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Reforming Mental Health
Law Scottish Executive Newsletter 7 - February 2005

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In this Issue

Implementing the Act
Welcome to new secondee
Update from Learning Disability Group
Training on the Act
Tribunal Service
Frequently Asked Questions
Keeping in Touch

Welcome

Welcome to the seventh edition of the Scottish Executive's newsletter, 'Reforming Mental Health Law'.

In this newsletter, we tell you about the work the Scottish Executive is undertaking to implement the Act including plans to establish the new Mental Health Tribunal, providing an update on the development of Joint Local Implementation Plans and welcomes a new secondee, Jen Muir, to network and consult with users and carers in the east of Scotland.

News in Brief

• Updated Joint Local Implementation Plans being published on www.show.scot.nhs.uk/mhwbsg/jlip

• New user/carer secondee based in the east of Scotland

• Tribunal Team all set to move to new Headquarters in February.

• First Tribunal training courses for members set to commence in March.

• Your questions answered on Advance Statements, Personal Statements

Implementation of the new Act

Revised Implementation Date

The new implementation date of October announced in a recently published Special Edition newsletter was welcomed by services as this allows more time to help guarantee a successful implementation. The Executive will continue the work needed to put in place the Regulations and Code of Practice and the new Tribunal system and will continue to work with stakeholders on major issues such as workforce development, training and communication.

Risk Assessment

Geoff Huggins in a presentation to the Learning Network event in December mentioned the attention to risk assessment. This will continue to be a routine feature of all planning and delivery processes and the implementation progress will be no different. Some updated Joint Local Implementation Plans submitted have added the local assessment of risk this is a welcome addition to the detail available.

Joint Local Implementation Plan Updates

Joint Local Implementation Plan updates are being published on the web with more to follow in the coming weeks. www.show.scot.nhs.uk/mhwbsg/jlip. The deadline for the next quarterly update is 29 April.

Implementation Date for Appeals Against Levels of Security

May 2006 is the implementation date for appeals by service users against the level of security in which they are held. These aspects already feature in all our planning processes and added attention will be needed in the coming months in terms of the transitions and receiving services that will need to be in place to respond to successful appeals.

www.scotland.gov.uk/health/mentalhealthlaw

New secondee to consult service users and carers

Jen Muir joined our other secondees, Joyce Mouriki and Chris Evans, in November 2004. Like Joyce in Lanarkshire and the central belt, and Chris in the west and Highlands, Jen will focus her energy on networking and consulting in the east of Scotland. This is what Jen had to say about her experience of mental health:

"I have used mental health services since 2000, and still do. Prior to having to stop work due to my mental health I worked for a Social Work department and was also an active member of a trade union (Shop Steward and a branch officer). In my spare time I was also a very active member of a political party and spoke at various local and national conferences as well as undertaking media work. Since March 2003 I have been an active member of Augment, a user led mental health user group and charity. My interests lie in Collective Advocacy, the Training Group, and our Mental Health and Wellbeing Self-help Group. I am keen on users working in partnership with statutory services whether that is at the level of personal care and being able to make decisions about our own care (Recovery Model), or at the level of the strategic planning of services."

Update from Learning Disability Group

The Learning Disability Group, involving health, local authority and voluntary sector representatives, was set up in July 2004 to focus on specific issues relevant to learning disabilities and the new Mental Health Act.

To date the group has had an opportunity to review the Codes of Practice and identify any specific issues relevant to people with learning disabilities. The Joint Local Implementation Plans are being considered as part of the national QIS programme of visits to learning disability services.

Two new members with an interest in learning disability issues have joined the new Act's Reference Group, James McNabb from People First and Linda Headland, from ELCAP.

It is important to ensure there is appropriate involvement of learning disability professionals and service users in this work locally and that the needs of children and young people with learning disabilities or mental health problems are taken into consideration.

A recent audit by the Mental Welfare Commission to examine the use of the current Mental Health Act for people with learning disabilities found that 229 people with learning disabilities were detained in learning disability facilities, psychiatric hospitals or the State hospital. This data helps to inform how the Act is currently used and will inform the pre-enactment research programme. The recent ruling by the European Court of Human Rights on the 'Bournewood case' has a particular relevance in this regard and will need to be examined further.

If people would like any further information on the work of the Learning Disability group, please contact: Margaret.Whoriskey@scotland.gsi.gov.uk

Training on the new Act

NHS Education Scotland (NES)

NES launched an e-learning course in January to support the implementation of the new Mental Health Act in Scotland and to help prepare front-line staff to understand and work safely and effectively within the new legislation.

The course offers an interactive approach to understanding the Act and its potential impact on practice. The materials are also useful for others with a mental health interest. The materials are available either at www.nes.scot.nhs.uk/mha/elearning and also available in paper based format with an accompanying CD-ROM.

Learning disability professionals are also assisting NES in the development of staff training materials. Michael Brown, Consultant Nurse, Lothian Learning Disability Services is involved in this work. If you would like more information please e-mail michaelj.brown@lpct.scot.nhs.uk

An Education and Training Seminar focusing on implications of the new Act for Forensic Mental Health Services was held on 21st January 2005. A further two events are planned:

Learning Disabilities Services 7 March 2005

Child and Adolescent Mental Health Services May 2005 (to be confirmed)

If you would like more information on these events or about NHS Education for Scotland's work, please email Patricia.Howie@nes.scot.nhs.uk or write to:

Patricia Howie
NHS Education for Scotland (NES)
Rose Street Office
2nd Floor
Hanover Buildings
66 Rose Street
EDINBURGH
EH2 2NN
Telephone 0131 225 4365

Approved Medical Practitioners

Training for Approved Medical Practitioners will be in two parts. The first part is a one day self instruction and is available now on the NES website www.nes.scot.nhs.uk/mha/elearning . All psychiatrists are encouraged to undergo this part of the training now before going on to the second stage.

Part two is a one day course covering all aspects of the Mental Health Act in great detail. This will be delivered on various dates from April to June and again from August to September at four locations, Aberdeen, Dundee, Edinburgh and Glasgow. Each course is designed for 20 _ 30 participants. Full details will be announced over the coming weeks.

Tribunal Members

The training contract for Tribunal Members has now been awarded and the Tribunal team are working with the company to develop an induction course for all members. It is expected that the first of the training courses will be held in early March.

A DVD providing an introduction to the Tribunal is being produced for service users, carers and for anyone else with an interest in how the new Tribunal will work. The DVD will include video clips explaining what will happen at a Tribunal hearing, frequently asked questions and answers and other useful information. Version of the DVD will be available with signing for the Deaf and also subtitled in other community languages.

Tribunal Service

Headquarters

Bothwell House in Hamilton is being prepared for staff to move into by the end of February.

Recruitment - Administration Team

We are now in the process of recruiting staff for the administration team and will continue throughout the next couple of months.

Recruitment - Panel Members

Appointments have been accepted by almost 100 legal panel members and around 60 medical panel members. Membership is spread throughout the country with most members showing a willingness to travel to areas away from their home area.

The second call for medical member applications closed on 14 January, with interviews to be held in March.

Over 500 applications have been received for general membership. Interviews for these positions and the remaining medical applicants will be held in Edinburgh over the next two months.

Frequently Asked Questions

We have received numerous requests for further advice on Advance Statements and Personal Statements. We hope the following articles will answer your questions.

Can you amend an advance statement?

The Act allows for an advance statement to be made, and to be withdrawn, but does not set out any process in relation to amending it.

Witnesses, having knowledge of testamentary writings might assume that making a codicil is possible, as can be done with a will to reflect a desired change. This is not the case with an advance statement. An advance statement is a legal document created specifically by the Act, which is explicit about the making and withdrawing of such a document. To maintain the validity of an advance statement, it should not be amended. Where changes are required, the existing advance statement document should be withdrawn and a new one made.

A patient should be encouraged, while they retain capacity, to keep their advance statement under review to ensure that it continues to properly reflect their wishes. If the patient has concerns about any aspect of an advance statement made, we would hope that they would discuss those concerns with appropriate people, and consider whether the statement does in fact reflect their wishes. They may then withdraw it while they still have capacity to do so, and make a new one.

Why complete a Personal Statement?

A patient may be content to leave the care and treatment decisions to be made on their behalf by someone else. Perhaps they have established a strong bond of trust with their GP and RMO (consultant psychiatrist) and feel that these people are best placed to make these decisions for them if their decision-making ability becomes significantly impaired, due to their mental disorder, and they require treatment under the Act (although the patient will still be consulted). However, the patient who does not choose to make an advance statement may wish to record details about their personal life, to make things easier for family, friends and professionals.

We would recommend that these details are listed in a personal statement. Such a personal statement should be distinct from any advance statement. It is a non-statutory document with no prescribed form, and as such, any details can simply be changed as necessary or appropriate.

We would recommend that where an advance statement is made it should contain care and treatment preferences only. This will avoid a situation where a patient's personal and medical preferences are mixed together to such an extent that there is an ambiguity or disagreement about whether a particular document constitutes an advance statement at all. We would not wish a document which the patient thought was a valid advance statement not to be recognised as such because it contained significant personal information (who will feed the cat; who will pay the bills; and so on).

If the advance statement contains only care and treatment preferences (including treatments the patient would not wish to receive) it becomes easier to ensure the document is stored with the correct records as a medical note; and it makes the status of the advance statement unambiguous.

It may be that where a patient chooses to make an advance statement that it is considered appropriate to attach personal details to the back of the advance statement, but it is generally more appropriate to keep the two statements separately.

Why are Mental Health Tribunals to be held in public?

The draft Procedural rules for the Tribunal proposed that hearings be held in "public" as this is normal practice for Tribunals. However we recognise that many people expressed concern about the possibility of medical and personal details being discussed in a public hearing. We are looking again at this issue and will provide further guidance in due course on this aspect of the hearings.

Keeping in Touch

To comment on this newsletter or any aspect of implementing the new Act, to send us a new question for our question and answer section, or to offer an article for the next newsletter, please contact:

Mental Health Law Team

Scottish Executive Health Department
St Andrew's House, 3:E(N)
EDINBURGH
EH1 3DG
e-mail: mentalhealthlaw@scotland.gsi.gov.uk .
website: www.scotland.gov.uk/health/mentalhealthlaw
To order paper copies of this newsletter, please contact us by e-mail atmentalhealthlaw@scotland.gsi.gov.uk
or phone 0131 244 2591.