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

Chapter 6

COMPULSORY INTERVENTIONS

Current provisions regarding detention

1. The provisions regarding compulsion in the current Mental Health Act, and the associated safeguards, focus largely on the admission of a patient to hospital, rather than a more specific consideration of what kind of compulsion may be necessary and appropriate in a particular case. This to some extent reflects the historical development of mental health law. The Mental Health (Scotland) Act 1960 replaced provisions concerning the 'certification' of mentally disordered people receiving institutional care. It is notable that while there were relatively sophisticated procedures introduced in that Act to ensure that people were not compulsorily admitted without due cause, virtually nothing was said about what treatment the person could receive once so admitted.

2. There were some developments when the law was reformed in 1983. Provisions were introduced, (now in Part X of the 1984 Act) to provide safeguards for particular kinds of treatment. We discuss these in Chapter 10. However, these provisions only apply once a patient has been detained. There are no specific provisions relating to treatment at the time a patient is admitted to hospital under compulsion, even when long-term detention in hospital is being considered for approval by the sheriff.

3. The 1984 Act also maintained the link between admission to hospital and compulsory treatment. It only authorised such compulsory treatment where the person remained liable to detention in hospital. However, this link was sometimes more apparent than real, in that it was possible for a patient to be discharged on leave of absence, sometimes for very long periods. During that time, the patient was liable to detention, and so could be compulsorily treated, notwithstanding that he or she was living outside hospital¹⁷. This provision remains but, since 1995, the duration of leave of absence may not exceed 12 months.

4. As with compulsory treatment, the sheriff has no direct oversight of the leave of absence provisions. A sheriff cannot require leave of absence to be given, or review the conditions under which it is given, or a decision to recall the patient to hospital. (This contrasts with the situation of restricted patients, where the sheriff can order a conditional discharge.)

5. In short, then, a patient who is detained under the 1984 Act can be required to accept any form of medical treatment which would fall within the broad definition in the Act¹⁸, subject to the controls on certain forms of treatment set out in Part X.

Issues arising regarding the current legislation

6. We believe that the current provisions do not adequately reflect developments in mental health care, and are not wholly compatible with the principles which we advocate for mental health legislation.

7. Firstly, there is no longer the sharp division between hospital and the community which is implied by the current detention provisions. Increasingly, community services are dealing with people with severe and enduring mental illnesses, who may require a complex range of interventions, while hospitals are in many cases moving away from large institutional settings.

8. The blurring has become particularly marked in learning disability services. Where old learning disability hospitals have closed or been reduced in size, some people who are detained under the 1984 Act have been accommodated in 'health care houses'. These are small units, which are domestic in style. They are in many respects indistinguishable from other establishments accommodating non-detained service users, except that they are run by the NHS rather than the local authority or voluntary sector.

9. The requirement that a person who requires compulsory care must be placed in hospital to receive it would not seem to be compatible with the principle of least restrictive alternative: that service users should be provided with any necessary care, treatment and support in the least restrictive manner and environment compatible with the delivery of safe and effective care.

10. Secondly, the focus on the admission to hospital, rather than the treatment which the patient will receive, was perhaps understandable where the treatment options were more limited. With the wider range of drug treatments and other interventions now available, and with the issue of medical consent now being given greater emphasis, there is a case for the scope of approved intervention in a particular case to be defined more closely.

Treatment and plans of care

Plans of care and compulsion

11. The essence of our recommendations in this area is that compulsory intervention should be tailored to the needs of the individual patient, in a way which reflects the underlying principles of the Act.

12. The framework for such interventions should, in our view, be a plan of care, which is submitted to, and approved by a tribunal. This plan would set out what interventions were likely to be appropriate, and which it may not be possible to provide except on a compulsory basis. It would also set out the other proposed input from health, social work and other agencies, on the basis of a multi-disciplinary assessment.

13. Although the current provisions for detention do not contain reference to plans of care, there are other precedents on which this approach would build. Community care orders require information to be given about the particular conditions which are relevant for the patient, and about the general arrangements for the patient's care. The Care Programme Approach also contains reference to care planning¹⁹, and local authorities have, since 1993, been required to undertake individual care planning for recipients of community care.

14. We note also that the draft clinical standards for schizophrenia, being developed by the Clinical Standards Board for Scotland, state that:

'A plan of care must be developed with each person at the time of the initial diagnosis, which must detail the care that they and their carer will receive... The plan of care must be documented'²⁰.

