Report on the Review of the Mental Health (Scotland) Act 1984

Executive Summary

COMPULSORY TREATMENT

Grounds for compulsion

29. The criteria for detention in the 1984 Act are inconsistent with the recommended principles of the new Act, and would be inappropriate for the proposed community orders. New grounds for compulsory measures of care should be based on the ethical and practical justifications for requiring, in some circumstances, people with mental disorders to accept treatment without consent.

30. The basis of such interventions should be impaired judgement, risk, and benefit to the patient.

31. Consideration was given to whether incapacity to make a treatment decision should be an essential condition of compulsory treatment. It was felt that a criterion of impaired judgement was a more appropriate formulation.

32. The conditions which would require to be met before long term compulsory measures could be imposed are as follows:

• The presence of mental disorder;
• The necessary care and treatment cannot be provided by agreement with the patient;
• It can be shown that, as a consequence of the person's mental disorder, the person's judgement is impaired to a nature or degree which would justify compulsory measures;
• The treatment proposed to be administered under the plan of care for the patient is likely to provide a benefit for the patient by alleviating or preventing deterioration in the patient's mental disorder, or associated symptoms of that disorder;
• The care and treatment proposed is the least restrictive and invasive alternative available compatible with the delivery of safe and effective care; and
• There is a significant risk of harm to the health or safety or welfare of the patient or a significant risk of harm to other persons if such a treatment is not administered.

For emergency and short term detention, it would only be necessary to show a reasonable likelihood that the person's judgement was impaired.

33. The same criteria should apply to all three categories of mental disorder. The 'treatability' criterion, which currently applies to people with mental impairment and those whose mental disorder 'is a persistent one manifested only by abnormally aggressive or seriously irresponsible conduct', should be abolished. The recommended criterion of benefit makes such a provision unnecessary.

Compulsory interventions

34. The compulsory measures in the 1984 Act are based on detention in hospital. Compulsory treatment is not possible without prior admission to hospital. In approving detention or considering appeals, the sheriff court is primarily concerned with whether the criteria for detention are met, not in what interventions will take place following detention.

35. The principles recommended for the new Act suggest a move towards more flexible forms of compulsion, based on the needs and circumstances of the individual patient. In particular, compulsory treatment should no longer be exclusively linked to hospital detention, and the authorisation of compulsory measures should require consideration of the proposed treatment.

Plan of care

36. A plan of care should be prepared for any patient who is the subject of an application for long term compulsion. This should specify the proposed plan of treatment, care and support from health, social work and other agencies, and should be submitted to a mental health tribunal for approval.

37. The tribunal should require to be satisfied that the compulsory elements of the plan of care are justified, and that the plan contains provision for an adequate and appropriate level of service. Where the tribunal is not so satisfied, it could refuse to approve the order for compulsion, or could approve a temporary order for up to 28 days, to allow a revised plan to be submitted.

A new form of long term compulsion

38. There should be two forms of long term compulsion, a hospital based order (similar to detention under the 1984 Act) and a community order. Both would be based on an application to a mental health tribunal, and the procedure and time limits would be identical.

39. The possibility of compulsory treatment in the community is supported by many health professionals, but user groups are divided. There is opposition to the possibility of forcible treatment in people's own homes, and concern that such orders would increase the use of coercion, without ensuring the delivery of adequate support. The proposals for a community order have taken account of these concerns.

40. Although a community order could include a requirement to accept medical treatment, it would only be possible to administer such treatment forcibly in a clinical setting.

41. Other compulsory aspects of a community order might include that the person reside in a particular place, attend specified services, or allow access to professionals. Regulations should set out the range of compulsory measures which could be imposed by a community order.

42. The Code of Practice should identify standards of care which should be observed for patients subject to community orders.

Moving between community and hospital based orders

43. It should be possible to move between a community order and a hospital based order. Where a patient fails to comply with a community order, the responsible medical officer should be able to require the patient to be admitted to a hospital or clinic for treatment. Unless the order is discharged, a tribunal must consider the case within 2 months of such an admission to hospital.

Leave of absence

44. For patients subject to hospital based orders, the possibility of leave of absence should remain, but should be restricted to a maximum continuous period of 6 months. Thereafter the patient, if not discharged from compulsion, would require to be transferred to a community order or readmitted to hospital.

Community care orders

45. The current provision for community care orders would be superseded, and should be abolished.

Initiating and approving compulsion

46. The 1984 Act provides that emergency (72 hour) detention is initiated by a medical practitioner. Short term (28 day) detention is initiated by a psychiatrist, and long term (6 month detention) is initiated by an application to the sheriff court from a mental health officer, with two medical recommendations, normally from a psychiatrist and the patient's GP. The nearest relative also has the power (seldom used) to initiate an application for long term detention.

