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MENTAL HEALTH (CARE AND TREATMENT) (SCOTLAND) ACT 2003 TRANSITIONAL TRAINING GUIDE INTRODUCTORY TRAINING FOR MENTAL HEALTH OFFICERS AND OTHER PRACTITIONERS

1. The wider context

The old Mental Health (Scotland) Act 1984 (the 1984 Act) was devised in an age when the concept of community care was in its infancy and psychiatric hospitals were still the major locus of care and treatment for almost anyone who had a serious mental disorder. As such, the 1984 Act contained an implicit imbalance in favour of medical considerations of mental disorder, which most practitioners would now recognise must co-exist with its social dimensions. It also became law in a period when we were less able to address individual human rights in legislation, both through the courts and in practice. These are not damning indictments of the 1980s. They are mere observations of the stage we were at in a process towards greater equality, fairness and choice in service delivery.

In this context, the 1984 Act seems to have outgrown its usefulness. It was out of step with the individual opportunities brought by various social movements that have given voice to those who use services and the legislative focus drawn by various pieces of legislation such as the Human Rights Act 1998. Community care had brought with it an ever-sharper concept of consumer choice and participation in services, which the 1984 Act had not anticipated. These, combined with technological advances in psycho pharmacy and the evolution of the social policy surrounding community care, meant that the hospital was no longer the centre of the universe in terms of Mental Health Services.

The process of devising the Mental Health (Care and Treatment) (Scotland) Act 2003 (the 2003 Act), has been lengthy and meticulous. The Millan Committee's careful review and consultation was scrutinised and debated, leading to the largest legislative undertaking of the Scottish Parliament to-date and the most extensive overhaul in Mental Health legislation in 43 years (Scottish Executive, 2001). ¹ We now stand in the middle of the implementation process, of which these materials are but one small facet.

There is much to be excited about in the implementation of the 2003 Act. It provides a broad revision of the terms and conditions under which anyone may be compelled by law to receive care and/or treatment because of mental disorder. It extends rights and protections to such individuals. In order to achieve this, it sets out a body of overarching principles which will give substance to and frame the rights of those subject to compulsion and those who care for and support them. These principles are binding upon all those charged with formal functions under the Act. This is a major forward step as it gives concrete shape to that which we used to refer to as 'the spirit of the Act' in the 1984 Act. In terms of rights, it is far easier to interpret and challenge concrete principles than it is to address an amorphous spirit.

The 2003 Act makes clear the conditions under which a person may be compelled to receive care or treatment and the processes by which this may happen. In this, the MHO has a greatly enhanced role, from which many implications flow for their managers and their employing authorities. If this seems daunting, we would remind you that the expanded role is here in large part because MHOs themselves have argued for decades to have such a role, often assuming a more proactive role which the Code of Practice advocated but which had not been enshrined in legislation. This has been evident in the active role MHOs have taken in respect of assessing for consent to detention on an emergency and short-term basis, taking this burden from relatives and nearest relatives in the process. In this sense the 2003 Act attempts to formally redress the sharing of the authority to take compulsory measures and to spread it more evenly between those with medical expertise and those with skills in managing the social consequences of mental disorder.

One main aim of the revised structures within which compulsion may take place is a system in which Emergency Detention may become the exception. It is further hoped that those Emergency Detentions that do go ahead without MHO consent will be confined to a small proportion of that exception.

The 2003 Act creates the Mental Health Tribunal for Scotland and launches a Tribunal system to replace the Sheriff Court as the body for granting most applications and hearing most appeals. It is hoped that this will answer criticisms that the Sheriff Court is too adversarial a setting in which to examine the impact of a person's mental health. In the composition of Tribunals, the scrutiny of applications and appeals will be made by medical, legal and other general members who have expertise in relation to knowledge and experience of mental health law, practice and services, rather than by a Sheriff.

Most of the functions of the nearest relative will be replaced by an expanded role given to the 'named person', a person nominated by the patient him or herself. This is one of the numerous ways in which increased choice and opportunity to participate will work in tandem with increased rights. Other facets of this dynamic include the duty to provide anyone with a mental disorder with access to 'independent advocacy services'.

This voice, choice and rights dynamic is also enhanced by the inclusion of 'the advance statement'. This provides an opportunity for the patient to determine, in writing, their care and treatment wishes while they still retain capacity, so that these wishes may be taken into account should mental disorder erode that capacity.

The local authority has greatly expanded duties to provide services in support of people with mental disorder in their area. It also has clearer duties to make inquiries into suspected deficiencies in the care, treatment and welfare of people with mental disorder.

All of these matters have to be understood in association with the Principles, which will be introduced to you in greater detail in this Reader and explored in depth in the following materials. The object of the entire exercise is to give you grounding in an Act, which should enhance practice and make it fit for a new era.

This Reader is the first in the series of materials produced by the Scottish Executive for the induction of Mental Health Officers and other practitioners into the 2003 Act. It is to be used in conjunction with the attached case studies in the first day of the five day training event. For MHOs, this is the first of five days of training in the 2003 Act. It is to be used in sequence with Reader 2 (about Emergency and Short-term Detention and related issues), 3 (multidisciplinary training on Compulsory Treatment Orders to which psychiatric and general practitioner colleagues should be invited) and 4 (on SCRs and Criminal Procedures). The material has a related Trainer's Guide to facilitate implementation of the training. Finally, by way of transitional materials, the Scottish Executive is making available guidance packs for local authority and Health Service Managers and a briefing paper for local authority elected members.

These transitional materials are principally targeted upon MHOs in acknowledgement of their greatly expanded role under the 2003 Act. This does not preclude other interested parties from opting into parts of the training as they see relevant. In fact, Reader 1 and the related study session are intended to be welcoming of multidisciplinary participants, as Reader 3 is welcoming of medical colleagues. However, it means that the materials are written to an assumed level of knowledge, practice skills and consideration of values both in relation to the 1984 Act and in the understanding of mental disorder. This assumed level is the standard at which assessment is set for the Scottish Social Services Council's approved Mental Health Award. It includes a working understanding of related legislation in general and the Adults with Incapacity (Scotland) Act 2000 (the 2000 Act) in particular. It also extends to the general nature and purpose of the 2003 Act, the history of the reform of the 1984 Act out of the Millan Committee's report and the background to implementing the 2003 Act, such as the significance of the scheduled implementation date.

This Reader is intended as a general introduction to some key sections of the 2003 Act such as those dealing with the underpinning principles. It is also designed to include a general overview of other matters such as the role of the named person and the status of advance statements. This may be of general relevance to a range of practitioners and will set the scene for more detailed discussions of such issues as powers and duties in relation to compulsion, in subsequent readers for MHOs.

None of the material in this sequence of readers is intended to interpret the 2003 Act in any way that might anticipate the case by case interpretation that will develop out of Tribunal hearings and practice. It is offered as a means of familiarising the practitioner with the salient points of the Act and, with the aid of the training events, to help them to think themselves into practice situations which require use of the Act.

The Reader is not a Code of Practice. However, the Draft Codes of Practice for the Act are constant points of reference in these materials. ² Neither is Reader 1 intended to replicate other material that has been produced by the Scottish Executive and others to enable people to begin thinking about the Act. Finally, the Reader is not designed as a substitute for reading the legislation in reference to actual practice situations.

• To facilitate understanding of key sections of the 2003 Act that will be of common interest to a range of practitioners.

• To give a general understanding of and overview of the 2003 Act, such that practitioners will have a working basis for their practice.

• To help MHOs engage with subsequent transitional training materials in more detailed examination of the 2003 Act as it is relevant to the MHO role.

The last two aims may involve MHOs in a degree of seemingly repetitive reading following the general overview in Reader 1 and the revisiting of some of these issues in subsequent material. This is not intended to frustrate the MHO reader. It is intended to facilitate a deeper understanding of crucial issues by revision.

2. The Principles

The 2003 Act indicates the significance accorded to its principles by introducing them before any other matters in Section 1. The principles require some discussion, as some of them may appear rather obscure on first reading.