15. In relation to the application for compulsion, the general format of the plan of care would be specified in the Code of Practice. We would envisage a single document, setting out what treatments and care are proposed by the range of agencies, and identifying which of these require compulsion, on the basis that they are necessary for the safe delivery of adequate care, and that there is reasonable cause to believe they could not be administered without compulsory powers.

Compulsory measures in the community

16. The idea that people might be required to accept care and treatment outwith a hospital setting is not a new one. The current Act contains two ways in which this might occur: leave of absence (see paragraphs 67-73) and community care orders. The Adults with Incapacity (Scotland) Act 2000 also contains provisions which allow treatment to be provided without consent in a range of settings, both in the community and in hospital.

Community care orders

17. Community care orders were introduced by the Mental Health (Patients in the Community) Act 1995²¹. The orders are generally intended for the small number of people suffering from a serious mental illness who, after discharge from hospital, fail to continue to take their medication or to co-operate with their plan of care, often resulting in the need for a subsequent readmission to hospital.

18. The procedures for obtaining a community care order and the duration of the order are broadly similar to those for detention under s18. Significant differences include

• the provisions in Part X of the Act regarding medical treatment do not apply
• the order is individualised, setting out a particular set of conditions approved by the sheriff, with procedures for these to be varied
• there are extensive requirements for consultation with a range of people at various stages
• the sheriff can defer making the order until satisfied that appropriate arrangements have been made for the provision of medical services and after care.

19. There are fairly complex arrangements for readmission to hospital. The 'special medical officer' (whose role is similar to the responsible medical officer in detention) must consider that the patient's mental state has deteriorated and gives grounds for serious concern. There must then be two medical examinations to allow admission to hospital for reassessment, followed by two further medical examinations, which may lead to return to the community, or an application for detention under s18 of the Act²².

20. Community care orders have not proved popular, with only 13 orders having been made in the period from 1 April 1999 to 31 March 2000²³. Research into community care orders²⁴, and responses to our consultations, suggest that the orders are widely disliked by psychiatrists for two reasons. Firstly, the procedures are seen as unnecessarily cumbersome. Secondly, the order is felt by many to be 'toothless', in that there is no sanction for a breach of the conditions of the order. It is not clear whether the order can specify that the patient accept medication, which many psychiatrists see as being fundamental to maintaining the patient safely in the community. Even if such a condition is made and not observed, the patient cannot be recalled unless and until there is a clear deterioration in his or her mental state.

Consultation on community treatment orders

21. The implication of breaking the necessary link between compulsion and hospitalisation is that some form of compulsory treatment could be imposed on people who are not hospital in-patients. There has been considerable controversy, over a number of years, over suggestions of a 'community treatment order'. Our consultations showed that this is still a controversial idea. However, the oral evidence we heard, and the responses to our second Consultation, suggested that it may be possible to accommodate many of the different viewpoints within a new framework.

22. In our first Consultation, we asked in what ways it should be possible to intervene without consent, and what compulsion, if any, should be possible where a person is not detained in hospital. Around one third of those responding on this point considered that compulsory treatment in the community should be an option, while around one fifth were opposed to this possibility.

23. Support for community treatment orders was particularly strong from psychiatric opinion, with both the Royal College of Psychiatrists and individual psychiatrists in favour. The Mental Welfare Commission also supported such an order, as they have done consistently for a number of years.

24. There were some bodies who voiced strong opposition, including The Scottish Association for Mental Health (SAMH), the Mental Health Foundation, and the Royal College of Nursing. Objections were both philosophical and practical. Respondents questioned how such an order could be enforced in the community, and some felt that a person who was ill enough to require compulsion should always be in hospital. There was also concern that the existence of such orders might discourage people from seeking access to services.

25. Although there was a difference of emphasis between the views of doctors, and those of service users, it was not a clear division. The National Schizophrenia Fellowship (Scotland) reported that a majority of respondents to their questionnaire (sent to users and carers) supported the idea of compulsory treatment in the community, and some members surveyed by the Richmond Fellowship were also in support.

26. The Highland Users Group (HUG) also consulted widely with its members. They pointed out that, for many people, the point at which they may be 'sectioned' is often the point at which they have lost much of their ability to function safely in the community. In that situation, most people want a place of safety and asylum, and hospital is seen by many as being able to provide this. There was concern that a community treatment order could be more a means of control than assistance.

