward. A third 12-bed ward, Vaara Ward, is due to open in 2014. The medium secure service is regionally funded. There are effectively two wings to Rohallion: a medium secure wing, within which the Tribunal suite is housed, and a low secure wing. The RMO was absolutely right to correct the panel on this occasion. Having a proper understanding that a patient who is being treated in one of the three low secure wards is not being treated in a medium secure unit may be of some materiality.
“In their own information leaflet Rohallion Clinic is described as a new build forensic inpatient unit incorporating both low secure services and medium secure services.”
Members will be aware that the Scottish Government has been conducting a consultation in relation to section 268 appeals against conditions of excessive security. If brought into force, section 268 would give a right of appeal against levels of excessive security for qualifying patients in qualifying hospitals. Interestingly, the proposed qualifying hospitals are the Orchard Clinic in Edinburgh, and the regional medium secure component of Rohallion in Tayside, and Rowanbank in Glasgow.
So there we have it in a nutshell. Rohallion is not a medium secure unit but it does have a medium secure component. But I knew that all along.
Leonard Wallace Legal Member ______Page 9 of 32
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Walter Mercer, legal member, and Dr Jim Craig, medical member
Images from the Members’ Conference
The Right Honourable Lord Gill, Lord President and Lord Justice General
The Minister for Community Safety and Legal Affairs, Roseanna Cunningham, MSP, addresses members
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Professor Dame Hazel Genn, Dean of Laws at University College, London
Conference Committee
Left to right
Valerie Mays, Legal Secretary to the Tribunal, Heather Baillie, In-house Convener, Joe Morrow, President, Fiona Queen, PA to the President and Member Liaison Officer
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Members’ Conference 2013
The conference seems so long ago, and with the additional pressures that the end of the year brings it may now be at the back of members’ minds, however many of you provided feedback and this article provides a summary of responses, which will inform future events.
The majority of feedback was very positive. Members were very positive about the presentation provided by Professor Dame Hazel Genn QC, and Miss Jo MacFarlane’s poetry. Most of the members enjoyed the address by Ms Roseanna Cunningham MSP, although some felt she was invited as part of a ‘box ticking exercise’. Ms Cunningham said some very positive things about the Tribunal and its members, which was acknowledged and appreciated by many. Some members remarked that the Lord President’s presentation was of more interest to legal members, although his talk was generally well received. There was an overwhelmingly positive response from members who attended the workshop with Sir Harry Burns – although some remarked that the presentation did not reflect the title. Respondents described his presentation as ‘inspirational’, ‘an astonishing combination of science and passion’, ‘informative and entertaining’ and ‘thought provoking’.
Many of the members responding wanted more time for interactive sessions and many would have attended more than one workshop if time had permitted.
A few respondents ‘remained confused’ following Dr John Crichton’s workshop and some were of the view that the talk did not focus on the learning objectives, while others found it ‘extremely informative’, ‘well-presented and enjoyable session’ and an ‘excellent presentation’. Some would have liked more time for discussion, and this is a subject that could be revisited, particularly in light of the work being done by the Mental Welfare Commission on ‘significantly impaired decision making’. Everyone who responded enjoyed the opportunity to find out more about the English mental health system from Judge Mark Hinchliffe and Dr Joan Rutherford. Again, some would have liked more time for discussion. Some commented that the Scottish system is better!
The comments about Professor Fiona Raitt’s workshop were largely positive. Many of those who responded felt that there were too many attendees and that the room was too small. Some appreciated that much of the content had already been covered by Professor Genn and that Professor Raitt had to adapt what she had prepared to accommodate this. Some would have liked more time for discussion, however respondents found the session ‘thought provoking’ and ‘interesting’. The overwhelming feedback from Professor John Read’s session was ‘provocative’. Some felt that the workshop was a bit rushed and that more time would have been useful. Many positive comments were made, including ‘very lively and interactive’, ‘challenging’, ‘thought provoking’ and ‘quite a whirlwind tour of a complex controversial issue but nevertheless very stimulating’.
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Comments on Henry Simmons’ workshop on developments in dementia care were very positive. Members found the service user input valuable. Some respondents felt challenged and the majority found the workshop ‘thought provoking’ and ‘interesting’. Some respondents found the award winning DVD by patients at the State Hospital ‘inspirational’, ‘thought provoking’ and ‘enlightening’, while others ‘did not know what to make of it’ and did not consider it to be relevant or particularly helpful.
