The Scottish Government

« Previous | Contents | Next »

Listen

MENTAL HEALTH (CARE AND TREATMENT) (SCOTLAND) ACT 2003
TRANSITIONAL TRAINING MATERIALS

INTRODUCTORY TRAINING FOR MENTAL HEALTH OFFICERS AND OTHER PRACTITIONERS
TRAINERS' GUIDE

10. Session 2

Introduction:

The sessions should become more challenging at this point, as they focus in greater detail on the letter of the law, specifically for MHOs.

The matters discussed above in the general introduction to the study days apply here as much as they do in Session 1. Your first task is to provide an overview of the material for:

• Making inquiries;

• Application for warrants;

• Consideration of consent for Emergency Detention; and

• Consideration of consent for Short-term Detention.

You may also wish to include other matters in you introductory overview that appear in the Reader 2. The most significant of these are:

• The framework for appointment and re-appointment of MHOs; and

• The material about risk assessment.

In this introduction to the material, we suggest several matters of primary concern:

• The arrangements for appointment of MHOs are very different from those under the 1984 Act and will require re-appointment to be based on evidence of continuing professional development. However, the specifications and framework for this are not yet known. We suggest that you mention it here as:

• The designation of MHOs under section 229. This follows on from the point made above, that MHOs have a more involved, longitudinal role in the exercise of compulsory powers.

• The duty to make inquiries is a new one, probably yet to be fully configured by policy in your local area. However, if such local policy is available to you, it could be important to share it in outline.

• The 3 varieties of warrant available by application under section 35.

• The new arrangement whereby Short-term Detention is not dependent upon Emergency Detention.

• The fact that, Emergency Detention apart (where it is only required unless it is impracticable to obtain it), there is mandatory MHO involvement at the gateway to almost all compulsory powers.

• The significance of the new conditions for Emergency and Short-term Detention which now include ' significant' risk and 'welfare' in the criteria for risk assessment and significantly impaired judgement about the provision of medical treatment

• The specific test of capacity in making decisions about treatment

• The new duties of the MHO to give advice and access to advocacy

• The duties in relation to the named person

• The interaction of the MHO's duties with the Principles

• The heightened focus on multidisciplinary consultation

It may also be of value to set all of this in context by linking it to the discussion of CTOs coming in Session 3.

As well as focusing on the content of Session 2, we advise that you give some time over to the discussion of the process:

Built in study time:

Unless participants have been adhering to Model B, there is a 2 hours and 15 minutes period given to guided study here. The intention is to:

However, the allotted time for the in-depth reading of such a lengthy text is limited. Therefore, it should be approached in what ever way best facilitates the needs of the participants. We recommend that:

• There are refreshments readily available throughout the study period;

• There are comfortable and quiet areas available for study; and

• There is scope for people to study individually in quiet privacy and for people to share discussion of the text if they find it easiest to study in small groups.

Discussion of case the studies:

To give you the necessary advantage as trainer, we will replicate the case study and questions below. We will include extra guidance for trainers and summarise some of the points that came up in discussion in the Pilot of the programme. Again, to enable you to distinguish these insertions, we have added them in coloured type:

For trainers who have opted for Model A, a summary of discussion at the start of the second day:

Because the session is broken over two days, you will have to give thought to how you provide continuity at the start of the second day. Our timetable allows for a 15 minute recap of the main points of discussion from the first case study. However, you may wish to use this time in some other way, to welcome participants back and re-energise the discussion at the start of the session.

The Case Study: Scenario 1

The purpose of the case study is to focus participants' discussion on the mechanics of:

• Making Inquiries under section 33;

• Applying for warrants, in particular: under section 35(1), for entry to premises; and, 35(4), for making a medical examination without consent;

• Considering the conditions for Emergency and Short-term Detention; and

• Applying the principles to all of the above;

The PowerPoint presentation available from the Scottish Executive's website includes the following:

• The conditions for making inquiries and applying for warrants;

• The conditions for Emergency and Short-term Detention;

• The abbreviated list of principles; and

• Other prompts such as the conditions for CTO.

We advise you to make optimum use of this material during discussions.

In engaging with the scenario below, assume that the information set out has been gleaned from the medical records and from Eileen, the informant who has notified the local authority of the need to make an investigation.

Janice McLeod is a woman who has a history of depression in which low self-esteem is a chronic feature. She is in a bullying relationship with her husband John, a man who aggrandises his own self-esteem by dominating and humiliating her. Janice has a job as a school cleaner. She has little social life and keeps poor contact with her elderly mother. This is because John won't allow it, even though Janice is secretly desperately guilty and worried that her mother is increasingly in need of domestic help due to her failing eyesight and diabetes. In almost all decisions Janice defers to John, to the point where she feels she has no confidence to exercise choice in her own right.

Before she met John four years ago, Janice received in-patient treatment for depression following the death of her father. She was admitted to hospital following a suicide attempt by overdose. Admission was not by compulsion but Janice agreed to it with some reluctance. At the time she identified unresolved childhood issues of emotional abuse at her father's hands as largely causal of her depression. She has never discussed these events with John.

Janice is known to her GP surgery where she was treated for depression for eighteen months after her discharge from hospital. More recent contact with her GP has been for numerous minor physical complaints but she has had no contact in the last six months.

Over the last year Janice has been aware of sinking back into depression. However John will not allow her to seek help for it. He is acutely aware of the stigma of mental illness, having been mocked as a child for having a mother who spent periods in psychiatric hospital. Furthermore, John uses Janice's inability to 'snap out of it' as an excuse to further degrade her.

The situation has now developed to the point at which Janice feels too incapacitated by the weight of her low mood to get out of the house and go to her work. This has now happened for two weeks with Janice furnishing no medical certificate for her employer. Eileen, her friend from work, has called round to advise Janice that her work supervisor says that unless she responds to the letters that have been written to her or returns to work, she will lose her job.

Eileen was at first unable to get in to the flat to see Janice. John sent her away telling her Janice was out. However, Eileen thought it improbable that Janice would be out, since the time of her visit was 8.00am, following the end of Eileen's cleaning shift at the school. Eileen returned when John was at work. When she was eventually able to rouse Janice to answer the door by shouting through the letterbox, Eileen was shocked to see how painfully thin her friend had become. Having no experience of depression, she was equally shocked to see how deflated and empty Janice seemed: almost devoid of any will to go on living, was how she described it. What worried Eileen most was that Janice didn't even seem to have the emotional reserves to cry, in her desperate situation.

Janice brushed off Eileen's concerns and refused to go to the doctors, saying that John would never stand for it. She got rid of Eileen with a promise that she would be fine and she would see her at work next week. When Janice did not show at work, Eileen was yet again debarred from seeing her by John. Eileen has had contact with care management in the past and the only thing she could think of doing in this situation was phoning the social work department. However, she has not yet told Janice that she has made this referral.

The questions:

1.1 Is this the sort of situation in which you would consider there to be a duty to make an investigation? In considering this, you may have to closely consider the circumstances in which such a duty arises (section 33 (2)(a) ): 'the person may be subject to or exposed to ill-treatment, neglect or some other deficiency in care or treatment…'

In the Pilot, participants agreed that this was indeed the sort of situation in which they would find a duty to make inquiries. It is always likely that some participants may reflect that, under high workloads an MHO might not undertake this duty, or the local authority might not prioritise it. However, it could be appropriate to remind participants that this training is not about the limitations of resources and the pressures of workloads. It is about exploring how the new Act can be implemented as intended.

