1 / 15

UPDATE ON LEGISLATION 2010/2011

UPDATE ON LEGISLATION 2010/2011. Joanna Keating Head of Protection of Rights Unit Reshaping Care & Mental Health Division. Intro & new SG structures. DG Health & Social Care Directorate for Health & Social Care Integration Reshaping Care & Mental Health Division Protection of Rights Unit

tovi
Download Presentation

UPDATE ON LEGISLATION 2010/2011

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. UPDATE ONLEGISLATION2010/2011 Joanna Keating Head of Protection of Rights Unit Reshaping Care & Mental Health Division

  2. Intro & new SG structures • DG Health & Social Care • Directorate for Health & Social Care Integration • Reshaping Care & Mental Health Division • Protection of Rights Unit • Mental Health Legislative & Adult Protection Team – 2003 Act/Part 5 AWI/ASP/PVG adults • Mental Health & AWI Amendment Bill Team • Sponsorship & Social Services Improvement Team: care standards/sponsor SCSWIS & MWC

  3. Recap on the Bill: McManus SG Response (Oct 2010): how Ministers would take forward McManus issues: • advance statements • advocacy • named persons • medical matters; and • tribunals

  4. Bill Recap: McManus contd … and for each agreed recommendation, indicating where: • primary legislation required – a Bill to amend an Act • secondary legislation required (Regs, Tribunal Rules) • policy initiative only needed (eg Guidance)

  5. Since McManus: consultations! Primary legislation: • flu pandemic powers consultation • MDO victim notification scheme statutory scheme consultation • AWI Part 5 – s47 certificates consultation Secondary legislation: • Rule 58 (“paper hearings”) consultation – change to Tribunal Rules

  6. Bill now = McManus + • McManus Review changes to 2003 Act • SG and stakeholder identified other minor /technical issues to 2003 Act • poss new flu pandemic powers – 2003 Act • new MDO victim notification scheme • AWI Part 5 – research (RECs) • AWI Part 5 – medical treatment??

  7. Mental Health & Adults with Incapacity Amendment Bill • not in this year’s legislative programme • earliest now will be 2012/2013 Parly session • subject to: Cabinet clearance; Govt priorities in health in next session • bills time intensive: time to prepare/get it right! • means changes take effect around 2013/2014

  8. Secondary legn: Rule 58 • Rule 58 of the Tribunal Rules empowers the MHTS to decide cases without an oral hearing • but can only currently use if: • all the parties agree in writing, • MHTS considers that, having regard to the nature of the issues raised in the case, sufficient evidence is available to enable it to come to a decision; and • to do so will not, in MHTS’ view, be contrary to patient’s interests. • 2011 consultation re amending R58 to give MHTS power to decide cases w/o oral hearing on its own initiative – 4 options given re how this could work

  9. Secondary legn: Rule 58 contd Option 2 favoured: MHTS given power to deal with cases w/o a hearing on its own initiative, by writing out to parties, stating it has identified a particular case as being appropriate to be dealt with under rule 58 and intends to deal with the case under rule 58: • patient can trigger automatic right to oral hearing: • patient notifies MHTS they want an oral hearing, • if patient does nothing, assumption that patient is content for MHTS to proceed with hearing under rule 58; • the other parties may also still request an oral hearing on cause shown. But additional safeguards also sought by consultees, & being taken into account by SG in drafting changes.

  10. Challenges to the legislation: RM • excessive security appeals judicial review • “failure” of SMs to make regulations under s268 to “give life” to provisions extending ESR beyond TSH • Ministers not ruled out, keeping need under review • Court of Session (Inner House) held Jan 2011 that no duty and no failure, upholding Outer House decision of July 2010 • will now be first appeal to Supreme Court (London) of case involving 2003 Act

  11. Challenges to the legislation: G • another excessive security appeals case, but different point here from RM case • “discretion” of MHTS not to make an order (even where MHTS agreed patient did not require conditions of special security) • Ct of Session held (Aug 2011) that discretion exercised appropriately with adequate reasoning provided by MHTS • patient’s appeal refused

  12. Challenges to the legislation: S • another excessive security appeals case! • lead damages case involving a health board (so SMs not directly involved) • Action for damages against health board for failure to implement s264 order – ie health board has not identified/moved patient to lesser security hospital

  13. Challenges to legislation: Black • re curators ad litem • lack of appeal for curators from Tribunal to Sheriff Principal • ECHR incompatability of s320? • case being heard in November

  14. Other legislative changes CJL (S) Act 2010: • new CPOs have replaced probation orders (s230 of 1995 Act): w/e 1 Feb 2011 • implements 2004 SLC Report recommendations on mental disorder & unfitness for trial, to update laws on insanity and fitness for trial by an accused at court: commencement not likely till 2012 PSR (S) Act 2010: • changes to MWC governance structure • now separate Board / new Commission Visitors • w/e 1 April 2011

  15. Contact: Joanna.Keating@scotland.gsi.gov.uk Mentalhealthlaw@scotland.gsi.gov.uk More info: www.scotland.gov.uk/Topics/Health/health/mental-health/mhlaw/mhareview

More Related