Report
on the Review of the Mental Health (Scotland) Act 1984Annex
7 An evaluation of section 18 of the Mental Health (Scotland)
Act 1984
Executive Summary
Scottish Executive Central
Research Unit CHAPTER 1 BACKGROUND TO THE RESEARCH 1. This
research was commissioned to provide information about the operation of section
18 of the Mental Health (Scotland) Act (MH(S)A) for the review of the Mental Health
(Scotland) Act. 2. The MH(S)A allows people to be detained compulsorily
if they have a mental disorder that requires treatment in hospital, either for
their health or safety or the protection of others and they are unwilling or unable
to accept this treatment voluntarily. If a psychiatrist wishes to detain a person
for longer than 31 days an application must be made to the sheriff court for an
order under section 18 of the Act. This allows people to be detained for up to
6 months with the possibility of subsequent renewal. Between 1 April 1998 and
31 March 1999, 1055 section 18 detentions were granted by the sheriff court. 3. Most
applications are made by local authority Mental Health Officers (MHOs) (although
nearest relatives can also make them). The application is accompanied by two medical
reports: one from the patient's psychiatrist and one normally from the patient's
GP. Legal Aid is available for applications to allow the patient to be represented
in the hearing, but until April 2000 this was means-tested. CHAPTER
2 RESEARCH METHODOLOGY 4. The primary aim of this research was
to find out as much as possible about the way section 18 operates in the courts.
The research was carried out between July 1999 and January 2000. 5. One
year was chosen as a focus for the study, April 1998 to March 1999. The study
involved an analysis of the Mental Welfare Commission (MWC) database, which held
information about these 1055 orders. This was supplemented by a survey of local
authority Mental Health Officers who had been involved in these cases. More in-depth
information was collected through an analysis of the case records in three courts
and from interviews with professionals, patients and support groups with experience
of the section 18 process. CHAPTER 3 MENTAL WELFARE COMMISSION DATA
6. Eighty-eight per cent of patients who were detained under section
18 were already in hospital when the order was granted. Nearly all of them had
a mental illness; very few were said to have a learning disability. Glasgow had
the greatest number of orders, followed by Edinburgh, then Fife and Aberdeen.
A sample was taken of 936 cases that were discharged by August 1999. Of these,
about half (52%) lasted six months or less. In 31 per cent of cases the section
18 expired without renewal. 57 per cent of patients were on Leave of Absence when
the order was discharged and 25 per cent of patients remained informally in hospital.
In this year 2005 section 18 orders were renewed. CHAPTER 4 MENTAL
HEALTH OFFICER QUESTIONNAIRE 7. A sample of all the section 18 applications
granted in this year was taken (739 of the 1055 orders) and a questionnaire sent
to the MHOs who had dealt with the cases. Five hundred and twenty-two questionnaires
were returned, a response rate of 71 per cent. 8. Section 18 orders
were split roughly equally between men and women. Seventy-six per cent of patients
were said by MHOs to be able to communicate their wishes and feelings and 84 per
cent were said to understand that they were or had been subject to the section
18 order. On average, patients had been known to Social Work departments because
of their mental health for 57 months. Thirty-five per cent had been so known for
18 months or less. 9. In 81 per cent of cases the patient's nearest
relative was said to have been involved in the application. In 79 per cent of
cases this involvement took the form of discussing the application with the MHO.
Only six per cent of nearest relatives attended court for the hearing. 10. Twenty-seven
per cent of patients were said to have been legally aided. The main reason given
for patients not receiving legal aid when they were eligible to do so was that
they did not contest the application (67%). Twenty-eight per cent of patients
attended court; the main reason given for patients not attending was that they
did not wish to (81% of non-attenders). 11. Patients were said to have
been represented in 39 per cent of cases, nearly all of them by a solicitor, although
some were said to have been represented by family members. Sixty per cent of those
who were represented were said to have chosen their own solicitor; in 28 per cent
of represented cases, the court chose the patient's solicitor. Twenty-four per
cent of patients who were represented had a curator ad litem. The local authority
was represented in 41 per cent of cases. 12. Oral evidence was said
to have been given in 50 per cent of cases, mostly by MHOs (in 44% of cases).
