For details of our earlier responses, click here. The Millan Committee website can be visited at www.scotland.gov.uk. A One over-arching question is of prime importance for NSF(Scotland): Will the proposals contained in this consultation paper, the recommendations of the Millan Committee, and any subsequent new legislation, make it easier for carers - and/or others - to get help for people who don't believe they are ill? Often, the more ill people are the less likely they are to believe that they are ill. The failure of existing legislation (and/or services) to deal effectively with this difficulty has sometimes led to problematic situations and occasionally to tragedy. Access to effective and timely interventions is in the interests of all people with mental health problems. B PRINCIPLES (Section 2) In general, NSF(Scotland) is satisfied with the principles laid out. Q2.1 Specific comments on 'Reciprocity' are as follows: The potential difficulties laid out in the consultation paper are acknowledged and understood. It is important that services for all people with serious mental health problems - whether detained or not - should be improved. Reciprocity is implicit within the other principles so could be dropped. The word 'reciprocity' may not be readily understandable to many people, and smacks of jargon. If 'reciprocity' is included in the final set of principles, could some other term be found to describe it? (e.g. 'duty of care') If 'reciprocity' is retained, it may be useful to change the emphasis of this duty to highlight the importance of treating people with dignity and respect, and the consequent duty to ensure that adequate services can be accessed on a voluntary or involuntary basis. Concerns have been raised within the Fellowship that should this statement of principle remain in its current form, it could potentially lead to people in need of services being denied them because the services were not deemed by professionals to be of a sufficiently high standard or 'appropriate' (e.g. poor in-patient facilities). Detention under the Mental Health Act is a serious matter. As stated in NSF(Scotland)'s response to the first consultation paper, the primary obligation of services is to prevent the need for detention wherever possible. In all cases where emergency detention has taken place, the circumstances leading up to it should be subject to review. This would allow for the identification of steps which might have helped to prevent the need for implementation of legislation. One possible example which springs to mind might be the need for GPs well trained in mental health issues. C GROUNDS FOR COMPULSORY INTERVENTIONS (Section 4) Q4.12 NSF(Scotland) have considered the Department of Health proposals as outlined in paragraph 4.34, in the context of the Millan Committee's comments about capacity and incapacity, and the difficulties of testing for capacity with this group of people. Our view is that the statement within the Department of Health proposals that 'the proposed care and treatment cannot be implemented without use of compulsory powers' in fact reflects that the person must be incapable before compulsory interventions can be initiated. Perhaps this statement could be rephrased in a way which reflects that. If this was done, the Department of Health proposals could be more readily adapted to take account of the Millan Committee's views. The Department of Health's list of criteria should be re-ordered so that point 4 ('is necessary for the health or safety of the patient') comes further up the list. It is important to emphasise that an intervention might be necessary for the health of the person. Professionals involved in any compulsory intervention should use their 'considered judgement' rather than trying to implement a test for capacity. Q4.13 We comment only that we are aware of the practical difficulties of assessing risk. We also know of current initiatives to which the Committee may wish to refer - the work done through the Scottish Executive's External Reference Group, which should be reporting shortly, and the proposed research to be commissioned by the CRAG Clinical Effectiveness Programmes SubGroup (CEPS) D COMPULSORY TREATMENT IN THE COMMUNITY (Section 6) Q6.1 NSF(Scotland) agrees that there may be a need for compulsion in the community, for some patients. Qs 6.2 - 6.5 These questions have not been discussed individually by the Fellowship. In consideration of CTOs, the following points emerged: In line with the principle of 'least restrictive alternative', the Fellowship understands that there could potentially be times when a Community Treatment Order might be a preferable alternative to hospital admission, for people experiencing their first episode of schizophrenia. This would apply on balance to only a small number of people (e.g. those with slow onset of illness) and would only be possible if the carer(s) consented to this as such an order would place a burden of expectation on them. In the same vein it would be important for people involved in supporting the person to be involved in developing their Care Plan. An additional set of criteria would need to be devised for CTOs to be applied to this group of people However, we are equally concerned that should this become an option, it must not be used to deny people access to 'asylum' and/or assessment in hospital. CTOs should not be applied to people who require to be in hospital because they need that level of support CTOs should not be used as a means of discharging [getting rid of] difficult patients To work effectively, resources must be in place to allow for the necessary practicalities such as monitoring medication There must be absolute clarity about the action which would result ('necessary enforcement of treatment') if people did not comply with the CTO. Q6.6 We agree that the name of the order is important. We have not come up with any definite alternative but are agreed that the focus should be on 'community' rather than 'hospital'. For example, the term 'Hospital Alternative Order' was not one which we thought would find ready acceptance. E ADVANCE DIRECTIVES (Section 7) Q 7.12 - 7.14 We think that advance directives should be binding unless the results of a refusal would put the patient at risk of serious harm (rather than 'put the patient's life in danger' as in the consultation paper). There should be an obligation on professionals to demonstrate why Advance Directives have not been followed. NSF(Scotland) have the following additional comments to make regarding Advance Directives: 'Advance Directives' might be seen less emotively if they were called 'Advance Statements' Advance Directives could give service users a sense of meaningful involvement in their care which they do not always have at present The success of Advance Directives as a 'tool' would be dependent on support from, and meaningful communications and relationships with, professionals. There would need to be clearly set out retrospective rights of complaint/appeal for individuals, for occasions when an Advance Directive had not been followed. This would permit this process to take place after the person became well enough to pursue such a course of action. The Fellowship believes strongly that Advance Directives should cover more than solely treatment options. They should also be able to encompass areas such as : who should/shouldn't be informed of the person's admission to hospital; . the extent of information giving and