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

Chapter 13

SERVICE USERS' RIGHTS TO ASSESSMENT AND SERVICES

1. This Chapter considers the rights of service users to assessment and services. The question of the rights of informal carers is considered in Chapter 16.

Rights to assessment

2. Assessment of needs, medical and social, is fundamental to the care and treatment of people with mental disorders. Assessments are constantly undertaken on an informal basis in medical and social work services. However, the law provides that social work assessments of need for people with mental disorders should be mandatory in certain circumstances⁶. There is no parallel formal legal requirement on health services. We have therefore given consideration to whether the new Mental Health Act should introduce such a requirement.

Current legislative position

Community Care Assessments

3. Section 12A of the Social Work (Scotland) Act 1968 provides for community care assessments by social work services, for people (including people with mental disorder) who need or may need local authority services, so that they can consider the provision of such services.

4. The assessment is mandatory, if need or possible need comes to the attention of the local authority. The assessment does not need to be requested by the client and, indeed, may be required even if the client does not wish to have such an assessment.

5. Social work services are also required, under subsection (3) of Section 12A, to liaise with health boards and housing authorities regarding needs identified in the assessment which may require action by these authorities.

6. The assessments are intended to be needs-led rather than services-led. The needs assessed will not necessarily always match the available services. However, there is an expectation that the needs identified by the assessment will be met by appropriate services when available. The social work department must take account of the person's assessed needs in making their decision about what services to provide.

Disabled person's assessment

7. Where a local authority is making a community care assessment and it appears that the person being assessed is a disabled person, they are obliged to assess what services the person is eligible for under the Disabled Persons (Services, Consultation and Representation) Act 1986 and inform the person of his or her rights under the Act⁷. The definition of disabled person includes a person with a mental disorder, as defined in the 1984 Act.

8. This provision is of importance, as it can lead to a legal right to certain services under s2 of the Chronically Sick and Disabled Persons Act 1970. A person or their carer may also directly request the social work department to consider whether the person may be eligible for services under the 1970 Act, and an assessment must be carried out.

Consultation

9. Respondents from all sectors to our consultation documents agreed that assessments were an important part of care. The great majority of respondents expressed support for the right to an assessment and plan of care by mental health services. The majority of respondents believed that this right should be extended to both detained and non-detained patients (social work services tended to this view more strongly than health boards and trusts).

10. Most of the problems identified with such an assessment were practical ones, and in the main respondents were concerned about the link between an assessment and the actual provision of services. This is dealt with further below.

11. Some problems and potential problems were identified with inter-agency working. One council told us assessments developed by local authorities are 'largely ignored' by health professionals. A user told us of his personal experience of delays in the assessment procedure caused by a breakdown in inter-agency working. We believe that it is important that inter-agency working is the norm, that people are made aware of their rights to an assessment, and that social work services assessments are considered as an integral part of a person's overall assessment of needs. The Royal College of Psychiatrists pointed out that it would be important to provide guidance on which agency had control of which part of an assessment and the provision of services. We concur with this view.

12. Users and carers told us that it is often difficult to obtain assessments of the user's need at times when it might be advantageous. There were circumstances when users and their carers had not been able to receive formal assessments at times of difficulty.

Care planning

13. We are in favour of the formulation of a plan of care for people subject to compulsion, whether detained in hospital or subject to compulsion in the community. Such a plan of care would detail the compulsion to which a person is subject, as well as non-compulsory elements, and the services that they can expect. The model of a plan of care has been described in Chapter 6 for people subject to compulsory treatment.

Assessment of patients subject to compulsion

14. Fundamental to this concept of care planning is a thorough assessment of needs and preferences. We are therefore in favour of a right under the Mental Health Act to a formal assessment of needs for people subject to compulsion.

15. Close working between health and social work is necessary to assess fully the needs of persons with mental disorder. Plans of care for service users, whether in hospital, living in the community, or moving between hospital and the community, may contain a mixture of elements provided by psychiatric and social work services. We therefore recommend that, for patients subject to compulsion, both agencies should, in future, be involved in an assessment of needs. Assessments done by social work and health agencies should be brought together and made the basis of a single plan of care which would be approved by the tribunal.

