The next item of business is stage 3 proceedings on the Mental Health Scotland Bill and dealing with the amendments that members should have. The bill is amended at stage 2, SP Bill 53A, the Marshall list, SP Bill 53AML and the groupings, SP Bill 53AG. The division bell will sound and proceedings will be suspended for five minutes for the first division of the afternoon and the period of voting for the division thereafter will be 30 seconds. Following that, I will allow a period of one minute for the first division after each debate. Members who wish to speak in the debate on any group of amendments should press the request to speak buttons as soon as possible after I call the group, and members should now refer to the Marshall list of amendments, please. Group 1, use of psychotropic substances. I call amendment 24, in the name of Dr Richard Simpson, in a group on its own. I ask Dr Simpson to move and speak to amendment 24, please. Thank you, Deputy Presiding Officer. This amendment follows amendment 109 at stage 2, which was tabled by Adam Ingram, and followed concerns being raised with him, myself and Nanette Milne. When the amendment was tabled, the NICE had just published guidance reinforcing the remarks made by Adam Ingram and the evidence given to the committee by autism rights. Patients who have learning disability, including autism spectrum disorder alone, in the absence of serious additional mental illness should not be given psychoactive substances as a first-line treatment. When they are given, it should only be used with caution and should be discontinued after six weeks if there is no improvement. I have no doubt that my professional colleagues will pay heed to this guidance, and I should, Deputy Presiding Officer, have said perhaps at the outset of this entire debate—and I will only say it once—that I am a fellow of the Royal College of Psychiatry, so I have an interest in the subject. However, as I say, I have no doubt that my professional colleagues will pay heed to this guidance, however, too often, there is no recording of medicines for treatment of associated conditions, such as epilepsy, and so polypharmacy occurs. We know again from evidence to the committee that numerous admissions to hospitals are associated with the atrogenic causes, that is caused by the administration of medicine, which is inappropriate. Of course, treatment under the Adults Within Capacity Act 2000, part 5, gives added protection to a patient who has a paid capacity in that the carer or guardian must be consulted and treatment must be agreed with them, but this is not the case with the Mental Health Act. At stage 2, I expressed particular concerns about patients with dementia, who we know are not having their diagnosis recorded in 50 per cent of cases on admissions to acute hospital. I stress that this is patients who have already got a diagnosis of dementia. That was according to recent Scottish research, published in relation to Scottish hospitals, published in the British Journal of Psychiatry. Too often, patients are treated with psychoactive substances, which can render them confused and more likely to suffer falls. Although the situation in care homes has definitely improved, since it was Mary Scanlon who raised the issue first in the first session of Parliament, it remains a worry. I appreciate that the principles embodied in the Mental Health Act should adequately protect patients, but the reality is that this is still not the case. The minister in his reply at stage 2 quoted the Patient Rights Act and that, too, is helpful but not sufficient. I know that the minister also pointed to the valuable work by the Care Inspectorate and the Mental Welfare Commission, both of which are having an effect in care homes and mental health settings, but that is not the case in acute hospitals. Here, we have the HIS carrying out elderly inspections of elderly care, and yet, in the 950 case records that they have examined since their inspections started, only 50 per cent were assessed for cognitive impairment. I believe that the time has come to regulate matters rather than rely on guidance. Of course, those regulations cannot interfere with clinical judgment, but by insisting on proper recording of the decision, for example, no psychoactive substance should be used unless the cognitive status of the patient has been recorded, but also ensure that the nice guidelines are followed strictly, then we are going to continue to have this debate in future parliaments. This amendment will tighten up on this area of practice, which has for too long continued to adversely affect too many. I move the amendment to my name. One of the most important factors of any legislation is to take into account those most vulnerable and the need for protection in our society, a duty that this Parliament must continue to take extremely seriously. I support Dr Richard Simpson's amendment 24 on psychotropic substances. It provides a layer of protection for those vulnerable to being falsely steered and to being provided psychotropic substances without their full consent or acquiesce. While I fully understand the scientific justification for providing treatment through psychotropic substances, I think that we must be fully ready to control any potential gaps in legislation that risk extending their use beyond what is only necessary. The safeguard of regulations for prescribing conditions to be satisfied for the groups of people included in Dr Simpson's amendment is a positive step and indeed a fulfilment of Parliament's duty to protect the vulnerable while extending their rights under medical treatments. I begin by thanking Dr Simpson for speaking to his amendment. Amendments were lodged on the issue at stage 2. Those would have applied specific measures around the giving of psychoactive medication. The amendment does not seek to apply specific measures, but to require ministers to make regulations setting out conditions that must be satisfied before treatment by psychotropic substances may be given. I had a very useful discussion with Aram Ingram, who raised the issues at stage 2 and Dr Simpson and Dr Mill. After stage 2, I want to thank them for taking the time to speak to me and for their work on the issue. It turns to some of the specific issues that have been raised. I turn to the issue of the use of psychotropic substances for those with dementia that Dr Simpson raised, and I think that it is relevant to the point that Jim Hume makes in terms of rightly being the case that we should always do what we can to protect the most vulnerable. I understand that there are particular concerns about the issue of prescribing of psychotropic drugs in care homes. Safeguards and actions are already in place on that issue, including publication of revised polypharmacy guidance by the Scottish Government in March 2015, which reinforces the principles in the appropriate review and reduction of the use of anti-psychotics in people with dementia. It identifies three groups that protectionists should prioritise to review people in care homes. Those with vascular dementia and those with dementia who have a history of cardiovascular disease, cerebral vascular disease or other vascular risk factors. We are taking more action this year to further reduce the inappropriate prescribing of anti-psychotics for dementia, focusing on three areas—initiation, review and legality. A proposal has been approved by the national dementia group who is now being aligned with the aforementioned new polypharmacy guidance. Moreover, as a set-out in the stage 2 committee session, I believe that the 2003 act already provides strong safeguards. That includes the requirements of medical practitioners to have regard to the principles set out in section 1 of the 2003 act, including patient participation and minimum restriction to any advanced statement that a patient makes. Indeed, Richard Simpson said that he has no reason to doubt that professionals are working to those standards. In relation to medication-specific safeguards, the commission must be informed in writing after emergency use for emergency detention certificates. There is a requirement for a second opinion medication consent for those in long-term orders. However, I understand the strongly held concerns that have been raised by some individuals and organisations on this issue. I believe that it would be appropriate for it to be covered in the review that I have said that it will undertake on the inclusion of learning disability and autism under the 2003 act. However, I do not believe that it would be appropriate to pre-empt the outcome of that review by taking regulation making power now that it requires Scottish Ministers to make regulations prescribing matters that have yet to be reviewed. The amendment requires that regulations must be made. That is not appropriate or sensible before the outcome of that review. I am also concerned by the definition of psychotropic substances, the reference to the conventional capture, the list of substances in the schedules fixed at the point in time that the provision has commenced. Any later changes to those schedules would not be reflected. That would have the effect that newly regulated substances could not be captured by the safeguards and the regulations, and substances no longer listed would continue to be on that basis. Given the work that is under way or will be under way, I ask Dr Simpson not to press his amendment on the basis of those significant problems with the amendment and strongly urge members to vote against it should he choose to do so. I invite Dr Simpson to wind up and indicate if you intend to press her with draw, please. It is certainly true, Deputy Presiding Officer, that the amendment and moved at 109 was a much more specific amendment requiring action and detailing that action. That is, I think, what the member Adam Ingram moving that motion felt was appropriate, and I did support him in that. However, on discussion with the minister, which was a very welcome opportunity to review this, it was decided that we should actually not do that but give the minister power as a backup for the excellent work that he is already doing to bring in regulations at a point where he felt that that was necessary. The Government has a history of not actually bringing forward regulations when they appeared not to feel that it was necessary. For example, the responsibility levy in the 2009 alcohol act was still waiting for regulations on that, so the Government does not have to bring these regulations in. They can bring them in at a point if they feel that that is actually appropriate. Given that such regulations would apply very specifically to the rights of individuals, does he not accept that, if we put in the face of the bill a regulation making power that we did not use, we could be leaving ourselves open to legal challenge? Dr Simpson. Exactly. That is correct. That is absolutely correct. The thing that concerns me is that we have debated this now for over 14 years. Many Scanlon and others raised this issue in the first Parliament. It continues to be an issue and the issue in the acute hospitals is actually getting worse. There are more cases now of people being given psychoactive drugs inappropriately by doctors who are not psychiatrically experienced. This is an abuse of those medicines and the Government should take the powers itself only to be introduced when they need it, but they should take the powers now and my amendment will give them that power to be introduced at a point when they believe it to be necessary. I hope that that will be before someone actually does take legal action against this Government because I would regret that having to be necessary, but I will move the amendment in my name and press it. Thank you. The member is pressing the amendment. Question then is that amendment 24, be agreed to? Are we all agreed? Parliament is not agreed since this is the first division of the stage. The Parliament is now suspended for five minutes. Order. We will now proceed with the division on amendment 24. This is a 32nd division. Members should please cast their votes now. Order, please. The result of the vote on amendment 24 is yes, 48, no, 63. There were no abstentions. The amendment is therefore not agreed. That brings us to group 2, the safeguarding of patients' interests, and I call amendment 2 in the name of the minister, grouped with amendments 12, 14, 15, 17, 18, 21, 34 and 37. I ask the minister to move amendment 2 and speak to all amendments in the group, please. I ask the chamber to be quiet while the minister does so. Thank you very much, Presiding Officer. The Government amendments in this group provide further protection for patients who do not have a name person. Amendment 2, Compliments amendments agreed at stage 2, which allows certain listed persons to act where a person does not have capacity and does not have a name person. It will ensure that if a patient is detained and hostile on a 72-hour emergency detention certificate, any guardian or welfare attorney who is known to the hostile managers will be informed quickly. Amendments 14, 15, 17 and 18 are minor amendments to ensure consistency in relation to the ability of guardians and welfare attorneys to obtain notification of actions and decisions under the act where there is no name person. In particular, they ensure that the relevant guardian or welfare attorney can obtain notification of a determination extending a compulsion order and of the revocation of a certificate suspended the detention for patients in certain orders. Amendment 12 is a technical drafting amendment to the definition of name person in the 2003 act and is a consequence of the changes to remove the default named person provisions from the 2003 act in section 18 of the bill. It will ensure that the definition reflects the new position that a person may not have a named person. Amendment 21 is a minor technical amendment to remove a superfluous word and, for the information of the chamber, from section 472 of the 2003 act in consequence of amendments agreed at stage 2 in relation to preventing conflicts of interest at medical examinations. I thank the mill for proposing amendment 34, which I am very happy to support. I would also like to thank the voices of experience for highlighting some of the consequences of the lack of appeal right at our meeting last month. As I noted at stage 2, I agreed with Dr Millins policy intention of this matter and intended to ensure that its appeal right was covered by revised cross-border transfer regulations. However, I agree that it is useful to include that in the primary legislation and put beyond any doubt that named persons should have the right to appeal a cross-border transfer to the tribunal. I am also pleased that the amendment reflects section 20a of the bill and will ensure that the regulations provide the right of appeal where the patient does not have a named person. I encourage members to support amendment 34. I thank the net mill for raising amendment 37 and taking the time to discuss it with me after stage 2. The amendments that I proposed at stage 2 will ensure that patients without capacity to lodge an appeal will not be disadvantaged in relation to appealing the decision of the tribunal. Currently, the named person in any guardian or welfare attorney can make such an appeal. After the bill's passage, that option will also be available to the carer or nearest relative if there is no named person. If the curator is concerned about the decision of the tribunal then the curator will be able to advise the named person or others of their concerns. I did carefully consider whether there is any reason not to extend the right of appeal to the curator. My concern is that, given the number of parties that can lodge an appeal, that would only be needed where there is disagreement