Principles have become a feature of social welfare legislation in Scotland since the Children (Scotland) Act 1995. Most significantly, many MHOs will be acquainted with the principles of the Adults with Incapacity (Scotland) Act 2000. With the older generation of legislation such as the 1984 Act, we used to speak in terms of 'the spirit of the Act', meaning the essence of it, or the broad intention inherent in the design of the Act. The spirit of an Act changes with shifts in social attitudes, while the broad intention behind the design of the Act cannot change. Principles more clearly articulate the essence of a piece of legislation, particularly the essence of the legislation in regard to its intended recipients.

However, principles are also much more than an attempt to advise those who use legislation of how it should be used in regard to those who are subject to it. They are part of the law and therefore they impose duties upon specific people to mediate their actions with regard to the principles. Therefore, anything that is done under legislation containing principles will be at best unlawful, and potentially open to legal challenge if not done in a manner that is in keeping with the principles.

There are significant differences between the principles of the 2000 Act and 2003 Act. There are significantly more principles in the 2003 Act. They appear to be more complicated in content and in the way they are set down. Consequently there is a need to spend some time breaking them down and re-ordering them. The principles require inter-relating because, while they appear on the page as separate items, in practice they must inter-lock like the reconstructed pieces of a jigsaw puzzle.

If inter-linkage of the principles is one theme that we would like you to be aware of as you read the following section, another is the reliance upon interdisciplinary working that best adherence to the principles demands. This theme is not restricted to the principles. It is a basic tenet of the entire Act.

Before we go on to look at the principles in any detail, it may be helpful to read them in abbreviated form. However, please remember that this list, broadly taken from the Scottish Executives 'An Introduction to the Mental Health (Care and Treatment) (Scotland) Act 2003', is not the list of principles as they occur in section 1 of the Act. It is an aide memoir or synopsis and therefore, it is risky to use it as a source. We would advise you to consider the full principles against any given situation, as we do in the discussion below. Please also note that, while we have numbered the principles in this abbreviated format, this should not be taken to mean that they are being ranked in any hierarchy. It would be difficult to argue that any one principle has a higher authority than any other one.

The principles place a requirement on those people who have what we have called a formal role in discharging any function under the Act, to have regard for:

1. The present and past wishes and feelings of the patient;
2. In so far as is practicable, the views of the patient's named person, carer and any guardian or welfare attorney;
3. The importance of the patient participating as fully as possible in the discharge of the function;
4. The importance of providing information and support for the patient, in the form that is most likely to be understood, to enable the patient to participate;
5. The importance of the range of options available in the patient's case;
6. The importance of providing the maximum benefit to the patient;
7. The importance of the patient's abilities, background and characteristics, including age, sex, sexual orientation, religious persuasion, racial origin, cultural and linguistic background and membership of any ethnic group;
8. The importance of providing appropriate services and continuing care to the patient;
9. The needs and circumstances of the patient's carer, providing such information as might be needed to assist in the care of the patient; and
10. The function must be discharged in a manner that involves the minimum restriction on the freedom of the patient that appears to be necessary in the circumstances, encourages equal opportunities and if the patient is a child (under 18 years old) best secures his or her welfare.

You will notice that we replicate this list with the case studies attached to subsequent Readers of the series.

One complicating factor that may give rise to confusion is that, unlike the 2000 Act, which imposes a duty to have regard to the principles upon anyone discharging a function by virtue of the Act, the 2003 Act specifies a list of people who may have functions under the Act but upon whom the main body of principles is not binding.

Before examining lists of people upon whom the functions are binding and otherwise, it is worth noting what is meant by 'discharging' in relation to a function. Section 1 (11) states that 'discharging, in relation to a power, includes a reference to exercising the power by taking no action .' For example, in considering giving consent to detention, an MHO may be discharging their function under this part of the Act by withholding consent.

The list of people who, in the discharge of their functions, are exempt from the main body of the principles appears in section 1(7):

a) The patient;
b) The patient's named person;
c) The patient's primary carer;
d) The person providing independent advocacy services to the patient;
e) The patient's legal representative;
f) A curator ad litem appointed by the Tribunal ³;
g) A guardian; or
h) A welfare attorney of the patient .

These people all hold something in common in regard to their functions. They could all be described as informal in the following sense. The person is either:

• A patient him/herself (and it would be ridiculous to impose the principles upon actions that the patient commits in regard to him/herself);

• In the case of (c), the patient has an informal or familial relationship to the person, or the patient has exercised choice in selecting this person as a carr;

• The person has been selected by the patient to represent his or her interests, as in for example the case of (d) or (e); and

• The person, being a proxy, has been appointed through a legislative process to Act in the patient's interests in circumstances where she/he may lack capacity to do so, as in the case of (g) or (h) ⁴.

If the people listed in (a) to (h) above are removed from the equation, those who remain all share formal functions under the Act. While not a definitive list, those not mentioned in section 1(7) would include:

• Scottish Ministers;

• Mental Welfare Commission;

• Tribunal;

• Local Authority;

• Health Board;

• NHS trust;

• MHO;

• RMO;

• GP;

• Nurse; and

• Police Constable.

In this regard, those from this list carry formality in their functions in respect of their

authority to participate in processes that may detain or impose conditions upon the patient, thereby restricting their freedom. For the purpose of this discussion we will call them formal agents.

As we stated above, formal agents are bound to discharge functions under the Act in respect of all the principles, the implication being that informal agents are exempt from what we have called the main body of the principles.

These are contained in sections 1(3) to 1(6) and in section 2, in relation to the welfare of children. Section 1(3)(a) and (b) echo section 1(4)(a) to (c) of the 2000 Act, with some variation. In discharging a function under the Act, any formal agent shall have regard to:

a) The present and past wishes and feelings of the patient which are relevant to the discharge of the function. [Section 1(8) requires that these wishes and feelings must be ascertained in so far as they can, by any means of communication (much as in the 2000 Act), if need be, by means of human or mechanical aid, whether of an interpretative nature or otherwise]; and

b) The views of:

i. The patient's named person ⁵;
ii. Any carer of the patient ⁶;
iii. Any guardian of the patient; and
iv. Any welfare attorney of the patient, which are relevant to the discharge of the function.

Section 1(9) inserts 'The person '… (This person being a formal agent, as we have called them)… 'Need not have regard to the views '…of those listed in (b) above…. ' in so far as it is unreasonable or impracticable to do so .'

The Act requires the formal agent to have regard for the importance of the patient participating as fully as possible in the discharging of the function (section 1(3)(c)). This statement is of great significance as it is the beginning of a theme that is developed in the Act, which the patient is no longer to be construed as a passive recipient of compulsion. The Act requires its formal agents to develop a relationship with the patient such that she/he is encouraged to actively participate in the process and in decision making around it. This may sound odd at first, when one considers that the function may be that of compelling the patient to do something that she/he really does not want to do, such as remaining in hospital, taking unwanted medication in the community or other factors that curtail liberty. However, the fact that the patient's participation is required is suggestive of the broader base of rights afforded to patients under the 2003 Act. For example, this principle lays the foundations upon which the Act enables patients to make 'advance statements ' about their care and treatment.

In section 1(3)(d), formal agents must have regard for the importance of providing information and support to the patient to enable his or her participation in the discharge of the function. This requirement is given out of an awareness that rights are of little value if they are not accompanied by the where with all to access them. For this reason, section 1(10) strengthens the need to provide information with a requirement that this information must be given in 'the form that is most likely to be understood by the patient'. The implications of this requirement extend beyond considerations of giving information in written and/or verbal format. For example, the complicated information to enable the patient to participate in the process of his or her own detention in hospital has to be communicated in a way that the patient understands. Use of non-legalistic language, without jargon-laden terminology, communicated at the patient's pace of understanding are all considerations here. This must also extend to the use of translators and interpreters, sign language and other diverse means of communication, such as the patient may require.

In making decisions about how best to discharge a function, for example, as a nurse considering how best to implement a Short-term Detention ⁷, section 1(3)(e) requires you to have regard to the 'range of options available in the patient's case'. This should lead you to consider each situation broadly and to avoid using a one solution approach. In a minority of situations, detention may be the only option available, but there will still be a range of options in relation to the circumstances of detention.