47. The Act also provides that, where practicable, consent from a mental health officer or a relative should be obtained to emergency or short term detention.

The role of relatives

48. Relatives of service users should not be expected to consent to or initiate compulsion under the Act, and these provisions should be removed. This may relieve some of the burden from relatives and alleviate the often damaging effect that this procedure can have on the relationship with the service user.

The role of GPs

49. General practitioners should continue to have a role in initiating emergency detention and supporting applications for long term compulsion. There should be a requirement for general practitioners to receive greater training in mental health issues, including the use of the Mental Health Act.

The role of psychiatrists

50. The initiation of short term detention, and the first medical recommendation for long term compulsion, should continue to be by a doctor certified by a health board as having special experience in the diagnosis and treatment of mental disorder. Regulations should specify the criteria to be applied by health boards in so certifying doctors, which should include having attended appropriate training.

The role of mental health officers

51. Mental health officers should continue to be qualified social workers, appointed by local authorities. A mental health officer should be required to consent to emergency detention, where practicable, and to short term detention, in all cases. A mental health officer should report to the tribunal in all applications for long term compulsion, and prepare a report on any renewal of compulsion. In any case where the mental health officer does not support renewal, the matter must be considered by a tribunal.

The role of nurses

52. There was little support for the introduction of any new statutory role for nurses in the Mental Health Act and this is not recommended. The Code of Practice should contain guidance on the responsibilities of nurses under the Act, and encourage GPs to discuss proposed detentions with community psychiatric nurses. NHS Trusts should be required to ensure that nurses dealing with patients subject to compulsion have an adequate understanding of the Act.

Duration, reviews and appeals

53. The existing framework of emergency detention (up to 72 hours), short term detention (up to 28 days) and long term compulsion (up to 6 months, renewable for a further 6 months and then annually) should be retained. However, a series of changes are recommended that would make the procedures more flexible.

Nurse's holding power

54. There is currently a power for nurses to hold, for up to 2 hours, a patient who is seeking to leave hospital and who may require emergency detention. The power should be amended to allow, where necessary, the doctor a further hour to assess whether detention under the Mental Health Act is appropriate.

Short term detention

55. Currently, short term detention can only be used following the expiry of a period of emergency detention. Transfer from emergency to short term detention should be possible as soon as the necessary procedures are completed.

56. It should be possible for a patient to be made subject to short term detention without a prior emergency detention, and this should be done in preference to an emergency detention wherever practicable. It is intended that this will reduce the current heavy reliance on emergency detention as a route to compulsory admission to hospital.

Long term compulsion

57. Long term compulsion (either a hospital based order or a community order) should require prior approval of a mental health tribunal, based on recommendations by two doctors, one of whom is certified as having special experience in the treatment of mental disorder, and a mental health officer.

Appeals and reviews

58. The patient or the patient's 'named person' (see paragraph 106) should have the right to oppose an application to a mental health tribunal for long term compulsion, and to appeal against the imposition of short term detention, or the renewal of long term compulsion.

59. After the first three months of a long-term compulsory order an application to the tribunal for variation of the order should be available to the patient or the patient's named person.

60. The Act should provide that the condition of a patient and the continuing need for compulsion should be kept under constant review by the care team, and if the patient no longer meets the criteria for compulsion, he or she should be discharged.

61. The responsible medical officer and the Mental Welfare Commission should retain the power to discharge the patient from compulsion. The rights of hospital managers and nearest relatives to discharge patients should be removed.

62. If a patient subject to long-term compulsion has not appealed within a period of three years, a review by the tribunal should take place. The necessity of compulsion would be re-appraised, and the plan of care would be approved or amended as required.

63. The participation of patients' carers and families in any procedures for compulsion should be encouraged. Mental health service managers should be under a duty to ensure that, so far as practicable, patients subject to compulsion are aware of the nature and effect of the compulsion, and their rights in relation to this. The Code of Practice should give guidance on the most effective implementation of these duties.

Medical treatment

64. It should be possible to give medical treatment to a patient subject to short-term detention or long-term compulsion for his or her mental disorder without consent, subject to the safeguards in relation to special treatments set out below.

65. It should be possible to treat a patient subject to emergency detention for his or her mental disorder, on a similar basis to emergency treatment for patients subject to other forms of detention. This would replace the existing use of common law treatment powers with a statutory framework based on the degree of urgency and necessity of the treatment.

Forum for compulsory measures

66. Consideration was given as to whether the sheriff court should continue as the forum for mental health hearings. Account was taken of a range of evidence including consultation responses, research into the operation of mental health hearings in sheriff courts (published alongside the Report) and evidence from the tribunal system in England and Wales.

