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MENTAL HEALTH (CARE AND TREATMENT) (SCOTLAND) ACT 2003
TRANSITIONAL TRAINING GUIDE
INTRODUCTORY TRAINING FOR MENTAL HEALTH OFFICERS AND OTHER PRACTITIONERS
EMERGENCY AND SHORT-TERM DETENTION AND RELATED MATTERS
READER 2

1. Introduction

This reader assumes not only the underpinning knowledge requirements for an MHO practising under the 1984 and the 2000 Acts but also the grounding of knowledge about the 2003 Act at a level given in the introductory Reader 1 of this series. In particular, this reader assumes a reasonable theoretical knowledge of the principles as set out in Part 1 of the 2003 Act. It is preparation for the attached case study, which gives the framework for the second group study session.

2. Section 32 duties of the Local Authority in respect of appointment of MHOs

Section 9 of the 1984 Act imposed a duty on Local Authorities to appoint sufficient MHOs for the purpose of discharging their duties under the 1984 Act and later, the 2000 Act. It created a link to directions from the one-time Secretary of State and now, the Scottish Ministers, which set down the following:

• Two year post-qualifying criteria for MHOs;

• Approved training required by the SSSC within the framework of the post qualifying Mental Health Award; and

• Requirement of experience and competence in mental disorder as a prerequisite for MHOs.

Appointment as MHO was appointment for the practitioner's working life in that local authority. However, the 1984 Act will be totally repealed and therefore can offer no authority under which MHOs may be appointed in respect of their new duties under the 2003 Act. Therefore, section 32(3) of the 2003 Act provides transition for pre-existing MHOs from their authority under the 1984 Act to 2003 Act. Those of you who are practising MHOs under the 1984 Act will migrate to your authority under the 2003 Act at the point of implementation at midnight 4 ^th of April 2005. The transitional materials that you are reading are a requirement of that process.

The phrase 'A local authority shall appoint a sufficient number of persons for the purposes of discharging…the functions of MHO', which occurs in both Acts, is offered in the 2003 Act not just in terms of one piece of legislation, as it was in 1984. It now relates to the 2003 Act, the 2000 Act and the Criminal Procedure (Scotland) Act 1995 (or 'the 1995 Act' as it is referred to in the 2003 Act).

Given the expanded role of MHOs under these three Acts, it may therefore be reasonably deduced that local authorities should put greater resources into their MHO services or deploy these services differently, for example, in full-time MHO teams.

The prerequisites (section 32(2)(b)) upon which Scottish Ministers may give directions for appointment of MHOs now appear as follows:

The Directions arising out of section 32(2)(b) should be considered in conjunction with section 32(5)(b), whereby a local authority shall terminate the appointment of any MHO who ceases to satisfy the requirements. This means that we may expect Scottish Ministers to direct local authorities to appoint MHOs for time limited periods only. The most likely duration period for appointment is five years, after which the MHO will be required to re-evidence items (i) to (v) above. Re-appointment is likely to rest on evidence of continually developing competence in regards of mental disorder and CPD of MHO practice . This may appear onerous to some who are used to appointment for life. However, it is standard procedure in England and Wales and there are models for enabling practitioners to undertake this process with minimum additional work. It is to be anticipated that the Scottish Executive will work with the SSSC to provide a framework for this to happen within the next five years.

Increased powers of the MHO under the 2003 Act require extra safeguards. For example, Short-term Detention cannot be granted without MHO consent and, unless it is not practicable to do so, the same applies to Emergency Detention. The MHO now stands as the gate-keeper to all but a small minority of certificates that grant authority to detain.

Furthermore, in order to provide continuity, all compulsory powers ¹ will now require the appointment of a 'designated MHO' who is expected to remain involved throughout all statutory involvement with the patient. Under the 1984 Act it was possible for an MHO to practice even though he or she only did so once every few years. Under the new system this would appear to be less than adequate.

3. Section 33 Duty to Enquire

There is a close link between ² section 10 of the 2000 Act (the duty of local authorities to make investigations) and section 33 of the 2003 Act. Both section 10 of the 2000 Act and section 33 of the 2003 Act relate to adults, meaning persons over the age of 16. The Children (Scotland) Act 1995 contains the authority for investigations in respect of persons under 16.