To further illustrate this point with an example, a lone mother is living with her baby daughter. She is distressed, acutely psychotic, out of control and has little insight. She is potentially at risk of coming to physical harm and injuring the child and it may be unlikely that she is able to agree that she is ill and should be in hospital for assessment or treatment.

It is commonly understood that MHOs are expected to exhaust a range of options before determining that consent to detention is the best course of action. However, the example offered here is intended to suggest a situation of little leeway in this regard. Detention may be the only option available under section 1(3)(e). Yet, while consent is sought in respect of this woman alone, a subsequent section (278) requires consideration to be given to the parent-child relationship. These complexities are then brought into the frame of thinking about the range of options available. Section 1(3)(e) in conjunction with section 278 forces the multidisciplinary team, including the MHO, hospital managers and administrators to consider the range of options there are likely to 'mitigate the impairment or diminution'… of 'personal relations…or direct contact between that person and the child'? (Section 278(1)(b)(i) and 278(2))

To complicate matters, we suggested earlier that each principle has a bearing upon the others. It is already necessary to consider the range of options available

(1(3)(e)) in conjunction with the wishes and feelings of the patient, (section 1(3)(a)), the views of all those others (1(3)(b)), the requirement to enable the patient to participate as fully as possible in the decisions about her own detention (1(3)(c)) and what is the best arrangement for the baby. At the same time you must consider how best to communicate information and how best to give support to enable this process.

Section 1(3)(f) requires regard to be given to provision of the maximum benefit to the patient. This means that however a function is discharged by a formal agent, the outcome must not be targeted on issues of convenience to the system or on concern for others. It must be intended to achieve its 'maximum benefi t' in respect of the patient alone. That is not to say that consideration of others cannot be brought into the frame. For example, assuming the woman discussed above has been a very caring and dedicated mother up to the escalation of her illness, it could not reasonably be seen as benefit to her that her child was exposed to any risk.

The next principle, contained in 1(3)(g) requires that, unless justified in the circumstances, there is a need to ensure that the patient 'is not treated in a way that is less favourable than the way in which a person who is not a patient might be treated in a comparable situation'. In regard to the above example, 1(3)(g) imposes a requirement that this woman is treated in no lesser way than an informal patient with puerperal psychosis would be, solely because she is unable to agree to care and treatment on an informal basis. Section 1(3)(g) also refers to broader sets of generalities, for example, that this patient should not be treated any differently just because she has a mental disorder. In so far as it is possible to meet this requirement in this regard while fulfilling the broader purpose of the Act, she should be treated no differently from a patient who has physical health problems

Section 1(3)(h) lists the patient's abilities and background characteristics that must be taken into account in discharging any function under the Act. These include 'without prejudice to that generality:

• Age;

• Sex ;

• Sexual orientation;

• Religious persuasion;

• Racial origin;

• Cultural and linguistic background; and

• Membership of any ethnic group.

The term 'without prejudice to that generality' implies that the above list is not all-inclusive. For example, the background characteristic of 'political belief ' is not included in it. Were it significant to take account of such a belief in the discharge of any function, to fail to do so would be mean that you were exercising prejudice against the generality of the term 'background characteristics'.

Section 1(4) requires that any formal agent must discharge their function in a manner 'that involves the minimum restriction on the freedom of the patient that is necessary in the circumstances'. This requirement is a clear acknowledgement of our Human Rights under the Articles of European Convention. For example, Article 5 guarantees a right to liberty and security of person; Article 6, the right to a fair trial in the determining of civil rights and obligations and in relation to criminal procedures, or Article 8, the right to respect for privacy and family life.

Section 1(6) requires that any formal agent discharging a function by virtue of an Emergency or Short-term Detention order or a Compulsory Treatment Order or Compulsion Order ⁸, 'shall have regard to the importance of the provision of appropriate services to the person who is, or has been, subject to the certificate or order…including…the provision of continuing care when the person is no longer subject to the certificate or order'. In terms of the multidisciplinary team in hospital, this may relate to where the patient is detained, how he or she is conveyed to detention, what services are offered in the hospital etc. Given that this relates to continuing care as well and that Compulsory Treatment Orders and Compulsion Orders may be implemented in the community, this may have wide implications for community-based services and for formal discharges from hospital into the community.

This principle has particular importance as it is one of the few places in the Act in which Millan's principle of 'reciprocity' is reflected. (The other is in relation to 'recorded matters' set by the Tribunal in relation to CTOs) By reciprocity Millan intended to embed a reciprocal arrangement in legislation, stating -

"Where society imposes an obligation on an individual to comply with a programme of treatment and care, it should impose a parallel obligation on the health and social care authorities to provide safe and appropriate services, including on-going care following discharge from compulsion " (Scottish Executive, 2001, page 19).

In flagging up the importance of this principle it is important to acknowledge that it must extend to the care and treatment offered to the patient after discharge from compulsory provision. However, it may be over-optimistic to hope that resource implications will not dilute Millan's original intention. Advocates, Tribunals, service users, named persons, carers and even professionals exercising functions under the Act may all play a role in promoting this aspect of the Act.

Section 1(5) imposes a duty on a formal agent to have regard to the needs and circumstances of any carer and the importance of providing information to the carer to assist in caring for the patient. The exceptions to this are:

• Where it is not practicable to do so; and

• In respect of making decisions about medical treatment.

This section has great significance as, for the first time in Scotland, it brings to Mental Health law a specific regard for the welfare of children. It does so, recognising the particular vulnerability of children and the double jeopardy of experiencing mental disorder and being a child, where most acute Mental Health Services are designed for adults.

A child is defined as 'a patient who is under the age of 18', because Millan made a strong argument as to the vulnerability of 16 to 18 year olds (Scottish Executive, 2001, pp 224-228). The substance of section 2 is that, in relation to all we have discussed above in respect of section 1, a formal agent will 'discharge the function in the manner that best secures the welfare of the child'.

Consideration of the welfare of children also relates to several other parts of the Act such as section 278 (discussed above) and section 23.

Specifically, section 278 relates to a child or a person with parental responsibilities who is subject to measures authorised by the Act (detention and compulsion etc). In this case, every person (formal agent or otherwise) who has functions by virtue of the Act is required to take reasonable and practicable steps to minimise harm to the relationship and to contact between the child and person with parental responsibilities.

Section 23 imposes a duty on any Health Board to provide services appropriate to the needs of children and young people detained in, or informally admitted to hospital for treatment of a mental disorder. This section addresses Millan's concern about the inappropriate services generally available to children and young people on acute admission to psychiatric hospital. Millan expressed the view that it is entirely inappropriate for children to be admitted to adult psychiatric wards. For a more in-depth discussion of this matter we refer you to the Local Authority and Health Service Managers' Guide in this sequence.

Section 3(3) provides a list that gives shape to what we have called formal agents: the Scottish Ministers, the Mental Welfare Commission, a local authority, a Health Board, a Special Health Board, an NHS trust, the managers of a hospital, an MHO, an RMO, a GP or a nurse.

Section 3(2) requires that these persons discharge any function 'in a manner that encourages equal opportunities and in particular the observance of the equal opportunity requirements.' 'Equal opportunities' and 'equal opportunity requirements' refer to a list of legislation given in section L2 of Part II of Schedule 5 to the Scotland Act 1998. This is:

• Equal Pay Act 1970;

• Sex Discrimination Act 1975;

• Race Relations Act 1976; and

• Disability Discrimination Act 1995.

Amongst others, social workers will understand this legislation to be broadly anti-discriminatory and that section 3 gives a legal orientation outside the 2003 Act. This re-enforces those aspects of the principles that require formal agents not to discriminate on grounds of race, gender or disability and to ensure equality of opportunity in the face of difference.

