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CHAPTER 1: INTRODUCTION
1.1 The Mental Health (Care and Treatment)(Scotland) Act 2003 ( MHCT Act) passed into law on 25 April 2003 and into effect on 5 October 2005. It had been expected to be enacted in April 2005 but was delayed to allow longer for finalising secondary legislation, recruiting Tribunal members and for services to prepare for new demands which would be placed on them (Community Care 2004a, Hayes 2005, Atkinson 2006). The implementation of the MHCT Act, particularly in its first year, needs to be set against the background of its introduction.
1.2 Ten years before the new law was enacted a Scottish conference (organised by the Law Society of Scotland, the Royal College of Psychiatrists Scottish Division and the Scottish Association for Mental Health) entitled The Mental Health (Scotland) Act: Consensus for Change drew 305 delegates from all interested parties. It was, however, devolution which provided the final impetus for consideration of reform of the law and led to a different process and outcome to that in England & Wales (Atkinson 2006).
1.3 The reform process started formally in February 1999 with the review committee under the chairmanship of the Right Honourable Bruce Millan. The committee membership was broad, including two service users and two members of voluntary organisations, and it consulted widely. The report of the committee (the Millan Report) was published by the Scottish Executive (2001a), and its recommendations were largely incorporated into the subsequent Policy Statement (Scottish Executive 2001b). The then Minister for Health, Susan Deacon, wrote that the Scottish Executive would ' implement the great majority of the report's recommendations' (Scottish Executive 2001b).
1.4 There was a slight delay in publishing the full bill (on 16 September 2002) although, in the spirit of co-operation and consultation, a draft bill was published in June 2002. The Parliamentary Heath and Community Care Committee, chaired by Margaret Smith MSP, then invited written responses to the bill, interviewed witnesses from a range of backgrounds and made several visits to services (Stage 1 of the passage of the bill). Every opportunity was made for all interested parties to have their voice heard. Inevitably where there are differences of opinion having one's voice heard does not, and cannot, always mean having one's opinion upheld.
1.5 In general the bill was welcomed by most groups, although there were areas of concern (Scottish Parliament 2002a, Kenny 2003, Grant 2004, Leason 2005, Atkinson 2006). Particularly welcomed was the commitment to the underlying principles proposed in the Millan Report (Scottish Parliament 2002) and the introduction of the Mental Health Tribunal for Scotland (Scottish Parliament 2002c). The main areas of concern were the introduction of community-based compulsory treatment orders, and issues around consent for ECT and neurosurgery for mental disorders (McKay 2001, Scottish Parliament 2002d).
Stage 2 of the passage of the bill saw a multitude of small amendments by those drafting the bill, as well as calls for amendments to substantial parts of the bill about which anxiety had been expressed during Stage 1 (Community Care 2003a,b, Atkinson 2006).
1.6 Throughout the consultation on the bill concern had been expressed at the workload implications, particularly the effect on psychiatrists and mental health officers ( MHOs). Millan had not been charged with considering resource issues and it was only when the bill was being considered that this came into the frame. UNISON Scotland (2002), in their response to the Millan consultation, made it clear that as well as safeguarding patients' rights there was an equal need to protect the rights of staff and to keep them safe.
1.7 A study was commissioned by the Scottish Executive to look at the potential implications for MHOs on top of the already additional work imposed by the Adults with Incapacity (Scotland) Act 2000 (McCollam et al 2003). Additional money was also provided by Local Authorities ( LAs) in recognition of the impact the increased MHO role would have under the MHCT Act.
1.8 To understand how resources and mental health services might meet the new challenges of new legislation, Dr. Sandra Grant was commissioned by the Scottish Executive to report on the position of services across Scotland and their readiness to meet the new requirements of the MHCT Act (Grant 2004). Grant reported on ' genuine bewilderment' and a ' sense of paralysis and inertia' from clinical staff and managers about how they would deal with the increased workload brought about by the MHCT Act on top of gaps in the workforce at the time. It is not clear how much of the additional workload was being attributed to the administration of the new legislation (and new application procedures for orders), or how much related to concerns over gaps in services and the impact of this on the new provisions made in the MHCT Act.
CHANGES IN THE LAW
1.9 The MHCT Act repealed the Mental Health Act 1984. It was the first comprehensive review of mental health law in Scotland since the introduction of the Mental Health Act 1960. As such there would necessarily be wide ranging changes. These ranged from the philosophy underpinning the principles, new responsibilities for different agencies, and new provisions for the care and treatment of patients. A full commentary on the MHCT Act can be found in Patrick (2006) and McManus and Thomson (2005).
1.10 This study is concerned with the administration of civil compulsory powers under the MHCT Act. These are:
- Emergency detention certificates
- Short-term detention certificates
- Compulsory treatment orders (which includes provision for intermediate orders, and suspension and revocation of an order)
- Compulsion orders and restriction orders
- Transfer for treatment directions.
In addition, appeals against excessive security were to be considered.