Section 33 investigations may only be applied to persons living in the community, comparable concerns about hospital patients falling to the remit of the Commission. The Commission also has overlapping responsibilities to make inquiries in the community. However, it would only do so in exceptional circumstances, for example, where it wished to investigate deficiencies in the care provided by a local authority. Returning to section 10 of the 2000 Act, the remit is restricted to matters in relation to the personal welfare of the adult (see footnote 2). Section 33 of the 2003 Act embraces a wider purpose, enumerated as follows:

• Section 33(2)(a) (i) ill-treatment; (ii) neglect; (iii) some other deficiency in care or treatment;

• Section 33(2)(b) because of mental disorder, the person's property (i) may be lost or damaged, (ii) may be at risk of loss or damage;

• Section 33(2)(c) the person may be (i) living alone or without care; and (ii) unable to look after himself or his property or financial affairs; and

• Section 33(2)(d) because of mental disorder, the safety of some other person may be at risk.

It should be noted here that the Act states- 'where it appears that'… any of the above conditions are met, the local authority has a duty to investigate. The degree of certainty contained in it merely appearing to be the case is fairly low. The Draft Code of Practice describes this as a duty to investigate arising where it is 'suspected' that there is such a case.

The most significant differences to draw out of a comparison between the narrow section 10 and the wider section 33 are the latter's remit for protection of property and financial affairs and the regard for the safety of others.

This raises questions about what actions may arise from an investigation. While the following is not a prescriptive list, these may be:

• No further action is required;

• Investigation indicates that the matter would best be dealt with through the 2000 Act, for example by application for welfare guardianship;

• Broader remit is indicated, for example under section 12 of the Social Work (Scotland) Act 1968; and

• Investigation indicates a need to take other action under the 2003 Act, for example application for a 'Warrant of Entry, Emergency Detention or Short-term Detention' , all discussed below.

The Draft Code of Practice contains a very good overview of practice matters in regard to section 33. It advises, 'it would be best practice for local authorities to develop protocols which are consistent with their existing policies for the protection of vulnerable adults, and those currently in place in relation to the Adults with Incapacity (Scotland) Act 2000'. This suggests that any MHO may reasonably expect the local authority to produce a framework of guidance for practice.

In this discussion we have resisted pre-empting the policies that your local authority may draw up to advise you how to put section 33 into action. Indeed, it is far from clear at which stage in investigations MHOs will become involved. If the range of protocols for the 2000 Act is anything to go by, there will be a wide local variance in this matter. However, at the point of taking matters further into the 2003 Act, all routes require the involvement of an MHO. Therefore any local policy must have good communication between MHOs and other systems such as care management.

Section 34 confers a duty on local authorities to co-operate with the Commission, the Public Guardian (because of the protection of property and financial affairs), the Care Commission (in respect of registered care homes etc), Health Board and NHS Trust.

4. Section 35 Inquiries under Section 33: Warrants

The significant similarities between sections 117 of the 1984 Act and section 35 of the 2003 Act are that both warrants require application to a Sheriff or Justice of the Peace (JP), with sworn evidence (The table in Annex 2 may facilitate tracking these comparisons). Both authorise entry to premises by force if need be. Both warrants authorise a police constable to force entry to lock-fast premises and both warrants may authorise time limited detention of the mentally disordered subject.

The differences are that a section 117 application could be made by either an MHO or a medical commissioner, while under section 35, application may be made solely by an MHO. The 117 warrant only authorised a named constable to gain entry while the 35 variant authorises 'any constable of the Police Force in the area in which the premises are situated ' to do so. The 117 warrant authorised removal to a place of safety and detention therein for up to 72 hours, while the 35 warrant authorises no such removal.

There are actually 3 separate warrants authorised respectively under section 35(1), (4) and (7) respectively:

• Section 35(1) authorises entry;

• Section 35(4) authorises detention for up to 3 hours ³, explicitly for the purposes of enabling a medical examination; and

• Section 35(7) authorises inspection of medical records.

The implication of 35(4) is that the apparently mentally disordered subject may be detained in situ in order to enable an examination for the purposes of either Emergency or Short-term Detention. The most likely use of a section 35(7) warrant is where the MHO is satisfied that for the purposes of inquiries under section 33…, it is necessary that a medical practitioner have access to the person's medical record, and that the MHO is unable to obtain the consent of that person to that matter.

The grounds of application for a section 117 warrant under the 1984 Act were that the person appeared to be ill-treated or neglected or 'kept otherwise than under control; or being unable to care for himself, is living alone or uncared for'. The conditions for application for a section 35 warrant under the 2003 Act rest upon the necessity to gain access to a person and possibly their medical records for the purposes of making inquiries under section 33. This implies that any of the matters enumerated in section 33(2)(a) to (d), discussed above, would be sufficient grounds for making an application for the warrant if they were coupled with any of the following:

• An inability to obtain access to the person because the MHO is unable to obtain entry to the premises. The warrant remains valid for an 8-day period (with reference to a warrant under section 35(1));

• An inability to obtain the person's consent to a medical examination in furtherance of an inquiry under section 33 (with reference to a warrant under section 35(4)); and

• An inability to obtain consent from the person to gain access to medical records held by any person in respect of the subject of a section 33 inquiry (with reference to a warrant under section 35(7)) where the MHO feels it is necessary for the medical practitioner to have access to these records.