The Principles inform the initial response. While the progress of this referral may be determined by how it comes into the department (via intake team, non-mental health specialist care management team or via a telephonist for example) we ought to begin to expect all of these staff to have some grounding in the Act and to be aware of the duties of the local authority and the principles of the Act. It should also be the case, especially in the light of the SWSI and the Mental Welfare Commission Inquiries into the Scottish Borders Council ³, that local authorities all have policies relating to Vulnerable Adults and are making careful use of them. It may also be argued that section 10(1)(d) of the 2000 Act applies here (duty to investigate).

It may be argued that, as long as an investigation/inquiry is being made, it does not matter from which source it flows. However, the probable presence of a strong mental health component here would suggest that the 2003 Act is the most appropriate umbrella under which to proceed.

Participants of the Pilot felt that a softly-softly approach would be best, gathering such information from medical records, the GP surgery and from a check of social work records on Janice, John and also Eileen, to rule out a malicious referral.

It may be that the local authority is able to delegate its remit to inquire. For example, the GP or a practice nurse with previous relationship with Janice may have more luck than a new face in making initial approaches.

Care would need to be taken to proceed in ways that do not unnecessarily antagonise John. There would be much merit in proceeding in ways that attempt to include John. After all, he is the main carer, even if his care seems to be wanting.

All of these considerations suggest the need to highlight the very different mind-set that the new Act requires. If this matter does not arise at the instigation of the participants, the Trainer may have to point it out: This Act requires far more proactive practice than we are used to under the 1984 Act.

1.2 If you agree that the conditions may have been met, what advantages are there in having an MHO make the investigation? Who else in the local authority might be competent to make such an investigation?

MHOs are best placed to take such an inquiry forward because:

• As the first person to see Janice in this episode of depression, the MHO has a good knowledge of mental disorder;

• The MHO has superior knowledge of the 2000 and 2003 Acts;

• If it is required, the MHO has powers to take the matter forward (for example, applying for warrants);

• The MHO may have better access to medical records; and

• The MHO may have better access to medical colleagues and may have greater credibility in their eyes.

The Draft Code of Practice for Civil Procedures states that MHOs should make inquiries where possible. Were the inquiry not to be carried out by the MHO then:

• It could be undertaken by a CPN, but the CPN service might be reluctant to visit without the consent of the subject; and

• It could be the GP, but GPs often lack the resources for such a task.

• An experienced social worker may also be able to make such enquiries.

Who ever it was other than an MHO, they would have to have access to MHO advice and they would have to report back to an MHO for the matter to be checked out.

1.3 If your answer to the first question was that there would be no duty in this case, what would you do with the information? If your answer was that there is such a duty, how would you proceed?

If there were considered to be no duty to inquire, the decision would have to be justifiable in terms of the principles. In reality, it is difficult to foresee how this could be justified in terms of the legal requirements of section 33 and the principles and in terms of the Code of Practice. However, were this the case, Eileen would have to be informed and the matter would have to be recorded. Both of these responses would need to be framed by the principles. Remember that section 1(7) states that 'discharging' in relation to a power, includes reference to the power by taking no action.'

Here too is passing reference to the Borders Inquiry: it found poor recording to be a factor in the failure to prevent abuse.

In the case of no further action, the GP would have be to notified of the situation, making it clear that no action was taking place from the local authority. However, participants of the Pilot all agreed that there was no apparent justification for taking no action on the information given in the case study.

Getting as much information from Eileen and the GP would be the first step. Prevailing on Eileen to let Janice know of the referral would be of help. However, participants recognised that Eileen may be fearful of John and therefore resistant to this.

Some participants reflected that it might be best to write to Janice first. Others felt that this would serve little purpose as John might well intercept her mail or she might be too depressed to bother opening a letter. There seem to be merit in two courses of action:

• Obtaining Janice's phone number (if she has one) from either Eileen or the GP; and

• Jumping strait in with a visit .

One consideration was taking Eileen with you on a first visit. Questions of safety and responding in pairs were discussed.

1.4 What considerations would there be in your plan of action, in relation to protecting Janice, given her fragile mental health?

If the first response is made in a letter, enclosing leaflets about the Act and about depression may be of some use. However, in fact, we would not yet know that depression was the problem until we had visited.

Much of the discussion from participants in the Pilot focussed on avoiding making matters worse, incurring retribution from John and causing greater damage to Janice and Johns' relationship.

In considering how to proceed, it became clear that an action plan was needed.

1.5 What considerations would there be in relation to protecting Eileen's confidentiality?

This would depend upon whether or not Eileen had made Janice aware of the referral, whether she was prepared to do so or whether she had any objection to the MHO disclosing the source of the referral. Eileen may require protection from John and nothing should be done to place her at risk. However, while it is not helpful to have to protect the anonymity of a source, this does not diminish the duty to inquire.

1.6 Are there considerations in respect of John's rights?

John's rights may be conceived of as twofold:

• 'Hard rights' (legal entitlements); and

• 'Soft rights', such as are contained in social work's value base and the professional ethics of other disciplines .

John's 'hard rights' as Janice's carer and nearest relative include:

• Right to a carer's assessment (section 228);

• The right to information that would assist him in his role as carer (section 1(5)(b)) (presumably this would include rights to be informed about inquiry under section 33 and any warrants under section 35);

• The right to having his views taken into account (section 1(3)(b) (ii)); and

• As her nearest relative John has a right to be informed within 12 hours of an Emergency Detention Certificate coming into effect.

Examples of John's 'soft rights' would be:

• The right to respect; and

• The right not to be cast as the source of all Janice's ills.

The Case Study: Scenario 2

Having written to advise Janice and John of your intention to visit, you have called at their flat at the first available opportunity. John refused to allow you entry despite your explanations that you have a duty to make an investigation under section 33 and that you may have a duty to apply for a warrant under section 35.

John has told you in no uncertain terms that you are not getting in to the flat and that his wife is not available to speak to you. He has also told you that you may get a warrant, bring the police or whoever you want. This is his home and no one is getting in.

The questions:

2.1 Revisit section 33(2)(a), which now becomes the conditions for considering application for a warrant on the grounds that 'the person may be subject to or exposed to ill-treatment, neglect or some other deficiency in care or treatment…' Assume John's refusal to be adamant. Assume also that you have made repeated attempts to obtain access over a period of days. Assume that, when John is out, the flat is locked and there is no sign of Janice. Assume also that the flat is on the second floor so you cannot even look in through the windows. Is the issue of such significance that you would apply for a warrant?

At this stage, participants reflected that they would proceed. It would be important to explain the process of the application to John. Given that John's exhortation to 'bring the police or whoever you like..' may have been bravado or may have been made in the heat of the moment, it may be advisable to leave him with written information about warrants, obstruction and the duty to inquire, upon which he may reflect. It may also be advisable to leave him with 'thinking time', a clear time-scale for your return and an outline of likely actions and consequences.

2.2 In applying for the warrant, section 35 (1) would only allow the authority to gain access to Janice. A warrant under section 35 (4) would allow you to obtain authority to enable a Medical Practitioner to carry out a medical examination of Janice, were you unable to obtain her consent to it. Under section 35 (5), a section 35 (4) warrant also carries potential authority to detain her for a three-hour period in order to facilitate the examination. Assuming that you do agree that a warrant ought to be applied for anyway, from the information you have above, do you consider that these additional powers may be necessary?

2.3 If you do agree that the wider scope of a warrant under section 35(4) is needed, how would the principles shape your plan for implementing such a warrant? (See the abbreviated list given above).

