Under agenda item 2, the committee will continue to take evidence at stage 1 of the Coronavirus (Recovery and Reform) (Scotland) Bill. The focus of this evidence session will be on the named person nomination provision contained in part 3 of the bill.
I welcome to the committee Dr Arun Chopra, the medical director of the Mental Welfare Commission for Scotland, and Dr Roger Smyth, chair of the legislative oversight forum of the Royal College of Psychiatrists in Scotland. I thank them for giving us their time and for their written submissions.
I will give members the opportunity to ask the witnesses questions. If one of the witnesses would like to respond to an issue that is being discussed, they should type R in the chat box and we will try to bring them in.
As our witnesses join us remotely, I ask them to introduce themselves.
Good morning, convener and members. I am the medical director of the Mental Welfare Commission for Scotland.
I am a consultant psychiatrist and the chair of the legislative oversight forum for the Royal College of Psychiatrists in Scotland.
What are the potential benefits and risks associated with the proposal to remove the requirement for a nominee as a named person to have their signature witnessed by a prescribed person?
10:45
There are many benefits to the proposal that we remove the requirement that the named person’s signature is to be witnessed. If I could lead with some data on it, that would be helpful to the committee.
There are various provisions in the Mental Health (Care and Treatment) (Scotland) Act 2003 to ensure that, when a person is detained under the act, their rights are protected and their voice is heard, especially at times when they are quite vulnerable. One of those safeguards is the ability for a person to nominate a named person. One of the processes involved is that the named person’s signature is required to be witnessed.
At the Mental Welfare Commission, we have a duty to monitor how the 2003 act is working. From some of the data that we hold, we have found that the uptake of the named person provision is around 25 per cent. That is, around 25 per cent of the people who are detained under the act have a named person.
From looking at three years’ worth of data, including last year’s, we have found that, despite the effects of the pandemic and the need for social distancing, removing the requirement that the named person’s signature be witnessed did not lead to a reduction in the number of people who have that safeguard. Therefore, the proposal has a real benefit in reducing bureaucracy and allowing people to exercise their rights through having a named person.
I agree with Dr Chopra. The benefits of the proposal relate back to the benefits that the framers of the 2003 act saw in having a named person at all. The Mental Health (Care and Treatment) (Scotland) Act 2003 introduced the idea of a named person so that, instead of simply going to the next of kin, an individual who was or might be subjected to the act’s provisions could identify a named person to look after their interests, represent them, help them to exercise their rights and be kept informed about procedures under the act.
Given the benefits that the framers of the act saw in that and that we as psychiatrists would like to obtain for our patients, we want to expand as far as possible the ability of people to have a named person when they are treated under the act. The proposal in the bill, although it is comparatively minor, will enable that to happen.
What are some of the issues that are encountered when organising the witnessing of a named person nomination? Does any of them predate the pandemic?
The procedure for identifying a named person was changed somewhat with the amendments that the Mental Health (Scotland) Act 2015 made. Prior to that, if no named person was identified, a default named person was identified. That provision was removed except for in relation to individuals under the age of 16. Alongside it was the proposal that there be a signature by the nominated person and that that signature would be witnessed by an individual from a set list of professions.
The reason why the proposal is to be enacted through the bill when many of the other easements in the coronavirus legislation are not is because it is easy to foresee that, at a time when it is not possible to bring together multiple professional groups and fewer professional groups are available on site in the sorts of places where patients might be looking for them, the requirement for the signature to be witnessed might provide an additional hurdle. However, that hurdle always existed. In general, the greater the complexity of any procedure, the less likely it is to be carried out accurately and completely.
The amendments in the 2015 act were made to try to reset the balance. There is a balance to be struck here between, on the one hand, upholding the rights of individuals to have a named person of their choice and for as many people who want a named person to be able to identify and notarise them and, on the other, ensuring that people are not placed in the position of becoming a named person unwillingly, unknowingly or without proper scrutiny of the roles that they would be expected to undertake.
The 2015 act moved the balance a little bit more in favour of protecting those who might be unwillingly nominated, and this small tweak to the procedure will make things slightly simpler and more straightforward and move the balance back to making it fractionally easier for an individual to obtain a correctly nominated named person. Having experienced its use through the pandemic, we saw real if small benefits from it and did not identify any attendant risks.
Thank you for that helpful historical insight. Perhaps I can bring in Dr Chopra.