Once granted, the warrant will authorise the MHO correspondingly with powers either in relation to access to the premises, consent to medical examination or authority for the medical practitioner to access the person's medical records. The powers must be specified in the warrant.

It is likely there will be no statutory form for a section 35 warrant. You may expect the Scottish Executive to make available a non-prescribed pro-forma, but in some situations of urgency the application may be made orally. Therefore, it may be helpful to have some local guidance in relation to systems for locating a Sheriff or JP and in relation to local expectations in respect of applications.

It is worth noting that, during the 3-hour period of detention, in respect of 35(4), regard must be had for two potentially opposing poles: The principle of minimum restriction in relation to the freedom of the patient (section 1(4)) and the need to maintain the safety of all parties at all times. It is unlikely that practice in relation to section 35 warrants will differ from that under the old section 117 in that any application for a warrant presupposes a locked door or a steadfastly uncooperative person. Thus the implication that the application is necessitated by the process of section 33 inquiry having been thwarted. Therefore, it is likely that the application will be based on scant evidence that echoes the Draft Code of Practices choice of phrase 'where it is suspected that' the conditions for section 33(2) are met.

For this reason, the Draft Code of Practice suggests a fairly, but not too cautious approach, resting on the use of force as the last resort, a multidisciplinary assessment of risk (where possible) and mediation of the principles at all times. Because of the difficulties discussed above, there will be times when force is applied in situations where it was not required, where the outcome of the investigation is that no further action should be taken. In these cases best practice would be for local authority protocols to address the matter of who has the responsibility to pay for damage to property.

Whether or not a warrant is granted, the MHO applicant has a duty under section 35(10) to notify the Commission as soon as possible following the application.

Along with the specific warrant under section 35, in furtherance of section 33 inquiry, there is a general warrant that may be applied for by anyone who is authorised under the Act and who has encountered an inability to gain access to the patient (section 292). This authorises any constable of a given police force, the MHO or the RMO to gain entry in order to:

'Take the patient to any place (292(5)(a))' or to 'take (or re-take) into custody the patient where the patient is liable to be taken (or re-taken)' (292(5)(b).

In other words, section 292 is for the purposes of removing a patient who is already subject to powers under the Act. For example, if a patient had absconded, or was refusing access following Short-term or Emergency Detention or a CTO, section 292 would be used.

Upon application to a Sheriff, section 293 authorises any MHO with powers to remove a person to a place of safety within 72 hours and to detain that person there for up to 7 days. (Note application is to a Sheriff only, unless, under section 294, it is a matter of urgency, in which case a JP my grant such an order.) If granted, this 'removal order ' authorises entry into lock-fast premises, and the removal of the person by either the MHO, any other person specified in the warrant or any police constable of the police force in that area. The conditions for a 'removal order' are the same as the conditions for making Inquiries (section 33) and applying for section 35 warrants. A removal order (293) may be applied for only by an MHO.

Section 295 allows for anyone who has an interest in the welfare of the patient to apply to the Sheriff to have the 'removal order ' varied or recalled.

Section 297 makes provision much like section 118 of the 1984 Act, for the police to remove a person who appears to be mentally disordered and detain them to a place of safety for up to 24 hours. (Note the change from section 118's authority to detain for up to 72 hours.)

It is also important to note that the seldom-used section 47 of the National Assistance Act still pertains.

In summary, there are a number of warrants and powers of removal and/or detention in place of safety:

• Section 35(1) MHO warrant from Sheriff or JP to obtain entry;

• Section 35(4) MHO warrant from Sheriff or JP to obtain medical examination without consent, (with power to detain for up to 3 hours- Section 35(5));

• Section 35(7) MHO warrant from Sheriff or JP to obtain access to medical records, by a medical practitioner;

• Section 292 application by any authorised person to Sheriff or JP to take or re-take a patient;

• Section 293 MHO warrant from Sheriff only, to remove to a place of safety for up to 7 days;

• Section 294 authority to apply for a section 293 warrant to a JP in situations urgency; and

• Section 297 police powers to remove from a public place to a place of safety for up to 24 hours.

5. Emergency Detention in relation to other forms of compulsion

It is one of the oddities of writing this, before the implementation of the Act that it is impossible to know what common usage will develop to refer to various aspects of the Act. For example, we have begun to refer to Compulsory Treatment Orders in these texts as 'CTOs' without being able to know whether CTO will be the term of usage by professionals once the Act is under way. In this sense, we will continue to call Emergency Detention certificate by its full title, whereas, in practice, its working title may revert to 'EDC' or, if the old 'section 24' is anything to go by, 'Section 36'. (Note, as we are again making comparisons between the 1984 and 2003 Acts, Annex B may be a useful point of reference.)

