Scottish Government

Jacqueline M Atkinson, Jacquie Reilly, Helen C Garner, Lesley Patterson
Public Health and Health Policy, University of Glasgow
ISBN 0 7559 2607 2

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Main Findings

• Research literature is patchy with comparatively little empirical work looking at outcomes of mental health legislation.
• There are problems in making international comparisons because of differences in the laws themselves and also differences in services, expectations of health, social and welfare services and approaches to issues such as individual protection and public safety.
• There are major methodological, legal and ethical problems in carrying out research on mental health legislation, not least whether to treat the law itself as an intervention or a method of delivering services. The question of what are appropriate outcome measures also requires consideration.
• The Mental Welfare Commission report an increase in the use of the Mental Health (Scotland) Act 1984 between 1985-2003. Cases of emergency detention increased by 47%, the number of short-term detentions doubled, while long-term detentions rose by 233%.
• International evidence on outcomes from studies of compulsory treatment in the community are equivocal, but would seem to suggest that they have importance in helping people to stay in touch with services/interventions.
• Court and custody contact diversion schemes provide an important service in meeting significant unmet need for offenders whose offence is not serious and who do not pose a significant threat to the public.
• There is little evidence on outcomes on the use of advance directives, but some indication that uptake is low and that psychiatrists may need to engage more fully with their use.
• There is little research relating specifically to minority groups and legislation, although it is noted that detention rates for young people continue to rise and the differential detention rates for Black and White ethnic groups cause concern.

Background

The Mental Health (Care and Treatment) (Scotland) Act 2003 will be enacted from October 2005. The new Act is based on ten principles, which are intended to guide its interpretation and application. Amongst other changes the new Act introduces:

• compulsory treatment orders, which may be hospital or community based;
• the Mental Health Tribunal for Scotland;
• the named person, able to undertake a number of functions in support of the patient;
• the right of access to independent advocacy;
• advance statements;
• new powers for the Mental Welfare Commission; and
• changes to detention for mentally disordered offenders.

Aims and objectives

The main aim of the research was to update the literature review relating to mental health legislation which contributed to informing the reform of the Mental Health (Scotland) Act 1984 prior to the new Act becoming law in October 2005 (Atkinson and Patterson 2001). This review would take account of the perspective of all stakeholders and would be achieved through the tasks laid out below:

• 'Systematically review literature and research findings relating to the working of mental health legislation, care and treatment in Scotland from the perspective of all stakeholders and compare to the rest of the UK.
• Build upon and up-date the material contained in the previous review
• Highlight important themes within the research
• Collect, collate and compare material from international studies as they relate to the identified themes
• Identify gaps in existing evidence

Method

Online searches were conducted using relevant databases. Searches were restricted to those papers written in English with a publication date from January 2000 to mid July 2004. Rigorous inclusion and exclusion criteria were applied and articles were double blind interrogated by two researchers. From a total of 3,966 identified references 645 were read for inclusion in the review and an associated annotated bibliography.

Results

There is a chapter on each of the following areas in the literature review.

Trends in the use of the Mental Health (Scotland) Act 1984

Mental Welfare Commission for Scotland annual reports indicated a rise in the use of the MH(S)A during the period 1985-2003. Emergency detention (Sections 24, 25) rose by 47%, short-term detention (section 26) doubled and long-term detention (Section 18) rose by 233%. Detention under the Criminal Procedures (Scotland) Act 1995 also rose. Guardianship has risen since the introduction of the Adults with Incapacity (Scotland) Act 2000. The majority of applications for Guardianship are related to older people with dementia. One quarter of applications are for adults with learning disability.

Mental health tribunals

The Mental Health Tribunal for Scotland, introduced in the new Act, differs from the current system in England and Wales in that it both makes decisions about detention/compulsory treatment as well as discharging patients. A number of problems with tribunals have been noted in England and Wales, where the system is set up to safeguard the rights of patients who have been detained. These problems include delays, costs, poor outcomes, lack of clarity in the process and concern that the system is becoming increasingly legalistic.

