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CHAPTER 7: DISCUSSION

7.1 The focus of this chapter is on the major areas of concern for respondents with an update of what might be happening in response to some of the concerns where this is available. Before considering this, however, some attention must be given to the limitations of the study.

LIMITATIONS OF THE STUDY

7.2 There are several limitations which should be borne in mind when considering the findings of this study.

Timing of the study

7.3 The MHCT Act had only been in force for about nine months when people were initially asked for their views. Any Act takes time to 'bed down' and for those who use it to become familiar with it, including its requirements and the processes involved. This was commented on by a number of respondents.

7.4 A number of respondents had had little experience with the MHCT Act and were on a steep learning curve in terms of their responsibilities and the paperwork. It could be expected that as people become more used to the procedures some aspects may not take as long. Also putting in place some recognised systems, for example, for recording details of named persons, may also streamline the process.

7.5 In other cases problems, such as those with software and forms, which were common at the outset might be expected to reduce considerably over the first few months of their use.

7.6 The costs stated in this report (see chapter 4) are transitional costs and therefore will be subject to change as the MHCT Act progresses. When it has bedded-in and people are more familiar with its workings, a more realistic estimate of time and costs may be established. Experience from the USA has indicated that following a change in the law short-term responses to new legislation may not continue at the same level over time and may revert to previous levels (Appelbaum 1997, Atkinson and Patterson 2001). This would be another reason for monitoring costs in relation to the number of orders at a later date

7.7 Another issue was that information was not available for all aspects of the administrative process. In its original specification for this study the Scottish Executive had wanted to look at all costs of administering the MHCT Act, including lawyers costs and the costs of the MHTS.

7.8 Mental health work carried out by solicitors will normally be supported by legal aid. Legal aid cannot be claimed until all the work for a case has been completed. Where there are a number of interim orders and appeals, this may not be for some considerable time. This type of information was not available at the time of this study. Since some patients were represented by solicitors under the 1984 Act, any calculation of additional costs would need to look both at additional work and the additional number of patients retaining the services of a solicitor rather than total costs.

7.9 The cost of the Mental Health Tribunal for Scotland is a new cost and includes capital costs relating to the Tribunal Headquarters in Hamilton as well as staff and other administrative costs. The costs of the tribunal hearings can be calculated separately. Information on all Tribunal costs are not yet available but will appear as audited accounts. As with other aspects of the administration of the MHCT Act staff at the Tribunal have become more proficient in 'turning around' the paperwork for an order. This is now in the order of one day, whereas at the start it took two-three days (Davie 2006). Any costs accruing to the tribunal hearings will need to be compared to the costs incurred by the previous hearings at the Sheriff Court. There was no information on these costs available at the time, nor any way of calculating them or the savings to the Sheriff court with any degree of accuracy. The Scottish Executive will address the costs of the Tribunal through a study of the Tribunal as well as through their annual reporting process. This should give a clear picture of the costs of the new Tribunal service.

Response rates

7.10 There was a low response rate to the survey. Although in many informal instances people seemed very keen to talk about problems with the MHCT Act this was not translated into responding to the questionnaires or interviews. There may be several reasons for this.

7.11 It became clear that both locally and nationally a number of studies into the impact of the MHCT Act were being carried out. Some Health Boards were conducting an audit of the time involved, in some cases a before and after comparison. The Royal College of Psychiatrists was carrying out a national survey, and there were some smaller scale studies being carried out by psychiatrists. There was a sense, expressed by some respondents, and by non-respondents in other fora, that people were getting 'fed-up' with being asked about how long the MHCT Act was taking and its impact on other work.

7.12 The initial timeframe of the study (six months) did not adequately account for the length of time it would take the research team to negotiate and gain access to contact information on different staff groups. This was an issue as information on different orders was held in different places (see chapter 2, paragraph 2.10 for where contact details for each order were collected). Following discussion with the Scottish Executive it was decided to extend the timeframe of the study to allow for reminder questionnaires to be sent out. Two sets of reminders were sent to the sample group. This resulted in a small extra number of completed questionnaires being returned (n=43). It should again be noted that the second and third wave were only sent to psychiatrists and MHOs involved in emergency, short-term and compulsory treatment orders (for clarification see chapter 2, paragraph 2.14).

