RESPONSE FROM:
The Royal College of Psychiatrists in Scotland
RESPONSE TO:
Scottish Government consultation on the delegation
of Local Authority Functions in relation to the
Mental Health (Care and Treatment) (Scotland) Act
2003 (“the 2003 Act”) and the Adults with
Incapacity (Scotland) Act 2000 (“the 2000 Act”)
DATE:
28 June 2013
The Royal College of Psychiatrists is the leading medical authority on mental health
in the United Kingdom and is the professional and educational organisation for
doctors specialising in psychiatry.
We are pleased to respond to this consultation. This consultation was prepared by
the Royal College of Psychiatrists in Scotland. For further information please
contact: Karen Addie on 0131 220 2910; e-mail kaddie@scotdiv.rcpsych.ac.uk
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Delegation of Local Authority Functions: Mental Health (Care and
Treatment) (Scotland) Act 2003 and Adults with Incapacity (Scotland) Act
2000.
This is the response of the Royal College of Psychiatrists in Scotland to the
Consultation on the delegation of Local Authority Mental Health Officer
functions in the Mental Health (Care and Treatment) (Scotland) Act 2003
and the delegation of Local Authority functions of the Adults with Incapacity
(Scotland) Act 2000 under the proposed Integration of Adult Health and
Social Care Bill.
Section 6 of the Bill states that the Scottish Ministers may by regulations
prescribe which powers;
(c)(i) must be delegated, other that in prescribed circumstances
(c)(ii) may be delegated, only in prescribed circumstances
(c)(iii) may not be delegated, in prescribed circumstances
The current consultation is concerning whether the Statutory duties
prescribed by the 2000 and 2003 Acts should be delegated from Local
Authorities to either a Health Board or an Integrated Joint Board.
Where Local Authorities and Health Boards reach agreement on the
integration of adult health and social care:
a) which of the 2003 Act MHO functions should it be possible to
delegate to Health Boards?;
Freedom and the right to consent, or refuse consent, to treatment would be
considered basic rights. These rights are not absolute and it is recognised
that there are situations where detention and care/treatment under
compulsory legislation is appropriate. The 2003 Act was designed to split
the decision making between a variety of independent bodies including
Health Boards, Local Authorities, the Mental Welfare Commission, Courts and
the Tribunal Service. This was intended as a system of checks and balances
intended to safeguard patients rights with the level of safeguards
proportionate to the duration and level of the intervention.
The aim of the Act was to clearly separate the Health Board and the Local
Authority Functions to provide a safeguard for patients.
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Any changes to the powers of delegation should therefore be avoided where
they concern limitation of rights under the 2000 Act or 2003 Act. Therefore
no core MHO functions or Local Authority functions related to guardianship
should be delegated to Health Boards (or Health and Social Care
Partnerships if these are regarded as independent entities) as it would be
undesirable for one organisation to operate without any independent
checks.
We are not convinced that the case for change has been made convincingly
as many of these duties are rarely exercised and might well be specialist
areas where the functions are exercised by a small number of individuals
even within integrated teams. Integration of Health and Local Authority
Services in Health & Social Care Partnerships (HSCP) works on the
assumption that many roles can be shared between different groups and
that this may lead to increased efficiency. It is important that the
safeguards designed in the 2003 Act are not regarded as inefficiencies rather
than appropriate checks and balances.
One of the perceived disadvantages of the separate MHO service that was
established in Highland was that MHOs, who may have previously held a
clinical case load, were employed to cover statutory duties only. There are
reports that this left several CMHTs short of Mental Health Social Work
provision. It is recognised that Mental Health Officers are key members of
Community Mental Health Services and have a great deal of valuable
expertise. We are not recommending that MHO’s withdraw from working
within integrated teams within HSCP but that they remain directly managed
by the Local Authorities to provide assurance that they would be
independent (and would also be seen by patients and the wider public to be
independent in the exercise of their duties).