16. Some of our respondents made the point that there should not be too many processes of assessment and care planning, since this will lead to confusion and duplication of effort. In addition to the statutory assessments carried out by social work departments, the Care Programme Approach⁸ sets out expectations for care planning and joint working in respect of some people with severe and enduring mental illnesses. Many of these people might also be liable to compulsory measures from time to time.

17. We do not, therefore, propose a detailed new set of procedures for assessment and care planning in relation to people subject to compulsion. The procedures should reflect current legislation and guidance.

18. In order to facilitate this, we recommend the right to assessment under the Mental Health Act should be framed in such a way as to be complementary to the pre-existing right to a social work assessment.

Assessment with a view to compulsion and/or other services

19. Carers currently have a right to request a social work assessment of whether a person requires detention under the Mental Health (Scotland) Act. There is a provision (Section 19(3) of the 1984 Act) which gives the 'nearest relative⁹' the right to require a local authority to direct a mental health officer (MHO) to consider whether a person requires to be admitted to hospital under the Act. If the MHO decides not to proceed with an application for admission, the nearest relative must be informed in writing of the reasons for this.

20. There is not currently any similar right to request an assessment from psychiatric services and have the request considered, although, of course, such requests for assessment are currently made on a regular basis.

21. Nevertheless, we have heard evidence from carers and users that the lack of any formal right to assessment in the community may be a bar to people with mental disorders receiving appropriate services. Some carers have told us of years of attempting to access services for the person for whom they care.

22. There are different situations when a person living in the community may require to be assessed. Sometimes, a person may have had no prior contact with psychiatric services, but be behaving in a way which causes concern to those who know him or her. In other cases, a person may have had one or more prior episodes of mental illness and appear to those nearest to him or her to be in the process of suffering a relapse.

23. The common factors are that assessment may not be requested by the service user him or herself and that it may potentially lead to compulsion as well as other types of service provision. We have considered whether it is possible to improve the balance between ensuring that the rights of the patient are protected and ensuring that services are made available if necessary.

24. The primary responsibility for assessing the needs of a person with no prior contact with psychiatric services and referral of them, if necessary, to secondary psychiatric services, should continue to lie with primary care. Although we appreciate the concerns of those who have told us of their difficulties in accessing services via primary care providers, we believe it would be inappropriate to give direct access to secondary psychiatric services, even if only for assessment, to any person on demand. This seems to run contrary to the general health service principle of primary care as the 'gateway' to secondary services.

25. However, there are ways in which the responsiveness of primary care could perhaps be improved. It is always a difficult decision for a carer to decide to approach a GP with concerns about a person in their family: we would expect GPs to respond sympathetically to these approaches.

26. In addition, community psychiatric nurses (CPNs) might undertake a more direct role in these cases, by being more available to talk through the user's and carer's concerns with them and make their own assessments of whether a referral would be appropriate.

27. We have also heard evidence that GPs are reluctant to visit adults who are not themselves concerned about their mental health. We believe that
the fact that a person may not wish to be assessed need not necessarily be a bar to an assessment of the person's needs, although it would, of course, be a factor in the GP's consideration of the case. In general, we expect that the GP should consider the evidence presented by the carer and, if possible, attempt to visit (or have the CPN visit) and talk with the person about their mental state. If it is not possible to gain access to the person, then it might eventually prove necessary to invoke the powers discussed in Chapter 19 on Vulnerable Adults.

28. The arrangements for people who have previously received treatment for mental disorder, whether as detained patients or voluntary patients, and who may be experiencing a relapse or deterioration of their condition, are more complex. In some cases, it will be appropriate for primary care services to continue to take the lead role, while in others, rapid access to specialist mental health services will be appropriate. In either case, the evidence of service users and informal carers was that a rapid response at times of crisis is vital.

29. We believe that, in these cases, there should be a right to request a medical assessment of a person's mental health needs be carried out by psychiatric services. As with the existing right to request an assessment by the MHO for detention, the right would not be absolute. Not all requests for an assessment of mental health will be justified. However, there would be an obligation on psychiatric services to consider the request, and give reasons in writing if they choose to reject it.

