Report on the Review of the Mental Health (Scotland) Act 1984

Section 5 THE MENTAL WELFARE COMMISSION

Chapter 23

THE MENTAL WELFARE COMMISSION

Background

1. Our terms of reference require us to have particular regard to the role of the Mental Welfare Commission for Scotland. The Commission is established under Part II of the 1984 Act, and has functions under both this Act and the Adults with Incapacity (Scotland) Act 2000.

2. The Commission was originally established under the Mental Health (Scotland) Act 1960, and replaced the General Board of Control for Scotland. Its main duty is 'to exercise protective functions in respect of persons who may, by reason of mental disorder, be incapable of adequately protecting their persons or their interests'¹. In the exercise of this role, the Commission has a wide range of other powers and duties, which we discuss below.

3. The Commission differs from the English Mental Health Act Commission, which was, in part, modelled on the Scottish Commission, in having a wider remit. The English body is solely concerned with patients subject to compulsory measures, while the Mental Welfare Commission has an overall protective responsibility for all people with mental disorder, whether in hospital or elsewhere. This broad remit is something which both the Commission and others strongly support, but may contribute to the pressures on the Commission in targeting its limited resources.

4. The Commission is not an especially large body. In the financial year 1999-00, it had a total income of just under one and a half million pounds².

5. We go on to suggest a number of ways in which the remit and powers of the Commission could be improved. Views of consultees differed to some extent about what the remit should be, and how the Commission's role should fit with the complex network of bodies charged with ensuring good practice in mental health care. However, there was an overwhelming view that the Commission provided an important safeguard for the rights of people with mental disorders. There was also general support for this role not being restricted to people subject to compulsory measures.

Composition of the Commission

6. The overall control of the organisation is vested in the Commissioners. This is a group of people selected for their skills and expertise who serve, mostly on a part time basis, for a time limited period. The Commissioners are appointed by Her Majesty on the recommendation of Scottish Ministers.

7. The 1984 Act sets out certain requirements as to the composition of the Commission. There must be at least 10 Commissioners, including three women, three medical practitioners and one advocate or solicitor of at least five years standing³.

8. In addition to these statutory requirements, the Commission seeks to ensure that it has a broad range of experience and expertise. Present membership includes people with backgrounds in nursing, social work, health management, psychology, the legal profession and the voluntary sector. In recent years, the Commission has taken steps to have a Commissioner appointed with interest in ethnic minority issues, and one who has publicly identified herself as having experience as a user of psychiatric services.

9. We believe that the wide range of experience which Commissioners bring to their role is important. Our consultation found evidence of a belief in some quarters that the Commission is dominated by psychiatry. This may partly reflect the fact that much of the Commission's work in reviewing detentions is carried out by the Medical Commissioners, and by psychiatrists working under contract to the Commission. In addition, the current Director is a consultant psychiatrist. However, this point of view would not seem to take account of the breadth of membership of the current Commission.

10. We consulted on the membership of the Commission and received a wide range of suggestions. In particular, many people felt that user and carer representation needed to be strengthened. Other suggestions included a full time Nursing Commissioner,⁴ a Complaints Commissioner, a Police Commissioner, and people from lower down the promotion scale in various professions so that the views and experience of 'front line' professionals are better represented.

11. In general, we feel that it would be a mistake to specify the composition of the Commission too precisely in the Act. Any detailed list would be likely to become outdated as professional roles develop, and might exclude high calibre candidates from outwith the specified backgrounds. We feel it is appropriate to retain the requirement that the Commission include medical and legal expertise, but believe that Scottish Ministers should have flexibility to appoint a range of other people to the Commission to provide a multi-disciplinary and balanced approach to its work.

12. The current Act does not specify that the minimum of three doctors should have particular expertise in relation to mental health. Given the responsibilities of the Commission, particularly their power to discharge patients, we feel that it would be appropriate to specify that these three doctors be psychiatrists. Of course, as at present, it is likely that other doctors, particularly GPs, would be represented.

13. We agree with the need to have adequate representation from both men and women in the Commission, but we are not convinced that the statutory requirement to have at least three female Commissioners is still necessary. Currently there are nine women who are Commissioners, and the number has always been well above three in recent years.

14. The one new area where we feel the Act should make specific provision is that of service users and carers. The proposal that user and carer involvement be strengthened was the most strongly supported of the specific suggestions made in our second Consultation.

15. In 1960, and even in 1983, when the Act was revised, the notion that service users and their families should have a role alongside professionals in monitoring the quality of care, and establishing care standards, was not developed. Since then, the user and carer movements have grown in strength and importance.

16. As a comparison, the Disability Rights Commission, which was established recently to promote the rights of disabled people, is required to have people who are, or have been, disabled, as a majority of its membership⁵. We understand that one of the current members has a learning disability.

17. The Mental Welfare Commission plays a different role, but this does not lessen the importance of having adequate representation from users and carers. In addition to the appointment of a service user to its membership the Commission is now considering the appointment of a person with experience of informal caring. (It is of course likely that others who have served in the Commission will have had such experience, without it having been formally acknowledged.)

18. These developments are welcome, but many people commented to us that more should be done. There is concern that a single user representative may be expected to represent the experiences of all users, which is unrealistic. Also, should a service user have a period of ill health, that perspective would be lost. The same problem arises for a carer who may also have to deal with family pressures from time to time. Even when these difficulties are not present, there are dangers that the service user or carer may feel isolated in a body which is otherwise predominantly led and staffed by professionals.