In the Pilot, this question raised more questions about procedure than it could answer:

• Will there be a common form or template for warrants?

• Will it be necessary to go back to the Sheriff/JP to apply for a further warrant under section 35(4) if the process of gaining access to Janice under the 35(1) warrant proves it necessary?

• Would you require evidence that the request for medical examination has been refused before getting a warrant under 35 (4)?

• Conversely, could you obtain the two warrants simultaneously, as a matter of precaution?

It is hoped that some of these answers will be available by the time you are implementing the training.

The principles of benefit and the minimum intervention would suggest that it would be more stressful for Janice if the MHO had to go back to the Sheriff/JP to obtain further warrants, thereby protracting an awful situation.

The principle of minimum intervention also brings in to play practicalities such as:

• Getting a joiner or lock-smith to effect entry if force is required;

• Not having marked police cars at the door; and

• Encouraging a low profile approach from the police - removing hats etc.

In this way the principles should give shape to the action plan.

In the Pilot, much of the discussion here reflected good practice with which MHOs should be at home. However, in the light of the principles such good practice takes on the complexion of a legal duty.

2.4 In having regard for the views of any carer, would you consider John to be Janice's carer? Consider also the Draft Code of Practice's direction that the MHO should consult as widely as possible with any people involved with the care of Janice in the situation.

We already seem to have established that John is the carer: such is the overlapping nature of the questions. The task in his regard is to enable him to better direct his care. The case study hints that he has needs of his own, to come to terms with his own past and to manage his ambivalence about mental illness. He feels the stigma of it rubbing off on him because of his past and because he chose to marry a person affected by it.

There is the question of whether to contact Janice's mother. Balanced against this is the concern that such contact may worry a frail older person. Janice's employers may need to be contacted too, but this would breach her confidentiality. Eileen may be able to act as a less formal agent in contacting her work.

The Case Study: Scenario 3

Assessment of risk in relation to Short-term Detention:

You may recall that, at the end of the discussion of risk to welfare, in the Second Reader, we promised you a case study upon which to consider the balance between 'significant risk to health, safety or welfare etc' and the loss of liberty involved in detention. We also suggested that the principles should be guiding features in considering where the balance lay. In particular, in this regard, we highlighted the principles of having regards to benefit to the patient, equality and minimum restriction in relation to freedom.

We do not wish to assume that your discussion of the first two sections of the scenario took you in any given direction. Indeed, the design of the case study is intended to provide you with enough uncertainty that your discussion could travel in a number of directions. However, for the purposes of advancing the discussion into the sphere of consideration of consent for Short-term Detention, please assume that you did successfully apply for warrants under section 35 (1) and (4).

You are now inside the McLeod's flat with a very angry John McLeod, who reluctantly opened the door to the police constable on production of the warrant. You have taken the precaution of discussing the entire process with a Medical Practitioner who has agreed to be on stand-by to make herself available within one or two hours, should you need her.

To enable you to discuss the merits and practical implications of Emergency Detention versus Short-term Detention, please consider the case to have two alternative possibilities at this point:

Should detention be required, in the case of possibility a), Short-term Detention would not be possible.

The two possibilities of AMP and GP involvement should be highlighted by the trainer in the process of facilitating the discussion.

Upon your insistence, you are led to the sitting room where a dishevelled woman sits in dirty clothes. She does not acknowledge your presence at first, with her gaze frozen in front of her. When you ask Mr McLeod to leave the room she does speak to you in a halting whisper, asking you to leave and refusing to consider accompanying you to see a doctor. She acknowledges that she is depressed but she states that she does not wish any treatment, as she can manage her condition without it. She also states that to accept medical intervention would just anger her husband and make things more difficult between them. In her view it is, after all, her fault for being so miserable.

Questions:

3.1 What options would be available to you at this point? Do you

consider it would be important to call in the AMP/GP for a medical examination?

Warrants under section 35(1) invite the MHO to make the application to include the names of 'any other persons so specified' for the purpose of gaining access to the patient (section 35(2)(a)(ii)). It would be important to have the AMP/GPs name on the warrant as a matter of course. The reality of this, displayed in the need for planning, is that the AMP or GP would need to be instructed to be on stand-by, if they did not intent accompanying the MHO on the visit.

3.2 Are there any circumstances in which you would not call in any Medical Practitioner at this stage?

If, for any reason, there was no need to follow through with a medical examination, the options would be for informal admission or no action to be taken. It is difficult to see anything in the case study that would indicate these actions being justified. No further action under the Act would be indicated, for example, if the referral were a hoax or if Janice were physically ill rather than mentally ill.

At this stage you do call in the AMP. Having interviewed Janice, the AMP asks you to consent to Short-term Detention, based on her assessment that Janice is significantly impaired by her depression, that she is unable to make treatment decisions because of it and that the situation with Mr McLeod will deteriorate because of the intervention so far.

The Case Study: Scenario 4

Questions:

4.1 From the information you have so far, do you agree that Janice's ability to make treatment decisions is significantly impaired by her mental disorder?

Participants in the Pilot all readily agreed that there was ample evidence of Janice's lack of capacity to make treatment decisions and that the incapacity could be traced to her mental disorder. Discussion in the Pilot turned to the principle of regard for Janice's past and present wishes and feelings. Had there been any indication before this episode of illness that Janice had wished not to have treatment for depression, the clear view that she lacks capacity to make such choices might be obscured. The only hint of this in the case study is that she was reluctantly persuaded to accept informal admission four years ago. However there is no clarity on this point, as presumably she was already ill by then.

This in turn highlights the need for advance statements. There may be mileage in the trainer flagging up these issues for discussion if they do not occur naturally in the small group.

4.2 Considering our discussion in the second reader about 'significant' in respect of 'significant risk to health, safety or welfare', do you consider that the risks to Janice's welfare out- weigh considerations of loss of freedom entailed in any Short- term Detention? In this discussion please bear in mind the principles and particularly those relating to benefit to the patient, equality and minimum restriction in relation to freedom.

It would be important to accept medical advice on the risk to health:

• Risk to physical health of not eating or taking fluids; and

• Risk to mental health of deterioration of depression.

Medical advice may also indicate risks to safety, for example from suicide. It is interesting to note when discussing these risks in practice that the welfare risks, being holistic, cannot be disentangled from the health and safety risks.

If Janice's long term relationship with John becomes more damaged by this action, this may be considered as a welfare risk. This is especially the case if the evidence is reviewed that partners frequently return to abusive relationships and that she is therefore likely to return to John, no matter how he jeopardises her mental health.

The only risk not felt to be evident was the risk to the safety of any other person.

4.3 Discuss the merits of Emergency versus Short-term Detention.

These matters are well rehearsed in the reader: Emergency Detention might be more realistically practical, with the greater chance that a non - AMP would be available. However, it ought not to be considered as a matter of convenience.

Short-term Detention carries enhanced rights and safeguards such as the rights for Janice and John to apply to the Tribunal to revoke the detention and the greater security in having an AMP and MHO assess the service user before granting the certificate. However, it should be noted that Emergency Detention must be reviewed by an AMP as soon as practicable (section 38(2)). The Draft Code of Practice advises that an Emergency Detention ought to be converted to Short-term Detention as soon as practicable if this is required.

4.4 Assuming detention to have been proposed and consented to, what arrangements should be made for conveying Janice to hospital?

The Code of Practice advises that it is the Medical Practitioner's responsibility to ensure that the patient is conveyed to hospital. The principles (such as least restriction to freedom) apply here to consideration of the manner in which the patient is conveyed to hospital.

