Scottish Government

Part 2: Current Functions of MWCS

2.1 This Part examines the current functions and roles of the MWCS and how those functions are presently performed.

Background to MWCS's current functions

2.2 The MWCS was established under the 1960 Act, as a Commission in its own right and as a body independent of Ministers, to perform the functions assigned to it under the Act. Its original remit was:

"It shall be the duty of the Mental Welfare Commission generally to exercise protective functions in respect of persons who may, by reason of mental disorder, be incapable of adequately protecting their persons or their interests… ¹"

2.3 The protective functions of the MWCS therefore went beyond protecting those who are subject to compulsory measures under mental health legislation, to protect all those who may, by reason of mental disorder, are incapable of adequately protecting themselves or their interests, whether in hospital or otherwise. In this wide remit, the MWCS differed from its English counterpart which was solely concerned with patients subject to compulsory measures.

2.4 Section 4(2) of the 1960 Act went on to expand on what duties the MWCS was to carry out in order to exercise that general protective function. In particular:

• to inquire into any case where there may be ill-treatment or improper detention, or deficiency in the care or treatment of any mentally disordered person, or where his property may, because of his mental disorder, be exposed to loss or damage;
• to visit and interview patients detained in hospital; and
• to bring any cases to the attention of any hospital board or local authority with a view to preventing ill-treatment of that patient, remedying any deficiency in his care of treatment, terminating his improper detention, or preventing or redressing loss or damage to his property.

2.5 The MWCS was continued under the 1984 Act, and its general protective role (ie an overall protective responsibility for all people with mental disorder, whether in hospital or otherwise) remained basically the same.

2.6 However, under the 2003 Act, whilst the MWCS was again further continued, its role and functions were extended.

2.7 Essentially, we consider that the MWCS today may be seen to have two broad groups of functions in relation to those who have a learning disability, mental illness or other mental disorder: protective functions; and scrutiny and improvement functions.

MWCS's current functions - protective

2.8 The need to protect people with mental illness or learning disability at an individual level, in terms of the provision of adequate safeguards for those who are subject to compulsory measures under mental health legislation, is generally well understood as being of fundamental importance to society. It is also generally held that the protective role in relation to those who are subject to compulsory measures for their mental illness or learning disability should be carried out by a body independent of government.

2.9 Today, under the 2003 Act, the MWCS has the following protective functions:

• extensive investigative powers under the 2003 Act², and to make recommendations thereafter, in relation to individual patient cases who have or appear to have a mental illness, learning disability or other mental disorder (whether detained or not) - this may arise where there have been deficiencies in an individual's care, and where the 2003 Act may have been used inappropriately or its provisions not met - both past and present circumstances may be investigated;
• investigative powers under the AWI 2000 Act³ in relation to: any circumstances made known to them in which the personal welfare of an adult with incapacity seems to them to be at risk, and to continue any investigation of a local authority into such circumstances where the MWCS is not satisfied with the local authority's investigation; and, any circumstances made known to them in which the property of the adult may, by reason of their mental disorder, be exposed to a risk of loss or damage.
• power to authorise medical examinations⁴ of patients, together with a power to inspect any medical or other records⁵;
• powers to publish issues of concern arising from visits or investigations⁶ - these will include concerns arising from deficiencies in the operation of the 2003 Act;
• powers in relation to revocation of compulsory measures under the 2003 Act⁷ - to revoke some measures itself (on the civil side, short term detention certificates, interim compulsory treatment orders and compulsory treatment orders; and on the forensic side, compulsion orders), to refer other cases to the Tribunal for consideration (compulsory treatment orders on the civil side and compulsion orders on the forensic side), and to require Scottish Ministers to refer restricted patient cases to the Tribunal in certain circumstances (all on the forensic side in relation to restricted patients or those with restricted status, namely: compulsion orders with restriction orders, hospital directions and transfer for treatment directions);
• powers in relation to cross-border transfers of detained patients⁸ - to refer to the Tribunal a decision that a detained patient be transferred out of Scotland to a hospital in another jurisdiction;
• powers of recall of functions of a welfare guardian under the AWI 2000 Act⁹;
• powers in relation to appeals against detention in conditions of excessive security under the 2003 Act¹⁰ - orders made by the Tribunal that a patient is being held in conditions of excessive security and requiring the Health Board to identify an alternative lower security hospital may be enforced by the MWCS initiating proceedings for specific performance of the Board's statutory duty before the Court of Session;
• powers to review certain decisions in relation to communications and security under the 2003 Act¹¹ - to review decisions of hospital managers to withhold postal packets from "specified persons" under the Act, and to direct that such times should not be withheld, to direct hospital managers in relation to use of telephones by "specified persons", and to direct how the Safety and Security Regulations under the 2003 Act are implemented in certain circumstances;
• powers to arrange second medical opinions, and to revoke certificates issued, in relation to certain treatments under the 2003 Act¹² - for people who are unable or unwilling to consent to treatment under the 2003 Act (this includes neurosurgery for mental disorder, electro-convulsive therapy, forcible feeding, drug treatment over two months and other treatments specified in regulations); and
• powers to arrange second medical opinions under the AWI 2000 Act¹³ - for regulated treatments and to resolve disagreements with welfare proxies.