27. Others involved with HUG had different experiences, and saw a community based order as providing a degree of security, and, for some, being a way in which a cycle of repeated admission to hospital could be broken. One service user said:-

'Being in [hospital] under a section can be terrifying. It can wreck your life and make you lose confidence in everything. Although being sectioned [in the community] would also be unpleasant, at least you are in your environment, around those that you trust and are still doing ordinary things.'

28. It was also notable that the current provisions for leave of absence, which amount in practice to a kind of community treatment order, appeared less controversial than a hypothetical new order. Most respondents appeared to believe that the system worked reasonably well, although some people wished to revert to the position before 1995, when there was no time limit.

29. Responses to our consultation leaflet for users and carers also demonstrated a range of views. A majority both of users and of carers who responded supported the general idea that compulsory treatment could in some cases be given in the community, although there were many who expressed concerns about the practical implications. Our consultation leaflet directed at people with learning disabilities elicited a similar diversity of opinion.

Concerns regarding compulsory treatment in the community

30. Three particular concerns were identified. The first was about the imposition of treatment on a forcible basis in community settings, particularly in a person's own home. This was felt to be an affront to the individual's right to privacy, and could be dangerous.

31. The second major concern was that community treatment orders would not be an alternative to detention in hospital, but an additional control imposed on people who would otherwise have been dealt with on an informal basis. In the context of the pressures on hospital beds, there were fears that psychiatrists might find it convenient to place significant numbers of people on community treatment orders, to ensure that they took medication, but without the commitment of resources which a hospital admission would involve.

32. The third major concern was that, once on such an order, it might be hard for a patient ever to be discharged. The patient would be maintained on medication, and could not prove that he or she was now able to take responsibility for his or her care. The fact that significant numbers of people maintained on long term leave of absence were neither readmitted to hospital, or placed under community care orders, could suggest a risk of people being allowed to drift on long term community based orders, if there were not arrangements for regular independent review.

Our proposals for a community order

33. We gave careful consideration to all these arguments, and developed a series of proposals, which are set out below. In essence, these sought to reflect the desirable aim of a flexible and individually tailored order, while containing adequate safeguards to meet some of the concerns raised by the possibility of compulsory treatment in the community. We explored ideas with key agencies during oral evidence, and set out our proposals in outline in our second Consultation.

34. The responses to our second Consultation appeared to demonstrate a considerably greater degree of support for these particular proposals, with a considerable majority of the respondents who replied on the point agreeing to the need for some measure of this type. Thirteen responses from user and carer groups supported the proposal, while four disagreed (although amongst these four were some important bodies, such as SAMH and The Scottish Users Network. Most respondents who considered the matter in detail supported the proposals put forward in the consultation paper.

Our proposals

35. We propose that there should be two kinds of long term compulsory orders: hospital based orders, which would be similar to detention under section 18 of the 1984 Act, and community orders. There would be a single route of admission to these orders, via an application to the tribunal, and procedures to move from one order to another as appropriate. The duration of the two types of orders would be the same, and the formal procedures for obtaining, appealing against, and reviewing these orders would be identical.

Who would a community order apply to?

36. The kind of patients for whom such an order would be particularly relevant might include those:

• for whom it would be an alternative to compulsory hospitalisation;
• who have relapsed whilst off medication in the community in the past, presenting a risk to themselves or others;
• who have a history of refusing to take their medication once there is no legal compulsion to do so; and
• for whom all other means of trying to negotiate with them and maintain them in the community without compulsion have been tried and failed.

37. We have considered whether it should be necessary to have a prior period of hospitalisation before being placed on a community order. In practice, we think it unlikely that a person would be considered suitable for such an order unless that person had a prior history which involved admission to hospital. However, we do not propose that, as is the case with community care orders, such orders could only be imposed on discharge from hospital. The order would be free-standing, and based on the needs of the individual service user.

38. It is impossible for us to forecast the precise numbers of people who might be subject to such an order. However, we note that, in 1994, before leave of absence was restricted to 12 months, there were 129 people on leave of absence for more than a year. It is likely that the people most suitable for an order for treatment in the community might be those who in the past would have been on long term leave of absence, and so this may give a very approximate idea of the limited numbers for whom such an order might be considered.

The requirement to accept treatment

39. Our proposals draw a distinction between compulsory treatment and forcible treatment. There would be no forcible treatment in someone's own home. Any necessary enforcement of treatment would take place only in a clinic or hospital.

40. The evidence concerning the use of leave of absence is that many patients may not wish treatment, or agree that it is necessary, but they are prepared to accept it if required to do so. If the alternative is detention in hospital, a compulsory order relating only to treatment will be a less restrictive alternative, allowing the service user to continue with life in the community.