Members commented positively about the opportunity for member discussion and networking, although most respondents would have liked more time. This was one of the most difficult sessions to organise and the comments will be very helpful for future planning of similar sessions.
Finally, members provided positive comments regarding the venue and the food provided, with appreciation for the vegetarian choices.
Heather Baillie Legal Member/Conference Committee
Members should ensure that Webroster is kept up to date with availability and any changes in conflicts of interest on a regular basis. Please ensure, when adding your availability onto Webroster, that you enter the shift as ‘Day’. If this is not selected, your availability will appear as a minute and the Administration will be unable to allocate dates to you. As a reminder:
Select on Webroster the week that you are available Select New At Shift, select the down arrow and select Day (09:00 to 17:00) Then tick the days that week which apply Then select SAVE CHANGES
If your availability changes at any time, please add or remove your days from Webroster as soon as possible.
How to delete or edit availability
Locate the date/week on Webroster that you would like to delete or edit Your availability should appear in yellow (09:00 – 17:00 or 24 hours) Click on the yellow availability, this will turn the colour to red, and Select DELETE to cancel your availability or EDIT to change
If the date you wish to delete or edit shows as an allocated date, contact the Scheduling Team on 01698 390044 to amend.
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Miss Jo McFarlane is a poet who has lived in Edinburgh all her life, and has been writing poetry since 2005. The poem Verbiage a Trois was written for the Members’ Conference.
Verbiage a Trois
For Dr Joe Morrow and members of the Scottish Mental Health Tribunal
Three heads are better than one A decision’s better reached at If the outcome’s hard-fought won Consensus only happens if the parties all agree That patient welfare’s most important In the mental health soiree Expertise in law is complemented by a medic Balance this with common sense: a nurse or wise old relic? Gather up the evidence, apply the Golden Rule: The patient’s never wrong, Of course, the doctor is a fool A Section granted or denied is merely consequential If Recorded Matters take account Of pleas to the Tribunal The business done, a verdict reached. Verbiage a trois hurrah! And now it’s time to celebrate With a post-coital cigar!
A booklet of the poems Miss McFarlane presented at the Conference has been provided, with her kind permission, as an insert to this Newsletter.
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The Scottish Independent Advocacy Alliance (SIAA) have recently published “10 years of Advocacy Provision”.
Our other recent publication, “Towards the Future” captured the development of advocacy in Scotland over the last 25 years. This document provides details about advocacy provision over the last 10 years. It shows ongoing growth and development of the movement and illustrates the commitment to independent advocacy in Scotland.
Shaben Begum MBE Director
Celebrating 10 years of advocating for advocacy.
Follow us on Twitter @siaa_voice. Subscribe to our weekly e-bulletin. Visit our website: www.siaa.org.uk
Advocacy Workers Reference Group
An Advocacy Workers Reference Group has been formed by the President, which will meet twice a year. The first meeting took place in Hamilton on 26 September 2013 and advocacy representatives attended from all parts of Scotland. Discussions were of a practical nature and one of the outcomes was to look more closely at the fitness of some of our community hearing venues.
Read more at page 4, in the President’s Foreword.
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Edinburgh Napier University Centre for Mental Health and Incapacity Law, Rights and Policy
Photo: Edinburgh Napier University Business School
On 4 November 2013, Edinburgh Napier University launched its Centre for Mental Health and Incapacity Law, Rights and Policy1. The launch event was well attended and the enthusiasm for the Centre was palpable. We are particularly grateful to Dr Morrow and the other guest speakers, Dr Donny Lyons of the Mental Welfare Commission for Scotland and Adrian Ward, partner at TC Young Solicitors and founder of their Adrian Ward Centre, who lent their support to the establishment of the Centre and suggested challenges that it might wish to take up.
Mental health and incapacity law is nothing if not challenging. As you will be only too aware, those charged with formulating, interpreting and implementing it are constantly confronted with a number of competing interests. Importantly, central to all decisions and actions is the requirement to always keep the rights and interests of individuals with mental disorder in mind.