19. We therefore recommend that user and carer involvement be strengthened, providing specifically for at least two of each.

20. This would mean that eight of the posts in the Commission were set aside for doctors, lawyers, users and carers. This may make the current minimum membership of 10 unduly small. We understand that there are currently 21 posts, and it would seem that this is not excessive for the Commission's needs. We believe, therefore, that the minimum membership should be increased.

21. In recent years, the Commission has strengthened its arrangements for the induction and training of Commissioners. However, there is no statutory requirement that Commissioners receive such training. Given the importance and complexity of the Commission's work, we believe that such training is essential.

22. Section 2(5) of the Act states that, before recommending the appointment of a new Commissioner to Her Majesty, Scottish Ministers shall consult such bodies as appear to them to be concerned. We understand that it used to be the practice that the relevant professional body was invited to suggest new Commissioners; for example the Law Society of Scotland when it was proposed to appoint a solicitor. However, the practice has now changed in the light of the guidance on public appointments issued by the Commissioner for Public Appointments. The procedure now is that almost all posts are publicly advertised, and the only involvement of the relevant professional bodies is that they are notified of the vacancy. This is important, to encourage suitable applications, but serves a different purpose from consultation. In the light of these changes, the requirement to consult appears to be no longer appropriate. We believe that the arrangements for advertising vacancies should be extended to all posts.

23. Section 6 states that the Commission may appoint officers and servants on such terms as to remuneration and conditions of service as Scottish Ministers may determine. The Act does not prescribe however the way in which the Commission and its staff should be organised.

24. More detailed provisions are contained in a Memorandum of Agreement between the Commission and the Scottish Executive Health Department. This can be varied from time to time. The current arrangements are that the day to day management of the Commission is the responsibility of the Director, who is a full-time Commissioner. There are other full-time Medical and Social Work Commissioners, and we understand that a full-time Nursing Commissioner is being recruited. The Commission currently employs around 37 staff, including a Secretary, five (three full time equivalent) medical officers, a nursing officer and two social work officers.

Organisational arrangements

25. In recent years, there have been a number of developments, both affecting public bodies generally, and in the Commission's activities, which may have implications for the way the Commission should be organised.

26. We have already mentioned the effect which guidance from the Commissioner on Public Appointments has had on the process of appointing Commissioners. More broadly, the Ethical Standards in Public Life etc. (Scotland) Act 2000 will require the Commission, alongside other public bodies, to prepare a draft Code of Conduct for its members.

27. The Commission has already reviewed its procedures for reviews of detention in light of the introduction into domestic law of the European Convention on Human Rights. It may be that the Convention will have further implications for the work of the Commission.

28. A constant factor in recent years has been the growth in the Commission's workload - partly caused by the continuing increase in the number of patients subject to detention and guardianship. For example, in 1992/3 there were 2080 episodes of detention under s26 (up to 28 days) and 745 episodes of detention under s18 (up to six months). In 1999/00 the respective figures were 2500 and 1011.

29. The Adults with Incapacity (Scotland) Act 2000 has imposed new duties on the Commission, and our recommendations will, to some extent, also increase the responsibilities of the Commission.

30. These developments raise questions as to whether the current organisational arrangements are still the most appropriate. We asked in our second Consultation whether the internal structure of the Commission should be altered, perhaps with the creation of a distinction between executive and non-executive members. We received few substantive responses. However, this may be because, apart from current and previous Commissioners and staff, many respondents would be unlikely to be familiar with the Commission's internal workings.

31. One issue which might bear examination is the role of the Director. The Director is, at present, and has been in the past, also a Medical Commissioner. This involves a heavy range of responsibilities. The Memorandum of Agreement with the Scottish Office sets out administrative responsibilities as accounting officer for the Commission, and these must be combined with providing medical input to the Commission's work, and leadership for the organisation. As the work grows, this workload may in time prove to be unmanageable.

32. The role and responsibilities of the Chairman may also fall to be considered, as may the responsibilities of full time Commissioners and the wider group of part time Commissioners. It seems likely that the number of Commissioners will increase, as indicated by our earlier recommendations. While this would bring an even broader range of knowledge and experience to the Commission it may make it more difficult to maintain the valuable principle that all Commissioners have equal status.

33. We have not taken a view on exactly how the Commission should be organised. Indeed, it would not be appropriate for us to do so, since the precise arrangements will change over time, and are not spelled out in the legislation itself. We believe that the flexibility within the current Act is an advantage, which should be retained in a new Act. However, we also take the view that there should be a review of the organisational arrangements, which should consider the implications of the new Act, and the other developments we outline above, for the structure of the Commission.

34. The Commission is currently located in Edinburgh. We received some comments, particularly from rural areas, that it may not always be easily accessible to people in other parts of the country. We asked in our second Consultation whether some form of geographical dispersal of the Commission was desirable, for example, through a series of local officers around Scotland. There was some support for this, but the balance of opinion was that the advantages of accessibility were outweighed by the problems of dilution of expertise. We therefore make no specific recommendation on this point, but we believe the issue of accessibility across Scotland is one which should be considered as part of the review of the Commission structure.

35. The review, and any changes which may arise therefrom, should be conducted openly, involving not only the Commission and the Scottish Executive but other interested parties.