I agree with what has just been said, but I also point out that the pandemic has brought in difficulties with the requirement for physical distancing. That made it difficult for named persons to visit people in hospital in order to, for example, witness a document being signed or, indeed, for people to witness the named person signing it.
However, as I have mentioned, it is quite clear from the data that, even before the pandemic, there was not the uptake that one might have expected for a safeguard of such importance. That relates, I think, to knowledge of the safeguard and the need to ensure that people are aware of its existence and to reduce any barriers that there might be as a result of the pandemic—and which there might have been beforehand—to the uptake by individuals of the named person provision.
Thank you.
Good morning. It is fair to say that concerns have been raised with us about the proposed change. The Scottish Association of Social Work, for example, has said that witnessing the signature of a named person provides an opportunity
“to verify the named person ... inform them of the role, allow them to ask any questions, ensure they”
understand
“the responsibilities and to confirm that they are competent and able to perform the functions correctly. This is particularly important since there is little guidance around the role and responsibilities of a named person.”
What is your response to those comments? Do you have any concerns that removing such a requirement will mean that people taking on the responsibility of being a named person will not be fully advised of what the role involves? Perhaps Dr Chopra can respond first.
I understand the concerns that have been raised about whether the witnessing of the signature actually provides a mechanism for people to discuss with a named person whether they understand their role. The SASW actually makes a crucial and important point in that respect.
However, I am not sure whether we need this additional bureaucratic hurdle of witnessing the signature. We can separate the two things. We can ensure that named persons are fully informed of their rights, duties and responsibilities, as happens in many health boards and local authorities. The multidisciplinary team, the mental health officer and others will discuss the matter with the named person and ask whether they understand what is involved. That can still take place; indeed, there is guidance in that regard that I can talk about in a second.
There is no legislative requirement for the witness to certify that the named person understands their roles and duties—they are just witnesses from that class of prescribed persons. I fully understand the benefits of what the SASW has suggested, but we do not need an additional bureaucratic hurdle. We just need to ensure that that process happens anyway.
As for guidance, there is good Scottish Government guidance called “The New Mental Health Act: A Guide to Named Persons” that the Mental Welfare Commission for Scotland assisted with. I know from speaking to colleagues that, in some areas, that guidance is sent out to all named persons. It is up to date with all changes up to October 2018 so, depending on the outcomes of proceedings, there will need to be some tweaks to it, but the guidance is good and it explains the process well.
Dr Chopra, before I bring in Dr Smyth, perhaps I could ask a brief follow-up question. Should a named person nominee be required to declare that they understand their role, rights and responsibilities?
That is a helpful suggestion. The current form talks about how a person is applying to become a named person. Adding something to that to say that they understand their role or that the role has been explained to them might be a helpful addition that brings in some of the points that the Scottish Association of Social Work made and acts as an additional check for the named person to say that they need a bit more information or that they have read the guidance. That is a good idea.
I put the same question to Dr Smyth.
I agree with Dr Chopra, and especially his final point. I understand the points that the Scottish Association of Social Work made. Its particular concerns certainly should be addressed during the process of identifying and correctly nominating a named person. The issue is whether the procedure of witnessing by a member of a certain prescribed class actually did that. It is certainly not a legislative requirement that they do so and, although we cannot speak to every incident of witnessing, our experience was that that was not the case; they were simply witnessing that the correct person had signed rather than identifying any particular understanding of theirs. The idea that the form should include a declaration as well as information is quite a good one.
The involvement of the named person is a process rather than an event. There are opportunities to engage with multiple people along the way—particularly at the outset, with the mental health professional and with the mental health officer or specially trained social worker who will be involved at the instigation of pretty much every period of detention under the legislation. They will provide a lot of information about not just about the abstract role, but the actual duties that fall upon the named person and the opportunity that they will have to speak when the person for whom they are named person is under any particular section.
It must be a process rather than an event because, if the legislation works as it should, someone would nominate a named person when they were well, and when the prospect of future illness and future treatment under the legislation were at least theoretical and in the future. It is only when those events happen that the reality would be brought to bear. It would be inappropriate to consider that the information that the named person received about their role and responsibilities, and particularly their rights, should be contained within the time of meeting the witness that occurred perhaps a year or more in the past.
There has to be a process of on-going information to the patient about their rights and to the named person about their rights and responsibilities. We see it as an on-going process that is provided for by multiple other points of contact with the health and social care system rather than something that is contained within a one-off meeting to witness a signature.