3. The definition of mental disorder

It is useful to contrast the definitions of mental disorder in the 1984 Act and the 2003 Act. Section 1 of the 1984 Act defined mental disorder as 'mental illness including personality disorder (as added by the Mental Health (Public Safety and Appeals) (Scotland) Act 1999) or mental handicap however caused or manifested.' The person the 2003 Act generally refers to as 'the patient', (the subject of the various functions under the Act), must have a mental disorder as defined in section 328.

Section 328(1) of the 2003 Act defines mental disorder as 'any:

a) Mental illness;
b) Personality disorder; or
c) Learning disability.

however caused or manifested…'

Of note here is the separate category given to personality disorder, as opposed to the sub-category of mental illness accorded it in the 1984 Act. This implies that personality disorder is a mental disorder in its own right. Also worthy of note is the replacement of the term 'mental handicap', which has now acquired stigmatising connotations, with the more forward thinking term 'learning disability'.

The 1984 Act set out the following attributes which alone could not be construed as constituting a mental disorder, 'promiscuity or other immoral conduct, sexual deviancy or dependence on alcohol or drugs'. The 2003 Act extends this list to bring in other significant considerations:

a) Sexual orientation;
b) Sexual deviancy;
c) Transsexualism;
d) Transvestism;
e) Dependence on, or use of alcohol or drugs;
f) Behaviour that causes, or is likely to cause, harassment, alarm or distress to any other person; and
g) Acting as no prudent person would act.

Clearly (a) to (g) are intended to extend protection to certain people who may not conform to traditional and cultural norms. In deviating from the norm, some people exhibiting these characteristics have historically been at risk of being labelled as mentally disordered:

• Because of lack of conformity to narrow sexual norms and ideas about gender specific behaviour;

• By virtue of behaviours that may result from drinking too much alcohol or taking various prescribed or non-prescribed drugs habitually or on a one-off basis;

• By virtue of behaviour that may be described as having high nuisance value; and

• By virtue of eccentricity, unconventionality or imprudence.

While the principles give and protect rights of mentally disordered people, these exclusions from the definition of mental disorder protect the rights of other vulnerable people not to be construed as having mental disorder (for example the right to freedom of expression Article 10 of the European Convention of Human Rights).

It is worth considering the strong relationship between certain behaviours that might be categorised as symptomatic of personality disorder. In considering a person who relies heavily upon alcohol and drugs and acts in a way that is alarming, distressing and inconsiderate to others and without prudent consideration for the consequences, there is nothing to say that such a person might not have a personality disorder. Such a person would also have to have other characteristics upon which personality disorder is clearly diagnosable. The Act retains thus an unarticulated definition of mental disorder, leaving the precise definition of the term to the case by case judgement of medical practitioners and to the decision-making authority of the Tribunal.

The definition of medical treatment has implications at almost every point of reference to the powers which contain authority to detain or impose treatment. The definition is found in section 329, which usefully deals with the specific meanings given to key terms used in the Act. Under the heading 'medical treatment' section 329 gives the following interpretation: 'medical treatment means treatment for mental disorder and… includes':

a) Nursing;
b) Care;
c) Psychological intervention;
d) Habilitation (including education, and training in work, social and independent living skills); and
e) Rehabilitation...' .

The point here is that the authority to provide medical treatment alone covers a wide range of interventions. Part 16 of the Act deals with the regulation of specific forms of treatment (such as psychosurgery, ECT, artificial nutrition and provision of medicines) by compulsion. We will not discuss this in any detail here. However, it is discussed in Reader 3 of this series. Full discussion of it is also to be found in the Code of Practice.

4. A general overview of the Act

Discussion about the principles will already have imparted a flavour of the very different regard that this Act has for the rights of patients. Also, in the title of this Act, the words 'care and treatment' suggest that it is about more than just treatment by compulsion. In 1984 the focus was on treatment alone and the central location of treatment was hospital. The 2003 Act has regard for the provision of care (whether by compulsion or otherwise) as well as treatment. It locates formal and informal care and treatment outside hospital as much as it does within hospital.

The 2003 Act expands the duties of the Mental Welfare Commission (the Commission) to monitor operation of the Act, to report on its operation and bring matters to the attention of the Scottish Ministers, to give advice to bodies such as Health Boards and local authorities, to publish information and guidance, to visit patients, to inspect records and to make investigations, for example where a patient may be unlawfully detained or subject to ill-treatment or neglect. Section 5 gives the Commission a general duty to promote best practice in relation to the operation of the Act, including observance of the principles set out in part 1.

Health Boards have new duties to compile and maintain a list of Approved Medical Practitioners (AMP), which replaces the function of the section 20 list under the 1984 Act. Along with the duty under section 23, to provide facilities sufficient to the needs of children and young persons, Health Boards also have duties under section 24, to provide services and accommodation for mothers with post-natal depression and their children, provided the child is less than one year old, in the care of the mother and not likely to be endangered by the mother. While section 24 allows Health Boards to collaborate with each other on this provision, this is not the case in section 23 regarding provision for children.

Local authorities have greatly expanded duties to provide or secure provision of a wide range of services, care and support services for people both in and out of hospital (section 25) and services designed to promote wellbeing and social development (section 26). Section 30 requires local authorities to co-operate with Health Boards, Special Health Boards, NHS Trusts and voluntary organisations in pursuit of these provisions. Section 31 requires Health Boards, Special Health Boards, NHS Trusts, and Voluntary Organisations to co-operate with local authorities in pursuit of these provisions.

The complexities of time-limited appointment and re-appointment of MHOs, training and conditions of appointment and sufficiency of numbers of MHOs in relation to the task (section 32) are discussed in the Reader 2, relating to the second training session for MHOs.

Section 33 imposes important duties on the local authority to make inquiries where a person over the age of 16 appears to be subject to ill-treatment, neglect or deficiency in care or treatment, or may be suffering from loss or damage to property, or, living alone or without care is unable to look after him/herself or his or her property or finances. This duty is subject to the proviso that the person is not in hospital and that he or she has a mental disorder. It also extends to making inquiries where, because of mental disorder, the safety of some other person is at risk.

Section 34 requires co-operation between the local authority and the Commission, Health Board, Public Guardian, NHS Trust, and the Scottish Commission for the Regulation of Care in making these inquiries.

These sections are significant because they form the basis upon which the Act introduces the first occurring measure of compulsion, warrants of entry to premises in furtherance of inquiries under section 33. It is important to note that warrants of entry are more complicated in the 2003 Act than they were under the 1984 Act.

There are two variants of warrant of entry under the 2003 Act. That discussed below under section 35 and that under section 292. The section 292 warrant is a more general one that may be applied for by anyone authorised to carry out a function under the Act, for example, any person authorised to provide community care services under a Compulsory Treatment Order. It is obtainable upon application with sworn evidence to a Sheriff or Justice of the Peace that the authorised person is unable to obtain entry to premises and it authorises that person, any constable or any MHO to gain entry. It also allows removal of the patient to a place of safety for up to 72 hours.

The section 35 warrant is far more specific in its application. It is a means to carry out an inquiry, where access to the subject of the inquiry has been thwarted. The MHO alone may apply to a Sheriff or J.P. and the MHO clearly has the lead role in the process. It is also important to note that under section 35 there are three separate warrants which may be applied for:

• Section 35 (1) to gain entry;

• Section 35(4) to obtain medical examination without consent, which also authorises Detention of the subject, only for a period of 3 hours (section 35(5)), in order to enable the medical examination; and

• Section 35(7) which authorises access to medical records.

In summary, the order in which the Act is set out up to this point highlights the importance of the principles, set out in sections 1 to 3, in relation to all else that follows. The Commission has important duties to promote best practice through the principles and to make investigations. Health Boards and local authorities have duties to provide certain services and the local authority alone has duties to make inquiries in respect of people with mental disorder outside hospital; the duty to make investigation inside hospital falling within the Commission's remit and responsibilities.

Co-operation in provision and investigation underpins interagency and interdisciplinary working. Where necessary, an MHO may apply for a warrant to enforce entry to premises in pursuit of an investigation (section 35(1)). Section 35 makes provision for two further powers obtainable by application for specific warrants. A warrant granted under section 35(4) allows for the imposition of a 3-hour detention period to enable medical examination. This may be seen to pave the way to examination for section 36, Emergency Detention Certificate or section 44, Short-term Detention Certificate. The other warrant obtainable, under section 35(7), is one that requires any person withholding medical records of the patient to make them available to a medical practitioner.