between the curator and those with the right of appeal. It is not hard to envisage a scenario in which, for example, the family member or carer and the curator disagree. I swear that it would be the best interest of the patient to appeal where the curator has made a valid case for appeal, but the other parties feel that this could be disrupted for the patient or otherwise not. In their interests, currently, the decision to lodge an appeal would ultimately rest with the named person or the other listed person such as the guardian or carer. I am not fully convinced that we want to change that balance so that the curator can lodge an appeal against their wishes. For that reason, I would ask Annette Millon not to press amendment 37, and I move amendment 2 in my name. I now call Annette Millon to speak to amendment 34 and the other amendments in the group. Amendment 34 relates to decisions on cross-border transfers of patients under detention in Scotland. At present, the 2003 act requires that regulations to make provision for a patient to appeal against such a decision. This amendment will extend that right in statute to a patient named person. In cases where a patient does not have a named person, the amendment allows for an appeal to be made by the person's guardian, welfare attorney, primary carer or nearest relative. As it is currently no highly secure provision for women and young people in Scotland, transfers of this nature are a common feature of our compulsory care landscape. It is in keeping with the spirit of the bill that powers to appeal in those cases rest not only with a patient but also with other persons who may act on their behalf. Amendment 2 provides additional notice provisions for a detained person, adding guardians and welfare attorneys to those notified when a person is made subject to emergency detention. Amendment 14, 15, 17 and 18 relate to powers and cases where a patient has no named person and amendments 12 and 21 are minor technical and drafting amendments. My second amendment in this group, amendment 37, creates a right of appeal for curators at lightum to the sheriff principal and to the court of session in respect of particular decisions of the tribunal as set out in section 320 of the 2003 act. At present, patients with capacity can instruct a solicitor to appeal on his or her behalf in these circumstances, but a patient who lacks capacity and consequently has a curator appointed cannot. This gap in provision could well give rise to concerns both under the European Convention on Human Rights and the UN Convention on the Rights of Persons with Disabilities. When this was proposed at stage 2 on the suggestion of the Law Society of Scotland, the minister agreed to consider its merits. He has since expressed the view that the gap identified by the society at stage 2 has been addressed through section 20a of the bill, ensuring that where there is no named person, the carer or nearest relative can also appeal. The minister also questioned whether in situations where there is a disagreement between the curator and the named person or others with a right of appeal, the curator should have the ability to overrule the named person or others and appeal in such a circumstance. On this point, the Law Society does not share his view that the new section 20a would address its concerns. Within the tribunal system, the curator at Lyntem is the only person whose sole function is to act purely in the interest of the patient. While there are many named persons, carers and relatives who absolutely have the patient's best interests in mind, unfortunately there are also occasions where their position is at odds with that of the patient's interests. There are also concerns where, as well as having no named person, the patient will have no carer or relative to appeal any decision of the tribunal that is not in his or her best interests. As such, the Law Society of the View that the right of the appeal could be both useful in instances where there is a named person and where there is not, which is why section 20a does not adequately fill the gap. In response to the minister's concern about giving the curator the power to effectively overrule the named person or other relevant party, the Law Society would stress first of all that this power would not be exercised lightly or in practice regularly. It would only be exercised in situations where either there was no one else to appeal on the patient's behalf or the curator believed that the right was or was not being exercised in the patient's best interests, which, as I've already stressed, is the curator's sole motivation. I move amendment 34. Can I ask the minister to wind up, please? Indeed, I'll direct most of my remarks in relation to the amendment from the net mill. I think the words I spoke earlier for the rest of the group speak for themselves in relation to amendment 37. The amendment does not just give the right of appeal to curators. In all cases, section 20a of the bill means that not only will the patient, named person, guardian, welfare, attorney be able to lodge an appeal but where there is no named person, the carer or nearest relative will to, the Government believes that this does not leave a gap for vulnerable patients. My main concern here is that currently the curator can recommend to the named person or others with the right of appeal that they should lodge an appeal. However, it may be that the named person or the others with the right of appeal do not think that this is in the patient's best interests, for example because they were concerned that it could be disruptive to the patient. The ultimate decision to appeal therefore would lie with the named person, guardian, welfare, attorney, carer or nearest relative. I note that the law society has suggested that the named person may not act in the best interests of the patient. However, it may also be the case that both parties have a different view of what the best interest of the patient is. I think that the current balance lies with the named person and the others that I have listed. As they have the ultimate decision, I am not convinced that we should change this to allow the curator to overrule the named person, guardian or carer. I think that that would be quite a substantial change to current practice and this is why I cannot support the amendment. Thank you very much. The question then is that amendment 2 be agreed to. Are we all agreed? We are. That brings us to group 3, suspension of detention, and I call amendment 3 in the name of the minister, which is grouped with amendments 4, 5, 6, 7, 8, 9, 10, 13 and 16. I ask the minister to move amendment 3, please, and to speak to all of the amendments in the group. Thank you very much, Presiding Officer. The bill makes changes to the provisions in relation to the suspension of detention to provide a more effective system for calculating the maximum and allowable period in any 12-month period following recommendations. In the McManus report this, maximum will now be 200 days, and the bill clearly sets out how periods of suspension should be counted towards this total. This will address the confusion under the current act when talking up individual periods of suspension of detention. We have also introduced provisions derived from McManus recommendations to allow this total to be extended by further 100 days with the agreement of the mental health tribunal. There were concerns raised with this approach, but we wanted to try to provide some flexibility. A very small number of cases identified with the report were variation to community-based order might not yet be appropriate. Can I talk to you for a moment, minister? It is far too much conversation going on in the chamber. Can we please be quiet and give the minister some respect? I certainly appreciate that, Presiding Officer. Thank you very much, however. In relation to the provision that we set out at stage 2, I only wanted to take this forward. I wanted to introduce provision on the basis that we could get it exactly right with a solution that is effective and workable in practice, and that has not proved possible. The mental welfare commission and others did not feel these additional days were needed in any case, and there was no clear and simple way to achieve out the aim that we had set out of flexibility. I have reflected further on the concerns raised by stakeholders and important points raised by Richard Simpson at stage 2, for which I express my thanks here. I propose that the provisions related to increasing the total by a further 100 days are removed. This is achieved by amendments 3, 5, 7, 9 and 10. Amendments 4 and 8 ensure that the maximum total of 200 days is in any 12-month period, in a way that relates appropriately to how section 8 of the bill expresses a period of suspension of detention. Amendments 13 and 16 make changes to section 20A of the bill as a consequence of these other amendments. Amendment 6 ensures clarity in relation to counting the total allowed period of 90 days for suspending measures other than detention. Throughout the progress of the bill, I have tried to ensure that service users' rights and interests are protecting the system made more effective for them. I believe that those amendments help to achieve that in relation to suspension of detention, and I move amendment 3. Many thanks. The question then is that amendment 3 be agreed to. Are we all agreed? Yes. We are. I now call amendments 4, 5, 6, 7, 8, 9 and 10, all in the name of the minister and all previously debated. I invite the minister to move amendments 4 to 10 on block. Does any member object to a single question being put on amendments 4 to 10? Since no member objects, the question then is that amendments 4 to 10 are agreed to. Are we all agreed? We are. That then brings us to group 4, excessive security, and I call amendment 25, in the name of Dr Richard Simpson, grouped with amendments 11, 26 and 23, and I ask Dr Simpson to move amendment 25 and speak to all amendments in the group, please. Thank you, Deputy Presiding Officer. 25 is a technical amendment, which extends the regulation making power to all units of qualifying hospitals other than the state hospital. Amendment 26 would require a review of all security before further regulations. I moved an extensive amendment at stage 2 seeking to recognise that, apart from the state hospital, levels of security in mental health units are no longer at discrete levels, but almost a continuum. As it stands, the proposed bill and the accompanying regulations, which I must say were very helpfully provided by the Government at an early stage in this debate, refer only to the three units previously designated as medium secure. These are Stobhill, Glasgow Orchard, clinic at the Royal Edinburgh, and the new unit at the Moray Royal. Colleagues, the amendment now to be enacted is only, in my view, a partial response to the Supreme Court judgment, which found that the Scottish Government had failed to make regulations to allow a patient in secure hospital other than the state hospital to appeal if they consider that they are being held in conditions of excessive security. It must be noticed, however, that the appellant in that case had been in a low security unit at Leavendale for a decade. The amendment that I am moving today, which requires a review, is supported by SAMH, the Scottish Human Rights Commission, the Law Society, the Equality and Human Rights Commission, the Scottish Independent Advocacy Alliance, the Centre for Mental Health and the Incapacity Law and Inclusion Scotland. I believe that the time has come for patients to have the right to appeal against any level of security without the order being rescinded—the detention order being rescinded. However, the purpose of amendments 25 and 26 are to recognise that this will not be straightforward. Rather than seeking to introduce a global measure at this stage immediately, amendment 26 seeks a review of all levels of security before regulations are introduced covering all levels of security. However, to make sure that we are not taken back to court by failure to introduce regulations, I have included a time limit on this occasion to ensure that it is actually followed up. I realise that the Mental Welfare Commission actually has some slight doubts about the narrow nature of my amendment. They feel that, actually, we will need to look at more than just simply the estate and the levels of security in those estates, but actually at the overall situation. That, of course, is possible without further regulation. However, I believe that the review of what is now a continuum should be followed. I therefore move amendment 25 in my name. Thank you. Can members ensure that all electronic devices are switched off or, at the very least, on silent? Sorry, Mr Chisholm. It is the minister first. I call the minister to speak to amendment 11 and other amendments in the group, after which I will call Malcolm Tither. Thank you very much, Presiding Officer. Those amendments relate to appeals against being detained in conditions of excessive security in hospitals other than the state hospital. The Government's stated policy intention has been set out in the draft regulations and drafting to the introduction of the right appeal out with the state hospital provided to the committee on 24 April, as alluded to by Dr Simpson. That demonstrates, I believe, our commitment to bringing regulations into force as soon as possible after Royal Ascent. Amendments 11 and 23 introduce a new provision allowing the regulation making powers introduced by section 11 of the bill to be exercised in advance of the provisions being fully commenced and ensuring that provision will come into force in the day after the bill receives Royal Ascent. That will ensure that, as soon as possible after the bill is passed, ministers are able to make the regulations, which will be necessary for the excessive security appeal system to become operational. That will fulfil the intention at the time of the 2003 act to enable patients in the state hospital and those in medium secure units to seek a move to a lower level of security. That was the Milan recommendation. We do not seek to extend the scheme provided for in 2003 to persons or purposes that it was never intended to cover. Dr Simpson's amendment 25 seeks to do just that by defining qualifying hospital as a hospital that is not a state hospital that would give a right of appeal to all patients. However, Dr Simpson has already said at stage 2 that mental health professionals are not yet ready for an appeal right for patients in low secure units. We are also clear that the extension of the right of appeal to all such patients would require to be supported by a more fundamental reworking on the provisions of the 2003 act, which this amendment does not propose to address. With respect, I am unable to support such an amendment. Dr Simpson's other amendment 26 takes a different approach by requiring the Mental Welfare Commission to carry out a review to establish the levels of security that patients detained in hospital are subject to. However, broadly speaking, levels of security are high, medium and low, and it is already clear when patients are in high security in the state hospital and the medium secure units of Orcher clinic in Edinburgh, Round Bank clinic in Glasgow, and the medium secure service at Rohallian clinic in Perth. Therefore, it is clear when a patient is detained in low secure conditions. It is not clear what the proposed review by the commission in the term proposed could achieve in relation to Dr Simpson's remarks about the legal appeal. It is indeed correct that it was taken forward by a patient in low and the low secure state by that. Incidentally, the ruling of the court did not relate to that. In fact, the Supreme Court judgment was only on the basis that