Scotland’s mental health legislation is internationally recognised as being an example of good practice, particularly from a care, treatment and human rights perspective, and the Scottish Government has indicated a commitment to improvement of mental health care and treatment in its Mental Health Strategy for Scotland 2012-2015. We cannot, however, be complacent. New Strasbourg rulings and the development of international law and policy in the field means that existing legislation and its implementation has to be kept under constant review.
1 which, although interdisciplinary, operates from the Law provision within the School of Accounting, Financial Services and Law within the Edinburgh Napier University Business School. ______Page 16 of 32
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“Scotland’s mental health legislation is internationally recognised as being an example of good practice, particularly from a care, treatment and human rights perspective,…”
There are currently plenty of issues which are, or will be, exercising everyone’s minds. For instance, the proposed introduction of the Mental Health Bill during the current Scottish Parliament session to amend the Mental Health (Care and Treatment) (Scotland) Act 2003 in light of the McManus Review. The Tribunals (Scotland) Bill is currently before the Scottish Parliament and the Scottish Tribunals Service and the Scottish Court Service are to be administratively merged. We await the Scottish Government’s response to its recent consultation in relation to section 268 of the 2003 Act on appeals against excessive security in hospitals other than the State Hospital together with further direction in 2014 from the Scottish Law Commission on the deprivation of liberty and adults with incapacity and whether our Scottish legislation is compatible with Article 5 ECHR in light of the European Court of Human Rights Bournewood ruling2. The full implications of Article 12 (equal recognition before the law) of the UN Convention on the Rights of Persons with Disabilities in the context of care and treatment and supported or substituted decision-making are also yet to be unravelled. The list is endless and will undoubtedly continue to be so and, of course, legal and rights issues relating to mental health and incapacity go beyond the legislation specifically designed to address this. “The full implications of Article 12 (equal recognition before the law) of the UN Convention on the Rights of Persons with Disabilities in the context of care and treatment and supported or substituted decision-making are also yet to be unravelled.” There is a wealth of knowledge and expertise in mental health law and human rights throughout the public, private and voluntary sector in Scotland and some excellent work undertaken by organisations and individuals. It has, however, been somewhat fragmented and for this reason it has not always been possible for academia and practice to inform and assist each other as effectively as they might do.
The primary objective of the Centre is to address this gulf. Drawing on collective expertise both within and outside Edinburgh Napier University, the intention is for it to provide an interdisciplinary ‘hub’ of excellence in mental health and incapacity law and rights and how it operates. It is seeking to support, share and promote knowledge throughout the public and private sectors, to endeavour to influence policy and to identify areas where research and training will be beneficial. Moreover, to ensure that our strategic direction and focus remains relevant to the needs of those individuals that the law and rights seek to support and protect, we have established an Expert Advisory Group which will meet early in the new year.
2 To this end, the UK Supreme Court judgment in P (by his litigation friend the Official Solicitor) (FC) (Appellant) v Cheshire West and Chester Council and another (Respondents) UKSC 2012/0068 and Court of Session judgment in AB v BR, Dr DM & MHTS 2012 G.W.D. 34-702 may, each in their own contexts, be illuminating. However, direction must, of course, ultimately come from the European Court of Human Rights. ______Page 17 of 32
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There is certainly an ongoing need for high quality research and discussion – disseminated through, for example, publications, seminars and conferences – that actively contributes to the further development and implementation of the law. The continuance and enhancement of training that enables academics and practitioners to improve their knowledge and skills is also essential. “…. the intention is for it to provide an interdisciplinary ‘hub’ of excellence in mental health and incapacity law and rights and how it operates.” As mentioned at the outset, mental health and incapacity law and related aspects of this present a constant challenge. The considerable goodwill and expert interest that the Centre has already generated, combined with that within our university, makes me confident that we can rise to this challenge. In pursuance of this, we look forward to working with the Tribunal.
The Centre’s webpage can be found on http://www.napier.ac.uk/faculties/business/schools- centres/CMHILRP/Pages/Homepage.aspx
Dr Jill Stavert Reader in Law Director, Centre for Mental Health and Incapacity Law, Rights and Policy School of Accounting, Financial Services and Law Edinburgh Napier University, Edinburgh EH14 1DJ Tel: 0131 4554553 Email: [email protected]
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New National Dementia Strategy
The Scottish Government launched the second National Dementia Strategy for Scotland in June 2013. Like the first strategy, this is a practical plan which will be implemented over a three year period. And – also like the first strategy – it has the potential to result in really significant changes for the better for people with dementia and their partners, families and carers in Scotland.