Accountability of the Commission

36. The Commission is financially accountable to Scottish Ministers, who set its annual budget and any necessary financial guidelines. The financial procedures are similar to those in place for NHS bodies⁶. Under the current Memorandum of Agreement between the Commission and the Scottish Executive Health Department, Ministers are responsible for setting the broad policy framework within which the Commission will operate, and require to be satisfied that the Commission's activities are consistent with those statutory duties and powers. Within this framework, the Commission sets its own targets and priorities.

37. The evidence we received suggested that the Commission functions, as it should, in an independent way, and has, when it has considered it necessary, been prepared to express its views strongly, even when they might not be welcomed by the government of the day. However, we have been considering whether, particularly under the new constitutional arrangements, there is a case for broadening the accountability of the Commission.

38. Currently, the Scottish Parliament has very little formal oversight of the work of the Commission. The Annual Report of the Commission is presented to Scottish Ministers, who lay copies before the Parliament. In the past, Scottish Ministers have responded to the Commission's Annual Report, but there has been no formal debate in Parliament regarding this. Nor does the Commission have any power to draw matters of concern to the attention of the Parliament (other than a general power to bring certain matters to the attention of Scottish Ministers, a health board, a local authority 'or any other body'⁷).

39. In response to our second Consultation, there was overwhelming support from those who responded to the suggestion that the Commission should be answerable directly to the Scottish Parliament by reporting on a regular basis to the Health and Community Care Committee. The Commission itself supported this suggestion.

Role and duties of the Commission

40. The Commission has a number of specific duties, including duties to visit every patient whose detention has already been renewed for a year and is renewed for a further year, and to administer the system of notification of matters such as detention and administration of treatment under Part X of the Act. Other functions, such as that of making enquiries into apparent deficiency in care, are expressed as duties, but are so broadly expressed that the Commission has to be selective in deciding when to carry them out.

41. There are overlaps between much of the work of the Commission and that of other bodies. For example, both the Commission and the Scottish Health Advisory Service (SHAS) visit psychiatric and learning disability hospitals. Deaths of psychiatric patients may be investigated by the Commission as well as by the procurator fiscal. In relation to investigating complaints about NHS mental health services, there are complex arrangements, partly based in statute and partly by agreement, concerning the respective roles of the Mental Welfare Commission and the NHS Ombudsman.

42. Given the potential breadth of the Commission's role, the limited resources at its disposal, and the range of other bodies with related functions, it is important that the Commission should have clear priorities, with appropriate powers to implement these priorities effectively.

43. The Commission has always taken the view that one way of identifying its particular role is that it has a focus on the individual with mental disorder. This distinguishes it from bodies such as SHAS, who are more concerned with monitoring the performance of hospitals or other health establishments.

44. This does not, however, tell the whole story. Firstly, it is simply not possible for the Commission to monitor the care of every individual with mental disorder, or even every individual with mental disorder who is the subject of concern. Secondly, the Commission has rightly been concerned to see that where it has identified problems in relation to the care of individuals, lessons are learned from this, and applied more broadly.

45. Also, much of the work of the Commission has in fact been concerned with improving practice more generally. For example, it has issued information and guidance to GPs on emergency detention; to nursing homes on restraint; and to patients subject to hospital orders on the provisions of the Criminal Procedure (Scotland) Act. It has expressed views in relation to legislative proposals of both the Scottish and Westminster parliaments.

46. It would appear that, in addition to the focus on the individual, the other key distinguishing feature of the Commission is that it has unique expertise concerning the interface between issues of care, and issues of human rights, which is at the heart of the Mental Health Act.

47. We recommend in Chapter 3 that the new Act should be based on a series of principles. The Commission would seem to us to be well placed to act as a 'guardian' of these principles. This would help to give an additional focus to the work of the Commission. To some degree, it would give the Commission a comparable role in relation to its founding Act as that of other bodies intended to promote the rights of particular groups, such as the Equal Opportunities Commission and the Commission for Racial Equality.

48. In dealing with specific powers and duties below we have, then, had regard to this general overview:

• The Commission should maintain its focus on the individual
• Its core responsibilities are in relation to the operation of mental health (and incapacity) legislation
• Its core expertise is in relation to the rights of mental health service users and the duties of care to such service users, and the interaction between these rights and duties
• In exercising its functions, the Commission should seek to promote the principles of the Act.

Reviews of compulsory measures

Current arrangements

49. The Commission is empowered to discharge patients subject to detention (other than restricted patients) or to revoke community care orders⁸. It may also recall the powers of a guardian appointed under the Adults with Incapacity (Scotland) Act, subject to a right of appeal to the sheriff⁹.

50. The 1999-00 Annual Report of the Commission sets out the normal procedure under which reviews of detention are considered. On receiving a request from the patient or interested party, the Commission arranges for the patient to be visited by a Medical Commissioner or a doctor employed by the Commission. The case is then reported to a weekly meeting of Commission members. In relation to s26 (28 day) detention, the Commission seeks to deal with cases within ten days of the request.

51. In the year 1999-00, there were 521 requests under the various powers of review which the Commission has, including 200 requests for discharge from long term detention under s18, and 207 requests for discharge from 28 day detention under s26. There were, four cases in that year where the Commission discharged a patient contrary to the wishes of the responsible medical officer (RMO), and in a small number of other cases the RMO chose to discharge the patient after discussion with the Commission.

