Malcolm comments on the Mental Welfare Commission & scrutiny of services
Public Services Reform: Healthcare Quality Improvement Malcolm Chisholm (Edinburgh North and Leith) (Lab):
During the past five years, the Scottish health council has played an important role in driving forward the patient focus and public involvement agenda by monitoring health boards' performance and engaging in a great deal of development work around that agenda. Over that time, it has been part of NHS Quality Improvement Scotland but has had a distinct identity and operational autonomy within that body. For example, it has its own chair, who is appointed by the minister, and its own national council.

I well remember the debates about the Scottish health council during the progress of the National Health Service Reform (Scotland) Bill in 2004, when many members of the then Health Committee, including Shona Robison, were unconvinced about placing the council within NHS QIS. I was adamant that it should have independence within NHS QIS, which is partly why I feel so strongly about the matter today.

Therefore, when the Public Services Reform (Scotland) Bill was introduced, I was surprised to see that it gave NHS QIS discretion over whether to continue to have a Scottish health council. I am a great admirer of NHS QIS's work - it has shown great leadership in clinical areas - but I do not believe that it should have control of the patient focus and public involvement agenda.

I am pleased that, following the debate in the committee, Shona Robison accepted that "may" in proposed new section 10Z10, which section 90 would insert into the National Health Service (Scotland) Act 1978, should become "must", albeit with an addendum. I will not go over that aspect, as that would simply replay the arguments that we had during stage 2.

I have one final question for the minister. Since the debate in the committee, I have become aware of some dispute about the meaning of proposed new section 10Z10(2)(b). The chair of the Scottish health council has always become a member of the board of NHS QIS, but I ask the minister to confirm that the cabinet secretary will still have the freedom to appoint the best person to that position irrespective of whether he or she is already a member of health improvement Scotland at the time that the post is advertised.

I move amendment 47.
Public Services Reform: The Mental Welfare Commisision & pay negotiations Malcolm Chisholm:
... It was regrettable that the amendments on the Mental Welfare Commission were introduced so late that the provisions could not be subject to stage 1 scrutiny. However, having said that, I welcome the various changes that the minister has proposed, the most substantive of which will come forward this afternoon.

Amendment 49, in my name, relates to charging for advice. It is helpful that the bill will contain an explicit power for the Mental Welfare Commission to give advice, but I share the concerns that others have expressed that the commission is also to be given a power to charge for its services.

The commission's advice and information line is widely used by health professionals, social workers, service users and carers. Research by the commission shows that the service is highly valued. Therefore, it would be a matter of great concern if people were inhibited from calling the commission because they were concerned that they might be charged a fee. It should be clear that the commission's services are free at the point of delivery.

Amendment 76, in the name of Derek Brownlee, repeats concerns that I raised at stage 2. As he indicated, we have since had a meeting with the commission, with which I have also had further discussions. We should bear in mind the fact that the commission is content with the Government's proposals, as Derek Brownlee acknowledged, because they represent a description of the work that the commission actually does at present.

However, the question for the minister is: if the commission is not to monitor the operation of the whole of the 2003 act, who will monitor the other parts of it? For example, at the Equal Opportunities Committee meeting on Tuesday, issues were raised about the duties of local authorities in terms of sections 25 to 31 of that act. It would be helpful if the minister could say something about that in her speech.

I commend amendment 49 to the Parliament...

... I support the amendments that Dave Whitton has lodged, because of my experience of the existing pay and negotiating system. I am sure that I am not the only member whose constituents have been annoyed and frustrated by protracted negotiations that have led to long delays before pay settlements were agreed. In one recent example, people had to wait for three years to get the pay that they deserved.

The proposals in Dave Whitton's amendments would streamline the pay process and avoid the time-consuming and expensive charade of local negotiations on matters that are really decided in the centre. It was absurd that John Swinney objected to these amendments in the Finance Committee on the ground that they would involve the Government. The Government is involved up to its neck in the current approach to these negotiations, which is precisely why they are so time consuming, costly and inefficient.