regulations had not been made. The court did not express any view on who the right of appeal should extend. It is important to place that on the record. Amendment 26 also would require ministers to make regulations within a set period of time to implement any recommendations that the commission makes about regulations under section 271A1A, or of not doing so to report to the commission as to why not. We understand the intention behind this amendment to allow it a right of appeal beyond medium secure to be introduced within a maximum of four years, if that is recommended by the commission. However, we have been clear of that it was a wish to change the nature of the appeal in a way that could essentially extend it to all patients. That would require to be supported by more fundamental reworking of the scheme in the 2003 act, which this amendment does not provide for. Patients in low security are subject to the tensions and conditions of lesser security than patients in the state hostel and those in medium security. They are more likely to be treated in hostels closer to their communities and have gradually increased periods of time with the hostel ward-up, with up to 200 days' suspension of detention in any 12 months as they progress to overnight passes and finally discharge. There are no indications that being in a low secure unit poses a barrier to rehabilitation to release into community. There are also other applications that may be made under the 2003 act, which would allow such patients to seek to vary or revoke their detention orders and appeal by patients in low security. It is likely to be an appeal against detention, and there is already a mechanism for contesting compulsory treatment for all those reasons. I am again unable to support such an amendment. At the end of the consideration of the mental health bill in 2003, the current Secretary of State for Health, who was leading for the SNP on health at that time, said, that, for me, the most satisfying aspect of the bill is the enshrines in statute, the right to appeal against excessive security. I think that that just gives you some context about how important this particular aspect of the bill is. Of course, Mary Scanlon also made her mark in those debates because it was her amendment that ensured that regulations should be made by May 2006. As a result of that, it was one of those rare occasions because my Government and this Government did not make regulations and ended up in the Supreme Court. Of course, that is why we have the minister's amendment with the very unusual regulations that may be made before the act comes into force, because there is a requirement from the Supreme Court that regulations are made. The minister says that it is irrelevant that the person taking the case to the Supreme Court was in low security, but the fact of the matter is that his appeal would not have been valid at all if the act had specifically said that it is only about those in medium security. That was never in the original act. Richard Simpson's amendment is a very modest amendment because he is not demanding that we should decide today that people in low security should have the right of appeal. He is merely saying that the Mental Welfare Commission should do a review of levels of security that can inform regulations at a future date. Since that, the minister is talking so much about the intentions of the 2003 act. The reality is that what drove the change then was the principle of the least restrictive manner and environment compatible with the delivery of safe and effective care. That was a fundamental principle of the Mental Health Act and that applies as much to somebody in low security as in medium security. There is no reference to medium security in the 2003 clauses. There were clauses that were looking to the future because, of course, everyone was saying then that the estate has to be developed. We have different levels of security. It was a clause that was looking to the future. It talked about a qualifying patient in a qualifying hospital. I note that, when the Mental Welfare Commission had a major event consulting on this, the conclusion was that qualifying hospitals should include low security. As Richard Simpson says, that is a view of some age. The Scottish Human Rights Commission, the Law Society of Equality and Human Rights Commission, the Scottish Independence Advocacy Alliance, and I could go on. That is a very modest amendment. We are not insisting that low security patients are given this right. We are saying that there should be an amendment that investigates that issue to make that a possibility of the regulations that have to come in due course. I have a general concern and conclusion that, for the last 12 years, the Government—and that includes both Governments—have been dragging their feet on this issue, I have a concern myself that, even in terms of the Government's plans for medium secure, clause 271A3B talks about further requirements for the test to be met over and above the excessive level of security, but that is passed by without an amendment. However, I think that we have an opportunity today to broaden out the right of appeal in accordance with the fundamental Milan principle of the least restrictive manner and environment compatible with the delivery and safe of effective care. My last word to the minister is to be inspired by what the cabinet secretary said in 2003 about this provision. Thank you very much. Minnie Scanlon. Thank you. Malcolm Chisholm did mention a rare occasion, and it is a rare occasion indeed when a Conservative MSP gets unanimous support across the Parliament for an amendment. It was in 2003 and uniquely it is an amendment that has ended up in the Supreme Court. However, I reiterate the point that Malcolm Chisholm made, because it should not be lost. The 2003 act was based on 10 principles, the Milan principles, and number eight of those principles is the least restrictive alternative. Service users should be provided with any necessary care, treatment and support both in the least invasive manner and in the least restrictive manner. That was the principle on which the 2003 act was based, so it was an understanding throughout all of us. When I look back to my speech in 2003 and speaking to that amendment, I did use the case of the state hospital at Car Stairs, because at that time there were 29 blocked beds. There were no medium secure units to move people on to. I gave that as an example of excessive security, but the understanding in Shona Robison, Nicola and so many others were on the health committee at that time.  It was excessive security, whether it was Car Stairs, medium secure, low secure or psychiatric hospital. That is because the basic Milan principle applied of the least restrictive alternative. I am very much in favour of Richard Simpson and Malcolm Chisholm, who were both in the health committee at that time, but I am very much in favour of Richard's amendment. I think that we should all support it today. If we take one thing from that 2003 act and the many, many emails and the many, many issues that are raised in the cross-party group on mental health, the many issues that have been raised in the last 12 years, this is one fundamental principle that we unanimously agreed on based on the Milan principles in 2003, and we should all today, I believe, support Richard Simpson. I now invite Dr Richard Simpson to wind up and indicate if you intend to press or withdraw please. I have tried, Presiding Officer, to be not overly prescriptive. I just want to take two parts of the amendment, although it does require the ministers within a year of receiving the report from the Mental Welfare Commission to make regulations. There is an escape clause. If the ministers do not plan to make such regulations, they publish a response to the report setting out their reasons for doing so. This is an incredibly modest approach to something supported by nine organisations. I forgot to include the Royal College, who has actually supported the Mental Welfare Commission's position on this. This is something that we really should undertake now. Not to do so, I think, frankly, is an affront to these nine organisations and is not, in fact, supporting the basic eighth principle of Milan. I would really appalled if the Government were not going to use the majority on this occasion simply to vote down this very modest amendment. I moved them in my name. Any thanks. The question then is that amendment 25 be agreed to. Are we all agreed? Parents is not agreed. Will be a division. This will be a one-minute division. Please vote now. The result of the vote on amendment 25 is yes, 52. No, 61. There were no abstentions. The amendment is therefore not agreed to. I now call amendment 11 in the name of the minister, already debated with amendment 25. I ask the minister to move formally please. Many thanks. The question is that amendment 11 be agreed to. Are we all agreed? We are. I now call amendment 26 in the name of Dr Richard Simpson, already debated with amendment 25. I ask Dr Simpson to move or not move. The question then is that amendment 26 be agreed to. Are we all agreed? Parents is not agreed. There will be a division. This division will be 30 seconds. Please vote now. The result of the vote on amendment 26 is yes, 52. No, 62. There were no abstentions. The amendment is therefore not agreed to. I now call amendments 12, 13, 14, 15, 16, 17 and 18, all in the name of the minister and all previously debated, and I invite the minister to move amendments 12 to 18 on block please. Does any member object to a single question being put on amendments 12 to 18? Since no member has objected, the question then is that amendments 12 to 18 are agreed to. Are we all agreed? We are. That then brings us to group 5 advance statement and I call amendment 27 in the name of Dr Richard Simpson, grouped with amendments 19, 20 and 28. I ask Dr Simpson to move amendment 27 and speak to all of the amendments in the group please. Thank you, Deputy Presiding Officer. At stage 2, I moved amendment 88, which attempted to ensure that the wishes of the patients expressed while having full capacity in an abandoned statement should then be respected. Whilst I hope that the minister today is going to support Jackie Baillie's amendment 1 later, this amendment makes another attempt to ensure that, where the patient makes it, absolutely clear that under no circumstances whatsoever do they wish to receive treatment, that right to refuse treatment should be respected. It is in respect of physical illness, patients are entitled, even if they are going to die, they are entitled to refuse treatment if they have full capacity. What I am now proposing is that the minister should be able, in regulations, to determine exactly the circumstances in which this right should be fully respected. I appreciate that under the mental health act 2003 there is a requirement and indeed an obligation upon both the responsible medical officer and the tribunal to make very clear as to why and in what circumstances they have chosen to overrule the patient's advanced statement. However, I believe that there are limited circumstances in which the patient has an absolute as opposed to a partial right and these should be defined. For example, if the patient chooses that under no circumstances should they be treated with ECT or with a specific psychotropic or psychoaptive substance, then I believe that provided that that has been determined only when they have full capacity, written in their advanced statement, witnessed by someone such as their GP or a psychiatrist in whom they have confidence, then it should not be overridden in circumstances where a physical illness exists which might indeed be fatal. A patient with capacity is entitled to refuse treatment, yet a patient with mental illness who is previously stated in writing in a witness statement that they wish to refuse treatment can be overridden. This is yet another gap between the parity of esteem between mental health patients and physical patients. The need for regulations is, for example, to ensure that whether a named person or indeed anyone like an ex-ofkin is conscious that the patient is notwithstanding that their advanced statement has actually changed their mind but hadn't withdrawn the statement, then it could still be overridden and that's why I've moved it as regulations. I look forward to the minister speaking on amendments 19 and 20 and I very much welcome the amendment 28 in the name of Bob Doris as it's clear that it will move towards achieving what we all want in the form of greater awareness and, hopefully, a higher use of advanced statements. Thank you. I now invite the minister to speak to amendment 19 and other amendments in the group. Thank you very much, Presiding Officer. I thank Dr Simpson for talking to his amendment. I look forward to hearing what Mr Doris has to say. In a second relation to Dr Simpson's amendment, I understand that his concerns relate to the capacity of patients in situations in which wishes that are set out in advanced statements should or must be adhered to. However, with respect, I'm not clear what circumstances envisaged be set out in the proposed regulations. The current framework ensures that doctors and tribunals take account of advanced statements and require them to set out reasons why they are overridden whenever this is the case. A competently made advanced statement is a strong indication of a patient's wishes about medical treatment but should not be considered in isolation. There must be flexibility, and advanced statement cannot bind a medical practitioner or member of the care team to do anything illegal or unethical, nor can it bind a medical practitioner or member of the care team to provide a range of withhold specific services, medicines or treatments. I'm aware that the commission, the mental welfare commission, has raised concerns that change the balanced approach in the current legislation could lead to dilemmas and cases where not giving treatment could result in severe harm. I recognise the positive intentions behind the amendment, but I would be concerned about unintended consequences such as that we should heed the concerns of the commission. Given that we would not intend to use the proposed regulation making powers and the difficulties that can potentially ensue where we agree a regulation making power but do not use it with respect, I cannot support this amendment. I would ask Dr Simpson not to press his amendment. I thank Mr Doris for proposing his amendment, amendment 28, which I am very happy to support. The Government sees advanced statements as an important tool in helping service users to participate in decisions about their treatment when they are not well. We want to see their use increase. I am confident that, taken with the other measures introduced in the bill, the amendment will help to increase numbers of advanced statements. I am aware that sometimes service users are not sure about how to access support to make an advanced statement. The amendment will make sure that service users have information about who in their treatment team or which other medical professional can help them with making an advanced statement and what support they can expect. The amendment will also allow the... Yes. I will come to him. Is there anything that he can do, either through regulations or probably through guidance, to promote advanced statements and get to the relevant authorities, particularly health boards, to promote advanced statements as well? I recognise that this cannot be the sum total of what we do to promote advanced statements. I think that it is an important step in that regard. What I can say is that I will also ask the working group, which will be updating the code of practice, to include guidance in the code, to set out best