Criticisms

52. The fact that very few patients are discharged as the result of requesting a review by the Commission has been the subject of some comment and criticism. Some people have taken the view that the Commission is simply acting as a rubber stamp for the medical profession. On the other hand, it might be argued that the lack of discharges shows that doctors are clearly not detaining people inappropriately. Furthermore, patients already have another means to challenge their detention, by appeal to the sheriff.

53. The point can also be made that such reviews impose a considerable burden on the limited resources provided by the Scottish Executive to the Commission and that more effective use could be made of the available time and professional skills. In particular, to focus on those who are able to request a review might mean not paying sufficient attention to more vulnerable patients, who find it more difficult to make their views known to the Commission. Reviews of patients on short term detention are particularly difficult, since they involve a considerable amount of effort to organise. Even then, they rarely lead to a discharge of a patient and matters may well have moved on by the time the review takes place.

54. Notwithstanding these concerns, our consultations found wide support for the retention of the power of the Commission to review compulsory measures. Justifications for this include the relative ease of access to the Commission, compared with an appeal to the sheriff. This is amply borne out by the great disparity between the number of appeals to the sheriff against detention, which is only a small fraction of the number of requests for review by the Commission. The Commission also pointed out to us that, in reviewing detention, they may investigate issues concerning the care of the patient which would be outwith the remit of a sheriff.

55. However, if reforms are made to the procedure by which compulsory orders are made, and to the appeals process, some of these arguments may carry less weight. The Scottish Association for Mental Health (SAMH) and the Law Society suggested that, should the sheriff be replaced by a tribunal, with automatic access to representation, and the tribunal be empowered to consider issues relating to the care of the patient, then the function of the Commission in reviewing patients could be removed. The Commission's own response to our second Consultation appeared to accept that this might be appropriate.

Our proposals

56. We hope that the reforms we propose will give service users greater access to and confidence in the formal appeals process. Nevertheless we have concluded that it would be premature to consider removing the powers of the Commission to discharge patients. We feel that they still provide a useful safeguard, particularly for patients who may find it difficult to use the appeals process.

57. That said, we are not convinced that, in the future, it may always be necessary for the Commission to be obliged by law to conduct a formal review for every patient who requests one. (Indeed, it is not required to do so at the moment, although it does do this for all but emergency detentions). If the Commission were satisfied that patients had appropriate access to review by the tribunal, and that patients were taking advantage of the opportunity to appeal to the tribunal in more significant numbers than happens at the moment regarding appeals to the sheriff, it should be possible for the Commission to choose to target particular cases for review _ either as a check on the system, or where particular issues are raised. For example, it might choose to review all detentions of children over a period.

58. Of course, it would be possible for the Commission to do this without the power of discharge, but we feel that this is an essential power, even if it is resorted to only rarely.

59. We understand that the Commission is currently revising the way in which it conducts reviews. Formerly a Medical Commissioner or doctor appointed by the Commission visited and interviewed the patient and consulted nursing staff and relevant others as well as the medical records. Information from the RMO was often obtained by telephone. A report collating this information was then considered by a meeting of Commissioners. The proposed procedure would seek written reports from the RMO and the mental health officer (MHO) and the patient would be given these before being seen by the Commission doctor. The patient would also be invited to give a written statement to the Commission indicating why detention was not appropriate and encouraged to have a supporter or advocacy worker at the interview with the Commission representative if desired. The Commission would give more feed-back about the basis of its decision about the detention.

60. We welcome the proposed reforms, and note that the greater opportunity for the patient to contribute to the review highlights the importance of advocacy, which we discuss in Chapter 14.

61. At the moment, the Commission's decisions in relation to orders under the Mental Health Act are not subject to appeal (other than by judicial review) but those in relation to guardianship orders under the Adults with Incapacity (Scotland) Act 2000 are appealable to the sheriff.

62. In relation to a decision by the Commission to discharge an order, there may be a justification for the distinction, in that a discharge of a guardianship order affects the rights of a third party, the guardian, in a way which does not apply to detention. However we accept that, where the Commission refuses a request to discharge a patient, it may be hard to justify the presence of an appeal if the discharge relates to guardianship, but not where it relates to detention.

63. Despite this, we do not believe that an appeal to the tribunal is appropriate in relation to reviews by the Commission of mental health orders, given that there is a separate mechanism to allow the tribunal to become directly involved. Another consideration is that, as we have indicated above, we envisage that the Commission may in future choose to exercise its review power selectively, and we feel that an appeal process would be likely to impose constraints on the way the Commission exercised this discretion.

Visits

Current arrangements

64. The Commission has a duty to visit regularly patients who are liable to be detained in hospital or are subject to community care orders. On any such visit they must afford the patient an opportunity for a private interview. Where the patient is in hospital, they must also afford an opportunity for a private interview to any other patient at the hospital¹⁰.

65. In particular, the Commission must visit, at least every two years, any patient who has been detained for a period of over two years and who has not appealed against detention.

66. Under Section 9 of the Adults with Incapacity (Scotland) Act 2000, the Commission is also under a duty to visit, as often as they think appropriate, adults who have mental disorder and to whom the Act applies. This would include, in particular, people who are subject to guardianship under that Act.

67. Should our proposals for community orders be adopted, we anticipate that the duty to visit would apply equally to patients subject to these orders.