1.11 Emergency and short-term detention remain broadly as they were under the 1984 Act. Compulsory treatment orders ( CTOs) replaced long-term detention orders and although much of the provision remains the same (they are for six months in the first instance) it introduces the possibility of compulsory treatment being enforced in the community as well as in hospital. This necessitates a new task under the order relating to non-compliance with a community-based compulsory treatment order ( CB- CTO). The range of tasks relating to each order as set out in the MHCT Act (as well as those promoted in the Code of Practice) can be found in chapter 3 of this report (see Tables 3.1- 3.6).
1.12 Other features which have an immediate impact on the duties and tasks surrounding the administration of compulsory treatment are:
- Changes to the criteria for compulsory treatment
- The introduction of the Mental Health Tribunal for Scotland
- The introduction of the named person
- The introduction of advance statements.
1.13 The important change to the criteria for compulsory treatment is the introduction of the necessity for a person to have significantly impaired decision-making ability in respect to medical decisions. This is not defined in the MHCT Act and is less legalistic than the capacity test in the Adults with Incapacity (Scotland) Act 2000 (Patrick 2006). Although this may be seen as an additional 'task' in the process of assessment for compulsory treatment, potentially, its main impact might be on the number of people subject to detention or compulsory treatment.
1.14 The Mental Health Tribunal for Scotland ( MHTS) has been introduced as the authority for granting detention and compulsory orders and for varying and revoking them. It replaces the Sheriff Court and was introduced in the hope that it would facilitate greater involvement of patients in the process (Atkinson 2006).
1.15 The introduction of the named person to replace the nearest relative reflected the principle of participation, and also, in some ways, respect for carers. Its importance here is in relation to the additional duties and tasks imposed on MHOs.
1.16 The introduction of advance statements reflect the principles of participation, least restrictive alternative (Atkinson and Garner 2002), non-discrimination, equality, and respect for diversity. Their potential impact on the process of detention and compulsory treatment is unclear and in the scoping study by the Royal College of Psychiatrists was treated as ' neutral' (Atkinson et al 2002). Their impact in the administration of compulsory treatment is through tasks related to tracking their existence and time taken to discus them at the tribunal (although this cannot be quantified as an independent feature). The potential impact of advance statements on outcomes as a result of particular treatment choices is a separate issue and likely to be complex (Atkinson 2007).
IMPLEMENTING THE ACT
1.17 Health Boards and Local Authorities had two and a half years to prepare for the implementation of the MHCT Act but it was not clear that all of them had responded in all areas. Previously expressed concerns continued about resources and implementation (Community Care 2004b, Darjee and Crichton 2004, Wood 2005). It was not simply services which had to have things in place, people needed to be trained. With an emphasis on psychiatrists and MHOs, a training programme was put in place. Medical records staff had to be updated as to their role. The setting up of the Mental Health Tribunal for Scotland ( MHTS) was a massive undertaking. As well as appointing a President and administrative staff, members had to be recruited to run the tribunal hearings (lawyers, medical members and general members). Finding enough medical members was initially found to be difficult. In June 2005 there were 72 medical members set against the target of 100 medical members (Scottish Executive 2005a). These all then had to be trained. New services, including expanding advocacy services, developing services for children and adolescents, women with post natal depression and medium secure accommodation all had to be put in place. The anticipated problems in developing the latter meant that appeals against excessive security (Part 17, Chapter 3 of the MHCT Act) were not intended to be implemented before May 2006.
1.18 To oversee the process and report on the progress of Health Boards, Joint Local Implementation Planning ( JLIP) procedures were set up. Each Health Board had to report on a regular basis to the Scottish Executive on eleven delivery indicators. These were:
- Tribunal
- Human resources
- Crises response and 24 hour services
- Perinatal mental health services
- Age sensitive (under age 18) in-patient care and accommodation
- Advocacy
- Local authority functions
- Appeals against levels of security
- Learning disability
- Joint future
- Other issues
Health Boards received feedback on the plans from the Scottish Executive.
1.19 A draft Code of Practice was published as a consultation document in 2004, but the final, three volume Code of Practice was not published until 21 September 2005, days before the MHCT Act was implemented (Scottish Executive 2005).
AIMS OF THE RESEARCH
1.20 The main aim of this research was to develop an overview of the administration required by the new compulsory powers and to assess the impact of this work on the workload, roles and responsibilities of relevant professional groups. This was refined into questions in four main areas:
(1) Administrative responsibilities and tasks: to identify the administrative tasks involved in the compulsory powers, and assess who is believed to be responsible and who actually carries out the tasks.
(2) Time and costs: to assign actual time to the above tasks to allow cost estimates.
(3) Barriers and facilitators: to assess what hinders or aids the administrative process.
(4) Impact on other services: to assess which activities are being delegated, postponed or cancelled as a result of any increased workload.
1.21 Five compulsory orders were looked at:
- emergency detention certificate ( EDC)
- short term detention certificate ( STDC)
- compulsory treatment order ( CTO)
- compulsion/ restriction order ( CORO)
- transfer for treatment directive ( TTD)
It was not possible to look at appeals against excessive security within this study. For clarification see chapter 2, paragraph 2.11.
1.22 The study was carried out between May 2006 and March 2007.
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