Other witnesses appeared in fewer cases. The patient was said to have given evidence
in only 18 per cent of cases, as was the psychiatrist, while GPs appeared in 13
per cent of cases. Nearest relatives were said to have given evidence in only
three per cent of the hearings. Twenty-seven per cent of applications were said
to have been contested. 13. The impact of the section 18 process appeared
to be very similar for both sexes. The most significant differences were that
27 per cent of men chose their own solicitor, compared to 18 per cent of women,
and a curator ad litem was appointed for 13 per cent of women and six per cent
of men. 14. There was a link between being represented in court and
the patient's attendance at court; 76% of those who were said to have representation,
attended court. However, a significant number of patients were also represented
in court, but did not attend themselves. Over half the sample (52%) were said
neither to have attended court nor to have been represented. In 44 per cent of
cases, the patient either attended court or was represented (data was missing
for the other four per cent). Patients were more likely to give evidence if they
were represented and the application was more likely to be contested. 15. The
MHO data were analysed to see how the section 18 process varied across different
local authority areas. Practice varied a great deal in different local authorities,
particularly in the areas of patient attendance and patient representation. CHAPTER
5 CASE STUDIES 16. Three courts were chosen to provide a more
in-depth picture of the operation of section 18. Two courts were in cities and
the other served a mainly rural area. The researchers analysed court records from
the three courts and conducted interviews with court personnel. The main foci
of the analysis were the court process, the problems faced by the courts in administering
the Act and the brevity and content of the medical reports written on the court
forms. Court personnel suggested that for them, one of the biggest challenges
was working within the statutory time-limits, which leave little time available
to the court or the patients to prepare for these applications. 17. Court
A is a large urban court that hears applications from several local authorities
and hospitals. The court reported no difficulties in administering the Act, possibly
aided by the ease with which hearings can be placed before a sheriff on any day
of the week. In roughly a third of cases, the patient had fewer than three days'
notice of the hearing. 18. The patient was definitely represented in
about half of all cases (though data were missing and this figure could have been
higher) with a curator ad litem appointed in just three cases. Patients
attended court in about a third of cases (again data were missing) and in nearly
two-thirds of cases no oral evidence was heard. Continuations were widespread,
occurring in half of all the cases looked at, mainly to obtain an independent
psychiatric opinion. However, few of these reports appear to have been seen subsequently
by the court. 19. Non-compliance with medication or treatment was given
as a reason for the detention in over half of all psychiatrists' and GPs' reports.
Lack of insight was given in about a third of reports. Risk to others or to self
was mentioned in less than 20 per cent of doctors' reports. Just under a third
of doctors' reports were very brief (12 words or fewer). 20. Court B
is an urban court that hears applications from one large local authority and mostly
from one local hospital. A highly efficient hospital administrator and close relations
between court and hospital ensured that there were no major problems in administering
the Act. In just under a half of all cases, applications came into the court when
the section 26 order was due to expire in four days or less. In just over a quarter
of cases the patient was given fewer than three days' notice of the hearing. 21. Eighteen
per cent of patients were represented by a curator ad litem and solicitors
or curators ad litem were appointed to act for patients in just under 40
per cent of cases. Most cases were heard in hospital rather than in the courthouse.
Uncontested cases were heard in chambers with only the sheriff and clerk present.
Continuations occurred in just over 20 per cent of cases. 22. In the
medical reports, non-compliance was given as a reason for the detention in just
under 60 per cent of psychiatrists' reports and over 40 per cent of GPs' reports.
Lack of insight was cited equally by psychiatrists and GPs in just under 40 per
cent of cases. Risk to others was cited in just over 10 per cent of psychiatrists'
reports and just over 20 per cent of GPs' reports. The corresponding figures for
risk to self were just over 30 per cent of psychiatrists and a half of all GPs.
A quarter of reports consisted of 12 words or fewer and nearly half consisted
of 12 to 20 words. 23. Court C dealt with cases from a large, mainly
rural area. The court reported the greatest difficulties in administering cases,
caused in part by the distance doctors are required to travel to attend court
and to visit patients. Despite this, Court C had the highest percentage of cases
in which five to eight days remained of the section 26 order when the application
was filed. However, in just under 60 per cent of cases, the patient was given
less than three days' notice of the hearing. In a third of cases the patient was
informed of the hearing the day before. 24. About 40 per cent of patients
were legally represented but no curators ad litem were appointed in Court C. Patients
attended the hearing in just over a third of cases and oral evidence was called
in just under a quarter of cases. Continuations were used in just under a third
of cases. Court C was distinguished by the relatively high number of appeals against
both section 26 and section 30 orders. 25. In the medical reports, non-compliance
with medication or treatment was cited in just under three-quarters of psychiatrists'
reports and two-thirds of GPs' reports and lack of insight in just over a half
of psychiatrists' reports and about 40 per cent of GPs' reports. Risk to self
was cited in about 30 per cent of both doctors' reports and risk to self in 38
per cent of psychiatrists' reports and 36 per cent of GPs reports. About a third
of doctors' reports consisted of 12 words or fewer and just under 20 per cent
were illegible in part or in whole. CHAPTER 6 EXPLANATIONS 26. Interviews
were conducted with about 50 individuals with experience of the Act from different
areas. Ten of these were service users. The interviews appeared to show that there
are considerable variations in practice across the country (something already
suggested by the data from the MHO survey). Although the interviews were not drawn
from a representative sample, they did provide some explanations for the findings
from the MWC data analysis, the MHO survey and the case studies and they offered
another perspective on the section 18 process. 27. The interviews suggested
that the section 18 process is more efficient where there are agreed procedures
for filing applications and notifying patients about the hearing. This is made
more difficult by doctors' lack of knowledge of the procedural requirements of
the Act. The need to identify an effective treatment within the 28 days allowed
by the section 26 order also appears to lead to the late filing of applications.
28. There were mixed views about the appropriate venue for these hearings.
Patients interviewed for this study preferred cases to be heard in courts as they
were perceived to be independent. Medical personnel preferred cases to be heard
in hospitals because they thought they were less intimidating for patients and
more convenient for hospital staff. There was some support amongst solicitors
for a wider choice of venues than the court and one solicitor thought the courts
should be replaced by a tribunal system. 29. Some solicitors expressed
concerns about the brevity of the evidence provided by doctors on the court forms.
One psychiatrist reported that he felt obliged to present reports to court that
emphasised the patient's more abnormal behaviour, to ensure that the order was
granted. GPs were reported to play a generally peripheral role in these proceedings,
due to their lack of specialist knowledge of mental health. 30. Obtaining
an independent psychiatric opinion was felt to be crucial to a successful challenge
to the application. This was said to be easier to do in some courts than in others.
In Court C problems were said to arise because of the difficulty of obtaining
reports from doctors who live far from the court. Inevitably, the court case will
be continued to allow time for an independent opinion to be obtained. According
to interviewees from two areas of the country, doctors in their area are reluctant
to treat patients during continuations. The evidence from the cases studies suggests
that in fact, independent opinions appear to have little impact on the outcome
of the case. It is only in very few cases that applications are unsuccessful.
31. The general impression gained from the interviews was that many
patients find the prospect of attending court to be an intimidating one and are
too ill to take part. Some solicitors suggested that patients are deterred from
seeking legal advice by medical staff. MHOs and patients reported that patients
were unaware of their legal rights when they were first detained and afterwards.
One interviewee had been surprised at the number of patients who appeared not
to know what their rights were and had started a course in her hospital to inform
them and their families. 32. Nearest relatives appear to play very little
part in section 18 hearings. One MHO suggested that family members are protected
from participating because they are under so much pressure already. There was
a suggestion that family members are marginalised and do not know a great deal
about their rights. One interviewee felt that many carers and relatives do not
wish to have to make the decision about detaining a family member as their involvement
can destroy family relationships. They would prefer a professional to make the
decision. A patients' support group worker pointed out that some patients also
do not want their family members to play any part in their cases because of the
strains that already exist in family relationships. 33. Nurses were
identified as being the key provider of information to patients and carers. Interviewees
suggested that because they are so busy, this is difficult for them and lay advocates
could fulfil this role instead. Some hospitals were reported to have good protocols
to ensure that patients are given proper notice of hearings but this is not the
case everywhere. While professionals thought that they did their best to ensure
that people had access to legal advice, patients and their supporters were less
positive. Medical staff reported that it was difficult to inform patients about
their rights because they were often too ill to absorb the information. Patients
suggested that they felt they had been unlawfully detained by hospital staff and
felt powerless to enforce their rights or opinions. When solicitors are involved
in the case, they reported that they often have 48 hours or less to prepare for
the hearing. 34. Psychiatrists suggested that they often do not expect
patients to remain in hospital for the full six months of the order. Rather, patients
leave hospital on Leave of Absence shortly after the section 18 order is granted.
CHAPTER 7 CONCLUSIONS AND SUGGESTIONS 35. The researchers
concluded that the section 18 process, as designed has the potential to be independent,
effective, appropriate and accountable. However, at present, the provisions designed
to protect patients' rights, such as access to information and legal representation,
may not work as effectively as they might. | 
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