Chamber and committees

Any report of harm, ill-treatment or neglect by a person in a position of trust in hospital, or elsewhere, should be acted upon and passed to the relevant local authority’s health and social care services, as well as the police if criminality is suspected.

Any subsequent police investigation will be undertaken considering the capacity of the victim and their communication needs. On occasions this may include the requirement for a mental health assessment and the services of an appropriate adult. Following investigation, if there is a sufficiency of evidence, a standard prosecution report will be submitted to the Crown Office and Procurator Fiscal Service for consideration of prosecution. In addition, a case conference may be convened to raise or review an adult protection care plan.

When the Mental Welfare Commission for Scotland receives a complaint of ill-treatment or neglect of a mental health service user, it generally advises that this be pursued through the local complaints procedure and also advises the individual of their right to contact the police in relation to serious allegations, such as assault.

Section 11 of the Mental Health (Care and Treatment) (Scotland) Act 2003 gives the Commission the power to carry out investigations in a number of specific circumstances, including where a service user might have been subjected to ill-treatment; neglect; or some other deficiency in care or treatment.

Some of the factors the Commission takes into account when considering whether to carry out such an investigation include: whether there is prima facie evidence of any of the matters which may be the subject of a Commission investigation (such as unlawful detention or deficiency in care); the extent to which any potential failings have been, or will be, investigated locally or by other agencies; and whether the case has significant implications for policy and practice on a wider level.

The purpose of section 50 of the Mental Health (Care and Treatment) (Scotland) Act 2003 is to give the patient or the patient's named person the right to apply to the Mental Health Tribunal for Scotland to revoke a short-term detention certificate or extension certificate. This could be because the patient or named person did not think a short-term detention certificate was necessary, or because the patient or named person is of the view that the patient's condition has improved sufficiently that it is no longer necessary. This is in keeping with other provisions in the 2003 Act which require that orders and certificates should be kept under review and revoked or varied as appropriate, to support the principles of least restriction and maximum benefit which underpin the 2003 Act.

Section 50 sets out that the Tribunal shall revoke the certificate if not satisfied that the following conditions continue to be met:

• that the patient has a mental disorder;

• that, because of the mental disorder, the patient's ability to make decisions about the provision of medical treatment is significantly impaired;

• that if the patient were not detained in hospital there would be a significant risk to the health, safety or welfare of the patient or to the safety of any other person;

and if the Tribunal is not satisfied that it continues to be necessary for the patient to be detained in hospital as authorised by the certificate.

Information on subjects reported to the Crown Office and Procurator Fiscal Service (COPFS) with charges under the Mental Health (Care and Treatment) (Scotland) Act 2003 Section 315 and Mental Health (Scotland) Act 1984 S105(1)a & (3) is presented below.The numbers of people convicted in the Scottish Courts of these charges is presented in the second table.

Please be aware that the criminal proceedings statistics on convictions only measure the main charge in a case and there may be secondary charges in some cases relating to the legislation that are not counted.

Subjects Reported to COPFS with charge(s) under Mental Health (Care and Treatment) (Scotland) Act 2003 Section 315 and Mental Health (Scotland) Act 1984 S105(1)a & (3)

Source: Crown Office and Procurator Fiscal Service

People with a main charge proved under Mental Health (Care and Treatment) (Scotland) Act 2003 Section 315 and Mental Health (Scotland) Act 1984 S105(1)a & (3)

Source: Scottish Government Criminal Proceedings database

(a) As explained in my answer to S5W-01782 on 24 August 2016, the Joint Housing Policy and Delivery Group includes representatives from 28 national housing related organisations. The Group offers Ministers advice on national strategic policy and delivery issues relating to housing. Members of the Joint Housing Policy and Delivery Group are expected to declare any conflicts of interest with respect to any topic being discussed by the Group. Specific housing developments are not discussed in the Group.

The suggested objectives offered by members to help the JHPDG in planning its work to fulfil the actions set out in the Delivery Plan were at a strategic level, not site-specific, and did not raise issues of conflicts of interest.

(b) An individual, who happened to be a member of the JHPDG, contacted the Scottish Government’s Planning and Architecture Division on 9 March requesting advice in relation to a private housing development. However, this was not done in the capacity of membership of JHPDG and membership of JHPDG does not confer any particular privileges. The Scottish Government has no records of any contact being made on 14 March 2016.

It is for the organisations who are part of the Joint Housing Policy and Delivery Group to nominate their own representatives for the Group.

All answers to written Parliamentary Questions are available on the Parliament's website, the search facility for which can be found at http://www.parliament.scot/parliamentarybusiness/28877.aspx.

