Legislation & Case Law Update Joanna Keating & Mehboob Ahmad Protection of Rights Unit Mental Health & Protection of Rights Division

Integration: “Highlands” Context  The Community Care (Joint Working etc.) (S) Amendment Regulations in force 30 March 2012  updated/amended the Community Care (Joint Working etc) (Scotland) Regulations 2002 (contains delegable functions between NHS bodies and local authorities)  enables / allows (does not require) particular functions under the 2003 Act (s25, 26, 27 and 33) to be delegated by council to NHS body.  s25-27 changes not new - in original 2002 Regulations  s33 duty to inquire function: by NHS body where delegated – but in practical terms NHS body would work with MHO given MHO duties re evidence to Sheriff etc  s34 unaffected, so persons listed at s34(3) are required to co-operate (subject to specific exceptions).

Integration “Highlands” Context Cont’d  The Community Care and Health (Scotland) Act 2002 (Incidental Provision) (Adult Support and Protection) Order 2012  came into force on 31 March 2012  affects ASPA reference to ‘council officer’ or “council nominee” now includes an employee / nominee of the relevant NHS body.

Tribunals Reform Bill for 2013  Key proposals of the Bill:  Create a simple two-tier system for tribunals.  Bring judicial leadership under the remit of the Lord President;  Create a new office, the President of Scottish Tribunals (PST) with the responsibility for the efficient disposal of business in the new system;  Establish new independent appointment arrangements.  Efficiency in administration of justice  Potential for future developments

Tribunals Reform Consultation  Consulted March – June 2012 on 6 questions  Special event run for mental health stakeholders during consultation period  Consultees:  Clarification sought on chamber structure  Concern at possible loss of expertise  Potential loss of MH focussed administration  Cross ticketing across chambers?

Tribunals Reform: SG Response  Government response to consultation issued 30 Aug Reassured:  No proposal to alter ethos of MHTS  Same panel and rules, retain expertise  MHTS share good practise with others  Structure not finalised

Mental Health Amendment Bill – A Reminder  Content:  McManus Recommendations  Minor amendments  VNS Scheme for MDOs  Civil Emergency powers  AWI Part 5

Bill Timing  Not in this year’s legislative programme  Earliest now will be 2013/2014 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 2014/2015

Meantime…  Working on a draft Bill for consultation before end 2013;  Work to update CoP and guidance

Secondary Legislation: Rule 58  Empowers the MHTS to decide cases without an oral hearing  Old Position: Could only 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 Legislation: Rule 58 Cont’d 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.

Challenges to legislation: RM  Excessive security appeal  Issue is “failure” of SMs to make regulations under s268 to “give life” to provisions extending ESR beyond TSH  SG position is that SMs not ruled out, but 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 – 23 rd October 2012

Challenges to legislation: G  “Discretion” of MHTS not to make an order to release (even where MHTS agreed patient did not require conditions of special security)  Best treatment available at TSH  Different Entry/Exit criteria  Ct of Session held (Aug 2011) that discretion exercised appropriately with adequate reasoning provided by MHTS  Patient’s appeal refused, now appealed to Supreme Court mid 2013

Challenges to legislation: JM/JMM  If RO removed from CORO patient, review CO as well.  In practice, if recommending revocation of RO, Ministers view that should also be variation of CO to make it community based

Challenges to legislation: Black  Re curators ad litem  Lack of appeal for curators from Tribunal to Sheriff Principal  Supreme Court held that although no statutory right, remedies available

Other legislative changes Criminal Justice & Licensing (Scotland) Act 2010  In force from 25 June 2012  New statutory defence to replace common law defence of insanity  Acquittal involving mental disorder – procedure changes  Unfitness for trial  Abolition of common law rules

Contact: Website: /Services/Mental-Health