Statistics indicate that most people introduced to detention in hospital under the 1984 Act were subject to sections 24 or 25. This was partly because the use of section 26 was precluded as an introductory route to detention and the use of section 18 as the preferred means of seeking powers of detention (as originally intended by the 84 Act) was rarely properly implemented in practice.

The 28 day Short-term Detention under the 2003 Act may be applied independent of the 72 hour Emergency Detention. This now provides two independent means by which a patient may be detained without considering application for a six-month Compulsory Treatment Order. Furthermore, each detention has its own implied specific purpose.

• Emergency Detention is restricted to situations of urgency and is for assessment only. In other words, the authority to give treatment under Part 16 of the Act is restricted to urgent situations where life is at risk, there is risk of serious deterioration, or treatment would alleviate serious suffering, prevent violent behaviour or a danger to any other person.

• In contrast, Short-term Detention is for a longer 28 day period of assessment and/or treatment under Part 16 of the Act. The CTO is for longer term, more planned compulsion to treat and enforce other measures, as authorised by the Tribunal, in or outside hospital.

• 'Emergency' in section 24/25 of the 1984 Act was characterised by any situation which was too critical to wait for the process of application for section 18. In contrast, emergency in the 2003 Act sense may mean any situation in which it is too urgent to await the arrival of an Approved Medical Practitioner (AMP) - (a Medical Practitioner approved by the Health Board under section 2 as having expertise in psychiatry.),and/or an MHO, and the clinical circumstances require very urgent action.

This is because Short-term, 28 day Detention may only be granted by an AMP, whereas Emergency Detention may be granted by any registered medical practitioner. This having been said, there may well be a range of justifiable reasons for considering a situation to be an 'Emergency' other than the non-availability of an AMP. However, it should be noted that the presence of both AMP and MHO ensures the involvement of those with the best knowledge and experience to make such critical decisions.

It must be emphasised that emergency now means a situation of absolute urgency. The hope is that this will relegate the use of Emergency Detention to the gateway of least use, because it carries the least rights and protections for the patient. This having been said, there may be situations in which it appears to impose the least restriction upon the freedom of the patient (section 1(4)).

As will be seen, emergency may also be characterised by the non-availability of an MHO. This is because, in Emergency Detention, consent of an MHO is required only where practicable, while consultation with and consent of an MHO is an absolute requirement of Short-term Detention. In the case of non-availability of an MHO, Emergency Detention without consent may be the only option. The consequences of waiting for MHO availability have to be such that the criteria for Emergency Detention are met. National MHO Service Standards and local service redesign should seek to address the necessity for easy and quick access to an MHO where ever possible. However, the timing of Short-term Detention actually allows for a 3-day period within which the certificate may be granted, following from the AMP's examination of the patient (section 44(1)). There is therefore a considerable timeframe in which an MHO may consider giving consent. On the other hand, what is referred to as the 'appropriate period' for Emergency Detention (section 36(12)) is relatively short.

The term 'appropriate period' in relation to Emergency Detention refers to the period within which the certificate must be granted following the doctor's examination. In a rather difficult to read sentence in section 36(12) the appropriate period is given as the period starting at the end of the medical examination and ending at the end of the day on which the examination took place, or a period ending 4 hours after the completion of the examination. For example, if the examination was completed before 8.00pm on 07/04/05, the certificate would have to be signed by midnight and dated 07/04/05. If the examination ended after 8.00pm on the 7 ^th, the appropriate period would end four hours later on 08/04/05, with the certificate having to be signed within that time. We are labouring this complicated point because the MHO would have to have considered and given consent within the appropriate period.

These requirements will more reasonably confine Emergency Detentions to acute situations of greater urgency than was the case with the old section 24. Since the 72 hour Detention carries the least rights for the patient (no formal right of appeal), this may better serve the patient's interests.

Under the 2003 Act, in most populous places, where the local authority has reasonably fulfilled its section 32 duties to appoint sufficient MHOs, there should be relatively few cases where an MHO is unable to attend within 4 hours (the minimum duration of the 'appropriate period', when it transverses 2 days). Such availability may be less easy to guarantee on the more remote of the Scottish islands for example. There is also an additional problem of availability of AMPs in such remote areas.

5.1 Process of Emergency Detention

Emergency Detention may be granted by any registered medical practitioner. The Draft Code of Practice suggests that this should be the practitioner within the clinical team currently responsible for the patient's care. However, it is also recognised that, by reason of it being an emergency, this may not be achievable in many cases.