The objective of the amendments is very much in keeping with the Government's wish to streamline government and make it more efficient. The suggested approach would reduce costs and bureaucracy and help to deliver better public

...I welcome the Scottish Government's amendments to include people with mental health problems and carers in the membership of the Mental Welfare Commission, and the provision that commission visitors must include people with mental health problems and carers of those with mental health problems. The amendments follow a debate on an amendment that I lodged to that effect at stage 2. The Scottish Government's amendments will bring an inclusive approach, and the experience of such members will be extremely valuable in helping the commission to carry out its functions.

However, mental health organisations have several concerns about the current wording of proposed new subparagraph 2D(d) of schedule 1 to the Mental Health (Care and Treatment) (Scotland) Act 2003 - on page 160 of the bill - which relates to the removal of commission members. The wording in question is that ministers can remove a member if

"the member is otherwise unfit or unable to discharge the functions of a member."

Mental health organisations have made the case that that could be seen as stigmatising people with a mental health problem as being unable to carry out the functions of a member.

Given that mental health can fluctuate, people who have been mentally unwell previously might be concerned that if their condition deteriorated they would be removed from office. That could also discourage people who have had mental health problems from becoming a member of the commission or a visitor. The threat of dismissal on health grounds could also cause members or visitors who become mentally unwell to hide their condition and not seek help. Deeming someone "unfit" is a loose and subjective definition, not to mention a loaded term. The suggested alternative wording in my amendment 98 is that a member could be removed if they

"breached the terms and conditions of the member's appointment".

That is a much fairer approach.

I hear the concerns that the minister expressed, but ways of dealing with the difficulties that she spoke about could be built into the wording of the terms and conditions of the member's appointment.

It would be preferable to do that specifically for the Mental Welfare Commission, rather than run the risks that I highlighted, which might apply, given that there will be people with mental health problems on the commission and acting as visitors.
Public Services Reform Bill Malcolm Chisholm:
The debate is certainly the end of the beginning, and not just for the reason that Derek Brownlee gave, which was that public service reform will be a major theme of the next few years, but because regulations will assume a new importance under the bill. I will not go over the debates about part 2 - I hope that there might not be too many regulations made under it - but there have not been many comments about how the rest of the bill depends to a new extent on regulation. I will concentrate on part 4.

I regret that parts 4 and 5 have not in general attracted more discussion and amendment. To an extent, that is because members have a great deal of confidence in the existing bodies that those parts deal with - the Social Work Inspection Agency and the Scottish Commission for the Regulation of Care, which will turn into social care and social work improvement Scotland, and Quality Improvement Scotland, which will turn into healthcare improvement Scotland. I pay tribute to their work. However, there are significant shifts in the inspection regime - for SCSWIS in particular - that merit discussion. I hope that we will have further discussion when the regulations come before the Parliament.

I said in committee that we all accept the principle of a move towards risk-based inspection, but the detail of that merits more scrutiny. In committee, I raised the issue of the extent to which self-evaluation is beginning to take over from inspection. I had an amendment passed at stage 2 that I hope will modify that process to some extent. Inspection has to be reasserted as a key part of the scrutiny regime. There will be real dangers if we move too much towards self-evaluation.

The second issue that I want to raise, which should also be discussed when regulations are laid, is to do with the timing and frequency of inspections. Some members in the chamber - certainly the Minister for Public Health and Sport - will remember that nine years ago a major feature of debate about the Regulation of Care (Scotland) Bill was that there should be two inspections a year for all 24-hour services.

That has disappeared from the new legislative regime without any discussion whatever. People might have different views on that - they might see it as being part of risk-based inspection - but it has served us well for nine years. When the regulations are introduced, we should think carefully and decide whether there is merit in having regular inspections as well as additional inspections for services that are in difficulty. We will need to pay particularly close attention to the regulations under section 47 when they are introduced.

The regulations under section 97, which pertain to joint inspection, will also be important. There is a particular concern, which I raised in the stage 1 debate, about access to medical records. I know that there will be work and consultation on that, but we need to look seriously at the British Medical Association's suggestion that there should be such access only with consent and that, if consent is not given, there should be anonymisation.
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