2.10 It may be noted that, as regards the MWCS' investigative role, in some cases, this role overlaps with that of the local authority (investigations into ill treatment, neglect, suffering loss or damage etc) but in other cases the MWCS has the exclusive investigative role (investigations into unlawful detention or into a mental health order).

MWCS's current functions - scrutiny and improvement

2.11 Today, under the 2003 Act, the MWCS has the following functions that may be described as "scrutiny" or "improvement" functions:

• duty to monitor the 2003 Act, both qualitatively and quantitatively and to promote best practice in relation to the operation of the 2003 Act (including the observance of the principles¹⁴;
• duty to bring to the attention of Scottish Ministers such matters concerning the operation of the 2003 Act as the MWCS considers ought to be brought to their attention¹⁵; and
• power to publish information or guidance about any matter relevant to its functions¹⁶.

2.12 The explicit improvement roles replaced the MWCS' former general protective function under the 1984 Act. They manifest themselves in practice in the MWCS' range of guidance documents on best practice, which apply best legal and ethical principles to individuals' care and treatment.

2.13 The MWCS has built on its current range of scrutiny and improvement functions to fulfil a role as the expert body on ethical and legal principles in relation to the care and treatment of those with a mental illness, learning disability or other mental disorder. This is as opposed to the type of more strategic role that other bodies such as the Care Commission and SWIA have as regards the general improvement of service delivery in their sectors.

MWCS's current functions - ancillary / miscellaneous

2.14 The following remaining functions of the MWCS do not fit neatly into either the protective or scrutiny / improvement categories above:

• duty to visit people subject to compulsory powers under the 2003 Act¹⁷ - those detained in hospital as well as those who are not detained but are subject to compulsory measures, for example, in the community and in certain other non-hospital premises such as prisons, YOIs and some care premises;
• duty to visit people subject to certain orders under the AWI 2000 Act (certain intervention orders, guardianship orders with welfare powers and those who have granted a welfare power of attorney)¹⁸ - i.e. adults with incapacity who are subject to certain safeguarding orders under the AWI 2000 Act;
• duty to advise Scottish Ministers, Health Boards, local authorities, the Care Commission and the Ombudsman on matters that arise from the 2003 Act and that the body has raised with the MWCS¹⁹ - this duty replaced and extended the MWCS' previous duty under the 1984 Act;
• power under the AWI 2000 Act to provide information and advice to guardians / welfare attorneys / those authorised under an intervention order when requested to do so, in connection with the performance of that person's duties in relation to personal welfare under the Act ²⁰;
• duty to publish statistical information relating to the discharge of its functions under the 2003 Act²¹.

2.15 The duty to visit is often described as a "protective" function of the MWCS. However, we consider that it may properly be seen as a process by which the MWCS' functions, both protective and improvement, are discharged and for this reason have catalogued visiting as an ancillary function.