67. The current procedural requirements in relation to Scottish mental health hearings are limited. The extent to which these hearings effectively protect the rights of patients varies considerably between individual cases. Although there is some good practice locally, many orders are made on the basis of limited evidence, often very brief written reports. There is generally little participation by patients or their families in the process. Most patients are unrepresented, and few exercise appeal rights.

68. The fundamental change involved in creating a new independent forum for mental health hearings in Scotland is recognised, but such a change is necessary. A number of key requirements of a reformed system are set out.

69. There should be statutory rules of procedure, drawn up after consultation with service user and professional interests, which should encourage the attendance of patients, and ensure that other persons concerned with the care and treatment of the patient may be required to attend as necessary.

70. There should be a procedure for straightforward access to free legal representation by solicitors accredited in mental health law. A curator ad litem should be appointed in every case where the forum is satisfied that a patient is unable to instruct legal representation.

71. Hearings should be in private, and in hospital, unless the patient or patient's representative requests otherwise. Health boards should have a statutory duty to provide suitable facilities for the holding of hearings.

72. All members of the forum should receive ongoing training in mental health issues.

A mental health tribunal

73. There are two possible options which could meet the requirements just outlined. These are a new tribunal, chaired by a legal member, and the retention of the sheriff, but sitting alongside two expert assessors.

74. The creation of a new system of mental health tribunals is recommended, rather than the retention of the sheriff. The new arrangements would provide for the appropriate degree of expertise and authority and also allow an open discussion of the best options for the service user.

75. Each tribunal should have 3 members: a legal chair, a medical member, and a member with experience of mental health services. The medical member should examine the patient prior to the hearing. Any findings should be available to the hearing, and the medical member should be able to be questioned by the parties or their representatives.

76. Organisationally, there should be a national structure, with a senior member of the judiciary at its head. Funding should be by the Scottish Executive Justice Department, and the Minister for Justice should appoint tribunal members.

77. It would be essential that the system be properly resourced, including with the necessary administrative support.

Treatments and interventions requiring particular safeguards

78. Part X of the 1984 Act specifies additional safeguards for a number of treatments for mental disorder, including ECT and psychosurgery. The provisions in the Act are generally acceptable, but further protection is appropriate for a variety of treatments.

79. The new Act should specify factors to be taken into account, when considering whether a treatment for mental disorder should attract special safeguards. These should include the extent to which the treatment may be hazardous, irreversible, novel, involve significant physical distress, carry a risk of serious side effects, or be perceived as controversial by society, or significant sections of society.

80. Neurosurgery for mental disorder should continue to require the patient's consent, certified by two independent persons, and approval by a doctor approved by the Mental Welfare Commission. These protections should be extended to informal patients.

81. Neurosurgery for mental disorder on a patient incapable of consenting should require the approval of the Court of Session. It should never be given to a patient who resists treatment.

82. Either the patient's consent or approval by a doctor approved by the Mental Welfare Commission (a 'second opinion' doctor) should be obtained before the following treatments may be administered to patients subject to compulsion:

• ECT.
• Continued medication for mental disorder after the expiry of a 2 month period.
• Oral medication to reduce sex drive.
• Medication for mental disorder in excess of the recommended dose or for purposes other than the recommended purposes.

83. However, ECT should not be given where a patient capable of making a treatment decision has not consented.

84. Forcible feeding on a patient subject to compulsion should require the approval of a second opinion doctor.

85. The role of second opinion doctors should be clarified. The second opinion doctor should consider whether the proposed treatment is appropriate, bearing in mind the Principles of the Act, and any possible alternative treatment approaches. A second opinion should be renewed at least every 2 years.

86. The Mental Welfare Commission should have responsibility for oversight of the special treatments included in the Act and regulations, and should advise Scottish Ministers of any new treatments that may require to be added.

87. Where a child is incapable of consenting on his or her own behalf to a treatment, which is a special treatment under the Mental Health Act, the same protections should apply as if the child were subject to compulsion under the Mental Health Act.

88. Any second opinion required for a person aged 18 or under should be by a specialist in child and adolescent psychiatry. In addition, should the responsible medical officer not be such a specialist, a further opinion by such a specialist should be obtained.

Other provisions relating to patients subject to compulsion

89. There should continue to be provision to allow patients subject to compulsion to be transferred between hospitals, by agreement between the managers of the respective hospitals. For patients subject to long term compulsion, proper notice should be given to the patient and, where appropriate, the primary carer. There should be a right of appeal to a mental health tribunal against a transfer within 28 days of the transfer taking place.

90. The legislation dealing with interference with the correspondence of patients should be updated to include new forms of communication, including electronic mail and faxes. Legislation should also clearly regulate the extent to which patients can have access to mobile phones, the Internet etc, and only restrict access in clearly defined circumstances.

91. The Code of Practice should contain general guidance on the use of these measures and on other special measures of security including searches and sharing information regarding service users with other agencies.

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