It is noted in the consultation that there is no intention, at this time, to
include any of the core MHO functions. If it is not intended to delegate any
of the core functions then the Scottish Ministers do not need powers to pass
regulations. If it is felt that these powers are required, then the case for this
must be clearly set out.
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b) which of the 2003 Act MHO functions should not be permitted to
be delegated to Health Boards?;
No further functions should be permitted to be delegated. There are already
powers under the 2003 Act for Local Authorities to delegate appropriate
functions under the Act to Health Boards but there may need to be
amendments to allow delegation to Joint Integrated Boards as well as Health
Boards.
c) what are your reasons for your choices at a) and b) above?
The Act was developed following a period of widespread consultation and
careful thought. The Act should not be changed without equal thought being
given beforehand. We have concerns that the driver for change within this
paper is the integration agenda rather than the protection and safeguarding
of people who are vulnerable because of mental disorder or incapacity. The
requirements under the Act may fit uncomfortably with the drive for greater
efficiency of Public Services but great care should be taken before any of the
safeguards built into the 2003 Act are withdrawn.
Where Local Authorities and Health Boards are in agreement in the
context of integration of adult health and social care:
a) which of the 2000 Act Local Authority [MHO] functions should it
be possible to delegate to a Health Board?;
Local authorities have a number of functions under sections 10, 53, 57, 59
and 73 of the 2000 Act. These functions relate to the supervision of
guardians (s10), intervention orders (s53), application for guardianship
orders (s57), who may be appointed as a guardian (s59) and recall of
powers of guardianship (s73). As the legislation stands none of these
functions could be delegated to Health Boards or Joint Integrated Boards.
We are not convinced that an adequate case has been made for delegation
of these functions by Local Authorities. These functions are mainly related
to safeguards around guardianship and separation of powers would be
desirable in the same way as it is for the 2003 Act (see above). For example
appointment of the chief social work officer of the Local Authority as a
welfare guardian keeps the role of the guardian and the medical staff making
recommendations about treatment separate. It would be inappropriate to
delegate these roles to Joint Integrated Boards or Health Boards.
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b) which of the 2000 Act Local Authority functions should it be
possible to delegate to a Health Board?;
It would be reasonable for s10 (1)(d) to be delegated. This is the duty to
investigate any circumstances made known to them in which the personal
welfare of an adult seems to be at risk. This would be in keeping with the
delegation already described in the 2003 Act of the duty to inquire.
c) what are your reasons for your choices at a) and b) above?
The 2000 Act did not provide any powers for delegation but the 2003 Act
separated sections that could be delegated by Local Authorities (sections 25,
26, 27 and 33) from those that could not be delegated. Therefore it is clear
that the legislation considered which functions it was appropriate to delegate
and which functions it was inappropriate to delegate. There are powers to
delegate under the 2003 Act for the Local Authorities requirement to provide
care and support services (s25); services designed to promote wellbeing and
social development (s26), assistance with travel (s27) and the duty to
inquire (s33/34). This is not extended to inquiries under warrants (s35) and
we would see this type of inquiry as being part of core MHO duties that
should not be delegated.
It may be appropriate to add powers to delegate the duty to investigate any
circumstances made known to them in which the personal welfare of an
adult seems to be at risk (s10 (1)(d) of the 2000 Act). This should be in
keeping with the possible delegation already described in the 2003 Act of the
duty to inquire. Whilst it would be reasonable to delegate s10 (1)(d) of the
2000 Act the other functions should not be delegated as it would desirable
that separation of powers was maintained as this is an important safeguard
built into the Act.
Equality
Please tell us about any potential impacts, either positive or
negative, you feel any or all of the proposals in this consultation may
have on a particular group or groups of people.
These proposed changes may have an effect on vulnerable patients with a
mental disorder by removing safeguards within the Act. These safeguards
involved separation of functions between a variety of Public Bodies.
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