It has been suggested that someone could accept the nomination to be a named person without properly understanding the roles and responsibilities that go along with it. Is that a genuine concern? Have there been problems in the past, or do you think that we are just looking to cut out some bureaucracy and that the measure is no real threat?
I will start with Roger Smyth.
11:00
I agree with your point. The measure is a small bureaucratic step that did not contain, as we had experienced or could foresee, any real threats to named persons being unwittingly or unwillingly nominated. It is a balance between ensuring that as many patients as possible have a named person of their choice and ensuring that there are procedures so that people do not end up as named persons against their will.
We saw the benefits of expanding the number of people with an appropriate named person because the reduction of unnecessary bureaucracy significantly outweighs the theoretical risk that we as clinicians had not seen in the practice of the 2015 act since 2017 when the new procedures came into place.
Furthermore, an individual has the opportunity to make a declaration that they no longer want to be a named person. Being a named person does not tie anyone into anything. A person’s ability to make such a declaration applies throughout their role as a named person. If their personal life has moved on, the duties became more onerous or someone else became more appropriate to take on the role, they could easily make a declaration that they no longer wish to be a named person. They are in no sense trapped. Essentially, we saw the measure as obtaining a benefit at only theoretical cost and no practical cost.
I recognise your point. Being a named person is a really important role. You have the right to be consulted on any compulsory measures that the person who you are the named person for might be subject to. You have the right to make an appeal on their behalf. Everything that goes from the Mental Health Tribunal for Scotland to the patient would also go to their named person.
The named person role is an important one, which acts as an important safeguard, and you would want anyone who undertakes the role to understand it very well. There are processes in the law—they have not changed—that ensure that, when someone nominates a person to be a named person, they fully understand who they are nominating and why, and that they are not doing so under duress.
I will move slightly upstream from the named person process. As I said, there is a process to ensure that the person who is nominating a named person is not doing so under any duress and fully understands all the information that will go to the named person.
On data, I have already mentioned that, over the three-year period, only around 25 per cent of people who were detained had a named person. When you break that down by year—2018, 2019 and 2020—there are not huge differences. Even when the measures were commenced in 2020, we did not see a massive rise in the number of people who became named persons, nor did we see a fall. It is important to note that there has not been a huge change as a result of the measure being brought in.
Safeguards are available if someone becomes a named person but is deemed inappropriate to hold that role. Dr Smyth mentioned the mechanisms that are available to the patient at that point to say that they do not want that person to be their named person. There are also mechanisms available to the mental health officer, professionals who are working with the person or anyone who has a role in the welfare of the person to say to the tribunal that that person is not appropriate to be a named person. There are safeguards upstream and downstream of the aspect that Alex Rowley asked about.
Dr Chopra, you may just have answered my question. Can you define who would require a named person?
Yes. The legislation says that any person can nominate someone to be a named person. However, the value of having a named person finds its expression when someone is subject to compulsory powers under the 2003 act.
If a person is well and has a mental health condition that they recognise might cause them to require compulsory treatment in hospital under detention, they can nominate someone to be their named person. They can even do that at the point of detention if they have the capacity to understand what it means to have a named person. That person—I started to talk about this in response to a previous question—will then have all the same rights that the patient has in respect of having all the information provided to them about what is being said about the patient. All the tribunal paperwork will go to them. If a doctor or social worker is planning to take any compulsory measures under the 2003 act, they have to advise the named person of what they are doing and consult them.
Those are the sort of powers that are involved, and they are the sort of people for whom having a named person is really important. We are talking about some of the most vulnerable people who are subject to mental health law and who get the most benefit from having a named person.
I want you to clarify something. That is not the same as somebody being given power of attorney.
No.
It is a separate thing.
It is a completely separate thing under the Mental Health (Care and Treatment) (Scotland) Act 2003. A safeguard is provided for anyone who has been detained under the act to have someone who is important to them to act as a named person. Dr Smyth emphasised the point about choice. We are talking about someone whom a person has chosen so that, if they are detained under the legislation, the named person will know everything that is going to happen to the person who is detained and will receive all the paperwork about them. The detained person will want the doctors to consult the named person about measures that they are taking, and the detained person will want the named person to be advised of anything that is being done to them. That is what the named person is. That is different from a person who has power of attorney.