30. The right to request an assessment by the MHO should be linked to this right to request a medical assessment. However, we believe that the right to request an assessment should no longer be directly linked to detention. We recommend in Chapter 7 removing the nearest relative's right to consent to detention. For similar reasons, we do not believe that relatives should have the right in law directly to request consideration of detention. Instead, they should have a general right to request an assessment, which might include social work and/or health elements, and might, in some situations, lead to compulsion of some sort.

Rights to services

31. We heard a good deal of evidence on the subject of service provision. In our users and carers consultations in particular most people suggested that service users should have the right in law to good medical treatment, follow-up services and social provision.

32. We believe the difficulties faced by some users and carers in gaining access to the services they need are caused by a number of factors, of which the law is only one. However, the interaction between the law and services cannot be ignored. For example, there are several sections of the 1984 Act which place specific duties on local authorities to provide certain services. More generally, the proper operation of the whole Act is clearly predicated on the provision of effective and responsive mental health services. We have therefore considered whether people with mental disorders should have a right in law to obtain services.

Reciprocity and patients subject to compulsion

33. In our consultation papers we asked whether, if a person was subject to compulsion, there should be a reciprocal duty on service providers to provide appropriate services. The response was strongly in favour of such a duty.

34. The main reservation expressed was that to provide services as a matter of right to patients subject to compulsion might differentiate them in an unhelpful way from voluntary patients. At its worst, this might have the unwanted effects of discriminating against those not subject to compulsion and, potentially, acting as a perverse incentive to bring people under the compulsion of the Mental Health Act.

35. However, we have concluded that it is a matter of natural justice that people who are given treatment against their will or otherwise made subject to compulsion be given access to an adequate level of service. That is why Reciprocity is one of the key principles that we propose.

36. We believe that the way in which this 'adequate level of service' is defined should be based upon the plan of care. As we have already indicated (paragraphs 15-18), this would be developed after a full assessment of needs by health and social work services. The plan of care would give details of the services that a person subject to long term compulsion might expect.

37. We have dealt in Chapter 6 with the consideration by the tribunal of the plan of care and the factors they should take into account in deciding whether or not they will approve the plan of care.

38. This duty would be in addition to the duties to service users in general, already provided for in the Mental Health (Scotland) Act and elsewhere, which we now go on to deal with.

General rights to services

Current legislative position - other legislation

Chronically Sick and Disabled Persons Act

39. Under s2 of the Chronically Sick and Disabled Persons Act 1970, if it is established by means of an assessment that a disabled person needs certain specified services, the local authority must provide the services, irrespective of the financial implications. There is however caselaw to the effect that the local authority can have regard to its level of resources in determining whether a need exists¹⁰.

40. The services include elements such as help at home, holidays, transport, and recreation.

Social Work (Scotland) Act

41. The Social Work (Scotland) Act 1968 has a wide variety of provisions including, at s12, the fundamental duty on the local authority to promote social welfare. This is a duty, not a power, but is so widely expressed that it is difficult to enforce on an individual basis.

National Health Service (Scotland) Act

42. Under the terms of the National Health Service (Scotland) Act 1978, Scottish Ministers have a legal duty to ensure a comprehensive and integrated health service for the whole of Scotland. In addition, they must make arrangements for the prevention of illness, the care of persons suffering from illness or the after care of such persons. There have been a few cases where people have taken legal action in an attempt to secure particular assistance from the health service. These actions have generally been unsuccessful, since courts are highly conscious of the problems of resourcing health care.

Other legal provisions

43. It remains to be seen whether developments such as the Disability Discrimination Act 1995, and the incorporation of the European Convention of Human Rights into domestic law, will lead to new legal challenges to failures to provide adequate services to individuals or particular groups.

Current legislative position: the Mental Health (Scotland) Act

Duty to provide or arrange care and support

44. Section 7 of the 1984 Act gives local authorities a discretionary power to provide residential care, ancillary or supplementary services and supervision to people suffering from mental disorders. This power runs alongside the duties in the Social Work (Scotland) Act to provide services to 'persons in need', including people with mental disorders.

45. From the evidence we have received, this section does not appear to be much used, as it is largely subsumed by the broader duties imposed on local authorities

46. Section 8 of the 1984 Act imposes a duty on local authorities to provide 'after-care services' to persons who are or have been suffering from a mental illness, or have a learning disability, whether or not they have been in hospital.