68. The Committee fulfils its obligations under the 1984 Act by visiting every psychiatric and learning disability hospital annually, and the State Hospital once a month. In 1999-00, representatives of the Commission visited 61 hospitals or NHS units. One hundred and eighty-three people who had been detained in hospital for longer than two years were visited, and a further 445 patients requested interviews with the Commission and were seen during these visits. Sixty one patients detained longer than two years were seen at the State Hospital, and 39 patients on request. In addition to hospital visits, the Commission also visited 259 patients on leave of absence, and 236 visits were made to people subject to guardianship under the Mental Health Act.

69. The Commission views the annual hospital visits as an opportunity not only to fulfil its statutory responsibilities in relation to individual detained patients, but also to carry out a number of other responsibilities, including to

• monitor hospitals' management of legally incapable patients' funds
• offer guidance to staff on the implementation of the Act
• discuss with senior management any matters concerning the welfare of persons suffering from mental disorder which the Commission consider ought to be brought to their attention, and
• inform the Commission about any matters which should be brought to the attention of Scottish Ministers or health boards or local authorities, and in future, to the Scottish Commission for the Regulation of Care.

70. The visits involve a considerable input of resources from the Commission, and take up a large percentage of the time spent by individual Commissioners on Commission duties. They also, of course, take up a significant amount of staff time at the establishments which are visited.

Issues arising

71. This raises a number of issues. The first is a concern that the Visiting Programme contributes to an emphasis in the Commission's work on people in hospitals, when services are increasingly moving towards care and treatment in the community. In particular, all the large learning disability hospitals are intended to be closed over the next few years. The Commission is aware of the need to maintain a presence in the community, and also visits community services. However, it is clearly impossible to visit every community based mental health service.

72. The Commission has pointed out that it does not have statutory rights in relation to interviewing patients in the community, except in relation to formal enquiries, for example into deficiencies in care. In hospital visits, Commissioners have a legal right to interview patients in private, carry out a medical examination, and examine medical records. (These powers also apply when visiting patients on guardianship or leave of absence.)

73. Hospitals are also visited regularly by the Scottish Health Advisory Service (SHAS). There have been suggestions that there could be duplication in hospitals being visited by two separate monitoring bodies, and certainly there exists a possibility for staff and patients to be confused about the respective purposes of the visits.

74. In oral evidence to us, SHAS and the Commission stressed the different purposes of their visits. SHAS stated that their role was to look at the entire system of health care on any particular visit, including at ward level, hospital level and at a strategic level. The Commission's role on the other hand was to look at health care provision at the level of the individual patient. SHAS and the Commission view their roles as complementary and liaise in order to try to avoid duplication or gaps in their work.

75. Nevertheless, comments were made to us by service providers that they sometimes found it difficult to discern the difference between the two roles. A number of the issues raised by the Commission in its report on its Visiting Programme in 1998-99, such as lack of day activities, poor environmental conditions, and anxiety about hospital contraction, would also be issues which would be of concern to SHAS.

76. One clear area of difference is the emphasis which the Commission attaches to individual patient interviews. These allow patients, whether detained or informal, to raise any matters of concern about their care or welfare. However, there were also a number of concerns about how well this operates.

77. Firstly, it is normally necessary for the patient, or someone on the patient's behalf, to request an interview. In some hospitals, very few interviews are requested. There is concern that this may not necessarily reflect satisfaction with the care being provided, but rather a lack of awareness of the Commission's visits or the role played by the Commission.

78. In particular, it may mean that Commissioners rarely see some of the most vulnerable patients, such as people with severe learning disabilities, or dementia. (We note that the Commission is now seeking to address this by selecting patients at random to visit, to look at the standard of their care.)

79. Also, because the Commission is not a primary complaints body, it can be difficult for individual Commissioners on any visit to resolve matters to the patient's satisfaction. Unless there is prima facie evidence of a significant deficiency in care, the Commission may simply have to encourage the patient to use the local complaints procedure.

80. A further potential shortcoming in the current system is that, even if the Commission uncovers significant problems, it may lack the appropriate powers to ensure that these problems are dealt with. We have some evidence of the Commission returning to hospitals, sometimes on more than one occasion, to find similar problems to those identified on previous visits.

81. The Commission has, on occasion, reported such concerns in relation to individual hospitals in its Annual Report. However, it does not, as is the practice of SHAS, publish an individual report regarding particular hospital visits.

Conclusions

82. Notwithstanding these concerns, we are satisfied that visits by the Commission serve a number of important functions. Apart from allowing the Commission to carry out its function of protecting the rights of individual patients, the visits help to maintain the visibility of the Commission with professionals and service users. They allow access to an independent source of information and advice for both groups. They are also potentially an extremely valuable source of information to the Commission.

83. In recent years, the Commission has sought to use its Visiting Programme as a means of gathering systematic information about particular themes or areas of concern. We go on to propose that the Commission should have a formal responsibility to monitor the implementation of the Mental Health Act, and to audit issues relating to the Mental Health Act and its underlying principles. Visits by the Commission would be an important means by which this could be achieved. We therefore believe that the duty to visit hospitals and other establishments should remain.

84. We go on to recommend greater flexibility in relation to the Commission's publications, in order that it can promote best practice in relation to the Act. This might include producing reports on particular aspects of the Visiting Programme, for publication and subsequent monitoring and review.