The first strategy led to significant improvements, including a health service target which means that in future people with dementia will be properly supported in the first year after their diagnosis. It also laid strong foundations for a better future through the Promoting Excellence framework for knowledge and skills, the National Dementia Standards, the Alzheimer Scotland Nurse Consultants, the Dementia Champions, and more.
But we are definitely not yet where we need to be, and the new Strategy sets out 17 Scottish Government commitments. Each of these addresses an area that we know must be improved, if people are to be able to rely on being properly supported to live as well as possible with dementia. Included in these commitments is the testing of Alzheimer Scotland’s ‘8 Pillars’ model of supporting people with dementia in their communities. This is a coordinated, holistic approach, which uses a Dementia Practice Coordinator to draw together the range of supports that each person needs to live as well and as independently as possible. As well as general and mental health care and social care, the model includes ensuring that people with dementia are enabled to maintain valuable community connections, that their housing and environment suits their needs, and that carers are properly supported.
The key to this model is the focus on understanding and prioritising the needs and wishes of the person with dementia. This approach also underpins another key issue addressed in the new Strategy, on establishing a ‘national commitment’ around reducing inappropriate prescribing of psychoactive medications. While the Scottish Government’s commissioned research3 shows a declining trend in the use of antipsychotic drugs, the national commitment is important in explicitly setting out the way that these drugs should be used, emphasising that it is only where there is no appropriate alternative and where there is a clear benefit to the person receiving the medication.
3 Guthrie and Clark, Dundee, 2012, http://scotland.gov.uk/Resource/0039/00393277.pdf ______Page 19 of 32
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As with the rest of the Strategy, this commitment is clear that the needs and wishes of the person with dementia are central to any treatment or care.
“The key to this model is the focus on understanding and prioritising the needs and wishes of the person with dementia.”
Inappropriate prescription of medication is a clear example of a problematic consequence of lack of appropriate skills, standards and processes in the services that people with dementia rely on to provide their care. The first National Dementia Strategy led to much-needed improvements in care and treatment for people with dementia who found themselves in acute hospital settings; this second Dementia Strategy commits to extending those improvements to other healthcare settings including, importantly, NHS mental health services.
“Inappropriate prescription of medication is a clear example of a problematic consequence of lack of appropriate skills, standards and processes in the services that people with dementia rely on to provide their care.”
Alzheimer Scotland will continue to be a partner and a critical friend to the Government in taking forward the new strategy, working alongside the full range of organisations that must play their part if the plan is to be implemented successfully.
Working together to make sure this happens, we can know that we are making a real, positive impact on the lives of the thousands of Scots with dementia.
Amy Dalrymple Head of Policy Alzheimer Scotland - Action on Dementia
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Video Conferencing
Members were advised at the end of November 2013 that the Scottish Tribunals Service (STS) has been instructed by the President to put in place a process whereby objections to the use of video conferencing can be made clear during the Tribunal scheduling process. Such objections will be passed to the President’s Office for consideration by the President or an In-house Convener.
Central to the process for video conferencing is the idea of venues being partnered. This means that the patient and parties to the Tribunal hearing will attend the venue which they would ordinarily attend, while the panel and clerk will be situated elsewhere.
For the purposes of this trial, the partnering arrangements will be:
Patient and Parties Panel and Clerk
Midlothian Community Hospital, George House, Edinburgh Bonnyrigg Argyll and Bute Hospital, Lochgilphead Hamilton House, Hamilton Dr Grays Hospital, Elgin Royal Cornhill Hospital, Aberdeen Brevik House, Shetland Royal Cornhill Hospital, Aberdeen SCRA, Kirkwall Royal Cornhill Hospital, Aberdeen Western Isles Hospital, Stornoway Larch House, Inverness Caithness General Hospital, Wick Larch House, Inverness
“Central to the process for video conferencing is the idea of venues being partnered. This means that the patient and parties to the Tribunal hearing will attend the venue which they would ordinarily attend, while the panel and clerk will be situated elsewhere.”
