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National Mental Health Services Assessment: Final Report
2. LEGISLATION
2.1 RECENT HISTORY AND PROGRESS
2.1.1 Since the launch of the
Framework for Mental Health Services in Scotland
2 in 1997, NHS Boards, local authorities, the voluntary sector and others have been expected to work together with local service users and carers to
jointly design and agree mental health strategies to fit local needs. As part of this process the local partners were expected to agree funding responsibilities and to use the
Framework2 as an agreed template for service assessment and development.
2.1.2 This process (which, in short, was all about having local agreement on a costed, timetabled strategy for change) has progressed at different speeds across the country. A review in 1999
3 outlined some of the reasons behind the lack of overall progress.
2.1.3 There followed, in January 2000, a
Mental Health Summit in Edinburgh (an event led by Ministers) which called for accelerated and better coordinated implementation of the
Framework objectives and for the early development of comprehensive mental health services in keeping with the move toward community based care.
2.1.4 At the same time Ministers appointed the
Mental Health and Well Being Support Group which, during 2000-03, completed two rounds of visits to all NHS Board areas. The process involved meeting local representatives of service users and their carers, as well as the local authority, NHS and voluntary agency partners. A review of the Support Group findings in the published outcome reports and 3 annual reports shows that while Joint Planning structures had indeed been set up in all areas, their effectiveness varied widely. The reports also showed:
that despite 90% of mental health care being provided in primary care settings, joint local planning processes had generally been unsuccessful in setting up robust working arrangements with Local Health Care Cooperatives
great variability in the extent to which staff groups from all services were involved in a meaningful way in service planning and development
service users and their carers complained of 'consultation fatigue' and frustrations with the level of impact their contributions made
a lack of systematic and shared information on current and planned services and their effectiveness
a resistance to local devolution of budgets and control, leading to stagnation of service redesign initiatives and innovation
widespread shortages of skills in key professional groups, at all levels, leading to caution over change
2.2 THE NEW LEGISLATION
2.2.1 The Mental Health (Care and Treatment) (Scotland) Act 2003 (the new Act) represents the most radical change to mental health provision in Scotland for 40 years, and shows a shift towards a greater human rights perspective for those who are obliged to receive treatment against their will. The Millan Committee report
4 on the review of the current mental health legislation set out a number of principles that it considered should underpin any new mental health legislation. These are:
2.2.2 These principles informed the Scottish Executive's thinking while developing the new Act. Not all of the Millan principles could be fully expressed in terms of statutory duties or powers, but the new Act does contain a range of provisions that will have a significant and meaningful effect in regard to those principles.
2.2.3 In summary, under the new arrangements, short-term detentions will be initiated by a mental health officer, as well as a doctor who is experienced in helping people with a mental disorder. If neither is available emergency detentions by any doctor will still be possible. Relatives will no longer be asked to formally contribute to the process. Decisions about long term detention and treatment will not be made through the Sheriff Court as now, but by a Tribunal made up of a legal member (chair), a medical member (usually a psychiatrist) and a general member (someone with knowledge and understanding of care planning and mental health services).
2.2.4 For the first time, the new compulsory treatment orders may be community based as an alternative to hospital detention and from 2006 a patient will have the right to appeal against the level of security in which they are held. Service users will also have a greater say in their future care by making advanced statements and having the right to advocacy support.
2.2.5 The new Act forms one part of a framework of policy, legislation, guidance and initiatives that inform how we care for people with a mental disorder. In broad terms, the provisions in the new Act are primarily concerned with the care, protection and treatment of all service users with a mental disorder. It is designed to complement existing legislation and guidance to offer a broad framework designed to
protect and
improve the mental health and well-being and daily lives of those with a mental illness/disorder and give regard to their carers. Related legislation, health and social work policy and guidance are listed at
Annex 2.
The new arrangements
2.2.6 The Mental Health (Care and Treatment) (Scotland) Act 2003 (the new Act) includes a range of measures relating to the care and treatment of people with mental disorder which broadly fall under four headings:
principles, roles and responsibilities
compulsory powers
people with mental disorder within the criminal justice system
rights and safeguards
2.2.7 The new Act sets out principles under which the new provisions have to be delivered, including:
the present and past wishes and feelings of the patient
the views of the patient's named person, carer, guardian or welfare attorney
the importance of the patient participating as fully as possible
the importance of providing the maximum benefit to the patient
the importance of providing appropriate services to the patient
2.2.8 Principles are also set out relating to the
way in which the functions of the new Act must be discharged. For example, the functions are to be delivered in a way that:
involves the minimum restriction on the freedom of the patient that appears to be necessary in the circumstances
encourages equal opportunities
best secures their welfare (particularly if the patient is a child)
2.2.9 The new Act places further duties on those discharging functions under the act, including:
a duty to have regard to the Code of Practice on the Act, to be published by Scottish Ministers. (This duty does not apply to the Mental Welfare Commission for Scotland, the Mental Health Tribunal for Scotland, or any court.)
a duty to lessen any harm to child/parent relations, where relevant
subject to a number of safeguards, a duty to provide Scottish Ministers with relevant information (e.g. research)
- Roles and responsibilities
2.2.10 The new Act defines the nature, powers and duties of a number of organisations and individuals, including:
the nature, powers and duties of two organisations: the Mental Welfare Commission for Scotland, and the Mental Health Tribunal for Scotland
specific duties on NHS Boards and local authorities in relation to persons with mental disorder (in addition to their more general duties) and gives some corresponding powers:
duties on hospital managers in relation to a person who is subject to compulsory measures
duties and certain powers to Scottish Ministers
a number of special professional roles: approved medical practitioners, designated medical practitioners and mental health officers
provision for a Code of Practice on the new Act
Mental Welfare Commission for Scotland
2.2.11 The new Act also sets out provisions relating to continuation of the Mental Welfare Commission for Scotland. The Commission will have new duties to monitor the operation of the new Act and to promote best practice; specific powers and duties in relation to carrying out visits to patients; investigations; interviews; medical examinations; inspection of records; powers and duties to publish information and guidance; and power to give advice or bring matters to the attention of others in the mental health law system.