Excellent. That is of great importance. Thank you very much.
A person is entitled to change a named person at any given time, but, if they are having an episode in hospital for instance, the named person would stay until the episode has passed. Is that correct? I think that you have just answered that.
Yes—unless the person felt, and they had the capacity to say, that they no longer wanted that person to be their named person. They could make a revocation, and then an assessment would be made on whether they had the capacity to make that decision.
However, generally speaking, people who have experienced an episode of detention will make their nomination for a named person when they are well. They will do that before they are detained again, should that event ever happen—we hope that it will not. They are able to say that they would like somebody to be their named person if that happened.
At the point of an assessment of whether someone needs to be detained, the mental health officer, who will be a specially trained social worker with extra experience in mental health, will do their utmost to ascertain whether that person has a named person and involve them in any discussion.
I will not go into too much detail, but it is really helpful to understand the pathway. This fits with what Dr Smyth said about not viewing the involvement of the named person as an event but as a process. We have found that, when people are first detained under a short-term detention certificate for up to 28 days under the 2003 act, only 11 per cent of them have a named person. The figure for those subject to compulsory treatment orders who have a named person reaches around 25 per cent. It can be seen that, even during the process of being detained, people are able to take up the safeguard. In saying that, I am conscious that the levels are really low, but it can be seen that, even during an episode of detention, that safeguard becomes available to people.
Okay. Will you clarify another issue for me? The bill deals with the requirement for the signature to be witnessed. However, would it make more sense for the legislation to require that anyone who is going to be a named person be given sight of what it means to be a named person and then to acknowledge that? I think that Murdo Fraser made that suggestion.
I totally agree with that point. It is really helpful for them to have had guidance and to be able to say, “Do you know what? I’ve been made aware of what powers, duties and responsibilities I have.” That would be much more helpful than a bureaucratic step that requires them to find someone who can witness their signature.
I have one question. You have touched on there being issues other than the one about the witnessing of signatures. There might be reforms to mental health legislation at some stage, so would it be better to leave this one small change until we look at wider issues for mental health legislation? I am concerned that only 25 per cent of people have a named person. Do you agree that there are bigger issues than just the one about witnesses?
I agree. That is one of the points that was made during consideration of the Mental Health (Scotland) Bill, which is when the 2003 act was last looked at. There was discussion then about the need to promote named persons as a safeguard.
It was in response to this committee that we started to explore the existing dataset to understand the level of uptake of named persons. It would be good to provide a benchmark for Scotland as to the current position, so it is helpful that we are looking at the issue. We need to do more.
The colleagues to whom I spoke in preparation for the meeting said that we cannot just leave it to the named person. Today, I have talked about mental health officers and their specific duties, but it is the duty of the whole multidisciplinary team to act, and we are talking about a process rather than an event. We all need to do better at ensuring that people or patients who are likely to be detained have a named person.
Should we leave it for new mental health legislation? It is something that we have highlighted now, the pandemic has put a spotlight on it and we have made a change that has been good, so I think that we should press ahead and enshrine the provision so that we can build on where we are. We are some years away from a new mental health act or new mental health provisions in other legislation, and the Mental Welfare Commission for Scotland is there to protect folks’ rights, so I am keen that this takes place as soon as possible.
That is very helpful. Dr Smyth, do you have anything to add?
I agree with Dr Chopra. John Scott’s review of mental health law in Scotland is due to release its second phase of consultation in a couple of weeks, but legislative change is some years away. It is very unlikely that, had there not been a pandemic, we would be asking the Scottish Government to produce primary legislation on the point that we are discussing. Looking at how the legislation that contained the provision operated during the pandemic, we feel that it offered benefits to patients that should be sustained through the several years that lie ahead before new mental health legislation gets on to the statute books.
That concludes our evidence session. I thank Dr Chopra and Dr Smyth for their evidence and time. If witnesses would like to provide any further evidence to the committee, they can do so in writing. The clerks are happy to liaise with them on how to do that.
The committee’s next meeting will be 17 March, when we will take evidence from the Cabinet Secretary for Health and Social Care on the inquiry into excess deaths in Scotland since the start of the pandemic. We will also take evidence from the Deputy First Minister and Cabinet Secretary for Covid Recovery on the latest ministerial statement on Covid-19 and subordinate legislation.
11:13 Meeting continued in private until 11:22.Previous
Excess Deaths Inquiry