consultation with the person's informal carers(s); who is empowered to take decisions on the person's behalf. It will be essential to have a system which allows Advance Directives to be readily accessed in a crisis (e.g. it would not be helpful if such a document was lodged with a solicitor and access was required out of hours) An invaluable 'Appendix' to an Advance Directive would be able to take account of social/practical considerations relevant to the person's circumstances. This could give information, for example, about who should be contacted regarding access to the person's home (to pick up mail, ensure the home was in good order, look after pets etc), and whether there is a named person who has previously agreed to keep in contact with public utilities, housing authorities, Benefits Agency etc These practical considerations, if not adequately addressed (as is often the case), can in the longer term seriously affect individuals' recovery. F ADVOCACY, INCLUDING NSF(SCOTLAND) VIEWS ON THE POTENTIAL FUTURE ROLE OF THE MENTAL WELFARE COMMISSION (Sections 7 and 11) Q7.15 NSF(Scotland) agrees that there should be a statutory right to access to advocacy for all service users, whatever their legal status. These should be: independent services; operate according to agreed quality standards; not dependent on 'postcode' provision; funded by and financially accountable to the Scottish Executive, and reporting to the Scottish Parliament (in a similar way to the present arrangements for the Mental Welfare Commission) Q7.16 The Fellowship agrees that an advocate should have access to all elements of a person's care, if that person so wishes. Carers should also have a right to advocacy. This service should be delivered by someone other than the service user's advocate. A structure should be put in place for local advocacy services to link to the activities of the Mental Welfare Commission. The Mental Welfare Commission NSF(Scotland) considers that the remit of the Mental Welfare Commission should change to include the following functions: a statutory function to consider the interests of all mental health service users, whether detained or not, and proactively as well as reactively (Q11.1 - 11.2) a statutory function to visit hospital and community based mental health services regardless of which 'sector' they operate within (Q11.3) a statutory right to make unannounced visits to these services (Q11.3) In short, the Fellowship agrees with the proposals contained in Questions 11.1 - 11.3 In addition, the Fellowship suggests that the Mental Welfare Commission could appropriately perform a statutory function comparable to that of the Equal Opportunities Commission and the Commission for Racial Equality - i.e. the Mental Welfare Commission should be able to consider concerns about individuals' care and treatment; and if deemed appropriate, it should be able to support individuals' cases by taking these cases to the Sheriff Court. Decisions would then be reached following consideration by the Court (Qs 11.9 and 11.13 - 11.14) Such a change in role would be more judicial and investigative than the present role of the Commission, and would require the removal of the power to review detention and order discharge. (Q11.4 - 11.5) G STIGMA (Section 7) Q7.1 We agree with the proposal that the Millan Committee's recommendations include reference to the need for action to address stigma and benefits difficulties for detained patients. We would add that voluntary patients can also face considerable difficulties regarding benefits. In relation to action on stigma, we think it important to comment that a number of organisations (including our own) have undertaken work at local and national levels which could forma contribution to such action. It would be important to resource this work sufficiently at both local and national levels. Q7.2 We referred to a number of difficulties faced by mental health service users in our responses to the Committee's first consultation, and would refer the Committee to these rather than repeat them again here. We also know of many difficulties faced by service users in relation to the discharge process (or lack of it) and can supply additional details of this on request. Many of the problems faced are about service failures and it is hard to see how legislation can address these. H CARERS AND RELATIVES, INCLUDING CHILDREN (Sections 8 [children] and 9) There needs to be a preamble to this section which will reflect the fact that carers' first concerns are for the wellbeing of the people they support. Support and information for carers are an essential means to an end - better quality of life for service users. Q9.5 NSF(Scotland) is in broad agreement that nearest relatives should no longer consent to or have the power to initiate detentions. However, we also know that in Scotland, issues of rurality and remoteness have to be taken into account in emergency situations. We would therefore suggest that rather than these powers being removed altogether, nearest relatives should be involved only in extreme circumstances; that a clear explanation must be given to them; and that any consent must be signed by the nearest relative (not verbal and sometimes unknowingly as at present). The involvement of nearest relatives in this process would require to be explained by the doctor concerned. We think it crucial that carers/family members have a legal right to initiate assessments. Who would be able to do this, and in what circumstances, would need to be discussed in more detail. If the service user was developing an Advance Statement, this is one issue which could be addressed through such a statement. Q 9.6 NSF(Scotland) would support the replacement of the 'nearest relative' with a 'nominated person', with the provisos laid out in para 9.8. If 'nearest relatives' are replaced by 'nominated persons', however, family members/carers would need to have a legal right to an ongoing point of contact for out of hours and crises. Q9.2 The right to support services for carers should be contained in the legislation This would include the right to be given the necessary information and advice to enable carers/family members to fulfil their caring role.(Qs 9.7 - 9.8). This would not as a matter of course include personal information shared with professionals in confidence by the service user, but could include, for example, information about the diagnosis(if any) and its implications; guidance on coping with difficulties which may arise; medication; benefits; support services for users and carers. Q9.8 should highlight the fact that children who are relatives/young carers must be included as having information needs. These should available in an 'age appropriate' form. (There is potential cross reference here to paras 8.37 - 8.38, and Q8.19) I ROLE OF GPs (Section 12) Qs 12.1 and 12.2 The Fellowship agrees that GPs should receive compulsory training in the Mental Health Act before being able to initiate detentions. If they do not receive this training, they should have access to trained colleagues. In rural areas, where GP cover is more problematic, GPs should be required to have this training as they may be the only professionals locally available to fulfil this role. Q12.6 It may be appropriate for CPNs to have this power, but only if they have the appropriate training. In an ideal situation, Community Mental Health Teams would be able to provide 24 hour cover. This is what we would like to see.