practices to how health boards could work with others such as local authorities and other organisations in the area to produce and promote information about support available to anyone in the area to make an advanced statement. That is, of course, beyond the support directly available by the health board itself, so hopefully that would be of further assistance in that regard. I urge members to support Mr Doris's amendment. I do not think that I have quite bottomed out his amendment. I also think that it is important that it will allow the mental welfare commission to get the information that it needs to find out what support is being offered to help with the work that they are undertaking to promote greater use of advanced statements. Again, I think that that will help with the concerns that have been expressed by Malcolm Chisholm. In the purpose of amendments 19 and 20, my name is something to tidy up the provisions that were amended at stage 2 in relation to registering advanced statements that are minor technical changes that have no policy effect. I invite Bob Doris to speak to amendment 28 and other amendments in the group. Thank you very much, Presiding Officer. At stage 1 of the process, several witnesses highlighted that the use of advanced statements were rare. That is, of course, worrying, because we would at all or at least, I am sure that most of us would want to see future treatment and care to be informed or directed in accordance with our wishes, assuming that that would be appropriate and possible, and that they would be respected even after we are no longer in a position to clearly express what those wishes are. That is the drive behind the validity of advanced statements that we have to promote at stage 2. I proposed a detailed amendment placing duties in health boards to regularly publish and promote various requirements in terms of advanced statements. I could not persuade the Scottish Government at that point. It believed that it was overprescriptive and that it did not believe that it would drive the change that was required. However, I promised to go away and work on that further, which I have now done by bringing an amendment here at stage 3. I am at 28 in certain new provisions into section 21 of the bill that relates to advanced statements. It would insert a new section at 276D to the 2003 act to impose duties in health boards in relation to publicising support for making advanced statements, but not in a way that would be overly prescriptive. The effect is to require health boards to publicise support offered by the boards for persons to make or withdraw an advanced statement, as well as any support that it offers for persons wishing to provide a copy to the boards in accordance with subsection 1. Crucially for myself, the health board is also required to provide information to the mental welfare commission about what it is doing to comply with subsection 1, which is requested to do so by the commission. I believe that the mental welfare commission has a crucial role in garnering that information and driving the change, which is why I placed amendment 28 before Parliament briefly in relation to amendment 27. I have some concerns in relation to the binding nature of advanced statements or the absolute binding nature of advanced statements. I said at the start of my contribution that uptake and the use of advanced statements was very, very rare. We have to assume the revision and amendment to advanced statements, because people's will and decision, although they still have capacity, will change over a period of time. We have no idea, Presiding Officer, how attentive those advanced statements are in existence, how attentive authorities are to having those regularly revised and updated. Because of those concerns, I cannot support amendment 27. I appreciate the support of Parliament today for my amendment, amendment 28. Can I now ask Dr Richard Simpson to wind up and indicate please if you intend to press or withdraw? Amendments 1126 and 19, 20 and 28 are very welcome. The minister said that I haven't defined the circumstances that would apply to the absolute right and an advanced statement. That was completely deliberate. It was designed to allow the minister to define those circumstances after consulting with those who feel that their wishes have been previously flouted by the tribunal. This is a rare occurrence, but, nevertheless, I believe that the time has come for patients to be given the right to refuse treatment if they choose to do so. Answering Bob Doris's point in his speech about the fact that people's wishes may change over time, of course, they have the right to withdraw a statement, which is entirely appropriate. Even if they do not do so, in regulations it will be perfectly possible to say that if they actually talk to their GP or psychiatrist or talk to the named person or the next of kin and indicate that they think that advanced statements should no longer apply, those circumstances could then apply. There would be get-out clauses in carefully drawn regulations, but not to allow people who have full capacity to then have a right absolutely if they define it very clearly. That is not a general thing that I do not want to be treated, but it is about absolutely specific treatments. If that is still not going to be allowed, I think that this is an infringement of individuals' human rights, and we may well be challenged as a Parliament on this in future. That gives the minister power to make regulations at that point if he wishes to do so, and I move the amendment to my name. Thank you. The question then is that amendment 27 be agreed to. Are we all agreed? Parliament is not agreed. There will be a division. This will be a one-minute division. Please vote now. The result of the vote on amendment 27 is yes, 52. No, 59. There were no abstentions. The amendment is therefore not agreed to. I now call amendment 19 in the name of the minister and already debated with amendment 27. I ask the minister to move formally, please. Question is that amendment 19 be agreed to. Are we all agreed? We are. I call amendment 20 in the name of the minister already debated with amendment 27, and I ask the minister to move formally. Question is that amendment 20 be agreed to. Are we all agreed? We are. I now call amendment 28 in the name of Bob Dorris, which has already been debated with amendment 27, and I ask Bob Dorris to move or not to move. Thank you. The question then is that amendment 28 be agreed to. Are we all agreed? We are. That brings us to group 6, Advocacy Services, and I call amendment 29 in the name of the minister, which is grouped with amendments 30 and 31. I ask the minister to move amendment 29, please, and speak to all of the amendments in the group. Thank you very much. Richard Simpson lodged a number of amendments at stage 2 relating to advocacy. Sirs had useful meetings with Dr Simpson following stage 2, and I thank him again for his work on amendment 29. My name relates to monitoring of advocacy provision. I am committed to working with Dr Simpson on this issue at stage 3, while Dr Simpson lodged an amendment at stage 3 on this issue. He has withdrawn it, and I hope that he can support my amendment instead. The amendment in my name varies from the amendment that Dr Simpson lodged at stage 2. In the following ways, it adds to the state hospitals board for Scotland at the list of bodies that must report the mental welfare commission on the exercise of their functions under the act. It removes the provision that set out the requirement on the commission to monitor the provision of services and reports to the Scottish ministers. The act contains a general duty on the mental welfare commission to monitor the report on the operation of the act. I do not believe that it is necessary to add a specific provision on that point. It allows the mental welfare commission to seek information from local authorities, health boards and the state hospital at times, decided by the commission covering a period of operation of two years or more. I accept that people's experience of accessing advocacy does not always meet their expectations. It is important that we understand that and ensure that people are able to access services and their rights. I believe that the amendment will help to achieve that. Dr Simpson also introduced amendments at stage 2, which would have made provision for rights for advocates that go well beyond the role that advocates have under the 2003 act. That is to assist the patient to access their rights. The amendments would have fundamentally changed the nature of advocates' role by giving them rights that they could exercise independently of the patient to make representations, access information and lead and produce evidence at the tribunal. I resisted them on that basis, while the amendments 1331 simply allowed for regulations to be made to set out the circumstances in which advocates must be informed or be allowed to make representations. I remain of the view that the role of advocates should not be extended in this way, whether that is done by primary legislation or in regulations. Nor, as a general position, I have made this point in other debates and other groups. Can I support the Government taking powers to make regulations when we cannot envisage the circumstances in which we would seek as a matter of policy to exercise them on that basis? I do not support the amendments. I noted at stage 2 that the amendments may at least in part have been developed to fill a gap that is created by removing the default position of having a named person where a person is not appointed, a named person of where the person is not able to act on their own behalf. A Government amendment was passed at stage 2, which addressed that situation by including a limited list of people who can act in limited circumstances on behalf of a patient who does not have a named person and who is not able to act on their own behalf, and we have covered some of that in an earlier debate. I would ask Richard Simpson not to press his amendments and should he do so that members do not support them when I move amendment 29. Thank you, Mr Simpson, to speak to amendment 30 and other amendments in the group. Can I begin by thanking the minister for meeting me on this issue and also for tabling amendment 29, with which I fully concur? I think that it is a very welcome move. The Scottish Independent Advocacy Alliance in research carried out in May 2015 showed that only six out of 14 geographical NHS boards have current strategic advocacy plans, and a significant proportion of those will be expiring soon, and only one board actually said that we are going to update the plan. Allowing the Mental Welfare Commission to look at this in a much more stringent way is indeed very welcome. However, my amendments 30 and 31, to which I want to now speak, are designed specifically to ensure that the advocacy service is further strengthened. The reason for this is that, until the point at which the named person default system was withdrawn and the person could end up without a named person, indeed without any other person acting in their interest, then the role of the advocate was, as the minister said, quite circumscribed, and that was entirely appropriate. However, in the new circumstances brought about by the amendments to the act in this bill, produced by the Government itself, the advocates should, in amendment 30, at least be notified by the tribunal. That is this notification circumstances in which others would be notified, but if these others do not exist, then the advocate should surely be notified. That amendment, at least, I think, does not extend their powers. It simply notifies them of certain things when no one else is around to be notified. Amendment 31, I accept, is a little more contentious because it does extend the role of the advocate. Again, only in circumstances where there are no other people around to actually make applications or make representations on behalf of the patient who is presumed to have reduced capacity or seriously impaired decision-making ability and therefore, in fact, may not be able to make those representations or applications themselves and nobody else is available except perhaps the responsible medical officer. It may be that the patient actually would not agree with the notifications or representations of that responsible medical officer. Therefore, someone else should be in a position to do that. I accept that this may be a step too far, but I will be pressing amendment 30. Obviously, this is a very important part of the bill and I very much welcome the amendment that Jamie Hepburn has brought forward. It was a notable omission when the bill was first published that there was nothing about advocacy. In fact, this is one of the main issues that the Equal Opportunities Committee dealt with when they did some work on the McManus review in 2010. As we know, the 2003 act said that every person with a mental disorder should have a right of access to independent advocacy. In practice, it is often being targeted at people subject to compulsory proceedings. As Richard Simpson said, the recent review highlighted problems in a large number of boards. I very much welcome the fact that boards and local authorities will be accountable to the Mental Welfare Commission and that there will be more scrutiny of strategic advocacy plans. I think that the whole chamber will be pleased about that. I think that Richard Simpson's amendments are very interesting. I always follow the advice of the Scottish Independence Advocacy Alliance. On 30, I think that they accept it with qualifications, saying that as long as the code of practice provides more detail about ensuring that advocates do not have access to information, they do not have the person's permission to see. Presumably, since there is an amendment about regulations, that could be covered by them. I am glad that Richard Simpson is pressing that. I am not sure whether he is pressing 31 or not, so I am not sure whether I should say what I am going to say or not. However, there is a very interesting dimension to amendment 31, because although Jamie Hepburn says that it is beyond the 2003 act, the mental health bill as drafted did have a clause 1824b, which said that those who are affected by their mental disorder are so affected by that they cannot express an opinion should have an advocate. That was in the bill, and it was the health committee at that time who objected to that, presumably for the same kind of reasons that Jamie Hepburn is presenting now. I could go either way on that one, and I will see what Richard Simpson advises. Thank you very much, Presiding Officer. I thank Richard Simpson for setting out his support for amendment 29. Indeed, Malcolm Chisholm, for his comments, I agree very much that it should improve the situation. I focus on the protections for patients without capacity in the face of this bill. At stage 2, I proposed amendments that would remove the default named person provision from the 2003 act, which was widely supported. We also introduced protections for patients without capacity. That included that, where there is no named person in the Guardian, welfare attorney, carer or nearest relative, it could initiate an application or appeal to the tribunal. Under the existing provisions of the 2003 act, a curator, Adlitham, could also be appointed to protect the patient's legal interests, where the patient does not have the capacity to instruct legal representations. The act in the bill, therefore, already provides strong protections for patients without capacity. Turning to the issue about the change in the role of the advocate, an independent advocate helps a patient understand their rights and communicate their wishes and views. They do not act independently of the patient. I think that Dr Simpson's