The latest official statistics, sourced from the Labour Force Survey and published by the Office for National Statistics on the 19 of October 2016 for June-August 2016 show that there were 1,905,000 people in full-time employment in Scotland, down 35,000 since 2007, and 722,000 people in part-time employment, up by 107,000 since 2007.

The Scottish Government has a strong record of investment in Aberdeen and the North East of Scotland. Earlier this year the Scottish Government announced a £254 million infrastructure package for the North East on top of the commitment to provide 50:50 funding for the Aberdeen City Region Deal. In addition, the Scottish Government has established a number of different funds which address specific areas of regeneration activity and Aberdeen has thus far benefitted from two rounds of the £25 miilion Regeneration Capital Grant Fund.

Aberdeen City Council are responsible for the Masterplan. Scottish Ministers will also have a role to play in the adoption of the Masterplan in order for it to have statutory status in connection with the forthcoming Aberdeen Local Development Plan 2016.

The Mental Health Tribunal Scotland is an independent organisation which reports to Scottish Ministers. The aim of the Tribunal is to provide a responsive, accessible, independent and impartial service when making decisions on the compulsory care and treatment of people with mental disorders.

The Tribunal consists of the President and around 300 members. There are three groups of members – legal, medical, and general. Each hearing will have a panel of three members which includes one person from each group. The legal members will chair the hearing. Medical members are psychiatrists. General members are people with a special interest in mental health including psychiatric nurses, social workers, psychologists, service users and carers. None of the panel should have had any previous connection with the patient/service user.

There is a right under the Mental Health (Care and Treatment) (Scotland) Act 2003 to appeal to the Sheriff Principal (with a further appeal right to the Court of Session). It would be for the sheriff principal and then the Court of Session to review a decision made by the Tribunal. The Court may set aside the decision of the Tribunal and can also substitute its own decision.

A Short Term Detention Certificate (STDC) is granted where the patient is not already subject to compulsory measures. It may also be granted where the patient is subject to an Emergency Detention Certificate (EDC).

The patient and the patient's named person both have the right to apply to Mental Health Tribunal Scotland (MHTS) under section 50 of the Mental Health (Care and Treatment)(Scotland) Act 2003 for a revocation of the STDC.

Chapter two of the statutory Code of Practice which accompanies the 2003 Act, provides operational advice for healthcare professionals and states that it is good practice for the Mental Health Officer (MHO), when interviewing the patient, to provide them with an explanation of their right to appeal to the MHTS and with advice on how to access legal support as well as the support of an independent advocate in the event a STDC is granted.

When a STDC is granted, best practice would suggest that a MHO should consider ensuring the patient is aware as is possible of their status and rights and has access to information on representation and advocacy service. They should also make sure the patient or the named person remain fully aware of their rights throughout the detention period – for example, in relation to their right of appeal for a revocation of a STDC under section 50 of the 2003 Act or in their relation to their rights to advocacy service.

There is no formal test of capacity set out in the Mental Health (Care and Treatment) (Scotland) Act 2003 but in some circumstances different provisions and safeguards of the 2003 Act apply if the patient does not have capacity to make a certain decision in relation to treatment at a certain time. A patient’s capacity to consent to treatment is assessed by experienced, specialist clinicians subject to the safeguards in Part 16 of the 2003 Act, and having regard to guidance issued by the Mental Welfare Commission.

We believe that the 2003 Act is fully compliant with the European Convention on Human Rights (ECHR). The 2003 Act has never been found, in part or in whole, by the European Court of Human Rights to be not compliant with ECHR.

All patients receiving care or treatment are entitled to receive high-quality person-centred care in a safe setting, and the vast majority of mental health care and treatment across Scotland is provided with care and compassion. Section 315 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (“the 2003 Act”) provides for an offence which applies where a person with a mental health disorder is ill-treated or wilfully neglected in the course of the provision of their care or treatment. On investigation of a complaint, the police will decide if there is sufficient evidence to submit a report to the Procurator Fiscal.

The Scottish Government is committed to ensuring that the criminal justice system is able to hold individuals and organisations to account where they are responsible for serious and deliberate neglect or ill-treatment in the course of providing care. The Health (Tobacco, Nicotine etc. and Care) (Scotland) Act 2016 (“the 2016 Act”), will introduce new offences relating to the ill-treatment or wilful neglect of adults receiving health care or social care (including mental health care or treatment). The 2016 Act introduces two offences: one for care workers; and one in respect of organisations, which will allow neglect or ill-treatment that has resulted from organisational failings to be dealt with effectively. Additionally, the 2016 Act will increase the penalty for the offence set out in section 315 of the 2003 Act, from a maximum of two years imprisonment, on indictment, to a maximum of five years imprisonment, on indictment. These new offences as well as the increase in maximum penalty for the 2003 Act offence will come in to force in April 2017.