Stepping outside the numerical sequence of the Act, section 297 creates an authority comparable to section 118 of the 1984 Act. It allows a police constable to remove any person suspected of having a mental disorder from a public place and conveying them to a place of safety for up to 24 hours only, to enable a medical examination. Section 299 is the nurse's holding power that allows a nurse of a prescribed class to detain a patient who is already informally in hospital, for up to 2 hours, to enable a medical examination. There are some specific changes in timing compared to the old Act.

One of the major changes that this Act brings is the replacement of the Sheriff Court with the Tribunal (the short name for Mental Health Tribunal for Scotland). This provides a new forum for making a wide range of decisions such as approving applications for Compulsory Treatment Orders and hearing many appeals. The Tribunal will operate within rules and procedure made by Scottish Ministers. It will appoint people drawn from three areas of expertise: medical practitioners, legally qualified professionals and a group of 'general members'. General members will be drawn broadly from interested parties such as social workers, nurses, carers and service users with sufficient relevant knowledge and experience.

A Tribunal hearing will be presided over by a panel comprised of 3 people, one medical, one legal and one general member. Decisions of Tribunals will be carried by agreement of at least two of the three Tribunal members, with the implication that the Tribunal member from the legal panel will ensure the correct application of the law. Appeals against Tribunal decisions will be heard by the Sheriff Principle or the Court of Session. ⁹

Section 250 gives provision for 'the named person'. This is a new role created by the Act in support of the patient. It replaces, generally, the functions of the nearest relative in the 1984 Act. Instead of the patient having to accept the first occurring person from the list of nearest relatives in the 1984 Act, the patient may identify the person she/he chooses to appoint as named person. Safeguards to this process are as follows:

1. The patient must be over the age of 16, as must the nominated named person;
2. The patient must sign a 'nomination', proposing someone as his or her named person;
3. She/he must have the capacity to understand the implications of nominating someone to be his or her named person. The definition of incapacity in respect of this understanding is the same as the definition of incapacity given in the 2000 Act;
4. The nomination must be countersigned by a 'prescribed person', a class of person prescribed by regulations. The implication is that the prescribed person will be able to gauge the capacity of the patient to nominate his or her named person; and
5. The proposed named person must agree to the nomination.

Thereafter the named person will remain so, even after the patient loses capacity. If, for example, the patient became unwell, with a paranoid illness, delusions of which focussed upon the named person, there would be no grounds upon which the patient could change his named person. However, the MHO has a role under sections 255 and 257, where either there is no named person, or it appears to the MHO that the person designated as named person is inappropriate to that role. In these cases the MHO may apply to the Tribunal to have another person appointed as named person. Similarly, section 256 gives a broad range of people ¹⁰ authority to apply to the Tribunal for the appointment of a new named person, where it appears that the patient does not have a named person or the nominated named person is inappropriate.

1. The patient may, however, change his or her named person subject to the safeguards mentioned above, including the agreement of the newly nominated named person and the counter-signature of a prescribed person.
2 .If there is no named person for a patient and she/he is already incapable of nominating one, the primary carer will be appointed as named person until the patient has capacity, or until the MHO is able to exercise the duties under section 255 (as mentioned above). This is provided the primary carer is over the age of 16.
3. Functions and duties relating to the named person include:
4. The medical practitioner must have regard for the views of the named person, in so far as practicable, before a certificate of Short-term Detention is granted. Note that this consultation is very different from the giving of consent.
5. Consent both for Emergency and Short-term Detention can be given only by an MHO.
6. She/he must be given notification of changes in status, from informal to formal, from Emergency to Short-term or to detention under a Compulsory Treatment Order (CTO) or Compulsion Order (CO), for example. Under section 260, the named person also has a right to a range of information made available by the hospital managers to the patient upon detention, including information about rights and access to independent advocacy services and information in written form to refresh his or her understanding of the detention.
7. She/he must receive a copy of the information given to the patient upon detention or compulsion of a CTO, or CO.
8. She/he may make applications to the Tribunal on the patient's behalf.
9. She/he may make representations to the Tribunal.
10. She/he may lead or give evidence.
11. She/he may request an assessment of needs by a local authority or NHS Board.

In this regard, it is important to note that there is no duty upon the named person to Act in the patient's interests or in accordance with the patient's wishes. There is a marked contrast with the provision of independent advocacy ( see 4.7 below).

1.1 This is a service made available specifically to facilitate statement of the patient's views and wishes as she/he would have them stated in that situation. Advocacy facilitates the patient's voice. There is no such expectation of the role of the named person. However, if a patient has chosen carefully in the nomination of his or her named person, the named person should be able to act in a way that reflects best interests.

Good understanding of the role, function and authority of the named person and of the role of advocate is very important for a range of people, not least the MHO, Approved Medical Practitioner, GP, hospital managers and administrators and nursing staff. In discharging functions under the Act, such formal agents are bound by the principles, while the named person and advocate are not.

Footnote 7 suggested that these orders are respectively approximate to Section 24, 26 and 18 of the 1984 Act. While exact comparison may be misleading, it is helpful to approach the measures of the 2003 Act by comparing and contrasting them with the provisions of the 1984 Act.

The 2003 Act sets out means by which a patient may be formally detained in hospital, Emergency Detention, Short-term Detention and Compulsory Treatment Orders (CTO). The latter is much more than the equivalent to the 1984 Act's section 18. It carries authority to detain in hospital, to enforce treatment in the community and to compel the patient in other ways, for example to reside at a specified place, to receive certain services or to allow certain people access.

Those familiar with sections 2, 3 and 4 of the English and Welsh Mental Health Act 1983 will have a working model of processes of detention whereby each means of detention has its own purpose (for assessment, for treatment and for emergency situations respectively). Further more, unlike sections 24 and 26, the Short-term 28 day Order in England and Wales is not dependent upon the 72 hour Emergency Order. This is now also the case under the 2003 Act:

The Emergency Detention Certificate (section 36) authorises detention for up to 72 hours duration and is for use in emergency situations. It is the shortest detention, with the simplest application and, because of its nature, the least number of rights for the patient. Like section 24, it carries no authority to enforce medical treatment in its own right. However, there is provision in Part 16 of the Act for the giving of medical treatment without consent in situations of urgency, where it may save life, prevent serious deterioration, alleviate suffering, prevent violence or prevent danger to others.

Like section 24, Emergency Detention is non-renewable. However, as with the old section 24, one could be subject to two Emergency Detentions separated by only a very short period of time. Because of its relative lack of protective rights for the patient, the Draft Code of Practice advises that its use should be restricted to situations of urgency, and that non-urgent situations should be dealt with through the Short-term (28 day) certificate if the patient does not require either a protracted period of compulsion or the enforcement of a more complex package of measures as afforded by a CTO.

Emergency Detention may be granted by any medical practitioner, not necessarily an AMP. Wherever practicable, it requires the consent of an MHO, and again the expanded role of the MHO is evident. No other person has authority to consent. For example, while the named person may be the replacement function for the nearest relative, the named person has no authority to consent here, any more than they do in the case of the 28 day Short-term Detention. Furthermore, where the medical practitioner is unable to obtain the consent of an MHO, she/he must give notice of the reasons for this impracticality to the managers of the hospital in which the patient will be detained. Following admission under an Emergency Detention Certificate, the patient must be examined by an Approved Medical Practitioner as soon as practicable.

A Short-Term Detention Certificate (section 44), authorises an interim period of assessment and/or treatment, in situations where the urgent contingency of an emergency is not present and the situation can wait for the presence of an AMP and an MHO. Note that no certificate for Short-Term Detention may be granted without the consent of an MHO. This point will be discussed at length, along with the conditions for Emergency and Short-term Detentions, in the Reader that accompanies the second training session for MHOs.