85. We feel that some of the Commission's visiting activities should be increased. For example, we recommend in Chapter 31 that detained patients who have been transferred to Scotland from other parts of the UK should be visited within three months by the Commission.

86. The Commission has the power to make unannounced visits. This power has been exercised only rarely, partly because of resource constraints. However, the Commission recently conducted some unannounced visits to hospitals, and felt that these had been extremely successful. In our second Consultation, we asked whether there should be a statutory requirement for the Commission to undertake unannounced visits. There was widespread support, including from the Commission itself.

87. There was also general support for the proposal that the Commission should be entitled to meet with mentally disordered persons living in the community, without concern first being raised about the individual's welfare, or the visit having been requested by the service user. This would allow the Commission to visit those who may be most vulnerable, who may not seek the Commission's involvement.

88. Some concerns were expressed about the implications of this for the rights of privacy of individual service users. Clearly, we would not envisage the Commission forcing itself on individuals, particularly those living in their own homes. (We discuss the Commission's powers in relation to vulnerable adults at risk in Chapter 19.)

89. The Commission does not currently have a statutory duty to visit prisons but it has done so in recent years. There is evidence that a significant number of prisoners have some degree of mental disorder, and such prisoners are of course a vulnerable group. We therefore believe that this should be established as one of the responsibilities of the Commission.

90. It is important that the Commission work closely with other bodies which visit the same establishments, including SHAS, the proposed Scottish Commission for the Regulation of Care and the Prisons Inspectorate. However, the means by which this should be done are better left to discussion and agreement between the agencies, rather than laid down in statute.

91. We believe that the powers of the Commission to inspect records relating to people with mental disorders should be broadened, to apply to community based mental health services, as well as hospitals, and that the current restriction to medical personnel of the power to view medical records should be removed.

Deficiency in care enquiries

92. The Commission has a duty to 'make enquiry into any case where it appears that there may be ill-treatment, deficiency in care or treatment, or improper detention of any person who may be suffering from mental disorder, or where the property of any such person may, by reason of mental disorder, be exposed to loss or damage'¹¹. Section 4 of the Act sets out formal powers which the Commission may exercise should it choose to hold such an enquiry, including the power to compel witnesses, and to require evidence to be given on oath. However, this power to hold a formal enquiry has never been exercised by the Commission since the 1984 Act was put in operation. Instead, it has preferred to conduct enquiries on a more informal basis.

93. The Commission holds around three or four major enquiries every year into possible deficiencies in care. These are reported to the Scottish Executive and or local health bodies or local authorities. In some cases, the enquiries are summarised in the Commission's Annual Report¹². Normally, the Commission instigates such enquiries at its own initiative, but on occasion they have been requested to undertake such an enquiry by Ministers¹³.

94. Such enquiries reflect the Commission's focus on the welfare of individuals. However, in most cases, the enquiry is retrospective in nature, in that any deficiency in care has already occurred, and there may be relatively little that can be done to improve the situation of the individual concerned. It is therefore considered important by the Commission that lessons are learned, to prevent similar deficiencies arising in the future.

95. There are some problems with the current legislation so far as this aim is concerned. The Commission has no formal power to publish the outcome of its enquiries. The enquiry into the care of Noel Ruddle, for example, was published by the Scottish Parliament. A summary in the Annual Report may not appear for some months, lessening the impact of the report.

96. There have also been difficulties regarding the extent to which the service user (or, in some cases, the victim of a crime by a mentally disordered person) should be told of the outcome of a deficiency in care enquiry. Some years ago, the Commission's practice was to interview professionals on a confidential basis, and to restrict circulation of its report to the Secretary of State and local agencies. This reflected the fact that the Act does not mention any duty, or even power, to report to service users. It was also felt desirable to encourage openness from professionals, who might be reluctant to admit shortcomings in their practice if these were likely to be made public.

97. More recently, the Commission has moved to a position where, in the normal course of events, the service user will be advised of the outcome of a deficiency in care enquiry. To date, this does not appear to have resulted in a loss of candour from witnesses.

98. We agree with the general presumption in favour of openness. In our second Consultation, we asked whether the Commission should have the power to publish its findings in deficiency in care enquiries. This was generally supported. The Commission pointed out that the issue of legal privilege would be an issue to be resolved. We believe it would be appropriate for the Commission's reports to have qualified privilege, which would prevent any legal liability for defamation, except where a lack of good faith could be shown.

99. Publishing reports also raises the issue of patient confidentiality. In most cases, where the Commission has chosen to publish a report, we anticipate that reports could be anonymised or consent could be obtained from the patient. We appreciate that this may not always be possible, particularly where the matter is already in the public domain. Be that as it may, we feel it is important that the Commission has the power to make known matters which require to be brought to public attention concerning the care of people with mental disorders.

Annual reports and other information

100. The Commission is required to publish a report on its activities every year, and to submit copies of the report to Scottish Ministers¹⁴.

101. The Annual Report contains a range of information, including statistical information, guidance and good practice advice, and details of the activities of the Commission during the year, and particular issues of concern.

102. Many people commented to us that the Commission's Annual Reports contained a great deal of very useful information. However, not everyone who might benefit from the information receives it. Also, much of the guidance may be of continuing relevance, but it can be hard for people to know that such guidance might be in an old Annual Report, or how to find it.