Emergency Detention is non-renewable and it may not be used immediately following a Short-term Detention. There are various other extensions to detention immediately following which Emergency Detention may not be applied.

The patient may be either already informally in hospital or admitted to hospital from the community. In other words, while the 1984 Act distinguished section 24 (Emergency Detention from the community) from section 25(1) (detention of an in-patient), section 36 of the 2003 Act makes no such distinction, applying equally to both.

The certificate is also sufficient authority to remove a patient who has already been admitted to one hospital and take him or her to another. For example, it is sufficient authority to remove someone from an accident and emergency ward in a general hospital to which he or she has been admitted and take him or her to a psychiatric hospital. However, the Draft Code of Practice indicates that outpatient attendance at A & E should not be construed as admission.

A medical practitioner must have examined the patient. There must be no conflict of interest in relation to the medical examination. Ideally, examination should be face to face but, as the Draft Code of Practice suggests, there may be situations where it may have to be conducted in very restrictive circumstances. The purpose of the examination is to ensure that the conditions for detention have been met (see below). The authority of the certificate (to convey the patient to hospital within 72 hours and/or detain him or her for up to 72 hours) begins at the moment it is granted by the medical practitioner.

The Draft Code of Practice gives instances where it might be reasonable not to wait for an MHO: 'Immediate, serious or life-threatening danger to the patient and/or others or likelihood that the patient will abscond '.

The Draft Code indicates a minority of situations in which consent might be given over the phone, where the MHO has seen the patient a short time previous to the medical practitioner's call or where the MHO has a very close knowledge of the patient and has had contact within 12 hours.

It is worth noting that consent is solely the province of the MHO, with no remit for a relative, as was the case under the 1984 Act. The Draft Code states that a medical practitioner should not 'shop around' for consent where it has already been refused by one MHO. The implication here is that, while shopping around may not be strictly unlawful, it ought to be discouraged as poor practice and, where an MHO has refused to grant consent, the certificate ought not be granted. The Draft Code advises that local authorities and health boards ought to agree a protocol outlining procedures for obtaining a second MHO opinion in particular cases.

The medical practitioner also has a requirement to 'consult ' with the MHO. The Draft Code of Practice states that: 'It is imperative that as much joint assessment and consultation as possible takes place between the medical practitioner and the MHO, before the certificate is granted .'

With reference to section 1(3)(e) (the principle that regard should be given to the range of options available) the MHO should exhaust his or her thorough knowledge of the possible alternatives to the proposed Emergency Detention. Combining this with section 1(4), the minimum necessary restriction to the freedom of the patient, the MHO must ensure that every informal and less restrictive form of treatment has been explored. This should involve consultation both with the patient (as far as practicable) and the medical practitioner. It may also involve consultation with carers and relatives.

Once granted, the certificate must state the medical practitioner's reasons for believing that the conditions for detention (see below) are met and it must be signed by the medical practitioner. While the certificate should be completed on the appropriate form, , , the Draft Code of Practice advises that it may still be valid if it is written and signed on a separate sheet of paper, provided it contains all the necessary information.

Where the person is admitted to hospital under an Emergency Detention certificate, the detention period begins when the hospital managers receive the certificate. In the case of an inpatient, it begins with the granting of the certificate by the medical practitioner. In this case, the medical practitioner must give the certificate to the managers of the hospital as soon as practicable.

5.2 Authority and duration

As with the old section 24 under the 1984 Act, the certificate contains sufficient authority to remove its subject to hospital within 72 hours of granting by the medical practitioner. It authorises detention for a separate period of up to 72 hours. While these are two separate 72 hour periods, the principle (section 1(4)) of least restriction to the freedom of the patient strongly implies that neither period should be allowed to endure unnecessarily to its full term.

The Emergency Certificate does not automatically confer a general duty to treat. We have already touched upon this point in several places, but to spell it out in a unified way, this poses several possibilities:

• Treatment for mental or physical disorder may be given with the patient's consent;

• Treatment for physical disorder may be given under Part 5 of the 2000 Act, where the patient lacks capacity to consent; and

• In the case of a child under the age of 16 years the Age of Legal Capacity (Scotland) Act 1991 ⁴ states that a person under the age of 16 has legal capacity to consent on his own behalf to any surgical, medical or dental procedure or treatment where, in the opinion of a qualified medical practitioner attending him, he is capable of understanding the nature and possible consequences of the procedure or treatment. In practice a medical practitioner would generally look for such signs of capacity from 12 years onward. It follows that a child deemed to have capacity could withhold consent as well. Where a child under 16 is unable to give consent, consent may be given or withheld by a person with parental responsibility. It should be noted, however, that the Millan Committee specifically noted the potential disadvantage to the child in this regard: Such a route to treatment does not offer the same rights as are afforded under mental health law ⁵. Obviously the withholding of consent by a child with capacity can be overridden in the 2003 Act in the same circumstances that it may be with adults. Ideally, the principles of section 2 of the 2003 Act ought to be considered in this regard.