7.13 As has already been stated, problems with the number of returns from COROs and TTDs were accentuated by the fact that questionnaires could only be sent to psychiatrists (as no MHO details were held). Contacting MHOs was thus dependent on psychiatrists making MHO contact details available to the research team.

7.14 The response rates for the overall study was similar to that of Shah and Taylor (submitted) in their national study of psychiatrists carried out on behalf of the Royal College of Psychiatrists Scottish Division. This had a response rate of 19% (181 psychiatrists) despite sending out reminders.

7.15 Having said that the response rate was low, it should be noted that those people who did respond to questionnaires, and particularly interviews, were very helpful with their comments. Although the methodology was not designed in a way to allow interviewing to saturation, it should be noted that by the last interviews no new major topics or concerns were being expressed.

TIME AND WORKLOAD ISSUES

7.16 There may be a significant impact on workload as well as on other services because of the demands placed on staff by MHCT Act work. Although several studies have considered workload implications of the MHCT Act for psychiatrists they have collected different information in different ways that make any clear comparisons difficult.

7.17 A national study of 181 psychiatrists (Shah and Taylor, submitted) suggested that the average time to complete a short-term detention certificate form was 41 minutes, (compared to an average of 21 minutes in the current study for preparation of the certificate). The CTO form was estimated to take 66 minutes in the Shah and Taylor study and 53 minutes in this study. Shah and Taylor asked how much time was spent on all MHCT Act activity in a week, with an average response of 2.5 hours. Another study in Glasgow (McGregor et al, cited Taylor 2006) asked the different specialities for the time spent on MHCT Act duties per week. For general adult psychiatrists the time was 2 hours 25 minutes (representing an increase over the 1984 Act of 1 hour 13 minutes) and for psychiatrists in learning disabilities 3 hours 40 minutes (representing an increase over the 1984 Act of 3 hours 16 minutes).

7.18 What this increased workload means for other patient services is difficult to quantify. Although respondents in this study reported cancelled clinics and other negative impacts they were not asked to quantify this in the questionnaire and in interviews it became clear that to do so would be extremely difficult. A clinic might be cancelled to attend a tribunal, for example, but this might happen only rarely for each psychiatrist. Nevertheless in Shah and Taylor's study approximately one third of psychiatrists reported cancelling a ward round and one third an outpatient clinic because of MHCT Act work (Shah and Taylor, submitted).

7.19 This study has not analysed the number or types of orders being used in any detail, nor compared this with the 1984 Act. There is some evidence, however, that although the number of emergency detentions has fallen, there is a slight increase in the length of time people are detained under short-term detention (Lyons 2006, Shah, submitted). In Edinburgh this would equate with approximately 3 additional in-patient beds per year (Shah, submitted).

7.20 Increased workload in this study has been calculated in terms of financial costs. The small numbers make drawing too many inferences from this unsafe. It is only an actual additional cost to the service if more people are employed, which in most areas does not seem to have been the case. Rather, there has been an impact on patient services in other ways, either through cancellation/postponement of services or duties being carried out by other staff.

7.21 While some consultant psychiatrists interviewed in the present study were not wholly satisfied with the training they had received (see chapter 5, paragraph 5.9) to prepare them for working with the MHCT Act, another noted that nearly half of the psychiatrists they contacted were satisfied with their training (Carswell et al 2007).