Mental Health Tribunal
2.2.12 The Mental Health Tribunal for Scotland ('the Tribunal') will be a new body, established by the new Act. The Tribunal will make decisions covering a wide range of situations - for example, on applications for a Compulsory Treatment Order. Given the nature of the decisions to be made, the Tribunal will require expertise in both mental health law and the provision of care and treatment to people with mental disorder.
2.2.13 NHS Boards (including The State Hospital) and local authorities are required, where practical, to provide accommodation where hearings can be held.
Special professional roles
2.2.14 The new Act defines some special professional roles that require a person to be appointed by the relevant body before they can discharge certain key functions under the legislation. These include mental health officers (MHOs) who will be required to play a significant role under the new provisions which extend their current role. Approved medical practitioners (AMPs) will authorise periods of short-term detention. NHS Boards will only be able to appoint doctors as AMPs when they meet certain requirements on qualifications, training and experience (to be specified by Scottish Ministers). The role of the responsible medical officer (RMO) and the approved medical practitioner designated by hospital managers for a particular patient is also defined, including various duties in relation to the ongoing review of compulsion.
NHS Boards
2.2.15 NHS Boards already have wide-ranging duties to provide services for people with mental disorder, mainly through the provisions of the National Health Service (Scotland) Act 1978. However, the new Act places further duties on NHS Boards. Specific provisions are included for NHS Boards to cover the needs of children and young people detained in hospital and also to provide inpatient care for mothers who have postnatal depression, in particular to enable them to be admitted with their babies into an appropriate environment. NHS Boards will also have a duty, in collaboration with local authorities, to ensure independent advocacy services for all persons with mental disorder in their area who request it. A further duty on NHS Boards will be that they appoint approved medical practitioners for their area.
Hospital managers
2.2.16 Hospital managers will have a number of general duties under the new Act in relation to a person subject to compulsory measures. In particular, they will have a duty to appoint a responsible medical officer (RMO) for a person with mental disorder. The RMO is always a consultant psychiatrist.
Local authorities
2.2.17 Local authorities already have a range of general duties to support people with a mental disorder, mainly set out in the Social Work (Scotland) Act 1968. Under the new Act further specific duties and corresponding powers will be placed on local authorities to provide services for people with a mental disorder. These include care and support services; services to promote well being and social development; and assistance with associated travel. Local authorities will also have a duty to inquire into the case of those with mental disorder where certain criteria arise - essentially, where the individual is at risk of harm. Local authorities will also be able to apply for a range of warrants (such as a warrant to enter premises) to allow them to carry out their inquiries.
2.2.18 Local authorities will be required to appoint sufficient mental health officers for their area and to designate a mental health officer to be responsible for an individual's case on particular occasions (such as a person being detained on a short-term order). The new Act amends the Education (Scotland) Act 1980 to confirm that local authorities have a duty to provide education for children who are subject to the new Act, or who are subject to the mental disorder provisions of the Criminal Procedure (Scotland) Act 1995.
Scottish Ministers
2.2.19 The Scottish Ministers have a number of general duties and powers under the new Act, including powers to make secondary legislation (such as Regulations) which will provide the detail of certain aspects of the new legislative framework. The Act places a duty on Scottish Ministers to consult and publish a Code of Practice on the Act to provide guidance on the new arrangements. This Code of Practice will be made available widely and will help professionals to adhere to the new Act.
Compulsory detention and treatment
2.2.20 The new Act comprehensively reforms and modernises the legal framework for compulsory detention and treatment. In doing so, it sets out clear criteria that must be met before compulsion can be authorised, as well as the detailed procedures that must be followed.
2.2.21 The new Act provides additional rights and increased safeguards for people needing mental health services. The new arrangements include:
a duty on local authorities to undertake an assessment of needs where certain conditions are met, and gives patients, their carers and their named persons the right to request an assessment of needs from the local authority or NHS Board
a right of access for all people with mental disorder to independent advocacy services and a duty on NHS Boards and local authorities to ensure availability and accessibility of advocacy services
the right for patients to nominate a named person to be kept informed of the patient's status in certain circumstances set out in the new Act and who may act on behalf of the patient, including making applications and appeals to the Tribunal
the right for patients to make an advance statement regarding how they would wish to be treated or not treated
the right for informal patients to apply to the Tribunal for an order requiring hospital managers to release patients held unlawfully
a framework of safeguards for different kinds of treatment, including neurosurgery for mental disorder and electro-convulsive therapy (ECT)
the right of appeal for patients (and others on their behalf) against detention in conditions of excessive security
2.2.22 The new Act provides for several forms of compulsion:
emergency detention (72 hours)
short-term detention (28 days - this may be extended)
Compulsory Treatment Orders (6 months - this may also be extended)
other powers in relation to entry to premises, removal and detention
2.2.23 The new provisions also substantially reform the law relating to people with mental disorder who enter the criminal justice system. The new Act amends the Criminal Procedure (Scotland) Act 1995 to give courts new options in how they deal with people with mental disorder. It provides new orders that a court may make:
2.2.24 A court will still be able to make:
2.2.25 The new Act retains Scottish Ministers' power to transfer a prisoner to hospital for treatment of a mental disorder, introduces the
Transfer for Treatment Direction; sets out how some of these new orders will be reviewed once made; and details procedures for the transfer of patients and the suspension of detention of patients subject to certain orders.
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