103. We believe that the Commission's role in providing information and guidance, and promoting good practice in relation to the Act, is one which should be strengthened. For example, a number of people mentioned the Commission's advice on restraint as an extremely useful document, but it has not, to our knowledge, been made widely available. It might assist in this aim if the Commission were to have a wider power to publish relevant materials, rather than focus most of its energies on the production of an Annual Report. As with the Code of Practice (see Chapter 36), arrangements could be made to allow anyone with an interest to have ready access to a complete and up to date set of the Commission's advice on any particular area of concern. We anticipate that this could be both in printed form and using information technology.

104. We also feel that many people would welcome a summary of the Annual Report, which should be accessible both in style and format, and should be widely distributed.

105. The main purpose of the materials produced by the Commission would be to assist people who use, or are affected by, the Mental Health Act. However, it might also be helpful if the work of the Commission itself were made more widely known. We were impressed by the amount of useful and important work carried out by the Commission, but also by the fact that many people were not aware of this work.

Complaints

Current arrangements

106. The Commission is not placed under a statutory obligation to deal with complaints relating to mental health care. Nevertheless, it does so as part of its general responsibility under s3 of the Act to protect the interests of people with mental disorder.

107. The Commission does not see itself as a primary complaints body. Both the NHS and social work departments of local authorities have formal complaints procedures. Most complaints made to the Commission are referred to local procedures for resolution- in 1998-9 the Commission dealt with 105 complaints, and this was done in 87 cases. The Commission will however often seek to assist complainants by forwarding complaints to the appropriate body and asking to be kept informed of the outcome.

108. The Commission may become directly involved with a complaint where complainants are dissatisfied with the outcome of local complaints procedures. This role is similar to that of the Health Service Commissioner (or 'NHS Ombudsman') who is prohibited, under the terms of the Health Service Commissioners Act 1993, from investigating matters within the remit of the Mental Welfare Commission. A Memorandum of Understanding has been entered into between the MWC and the NHS Ombudsman. In essence, this provides that the MWC will investigate the way in which complaints relating to a patient's treatment for mental disorder have been dealt with, and the Ombudsman deals with all other cases (which may of course relate to patients who happen to have a mental disorder). We understand that this Memorandum is currently not in the public domain.

109. In 1999, the Scottish Office published 'Revised Procedures for NHS Complaints'. This contains information about appropriate procedures for the investigation of complaints involving people with mental disorder, and asks that the Commission be informed of any significant complaints and their outcome.

110. No such arrangement is in place regarding complaints concerning local authorities, where presumably either the local government ombudsman or the Commission might investigate the way in which social work departments dealt with a complaint by a mental health service user. The Commission has identified this as a weakness in current arrangements.

111. In 1999, the Commission appointed a Complaints Officer. The Commission hopes that this will allow greater consistency in dealing with complaints, and a more proactive role for the Commission.

Issues arising

112. We agree that it would be wrong for the Commission to seek to be the first port of call for people with a complaint about mental health care. This would be very costly, and would undermine attempts to resolve complaints at a local level. However, we are conscious that many patients, particularly detained patients, may not find local complaints procedures easy to use, and may even fear victimisation for complaining. This is perhaps a broader issue than that of the role of the Commission, but highlights that the Commission may still, at the very least, need to guide those wishing to complain as to the procedure and encourage them to use it.

113. If the Commission is to continue in its current role, it may require increased powers. The Commission suggested to us that it should have clear powers to make public reports on its investigation of complaints which might identify the bodies complained against. It also suggested that there should be legislation, similar to the Health Service Commissioner's Acts 1993, to clarify its role in relation to complaints concerning local authorities and independent bodies.

114. On the other hand, there are arguments for changing the current position of having two separate bodies monitoring the handling of complaints under the NHS procedure. This can lead to confusion amongst complainants and local bodies, and may add to delay if it is not clear into which sphere of responsibility a complaint falls.

115. The justification for a separate role for the MWC is that it has greater expertise in issues concerning mental health care. On the other hand, the ombudsman may have greater expertise in the investigation of complaints, and may be better resourced to undertake such investigations. It may be more consistent with the aim of treating mental health care in the same manner as other health care if the same body dealt with all such complaints.

116. There may also be confusion between the various roles of the Commission. In particular, where a complaint indicates that there may be a case of deficiency in care, the Commission may choose, or even be under a duty, to investigate this, notwithstanding that the complaint has not been taken through local procedures.

117. In our second Consultation, we asked whether the monitoring of complaints about all types of health care should be dealt with by the same authority. Views were fairly evenly divided.

Conclusions

118. On balance, we feel that the formal responsibility to deal with the investigation of complaints about health care should rest with the body which has this as its core function, namely the NHS Ombudsman. We accept that there may be particular issues concerning mental health services which require to be considered, (although this could also be said about other specialist aspects of the Health Service). The best way to deal with this might be for the NHS Ombudsman to be placed under a formal responsibility to consult with the Commission where matters concerning mental health care arise.

119. In relation to local authorities, we would not propose that the Commission be situated within the formal complaints procedure, but it should of course have powers to investigate matters of concern, and to provide advice and guidance. This would include guidance to the Local Government Ombudsman, where appropriate.