amendment 31, in particular, would look to give them such an independent role. I am not clear that that is desirable, particularly in relation to appeals. I am not particularly convinced that such a move has been particularly widely consulted on. I think that it was interesting that Malcolm Chisholm made the point that provision on the face of the bill was drafted in 2003 and that was removed. I think that it was removed for good reason and I think that the reasons still stand just now. In terms of notifications, there are already certain circumstances where the code of practice sets out where it would be best practice to involve the advocate, for example, before a hospital transfer. I believe that the working group should consider further best practice guidance in relation to that. I hope that that can take care of some of the concerns around amendment 30, which I still oppose. Thank you very much, Presiding Officer. The question is that amendment 29 be agreed to. Are we all agreed? We are agreed. I will now call amendment 30 in the name of Dr Richard Simpson, Dr Simpson to move or not move. The question is that amendment 30 be agreed to. Are we all agreed? We are not. There will therefore be a division. Please vote now and this will be a 60-second division. The result of the vote in amendment 30 is yes, 52, no, 60. There were no abstentions and the amendment is therefore not agreed. I will now call amendment 31 in the name of Dr Richard Simpson, Dr Simpson to move or not move. We now move to amendment 21 in the name of the minister. The question is that amendment 21 be agreed to. Are we all agreed? We are. We now move to group 7. I will call amendment 33 in the name of Nanette Milne in a group on its own. Dr Milne to move and speak to amendment 33. Amendment 33 seeks to provide the Scottish ministers with the flexibility to permit by regulations professionals to perform the statutory functions of responsible medical officers under the 2003 act who are not also approved medical practitioners. That follows an appeal by the British Psychological Society to allow practitioner psychologists involved in compulsory care to perform additional statutory duties. Currently, both the AMP and the RMO roles are the exclusive preserve of the medical profession. That is despite the primary treatments for many mental health problems being psychological, particularly in the case of patients with learning disabilities, autistic spectrum disorders, eating disorders or personality disorders. As the clinician most responsible for and with the broadest understanding of the patient's treatment in these cases, psychologists are best placed to be able to oversee their care in this way. Following the mental health act 2007, the equivalent positions in England and Wales of approved clinicians and responsible clinicians can be undertaken by psychologists. As a result, there is access to a wealth of guidance, treating and learning to inform how those roles could function in Scotland, by no means venturing into the unknown. When the issue was raised at stage 2, the minister stated that further consultation would have to take place before additional powers of this nature were extended to psychologists. The amendment addresses that concern by allowing for any processes that the minister may need to satisfy himself of the viability of this change to take place. At that point, he can then decide whether or not to extend the categories of eligible RMOs without further primary legislation. The amendment also extends only the RMO position in connection with treatment. It does not change eligibility for the AMP position responsible for the initial process of assessment. It is worth noting that this process has already been subject to extensive scrutiny in the UK Parliament prior to the passage of the 2007 act, which applied equivalent measures in England and Wales. The statutory positions require a great deal of work from the psychiatric profession in terms of assessment, reports and appearing adherings. In addition to providing for the most appropriate clinician to oversee the treatment of people receiving psychological treatments, the amendment will also provide additional professional capacity to support patients undergoing compulsory care, so I move amendment 33. I support this amendment. It is a modest proposal that uses the words May by Regulation, so the minister and the Scottish Government can be assured that on this occasion there is no prospect of them ending in the Supreme Court. They may, if they wish, not introduce regulations. It is an attempt, really. It is a response to what the minister said at committee, which Annette Milne has alluded to, because he admitted that there was merit in considering the juices that a broader range of health professionals can undertake. That seems to be the perfect way to progress that view that the minister expressed at that time. Annette Milne says that it only applies to the RMO, who does not deal with the admissions process but with the supervision of compulsory treatment orders and advice to the mental health tribunal. I would not normally invoke English mental health legislation, because, in general, Scottish mental health legislation was before it and better than it. However, the fact that it has a broader definition in England is a responsible clinician and an approved clinician in 2007. There have been no problems with that. There has been post-legislative scrutiny of that legislation. No-one has suggested any problems. It suggests that there is no fundamental reason why the definition should not be broadened if we want to look to English practice as a body of relevant guidance training and learning that could help us. I do not think that we should rule that out just because it is from England. However, there are other reasons, as Annette Milne has suggested. She has not mentioned a fairly practical reason that we actually have a workforce supply issue with psychiatrists. Quite a lot of work is involved, so I would have thought that a lot of psychiatrists would welcome that. I note that the Royal College of Psychiatry briefing for today's debate does not tell us to oppose that particular amendment. However, as Annette Milne said, and hopefully the Royal College would agree with that, there are actually some treatments where decisions are dealt with by psychologists and it may be that people with learning disabilities will hear more about that in a moment. Of course, there is a district spectrum disorder, eating disorders, personality disorders and so on. Sometimes the primary treatment for mental health problems is psychological and we should remember that as well. As I said at the beginning, that is a very modest proposal. It does not really commit the minister to making a final decision about that today, but it does in fact provide a practical way of implementing the view that he himself expressed in committee. I apologise to Annette Milne for my brief absence, but I do support this amendment. I think that the one thing that I wanted to add to the very full remarks that I have heard from Malcolm Chisholm, which I have said most of what I wanted to say, the only thing that I wanted to add is that this actually fits with the 2020 vision of this Government. This is all about upskilling and allowing practitioners to actually participate more fully. We have a situation where I was told the other day by a very senior member of the Royal College of Psychiatry that 42 per cent of the psychiatrists qualifying in the UK today on the foundation exams are emigrating. We are faced with a serious workforce problem in this and many other areas. I would suggest that upskilling psychologists is a power that the minister would want to take so that he can undertake that by regulations without having to come back to this Parliament in order to seek a further amendment to the act. I support the amendment to Annette Milne's amendment. Thank you very much, Presiding Officer. I thank Annette Milne for proposing this amendment. I also thank all the members who have engaged with me on this issue. Psychologists play a key role, particularly in the care and treatment of persons with learning disabilities and autism spectrum disorder. I am therefore happy to commit to this stage publicly to stating that the role played by psychologists is something that I would like to see covered in the review that I previously spoke about in the debate on amendment 24. I look forward to working with the British Psychological Society and other professional bodies as part of this work. My concern with this amendment is that it would have the effect of extending the responsible medical officer role as a whole beyond-approved medical practitioner. Contrary to Annette Milne's view that the provisions are limited, she stated that the amendment would apply only to the role in relation to treatment. That is not the case as the amendment is drafted in our interpretation of it. I am afraid that it may have been drafted more widely than was her intention. The duties of the responsible medical officer are wide-ranging beyond supervising treatment and assessing the need for and authorising detention of patients for compulsory treatment of a mental disorder. Mental health services are delivered by multidisciplinary teams, and it is important that different members of those teams undertake roles that allow them to most effectively support patients. Although there is now a role of approved clinician in England and Wales, which can conclude, as psychologists under the England and Wales Act of Medical Doctors are still required to assess the patient and agree to detention in a similar way that a responsible medical officer must agree under the 2003 act in Scotland. As I have set out, the amendment does not allow the regulations to alter the specific duties of the responsible medical officer or make other adjustments such as to ensure that a doctor has assessed the patient and agreed to detention under the act. It is not clear to me that that is what is wanted. I do not think that that is what the intention behind Annette Milne's amendment is when she wants to extend the role of psychologists in the face of the act. I am not unsympathetic, of course, to the general principles behind the amendment. The amendment would only allow all duties to be extended or none. It is for that reason that I urge members to vote against it, but let me emphasise that the Government's clear commitment to looking at the matter with serious attention going forward. Annette Milne, to wind up and press withdraw your amendment, please. Thank you. Malcolm Chisholm absolutely got this right in that this is a very modest amendment which may lead to change in the future without the need for further primary legislation should ministers wish to expand the psychologist role as time moves on. Of course, I do agree with both Malcolm Chisholm and Richard Simpson that we do have a serious workforce issue here, which I think could help to resolve in the future. I intend to press my amendment. Thank you. The question is that amendment 33 be agreed to. Are we all agreed? We are not. There will therefore be a division and this will be a 60-second division. Please vote now. Result of the vote in amendment 33 is yes, 52, no, 59. There were no abstentions and the amendment is therefore not agreed. Now call amendment 34 in the name of Annette Milne, not a Milne to move or not move. Thank you very much. So the question is, amendment 34 be agreed to. Are we all agreed? Yes, we are. So we now move to group 8 and call amendment 1 in the name of Jackie Baillie in a group on its own. Jackie Baillie to move and speak to amendment 1. Please. Thank you very much Presiding Officer. The purpose of amendment 1 is very simple. It requires ministers to bring forward a review of the meaning of mental disorder, specifically where the learning disability should continue to be included in that definition, and for that review to report within three years of royal assent of the bill. All I believe to be perfectly reasonable. At stage 2, I moved an identical amendment but set a time limit of one year for the review to be complete. I listened very carefully to the Minister then and at our subsequent very helpful discussion, and he argued that civil servants would be engaged in implementation of the bill, and that would mean that they would be too busy to carry out the review. He also argued, and I entirely agree with him, that it is important to ensure that those with learning disabilities were fully involved in the review, and that takes time. The revised amendment allows up to three years for the review to be undertaken, plenty of time to ensure that it is thorough and that it is inclusive. Can I explain to the chamber the context of amendment 1? In 2001, the Milan Committee supported the idea of removing learning disability from the definition of mental disorder. In 2009, the McManus review also supported the idea of removing learning disability from the definition of a mental disorder as set out in the Mental Health Care and Treatment Scotland Act of 2003. A review was promised, so we have two separate expert committees both recommending the same thing, yet here we are 14 years later and still no review. Let me be clear that this is not party political. The previous Labour Scottish Executive did not carry out a review. The current Scottish Government has not carried out a review. The cross-party group on learning disability has discussed that at length. There is huge support from members for a review. People with learning disabilities have been patient, but today is about rewarding their patients and doing the right thing. Let me also say to the chamber that amendment 1 does not in any way prejudge the outcome of such a review. I recognise that there are strongly held arguments on both sides. Some passionately believe that learning disability should not be included in a definition of mental disorder. Enable, inclusion Scotland, people first and many more besides. Let me set out some of their rationale. They believe firstly that the inclusion of people with learning disabilities in an act that clearly has as its focus the treatment of people with mental ill health conditions has a detrimental impact. Secondly, people with learning disabilities are not mentally ill. Unlike mental illness, learning disability is a lifelong condition that cannot be cured or alleviated by medication. It is an intellectual impairment rather than a mental disorder. Thirdly, people with learning disabilities may require care and support. Except where a mental illness is also present, psychiatrists are unlikely to take the lead role in providing care and support for people with a learning disability. Additionally, there is evidence that people with learning disabilities are subject to compulsory treatment as a result of their learning disability alone. They would point to people with learning disabilities accounting for more than 11% of those in mental health institutions when they represent just 2% of the population and that their stay is longer than average. That clearly is not right. On the other hand, some will argue equally passionately that inclusion of learning disability means access to services and point to the safeguards that are inherent in the 2003 act, so that those with a learning disability are not made subject to its provisions. Clearly, there are complex arguments here. Clearly, there are different views, but the desire for a review is long-standing. It transcends Governments, it transcends ministers. The amendment does not presuppose the outcome of that review, but, 14 years on, it really is time that we conducted it. I urge members to support this amendment to listen to the views of those with learning disabilities, their families and the organisations that support them. Thank you very much, Presiding