Limited Review of the Mental Health (Care and Treatment) (Scotland) Act 2003: Report

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CHAPTER ONE INTRODUCTION

Membership and terms of reference

The Mental Health (Care and Treatment) (Scotland) Act 2003 (hereafter, "the Act") was passed by the Scottish Parliament on 20 March 2003, received the Royal Assent on 25 April and came into force in October 2005. While there appeared to be general agreement that the Act was a significant advance on the Act of 1984, which it replaced, it was clear from the ongoing monitoring to which the Act was subject that there were some areas in which problems were being experienced. Accordingly, the Scottish Government decided to institute a limited review of the Act.

The Review Group appointed consisted of:

Professor Jim McManus, Chair
Ms Shaben Begum
Mr Iain Boddy
Ms Carolyn Little
Mr Jamie Malcolm
Dr John Mitchell
Ms Isabel Montgomery
Mr Graham Morgan
Ms Annie McGeeney
Ms Hilary Patrick

A brief biography of each of the members is included in Appendix A. Each of us was appointed, and acted throughout, in our personal capacities. Our Report represents a consensus of all the members of the Group.

The Group's Terms of Reference were:

To consider the operation of the processes in respect of the civil provisions of the Act in the context of the ten Millan Principles and advise on changes that should be made to improve the efficiency of the operation of the Act and the experience of patients; and

To advise on other minor amendments to the Act to resolve technical or other issues as provided to the Review Group by the Scottish Government to consider; and

To report to the Minister for Public Health with recommendations following appropriate engagement with those with an interest in the operation of the Act.

Brief history of the 2003 Act

The Act resulted from the report of the Millan Committee in 2001 ( New Directions: Report on the Review of the Mental Health (Scotland) Act 1984, SE/2001/56). A central feature of the Millan report was that both the law and practice relating to mental health should be driven by a set of ten principles (see Appendix B), especially minimum interference in peoples' liberty and maximum involvement of service users in any treatment. The new Act, as most consultees still call it, introduced a different mechanism for deciding on compulsory treatment, making use of a tribunal system rather than the sheriff court; it also allowed compulsory treatment in the community, which had not previously been allowed. A new legal entity, called a named person, was created, to attempt to overcome problems experienced with next of kin having automatic rights when a person became mentally ill. The possibility of making advance statements, detailing treatment wanted or not wanted in the event of a person becoming mentally ill, was created.

These were among the most radical of the changes introduced and they had some two years to bed down before the review commenced. Throughout that period, there were many bodies monitoring the situation, from user and carer groups, service providers, the Tribunal Service and the Mental Welfare Commission. Each had kept the Government informed of areas which did not appear to be functioning as well as had been anticipated. There was, however, no strong feeling that there was anything fundamentally wrong with the Act, but the Government felt there was enough concern to justify a "light touch" review. As a starting point to our review, the Government provided the Review Group with a table of issues identified through this process.

It is interesting to note that no-one raised any issue with the ten Millan principles throughout this process. Indeed, all during our consultation process, we heard nothing but praise for the principles, and it was clear that they are constantly in use for assessing whether the system is delivering what was intended. Several persons with whom we spoke suggested that the principles should be given more force in law. While it was accepted that this would pose great difficulties for the courts in interpretation, and thus for the operation of the system, it was agreed that there should be a clearer statement of the need for the principles to be observed in all matters relating to mental health, and not only in those areas governed by the Act.

The Review Group's approach

The principles governed our approach to the Review. Starting from the table of issues provided to us, and conscious that it was a limited review, we chose to concentrate initially on five main areas of the Act's operation about which concerns had been raised: named persons, advance statements, medical examinations for compulsory treatment orders, tribunals and suspension of detention. To be sure that these were the important areas, and in order fully to understand the issues involved, the Review Group initiated a series of meetings with individuals and groups with an interest in the Act. These meetings were with service users, individually and collectively; relatives of people with mental disorder, carers; professional staff in the NHS; social work staff, both at a senior level and those who work on the front line; advocacy, and local voluntary groups. In addition, individual members attended a number of tribunal hearings in different parts of the country to obtain insight into the patient experience in this forum.

Our formal consultation had three main strands to it. The first of these was a consultation document which was placed on the Review Group's website at the beginning of August 2008, and which was also made available in paper form and by email. The closing date for completed consultation documents was 31 October, though documents received late were accepted. In total, around 150 responses were received, from a variety of sources. Unfortunately, many respondents did not indicate what their background was, so it was not possible in our analysis to accord opinions expressed with the experience of the respondent.

Our second form of formal consultation involved holding separate meetings with a number of stakeholder groups identified by the Review Group. These meetings were mainly held in August and involved: Alzheimer Scotland, Enable, Heads of Psychological Services, Mental Welfare Commission for Scotland, Mental Health Tribunal for Scotland, NHS managers, NSF (Scotland), People First, Royal College of General Practitioners, Royal College of Nursing, Royal College of Psychiatrists, SAMH, Scottish Consortium for Learning Disability, The Law Society of Scotland, the Mental Health Nursing Forum, The Mental Health Sub-group of the Association of Directors of Social Work, Saheliya, Scottish Legal Aid Board, Administrative Justice and Tribunals Council and Voices of Experience. In addition, the Review Group met with researchers who had carried out research into named persons and advance statements to obtain, first hand, information on the main outcomes of this important work. The reports of these research projects only became available as we finished our work. We have attempted to take into account their major findings and recommendations, and it was encouraging to note that there is much overlap between our conclusions and those of the researchers.

The final strand of the consultation involved the arrangement of events in Glasgow, Edinburgh, Dundee, Inverness and Aberdeen during October. Details of these consultation events were publicised as widely as possible across Scotland and the Review Group was pleased with the attendance at each of these events, and the participants' contributions were greatly valued. Facilitation at these events was provided by members of the Review Group and by others who are working, or have an interest, in the field of mental health and the quality of their input was a contributory factor in the, mainly, positive feedback which these events generated. The number of facilitators available meant that the groups could be kept small and afforded everyone who attended the opportunity to have their say in a forum where respect for each others' views was paramount. Our facilitators also ensured that views expressed in a variety of media were captured. Copies of this report may be obtained from the Scottish Government.

The Review Group is enormously grateful to all those who have contributed their experience, knowledge and views to this Review. As far as we could tell, there were no marked differences in opinions among those with different roles in the mental health system, and substantial agreement on many of the issues we raised.

Many of the changes we now recommend can be achieved without legislative action. Indeed, the Mental Health Tribunal for Scotland, which has co-operated fully with this review, is already undertaking organisational changes to address some of the issues we have raised. But some of our recommendations will require changes to the Act or the Rules. All recommendations are made in order to bolster delivery of the ten Millan principles.

The Review Group gratefully acknowledges the assistance provided by Charlie Burns of the Mental Welfare Commission, who organised our meetings and general administration and gave us access to his many contacts in the field.