41. However, there are certain treatments which we believe should only ever be administered in a hospital setting. Compulsory ECT should not be carried out on an out-patient basis. The Royal College of Physicians commented to the Committee that high dosage anti-psychotic drugs should not be given for the first time without supervision, and that this may also be necessary for complex anti-depressant regimes. These issues could be spelled out in more detail in the Code of Practice.

Link to plan of care

42. As we explain above (paragraphs 11-15), the order would be linked to a plan of care, which would detail the services that the person would receive. The compulsory element of the plan of care would require to be kept to a minimum. If the patient had concerns about particular kinds of treatment, these concerns could be taken into account by the tribunal, before deciding whether to approve the plan of care. We set out in Chapter 15 how an advance statement regarding such concerns might be considered by the tribunal.

43. The Code of Practice would identify the general standards for care which the tribunal would expect to see, before approving a community order. These would be derived from current standards of mental health care, such as those set out in relation to the Care Programme Approach and, in due course, clinical standards established by the Clinical Standards Board for Scotland. Key points in the current Care Programme Approach standards, which we would expect to see incorporated, would include a named keyworker, 24 hour emergency contact, and access to advocacy.

Grounds for discharge from the order

44. As with all long term compulsory orders, community orders would be subject to regular reviews and rights of appeal (see Chapter 8). The tribunal or the Mental Welfare Commission would be entitled to discharge the order if satisfied that the grounds for compulsion no longer apply, for example because

• the patient would accept treatment on a voluntary basis
• the level of risk, should the patient refuse treatment, no longer justified compulsion
• the patient was no longer suffering from a degree of impaired judgement which would justify compulsion.

Role of the tribunal in compulsory interventions

Consideration of the plan of care

45. In any application to the tribunal for approval of compulsory measures, whether for detention in hospital, or for treatment in the community, there would, as we have indicated, be an accompanying plan of care.

46. The range of possible compulsory interventions need not be set out in detail in the Act. However, we think it would be desirable for regulations to specify what interventions, coming within the general scope of treatment and care, could be imposed by a community order. Certain interventions would have additional safeguards, set out in Chapter 10.

47. In relation to a community order, the compulsory measures might include

• that the person accept medication
• that the person reside in a particular place
• that the person attend particular therapeutic services
• that the person allow access to certain persons for the delivery of care and support.

Matters to be taken into account by the tribunal

48. The tribunal would consider whether the provisions of the plan of care were appropriate and provided for an adequate level of services.

49. It would not be the role of the tribunal to determine the optimum level of services to be provided for a particular individual. Its responsibility would be to be satisfied that adequate services for the needs of the individual are in place, which would ensure the safe delivery of the compulsory measures which are being sought. This role would be particularly relevant where compulsory treatment in the community is proposed, since it could be assumed that a minimum level of safe care would be in place for those detained in hospital. For example, it would be important to be satisfied that an appropriate place of residence was available for a community order to operate successfully.

50. The tribunal would consider the compulsory measures sought, in the context of the plan of care. They would be entitled to approve all or some of the measures sought, if satisfied that

• the person is mentally disordered in terms of the Act
• the grounds for compulsory intervention are met
• the powers sought are appropriate, in the context of the overall plan of care, and
• to grant the powers sought would be consistent with the principles of the Act.

51. In considering whether the proposals for an individual were appropriate and adequate, the tribunal would be expected to have due regard to the general availability of services in the area.

52. If the tribunal was not satisfied that the plan of care provided for an adequate and appropriate level of services, consistent with the compulsory measures sought, it could require that the plan of care be resubmitted before approval of compulsion. It would have the power to make a short term order, lasting up to four weeks, to allow the plan to be resubmitted.

Monitoring implementation of the order

53. At any subsequent review or appeal, the tribunal would wish to be satisfied that the plan of care had in fact been delivered, and that this would continue to be the case, before authorising any continued compulsory measures.

54. It would also be possible for the Mental Welfare Commission to remit a patient's case to the tribunal if it was concerned that essential elements of the plan of care were not being delivered.

Moving between hospital based orders and community orders

55. Since there would be a single procedure under which both orders involving admission to hospital, and orders imposing treatment in the community would be obtained, it would be necessary to have appropriate and flexible provision to move from one type of order to another, where the patient's circumstances and needs warranted that.