11. Session 3

Introduction:

Session 3 on CTOs is the core of the materials, representing:

• Those facets of the Act with the most central role for MHOs; and

• Arguably, the most significant legislative developments in terms of care and treatment by compulsion.

We have time-tabled a brief 30 minute slot for introductions on the assumption that, by this stage, the process of sessions (issues relating to reading time, case discussion etc) will take less time. However we have to acknowledge that, at this stage, the session hopefully will include RMOs who are less familiar with these matters. It is also important to note that we have no way of guaranteeing that RMOs will have read the required materials. Even if they have, they are less likely to have the same level of knowledge of the Act as the MHOs who have by now worked through three Readers and two previous days of study.

We recommend the following as matters of significance for your introduction:

• CTOs represent opportunity to move on from the 1984 Act where the hospital was the only proper locus for compulsion;

• CTOs bring elements of care, and particularly receipt of community care services, into the orbit of compulsory powers;

• The process of application is complicated and rests heavily on a multidisciplinary approach;

• The role of the MHO is central to the process of application and success of the application may rest on early MHO involvement;

• Issues of timing of examinations and reports for applications will be key to success;

• The inclusion of the proposed care plan is a new element strongly relating to the MHO as pivotal in the multidisciplinary element;

• The role of the Tribunal in hearing applications will be a significant departure from that of the Court;

• The Tribunal may grant orders with varied and wide ranging powers;

• The Principles will form a guiding framework for practice in making, hearing, granting, implementing and monitoring applications;

• Other legislative innovations will impinge upon the process such as Advocacy, Advance Statements and Named Persons; and

• The long-term involvement of the designated MHO both changes working practices for MHOs and their relationship to RMO colleagues.

In presenting these issues, we consider that it is important to flag up two key themes:

• The longitudinal involvement of the designated MHO is quite unlike the sort of practice MHOs and RMOs have been generally used to; and

• The wide ranging scope of powers of CTO represents an opportunity to involve practitioners across all disciplines in consideration of more diverse means to meet the needs of the most vulnerable service users.

The exercises for the day are all built around one case study, which requires participants to:

• Examine matters relating to application for CTO against the conditions for an order;

• Consider the forms for the Mental Health Reports, the Application, the MHO's Report and the Proposed Care Plan, making draft use of them; and

• Consider the problems involved in making an application when the MHO and RMO are in disagreement.

The Alternative Case Study:

Before looking at the case study we have selected for use, please note that we have included an alternative or additional case in Annex C. Our preferred case study, that involving Toni McRae (set out below), is targeted upon the process of application and in particular, the use of the forms. From the pilot, we estimate that it will take a group most of the study day to complete the exercise. However, no two groups work in the same way or at the same speed. Should a group complete the exercise in significantly less than the allocated time, you might wish to have some photocopies of the alternative case study to hand.

Another reason why you might wish to use the alternative case study is if discussion in a group is flagging or the discussion indicates that the group needs to discuss more ethical questions around the principles and the conditions for granting an application. A glance at the alternative case study will show that it poses some very challenging and, indeed, imponderable questions about these issues.

In particular, the Toni McRae case asks the group to explore the problems of making an application where opinion is divided. If the group requires a case study which produces more sharply divided views on a critical issue, the alternative case study will be of use.

You may even wish to copy the case study and give it to participants at the end of the day, for their own use.

The Case study: The following is the text from the material attached to the Reader. Againcoloured type denotes our insertions for the trainers' guide.

As in the previous case studies, please consider the situation portrayed in relation to the set of questions asked beneath it. This is the only case study for session 3. In it we want you to discuss the situation, considering the conditions for detention and then, in the afternoon, draft the reports on the prescribed forms. The training facilitator will have a timetable in which to pace discussions and create drafts of the forms throughout the day.

To enable you to consider how the case study may be spread over the day, let us re-visit our proposed timetable:

Session 3:

The 10.15 to 12.30 session is intended for use with questions 1 and 2. Questions 2 and 3, the form - filling exercises, may take considerable time and so the group will have to work in a focused way. It may be that some groups do not complete the Application and MHO Report forms by lunchtime, in which case you will have to decide whether or not to extend the work on question 2 into the afternoon. The 1.30 to 3.45 session is for discussion and drafting of the Proposed Care Plan and discussion of question 4, which will cause the group to re-visit their care plan. It may be anticipated that groups will find this a taxing session and it will require careful facilitation to keep it on track.

We would remind you of the PowerPoint slides which can be used with this guide.

Now in her mid-twenties, Toni McRae has had a diagnosis of paranoid schizophrenia since her late adolescence. She has had repeated spells in hospital, twice under section 18 of the '84 Act. Initially Toni was very rejecting of both the idea that she was ill and of medication, which tended to make her gather weight and feel lethargic. She also tended to socialise with people who smoked a lot of cannabis, which was inevitably counterproductive to a symptom-free life for Toni. In more recent years Toni has enjoyed maintenance on a more suitable regime of the new generation of anti-psychotic drugs. She has graduated to oral self-medication and she has benefited from a place in a hostel, from which she has progressed to supported accommodation. With CPN and social work help she has been able to reflect upon some of the hard lessons she has learned: loss of her own flat, loss of her career as an art student, alienation of friends and family: and she has gained insight into her condition. With this insight has come a degree of ability to manage her life.

Strongly independent in spirit, Toni has rejected the conventional mental health social supports on offer. She favours the informal support of her circle of friends and fellow musicians and she is relatively successful in the local scene as the lead guitarist, singer and main songwriter for a progressive rock band called 'As Serious as your Life'.

However, a recent bout of gastric 'flu' seems to have knocked Toni out of equilibrium. Subsequently she covertly discontinued her medication and is refusing to take it anymore, denying that she is or ever was ill. In her opinion the illness was caused by her psychiatrist, who had experimented on her with mind-controlling drugs. According to Toni, these drugs had created an entire alternative reality for her, from which she has now awoken. If questioned about this, Toni sums up the situation with the phrase 'Which end of the worm sees the other?' In some sort of allusion to the two nerve-centres at opposite ends of an earthworm, her often repeated phrase seems to resonate with special significance for her.

While Toni poses no immediate risk to her own safety, she is increasingly preoccupied that her CPN, social worker and the supported accommodation staff all have doubles, discernible only by the subtly differing shades of their hair colour. In her belief, these doubles are all cloned by her psychiatrist as part of a plan to get her to recommence the mind-altering medication. She will only allow any of these people access to her flat if she is satisfied that they are not the cloned version of themselves. Therefore, it is becoming more and more difficult to maintain any contact with Toni, to monitor the care she is taking of herself and to keep an open dialogue with her. For example, no one knows how she is managing her finances, whether or not she is cashing her benefit cheques or doing shopping.

As far as can be ascertained she is eating but she has little food in the flat and her standard of hygiene is deteriorating. Toni will not speak to her psychiatrist or consider recommencing medication. In this she is not in anyway hostile but, with a superior air, she is quietly insistent that she alone knows what the doctor is doing.

The above two paragraphs are deliberately formulated to make the health and safety conditions rather vague and tenuous. As there is no tangible risk to the 'safety of any other person' the paragraph below is intended to give enough substance to the welfare condition that, in contrast to the life that Toni has shaped for herself before becoming ill again, it may arguably justify the imposition of compulsory measures.

This is because risks to health and safety are familiar territory to MHOs and RMOs in consideration of compulsion. The welfare condition is new and therefore deserves more discussion..