Duration of Short-term Detention is up to 28 days and is non-renewable. It may be invoked in continuance of an Emergency Detention but the Emergency Detention is automatically revoked once the Short-term Detention is granted. It does carry authority to give medical treatment in accordance with Part 16 of the Act.

With the consent of an MHO, Short-term Detention may be extended in circumstances akin to section 26A, inserted into the 1984 Act by the Mental Health (Detention) (Scotland) Act 1991. These circumstances are that, because of a change in the condition of the patient, an application for a CTO is necessitated and no such application has been made, nor is there time to do so before the expiry of the Short-term Detention.

The section 63 Compulsory Treatment Order is made by application by an MHO to the Tribunal. It requires two 'Mental Health Reports' by medical practitioners. ¹¹ Unless one of the medical recommendations is made by the patient's general practitioner, both must be made by AMPs. The application, along with the medical recommendations (Mental Health Reports), must be accompanied by a report (MHO Report) and a Proposed Care Plan by the MHO. These matters will be discussed in detail in the Reader 3.

If approved by a Tribunal, the CTO lasts for up to 6 months. It may contain authority to detain the patient in hospital for treatment. It may authorise treatment in the community. Indeed there are up to eight compulsory measures that the Tribunal may authorise in an order (section 66).

These are:

1. Detention in a specific hospital;
2. Giving of treatment in accordance with Part 16 of the Act;
3. Requirement to attend specified places for treatment;
4. Requirement to attend specified places for receipt of community care or other services;
5. Requirement to reside at a specific place;
6. Requirement to allow the MHO, RMO or any other person responsible for providing care and treatment services to visit;
7. Requirement to obtain approval from the MHO for any proposed change of address;
8. Requirement to inform the MHO of intention to change address; and
9. Through any of this range of measures, aspects of the care plan may be enforced where compliance with them cannot be guaranteed.

A Tribunal exercises wide powers to approve none, all or part of the CTO, or to vary the requirements proposed in the application. Once granted, the CTO is subject to mandatory review periods in which the reviewing Responsible Medical Officer must consult with the MHO among others. The six month order may be varied or extended by application to the Tribunal. Application for variation or extension is made by the RMO in consultation with the MHO and others. As with section 18 of the 1984 Act, extensions are for six months in the first instance, and thereafter annually.

There are a number of ways that a court may, as a result of criminal procedures, make orders that result in detention in hospital or compulsion in the community. These are orders that are made under the Criminal Procedure (Scotland) Act 1995 as amended by the 2003 Act. They are complicated beyond the means of this introduction and you are directed to the fourth Reader in this series, should you require exploring them in detail.

A Sheriff or High Court may make a 28-day Assessment Order. This may happen where a person appears to have a mental disorder and has been charged with an offence but no disposal has yet been made. In other words, the mentally disordered defendant is at some point in the process of awaiting or being tried for an offence. The order requires written or oral evidence of the defendant's mental disorder from a medical practitioner. It is sufficient authority to transfer the person from custody or the community to hospital for assessment and, if need be treatment, in accordance with Part 16 of the Act.

A Compulsion Order is a disposal made by the court. Much like a CTO, it can authorise compulsory measures in hospital or in the community. It is of six months duration, renewable for six months and then annually. It requires evidence of two medical recommendations and an MHO's report. The most significant difference between it and a CTO (apart from the fact that it is made as a disposal under the 1995 Act, as opposed to the civil process of the 2003 Act) is that the patient may not appeal to the Tribunal unless the order is extended beyond its first 6 months.

The Act sets out a framework in which Compulsory Treatment may be enforced. Here, as in other areas of the Act in which those charged with functions are likely to be in strong conflict with the subjects of compulsion, it is doubly important to be aware of the requirements of the principles.

Again it is possible to see parallels with the 1984 Act and aspects that stand in stark contrast. On the one hand, the 2003 Act does not alter the underlying Common Law duty of care that impels medical practitioners to treat in certain circumstances. On the other, it does not confer authority to treat informal patients or those detained under certain sections (for example in Emergency Detention) without consent. The compulsory treatment area is also now complicated by Part 5 of the 2000 Act, which authorises treatment by certification of any adult who lacks the capacity to consent to a specific course of treatment. These matters are discussed in more detail in the Reader 3.

• A Short-term Detention certificate gives general authority to treat under Part 16 of the Act but a CTO may only do so if treatment is specifically authorised (in hospital or in the community) in the order by the Tribunal.

• The 2003 Act carries greater safeguards in relation to neurosurgery. On the other hand, it is now possible to give neurosurgery without the patient's consent. This is on the basis that it disadvantages patient's who lack capacity, if they are debarred any means of receiving a treatment available to those who can consent (section 234).

• The Act distinguishes patients who are incapable of giving consent from those who are able to make a treatment decision and refuse the treatment (Section 239 and 240). In the case of ECT, it is no longer possible to give the treatment to a person who is able to make a decision about it but refuses it, even where the person is detained and even in cases of emergency (section 238). ECT will only be given where the patient is able to and does consent or where the treatment is recommended to a patient who lacks the capacity to consent and it is authorised by a designated medical practitioner appointed by the Commission (sections 233 and 239).

• Drug therapy that has been given for more than 2 consecutive months of detention may only be continued if it is authorised by a designated medical practitioner appointed by the Commission, unless the patient has the capacity to and does consent (section 240).

• Where a patient is under compulsion in the community, the Act does not authorise the use of force. In such a case, if force is required to give any treatment, the patient's community based CTO must be varied to a hospital order.

Some of the arguments ventured in opposition to any form of legal compulsion in the care and treatment of mentally disordered people point to the fact that such legislation disempowers and discourages the person from taking responsibility for their own condition. To the extent that this may be true, the inclusion of the new concept of advance statements to Mental Health Legislation represents an opportunity to redress the problem.

Sections 275 and 276 introduce advance statements as the means to enable patients to articulate their wishes in relation to the care and treatment they want to receive and that which they do not want. This is done in anticipation of any situation in which the patient may become too mentally disordered to competently give such a view. In plain terms it is an opportunity to sit down with a person who is at risk of experiencing mental disorder, whether as a result of a past episode or because of some other reason (for example, a pre-identified genetic vulnerability) and to enable him or her to commit a list of their wishes for care and treatment in a form that has some legal standing, should it be needed in the future.

In section 275, the proper format of an advance statement is as follows:

Very much like the format for nominating the named person, the patient committing an advance statement must sign it. It must be witnessed by a person of a class prescribed in regulations. The witness must certify in writing that s/he is of the opinion that the person making the statement has the capacity to do so. Provided that capacity endures, the person may withdraw or alter the statement, but once capacity is lost, the statement stands, no matter how much its author disagrees with its contents. The exception to this is where a Tribunal is satisfied that certain circumstances have changed to invalidate all or part of the statement (if for example a statement contained a clause that the person's partner must be informed of detention and the couple have subsequently separated).

The effects of an advance statement are that a medical practitioner giving treatment or the Tribunal making decisions must have regard for its contents. Where they discount any aspect of the statement, they must record their reasons for doing so, the implication being that this record could have significance in any appeal or any investigation by the Commission or in any subsequent appeal to the Sheriff Principal or Court of Session.

The inclusion of section 259 is one of a number of aspects of the 2003 Act that distinguishes it in terms of redressing the balance between authority to enforce compulsion and the rights of people with mental disorder, who are at risk of becoming subject to that compulsion. Section 259 enshrines the right not just of formal patients, but of anyone with a mental disorder in a given area, to access advocacy services. It places duties upon each local authority and each Health Board to collaborate to:

"Secure the availability, to persons in its area who have a mental disorder, of independent advocacy and to take appropriate steps to ensure that those persons have the opportunity of making use of those services.' (Section 259(1))"

The Scottish Executive's 'An Introduction to the Mental Health (Care and Treatment) (Scotland) Act 2003' describes an advocate as 'someone who enables the patient to 'find their voice' and to express their views, for example at a Tribunal Hearing.' Advocacy is not concerned with how reasonable a person's views may seem, or whether or not the advocate agrees with them. It is a provision that recognises that people may lack the skills or the confidence to articulate their own views and that certain settings including a doctor's surgery, a hospital ward, a Tribunal or a social worker's office, may be intimidating to some. This may be doubly so in the case of a person who is experiencing the distress and confusion associated with serious mental disorder. Advocacy recognises a person's right to express their views in formal settings and formal processes and it is there to help them access this right. Thus advocacy services must be independent of the formal services that offer care and treatment to people with mental disorder.