56. For example, if an order allowing admission to hospital was sought, but the tribunal was satisfied that the person would prefer to remain in the community, and that to do so was appropriate and feasible, it could substitute a community order. Equally, a patient could request that he or she should be admitted to hospital to receive treatment rather than be placed under compulsion in the community, and the tribunal could consider whether this was appropriate.

57. Where a patient was detained under a hospital based order, but it was felt that discharge to the community could succeed, provided a requirement to accept treatment was maintained, this could be done by requesting the tribunal to substitute a community order for the hospital order. In some cases, leave of absence could act as a temporary bridge to such a change. It would allow the patient to be discharged to the community without undue formality, in order to assess whether a community order might succeed, or indeed whether compulsion could be brought to an end.

58. Where one type of order was substituted by another, the time limits for renewal of, and appeals against, an order would be based on those relating to the original order.

Failure to comply with community order

59. If a patient refused to comply with the compulsory aspects of the treatment plan, after reasonable steps had been taken by community mental health services to implement the plan, and the multi-disciplinary team agreed that there was a significant risk of deterioration in the condition of the patient, the RMO could cause the patient to be informed in writing that, in the event of further breaches, the patient could be taken to a clinic or hospital and treated there.

60. In the event of further non-compliance, the patient could be given a further written notice by the RMO that he or she must go with a member of the community mental health team to the hospital or clinic for treatment. If treatment were still not accepted, detention in hospital could follow.

61. Should this period of admission to hospital last more than two months, it would be necessary to approach the tribunal to request that the order be changed to a hospital based order.

62. It would be possible for a person subject to a community order to be admitted to hospital on an urgent basis, should his or her condition deteriorate suddenly. This admission would be on the authority of the RMO, with the consent of the mental health officer (MHO). Should the hospital admission extend beyond 28 days, it would be necessary to make an application to the tribunal for a variation of the community order.

63. In situations where the patient enters hospital on a voluntary basis, it should be possible for a community order to lie 'dormant', and be revived on discharge to the community.

Leaving place of residence while subject to a community order

64. Patients detained under the Mental Health (Scotland) Act who abscond may be taken into custody and returned to Scotland from any other part of the United Kingdom²⁵. We believe that this should be extended to cover patients on community orders.

65. Some people subject to community orders will have a place of residence specified in that order. Moving from that place without approval would be in direct breach of the order. In other cases a person leaving his or her place of residence would not be in direct breach of the order but would be in breach if the effect of moving from the normal residence was that he or she could not receive such treatment or care as was specified in the terms of the order.

66. The Act should therefore provide that any person in breach of the order by reason of having left his or her place of residence may be returned to the area where he or she was receiving services, whether he or she is in Scotland or elsewhere in the UK. We recognise that this may not always be practicable, but recommend that the legislation should provide a power for use in appropriate cases.

Leave of absence

67. The leave of absence arrangements appear to work reasonably well at the moment. Although we propose a new community order, there is still a strong argument for retaining a relatively straightforward process by which a patient liable to hospital detention can return to the community when his or her condition improves, or spend short periods in the community without breaking the period of liability to detention. We therefore believe that the power of the RMO to grant leave of absence should remain.

68. The Notes to the Act recommend that the RMO should consult with the patient's GP and with the social work department prior to granting leave of absence. We believe that this requirement to consult should be spelled out in the Act, for any leave of absence intended to last more than a brief period.

69. Given that we propose a new community order, we believe it would be reasonable to reduce the maximum period of leave of absence from the current 12 months to six months. This would allow an adequate period to assess progress, and to consider whether ongoing compulsion in the community is appropriate.

70. We anticipate that there would be three options on the discharge of a detained patient from hospital:

• compulsory measures would end
• application would be made to the tribunal to amend the hospital based order to a community order
• the patient would be granted leave of absence.

71. If a patient was on leave of absence, a decision would be made within the six month period as to whether the patient required readmission, could be wholly discharged, or application should be made for a community order.

72. There is a possible gap in the provisions of the current Act. It is possible for a patient to spend several months on leave of absence, be recalled for a brief period (perhaps only for a few days) and then be given a further period of leave of absence. The maximum duration begins again with each new period of leave of absence. The effect is that a patient could spend long periods of time on leave of absence, punctuated only by short periods in hospital.

73. Although we have no evidence to suggest abuse of the current arrangements, we would not wish the potential for abuse to remain, particularly when an alternative approach is available by means of a community order.

Community care orders

74. Should our proposals be implemented, we believe that community care orders would no longer have any role to play.

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