Some of Toni's friends have approached her support workers to ask for advice on how to manage their relationship with her. Since she has become ill they find it increasingly difficult to know how to cope with the things she says about her psychiatrist cloning other people. They do not always get into the flat when they visit and Toni is proving to be worryingly unreliable in her attendance at rehearsals and gigs. The band's drummer told staff that he was embarrassed when Toni launched into 'a long rant' about her psychiatrist over the PA system at a gig. Fortunately, most of the audience thought it was part of the stage show.

He claims that Toni is the band's driving force but it is getting to the point where they might wish to go it alone without her.

Toni's psychiatrist, her RMO, is convinced of the need for a CTO and has persuaded her GP of that need. While Toni keeps only occasional contact with her mother, she has made Mrs McRae her named person. Toni has never got round to making an advanced statement, having considered it unlikely that she would ever again be in a situation where she would not willingly comply with any treatment.

1. Discuss the need for a CTO, bearing in mind both the conditions set out in section 57 (3) and the principals set out in section 1 of the Act. (While you may wish to look at the list of conditions in the actual Act, for ease of reference they are:

a) 'That the patient has a mental disorder;

b) That medical treatment would be likely to:

(i) prevent the mental disorder worsening, or
(ii) alleviate any symptoms or effects of the disorder.

c) That if the patient were not provided with the treatment there would be a significant risk':

(i) to the health, safety or welfare of the patient; or
(ii) to the safety of any other person.

d) That because of mental disorder the patient's ability to make decisions about the provision of such medical treatment is significantly impaired; and

e) That the making of a CTO is necessary.

From the experience of having facilitated the Pilot, it was found to be helpful to systematically work through the conditions for an Order (section 57(3)):

Is there evidence of mental disorder?

Yes. There seems little need for discussion of this, given Toni's history and presentation.

Would medical treatment be likely to prevent… or alleviate it? Again there is ample evidence that it would and that, while well, Toni actively accepted treatment for this reason.

One participant in the Pilot hypothesised that, were there no indication in Toni's past that she had responded well to treatment, one would look to research and other empirical means to give evidence base to the matter.

Are there risks to health, safety and welfare and safety of others? It is easiest to rule out risk to safety of others. There is nothing in Toni's past or in her present behaviour to suggest such risks. There are risks to Toni's health: the questions of hygiene and eating do vaguely hint at physical risks. However, they are poorly substantiated. The risk to Toni's mental health is in sharper focus and it resonates with the welfare risks discussed below.

There does not appear to be a risk to Toni's safety but it is foreseeable that this might emerge if her condition deteriorates.

Welfare is the most clearly defined risk but, once we examine it, we see the problem of lack of definition in law. Welfare remains an holistic concept, such as we discussed in the Reader 2. If it relates to Toni as a person and the things she considers important in life, we can see that her friendships, her life in the band, her standing with the band's popular following and perhaps even the stability of her life and her tenancy are all threatened here. These all seem to be things that Toni values greatly and has worked hard to attain and maintain. If the question is: 'does the threat to these things out weigh the harm done to Toni's liberty by imposing compulsion?' then the answer could be a justifiable 'Yes'.

Conversely one could ask 'is it in the interests of a person like Toni, who had managed her illness with such care, for us to passively watch her descend into such upsetting illness?' The answer would probably be that it is not. This answer approximates the principle of regard for Toni's past wishes and feelings. It could be considered that her past wishes indicate a 'soft' advance statement, in the absence of any hard, legally constituted one.

Both here and in response to the discussion of the test of capacity below, it might be of interest for the facilitator to hypothesise what difference it would have made if Toni had made an advance statement, reflecting her wishes as encapsulated in the words of the case study: 'Toni has never got round to making an advance statement, having considered it unlikely that she would ever again be in a situation where she would not willingly comply with any treatment.'

Is it the case that, because of mental disorder, the patient's ability to make decisions about the provision of such medical treatment is significantly impaired? In the Pilot, participants reflected that this was a clearly indicated condition. There was a marked difference between Toni's willingness to accept treatment and to trust her psychiatrist before she became unwell and her reluctance to do so now.

Is the making of a CTO necessary? This condition causes us to review the range of options as required by the principles (section 1(3)(e)):

• It is unlikely that Toni could or should be persuaded to accept informal treatment;

• Doing nothing is a possibility at this stage if it is felt that the conditions are not yet strongly met. Against this consideration, Toni may be at no immediate risk, but the longer we wait, the more entrenched her illness may become;

• Using Emergency Detention seems inappropriate as there is no demonstrable urgency and since section 36 contains no authority to treat; and

• Using Short-term Detention is a possibility. However, the 28-day authority to treat may not give enough time for Toni to 'turn the corner'. Furthermore, the measures of compulsion in Short-term Detention are restricted to detention for treatment. It may be that authority to treat in the community would be preferable and there may be other powers that might be of use (requiring access to Toni for example).

2. We are asking you to use the forms that will be available to create an application. You will have very limited time to do this and you should not get too drawn into matters of lesser importance such as inventing fictitious addresses for the various people involved.

In asking you to perform this task we are aware that it is very much an artificial activity that will be undertaken in a very short time, based on very limited paper information. These parameters will scarcely approximate the real task of preparing a CTO. However, we offer it to get you to think about the process and the guidance/constraints of the forms. We have designed the task in the hope that, in your training group, you will have a mix of AMP/RMO and MHO colleagues. If you do not have this, you may have to draft a mental health report in absence of any medical colleagues.

With reference to:

• The MHO's Application;

• The Mental Health reports by Medical Practitioners; and

• The MHO's report.

Consider what information you would wish to place in the various sections. In doing so, pay particular attention to the communication that is required between RMO and MHO. In considering what measures of compulsion ought to be recommended you will need to consider whether or not you feel that the problem can be managed by a community based order or detention in hospital.

This question of community versus hospital detention as the locus for treatment becomes central to the following discussion and exercises in questions 3 and 4. We advise you to begin to address it here, as suggested. However, we also advise you to steer group discussion away from getting bogged down with the issue at this point. In question 4 it will actually be of value to become entrenched in polar positions on the question.

Note: it may not be possible for you to complete the lengthy forms in their entirety in the time given for this exercise. However, you may wish to jot notes on the various forms. At least, in considering the actual forms, you will get an idea of the scope of work involved in an application.

This is a point in the process of group facilitation where you will be required to keep matters carefully on track. It may be that you have people in the group working on two tasks: Completion of the Mental Health Forms by RMOs and completion of the application, and the MHO Report by the MHOs. On the other hand it may be that the group wish to look at all the forms together. These are not points of great significance. What matters here is that the group examine the content of the forms and consider how the forms constrain and facilitate the passing of information. It is also important that the group consider the process recalled in the Code of Practice: that the Mental Health forms should reflect the discussion that has already taken place between Medical Practitioners and the MHO.

However the group use the forms two points are of great importance:

• The focus of the reports must be upon the arguments that will convince the Tribunal of the need to grant the order with the most useful powers to enable Toni to get her life back; and

• The limited time for the exercise means that only the barest sketch of these matters may be committed to paper and the actual application form will probably be the least used, containing as it does the factual details of name, address, dates etc.

If the group notice the repetitive nature of the information they have to commit to the various forms, so much the better. This is a fact of the application process. It will become even more evident when the group turns to the Proposed Care Plan.

Important factors of timing come into play here. The MHO report is dependent upon information from the RMO and, as the group examine the forms and consider how they will commit information on them, they should bear this in mind. They should also consider the constraints of the 5-day period within which the medical examinations must take place and the 14 days from completion of the last medical examination and the making of application to the Tribunal.