7.22 A study of RMOs (psychiatrists, non-psychiatrist hospital doctors and GPs in Glasgow) indicated that knowledge of the requirements for an emergency detention certificate were patchy for some groups. In general it was found that psychiatrists knew more than GPs, that GPs knew more hospital doctors, while consultant psychiatrists knew more than junior doctors. Only 18% of psychiatrists and 15% of non-psychiatrists felt that adequate information on the MHCT Act had been given to non-psychiatrist doctors. One concern raised was whether emergency certificates granted in general hospitals as opposed to psychiatric units were being granted without a full knowledge and understanding of legislation (Jones et al, submitted).

INTERIM ORDERS

7.23 A great deal of concern was expressed about the impact of the very high number of interim orders on workload. This was not anticipated and thus was not factored into workload estimates for professional staff groups (see, for example, Atkinson et al 2002). It had also not been taken into account in estimating the workload for members of tribunal hearings (Davie 2006).

7.24 The President of the Mental Health Tribunal for Scotland highlighted the issue of interim orders in a presentation to the Royal College of Psychiatrists Scottish Division, Autumn Meeting on 29 September 2006 (Davie 2006). She presented both an analysis of the reasons why there were so many interim orders and possible solutions. In her view the most 'common circumstance' for this 'is that the patient has had insufficient time to prepare'. Almost all applications are received by what the Tribunal perceived as 'late', that is 'day 26 or later'. This meant virtually all applications were dealt with in the five-day extension to the short-term detention certificate. This necessarily means that people (patients and their representatives) can only be given two days notice of the tribunal. It should be noted that psychiatrists interviewed in this study argued that making CTO applications too early in the process was not best practice (for example see chapter 5, paragraph 5.36)

7.25 Concern was raised in this study about evidence being heard repeatedly at hearings, which added to both time and patient distress (see chapter 5, paragraph 5.39) and the necessity for this questioned. Davie (2006) pointed out the need to hear evidence before an interim order is granted as the test for granting an interim order under the MHCT Act is virtually the same as for granting a full order. A suggestion made in some quarters that a 'paper hearing' might be considered at this stage was, she argued, neither appropriate nor acceptable.

7.26 While there is agreement that repeated hearings are in no-one's interest, least of all the patient's, an interim order means that a patient could be detained for 61 days, calculated by reference to, 28 days as authorised by the RMO in terms of the STDC plus five days during which the first hearing will take place and one interim order of 28 days (28+5+28). There may also be two interim orders granted in which case the patient could be detained for a maximum of 89 days without a ' proper' hearing. Where a patient is unrepresented or his representative has not had sufficient time to prepare, the Tribunal can only hear evidence in relation to the medical criteria by reference to the medical reports which are lodged as part of the application. Where that evidence is unchallenged, because the patient has not had the chance to prepare, then he has not had a ' proper' hearing. The purpose of an interim order is to allow the position regulated pending a full hearing and determination of the issue of compulsory measures of care (Davie 2007, personal correspondence). Davie has put forward what was described as a 'simple solution' to the problem. This was to have the MHO arrange for a solicitor to see the patient at around day 14 of the short-term certificate (Davie 2006). But this in itself raises a number of other issues.

7.27 It is not clear whether MHOs would be willing to take on this role. There may be a number of objections. Firstly, there would be the addition to workload. Secondly, there might be concern that there may be seen to be a conflict of interest, in that the person preparing the application is also the person who is advising on, or recommending, legal representation.

7.28 One aspect which was not mentioned by respondents in the study, and does not seem to have been considered widely elsewhere, is the role of advocates and advocacy services in supporting patients at the tribunal hearing.

CURATOR ad litem

7.29 The issue of the appointment of a curator ad litem was raised by a small number of respondents, although the issues relating to this and the relationship with interim orders has been brought up in other fora. The appointment of a curator ad litem has been seen as contributing to the number of interim orders. If it is not known (or decided) that a person needs a curator appointed until the tribunal hearing then there will necessarily be a second hearing and very possibly a third.

7.30 Suggestions about involving solicitors at day 14 (see paragraph 7.26 above) would mean that there would be no need to appoint a curator. Others may feel that the longstanding use of curators under the 1984 Act and their continued use under the AWI Act demonstrates a system that has and continues to work well.