47. It is unclear precisely what 'after-care' means, or how long such care is expected to last. Both the Association of Directors of Social Work (ADSW) and the British Association of Social Workers (BASW) made the point to us that this section appears to view mental illness as a progression from hospital to the community (where 'after-care' is then provided). However, in reality it is a more common pattern for the course of a mental illness to be cyclical. This makes it even more unclear where the boundaries of after-care may lie, as the patient's care oscillates between hospital and the wider community.

48. However, the section does, taken at the minimum, indicate that mentally disordered people are entitled to help from social work services.

49. In view of the concerns expressed to us about the lack of services at present, we see no case for weakening the statutory duties of local authorities in respect of mental health care. We do however believe that they should be expressed in a way which is meaningful, both to local authorities and service users.

Duty to provide training and occupation

50. Section 11 of the 1984 Act relates to 'training and occupation' for people with learning disabilities living in the community. It states:

"it shall be the duty of the local authority to provide or secure the provision of suitable training and occupation for persons suffering from mental handicap who are over school age" ^11.

51. It is for the local authority to determine what is 'suitable'. In practice, this tends to take the form of day centres and the like, either local authority-run or run by voluntary organisations with funding from the local authority. The local authority cannot charge for these services.

52. The term 'training and occupation' is arguably rather outdated. The Scottish Executive's review of services for people with learning disabilities¹² sets out the need for 'training and occupation' to be mainstreamed, to include, where possible, the transformation of day centres into drop-in resource centres, and the provision of real jobs and lifelong learning. However, it acknowledges that those with complex needs may continue to require the greater structure of day-care. This more flexible approach may not fit well with the more limited statutory terms of 'training and occupation'.

53. We received strong representations from learning disability organisations, such as ENABLE, that the duty in s11 should remain. Although services for people with learning disabilities can be provided under the general duty to 'promote social welfare' in s12 of the Social Work (Scotland) Act 1968, it is felt that this specific duty provides a helpful focus on the needs of people with learning disabilities.

54. We agree with these arguments in favour of a continuing duty directed at the developmental and social needs of people with learning disabilities, rather than their care needs. Such needs will not always be best met by social work departments directly. Other bodies such as further education colleges, training agencies, and employers, all have a part to play. However, these agencies may not have a primary focus on the needs of people with learning disabilities, and the local authority can play a vital role in co-ordinating services and funding voluntary sector groups to provide innovative and flexible services.

55. However, it is important that further consideration be given to the implications of the learning disability services review, and whether there should be a more coherent legal framework in place for people with learning disabilities. The issue of learning disability and its relationship with mental health law is complex. We have recommended in Chapter 4 that a review of the law relating to people with learning disabilities be undertaken, with a view to possibly creating a new legal framework for learning disabilities. One of the tasks of this review should be to consider this specific issue of how developmental services should be provided for in legislation in the future.

56. People with other mental disorders may also require such developmental assistance. We are therefore in favour of extending the provisions to people with mental disorders who have been assessed as needing assistance with training or personal development. Many people with mental illnesses find it difficult, without support, to maintain working life or lifelong learning. The range of activities (supported working, training etc) should be based upon a person's current state of mental health and take into account the fact that their illness may be recurrent in nature.

57. The duties relating to people with learning disabilities and people with other mental disorders should be separate and differently worded, to reflect the fact that people with learning disabilities often have ongoing developmental requirements, whilst those with mental illness may need assistance on a permanent, periodic, or one-off basis, depending on their circumstances.

58. The requirements of s11 include that transport is provided to places of 'training and occupation'. We believe that this duty should remain. However, neither the duty to provide training, nor the duty to provide transport apply in the case of a person in hospital. We believe that this anomaly should be removed.

Rights to services of voluntary patients

59. It could be argued that all mental health service users should be afforded the same rights to the formulation and implementation of a plan of care, as we have recommended for patients subject to compulsion. We have already recommended (paragraphs 19 - 30) that there should be provision for an assessment of needs for all service users.

60. The question is whether the law should move beyond this and give all service users a statutory right to services. This could run contrary to the principle of Non-discrimination, which states that people with mental disorders should, wherever possible, be treated in the same way as people suffering from other disorders, who do not have such a right. With other illness, people however rightly expect the best treatment available, and this should be no different for people with mental disorders.