The onus is on the local authority and NHS Board not just to secure the availability of advocacy services but also to collaborate to ensure that people with mental disorder are able to access those services. While securing services is the responsibility of the organisation as a whole, the steps to ensure access to advocacy services must be a function that percolates down to medical practitioners, nursing staff, social workers and so on. The sections relating to Emergency, Short-term Detention, CTOs, and COs, specifically require the MHO to make sure that the patient is aware of and has access to advocacy. Section 259 also places this duty on any employee or agent of a local authority or Health Board.

5. What next?

Assuming that you have studied this Reader in preparation for session 1 of the transitional study days, we advise you to test the fruits of your study against our first self-assessed test of knowledge, attached to this Reader. We also advise you to read and reflect upon the case studies before you arrive at the study day. This is because the case study exercises are challenging and it will make the quality of discussion so much the better if they do not take you by surprise. Feel free to make personal notes on these reflections. In this way you might compare your first thoughts with those developed by the discussion of the questions on the study day.

6. General introduction to the study materials and introduction to the materials for session 1

This introduction sets out the exercises for your participation in the first of five study days and some instructions for you. We have planned a structure for use over these days and, while the Scottish Executive cannot require anybody to use this structure, it strongly recommends it to those who are providing the training. Within this structure, the five days are divided into 4 sessions, each corresponding to one of the Readers and their attached case studies.

All four sessions are principally targeted upon MHOs. The first session, occupies the first study day. It is made available to all relevant and interested professionals to attend, by way of a multidisciplinary introduction to the Mental Health (Care and Treatment) (Scotland) Act 2003. The second and fourth sessions are designed exclusively for MHOs and the third session is for use with psychiatric and general practitioner colleagues. While a structure that fits four sessions unevenly into five days may seem complicated, it is designed to enable those participating in all five days to undertake most of the reading in situ. (We call it 'Guided Study').

A good general understanding of the 2003 Act and related legislation must be assumed in order to participate in any of the training. The depth of this understanding will have to increase as the session's progress. The exercises are constructed with this in mind and you will not be able to engage in them without the commensurate level understanding. Unless you have already done so, you are asked to read the didactic material in the Reader 1 before coming to the first training event. This is the only part of the preparatory reading that we could not include in the Guided Study sessions in the five-days.

If you are in any doubt your readiness to participate in the First Study Session, the self-administered test of knowledge following this introduction should give you a good indication. Similar tests are offered at the end of each Reader.

A word about the Guided Study of the four Readers:

If you are an MHO, undertaking the entire 5 days of study, the amount of reading that we expect of you is indeed onerous. For this reason, we have built most of the reading time into the study periods, to ensure that you are not burdened by a hidden expectation that you read the material in your own time. Also, being students of human nature, we have noted a tendency for some to turn up for a given period of study without having read the attendant material! This tends to gum up the smooth running of any sort of study day and our design would definitely not work without you having done the reading.

How you make best use of this reading time is up to you. However, we would advise that while some people work best in private study alone, others may derive benefit from having a 'study buddy' or small reading group with whom to share reflection of the material as it is read.

If you are a psychiatric or general practitioner colleague attending the 3 ^rd study session:

Unfortunately, we could not devise a means of building reading time into your study unless you choose to join the study group at lunchtime of day 2. Therefore, you are burdened with an expectation that you will arrive on the morning of day 3, having read the requisite materials to enable you to engage in the study. In this case, we hope you will not be put off by our seeming lack of consideration and by the complications of finding your way through what you need to know from Readers 1 to 3. The intention was to welcome you to what has proved to be rather a difficult 5 days to design.

How to use the case studies:

The Scottish Executive advises that the design of the entire package is directed at MHOs, with other professions invited to certain sessions. The exercises are case studies intended to approximate real-life situations. By discussing the questions set out after each case study, you will be able to share ideas and think broadly about the implications for practice in relation to the Act.

The Trainers' Guide accompanying these materials gives a limited response to the case study questions so that your trainer has some material against which to consider questions raised by the discussion. However, the trainer can no more be seen as an expert in this new Act than anyone. In this sense we are all fledglings before practice. Also, in this sense, the discussion may very likely raise questions to which there are no answers as yet. Should you raise any of these questions, it is not a failure on anyone's behalf. Such unanswerable questions are very important and should be kept and used as material for you to reflect upon in practice. Indeed, as the required depth of knowledge increases over the process of reading and discussion, some of the later case studies are designed to promote such questions in discussion.

You are advised to have access to the Act itself and the Codes of Practice for reference in discussion, because interpretation of the actual Act must be seen as the best preparation. This is your opportunity to try it out in a safe setting.

7. Training materials and exercises for Session 1:

The first self-assessed questionnaire

1. Do you know which groups of people are bound by the principles in Part 1 of the Act?
2. What groups of people do the principles protect?
3. What is 'the named person'?
4. How many people sit on a Tribunal and from what panels are they drawn?
5. Is it the case that a Short-term Detention must follow on from an Emergency Detention?
6. How long can a Short-term Detention last?
7. How is a Compulsory Treatment Order granted?
8. For how long does it last?
9. What is an advance statement?
10. Under section 259, who has a right to advocacy and upon whom is the duty placed to ensure access to it?

The answers are found in Appendix B.

Instructions for discussion of the case studies:

These are specific instructions about how to undertake the following exercises. You are advised to read them carefully.

Before beginning discussion, each discussion group is asked to appoint a note-taker and spokes person. This is for the purpose of collecting feedback to the bigger group should it be required. Remember that the emphasis of this undertaking is the sharing of thoughts, concerns, anxieties and ideas. Therefore, the more collective contribution is facilitated, the better the sharing of knowledge and ideas. You are advised to agree a small number of points from the case discussion for feedback. These may be answers to the questions, in so far as they have answers, considerations that you feel are relevant to the matters being discussed, or questions raised by your discussion.

As well as this generalised set of instructions, each case study in turn has its own brief introduction, which is intended to focus you upon the specific purpose of your discussion. Take time to read each case study as the programme directs. Allow the questions at the end of the study to focus your discussion but do not be too constrained by them. While it is unhelpful to go off at irrelevant tangents, do not allow the questions to prevent your group from exploring relevant issues that may be useful in your area of practice. Contribute as fully as you can to the discussion.

After you have had time to discuss the subject in your small group, you are asked to share the points you have collected in the larger group of all those participating in the day's training. These shared points may also be discussed as time allows. If discussion raises questions that you are unable to answer, spend time considering how you may find the answers and share them with others after the training. Bear in mind that, at this stage of implementation of the Act, some questions may only be answerable in time and as practice develops.

Finally, before you go on to look at the exercises, please note that, in this general introduction to the Act, the questions are deliberately inter-disciplinary in their focus. You are therefore not particularly expected to address them in your role as MHO, nurse, RMO etc. For this reason, when referring to the discharge of any given function under the Act, we have been deliberately vague, so as not to constrain your broad outlook by imposing too narrow a role on you.

8. Case study 1: How may the principles inform decision re Short-term Detention?

Michael's parents say that they need him to be removed from the home, at least temporarily. What Michael's father describes as 'the last straw' was the moment when he broke down his younger sister's bedroom door and stood there, screaming at Rebecca and her two terrified school friends who were doing homework. As a result Rebecca is tearfully refusing to go to school tomorrow. She says that it took her long enough to pluck up the courage to invite her friends round to her home where she had a 'crazy brother'.