Officer. I thank Jackie Baillie for her amendment and her remarks. I looked at the discussion that was had at stage 2, and I noted that the minister at that stage gave a commitment that a review would be undertaken. I will be interested to hear from the minister and his remarks as to what the progress in relation to that is. I do not disagree with much of what Jackie Baillie has said. Indeed, in meetings that I have had with organisations such as National Autistic Society Scotland, there has been discussion around the views that are held regarding the inclusion of learning disability in the category of mental disorder. I think that Jackie Baillie articulates the points on that very well. She also articulates that there are strongly held views on the other side of the equation in terms of retaining it within there. That is where the issue that I have with the amendment that has been framed comes, because subsection 5 states that ministers should make provision by regulation. I believe that if we are going to have this review, have recommendations on this review and then enact the recommendations on this review, I have a concern that provision by regulation does not perhaps allow for the fullest parliamentary scrutiny in terms of evidence-taking, in terms of debate within Parliament on something that Jackie Baillie has acknowledged has arguments on both side and elements of contention. I think that the minister has given a commitment in relation to the review. Jackie Baillie has articulated the points well, but having provisioned by regulation, I feel that it would not allow for the fullest debate on this to continue during the review and afterwards. I hope that Jackie Baillie will take it in the spirit that this is not party political in any way. I agree with much of what she has said. I feel, however, that the way that the amendment is drafted does not give me comfort that we could ensure that the fullest debate was had in relation to this issue. Very modest amendment, because it is merely calling for a review and does not pre-empt the conclusions of that review. Goodness knows, we have been hearing about reviews on this for the whole of this century. Bruce Millan has been referred to, and I can quote him. He says that there should be an expert review at an early date on the position of learning disability within mental health law. The Scottish executive of the time responding to that report in 2001 said in reviewing mental health law documents that it was important to get the context for such a review, right? They said that they would discuss it with the same-as-you implementation group and the Scottish consortium on learning disabilities before bringing forward proposals while I regret the fact that they were not brought forward. As Jackie Baillie said, this is not a party political matter. Both main parties have failed to do that, but I do think that enough years have passed now for it to be done within the next three years. Again, there is plenty of experience from other jurisdictions about this. For example, I note that New Zealand in 1992 changed their mental health law. From that time, people with learning disabilities were excluded unless they also had a mental illness. That is clearly a position that a lot of people would accept, so it can be done. However, that is only calling for a review, so I am not quite clear how anybody after 15 years can still object to that. I support amendment 1 in the name of Jackie Baillie, which seeks to set clearer and more progressive definitions of who is to be considered as having mental health disabilities. Clearly, in the 21st century, we should be expected to have the expertise to distinguish different conditions not just through medical means but also through legislative means. That is why amendment 2 is important to delineate the more exact and specific medical conditions constituting a mental health disorder and to better protect both those who fall under that category and those who do not. I agree that amendment 2 must be within the three-year condition of the amendment, or else we risk failing many people and bringing more burden on to the already stretched mental health services. With professional and expert consultation, I believe that the ministers must commit to reviewing the term of mental disorder if they are serious about their priorities in mental health and, of course, human rights. As I said at stage 2, the inclusion of learning disabilities and autism spectrum disorder in the mental health legislation was raised by a number of witnesses and, as Mark McDonald said, there are contrasting views on that. The weight of opinion is in favour of removing learning disability from mental disorders, at least and unless there is a mental illness accompanying it. I thought the evidence from Steve Robertson of people first, which I quoted at stage 2, was particularly appasite. We honestly believe that he said that the time has come for a new piece of legislation that is just about people with learning disabilities. We think that it is only right and fair that learning disability is properly defined as an intellectual impairment rather than as a mental disorder. Indeed, the faculty involved in that has just changed its name to intellectual disability. Those are disabilities, and they are not mental illnesses, in my view. Therefore, although classifying it as a mental disorder may have appeared to be appropriate in the past, I am not sure that it does now. However, this amendment does not seek to actually determine the outcome of that. The important thing about this amendment is that it says that there needs to be a review. The timing of that review has been extended to three years to allow time for the current act to go through and be enabled. The current act is a fairly modest act. It should not take that long to actually get it through. The other thing is that Mark McDonald is wrong, and he is slightly misleading us, because it says that it is making a recommendation as to whether learning disability should continue to be within the meaning of mental disorder. It does not presume to say that that will not be the case or be the case. It allows for the discussion and it allows for that review to be set up. The Government has been on a journey on that. In the initial stages, it has said, no. Mark McDonald. I take the point that Dr Simpson is making. My point was not around what the conclusions of the review would be. It would be about how those conclusions were then enacted, and by enacting via regulations, as opposed to, for example, primary legislation, it reduces the opportunity for parliamentary scrutiny and debate. That was the point that I was making in my comments on the amendment, not about presupposing the conclusions of the review. Dr Simpson. Of course, if the Government felt that it was necessary, they could come back at that point with primary legislation, but this allows a mechanism which might be simpler to simply remove it if there is a degree of unanimity at that particular point in time. The other point is this. As Markum Chisholm said, if this is something that had just come up very recently, then I think that the Government's objections might be valid, but it has been something that has been on the cards since the Milan Committee itself sat. As I said, the Government has been on a journey on this. They began by saying, no. They then were saying, well, it would be extremely complex, and they are right, of course, because we need to look at the 1995 act, the 2000 act, the 2003 act and the 2007 act. So it is important that we get this right in terms of protecting people with learning disability, but, nevertheless, the next step is, I think, for the Government, having now committed itself to a review, which I understand that they have done, and I am sure that the Government will do so again. I would invite the Government today, if they wish to push through opposition to this amendment, to give us some sort of idea of the timetable under which this review would be established. Because if they do not do that, then I think that we will look at whether we can take them seriously in terms of moving this forward. I think that this is a modest amendment and I support the amendment in the name of Jackie Baillie. I also support this amendment. I accept that the minister has a commitment to this review, but our review was first proposed, as Dr Simpson said, by the Milan Committee as far back as 2001, and it was again recommended by McManus in 2009. I understand the frustration that this has not yet happened. I think that Jackie Baillie's suggestion of a three-year gap between now and the review being done is very reasonable, and I will not say any more, but I do very much support this amendment. I appreciate the work that has been done by Richard Simpson and Jackie Baillie on this issue at stage 2. For the constructive meeting that we had following the stage 2 process, I recognise also that a number of people and organisations have raised issues about the inclusion of not just learning disability but also autistic spectrum disorders under the mental health act. Indeed, I met people first and heard directly from their perspective on this matter. I understand the frustration that there has not been a review that has been undertaken thus far. It is for this reason that I have already committed to carrying out a review on the inclusion of learning disability and autistic spectrum disorders under the mental health act. I am listening to the views of those with learning disability. I put that commitment on the record in the Scottish Government's response to the stage 1 report, and I say that it is a rather stronger response than the one from the Scottish Executive Committee in 2001 that Malcolm Chisholm alluded to. I have committed to the review. I put it on record again in the stage 2 debate, and I am putting it on record again now. The Government will undertake that review. There are no objections from this administration to moving forward with the review that we are committed to doing. I think that Richard Simpson's point about our seriousness of intent about how quickly we can establish the review is a fair. My intention is to start the process as soon as possible. Indeed, essentially, we have already begun that process. My officials have already started to discuss with partners how that will happen, and I will share information with the Health and Sport Committee about progress as that develops. As Mark McDonald said, there is not anything in the main that there is to disagree with in the general thrust of what Jackie Baillie has said in moving her amendment. I think that it is just about getting the way forward, right? I do not believe that it is sensible to include the requirement for a timescale for a completion of a review in the face of this legislation. The review must be genuinely participative and must not start with a predetermined or either outcome or process. That requires a flexible approach that can adjust to the views of those who are involved. I understand the desire for a clear timescale, not just for beginning the process, which I hope that I have given some clear indication about, but also for completion. I am very clear that a review will happen. I want to start as soon as possible. I believe that the timescale of three years from royal assent is a reasonable aim. However, I do not want to place an artificial time limit on the review. I do not want to prejudge where the review will go. It is important that the review is a genuinely participative review, allowing all voices an opportunity to influence the process and to be heard. That should be what determines how long the review takes, but my clear commitment is for it to be completed as quickly as is possible. I think that, more substantially than on the just the timings issue—I think that this is where the amendment does not just call for a review. I have particular concerns in relation to the requirements of subsection 5, which sets out what must be done, if ministers recommend in the required report that learning disabilities should not continue to be within the meaning of mental disorder. In those circumstances, ministers would have to make provision by regulations for the removal of learning disability from the meaning of mental disorder. I think that Mr MacDonald has recently set out the concerns that this might not allow for changing way through a bill that would allow for far more scrutiny and engagement in relation to this major change. However, even more crucially, it is not clear to me that this would allow for any new system to ensure the support and protection for those with learning disability as exists in the 2003 act. I think that there was common recognition of the importance of doing that at stage 2. I think that both Ms Bailey and Dr Simpson have set that out. Again, the approach also seeks to require ministers to legislate when their powers are to do so are subject to parliamentary approval, while ministers could lay its draft regulation before Parliament to implement the recommendations of the reports outwith our powers to ensure that they are made. That is rightly the prerogative of Parliament as a whole. It would appear to me to be an attempt to bind Parliament to legislate in a particular way in the future, just because ministers have published a report containing recommendations to that effect. I am not sure that that is what Jackie Baillie intends. I think that we can all agree that this is an important issue. It is important that the whole range of views are heard. Those who have been making the case that learning disability and autism should not be included in those that would make the case for the benefit of the protection safeguards and access that the legislation provides. I have committed to review that would achieve that aim. That is my serious and determined commitment. I would urge Jackie Baillie not to press her amendment and, if she does, that members do not support it. I just say to the minister that my intentions are always honourable. We have had the Milan committee in 2001. Nothing happened. We had the McManus review in 2009 under this Government. Nothing happened. I am not questioning the minister's personal commitment to this, but to be frank, and I say this to Mark McDonald as well, we have had commitments before. We have waited 14 years. This amendment means that it will happen and cannot ever be put on the back burner. I would anticipate that there would be significant debate and engagement around about the review. You have yourself promised that it would be an inclusive process, and I believe you. However, there are opportunities open to this Parliament. If you have a problem with the suggestion of regulation, it is the case that this Parliament can use a super affirmative procedure with additional time for consultation and scrutiny. Committees of this Parliament have been challenging of Government in the past, but Richard Simpson is absolutely right. This Scottish Government could bring forward a bill that would amend that power. You could put it in primary legislation if you chose to do so. Let us not dance on the head of a pin, because this is a reasonable and modest amendment. It reflects what the minister has previously said to me was his concern. There is no sensible reason that I can see for not supporting this. What I have heard around the chamber is agreement about the principle of what we are doing and the need for a review, so I really just genuinely do not understand, therefore, why you will not logically have that review and put it in legislation. It recognises this amendment, the complexity of the issue. It does not presuppose the outcome. It would not be appropriate to do so. People with learning disabilities have been more than patient, Presiding Officer. This Parliament, this Government should do the right