Mental health Legislation

The 2003 Act was a big step forward and embodies lots of good principles but it wasn’t perfect. Not enough people were writing Advance Statements or identifying Named Persons. The Tribunals were too formal and the whole system was being clogged up by cases that took a long time to resolve.

Prof. Jim McManus

Prof. Jim McManus was appointed to review the 2003 Act and suggest ways of improving it. The McManus Report was delivered in March 2009 and – after a period of consultation – a Mental Health Bill was introduced into Parliament in June 2014. Some of the changes include the following:

Advance Statements: will place a statutory duty on NHS boards and local authorities to promote the use of advance statements, and a duty on Health Boards to keep up to date Advance Statements in patients’ records.

Named Persons: If a patient hadn’t nominated a Named Person, relatives or carers could sometimes act as one but the new Bill might stop this as there may be occasions when a relative/carer isn’t the right person to act on a patient’s behalf.  Named Persons may be required to confirm acceptance of their role in writing.

Multiple Hearings: At present, if a doctor wants to keep treating someone after 28 days, a Compulsory Treatment Order hearing must be held within five days of a Short Term Detention Certificate expiring but this may be increased to ten days to give people more time to prepare and hopefully reduce the number of unnecessary hearings within the system.

Medical Reports: Under the 2003 Act, two medical reports are required before a Compulsory Treatment Order can be issued but – to streamline and speed up the system – this may be reduced to one medical report from an Approved Medical Practitioner plus information from the patient’s GP and a Mental Health Officer’s report.

The Mental Welfare Commission for Scotland wants to make sure that parents subject to compulsory mental health treatment can maintain good contact with their children.  It wants hospitals to provide child-friendly spaces and to explain mental illness in a way that children can understand.

Introduction

The Mental Health (Care and Treatment) (Scotland) Act came into effect in 2005 and describes how individuals with ‘mental disorders’ should be treated in hospitals and in the community.  The Acts defines ‘mental disorder’ as any mental illness, personality disorder, or learning disability and confirms:

– when you can be taken into hospital against your will
– when you can be given treatment against your will
– what rights you have in receiving care and treatment
– what safeguards are in place to protect your rights

Ten Key Principles
The Act is guided by Ten Key Principles and health professionals must respect these principles when providing treatment.

The Key Principles are:
– people with mental disorders enjoy the same rights and entitlements as those with other health needs (Non-discrimination)
– all powers under the act should be exercised without discrimination on grounds of physical disability, age, gender, sexual orientation, language, religion or national, ethnic, or social origin (Equality)
– service users should receive care and treatment in a manner that respects them as individuals and which respects their age, gender, sexual orientation, ethnic group, social, cultural and religious background (Respect for Diversity)
– when society compels an individual to accept treatment or care, it also obliges health and social care authorities to provide safe and appropriate services, including ongoing care after discharge (Reciprocity)
– wherever possible care, treatment and support should be provided to people without compulsion (Informal Care)
– service users should be heavily involved in all aspects of their care, assessment, treatment and support.  Their past and present wishes should be respected and Advance Statements must be respected.  Patients must be provided with information which supports them to be fully involved in decisions, and information should be provided in an easy to understand manner (Participation)
– those who care for service users should be respected for their experience. They should receive helpful information and their views must be respected (Respect for Carers)
– service users should receive care, treatment and support in the least invasive and least restrictive manner while taking account of other people’s safety (Least Restrictive Alternative)
– any treatment or support provided under the Act should produce a benefit for the service user that couldn’t be achieved except by intervention (Benefit)
– the welfare of children with mental disorders should be paramount in any interventions imposed under the Act (Child Welfare)

Compulsory Orders
The Act allows for people to be placed under three different types of compulsory order.

Emergency Detention
This allows someone to be detained in hospital for up to 72 hours in cases where hospital admission is urgently required, and will only occur if recommended by a doctor. Wherever possible, the doctor should also obtain the agreement of a mental health officer, the main purpose of this being to allow assessment of the person’s condition.

Short-term Detention
This allows a patient to be detained in hospital for up to 28 days to be assessed or treated. This will only take place if a psychiatrist recommends it, and the psychiatrist must obtain the agreement of a mental health officer who must meet the person first.

Compulsory Treatment Order (CTO)
This sets out conditions relating to a person’s care in order for them to receive treatment against their will. A CTO has to be approved by a Tribunal, and people have the right to legal representation and raise objections against the CTO at the Tribunal. A CTO lasts for six months and can be extended for a further six months and then for 12 months where necessary. A CTO can be based in a hospital or in the community and these conditions may change during the course of the CTO.  A mental health officer has to apply to the Tribunal, and the application must include two medical recommendations and a plan of care detailing the care and treatment proposed for the patient. The patient, the patient’s named person and the patient’s primary carer can raise objections at the Tribunal and are entitled to free legal representation.

These three powers can only be used when:

– the person has a diagnosed ‘mental disorder’
– medical treatment is available which could improve their condition
– there would be a significant risk to that person and/or others if medical treatment wasn’t provided,
– the patient’s ability to make decisions  about medical treatment is impaired due to their mental disorder.
– it is necessary to urgently detain the patient in hospital in order to provide necessary medical treatment, or determine what medical treatment should be provided for the mental disorder

Safeguards
The Act provides three safeguards to protect people’s rights. These include:

Advance Statements
People covered by the Act can make an Advance Statement setting out how they want to be treated if they become unwell and are unable to express their views clearly. Advance Statements must be respected when deciding on a person’s treatment.

Named Person
Anyone affected by the Act can choose a Named Person to support them and help protect their interests when powers under the Act are used. They are entitled to free legal representation at any Tribunal hearing.

The Mental Health Tribunal for Scotland
The Tribunal makes decisions on Compulsory Treatment Orders (CTOs) and Care Plans and has three members – a lawyer, a psychiatrist and a person with social care experience. The Tribunal aims to be fair, impartial and accessible and service users or carers are free to challenge CTOs.  Services users can make Advance Statements and the Tribunal must take these Statements into account.

People affected by the 2003 Act also have the right to independent advocacy to ensure their views are heard and respected.

Care Programme Approach
The Act also recommends a Care Programme Approach for treating mental disorders.  Everyone with a mental disorder should be involved in an assessment of their needs, and a plan should be drafted outlining their Care Package.  This Care Programme Approach (CPA) should identify the carer(s) involved, outline how they should be involved, and recognise the need for a carers’ assessment.

Click to print an Advance Statement Form