Response to the Scottish Government consultation future structure of the mental welfare commission

Introduction

Alzheimer Scotland welcomes the opportunity to respond to this consultation paper on the role and structure of the Mental Welfare Commission for Scotland (MWCS). Alzheimer Scotland is Scotland’s leading charity which aims to: represent the interests of people with dementia and their carers to policy makers; provide and promote the provision of high quality services and information; uphold the human rights of people with dementia and their carers.

Dementia is the term used to refer to a range of progressive neurological conditions, of which Alzheimer’s disease is the most common type. It is a complex illness which causes severe memory loss and gradual cognitive decline. It affects every aspect of the lives of those diagnosed (currently an estimated 69,000 in Scotland, rising to 127,000 over the next 20 years). It gradually affects the person’s ability to make some or all decisions about their health care, welfare and finances. It affects their ability to communicate, reason and act in their own interests. It severely compromises their ability to stand up for their own rights and leaves them vulnerable to neglect and abuse. People with dementia in Scotland represent over 60% of the whole adult population with a mental disorder who come under the protection of mental health legislation. We therefore have a very strong interest in the Public Services Reform (Scotland) Bill and the future role of the MWCS which we see as uniquely supporting the human rights of people with dementia under our comprehensive mental health laws.

Over the past 15 years Alzheimer Scotland has established a valuable working relationship with the MWCS. In addition to annual meetings to discuss matters of mutual concern, it has been responsive to issues raised with us by families and sometimes whistle blowers who wish to remain anonymous. The MWCS has always acted promptly in such cases. When it has become obvious that there is a critical mass of problems in relation a specific practice affecting the rights of individuals e.g. the use of restraints including covert medication, we have appreciated input to the consultation processes that the MWCS puts in place to ensure its good practice guides are well informed. The ability of the MWCS to draw on the expertise and experience of service user and carer organisations and those with specialist knowledge in the voluntary sector adds value to the work of the MWCS (and this is normally given at no cost to the MWCS). This collaborative approach to creating change, which includes the Principles Network, the Recovery Network, is influential in empowering service users and cares as well as professionals. The human rights base of the MWCS is unique and its approach to changing attitudes and culture within services and its ability to continue to work in this way must be preserved. We view it as entirely complementary to the work of the relevant scrutiny agencies.

Question 1

Do the protective functions and scrutiny and improvement functions of the MWCS in relation to ethical and legal practice, that is the current arrangements, work well together? If not, how should they be structured?

Yes. Our perspective is that all the activities of the MWCS, taken together, perform an integrated protective function, and like cogs in a wheel, need to operate together to be effective. An intended (and inevitable) consequence must be to improve services. As we have indicated in our introduction, the concept of ‘protective function’ is much wider than that of upholding the rights of specific individuals where these have been breached under mental health legislation. The MWCS has an important function in analysing why such breaches occur and investigating cases where there would appear to be wider implications for practice, service delivery systems and policy. Recommendations for improvements in any or all of these areas should inform the development of standards, and the performance assessment of the relevant scrutiny bodies. We consider that the reports to Government produced by the MWCS have proved to be effective in promoting service improvements. A good example in relation to our interests is the ‘Older and Wiser’ (2008) report from unannounced visits to NHS continuing care wards.

The MWCS has legal duties to monitor the operation of the Adults with Incapacity (Scotland) Act 2000 and the Mental Health (Care and Treatment) (Scotland) Act 2003. Whilst both cover people with dementia, the former is the legislation most used to protect the rights and safeguard the interests of people with dementia. Both Acts provide the legal and ethical framework governing any intervention in the life of someone who lacks capacity. This highly focused and complex is key to protecting adults with a mental disorder. The MWCS has developed a body of expertise over the years which it would be very hard to transfer elsewhere.

The MWCS performs an vital function in giving advice to individual lay people and professionals through its free-phone helpline. It is able to give unbiased legal and ethical advice in relation to mental health legislation.

