Legislation & Case Law Update - 2012

1. Legislation & Case Law Update - 2012 Joanna Keating & Mehboob Ahmad Protection of Rights Unit Mental Health & Protection of Rights Division

2. Integration: “Highlands” Context • The Community Care (Joint Working etc.) (S) Amendment Regulations 2012 - 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).

3. 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 2007 - reference to ‘council officer’ or “council nominee” now includes an employee / nominee of the relevant NHS body.

4. 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

5. 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?

6. Tribunals Reform: SG Response • Government response to consultation issued 30 Aug 2012. Reassured: • No proposal to alter ethos of MHTS • Same panel and rules, retain expertise • MHTS share good practise with others • Structure not finalised

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

8. 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

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

10. 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

11. 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.

12. 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 – 23rd October 2012

13. 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

14. 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

15. 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

16. 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

17. Contact: Joanna.Keating@scotland.gsi.gov.uk Mehboob.Ahmad@scotland.gsi.gov.uk Mentalhealthlaw@scotland.gsi.gov.uk Website: http://www.scotland.gov.uk/Topics/Health /Services/Mental-Health