Scottish Government wants power to abolish it or limit its independence, without saying why

In a grave attack on Scotland’s most vulnerable citizens, the Scottish Government – despite assurances to the contrary earlier this year – continues to threaten vital independent safeguards for everyone with incapacity or mental health problems.

International human rights standards require a “competent and independent authority prescribed by domestic law”. That is the definition adopted by the UN General Assembly in 1992 for the protection of persons with mental illness. For half a century Scotland’s Mental Welfare Commission has been seen as a leading example of such an “independent authority”. In an astonishing attack earlier this year, the Scottish Government proposed to remove the essential element of independence, thus demoting Scotland from world leader to non-compliance.

The Government proposed to do that by combining the Commission with some of the very bodies from which it needed to stand apart, thus losing its independence not only in relation to those bodies, but also in dealing with all others with which it engages, and more importantly with the people whom it exists to protect and the professionals who must have trust and confidence in sharing often highly sensitive and confidential personal information. The independence of the Commission, and complete trust in the absolute integrity of that independence, is essential and must not be compromised.

Change of tack

The Scottish Government initially chose to threaten that independence directly. Despite the pleas of appalled voluntary and professional organisations, the Government initially refused to engage in meaningful consultation, or to halt its rush to introduce legislation, or even to reveal any credible motive. Then the Government did an apparent U-turn by undertaking to remove the commission from its proposed Public Services Reform Bill. But now, in an unprecedented move with wide constitutional implications, the Bill proposes powers to ministers, by order, to abolish the Commission, or to carry out its original threat to remove its independent status.

It also proposes similar powers in relation to other bodies at present carrying out important independent functions at arm's length from Government, such as the Accounts Commission, the Scottish Human Rights Commission, and the Charities Commission. The bill also proposes that the Government should be able to compromise the independence of the Mental Welfare Commission by directing it to carry out some functions jointly with other bodies.

In other words, the Government was forced to abandon its original intention to bring to the Scottish Parliament proposals to remove the independence of the Commission; but now proposes that ministerial order-making powers be extended far beyond what has hitherto been considered constitutionally proper, to authorise an even more drastic attack on a range of important independent safeguards, including the role of the Commission.

Unique role

That role is unique. It is to safeguard the welfare and rights of people made vulnerable by incapacity or mental illness. The starting-point for its protective function is always the individual. The Commission stands quite clearly apart from all the other bodies whose starting point is the provision of particular areas of service or care, and the monitoring and scrutiny of such provision. The Commission’s independence is essential to enable it to address robustly all issues affecting the individual in relation to all these and many other agencies, and – not infrequently – issues arising from gaps between them.

The Commission’s functions include visiting people subject to Mental Health and Incapacity Act régimes, visiting premises, and making enquiries, which can if necessary be formal enquiries similar to procedure in a court of law. The Commission has a range of responsibilities and powers in relation to people subject to compulsory measures under the Mental Health Act. It supplies second opinion doctors, and doctors to resolve disputes under the Incapacity Act. It also has roles of monitoring and promoting good practice under the Mental Health Act. A wealth of knowledge and experience is provided by over 20 commissioners from a wide range of professional and other relevant backgrounds, four of them full time and all of them appointed by the Queen. The independence of the Commission is essential to its function, and to the trust and respect which it has earned over the decades.

The Commission has existed for 50 years under its present name, and its predecessors for 100 years before that. Over the last 50 years mental health and incapacity law, the two main areas with which the Commission is concerned, have gone through prolonged and careful review, followed in each case by fundamental reform. The processes of reform involved wide-ranging and careful consultation, the building of consensus for necessary changes, and further openness and consultation in the legislative process. The Commission has remained the constant feature through these processes. Its responsibilities have been widened, but no-one has ever suggested any reason to change its core function as an independent body with protective functions focused upon the individual. In particular, it has always been accepted that the Commission’s independence is indispensable.

The current legislation governing the Commission is the Adults with Incapacity (Scotland) Act 2000, which was the first major legislation of the Scottish Parliament, and the Mental Health (Care and Treatment)(Scotland) Act 2003. Any alterations to current provisions of those statutes, such as those concerning the Commission, should be by the same procedure as the original legislation, namely by primary legislation brought before the Scottish Parliament, with similar processes of full consultation. It would be a constitutional outrage to replace the full parliamentary process with order-making powers for ministers, particularly those of an administration which commenced this whole process with a refusal either to consult or to reveal any credible motives for its attack on the Commission, and thus upon the most vulnerable section of society.

Not an option?

On 23 January 2009 the Government issued a brief “consultative letter” to a very limited circulation. Just 10 days later, at a meeting on 2 February 2009 with those “consultees”, the Government decreed that the essential independence of the Commission must be ended. “The status quo is not an option”, pronounced Ms Shona Robison, Minister for Public Health, and “time is short”. What was the previously undetected flaw in the Commission which required such fundamental change? She had no answer. The Government had lists of all usual consultees with an interest in such matters and a contribution to make, including relevant voluntary and professional organisations, and many others, who had always in the past been consulted on proposed changes. Why had the minister not communicated in any way with the great majority of them? She could not say. Would she consult them now? No she wouldn’t. Could she give any good reason for that haste? She mentioned only parliamentary procedure, which was not an answer, because it is the Government that initiated the procedure. She gave the impression not of a minister in charge of a process, but of a process in charge of a minister.