Question 2

If you think that the MWCS’ current mix of functions does work well, do you think that the MWCs’ role could be combined with other bodies? For example, with one of the new health and social care scrutiny and improvement bodies (HIS and SCSWIS)?

We perceive difficulties with this for the following reasons. We believe that the strengths of the MWCS are that it is able to act in the interests of people with dementia and others with mental disorder wherever they may live, be it in hospital or community, and whether or not they are subject to compulsory measures. It is also the only body that has the power to investigate any agency involved with the care of a specific individual with a mental disorder, unprompted by a formal complaints procedure. In addition it is able to take a holistic view of the individual and a systems approach to an analysis of why things have gone wrong (unlike a complaints based approach which is limited), and report for the benefit of the wider community. It is very difficult to see how its functions could be combined with other bodies without loss of the independence it has in protecting the rights of vulnerable adults.

Because of the independence of the MWCS these investigation reports are unfettered by bias or conflicts of interest and taken seriously by people experiencing mental health difficulties, professionals and service managers. As stated above, it has a crucial function in relation to monitoring welfare guardianships and intervening with welfare attorneys in particular cases. The number of welfare guardianships has increased to over 1000 a year and 60% of these are for people with dementia. The number is likely to increase with our aging population. Many of these orders are given for an indefinite period and give full powers over the individual. As these are no automatic review of these it is crucial that the MWCS retains the power to monitor and visit.

Currently the MWCS has the power, through parliament, to make recommendations to government and we believe that it is important that this power is retained, remembering that the MWCS acts on the interests of those who face barriers to speaking out for themselves.

Question 3

How should the general improvement functions in respect of mental health and learning disability services be discharged, and how should the MWCS work with the body or bodies that carry out those functions?

The Commission, as an independent entity, is well placed to identify issues which may not be picked up by either of the other scrutiny bodies; also, issues of common concern may be identified which need to be acted on collectively. Either way, with good working relationships between the MWCS and the relevant scrutiny bodies, the potential exists to ensure issues are tackled in a strategically and comprehensively. A good example of such work is the joint report by the MWCS with the Care Commission ‘Remember I’m Still Me’. We do not believe that legislation is needed on the issue of joint working and collaboration.

Question 4

What processes and structures could be put in place to maintain the improvement in mental health and learning disability services in future, thinking in particular about the Caerar’s view that self-assessment and scrutiny is necessary in the early stages of developing and improving services?

Self-assessment should become a normal part of good practice to motivate services to improve, however as the Care Commission has found, services tend to assess themselves at a higher grade than the objective external assessor. External scrutiny is always going to have an important role in relation to monitoring service standards and not only at the early stage of improving services.

Future MWC Governance

Question 5

If the commissioners have a key role in respect of governance, what should their functions be in relation to visiting and protective functions of the MWSC? Should they change or stay the same?

Principles of modern governance require a separation of governance from operational functions to avoid any potential conflict of interests, and we would concur with this. We understand that the current commissioners are made by public appointment and we would expect this system to continue for future board members. We would also expect the composition of the board to reflect the range of expertise and experience that is relevant to the work of the Commission, including the service users, carers and voluntary organisations representing their interests.

Question 6

Should some Commissioners be both on the Board of the organisation and conduct visits, or should these functions be split with their being Commissioners who only sit on the Board and Commissioners who only conduct visits?

We think the roles should be split. However this should not be to devalue the role of part-time commissioners who are not on the board. Part-time commissioners have a range of expertise and experience which adds value to the body of competence that the MWCS needs to carry out its functions. We understand that at present part-time commissioners not only conduct visits but give their expertise as members of investigation teams, to specialist work groups and the development of good practice guides. It is important that, with any future changes, the MWCS has the resources to employ the right balance and volume of staff to carry out all of its activities.

Question 7

Are there other changes that we should consider in respect of the organisation (not the functions or powers) of the MWCS at this time?

None.