thing and act now. I urge members to support the amendment, which I will be pressing. I will take your intervention. I was not clear that Ms Bailey was giving way to me. Would she recognise that, in fact, we have begun this process and we have done that because it is a serious intention. Would she accept that? Presiding Officer, it is usually for the member to accept an intervention, but I bow to your judgment. Let me just say that people have started the process before. Minister after minister has actually said that we will do this. Can I just say to the Presiding Officer, the minister, in reflecting one of his concerns to me, said that there was not time for civil servants to do it just now, because they would need to get on with the enactment of the bill. That has not changed, and therefore, while he may have started the process, it is the finish of that process that people care about. I intend, as I said before, to press my amendment because it is the right thing to do. The question is that amendment 1 be agreed to. Are we all agreed? We are not agreed. There will therefore be a division, and this will be a one-minute division. Please vote now. Thank you. The result of the vote on amendment 1 is yes, 52, no, 59. There were no abstentions, and the amendment is therefore not agreed. Move to group 9. We call amendment 35 in the name of Dr Richard Simpson. Dr Simpson, to speak to and move amendment 35, please. Thank you, Deputy Presiding Officer. At stage 2, Adam Ingram moved amendment 109, which specified a significant amount of information which would be required to be collected and collated and analysed by the Mental Welfare Commission. The minister, in his response, felt that the requirements in that amendment were far too onerous. This amendment 35 is simply a requirement for the Scottish ministers to direct in regulation as they see fit after consultation the nature and circumstances in which information should be collected, collated by the Mental Welfare Commission. The issue I accept has been partially covered with a very helpful amendment to 29, which actually gives us the principle that the minister is prepared to allow situations in which the Mental Welfare Commission can command that information from health boards, state hospitals and local authorities. But that was only in relation to advocacy services. There could be no doubt that the current system is dysfunctional. It requires to be effective collection and analysis of data on suicides, assaults, adverse incidents and on the use of restraint, just to give some examples of things within the mental health system, which we need to actually have proper data on. The Scottish Information Commissioner has been critical of at least one health board recording of significant adverse events within the mental health system. What we are proposing here is a much broader approach, but nevertheless one in which the minister himself or his successor can determine just how much information should be collected and collated and how it should be done. I move the amendment. It has been useful to hear Richard Simpson's explanation for this amendment. Members will note that, in its briefing on stage 3, the commission has set out the extensive range of information that it publishes, and it has noted that it would be happy to consider any requests by ministers to produce further statistical information. I know that the Mental Welfare Commission is keen to do more to make the statistical information that collects useful, and it is already in discussions with the information service division of NHS National Services Scotland and others about how to do that, and notwithstanding all of that, I accept the desire for information to be requested of the commission through regulations that have first been consulted upon. Rather than via ministerial direction, I am happy on that basis to accept the amendment. However, it is important that any subsequent regulations do not cause undue or disproportionate burden or bureaucracy, and I will work to ensure that this is not the case, but I am happy to accept Richard Simpson's amendment. The question is that amendment 35 be agreed to. Are we all agreed? We are. Many thanks, and that takes us to group 10. I call amendment 36 in the name of Dr Richard Simpson. Dr Simpson, to move and speak to amendment 36. This covers the questions of deaths and detention. An amendment requires a review of the arrangements for investigating deaths and detention, or otherwise in hospital, for the treatment of a mental disorder. The Justice Committee is currently considering the fatal accident inquiries bill, but that people detained under the mental health regulation or being voluntary treated in a mental hospital for mental disorders may not be actually part of that forthcoming legislation. It is clear that around half the deaths of patients whilst receiving treatment may be due to natural causes, so a blanket approach to insist on an FAI for every death would not be appropriate. However, Sam H, along with the Scottish Human Rights Commission and the Mental Welfare Commission, are concerned that the current system may lead to some individuals falling through the gaps, as such there of the view that arrangements for investigating the deaths of mental health patients needs to be addressed. Currently, the reports of the Mental Welfare Commission are mainly statistical, and whilst that is interesting, it is not sufficient. If we look at the last report of the 78 deaths, in five cases there was no information. Once again, we are not getting the information from the health boards that are absolutely necessary to even understanding the statistical progress of these issues. 38 were deemed as natural deaths, but we have no idea as to whether these were premature. One of the big issues in relation to mental illness is the fact that people with mental illness, particularly severe and enduring mental illness, are dying much younger and therefore understanding their death, even if it is apparently from natural causes and from a physical condition, is never important. There is a need to ensure that, as for the health environment inspectorate and the Health Improvement Scotland report on the elderly, there are transparent assurances that the board will in future take such action as may be required to improve prevention of suicide or other deaths, which may and I stress may be preventable. Families want to know that any lessons that could be learned are learned. In the present circumstances, I do not believe that that is the case, and I hope that the minister will now support this amendment, as he did in the last one, which was very welcome. I thank Richard Simpson for his continuing work on this issue and again for the constructive meeting that we had following stage 2 to discuss. As I said at stage 2, I believe that improvements should be made to how death and detention are reviewed to ensure that the process is effective and timely, that it supports learning and that the reviews are of a consistent quality. Members will be aware of the briefing from the Mental Welfare Commission on this issue. The commission has noted that it agrees that the arrangements for investigating death need streamlining and set out a proposed approach that includes notification of all deaths of patients subject to compulsion to the Fiscal Mental Welfare Commission. A review by the commission of all such deaths to determine more detailed investigations that are required and in appropriate cases a more formal review building on health improvements, Scotland guidance and adverse events investigation and a protocol between the commission and the Crown Office to ensure joint working in the context of the Lord Advocate's responsibilities for the investigation of death. My officials have already started to explore with the Mental Welfare Commission how we can bring together a working group to develop a streamlined and effective approach to reviewing death and detention. It is important that this is focused on ensuring that services are able to learn from reviews that are carried out and improve services so that they are more effective and safer. The approach should also ensure that relatives or carers are able to participate fully in the process. I do believe that the work under way is an effective way of dealing with this issue and do not consider that there is a need for ministers to be compelled to undertake a review given what we have given undertaking to do so. However, do not consider that there to be adverse consequences of the amendments, so I am happy to support it. Thanks, Dr Simpson. Anything further to add? To add many thanks. So the question is that amendment 36 be agreed to. Are we all agreed? We are. Many thanks. Call amendment 37 in the name of Dr Nanette Milne. Dr Milne to move or not move. Many thanks. So the question is that amendment 37 be agreed to. Are we all agreed? We are not. There will therefore be a division and I think this will be a one minute division. Please vote now. Twenty seconds. Many thanks. The result of the vote and amendment number 37 is yes, 45 and no, 62. There were no abstentions and the amendment is therefore not agreed. Now move to group 11 and call amendment 38 in the name of Dr Richard Simpson. Dr Simpson to move and speak to amendment 38. Please. Thank you, Deputy Presiding Officer. This amendment is brought forward by the Law Society with whom I've had discussions and it would add a new section to part one of the bill ensuring that recorded matters under section 64 of the Mental Health Care and Treatment Scotland Act 2003 are included firstly in the orders which the tribunal may make when confirming the determination of variation, a compulsion order in respect of a patient, also interim extension of orders under section 149 or 158 and orders made under section 193 of the Mental Health Act. It also amends the meaning of modifying in relation to both relevant compulsion orders and compulsion and restriction orders under that act and to include instances where recorded matters are specified. The reason for this amendment the Law Society of indicated is that the act does set out the definition of recorded matter but they can specify recorded matter when making compulsory treatment order and also when reviewing a compulsory treatment order. In essence, a recorded matter is regarded as an essential element of the patient's care and treatment. If a recorded matter is not provided, the registered medical officer must refer the matter to the tribunal under section 96 and this reflects one of the Milan principles, that of reciprocity. Recorded matters are a means of ensuring that patients get essential elements of care and treatment which they require and can be used to secure care and treatment which might not otherwise be provided. This is a significant benefit to some patients but currently recorded matters can only be specified in compulsory treatment cases. They cannot be specified in cases where the patient is under a compulsion order or a compulsion order and a restriction order. The view of the Law Society is that such patients would benefit from the inclusion of recorded matter provisions. Compulsion treatment orders are civil orders whereas compulsion orders and restriction orders are criminal justice orders. All patients should have the right to obtain the essential treatment that they require, regardless of their route into the mental healthcare and treatment scheme. I move the amendment to my name. Thank you, Presiding Officer, and again I thank Richard Simpson for lodging this amendment. As I noted at stage 2, I am confident that existing provisions work well for patients who are subject to a compulsion order or a restriction order. I am not opposed in principle to introducing recorded matters to such orders. I am not convinced that they should be done in a different way to how the system works for compulsory treatment orders. The amendment proposed would lead to a different mechanism for compulsion orders or compulsion orders with restriction orders. I am concerned that there could be confusion from operating too similar, but different systems in that could add unnecessary complexity. It also omits an equivalent provision to section 96 of the act to provide for allowing the responsible medical officer to make a reference to the tribunal where a recorded matter is not being complied with. That requires the responsible medical officer to consult with the relevant party to search the mental health officer to find out why a recorded matter is not being provided and to bring that to the attention of the tribunal. It means that the responsible medical officer will submit the original and most up-to-date care plans to the tribunal that allows the tribunal to take the views of the patient and others and for the tribunal to make a decision whether to vary the recorded matters or other compulsory matters in the order, including on an interim basis this amendment. Therefore, I omits to extend the important part of the existing recorded matters provision for compulsory treatment order to the other orders, which ensures that any recorded matter is not being provided, is brought promptly to the attention of the tribunal and which allows the tribunal to revise the order accordingly if needed. On that basis, I would urge Dr Simpson not to press his amendment. Dr Simpson, can I invite you to wind up and indicate if you can tend to press her with Dr Simpson? I still press the amendment. I think that it's important that this is extended to those with compulsion and compulsion restriction orders. I think that this amendment does that, although I do hear what the minister is saying that he disagrees with that. But I think that the law society who have their own experts in this regard have looked at this matter very carefully and therefore I wish to proceed with this amendment. Many thanks. The question then is that amendment 38 be agreed to. Are we all agreed? Palmyns is not agreed. There will be a division. This is a one-minute division. Please vote now. The result of the vote on amendment 38 is a yes 49, no 58. There were no abstentions and the amendment is therefore not agreed to. We now move to group 12, definition of compulsion orders and a call amendment 22 in the name of the minister in a group on its own. I ask the minister to move and speak to the amendments, please. Thank you very much, Presiding Officer. The 2003 act contains a range of provisions relating to compulsion orders. This is a disposal open to the criminal courts under the Criminal Procedure Scotland Act 1995 in respect of a person with a mental disorder following a trial or examination of facts and connection with an offence punishable by imprisonment section 329 defines compulsion order for the purposes of the 2003 act as an order made under section 57A of the 1995 act. Section 307 of the 1995 act defines it as an order having the meaning given in section 57A. While the definitions deliver a similar result, they are expressed in different terms to each other. It is worth probably recapping on when a compulsion order can be made, a compulsion order can be made in three situations where the person has been convicted of the offence, where the person has been acquitted of the offence and grounds of lack of criminal responsibility by reason of mental disorder or where the person is unfit for trial and has been found in examination of facts to have committed the acts constituting the offence. Section 57A of the 1995 act makes provision allowing the court to make a compulsion order following a conviction as well as provision about what a compulsion order is and what measures it can authorise. Section 57A makes provision allowing the court to make a compulsion order following an acquittal or examination of facts. Subsection 4 of that section applies subsections 2 to section 16 of