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Mental Health Legislation In Scotland: Research Report
25/01/2001
Research published today has found that applications for patients' detention under mental health legislation are dealt with on a very tight timescale which can make it difficult for patients to arrange legal representation.
The research, which looks at how the Mental Health Act works in Scottish courts, was commissioned for the Millan Committee and carried out by the Scottish Executive's Central Research Unit. It has been made available simultaneously with the Millan Committee's report into the Act.
In particular, the research examined Section 18 orders which authorise doctors to detain patients for up to 6 months in a psychiatric hospital.
Welcoming the research, Minister for Justice Jim Wallace said:
"These reports illustrate how the current Scottish Mental Health Act has operated in practice in the courts. They show the challenges facing doctors and social workers who are trying to secure the best outcomes for their patients and clients.
"The research was seen by the Millan Committee which has been looking at whether there is a need to change the current law and has informed its work. It will also provide useful background information for the implementation of Guardianship under the new Adults with Incapacity (Scotland) Act 2000."
In addition to the very tight timescales for hearings, the research found other barriers to patients' full participation. They are seldom aware of their legal rights, and there is a lack of available legal expertise in this area in some parts of the country.
The research shows that around 1,000 detention orders are granted a year and a further 2,000 renewed after 6 months. In almost 90 per cent of the cases studied, the patient was already in hospital when the order was made. Almost all applications for detention are granted. Patients and their families rarely attend hearings and are usually not legally represented either.
Medical staff use detention orders mainly to ensure that patients are taking medication and, after this has been ascertained, detained patients are often released from hospital on Leave of Absence.
The literature review of UK and international data and research supports many of the findings of the CRU research and provides a wider context for understanding various related issues such as defining mental illness, community detention and patients' rights and ability to consent.
The research also looked at the current use of Guardianship Orders. It found that they are used four times more frequently than in 1992. They are used mainly with people over 70, primarily women and in the main with people with dementia. Most Guardianships were granted to Local Authorities rather than family members and were used to move the person into a nursing or residential home.
Around half of those subject to an order were said by Mental Health Officers to be able to communicate their wishes and feelings and to be aware of the order. As with detention orders, very few patients attended court but 40 per cent were legally represented.
BACKGROUND
- The Mental Health (Scotland) Act 1984 has been reviewed by the Millan Committee which publishes its report today. The section 18 study and literature review were commissioned to assist the Committee by providing information about the operation of Section 18 orders in the civil courts, and available research on mental health law generally.
- Section 18 orders authorise doctors to detain patients for up to 6 months in a psychiatric hospital. They can be renewed for a further 6 months and then annually. About 1000 orders are granted every year by the courts, while a further 2000 are renewed. Patients are entitled to be legally represented at the hearings and to attend court, although until April 2000, legal aid for these hearings was means-tested.
- Mental Health Act Guardianship will be replaced, from April 2002, by new Guardianship powers under the Adults with Incapacity (Scotland) Act. This research was commissioned to assist policy-makers by providing information about the current use of Guardianship.
- Guardianship gives the guardian 3 powers: to dictate where a person should live, to send them for medical treatment, education or training and to demand access to the person in their home. 126 Guardianships were granted between April 1998 and March 1999 and a further 140 orders were renewed. Patients are entitled to be legally represented at their Guardianship hearings and to attend court, although until April 2000, legal aid for these hearings was means-tested.
- The section 18 and Guardianship studies were undertaken by the Central Research Unit and two independent contractors. The study ran from July 1999 to January 2000. The studies made use of the database of orders kept by the Mental Welfare Commission and conducted a survey of local authority Mental Health Officers. Case records from 3 sheriff courts were analysed and interviews conducted with professionals, support groups and patients involved with mental health and Guardianship.
- Further copies of the Research Findings can be obtained from: Scottish Executive Central Research Unit
Room J1-0
Saughton House
Broomhouse Drive
EDINBURGH
EH11 3XA
or VQ address
Email: cru.admin@scotland.gov.uk
Web site: www.scotland.gov.uk/cru
Copies of the full research reports (priced £5) can be obtained from:
The Stationery Office Bookshop
71 Lothian Road
EDINBURGH
EH3 9AZ
Tel: 0131 228 4181
Fax: 0131 622 7017
Website: www.tsonline.co.uk/
News Release: SE0141/2001
25 Jan 2001