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

Chapter 36

CODE OF PRACTICE

1. Section 119 of the 1984 Act requires Scottish Ministers to prepare a Code of Practice. We are in favour of the retention of such a Code of Practice, but in a strengthened and extended form. This accords with the consultation responses that we received on this matter.

The existing Code of Practice

2. The Act specifies that the Code will have two principal functions:

• to give guidance on detention and discharge under the Act and
• to give guidance on medical best practice.

3. The existing Code of Practice¹⁰ was published in 1990. It sets out its aims as follows:

"The code offers advice on what is generally agreed to be good professional practice in relation to the procedures laid down in the Act, in the expectation that this will enable members of different professional groups to work together on practical issues that may straddle professional boundaries"¹¹.

4. There is no legal duty in the Act to comply with the guidance given in the Code. However, the Code itself states¹² that, as the Code is a statutory document, failure to observe its terms could have legal consequences.

The retention of a Code of Practice

5. There are several reasons why we favour the retention of a Code of Practice, in an updated form.

6. We think that the new Code could be given the role of promoting the Principles of the Act (see Chapter 3). It could give detailed guidance on the practical implementation of the Principles, whilst the Code itself would also be based upon those Principles. This would help to ensure that the Principles would become the fundamental basis upon which treatment and care under the Act would be based.

7. It is in keeping with our recommendations in other parts of the Report that users and carers should be given better information about care and treatment under the terms of the Act. The new Code could perform the role of a "guide" to the Act for users and carers. If it were made readily available it could become a key reference document for those users and carers who seek to understand the legal underpinning of mental health services.

8. The new Code would have the aim of offering practical guidance on best professional practice and guidance as to procedure under the new Act to professionals working in the field of mental health. If it were kept up-to-date, guidance from the Code on how the Act should operate in practice could be of great help to those charged with operating the provisions of the Act.

9. The Adults with Incapacity (Scotland) Act 2000 requires, at s13, that Codes of Practice be prepared for those carrying out functions under the Act. As we indicated in Chapter 2, we are of the view that the provisions of the Mental Health Act should, wherever practical, be complementary to those of the 2000 Act. The retention of a Mental Health Act Code of Practice would assist in this aim.

10. Respondents to our consultation were in favour of the retention of a Code. When we asked in our first Consultation whether there should be a Code of Practice in future, all bar one of the 40 organisations and individuals which responded on this question said that there should be. We also asked whether respondents found the present Code useful: a clear majority of respondents agreed that they did. However, respondents to both questions also pointed towards serious problems with the way the Code is currently drafted and used.

11. In our second Consultation, we invited comment on the areas covered by the Code. There was a common view that the Code required to be extended and strengthened. In particular, respondents expressed a wish that the Code provide

• a means of addressing practice issues that emerge over time from the work of bodies such as the Mental Welfare Commission and Scottish Health Advisory Service.
• a means of linking with relevant provisions in other legislation.
• a guide to evidence based practice in critical areas such as special treatments

A new Code of Practice

The Principles of the Act

12. We believe the Code should act as an aid for all parties in operating the Act according to the Principles set out in the Act.

13. If, as we suggest in Chapter 23, the Mental Welfare Commission is given the formal role of being the "guardian" of the Principles of the Act, the Code of Practice would reinforce the Commission's role in being guided by, promoting and advancing the Principles.

A guide to best professional practice

14. The Code of Practice should seek to promote inter-agency working and best practice. We believe that its guidance should be more detailed than at present and should cover all elements of the new Act. The Code would therefore give guidance on compulsory care and treatment, both in hospital and in community settings. The Code should also give guidance on elements of service provision which are not linked to compulsion, such as advocacy. The Code should take account of, and refer to, other guidance as appropriate.

15. In providing guidance on best professional practice, the Code will be influenced by the standards set by other bodies such as the Clinical Standards Board for Scotland, Scottish Health Advisory Service and The Scottish Commission for the Regulation of Care. There should be a statutory requirement for consultation with these bodies in drafting the Code.

16. There could also be broader guidance, for example on the implications of the requirement, arising from the Principles, to take account of specific needs arising for example, from age, gender or culture in providing services.

A guide for users and carers

17. We heard evidence from users and carers that they find mental health law impenetrable. It was neither easy for them to understand the legal basis for treatment nor to be certain of their rights.

18. If the Code is to operate in future as a guide to users and carers it must be drafted wherever practicable in a less technical and more accessible way.

19. However, the Code will inevitably be a lengthy document, covering a range of issues, some of them of great complexity. Particular individuals or groups will have interests in specific parts of the Code, and there will be issues of its accessibility to people whose first language is not English. We therefore believe that, alongside the production of the Code, there will be a need to promote awareness of its contents.

Legal force of the Code

20. We asked consultees what legal force they thought the Code of Practice should have. There were a variety of views expressed. The British Association of Social Workers (BASW) considered that there should be a legal duty to comply with the Code, as did many of the voluntary sector respondents. The Law Society took the view that the code should be for guidance, but in proceedings, non-compliance would require justification. Others said the Code should have no legal force but should be to inform and encourage practitioners.

21. We take the view that there should continue to be no legal duty imposed by the Act to comply with the Code. However, we agree with the Law Society's view that non-compliance with the Code's provisions would have to be justifiable if challenged in legal proceedings.

Training on the Code

22. We heard evidence that professionals receive little training in the present Code. We believe that the Code should have a greater impact than is currently the case. Ongoing training for professionals who operate the Act should include appropriate reference to the provisions of the Code of Practice.

Scope of the Code

23. We note that s119 did not originally include any reference to guardianship nor community care orders (the latter were introduced after the 1984 Act was brought into force). Neither of these therefore feature in the current Code of Practice, and while both these areas are now provided for in s119¹³, the Code has not been updated to follow suit.

24. We make recommendations about the need for regular updating of the Code below. Clearly, we would not wish to see the Code failing to keep pace with changes in care because the wording of the relevant Section of the Act was restrictive. The wording of the statutory provision which will replace s119 should therefore be broad and flexible. This will allow it to reflect the Code's new broader functions, as outlined above, and also to be amenable to any future changes in the Code's specific subject areas.

Publication of the Code

25. It was six years after the 1984 Act became law that its Code of Practice was published. This delay, although at least partly caused by the statutory requirement to consult widely with interested parties, meant that there was for several years a lack of guidance on the most appropriate implementation of a new, complex piece of legislation.

26. The Code of Practice should be an important element of people's understanding of the provisions of the Act and their implications. This role will be particularly important when a new Act is introduced, as it will differ in many key respects from the 1984 Act.

27. There should be, as at present, a requirement for consultation with relevant groups before the Code is published. Our proposed implementation group (see Chapter 37) should have a key role in relation to the drafting of the Code.

28. However these considerations are no excuse for unnecessary delay. We take the view therefore that the Code of Practice should be developed in tandem with the new legislation and placed before the Scottish Parliament not later than one year after the Act receives Royal Assent.

Revisions of the Code

29. There is a requirement under s119 that Scottish Ministers should "from time to time revise"¹⁴ the Code. However, the Code was published in 1990 and is now some ten years old (although we are aware that a revision of the Code is currently being undertaken). In the decade since the Code was published, there have been many changes in mental health care. These are not reflected in the Code.

30. We recommend that regular updates of the Code should be undertaken by the Scottish Executive. These updates should reflect, amongst other things, guidance and advice issued by the Mental Welfare Commission as well as professional bodies. We heard evidence that guidance from the Commission is extremely useful, but that it can be difficult for professionals to be aware of it and clear about its status.

31. We also recommend that apart from the regular updates a full revision of the Code should be undertaken every five years. We suggest that the Mental Welfare Commission, in collaboration with the Implementation Group, should take the lead on making recommendations to the Scottish Executive of the main changes required to the Code. The requirement for consultation on the draft Code with all relevant groups would also remain in force.

The Notes on the Act

32. In addition to the Code of Practice, further guidance on the provisions of the 1984 Act exists in the form of the Notes on the Act¹⁵, which is a reference guide which was produced by the Scottish Office at the time the 1984 Act was published. The Notes have not been updated in line with changes to the Act itself.

33. The Notes are a Section-by-Section guide to the contents of the Act. They are aimed at all those who are given a role in the Act as well as those other professionals (e.g. court officials and records officers) who may have to undertake roles relating to the Act's provisions.

34. The Notes are explanatory in nature and neither have any statutory function nor are they an authoritative guide to how the Act or its Regulations are to be used and interpreted.

35. The Notes overlap in some respects with the Code of Practice. However, they have a separate function and we recommmend that they continue to be a separate reference document for professionals and others concerned with the Act.

36. It is of course essential, if the Notes are to be in use as a reference document, that any changes to the Act itself are reflected in published updates to the Notes.

Technological improvements

37. We note that in future technological improvements are likely to improve the flow of information about the Act.

38. We would hope that versions of the Code would be placed in searchable electronic form on the internet, and that the Code would be electronically linked to the Notes on the Act and to the Act itself. We would also hope that at appropriate places in the electronic Code there would be links, for professionals, to the relevant pieces of guidance from professional bodies, standards-setting bodies such as the Clinical Standards Board for Scotland and the Mental Welfare Commission. For the benefit of users and carers the Code should also give links to voluntary bodies, health education sites and other sources of useful information.

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