The artificial exercise of the case study means that we have all the information available to all parties at once. In the discussion about how to use the forms it may be valuable to hypothesise on how the flow of information might shape the process of the application in real life, where facts are neither as freely available as they are on these pages nor are they as limited as they are in these few hundred words.

3. Given that the Draft Code of Practice recommends that the MHO's Proposed Care Plan is draw up with close multi-disciplinary discussion, jointly consider a care plan and sketch it out on the prescribed form.

At this point the arguments in favour and against hospital-based detention will become more sharply focussed. In reality it may be easier to take questions 3 and 4 together if the group cannot arrive at a clear decision of preference between hospital and community. Also, in reality, there is not enough information in the case study to determine whether it would be better to temporarily up-root Toni to hospital or whether it she might comply with treatment at a local health centre.

The group should not get too focused on the single issue of treatment. They must think widely about whether there are other matters that may be contained in the proposed care plan. They should be mindful that the care plan should be broadly focused not just on those aspects of care that require compulsion. This discussion should also reflect upon the multidisciplinary process of preparing the plan, including contributions from a wide range of people:

• CPN;

• The staff at the supported accommodation;

• The GP;

• Possibly care management; and

• Others.

The plan ought to accommodate the reasons why Toni became ill, difficult though it may be to legislate for catching bouts of flu. It should also consider learning from the way in which Toni's illness was not noticed sooner and whether or not it might have been prevented from deteriorating to this point.

4. In order to get at the problem of preparing an application in a situation of entrenched disagreement between the views contained in the Mental Health Reports and those in the MHO's report, consider the following:

There are numerous ways in which a CTO might be implemented to enable Toni to get back on track. Without wishing to restrict your discussion of these, salient amongst them would seem to be the issue of imposing a treatment requirement. This may be achieved by detention in hospital or in the community.

a) Consider the merits of both of these options;
b) Divide your discussion group into two sub-groups, preferably with all Medical Practitioner participants in the same sub-group; and
c) We want one of the sub-groups to take on the view that Toni may be served best by treatment in the community and the other sub-group to take on the opposing view that a community-based order would fail her, resulting in prolonged illness and an unenforceable order which would eventually have to be varied to detention.

It does not matter which view is ascribed to which group, but if you can be in a group that reflects your own view on the matter, so much the better. We have to suspend imagination at this point, as this is a case discussion about a fictional character contained in a few hundred words on paper, so either view is tenable. However, imagine that, were you to meet the real Toni in situ, it would be glaringly obvious to you that your view was correct.
d) How might the proposed care-plan be structured in such a way as to reflect both the community-based and hospital- based plans for tention?

e) Are there any other foreseeable difficulties in making an application under these circumstances of entrenched disagreement?

Matters to consider here are:

• Is it likely that treatment could be sufficiently monitored in the community?

• How easy is it going to be to ensure Toni's compliance with community based treatment? Remember that treatment may not be enforced in her home. This would mean her attending a Health Centre or being taken there for treatment;

• If Toni fails to comply, what are the options? Force may not be used outside hospital. Under section 112 Breach of Orders, she may be escorted to the place of treatment and detained for up to 6 hours in order to give her the treatment. In cases of urgency, Toni could be conveyed to hospital and detained for 72 hours under section 113; and

• On the other hand, is it more restrictive to detain Toni, if she might respond to community based treatment? Is it of benefit to her to be removed from her home? Is the view that such treatment may only be monitored in hospital a view that truly takes account of the range of options? Could the order be tested in the community and then varied to detention if the first option fails?

It is important to leave the group time to revisit the Reports and Proposed Care Plan and consider how they could be used to reflect a divergence of opinion. It is also important to think about the process of working together collaboratively while in dispute.

12. Session 4

Introduction:

It is to be anticipated that some MHOs will view Criminal Procedures as a specialised area of practice and will be resistant to engaging in it. There are plausible arguments in favour of this view:

• I lack previous expertise in this area under the 1984 Act;

• I lack experience in Criminal Justice work as a whole;

• There is too much pressure in my own job without taking on more; and

• The new MHO role will tax me beyond my limit in my existing remit without taking on more.

However, the over riding reason that we have included a session on the 1995 Act is that we anticipate that the directions from Scottish Ministers will indicate that appointment of MHOs under the 2003 Act will be dependant upon receiving the Mental Health Social Work Award which can only be obtained after demonstrating knowledge and competency in all areas of MHO practice. Furthermore, with the arrangements for funding and management of criminal justice services under review, it is not possible for anyone to foresee in what way local authorities will provide MHO services to the Court and so no practitioner can say with certainty that they will not be involved in Criminal Procedures.

It must also be borne in mind that work with people whose needs are encompassed within the governments policy for mentally disordered offenders (Mel5 1999), are in no way solely dealt with by specialised forensic mental health services, (where these exist.). Such people may be receiving services from general psychiatric services. Others may not be actively involved in criminal justice services but may (because of particular need and risk) be referred for care in conditions of special security, (e.g. referrals from local psychiatric hospitals still constitute the largest percentage of admissions to the State Hospital. )

In anticipation of these matters you may best manage them by addressing them in the introduction to the day. Related to this is the matter that many MHOs may feel themselves to be out of touch with the Criminal Justice system and so may feel less confident in the materials presented here. For this reason, the Fourth Reader has an important place (see below).

We suggest the following matters be raised in the introduction to the day:

• An outline of criminal procedures from arrest and charging with an offence, the pre-conviction and post-conviction stages to sentencing;

• A reiteration of the relationship between the 1984 Act and the 1995 Act (essentially that, under the 1995 Act, Courts could make hospital orders, which became synonymous with section 18, but for minor exceptions, via section 60 of the 1984 Act);

• An explanation of how the 2003 Act extends this relationship by adding new sections into the 1995 Act as below.

• Assessment and Treatment Orders as flexible orders of the Court, applicable pre: and post-conviction;

• Interim Compulsion Orders as a flexible power available post-conviction;

• Compulsion Orders as a new disposal available to the Court, with powers comparable to those contained in CTOs; and

• Compulsion Orders become the bridge to the 2003 Act as Hospital Orders were the bridge to the 1984 Act, in that, once received by the hospital the compulsion order is only slightly different from the CTO.

It may also be helpful to briefly introduce SCRs in the context of the new Act, as this constitutes the other half of the material in the Reader and features in the exercise below:

• Introducing the meaning of relevant event Section 232;

• Emphasising the similarities of SCRs under the 2003 Act and those under the 1984 Act;

• Outlining the purpose of SCRs; and

• The framework for reports.

Built in study time:

If you are following Model A, the reading time of 2 hours and thirty minutes takes place after the introduction of the final day. If you have followed Model B, participants will already have had their Guided Study for the Reader. Again, the materials are crucial to a good understanding of the subject matter and must be read by all participants.

Discussion of case study:

Yet again we have marked our inserted comments in red, to enable you to track them and distinguish them from the text provided for participants. Session 4 was not included in the Pilot Programme and so what is offered below is condensation of some issues we anticipate discussion of the case to generate.

We remind you of the PowerPoint slides made available by the Executive. These may be of use during small group discussion.

The Case Study:

History:

Karen Rae is in her early thirties. She has a history of criminal convictions ranging from breach of the peace and petty theft to assault and dealing in Class A drugs. Resulting from this, Karen has received two custodial sentences, one following repeated breaches of probation.