A protocol for handling Tribunal hearings by video conference has been produced by STS and will be used and refined throughout the six month trial which will begin towards the end of 2013. The pilot will investigate and evaluate the increased use of video conferencing in delivering local Tribunal hearings.
The STS Video Conferencing Protocol is provided overleaf.
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Mental Health Tribunal for Scotland Video Conferencing Protocol
Panel and clerk will attend the following venues which will be equipped with suitable facilities for holding video conferencing hearings.
The panel and clerk will be positioned at the following video conferencing centres. George House, Edinburgh Bothwell House, Hamilton Royal Cornhill Hospital, Aberdeen Larch House, Inverness
Call Handling Procedures to be followed (Pre Hearing): Clerk will ensure video connection is made at least 15 minutes prior to the commencement of the hearing. Clerk will be in a position to identify any problems, whether pertaining to video conferencing equipment or attendance/non-attendance of parties. Identify if any parties are in attendance who are not on the attendee list and seek advice from your panel. Clerk confirms that all parties are present and advises panel members. Commencement of hearing. Adjournments – Panel will advise the clerk of the duration of the adjournment. Clerk will convey this information to all attendees . Clerk to advise attendees when panel are in a position to resume the hearing. Panel conveys decision/outcome of hearing. Clerk will inform parties of how they will receive any post hearing documentation.
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The RMO and MHO Forums meet twice a year, in April/May and in October, at Hamilton House. Representatives from a range of psychiatric disciplines (including old age, forensic, general adult and CAMHS) and local authority social work areas attend, and a range of topical matters are discussed. The In-house Conveners prepare an agenda for the Forums, which include updates from the President’s Office and matters of interest raised by RMOs or MHOs.
A note is taken of the meeting, with as much detail as possible on any statutory points, guidance notes etc., to ensure the note can be retained as a reference tool. Copies of the note are circulated, with Yvonne Bastian’s assistance, to Clinical Directors, Directors of Social Work, RMOs, MHOs and attendees. A copy is placed on the Royal College of Psychiatrists website, and on the Tribunal’s website at http://www.mhtscotland.gov.uk/mhts/Reference_Groups_and_Forums/RMO_MHO_Forums .
The October 2013 Forum considered the following matters:
The RMO/MHO Forum Note – style and content Format and function of the RMO/MHO Forum Non-attendance of RMOs at Tribunal hearings Use of one-way mirrors at Dudhope House (President’s Guidance) Late applications to the Tribunal by RMOs Informing the Tribunal promptly where a curator ad litem is necessary Late withdrawal of applications by RMOs Advocacy – informing the Tribunal of the advocacy worker Numbers attending the hearing The application of the MHO and the involvement of trainee MHOs MHOs receiving written decisions where they are not parties Applications to the Tribunal – rectifying errors Attendance at the hearing by doctors in training (to observe) Time allocated to shrieval hearings for restricted patients
The next Forum is scheduled for 28 April 2013 at 12 noon in Hamilton House.
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Mental He Mental Health and Incapacity Conference The Law Society of Scotland, partnered with the Mental Welfare Commission for Scotland and the Equality and Human Rights Commission, are delighted to announce a major conference on Mental Health and Incapacity law, which will take place on 21 and 22 March 2014 at The Fairmont Hotel in St Andrews, Scotland. This is the first major conference of its kind in Scotland since the introduction of the Adults with Incapacity (Scotland) Act 2000 and the Mental Health (Care and Treatment) (Scotland) Act 2003. Key speakers will include: Dr Donny Lyons (Chief Executive of the Mental Welfare Commission) Dr Joseph J Morrow (President of the Mental Health Tribunal for Scotland) Adrian Ward (Expert on Incapacity law in Scotland) Sandra McDonald (Public Guardian for Scotland) Laura Dunlop QC (Commissioner with the Scottish Law Commission) Derek P Auchie (joint author of The Scottish Mental Health Tribunal: Practice and Procedure) Alex Rucke-Keene (Barrister)
The programme will include topical and challenging issues within and across both jurisdictions, including: Deprivation of liberty The Mental Health Tribunal and legislative reform Vulnerable clients and receiving instructions Incapacity and significant impairment of decision making ability Cross border jurisdictions between Scotland, England, Ireland and Wales.