5.3 Conditions for Emergency Detention

There are two sets of conditions that must be satisfied by the examining medical practitioner. These are given in section 36(4) and (5). For those set out in subsection 4, the medical practitioner must be satisfied that it is likely that:

• The patient has a mental disorder;

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

• (Section 36 (4) (a) and (b)).

It is stated that these need only 'likely ' be the case. This is because the limited 72 hour Emergency Detention is intended as a period of urgently required assessment, during which the diagnosis should be more firmly established.

It is interesting to think of this 'likelihood ' in the context of the meaning of mental disorder given in section 328, and the exclusions to the meaning in section 328(2). Exclusions include, for example, that a person may not be considered as having a mental disorder by reason only of 'use of alcohol' (section 328(2)(e)) and… 'behaviour that causes….harassment, alarm and distress' to others (section 328(2)(f)). On the other hand, there may be a situation in which a person exhibiting such behaviour while drunk may be detained on the basis that it is also 'likely ' that he has a mental disorder. In such a case, consider the problems in establishing sufficient likelihood of mental disorder amid the range of situations that may arise when the characteristics described in section 328(2)(e) and (f) occur together.

Section 36(4) also sets out an entirely new requirement regarding the likelihood that ability to make treatment decisions is significantly impaired because of mental disorder. This matter is echoed in the conditions for Short-term detention and CTO. It is an entirely new requirement, not featured in the grounds for detention in the 1984 Act. It suggests a very precise test of capacity that demands at least two questions:

To what extent is the patient's ability to make treatment decisions significantly impaired?

Note that this question does not include any reference to the patient making perfectly competent decisions in disagreement with those advised by the medical practitioner. No matter how unwise a decision may seem to others, we all have the right to make such choices provided we have capacity to do so. In this regard we may only be 'acting as no prudent person would act' (328(2)(g)).

Is the patient's ability significantly impaired because of the likely existence of mental disorder?

Note that any impairment may be by reason of other factors in the above case for example, it may be because the person has consumed a lot of alcohol. If decision making appears to be impaired, the important question to ask in relation to section 36(4)(b) is 'how is this impairment related to mental disorder'? For example, there would be a clear relationship between impairment and mental disorder where a person was unable to make treatment decisions because of disordered thinking caused by schizophrenia; or because the person was too withdrawn to make a decision because of depression.

The above questions may lead to an assessment that the person appears likely to have a mental disorder and does appear to be making an unwise choice in relation to treatment. However, it may be that something other than the mental disorder has distorted or affected judgement in this regard. This might be the case, for example, if it was established that, before the person ever became mentally disordered, his or her past wishes (section 1(3)(a)) consistently reflected treatment decisions that appeared unwise to the objective observer.

The second set of conditions, set out in section 36(5), require a greater degree of certainty in that the medical practitioner must be satisfied that:

• 'It is necessary as a matter of urgency to detain the patient in hospital for the purpose of determining what medical treatment requires to be provided to the patient;

• If the patient were not detained in hospital there would be significant risk…to the health, safety or welfare of the patient or to the safety of any other persons'; and

• 'Make arrangements with a view to the grant of a short-term detention certificate would involve undesirable delay'.

It is important to note some significant differences from the 1984 Act's section 24:

• The 2003 Emergency Detention has a specific purpose attached to it. It is for determining what medical treatment is required to be provided;

• The broader consideration of the welfare of the patient is now included along with the familiar considerations of health and safety; and

• The test is of significant risk, not simply risk.

The 2003 Act places these considerations in the frame of the medical practitioner's examination. We need to be absolutely clear here that MHOs do not have diagnostic skills or the accompanying knowledge. However, in consultation and consideration of giving consent in these circumstances, the MHO must be satisfied that detention on an urgent basis is appropriate in all regards. It has to be considered that the medical practitioner granting an Emergency Detention certificate need not be an AMP and therefore need not have special knowledge or experience of mental health law. Nevertheless, it is important that the MHO enter into a discussion with the medical practitioner as to why the medical practitioner feels the person is likely to have a mental disorder as well as why they feel the other criteria are met. Indeed, it is implicit in the role of the MHO that the MHO may have an important contribution to make to the decision making process. Consent should be neither given nor withheld by the MHO before engaging with the medical practitioner in such a focused discussion. While this will be standard, accepted practice for MHOs, the content of these discussions will have to be broadened to take account of the changed criteria for detention on an emergency basis.