7.31 An extended discussion of this issue is outwith the scope of this report. A working group headed by Ian Miller, Chair of the Mental Welfare Commission, was set up in June 2006 by the Scottish Executive to look at the role of curators. The report made 5 recommendations, two of which were accepted by Lewis MacDonald (the then Deputy Minister for Health and Community Care). The first recommendation was that when an MHO is instructed by the RMO to make a CTO application, where there is concern about a patient's capacity to arrange legal representation the MHO should advise the Tribunal within 48 hours. The Tribunal will then appoint a curator ad litem for the patient. It was suggested that this was a way to reduce delays and the costs of tribunal hearings. The second accepted recommendation was that 'consideration should be given to introducing a practice note or guidance to curators ad litem as to their duties towards the patient' (Miller 2007). Other recommendations related to whose responsibility it was to pay for curators. The Miller working group suggested that Ministers should consider whether fees should be met by the Tribunal (in terms of paragraph 16 of schedule 2 of the MHCT Act) or whether the Scottish Legal Aid Board have the power to pay curator fees. Until this was resolved they also recommended that fees should be met from an interim payment scheme funded by government. These recommendations were rejected by Lewis MacDonald on the grounds that, in his view, the MHCT Act provides the power for the Tribunal to pay curators appointed by them and he would take steps to make this clear in the legislation (Scottish Executive 2007).

ROLE OF SOLICITORS

7.32 The main issue relating to the role of solicitors was that their presence in tribunal hearings had made some hearings adversarial and legalistic. The variation in experience of different staff groups at tribunal hearings has led some to seek guidance from in-house legal staff before appearing at a hearing or to seek their own legal representative at the hearing. This may have important implications for the nature of tribunal hearings in the future.

7.33 One question is whether all patients, rather than being asked whether they want to see a solicitor, have arrangements made for them to see one irrespective of incapacity status. Discussions of these issues are outwith the scope of this study but do require further consideration.

WORKFORCE ISSUES

MHO workforce

7.34 A number of local authorities have taken the opportunity to redesign their mental health services to acknowledge the impact of MHCT Act and the expected additional burden of responsibility on MHOs.

7.35 Service redesign varied from area to area dependent upon local need. However in general it appears to have been focused on identifying and acknowledging those with the MHO function and re-designating posts. The posts thereafter appear to have a dedicated MHO function within a variety of settings including dedicated teams (100% MHO function) or within specialist teams, based in multi-disciplinary settings, e.g.CMHTs or in generic teams (which had either split posts or fully dedicated posts). Service redesign appears to have resulted in a focusing of expertise held in local authorities into designated posts deployed in various ways. There were significant issues for those MHOs interviewed in this study in balancing tasks where they have a broader caseload than MHO work.

7.36 A recent workforce survey undertaken by the Scottish Executive (Scottish Executive 2006) indicated that there were 329 whole time equivalent MHOs available in Scotland (in addition to which 31 mental health managers also spent time on MHO tasks). The number of those working in specialist mental health teams ( e.g.CMHT and specialist social work mental health teams) appears to be substantial at almost 300. Details of the dispersal of MHOs in specialist mental health teams in 2005/2006 can be found in Table 7.1 below (Full details of the survey findings on which this data is based can be found in the Mental Health Officers Newsletter 2006/7, Edition 13). Note that caution should be taken in directly comparing figures across the two years as some managers included in the figures for 2006 had not been counted in 2005).

Table 7.1: MHOs Working in Specialist Mental Health Teams, 2005-2006

*In 2006 this was mainly made up of dedicated MHO Teams

7.37 These statistics provide information of an overall increase in MHOs as well as those practicing in specialist teams. However as the survey on which the figures area based was undertaken in March 2006 it is perhaps too early to say what the long-term impact of the work of the MHCT Act on MHO service design might be.

7.38 In addition the survey reported that as of 31 March 2006, 87 social workers were undertaking training to become MHOs. Table 7.2 below shows the spread of trainees throughout existing teams.