Delegates will have the opportunity to participate and interact in an "options group" in the morning and in the afternoon on day 1, which will include the following topics: Deprivation of liberty Incapacity and significant impairment of decision making ability Discrimination and Human Rights Delegates will also have the opportunity to register for the networking dinner on the evening of 21 March 2013. This event will be of interest to solicitors, service users, carers, mental health and incapacity health and social work professionals, tribunal members and advocacy groups. A number of free places have been allocated to service users (and their supporters) and to carers – contact [email protected] Online booking is available for Law Society of Scotland members only. Non-members please call 0131 476 8201 to register your place, and please note that payment is required at the time of booking. Contact http://www.lawscot.org.uk/events/mhic2014
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Interim Orders and Adjournments of Hearings
Interim Orders and Adjournments of Hearings 45
40
35
30
25
20 Percentage 15
10
5
0 2007-08 2008-09 2009-10 2010-11 2011-12 2012-13
The above graph relates to the adjournment/interim order rate covering the financial years 2007/08 to 2012/13. The average percentage of adjournments/interim orders in the year 2007/08 was 39.28%. When compared to the last financial year’s figures, which had an average return of 28.33%, it can be seen that significant improvements have been made in this area.
There is a direct correlation between the appointment of the In-house Conveners and the decline in continued hearings. In February 2009, the Tribunal introduced two initiatives: casework surgeries, which offer advice and guidance from an In-house Convener or one of the solicitors in the President’s Office to caseworkers on how to progress individual cases; and standing tribunals, where an In-house Convener or the President considers any matters which a Convener sitting alone may determine under rule 43 of the Tribunal’s Rules of Procedure. These initiatives have augmented the caseworkers’ skills by their increased exposure to legal advice and the Tribunal judiciary.
“These initiatives have augmented the caseworkers’ skills by their increased exposure to legal advice and the Tribunal judiciary.”
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The obvious result of the reduction in the adjournment/interim order rate is a better service being provided to the patient and other stakeholders, with the budgetary benefits of reduced hearings being a welcome by-product. 71.67% of all hearings which took place in 2012/13 resulted in a substantive decision in the case without the need for a further hearing.
“The obvious result of the reduction in the adjournment/interim order rate is a better service being provided to the patient and other stakeholders, with the budgetary benefits of reduced hearings being a welcome by- product.”
Results so far in this financial year indicate further success with an average continuation rate of 25.58%, constituting an improvement of 2.75% in relation to last year’s figure.
First Class Mail Pilot
As a further commitment to efficiency, the Scottish Tribunals Service (STS) are currently operating a 3 month mail pilot within the CIVIL casework teams.
Caseworkers are now sending mail to recipients via First class post in all non time restricted cases. Any mail for cases being heard within five working days will continue to be sent via next day courier service. The pilot will be reviewed at the end of January 2014.
If required by a panel member, the STS can confirm the date on which mail was posted and the recipient contact details. Please ask the hearings clerk or call the main office to speak with a caseworker who can provide this information.
Venue Assistant Uniform Pilot Scheme (Inverness and Aberdeen)
The STS has advised Securigroup, who supply STS with venue assistants, that venue assistants in Inverness and Aberdeen should revert back to non-uniform. This was communicated following feedback from members who found the use of uniforms to be ‘counter cultural’.
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New Head of Finance
I am Irene Andrew, and I was recruited as the Head of Finance Unit within STS on 12 August 2013. I currently manage the Finance Unit and am responsible for setting and regularly monitoring the STS budgets, providing financial data for decision making purposes, ensuring the financial systems and processes are appropriate and working effectively, preparing information for the annual accounts and ensuring that STS complies with financial corporate governance.
Some of you may already know me from my Scottish Court Service (SCS) days as I started my career within the public sector ‘way back’ in August 1985 within Airdrie Sheriff Court. I really enjoyed working there in an operational role for 12 years, however I was keen to use and perhaps further the financial qualification I gained after leaving school, so in February 1997, I transferred to the SCS Finance Unit which was based in Edinburgh. Living in Airdrie at that time, I travelled to Edinburgh every day but it enabled me to study towards my professional accountancy qualification and, in 2001, I passed my exams and became a member of the Association of Chartered Certified Accountants. During my time within the SCS Finance Unit, working to the finance director, I was initially the financial accountant and then latterly the management accountant and was responsible for leading the finance team, preparing the annual accounts, preparing the monthly management accounts for the SCS Board and preparing financial information for significant SCS projects.