120. In general then, where the Commission receives complaints it should consider these in relation to whether action needs to be taken in respect of an alleged deficiency in care, or whether there are ways in which the Commission's general advisory and guidance role in relation to the Act might help to resolve matters. Dealing with complaints directly would primarily be a matter for the normal complaints procedures of the relevant agencies, although the Commission may continue, as at present, to play a role in helping complaints to be taken forward. As the Commission suggested in its 1998-99 Annual Report, it could also play a valuable role in liaising with trusts, boards and local authorities to improve responses to complaints relevant to mental health services, and to promote more analysis of circumstances leading to such complaints.

Auditing the quality of mental health services

121. The Commission currently has a responsibility to bring matters concerning the welfare of people with mental disorders to the attention of Scottish Ministers, or to other bodies¹⁵. It may do this in relation to the exercise of various of its functions, including visits, reviews, and enquiries into deficiency in care. However, the basis on which it is expected to decide to draw matters to the attention of relevant bodies is not particularly clear. We considered whether there would be merit in giving the Commission a more specific responsibility to audit mental health care. In our second Consultation, we asked for views on such a responsibility, either in relation to the quality of mental health services generally, or in relation to the operation of, and principles underlying, the Mental Health Act in particular.

122. There was some support for the Commission to have a general responsibility to monitor care standards, but also opposition from a number of important organisations, including the Commission itself. It was pointed out that there already exist a number of organisations with responsibilities for monitoring the quality of mental health care. These include registration and inspection bodies, such as the proposed Scottish Commission for the Regulation of Care and SHAS, and others such as the Clinical Standards Board for Scotland, which has recently published draft standards in relation to schizophrenia. In addition, there are also local arrangements being developed for clinical governance. A statutory duty was recently introduced for every board and trust to put and keep in place arrangements for monitoring the quality of health care which it provides¹⁶.

123. We are satisfied that such a broad responsibility is not appropriate for the Commission. It would be extremely resource intensive, and would take the Commission into areas which are properly the concern of others. However, we do believe that it would be desirable for the Commission to have a formal responsibility to monitor the implementation of the Mental Health Act.

124. In many ways, this would be a logical development of work which the Commission currently undertakes. For example, it has investigated local policies on locked wards, and management of funds of legally incapable patients, and considered the extent to which formal policies on these matters are in fact implemented. This investigatory function would link with the functions we discuss above, of promoting the principles of the Act, and issuing advice and guidance as appropriate.

125. Of course, it would be important that there be close liaison between the Commission, in carrying out this role, and the range of other bodies mentioned above, to ensure that the standards they set for their respective purposes are complementary.

Powers of enforcement

126. Currently, the Commission has few powers to enforce any recommendations it makes, other than in relation to discharge. This has led to a perception by some people that the Commission is 'toothless'. We therefore asked in our second Consultation whether the Commission should be given greater powers of enforcement.

127. Some respondents strongly supported this, and suggested particular powers which might be relevant. The Royal College of General Practitioners considered the Commission could be given the power to suspend hospital managers, psychiatrists and nurses. The Scottish Users Network, among others, proposed that the Commission should be able to close services deemed to fall below standard and to impose financial penalties.

128. However others, including the Commission itself, felt that the responsibility for enforcing action lay with Ministers. The Commission pointed out that if, (as we recommend above), it also had a reporting role in relation to the Health and Social Care Committee, this might strengthen its power to achieve change.

129. Others suggested that publicity was one of the most effective weapons, and the powers we recommend above to publish reports in relation to visits and deficiency in care enquiries might have a powerful effect. (See paragraphs 84 and 95-99).

130. Although there are attractions in giving the Commission enforcement powers, we have decided it would not be appropriate to recommend this. To do so would cut across both democratic accountability to local authorities and Ministers, and other regulatory mechanisms, including professional bodies and inspection authorities. Should the Commission seek to enforce sanctions against on individual or organisation, it could well find itself involved in lengthy disputes and litigation.

131. We feel that the powers available to the Commission, which we outline above, are appropriate to its role. Where the principles of the Act, or its procedures, are not being met, it should offer guidance and advice. Where failures are serious, or repeated, it should be able to say so, and make recommendations for change.

132. The Commission should also be able to follow up any such recommendations, to ensure they have been heeded. Ultimately, it should have the power to draw the public and Parliament's attention to ongoing failings in the mental health system.

Statistical information

133. The Commission receives a great deal of important information regarding the operation of the Mental Health Act. This is published in its Annual Report, and can also be made use of by researchers. There are however gaps, since the information is essentially a by product of the statutory responsibilities to notify the Commission of various matters. For example, it receives no information regarding applications for detention which are withdrawn, or of what happens to patients who are discharged from detention. Current records do not allow for information such as the ethnic background, or even the clinical diagnosis, of patients subject to detention to be readily obtained.

134. Such information is of general interest, but is also important as a means of identifying ways in which the Act may not be working effectively.

135. We found it extremely difficult to obtain statistical information concerning many aspects of the working of the Act. We therefore believe that there should be a formal responsibility for such information to be gathered, and the Commission is well placed to obtain much of it.

Reporting of incidents

136. In the Commission's 1992/1993 Annual Report, it highlighted guidance to NHS bodies to report significant incidents and accidents affecting people with mental disorders to the Commission, in order to assist the Commission in exercising its protective function. This includes, for example, sudden deaths or attempted suicides. The Commission is seeking to develop similar reporting arrangements with local authorities and independent care providers.

137. We agree that the responsibilities in this area should be clarified, and should apply to all agencies who care for people with mental disorder.

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