All that the minister would say was that she was determined to merge the Commission with one set of scrutiny bodies or another. The Commission is not a scrutiny body, and stands clearly apart from them in its nature and function. The Crerar Review considered the many scrutiny bodies which have emerged in rather piecemeal and unco-ordinated manner over the last 20 years, and made the case for simplifying and consolidating this structure. The Government accepted the Crerar recommendations and is actioning them. However these are bodies whose role is “to provide independent assurance that services are well-managed, safe and fit-for-purpose, and that public money is being used properly”. The Commission is not within that definition of scrutiny bodies; the Commission was not examined or criticised in that light by the Crerar Review, and has no place within that process.

The minister had jumped from burying the Commission within “health” scrutiny bodies to doing the same within “care” scrutiny bodies. Of course, to perform its functions it requires to be independent of both, it must not be seen by either side as operating from the other, and both public and professionals must have confidence that it stands robustly independent from all such service-based bodies. But for Ms Robison, apparently, less important than where it was shunted to lose its independence was that it should lose that independence. Could she point to a single advantage to the core functions of the Commission in such change? Apparently not.

Another 10 days after the meeting on 2 February 2009 the minister modified her stance. She “announced that the MWCS would not be included within the Public Services Reform (Scotland) Bill at introduction to allow for a period of reflection and consideration”, and proposed a process of engagement with stakeholders and review of the operation of the Commission. The quotation is taken from a Scottish Government circular as recent as 1 August 2009. Some discussion was initiated, but contrary to the minister’s assurance the Commission has been included in the Public Services Reform Bill, yet again with no consultation on the provisions affecting it and only a short period – over the holiday season – for submissions. The process of discussion promised by the minister will of course be largely bypassed if MSPs sanction the Government’s intention to take the powers proposed in the bill. Ominously, the Commission has had only an acting chairman since the last chairman left office in April 2008, no successor having yet been appointed.

Collaborative approach

Some 100,000 Scots at any one time are seriously affected by incapacity or mental illness. They are uniquely vulnerable. They may have medical treatment imposed without their consent. They may be deprived of their liberty without having committed any crime. They are at risk of discrimination, exploitation and abuse. They are at risk of their needs constantly sliding down the order of priorities. Many of them cannot protect themselves. That is why they need the protection of “a competent and independent authority”. To the minister, at the February meeting, their need for such independent protection was – in her words – a “detail”, and apparently an irksome one.

In previous reviews and reforms of incapacity and mental health law, ministers and the Scottish Parliament itself have been commended for their “openness, involvement of affected citizens, and responsiveness to their views”. During the passage of the Adult Support and Protection Bill in 2007, the then Deputy Minister for Health and Community Care was able to say that “the ability to improve legislation as we learn from experience and practice is one of the dividends of devolution”. Openness, and willingness to consult and listen, has built up a level of trust between the Parliament and those able to provide informed input. That trust has been breached.

In the case of the Commission, any compromise to its independence risks sacrificing trust at a much more important level. The Commission’s independence and adherence to best legal and ethical standards means that medical and other professionals have confidence in sharing with the Commission sensitive and confidential information in a way which better enables all concerned to safeguard vulnerable individuals. The trust which goes with that independence is also vital to the confidence and reassurance of those who go to the Commission for help and guidance, some 5,000 each year.

It seems that no one in the Government is willing to stand up and even attempt to demonstrate that the essential protective role of the Commission will be other than seriously damaged by the blindly doctrinaire intention to sacrifice its independence, whether in the form of the original proposals or the current bill. A decade ago an alliance of over 70 groups and organisations, including some 30 national organisations, with the combined strength of their memberships, campaigned successfully for fundamental reform of our incapacity law. All of Scotland’s main political parties committed to support their cause, and the reforms were the first major Act of the Scottish Parliament. Reform of mental health law was likewise driven by a consensus for change, and the wide consultations and careful deliberations of the Millan Committee.

This time, sadly, the Government appears to be driving together a similar consensus not to take another significant step forward, but to avert a huge and damaging step backwards. Until the bill appeared, it was hoped that it would not be necessary to publicise a threat that will cause distress and alarm to huge numbers of vulnerable people and their families and carers, compounded by the clear message that the Government no longer cares about their needs for effective independent protection of their welfare and rights.

The time has come for all individual MSPs to make it quite clear whether they will resist the major transfer of the legislative process from the Parliament to ministers, and in particular whether they insist that the Government adheres to its assurance in February, by removing from the Public Services Reform Bill all references to the Mental Welfare Commission for Scotland (and to those other bodies whose independent status is essential to their functions).

The Author
Adrian D Ward is a partner in Turnbull & Ward, Solicitors, Barrhead  
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