Michael has just turned seventeen. He has had psychiatric involvement for a year now and in that time, he has scarcely attended school. Michael's psychiatrist is reluctant to pronounce any lasting diagnosis upon his condition but Michael says that he has heard voices since he was about six years old, the age at which he was traumatised in a house fire. Since adolescence Michael's behaviour has become markedly less predictable and more upsetting and difficult for his family to manage. Always a loner, he now spends most of his time in his room. From behind the door he can be heard talking, shouting and laughing through the night. He sometimes goes out late at night, and stands in the back garden, staring at the sky.

Michael's mother is now signed off her work as a travel agent. She is being prescribed anti-depressants and is in a state of anguish over his condition. She worries that he seldom seems to eat anything and that he has no relationship with any other members of the household, walking zombie-like past them should he ever encounter them in the house.

Michael's father, a bus driver, alternates between rage and pleading despair at Michael's behaviour. He seems to have more difficulty than Michael's mother has in understanding the psychiatrist's explanation that this behaviour is not wilful. However, the family has managed to keep a lid on things until very recently.

Michael has not been very compliant with services so far. He had reluctantly allowed his parents to take him to psychiatric appointments, refusing all other offers of services. He had reluctantly taken oral anti-psychotic medication, but he has recently becoming less and less compliant with this too. When he refused to attend his outpatient appointment last week, his psychiatrist suggested that he be admitted for the first time. Michael responded by barricading himself in his room and, while his father thought admission was a good idea and would give them all a break, his mother tearfully pleaded for it not to happen, and so Michael stayed at home for one more tense week, until the incident in his sister's room.

Questions for discussion:

Using the summarised list of principles in Appendix I to refresh your memory of the discussion in the Reader, consider how they relate to Short-term Detention in Michael's case. It will also be useful to be aware of the section 23 duty upon the Health Board to provide 'such services and accommodation as are sufficient for the particular needs of that …young person.' You will also need to consider section 278 which, you may recall, is the duty upon every person having functions by virtue of the Act, to 'mitigate adverse effect of compulsory measures on parental relations.'

Please consider this in relation to:

1. How best to interpret and take account of Michael's present and past wishes and feelings?
2. How best to have regard for the views of Michael's named person ¹² and carer?
3. How you would enable Michael to participate as fully as possible in the discharge of the function? (Function in this regard is the consideration of granting/consenting to Short-term Detention.)
4. What is the range of options available in the Michael's case?
5. What is 'benefit' in Michael's regard, in respect of the importance of providing the maximum benefit to the patient?
6. How can the functions of the medical practitioner and the MHO be discharged in a manner that involves the minimum restriction on Michael's freedom that appears to be necessary in the circumstances?
7. What regard should be had in relation to the importance of Michael's background and characteristics, including age, sex, etc?
8. What are the needs and circumstances of Michael's mother as his carer and how may they best be addressed?
9. Most importantly, how can the function be discharged in a manner that best secures Michael's welfare? (From section 2- 'Welfare of the child.')

Reem Jiheli is a 29 year old woman with a history of anxiety and depression dating back to her mid-teens. Reem describes herself as Scottish-Palestinian. She lives with her parents and, when well, has helped out in her father's business, a small Arabic printing service for local businesses. While she has managed reasonably well with CPN support and medication, she has also had severe stress-related bouts of illness in the past, during which Reem's mother has been identified as her main carer. She has required informal inpatient treatment on some of these occasions.

Within the family, Reem complains that both her parent's fuss too much over her and attempt to cushion her from any of life's potential hazards. Reem feels that they restrict her opportunities to form any adult relationships and she has consequently developed a close friendship with a man of her age without her parents' knowledge.

Reem met Duncan at a local mental health social-support drop-in service that her parents occasionally reluctantly allow her to attend. Duncan also has a history of mental illness. Reem and Duncan would eventually like to live together and he had been pressurising her to tell her parents about their relationship. Her CPN had offered to support Reem in the task. However, the pressure seems to have been too much for Reem's fragile mental health to endure. Superficially in agreement with the plan to tell her parents about Duncan, she had been more worried about it than she let on.

The current situation is that Reem has rapidly become increasingly anxious and depressed. Unable to tell any of those who support her of her deteriorating condition, she masked it as best she could until it was already profound. Once it was recognised by her parents, Reem's mother took on her customary, rather smothering caring role under which Reem has deteriorated to the point where she is mute and not eating. As she is now unable to consent to the hospital care that her CPN considers necessary, the CPN has advised her psychiatrist of a potential need for detention. An MHO has been advised accordingly.

The views of others:

While recognising from past experience that Reem ought to be in hospital, her mother is anxious that her daughter will not receive the personal care and attention she would receive at home. Reem's father is also anxious about her mixing with other mentally ill people in hospital.

Reem's CPN is concerned that Mr and Mrs Jiheli should not find out about Duncan's existence, as Reem was clearly more reluctant to let them know about him than she let on. Duncan, on the other hand, is angry about how Reem is smothered by her parents and he thinks this is the cause of all her mental health problems. He sees this as the perfect opportunity to confront Mr and Mrs Jiheli.

Questions for discussion:

In these questions we make use of the phrase 'discharging the function' from the principles in section 1. The function in this case is making decisions in relation to detention. However, relative to detention, this now involves making a decision about how best to resolve the question of the differing views held by Reem, her parents, Duncan and the CPN. Drawing from the summarised list of principles in Appendix I, consider:

1. How can you best interpret and take account of Reem's present and past wishes and feelings?
2. How best to have regard for the views of Mrs Jiheli, as Reem's carer?
3. Given Reem's condition, is there any merit in attempting to engage Reem in participating as fully as possible in the discharge of the function?
4. What is the range of options available in the Reem's case not just in relation to the potential detention itself, but also in relation to the issues discussed above?
5. How might you interpret the word 'benefit' in Reem's situation, in respect of 'the importance of providing the maximum benefit to the patient'?
6. How can the functions of the medical practitioner and the MHO best be discharged in a manner that involves 'the minimum restriction on the patient's (Reem's) freedom that appears to be necessary in the circumstances'?
7. What regard should be had in relation to the importance of Reem's background and characteristics, including age, sex, sexual orientation, religious persuasion, racial origin, cultural and linguistic background and membership of any ethnic group?
8. What are the needs and circumstances of Reem's mother as her carer? Given that, at least in Reem's eyes, she appears to be a rather smothering carer, is your consideration of Mrs Jiheli's needs diminished?

The named person:

Let us now complicate matters by adding a more challenging dynamic to the case: Before Reem became ill, she and Duncan attended a workshop for service users on the 2003 Act. Inspired by this, the couple resolved to make each other their respective named persons. This was competently done, witnessed by Reem's CPN, who had discussed the potential implications of their choice with the couple and now their respective choices of named persons have legal standing.

In securing treatment for Reem, clearly the multi-disciplinary team has to negotiate these difficulties. In doing this, it is important to consider the following facts: Sections 1(3)(b)(i) and (ii) require regard to be had for the views of the named person and carer. On top of these requirements, Emergency and Short-term Detention carry duties on the hospital managers to inform the nearest relative (in the case of Emergency Detention only), in this case Reem's father, and the named person, in this case Duncan, of the detention. Short-term Detention also requires that the medical practitioner who is considering granting it must consult the patient's named person unless it is impracticable to do so. There is no duty upon anyone to notify the nearest relative or the carer of the existence of the named person. However, in thinking this through, it is possible that Reem's father will find out about Duncan. For example, the named person has rights of appeal against Short-Term Detention and Mr Jiheli may find out about Duncan and his role, should he choose to exercise these rights.

The Code of Practice enjoins the medical practitioner and MHO to undertake as much joint assessment and consultation as possible. It asks the MHO to 'find out as much as is possible under the circumstances about the person's personal and social situation…. Where practicable and where it would not cause undue pressure or concern to the patient, it would also be best practice for the MHO to discuss the situation with the family/carers etc independently of the patient.'

Questions:

Does this information impact upon any of the following questions that we have already asked you above?

1. How may you best interpret and take account of Reem's present and past wishes and feelings?
2. How may you best have regard for the views of Reem's carer (and now her named person)?
3. What is the range of options available in the Reem's case, not just to detention itself, but in relation to the issues discussed above?

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