61. In our first Consultation we asked whether there should be a duty to provide a particular level or range of services to all patients whether subject to compulsion or not. Most local authorities and voluntary organisations thought there should be, as did the Law Society. Those in favour talked of a joint responsibility on health and social work services. However, concerns were raised by several other bodies that the law would not lend itself to setting standards. Many were concerned that such a duty would be difficult to enforce.

62. As we say in our Introduction, we have considerable concern about the evidence we received about the inadequacy of many mental health services. Nevertheless, we are not convinced that mental health law by itself is the most appropriate instrument to employ to secure adequate services for all people with mental disorders, most of whom will not be subject to compulsory measures of care. There are a range of other mechanisms in place, including procedures for clinical governance; complaints procedures; the setting and monitoring of standards by the Clinical Standards Board for Scotland; and the monitoring and inspection functions of agencies including the Mental Welfare Commission, the Scottish Health Advisory Service, professional bodies and the proposed Scottish Commission for the Regulation of Care.

63. Therefore, apart from updating the existing duties as elaborated above in sections 7, 8 and 11 of the 1984 Act, we do not propose that the Mental Health Act should impose further requirements to provide particular services, or any particular level of services, for patients who are not subject to compulsory measures.

Inter-agency working

64. We asked in our first and second Consultations whether there should be a requirement on agencies to co-operate. The desirability of co-operation was agreed by all respondents. However, many respondents to both consultations were uncertain that this should be a matter for primary legislation. Several observed that the Clinical Standards Board and the Commission for the Regulation of Care will have responsibility for setting and monitoring standards, including co-operation, and that the Mental Welfare Commission also has an oversight role in individual cases.

65. We believe that it is essential for the provision of good mental healthcare that agencies co-operate in its provision. We have heard from users and carers, during our consultation process, of the problems that can ensue for individuals when they do not. There already exists such a general duty in primary legislation¹³ although we received evidence that it is not always fully implemented. We therefore believe that there should be statutory backing to the principle of inter-agency working in the mental health field. Beyond that, we propose that the Code of Practice should give guidance to service providers on the most appropriate ways to encourage inter-agency working in relation to the operation of the Mental Health Act.

Charging for services

66. Section 87(1) of the Social Work (Scotland) Act 1968 provides that social work departments may charge for the services they provide. Health services cannot so charge. Furthermore, the power to charge does not extend to services provided under the duties set out in section 11 of the 1984 Act.

67. People with mental disorders tend to use both health and social work services, to various degrees dependent on circumstances. The differences in charging policies can thus seem rather arbitrary, and can cause difficulties as a person moves to different parts of the care system.

68. Aspects of this are beyond our terms of reference. The issue of charging for residential care is one which is under consideration by government in the light of the report of the Royal Commission on Long Term Care¹⁴.

69. In relation to home care services, the recent report of the Joint Future Group¹⁵ makes various recommendations, including that the Convention of Scottish Local Authorities should develop guidance on charging policies to reduce the inconsistencies in home care charging. Similarly, the Health and Community Care Committee of the Scottish Parliament recommended, in the report of its recent enquiry into the delivery of community care, that steps should be taken to ensure uniformity throughout Scotland where charges are made for the provision of support services¹⁶.

70. This is then, a general problem for community care services which is currently under active consideration elsewhere. In light of this, we make no firm recommendations.

71. There are two matters of particular relevance to the Mental Health Act, which should be borne in mind in these wider reviews. These are charging for services provided under the Act, and charging patients for services delivered to them under compulsion.

72. On the first point, our consultations did not reveal support for changing the current position that services delivered under s11 of the 1984 Act (training and occupation of people with mental handicaps) should not be subject to charging. Voluntary organisations such as ENABLE strongly opposed the introduction of charges for these services, whose purpose is primarily developmental, rather than the provision of care.

73. In relation to people subject to compulsion, we felt that, in general, it was wrong that a person should be made to pay for a service which he or she may not want, but is required by law to accept. This might apply, for example, to prescription charges or charges for services delivered by a local authority to a person subject to a community order. We feel that there is an important point of principle involved here, which should be borne in mind in consideration of the wider issue of charging for care services.

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