7.39 However it should be acknowledged that due to the fact that many MHOs are lost to the service each year, due to retirement, promotion, starting families, changing post or moving out of Scotland, this might not significantly increase the overall number available. It has been suggested that the development of dedicated MHO posts might increase capacity to cope with the evocation of compulsory measures and maintain specialist knowledge, however it is too early to suggest that this will be the case.

Table 7.2: Social Workers Undertaking MHO Training

Psychiatrist workforce

7.40 Before the introduction of the MHCT Act the Royal College of Psychiatrists Scottish Division carried out a scoping exercise on its possible impact on psychiatrists (Atkinson et al 2002). This suggested that the expected additional burden on psychiatrists meant there was the need for between 18.2 and 28.5 additional consultant posts across Scotland. It was then suggested that much would depend on what demands were made of psychiatrists by tribunal work but that this, and the impact of the European Working Time Directive would mean that a better estimate of the need for new psychiatric posts was 30 in total (Grant 2004). In 2006 there were 488 Consultant psychiatrists in post in Scotland, with 54 vacancies (10%), 36 of which had been vacant for over six months (source: ISD Scotland National Statistics release 2006). There has also been a consistently high level of consultant vacancies, currently 11% nationally (Royal College of Psychiatrists 2006). In a response to an inquiry into workforce needs and planning the College argued that psychiatry had not managed to reach training targets to offer enough trained psychiatrists to fill even established posts (Royal College of Psychiatrists 2006). The profession was also not attracting enough UK graduates, with an overall figure of 4%-5% choosing psychiatry, while there were also problems in retaining staff (Royal College of Psychiatrists 2006). These issues in addition to the current workload of psychiatrists may well have important implications for future workforce recruitment and retention.

FORMS

7.41 The Mental Health Law team received over 100 suggestions for change via the forms feedback pro-forma. After reviewing these requests the Forms Steering Group held a small consultation with stakeholders resulting in a number of changes being agreed to some of the forms. Work is currently being undertaken by the Mental Welfare Commission to carry out the agreed changes and new versions of the forms will be issued in due course.

7.42 The Mental Health Tribunal have the capacity and processes in place to allow for the admission of detention forms electronically. They have already begun piloting the use of electronic submissions in local authority areas (two authorities as of March 2007) and will continue to develop this work in other authority areas. There do, however, remain problems relating to the effective use of an electronic application system. One issue commonly highlighted by our respondents was the impact of the lack of secure email/network systems for MHOs, which meant they could not apply electronically. Local authorities need to ensure that appropriate systems are in place to allow for electronic applications to occur on a regular basis.

OUTCOMES OF THE ACT

7.43 This study did not look at outcomes for patients, although some general comments were made. Views about whether tribunal hearings are an improvement over the Sheriff court were fairly evenly divided. In a national study of 257 psychiatrists by Carswell et al (cited Taylor 2006) 34% of respondents thought the tribunal hearing was better than court and 52% did not. In a much smaller study (n=28) in Glasgow however, over 80% agreed that hearings take patients views and also those of the named person into account. Just over 60% thought that tribunal hearings were fair to the patient (McGregor et al, cited in Taylor 2006)

7.44 Approximately one third of psychiatrists in one study thought that patient care had improved as a result of the MHCT Act (Carswell et al, cited Taylor 2006) while one third agreed that the MHCT Act makes good practice obligatory (McGregor et al, cited in Taylor 2006).

7.45 The results of this and other studies do raise the question of how far the MHCT Act is fulfilling its promise and its principles. In particular the principle of least restrictive alternative would appear to be compromised in certain circumstances. A number of things contribute to this. One is the slightly longer hospital stays in the move from emergency to short-term detention, an outcome predicted by Atkinson et al (2002). Another is the reaction to the time taken to fill in suspension forms and the reluctance in some cases to do this (see chapter 5, paragraph 5.17)

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