5.4 Other matters in relation to Emergency Detention

If the medical practitioner is unable to obtain MHO consent because of impracticability (not refusal by MHO) he or she must state the reasons for this on the certificate. The certificate is given to the managers of the hospital and the managers, have a duty to inform:

• The nearest relative;

• The person who resides with the patient if it is not the nearest relative;

• The named person if the managers know who it is; and

• The Mental Welfare Commission.

Implicit in this latter requirement is that the Commission will take note of all Emergency Detentions that are granted without consent. In accordance with its remit in Part 2 of the Act the Commission would:

• Promote best practice;

• Draw matters to the attention of various parties; and

• Make enquiries, for example, should there be too many improperly explained detentions without consent, or should it be indicated that a local authority is chronically unable to provide adequate emergency MHO cover.

Where there was no MHO consent, the managers must notify the local authority within 7 days. Ideally, this will happen ASAP.

Section 38(2) requires hospital managers to arrange for an Approved Medical Practitioner to examine the patient as soon as practicable after the detention has begun. The implication of this is that, if the AMP is satisfied of the conditions for Short-term Detention and if MHO consent can be obtained, the patient should be moved to the 28 day order as soon as possible and not necessarily upon the expiry of the full 72 hours. This means that despite hospital managers having a duty to notify local authorities within 7 days of the start of the Emergency Detention, in most cases an MHO will be notified within 24 hrs and, ideally early enough to assess with the AMP. At this point consideration will have to be given to revoking the certificate or moving the person on to a Short-term Detention certificate. If the AMP is not satisfied that the conditions for Emergency Detention continue to be met, he or she has a duty to use the power to revoke the certificate. The AMP must then inform the patient and the managers of the hospital of this decision. The managers in turn have a duty to inform:

• The nearest relative;

• The person who resides with the patient if it is not the nearest relative;

• The named person if the managers know who it is; and

• The Mental Welfare Commission .

6. Short-term Detention

6.1 The process of granting a Short-term Detention certificate

The distinctions between Emergency and Short-term Detention procedures may be summarised as follows:

• Both procedures rest upon certificates that may be granted by a medical practitioner, (an AMP in the case of Short-term Detention), following examination of the patient. However, while an Emergency Detention Certificate may only be signed within the 'appropriate period' following the medical examination as described above (See section 36(12), and this will always be less than 24 hours, the Short-term Certificate may be signed up to 3 full days after the examination.

• Both procedures require the consent of an MHO. However, while Emergency Detention requires consent only 'where practicable ', if either no MHO consent is obtainable or no consent is given, Short-term Detention cannot proceed without MHO consent. As with Emergency Detention, the Draft Code of Practice advises that the Medical Practitioner may not shop around for consent, should the first MHO withhold it. Protocols, as stated above, should cover situations where an AMP feels compelled in such circumstances to formally request a second MHO opinion.

Neither certificate is renewable. ⁶

6.2 Conditions for Short-term Detention

In our discussion of Emergency Detention we emphasised that two conditions required a lesser degree of certainty than the others:

• It need only be 'likely' that there is a mental disorder; and

• It need only be 'likely ' that 'because of the 'mental disorder ', the 'patient's ability ' to 'make decisions ' about the 'provision of medical treatment is significantly impaired' (section 36(4)(a) and (b)).

These conditions are replicated in Short-term Detention (section 44(4)(a) and (b)). Thus, the AMP and the consenting MHO would have to be reasonably satisfied of the 'likelihood ' of the existence of mental disorder and the test of significantly impaired decision making ability in relation to treatment.

As with Emergency Detention, there follow a set of conditions relating to risk:

• There 'would be significant risk to the health, safety or welfare of the patient or to the safety of any other person' were the certificate not granted (section 44(4)(d)).

It is important to note this difference between the conditions for Emergency and Short-term Detention in this point. Emergency Detention requires a different level of certainty in the facts, not just that it is 'likely ' that there 'would be significant risk to the health, safety or welfare of the patient or to the safety of any other person', but that 'the Medical Practitioner is satisfied that the conditions… are met' (section 36(3)(c)). This implies a greater degree of certainty regarding the risk factors in Emergency Detention than in Short-term Detention, which requires only that 'it is likely ' that these conditions are met. This is not surprising in that a greater certainty on the risk elements is required to proceed on an emergency basis which does not afford the same recourse to expert medical opinion or, perhaps, that of an MHO. Nor is there a right to appeal the decision.

The purpose of Short-term Detention is different from that of Emergency Detention. While, in the case of Emergency Detention 'it is necessary as a matter of urgency to detain the patient in a hospital for the purposes of determining what medical treatment requires to be provided…' (Section 36(5)(a)), a Short-term certificate is made necessary in order to (i) 'determine what medical treatment ⁷ should be given 'or (ii) 'to give that treatment' (Section 44(4)(c)). While the purpose of Emergency Detention it is to obtain assessment in situations of urgency; in the case of Short-term Detention the purpose is to secure a period of assessment and/or treatment that falls short of the longer term and broader compulsion of a CTO. Therefore, unlike Emergency Detention, Short-term Detention carries authority to give medical treatment in accordance with Part 16 of the Act.

The last of the conditions provides a safety-net in the statement that it is likely that 'the granting of a Short-term certificate is necessary' (Section 44(4)(e)). This relates to the principles that, before determining that a Short-term certificate is necessary, regard has been had to the range of options available, the maximum benefit to the patient (Sections 1(3)(e) and (f)) and the 'minimum restriction on the freedom of the patient that is necessary in the circumstances' (Sections 1(4)). As the Draft Code of Practice states, this would include both medical practitioner and MHO pausing to 'discount that there is strong and reliable evidence that the patient's treatment could be provided on a voluntary basis '.

6.3 Duration of Short-term Detention

The Draft Code of Practice very clearly articulates that Short-term Detention 'should be seen as the 'gate-way order' of choice. It should be granted in preference to an Emergency Detention certificate as it confers greater rights and protection '. Therefore we require a qualitative change in our thinking from the section 24/26 mind-set. Clearly, Short-term Detention ought to be considered as preferable to Emergency Detention unless circumstances dictate otherwise (e.g. the urgency of the clinical situation for the patient requires urgent action, rather than simply the non- availability of an MHO or AMP).

Once granted, the certificate is sufficient authority to convey the patient to hospital for detention within a 3-day period. The detention period of up to 28 days begins either once the certificate accompanying the patient to hospital is received by the managers, or, if the patient is already in hospital, at the moment it is granted. In the latter case, the AMP must give the certificate to the managers at the soonest practicable moment. The hospital managers have a duty to notify the following of the detention as soon as practicable:

• The patient;

• The named person;

• Any guardian or welfare attorney; and

• The Tribunal and Commission within seven days.

6.4 Application to the Tribunal for revocation of Short-term Detention Certificate

In addition to the increased rights conferred by the guaranteed consideration of MHO consent and the more expert scrutiny applied by an AMP than that of just any medical practitioner, both the patient subject to Short-term Detention and the named person have rights to apply to the Tribunal to revoke the certificate under section 50. While there is no limit on the number of times that such an appeal can be made against the detention, the Draft Code of Practice suggests that it would be unlikely that the Tribunal could practicably hear more than one per 28 day period.

6.5 The Role of the MHO

The AMP must not only obtain consent but, as in the case of Emergency Detention, must also consult with the MHO. This is in keeping with the Draft Code of Practice's aims to promote close inter-disciplinary working and to enhance assessment by making it multidisciplinary.

Section 45 details the MHO's duties which are, where practicable, to:

• Interview the patient;

• Ascertain the name and address of the named person ⁸;

• Inform the patient of the availability of independent advocacy (which, you may recall, is now a duty on both local authority and health board to supply - section 259);

• Take 'appropriate steps to ensure that the patient has the opportunity of making use of those services; and

• Record the steps taken to comply with these duties and to give a copy of this record to the AMP within seven days of the consultation. This is only required where it is impracticable for the mental health officer to interview the patient (45(2)(a) or ascertain the name and address of the patient's named person (45(2)(b).

In this latter regard, the principles 1(3)(c) and (d) are recalled - the importance of the patient participating as fully as possible in the discharge of the function and the importance of providing information and support to enable the patient to do so.

6.6 Section 47 Extension certificate

Short-term Detention may be extended very much like the section 26A of the 1984 Act in circumstances where it appears to an AMP that the patient requires a CTO and too little time remains of the 28 day period to make an application to the Tribunal. By now you ought to know enough of the logic of the Act to predict that the consent of an MHO is required here, with no 'where practicable' exception.

To grant a section 47 extension certificate the AMP must be satisfied that the original conditions for Short-term Detention remain and that 'because of a change in the mental health of the patient, an application should be made…' for a CTO.

6.7 The Responsible Medical Officer's duty to review Short-term Detention

Section 49 requires the RMO to review the authority to detain 'from time to time' and consider whether the conditions remain. If the criteria are no longer met, he or she has a duty to revoke the certificate and must notify the patient, the named person, any guardian or welfare attorney, and the Mental Health Officer who was consulted (originally) under section 44(3)(c) accordingly.

The Commission also has power to revoke a Short-term Detention, should it be satisfied that the conditions are not met. In such circumstances the Commission must also notify the same parties as described above when the RMO revokes an order. (section 52).

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