In June 2006 I was tasked with the responsibility of managing the financial arrangements for the merger for the administration of the District Courts with SCS. To balance my financial experience and to provide me with additional project management skills for the merger project, I undertook a management qualification at Edinburgh University and graduated with a Master in Business Administration. I continued working for the SCS until August 2012 when I joined the Crown office and Procurator Fiscal Service in the role of Head of the Financial Accounting Team. I worked there for a year before securing the post with STS. To try and stay relatively balanced, I enjoy attending the gym and going for a leisurely jog and recently ventured out for my first run with the MHTS jog club. I am really looking forward to the challenges that STS will no doubt offer over the next few years. Irene Andrew Head of Finance
Finance Feedback Form for Members
The STS Finance Team would very much appreciate any comments you may have or suggestions/ideas to improve the service provided by the Finance Team. To this end, a Feedback Form for Members has been placed on the judicial Members webpage of the Tribunal’s website. If you would like to complete the Feedback Form, please attach the completed form in an email to: [email protected].
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Appeals Update
In the Supreme Court of the United Kingdom on appeal from the Second Division of the Court of Session, G (Appellant) and (1) the Scottish Ministers and (2) the Mental Health Tribunal for Scotland (Respondents)
The excessive security provisions of the 2003 Act have been considered in two appeal cases: Lothian Health Board v M (2007 SCLR 478) and G v Mental Health Tribunal for Scotland ([2011] CSIH 55).
In Lothian Health Board v M, Sheriff Principal Lockhart made three important findings about the operation of section 264. First, the Sheriff Principal held that in a section 264 application the onus is on the patient (and, presumably, on any other person who makes the application: see section 264(2) and (6)) to lead evidence to satisfy the Tribunal that the patient does not require to be detained under conditions of special security that can be provided only in a state hospital. If the applicant did not lead such evidence the application would fail (see paragraph [23] of the judgement).
Second, the Sheriff Principal held that section 264(2) contains both a power and a precondition for the exercise of that power. The power is to make an order in terms of section 264(2) declaring that the patient is being detained in conditions of excessive security and specifying a period not exceeding 3 months during which the duties under section 264(3) to (5) shall be performed. The precondition to the exercise of that power is the Tribunal being satisfied that the patient does not require to be detained under conditions of special security that can be provided only in a state hospital. Accordingly, the Tribunal must decide as a matter of fact that the patient does not require to be detained under conditions of special security that can be provided only in a state hospital and then go on to decide whether or not to exercise its discretion to make an order under section 264(2) (see paragraphs [34], [35] and [43](b) of the judgement).
Third, the Sheriff Principal held that in considering an application under section 264 the Tribunal was correct to restrict its consideration to whether the patient required the conditions of special security that can be provided only in a state hospital and not to consider whether there was another hospital in which the patient could appropriately be detained. The Tribunal required to make its decision according to the condition of the patient and not make any consideration of other resources available (see paragraphs [36] and [42] of the judgement).
The second and third of the three issues referred to above came to be considered by the Second Division of the Inner House of the Court of Session in G v Mental Health Tribunal for Scotland. While in Lothian Health Board v M the Tribunal had been satisfied that the precondition was made out and went on to exercise its discretion to make an order under section 264(2), in G v Mental Health Tribunal for Scotland the Tribunal was satisfied that the precondition was made out, but exercised its discretion to refuse to make an order under section 264(2).
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“….in G v Mental Health Tribunal for Scotland the Tribunal was satisfied that the precondition was made out, but exercised its discretion to refuse to make an order under section 264(2).”
In reaching its decision the Tribunal took account of a number of factors including evidence that G required to undergo psychological intervention relating to sexual offending before he could make further progress through the forensic psychiatric hospital system; that the forensic psychology department of the State Hospital had the best available resources within the secure forensic hospitals in Scotland to provide such psychotherapy; and that there was more likelihood of G engaging in sexual offending risk reduction work at the State Hospital (see paragraph 126 of the Tribunal’s decision recorded at paragraph [7] of the judgement].
G appealed the Tribunal’s decision to refuse to make an order under section 264(2) to the Inner House.