section 57A for the purposes of that order. It is understood in practice that orders made under either of section 572A or 57A2 are covered by the current definitions. However, the user of the legislation is required to read section 572A through the prism of the application of much of section 57A to section 572A by virtue of section 574 in order to arrive at that understanding. We believe, and I hope that that is clear why, that we believe that we would aid the users of the legislation. We were able to recast these definitions so as to provide for a clear, accessible and consistent definition across both of the 1995 act and the 2003 act. The best way of achieving that would be to refer in each of the 1995 act and the 2003 act specifically to an order made under either section 572A or 57A2 of the 1995 act. Those amendments provide for that clarification and make a consequential change to section 16 and a move of amendment 22. Many thanks ministers. Since another member has requested to speak, do you feel the need to wind up on this section? Indeed, no. In which case the question is that amendment 22 be agreed to. Are we all agreed? Yes. We now turn to group 13, referral to the High Court and I call amendment 40 in the name of Dr Richard Simpson in a group on its own. I ask Dr Simpson to move and speak to amendment 40, please. Thank you, Deputy Presiding Officer. The first piece of legislation that was passed in our Parliament in 1999, and one with which I was personally involved, was to tackle a situation arising from an appeal made under the European Convention on Human Rights by Noel Ruddell against his detention in the state hospital following serious offences. The Mental Health Public Safety and Appeals Scotland Act 1999 introduced the serious harm test under which patients who were convicted on indictment or complaint and subject to special restrictions with a court could be subject to indefinite hospital detention if a mental disorder was present and they were considered to pose a risk of serious harm to the public. Irrespective of the appropriateness of the order or the treatability of the subject, the legislative provisions of the 1999 act were subsequently extended in the Mental Health Care and Treatment Act, Scotland 2003, and were still applied to all restricted patients in Scotland who number about 250. Because of these provisions, there remained a small number of patients who have become stuck in the forensic mental health system, but who have been reclassified in terms of their diagnosis as either having no diagnosis or personality disorder or learning disability. The minister's arguments against my amendment at stage 2 were twofold. First that the Mental Health Act covered personality disorder and of course that is correct, and that in some way the forensic psychiatrist was seeking to change this. This is the forensic psychiatrist who have backed this particular amendment. That view is quite wrong. They are not seeking to change the incorporation of personality disorder into the 2003 act. That would indeed be a fundamental change and is not the intention of this amendment nor will the amendment as written deliver such a change. The minister's second argument was that the amendment to the Criminal Procedure Scotland Act 1995 whereby the time period for interim compulsion order was extended from six months to 12 months would ensure that a full and rigorous assessment of the offender's mental disorder was undertaken before the final disposal is made. Again, I concur, but he then went on to say that it is very unlikely that an offender would be misdiagnosed in those circumstances, making it less likely, not unlikely but less likely, now that a patient would receive a hospital disposal from the court that would create the scenario that I was putting forward. Again, he is correct. The numbers will be small. Most psychosis, if severe and enduring, will be evident within a year, but for every patient who at the time of the offence had an acute psychosis due to, for example, drugs or alcohol misuse, which did not resolve until that year had expired and the disposal was then found to be inappropriate since the diagnosis might only be a personality disorder or learning disability, the nature of which would be better managed in a prison, then without this amendment we will continue to confine patients unnecessarily and, I may add, in the context of current austerity, very expensively in a mental hospital rather than a prison. Can this happen? Yes, it can. The mechanism for appeal is cumbersome, but was employed, this scarce resource was employed in the case of Alexander Reid. In his case, the Court of Criminal Appeal recognised that the change in diagnostic category could be considered as new evidence, and it allowed for a fresh disposal in his case, which allowed Mr Reid to transfer to prison, which is what he wanted to do. The process for raising his appeal took several years. An alternative approach to the problem that is raised by cases such as that of Noel Ruddell is that there should be some mechanism by which the appropriateness of the sentence can be reconsidered for the admittedly very small number of patients whose diagnostic category has changed and whose detention in psychiatric hospital is consequently inappropriate. Not to act will mean either continued substantial excess cost, and I am told that this amounts to some £200,000 annually per patient, and also to the inappropriate detention against which others would seek redress in the same manner as Mr Reid did successfully. The whole approach in Scotland to personality disorder defenders was considered by a working group on the services for people with personality disorder, chaired by Professor Thompson, which reported as long ago as 2005. That report recommended that the Scottish Government consider whether a mechanism should be created to refer such cases to the Scottish Criminal Cases Review Commission for consideration. That view was re-articulated in 2011 when the forensic network gave evidence to the Commission on Women Offenders chaired by the right honourable Dain Eilish Angelini. Amendment 40 revises my previous amendment of 113 submitted at stage 2 to make the group to whom this would apply much more clear. This would now apply only to those with a compulsion and restriction order. The Faculty of Forensic Psychiatry believes that individuals who are offenders with only personality disorders or learning disability are far better supported and managed within the prison system rather than the mental health system. I move the amendment in my name. Thank you. The amendment is similar to the one lodged by Dr Simpson at stage 2. The only difference is that it is now proposed to apply only to patients subject to a compulsion order with restriction order, whereas the stage 2 version would have also applied to patients subject to only a compulsion order. I resisted the amendment then and remain of the view notwithstanding and narrowing of the provision to apply to a smaller subset of patients. That this is a major issue and given the implications for the criminal justice system, not one that we should sensitively consider without thorough consultation, particularly in light of potential additional risks to the public. Let me run through the reasons for my view in more detail. The amendment proposes new powers for the tribunal and courts that would revisit the decision of the court in its original sentencing and disposal. That also opens up what can be very complex, competing clinical opinions about diagnosis. I understand that this is designed to address concerns among some psychiatrists that patients who are diagnosed are indeed misdiagnosed as having a mental illness or learning disability and made subject to compulsion order with a restriction order on that basis may later be diagnosed as having only a personality disorder, which had the court had full medical evidence based on that diagnosis. May I should ever precise have resulted in a prison sentence rather than a mental health disposal yet once in the hospital system because the patient continues to satisfy the test for a compulsion order and restriction order due to the risk of serious harm that they pose, they cannot be released. It appears to me that this proposal would result in a significant shift in how medically disordered persons are dealt with by the criminal justice system and indeed by the health service after conviction. The present position in the 2003 act is quite clearly that a patient who meets the conditions for a mental health disposal requires to be detained. May, in many cases, most approved to be detained in hospital rather than in prison. As Dr Simpson alluded to and meant to the criminal procedure Scotland in 1995 extended, the time period for an interim compulsion order from six months to 12 months to ensure that a full and rigorous assessment of the offender's mental disorder is undertaken before the final disposal is made. In these circumstances it is very unlikely that an offender would be misdiagnosed, so it is much much less likely that a patient would receive a hospital disposal from the court that could create this scenario. Now, all patients subject to compulsion orders and restriction orders have the right to apply to the tribunal and for the orders to be reviewed periodically. In addition, it is already a means for the patient to have their case considered on appeal. The same appeal route is indeed used for those offenders who have received a prison sentence who argue they should have received a hospital disposal. As I said at stage 2, the amendment is well-intentioned. However, it is a major issue with significant implications for the criminal justice system. It is not one that I believe that we should be considering without thorough consultation. I would urge Dr Simpson not to press his amendment and, if he does, I would strongly urge members not to vote for the amendment. Many thanks, Dr Simpson. Can I invite you to wind up and indicate if you intend to press a rose jaw? I think that the most important thing to say is that the tribunal may refer the matter to the High Court. There is no compulsion upon the medical tribunal to do so, but it does mean that the medical tribunal would consider the matter. That is an appropriate locus for an appeal against the previous diagnosis to be actually argued out with expert people appearing in front of the tribunal. The other thing is that the minister on the one hand is saying that this would be a major change in the criminal procedures and on the other hand is saying that it is very unlikely that anyone would actually come forward with this because of the change to the criminal procedures act. Those two things seem to me to be quite illogical, in fact, completely opposed to each other, so I fail to understand why he opposes this measure, which will simplify matters, could reduce costs in a small number of patients. I am told that it might apply to no more than half a dozen. If it is half a dozen patients, minister, that is still £1.2 million of money that is being spent inappropriately at the moment, retaining people in the state hospital when in fact they would be better managed within the prison system. Forensic psychiatry faculty and the prison service have had extensive discussions since the report in 2005 and they believe, both sides believe, that personality disorders and the absence of a mental illness of another severe and enduring mental illness should in fact be managed within the prison system. Those prisoners believe that as well, but they have no easy mechanism to follow this at the moment. This amendment will provide that mechanism and I believe that it has been carefully thought out and therefore should be applied in order to both save us money and improve the situation for those limited number of patients. I move the amendment to my name. Question is, that amendment 40, we agree to, are we all agreed? We are not agreed, one minute. One minute division, please vote now. The result of the vote on amendment number 40 is yes, 49, no 59, there were no abstentions the amendment is therefore not agreed to. That brings us to group 14, review of criminal behaviour and a call amendment number 39 in the name of Dr Richard Simpson in a group on its own and I ask Dr Simpson to move and speak to amendment 39, please. Thank you, Deputy Presiding Officer. Out of the last 137 homicides committed by those with mental illness in the last 10 years in Scotland, only two appear to have been the subject of published reports by the Mental Welfare Commission and few seem to have been the subject of adverse instant reviews by boards. When this is compared to the situation in England over the same period, there were 576 homicides and 321 reviews. These English reviews suggest to some that some 25 to 35% of homicides could have been prevented with different actions. It is very important that we recognise and put on record that murder or culpable homicide or indeed violence by persons suffering from a mental illness is a rare occurrence. But the intention of amendment 39 to the 1995 Criminal Procedures Act is to provide in primary legislation clarity, consistency and accountability about reviewing, reporting and taking appropriate action where lessons can be learned on offences as specified in 63A section 16 of my amendment involving a person suffering from a mental illness known to the mental health services. This would apply to murder, culpable homicide and such other offences as the minister may by regulation prescribe. The three purposes of this amendment are, firstly, that we should learn lessons so that in future those with mental health problems can as far as possible be protected and prevented from committing such offences. Secondly, to ensure that the families of the victims and the person affected if they survive can be sure that all that can be done to prevent a recurrence will be done. And thirdly so that the public can have confidence in the NHS. At present colleagues we have a dysfunctional system of reporting and review. It involves decisions by multiple different organisations or none if they choose not to act. This includes the Procurator Fiscal, the UK confidential inquiry reports into homicide and suicide, the health board, the mental welfare commission who can certainly act if they believe there's a deficiency care of care but how do they know if the case hasn't been reported to them. Other organisations which may or may not have a role are Health Improvement Scotland and indeed the health and safety at work and finally the minister who could order a review. This issue came up before me because of concerns from the 100 families organisation, an organisation which draws together information and provides mutual support for families affected by such offences. My purpose in moving these amendments is to ensure that under 63A to A and B that if charged the Procurator Fiscal will inform both the board and the Mental Welfare Commission. Now in the stage 2 the minister expressed concerns that individuals might be found not guilty or found incapable of pleading but experience reported by the 100 families organisation is that in almost every case there is no attempt to hide and the offence is almost always admitted and as you will see in my amendment which I've adjusted to take account of the minister's concerns the perpetrator has the opportunity to give permission and the minister should only then proceed when that is not actually given if they feel it's in the public interest. This is not about guilt or innocence that's a matter for the justice system this is about learning lessons and preventing future possible incidents. If a person with a severe mental illness is involved and known to the service usually in the last six months the board would be obliged to make inquiries under 63A, 3A, B and C