Impairment and capacity

A new criterion of impaired decision making relating to medical decisions is introduced in the new Act for detention/compulsory treatment. There is limited research on the relationship between capacity and detention/compulsory treatment, especially for groups other than people with dementia. Research suggests the need to consider how information is presented to people, as this may impact on their ability to make decisions.

Compulsory treatment in the community

Compulsory treatment in the community is currently available in Britain through leave of absence ( LOA), community care orders ( CCOs), supervised discharge orders ( SDOs) and Guardianship. The new Act introduces community-based compulsory treatment orders. Research in Britain is limited, but there is some evidence for the usefulness of CCOs and SDOs. Two randomised trials of compulsory community treatment ( CCT) have been carried out in USA, coming to apparently opposite conclusions about the usefulness of CCT. Although some form of community order helps to keep people in touch with services, factors such as substance use also have an important influence on outcome. Patients' attitudes to the different forms of CCT are variable. Although coercion is not welcomed, it is sometimes seen as necessary.

Mentally disordered offenders

The new Act introduces changes for the management of mentally disordered offenders ( MDOs). The main aspects of the changes include new options for courts in dealing with people with mental disorder. An important issue is the high prevalence of co-morbidity with alcohol and substance use among MDOs. Court and custody diversion schemes provide a valuable service in meeting unmet need where offences are not serious and the person is not a significant threat to the public. African-Caribbean men classified as MDOs are more likely to be remanded to court than their White counterparts.

Advocacy

The new Act introduces a right to access to independent advocacy, but it is likely that other forms such as collective and citizen advocacy will need to play a role. The rationale behind the provisions in the Act was that the marginalisation of patients with mental health needs had to be addressed. New bodies providing policy level and local organisation support, advice, training, evaluation and mediation have been established in Scotland. There is no relevant research relating to individual or citizen advocacy, although a study carried out in 2003 showed that the successful development of collective advocacy in the context of the new Act would entail awareness raising and training for advocacy groups.

Advance directives and statements

The new Act makes provision for people to make an advance statement outlining their wishes in respect of treatment should they be subject to detention or compulsory treatment. Various forms of mental health advance directives have been in existence in the USA for some time. There are many practical concerns regarding the use of such directives. Two studies in London appear to come to opposite conclusions about the use of different versions of advance directives, although this might be explained by differences in methodology and type of directive. Patients' attitudes to advance directives vary widely. The involvement and support of staff, particularly psychiatrists, is an important factor in encouraging people to make advance statements..

Least restrictive alternative

Least restrictive alternative ( LRA) is one of the underlying principles of the new Act and is considered in this review because of its relationship to compulsory treatment in the community and advance statements. The literature is predominately from the USA. There has been a tendency to assume that LRA means treatment outwith an institutional setting, but another approach is to see it as an expression of a patient's wishes.

Minority groups

There is a range of groups for whom special considerations apply in relation to mental health legislation, either because of detention rates or because they are identified in the literature as having special needs.

Minority groups included are:

• children and adolescents (for whom the use of the Mental Health Act is increasing)
• women (in high security settings women tend to have come from hospital rather than through the criminal justice system)
• minority ethnic groups (studies have placed the figure for detentions for Black people at three times that for White people, although there are problems with definitions of ethnicity)
• older people (the emergency detention of older people receives little attention)
• people with learning disability (detention rates vary across Scotland and there is a lack of information on the number and needs of people with learning disabilities)
• deaf people (there is a lack of specialised information and services)
• people with anorexia nervosa (there is concern over the use of involuntary hospitalisation and definitions of capacity).

Implications of the new Act for the Workforce

Although the new Act has been welcomed by service professionals, concern has been expressed regarding workload issues. The impact on mental health officers is expected to be greater than for other professions. One survey indicated that mental health officers may have difficulty in responding to the additional demands.

Research and the new Act

The Scottish Executive has set up and funded a research programme to monitor and research the impact of the Act. A consultation process was carried out in 2003 and analysis of the process has identified priority areas of research. Research will involve all stakeholders, including users and carers.