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UPDATE ON LEGISLATION 2010/2011. Joanna Keating Head of Protection of Rights Unit Reshaping Care & Mental Health Division. Intro & new SG structures. DG Health & Social Care Directorate for Health & Social Care Integration Reshaping Care & Mental Health Division Protection of Rights Unit

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update on legislation 2010 2011


Joanna Keating

Head of Protection of Rights Unit

Reshaping Care & Mental Health Division

intro new sg structures
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
recap on the bill mcmanus
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
bill recap mcmanus contd
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)
since mcmanus consultations
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
bill now mcmanus
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??
mental health adults with incapacity amendment bill
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
secondary legn rule 58
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
secondary legn rule 58 contd
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.

challenges to the legislation rm
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
challenges to the legislation g
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
challenges to the legislation s
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
challenges to legislation black
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
other legislative changes
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

[email protected]

[email protected]

More info: