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Section 2. Overview & Principles

Unlike the 1984 Act, the 2003 Act is based on a set of guiding principles formulated by the Millan Committee, which are not contained verbatim in the Act but help to set the tone and guide its interpretation. As a general rule, anyone who takes any action under the 2003 Act has to take account of these ten guiding principles:

1. Non-discrimination - People with mental disorder should, wherever possible, retain the same rights and entitlements as those with other health needs.

2. Equality - All powers under the 2003 Act should be exercised without any direct or indirect discrimination on the grounds of physical disability, age, gender, sexual orientation, language, religion or national, ethnic or social origin.

3. Respect for diversity - Service users should receive care, treatment and support in a manner that affords respect for their individual qualities, abilities and diverse backgrounds, and properly takes into account their age, gender, sexual orientation, ethnic group and social, cultural and religious background.

4. Reciprocity - Where society imposes an obligation on an individual to comply with a programme of treatment or care, it should impose a parallel obligation on the health and social care authorities to provide safe and appropriate services, including ongoing care following discharge from compulsion.

5. Informal care - Wherever possible, care, treatment and support should be provided to people with mental disorder without the use of compulsory powers.

6. Participation - Service users should be fully involved, so far as they are able to be, in all aspects of their assessment, care, treatment and support. Their past and present wishes should be taken into account. They should be provided with all the information and support necessary to enable them to participate fully. Information should be presented in an understandable format.

7. Respect for carers - Those who provide care to service users on an informal basis should be respected for their role and experience, receive appropriate information and advice, and have their views and needs taken into account.

8. Least restrictive alternative - Service users should be provided with any necessary care, treatment and support in the least invasive manner and in the least restrictive manner and environment compatible with the delivery of safe and effective care, taking account, where appropriate, of the safety of others.

9. Benefit - Any intervention under the 2003 Act should be likely to produce for the service user a benefit that cannot reasonably be achieved other than by the intervention.

10. Child welfare - The welfare of a child with mental disorder should be paramount in any interventions imposed on the child under the 2003 Act.

These lead to another set of underpinning principles to be taken into consideration when implementing the provisions of the 2003 Act. Practitioners must:

• Take into account the past and present wishes of the patient

• Take into account the views of the named person, carer or guardian

• Consider the range of treatment options available

• Provide maximum benefit with minimum restriction to the patient

• Ensure the patient does not face any kind of discrimination on the grounds of age, gender, religion, sexual orientation or ethnicity

• Inform the carer about intended actions and take into account his or her needs.

Mental disorder

This is defined as mental illness, personality disorder and learning disability, however caused or manifest.

Mental disorder is NOT defined by any of the following, on their own or in combination:

• Sexual orientation

• Deviancy

• Acting as no prudent person would act

• Behaviour that causes or is likely to cause harassment, alarm or distress to any other person

• Dependence on alcohol/drugs.

Changes to the definition of mental disorder from the 1984 Act are shown in Table 2.

Table 2. Changes to the definition of mental disorder from the 1984 Act

Medical treatment

Medical treatment, as defined by the 2003 Act, includes:

• Pharmacological/physical treatments

• Psychological interventions

• Nursing and care

• Habitation and rehabilitation.

Medical treatment for a physical disorder is NOT authorised by the 2003 Act.

The underlying principles apply, in particular that the patient has the necessary information to understand the treatment and his or her views are taken into account.

Medical treatment is authorised under Part 16 of the 2003 Act for patients subject to a:

• Short-term detention certificate

• Compulsory treatment order

• Interim compulsory treatment order

• Assessment order

• Treatment order

• Compulsion order

• Hospital direction

• Transfer for treatment direction.

Changes to the definition of medical treatment are shown in Table 3.

Table 3. Changes to the definition of medical treatment

Treatment is not authorised under Part 16 for an EDC, nurses' holding power, and removal orders. Nurses can detain patients for urgent medical examination for up to two hours under Section 299 of the 2003 Act. Once the doctor arrives, a further hour of detention is allowed. It is not good practice to immediately institute a second period of nurses' holding power once the initial two hours has elapsed.

If treatment is not subject to special safeguards (see below), it can be given either with the written consent of the patient or, failing that, if the RMO determines that it is in the patient's best interest and records the reasons for giving this treatment in writing. This would include medication within the first two months. It would also include forms of treatment (not covered by safeguards) given throughout the period of compulsion.

If the patient does not or cannot further consent after two months of compulsory treatment, the responsible medical officer must arrange for a designated medical practitioner (via the Mental Welfare Commission) to examine the patient and certify that he or she does not/cannot consent, and that the treatment is authorised and is in the best interests of the patient.

Designated Medical Practitioners ( DMP) replace the Section 98 doctors, appointed by the Mental Welfare Commission.

Electroconvulsive therapy ( ECT) may only be given if the patient can consent, and does so in writing. If the patient is incapable of giving consent, a designated medical practitioner must authorise the treatment on the basis of ECT being required in the patient's best interest. If the patient resists or objects to ECT, then it can only be used after the DMP states that it is required to save life; or prevent serious suffering or deterioration in the patient's condition.

The patient must consent to any proposed neurosurgery. If the patient is incapable of consenting, a designated medical practitioner and two lay people appointed by the Mental Welfare Commission must record both the incapacity to consent and lack of opposition to proposed neurosurgery. The Court of Session authorises the neurosurgery.

Section 243 of the 2003 Act allows urgent treatment for mental disorder for any detained patient (including those on an emergency order) in order to save the patient's life, or to prevent serious suffering or deterioration in the patient even if the patient does not/cannot consent. Also, urgent treatment is allowable under section 243 to prevent a detained patient behaving violently or being a danger to him/herself or others. If Section 243 is used, the Mental Welfare Commission must be notified of the details within seven days.

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