Karen also has a psychiatric history stemming from her adolescence. She attended an adolescent psychiatric unit because of self-harm and behavioural difficulties with which her mother could not cope. At that time Karen disclosed that, from the age of 12 to 13 she had been routinely sexually abused by one of her brother's friends. Her psychiatrist from the unit believed that her behaviour was a post-traumatic stress response to the abuse. However, as her behavioural problems have developed into adult life, Karen has acquired the diagnosis of personality disorder.

Karen has no contact with her family. She has had numerous partners but is single at present. Karen has two children aged 3 and 7. Both are being looked after by the local authority and she has had little contact with them.

When under stress Karen, still cuts herself and, while in prison, she made several attempts to hang herself. She has a number of physical health problems resulting from prolonged abuse of heroin and crack cocaine.

Karen leads a chaotic life and is often homeless. Both social work and psychiatric services struggle to keep regular contact with her. Karen maintains her most consistent means of support is through her GP, because this affords her access to supplies of various medications. She is currently in receipt of anti-depressive and anti-psychotic medication from her GP, but it is thought doubtful that she takes either with the necessary regularity.

Present circumstances:

The local authority is in the process of obtaining a permanency order for both Karen's children, so that they may be placed for adoption. This is a source of considerable emotional stress for Karen. The tenancy of her council flat is also in jeopardy because she is in considerable arrears and her neighbours frequently complain about disturbances and fights in and around the flat.

The offence:

When Karen failed to appear in court on a charge of shoplifting she was arrested by warrant. On arrest she was found to be in possession of seven bags of heroin with a street value of 10 each. She claimed that they were for personal use in support of her heavy habit. However, the police attempted to strip-search Karen in custody.

While she was verbally abusive to the police up to this point, nothing in her baring forewarned them of the force of her violent outburst when they attempted the search. She managed to fracture a woman police constable's cheekbone and it took several officers to restrain her until the police surgeon could administer tranquillising medication.

In the cells Karen was considered unmanageable. She made repeated attempts to harm or kill herself by throwing herself off the walls. Upon her appearance in court, charged with both the original offence of shoplifting and with assault of a police officer and possession of a Class A drug, the Procurator Fiscal applied for an assessment order upon the evidence of the police surgeon.

Karen is now detained in the forensic unit of the local psychiatric hospital for assessment.

Upon the making of an assessment order by the court, the MHO has 21 days to prepare an SCR.

Questions:

(1) Were you the designated MHO, what issues would you wish to highlight from the case for the SCR and why? (Make a list of these issues. In doing so it may be of help to consider section 3.7 in the reader).

Below, we will discuss some items from the framework for SCRs referred to in the question. It might be of help for the facilitator to appoint a note-taker to sketch a very brief draft of the SCR.

• The reasons behind the use of the powers to which the patient is currently subject:

Karen is subject to an Assessment Order, applied at the pre-conviction stage of Criminal Procedures. The reasons behind the use of the powers are that:

• She was considered likely to have a mental disorder upon medical evidence in Court;

• Medical opinion suggested that either she required a period of assessment to verify the mental disorder and quantify the need for treatment;

• There was treatment available that was likely to alleviate her condition or to prevent its deterioration; and

• She was unmanageable in custody being at such risk to:

We have gone systematically through the conditions upon which a Court may make an Assessment Order. In doing so it might be useful to flag up to the group the absence of a test of capacity to make treatment decisions. It is likely that there is no such test because the Criminal Justice system places greater emphasis on issues of protection than it does on the patient/offender's right to determine treatment choices.

It should also be borne in mind that the alternative for the offender at this stage is likely to be remand in custody, and that therefore in relation to the charge, a decision ( a 'criminal justice test' ) has already been made to deprive the person of freedoms and rights.

However, the principles still relate to the making of the Order and Karen's past and present wishes and feelings, the range of available options and the principles of 'benefit' and 'minimum restriction' would all apply.

• The views of the patient with respect to these current powers:

We do not have any detail of Karen's views. This flags up the importance of early involvement of the Designated MHO in order to establish a relationship with the patient, and of obtaining appropriate information.

• The views of carers and family members on these powers:

Karen appears to wish no contact with family other than her children and it is questionable that such contact is advisable at present. Liaison with the children's social worker may be of use here.

• The patient's current state of mental health:

Karen's mental health seems very poor just now. Even before her arrest, numerous stresses seemed to be aggravating her personality disorder. It would be important to emphasise the relationship of these social and psychological factors to the offences and the interaction of these with her established mental health problems and the physical problems of her substance misuse.

• The patient's mental health history:

This would be the place to acknowledge the perceived threat made to Karen by the police body search in relation to her history of abuse. If such a causal factor can be established it would be of great importance to share it with the RMO in relation to recommendations to the Court and in relation to future provision of direct care.

• An assessment of risk to patient and any other person:

It must be acknowledged that Karen has perpetrated a serious assault. As such there is a heightened risk that she may do so again, at least as long her aroused state of poor mental health endures. Any subsequent incidents that may have happened in hospital must also be acknowledged.

• The patient's family situation, including children, dependants and caring responsibilities:

This would be the place to locate a full discussion of the situation regarding Karen and her children. It may be appropriate to obtain information from the children's social worker to get the fullest picture.

• The patient's ability to care for herself:

Karen seems to be exercising very little ability to care for herself. Amongst other factors, low self-esteem may be implicated here. Her lack of compliance with both physical and mental health care provision would be an important factor under this heading.

• Any matters which could prompt the local authority to inquire under section 33 of the Act:

As chronic non-compliance seems to lie at the heart of lack care for Karen, there seems to be no indication of any need to inquire. However, nothing should ever be assumed and the process of preparing for the SCR may throw up some other matter necessitating inquiry. For example, someone in Karen's position would be very vulnerable to abuse and exploitation and if these had been issues in her life, it would be important to quantify them so as to protect her from them upon her return to the community.

• The alternatives to detention, which were considered and ruled out:

In SCRs for powers under the 1995 Act, the MHO has less of a direct role in considering alternatives to compulsion. In Karen's case the MHO would probably not have been involved at the making of the Assessment Order and could therefore only sum up the points made above in relation to the inappropriateness of custody and remand in the community, as discussed above.

• The patient's history of substance misuse:

Clearly Karen has an extensive history of substance misuse and it has a serious impact upon her life in relation to all of the offences, her mental health and her current situation.

• The care planning which has been put into place to deal with any/all of the above issues:

As yet there has been no viable care plan, largely because of Karen's non-compliance to date. However, the introduction of CTOs under the civil procedures of the 2003 Act does beg the question why was there no assessment of her need for compulsory measures of care and treatment before matters had degenerated to this point? Therefore, the beginnings of a forward-looking care plan might be well placed here.

This question highlights the principle of minimum necessary intervention: was it less restrictive of Karen's freedom to do nothing by way of civil procedures, in the face of her non-compliance, and to await the intervention of a mental health disposal from the Courts, after her life had deteriorated to such a point?

On the other hand, would such intervention be effective and of benefit, particularly if Karen's mental disorder is untreatable.

(2) Assuming that, following from conviction of the offences, the RMO intended to request a Compulsion Order from the Court, what issues would you wish to highlight in your report to the Court⁴. In particular, what would be your assessment of Karen's needs, what would you devise as a care plan and (assuming reasonable availability of services must be underwritten by the local authority) what services would you propose to meet those needs? (Make a list of the various matters you would wish to collect in this report. In doing so it may be helpful to consider the list under the heading 'MHO's Report for a Compulsion Order' under section 2.4 of the reader).

If some of the following seems repetitive, it must be noted, as with the exercise for the reports in session 3, that the information crossing from report to report is repetitive, but carries different inflections and purposes. If the issue of repetitiveness does come up in discussion it would be helpful to reflect upon the following:

• To whom are these reports destined? and

• What is the different relevance of the information contained in them?

In the SCR the information is targeted upon the RMO, to inform him/her of matters in relation to fine-tuning the care and treatment offered and to better enable forward planning of that care and treatment. It is also targeted upon the Commission, to inform them of issues in relation to detention. In this case it may be that there is an issue to pick up in relation to why neither local authority nor health care providers had considered compulsion by civil procedures up to now.

On the other hand, the report for the Court is to advise it of the need and viability of the Order, or of alternatives which would best suit Karen's needs.

Section 2.4 of the Reader tells us that the report should discuss:

• The personal circumstances of the offender, views of relevant others (Named person, carer and others):

As discussed above, there do not seem to be any known 'relevant persons' and we do not know Karen's views: although, we would have become acquainted with them through the process of writing the SCR. This suggests that an informal spin-off from writing the SCR is that it is a means for the designated MHO to get to know the patient.

• The MHO's views of the suitability of the measures being sought by the medical reports:

It is difficult to anticipate the range of views that may be generated in discussion of the case. However, clearly informal receipt of services has not been working for Karen. On the one hand, a Compulsion Order would offer opportunity to try enforced treatment in hospital or (more appropriately) compulsory measures in the community.

On the other hand, the risks are that Karen might be so forcefully non-compliant with services as to make any community based order unworkable. This would leave the option of detention in hospital as the only one. In this case the choice would be:

• To discharge a person who is at demonstrable risk;

• To detain Karen in hospital when this does not meet her needs; and

• To go on attempting to implement an unworkable order.

• A proposed care plan:

The stark choices above suggest the most careful analysis of needs is required. It might be easier to pose a series of questions rather than hypothesise a care plan:

• Would community based residential support be appropriate?

• If so, is there likely to be such a service available that could work with Karen?

• Are there drug rehabilitation services available that could work with Karen?

• Could these services be adapted to work with Karen under the compulsion of an Order from the Courts? (Remember that such an Order would be very different from the model posed by Drug Treatment and Testing Orders as piloted in Scotland, which impose the threat of a custodial sentence in the face of non-compliance.);

• What are Karen's treatment needs and how can they best be met by compulsion in the community? and

• How can Karen's broader mental health needs (for improved self-esteem, social development, employment etc) be met? Have compulsory measures anything to offer in this regard, or is compulsion incompatible with the development of such resources in a person?

• Confirmation on behalf of the local authority of availability of community services that are to be delivered by compulsion:

Are there potential areas of conflict between the local authority, which may wish to manage these resources and the MHO, who, while located within the employing authority, has a very different set of duties and responsibilities? While this question cannot be answered here, it is important to know that a question not dissimilar to this has been located in the Briefing Paper forHealth Service and Local Authority Managers to encourage the drafting of protocol.

This matter gets to the heart of the issue encapsulated in the SSSC's Mental Health Award competence 6.2.c: 'an explicit awareness of the legal position and accountability of MHOs in relation to the legislation and their employing authorities.' 6.2.c addresses the legal theory that MHOs have a capacity to make decisions autonomously from their employing authorities' line management systems. The autonomous MHO has a duty to provide a care plan and to verify to the Court the availability of resources to meet the needs contained in it. This has scope to create conflict between the MHO's duties as framed in the principles of the Act (for example, to consider the range of options and to provide resources for the least restrictive option) and the local authority's need to control and prioritise allocation of its resources.

• A description of any alternative mental health disposals that the Court may wish to consider:

It is always good to ponder the alternatives, especially in a case as fraught with complications as Karen's. Karen has so far lacked the ability to avail herself of help on a voluntary basis and it seems less likely that she would do so now. The question to be asked is 'would less restrictive measures of compulsion be of value?' For example, would probation with a treatment requirement be of use here?

The problem with probation is that, if it was breached, as would seem very likely, Karen would be brought back to court for sentencing for the original offences plus the breach, and she would, by then, be beyond consideration for care and treatment options. This makes probation seem likely to be a more restrictive option, given the seriousness of police assault.

On the other hand assault is a serious matter and a mental health disposal should not be seen as diminishing the seriousness or risks associated with the offence.

• In what ways do the issues gathered your the SCR list differ from the issues gathered in list for the report to the Court for the Compulsion Order?

The biggest difference is that much of the information in the SCR is retrospective of the current order and much of the material in the Compulsion Order Report is in anticipation of powers to progress the delivery of care and treatment. However, this is a matter of focus in which there will be grey areas of overlap: The SCR does require discussion of a care plan, and the CO report does require to be couched in a past history that justifies any recommendations.

(3) What measures of compulsion would you wish to see contained in any order made by the Court?

Discussion so far suggests that we are giving more serious consideration to community based options. Therefore, the more relevant powers (from section 57A (8) of the 1995 Act as inserted by section 133 of the 2003 Act) are:

• Requirement to attend for treatment;

• Residential requirement;

• Requirement to attend to receive community care or other services;

• Requirement to allow access to the MHO, RMO and others concerned with giving of care or treatment; and

• Requirement to notify MHO of change of address and/or intention to change address.

Apart from the last two, we have fully discussed these above. While not conclusively opting for any (because paper exercise case studies always lend themselves to the inconclusive), we have been leaning towards residential requirements, community based treatment and receipt of community care services

(4) In addressing this last question please debate the merits of a Compulsion Order which seeks to enforce order in Karen's chaotic life, where the best informal attempts at service delivery have so far failed:

It is difficult for the answers to previous questions not to overlap with the question in hand. We have already acknowledged the risks of being saddled with an unworkable order. On the other hand, we have acknowledged the opportunity to impose order in Karen's chaotic life. The question cannot be determined in a paper exercise. However, as with most difficult, to answer questions, the principles provide a helpful framework:

In considering the 'range of options', what would be of most benefit and how might this be achieved with the least 'restriction on Karen's freedom', taking account of Karen's 'wishes and feelings' and her 'abilities and characteristics'?

(5) Finally, while issues of availability of medical treatment are matters for the RMO, how might the case differ if the result of the Assessment Order was that there is no available medical treatment likely to alleviate or prevent deterioration of the patient's condition?

We tagged this question on here because of the importance of the issue. In the case study there are hints that at least some Medical Practitioners have thought that Karen does respond to treatment. Why else would she be prescribed antidepressant and anti-psychotic medication? However, it is far from conclusive upon what grounds the case study bases the assumption that an Assessment Order will prove that Karen does respond to treatment well enough for us to interfere with her freedom to the extent of imposing treatment upon her.

Were it the case that the RMO did not think that Karen's condition was amenable to available treatments, the Compulsion Order could not be considered by the court, in which case the options would be for some non-mental health disposal such as a custodial sentence. Had Karen pled guilty to the offences, an SER might be requested at this point.

Note: Annex A provides you with a template that you may photocopy. It contains the list of SCR headings and the list of subjects for a Compulsion Order Report, along with space for participants to take notes against each item.

13 What next?

In Annex C we have made available evaluation forms that you may copy and use. They are designed to cover the content of the Readers, the Case Studies, the Course Design and the quality of your input as a facilitator. They are designed to be easy to collate by simply adding up the numbered responses from the rating scales. It is easiest to do this on a blank copy of the form. The Scottish Executive would welcome collated feedback from the forms.

Now, over to you to put this training into action: Good luck.

« Previous | Contents | Next »