The Inner House rejected the appeal. The Inner House accepted – as did all parties to the appeal – that section 264(2) contained a two-stage test. In relation to the first stage of the test – the precondition – the Inner House noted that the Tribunal concluded that G did not require to be detained under conditions of special security that can be provided only in a state hospital (see paragraph [11] of the judgement). In relation to the second stage of the test – whether or not to make an order under section 264(2) – the Inner House rejected the submission made on behalf of G that in light of the opinion of the Sheriff Principal in Lothian Health Board v M the treatment resources and facilities available in hospitals with varying levels of security were irrelevant to the Tribunal’s consideration of the issues. The Inner House held that the availability of treatment at both the State Hospital and the Orchard Clinic and the physical security at both were factors relevant to the question whether an order under section 264(2) should be made and that in the context these factors were plainly relevant to the assessment of the likely risk which G could pose in either situation and thus in the case of G the availability and quality of resources arose in a quite a different way from that in which it arose in Lothian Health Board v M (see paragraph [13] of the judgement).
The decision of the Inner House in G v Mental Health Tribunal for Scotland was appealed to the Supreme Court of the United Kingdom and the appeal was heard on 7 and 8 October 2013. The appeal focused on the nature and extent of the Tribunal’s discretion when deciding whether or not to make an order under section 264(2), such as whether the discretion is a broad discretion as indicated by the Inner House, or whether it is qualified in some way; and whether consideration of the availability of resources in the sense of psychological intervention was a relevant factor for the Tribunal to have regard to.
The judgement of the Supreme Court is awaited.
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The following tables set out the lists of Practice Guidance issued to members and to the Tribunal’s Administration by the President since 2006.
Practice Guidance to Tribunal Members 1/2007 Doctors giving evidence at hearings when RMO cannot attend 1/2008 Appointment of Patient’s Responsible Medical Officer 1/2009 Same Panel Requests and Directions 2/2009 Directions 3/2009 Trainee Solicitors acting as a “Representative”ar 1/2010 Place of patients at hearings where curator ad litem appointed 1/2012 Timing of Tribunals 2/2012 Additional Writing Up Fee 1/2013 Tribunal Hearings where no Clerk in attendance – promulgation of Tribunal order 2/2013 Medical Examinations: Requirements (section 58 of the 2003 Act)
Practice Guidance to Administration 1/2007 Effect of unauthorised absence on ICTO and on subsequent hearing date 2/2007 Doctors giving evidence at hearings when RMO cannot attend 1/2008 Status of Advice from President’s Office to Administration 2/2008 Naming Convention for Guidance and Directions 3/2008 Documentation to be issued following successful appeal 4/2008 Conjoining of cases 5/2008 Attendance of staff and others at Tribunal hearings 7/2008 Section 63 – adjournment of cases where no interim CTO is made 1/2009 s86 determinations and s92 applications – time limits for lodging applications to extend or extend & vary orders 1/2010 Notification of short-term detention certificate 2/2010 Provision of documents in Tribunal applications (also sent to members) 1/2012 Rule 58: Power to decide case without an oral hearing
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Keeping up to date
Over 70 statutory instruments have been issued since the 2003 Act was passed.
A comprehensive list of all statutory instruments affecting our jurisdiction can be found on the Tribunal’s website and on the Scottish Government website.
Statutory Instruments Case Digest for members (2011) The statutory instruments are listed chronologically, alphabetically and by The Case Digest can be accessed on subject matter. This is a valuable the Tribunal’s website under resource and members are encouraged “Legislation and Caselaw” or click to utilise it. Details can be found on the on the link below. Tribunal’s website at the link below: The 2003 Act https://www.mhtscotland.gov.uk/mhts/ Legislation_and_Caselaw/Legislation Members can access the Mental Health and_Caselaw (Care and Treatment) (Scotland) Act 2003 and the various amendments to the Act on the members’ website by clicking on the link below:
https://www.mhtscotland.gov.uk/mhts/ Legislation_and_Caselaw/Legislation and_Caselaw
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Finance Team Scheduling Team [email protected] [email protected]
01698 390032 01698 390044
IT Team Quality Manager [email protected] [email protected]
01698 390090 01698 390058
President’s Office [email protected]
01698 390063
Fiona Queen PA to President and Member Liaison Officer
01698 390033
Yvonne Bastian President’s Office Secretary
01698 390001
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