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

Chapter 7

INITIATING AND APPROVING COMPULSION

1. A number of different people, including relatives, General Practitioners, psychiatrists and mental health officers (MHOs), have a role in the 1984 Act relating to the initiation of detention procedures. We have considered whether these roles continue to be appropriate.

Role of relatives

Consent to emergency and short term detention

2. At present, the law requires that 'where practicable', the consent of a relative (not necessarily a 'nearest relative') or MHO is obtained to an emergency detention²⁶. If it is not practicable to obtain consent from either the relative or MHO, the detention can proceed, but reasons why consent was not obtained must be given to the Mental Welfare Commission.

3. Consent must be obtained by the nearest relative or MHO, where practicable, to short term detention²⁷ (28 days).

4. On our visits and in the responses to our consultations, we heard that many carers and users find these requests add to the distress of families, rather than provide a safeguard for the user, as was presumably intended.

5. We were told by both groups that consents to detention by relatives can have a very damaging effect on a carer's relationship with the service user. During the difficult period when a detention is being considered, the involvement of a service user's family in consenting to the detention itself is counterproductive, in the view of very many of our consultees. It can exacerbate any feelings of negativity about his or her family being experienced by the service user.

6. One service users' group told us:

'Most people [in the group] felt that relatives should not be involved in sections... Often they do not know anything about you. Sometimes they are persuaded by doctors that you are experiencing more problems than you feel you are... Maybe it should always be the MHO instead of relatives.'

7. Some carers to whom we spoke had not been made aware that, irrespective of their views about the detention, they were under no obligation to give their consent to the detention, and could ask that the MHO be approached for consent instead. These carers had found being asked to give consent to be particularly difficult.

8. Several service providers to whom we spoke said that they attempt to avoid requesting consent from relatives, for the reasons that are given above. Instead, they attempt to get a consent from the MHO whenever possible.

9. We discuss below (paragraph 60) the need to consider how the availability of MHOs might be improved. However, even if an MHO is not involved, we believe that there is no substantial benefit to retaining the relative's right to consent, either to an emergency or short term detention.

10. We recommend, therefore, that relatives should no longer have the right under the Mental Health Act to consent to emergency or short term detention.

11. Our recommendations are intended to remove this burden from relatives. They are not intended in any way to lessen the involvement of relatives and carers in the treatment and care of service users. In Chapter 16 we go on to detail the ways in which the rights of carers should be strengthened.

Application for long-term detention

12. Nearest relatives also have a right under s.19 of the Act to apply for detention of a service user, provided they have the appropriate medical recommendations required by s.20.

13. The right for a nearest relative to apply for detention is not in keeping with our proposal that nearest relatives should no longer be asked to give consent to detention. Even more than the consent issue, a request for detention of a service user by a nearest relative may damage family relationships. It would bypass the MHO, whose role we believe is very important. So far as we are aware, the power is rarely used. We therefore recommend that the right should be removed.

14. Section 19(3) gives nearest relatives the right to request an MHO, via the local authority, to assess whether an application for detention should be made. We believe that this right should be retained in a modified form. We deal with this in Chapter 13.

Role of general practitioners

Training in mental health issues

15. General practitioners have a vital role in the care and support of people with mental disorders in the community. GPs also provide the primary means of access to specialist psychiatric services.

16. Many carers and service users to whom we spoke were very appreciative of the work undertaken by GPs. However, there were some criticisms, for example, of a lack of responsiveness by some GPs to requests for assessments by carers (see Chapter 13). We were concerned by these criticisms, although it is difficult for the Committee to know with confidence how far such criticisms reflect a general problem, or difficulties in relationships between individual GPs and their patients.

17. We did, however, hear evidence from a number of sources, including from GPs themselves, that GPs may have only limited training in mental health. In view of the importance of mental health to the work of GPs, we feel it is essential that training in mental health issues should be a routine expectation for GPs in training, and that the continuing professional development of GPs should include elements relating to mental health.

Legal role in detention

18. Under the 1984 Act, general practitioners have two pivotal roles relating to detention:

• Any 'medical practitioner', including a GP, may initiate an emergency detention, provided they have personally examined the mentally disordered person on the day on which they make the recommendation. An attempt must be made to obtain consent to this detention either from a relative or a MHO²⁸.
• The GP can act as the second medical recommendation to a long term detention²⁹.

19. We start from the premise that being made subject to compulsion under mental health law is a serious matter, with major implications for civil liberties. It is important therefore that those who have the authority to initiate such measures have the appropriate skills and knowledge.

20. As we have already said, we perceive a need for training in mental health generally amongst general practitioners to be improved. However, there is a more specific problem in relation to the Mental Health Act, where it is necessary to understand and apply not only medical knowledge, but also complex legislation. The evidence we received indicated that not all GPs feel confident in implementing their responsibilities under the Act.

Emergency detention

21. We asked in our second Consultation whether GPs initiating emergency detentions should be required to have undertaken specialist training in the use of the Mental Health Act. The majority of those who offered comment supported such a requirement. There was support for this from the British Medical Association (BMA), and strong support from social work and voluntary sector respondents.

22. However, practical concerns were raised by several respondents, for example:

• The Royal College of General Practitioners (RCGP) was concerned that such a requirement would serve as a disincentive for GPs to work with mentally disordered people, and could further marginalise mental illness.
• The RCGP also expressed serious concern about the potential cost of undertaking such training.
• Grampian Primary Care NHS Trust were broadly in favour of training for GPs, but were concerned whether, in practice, an appropriately trained GP would be available at all times.

23. We note these concerns. We would certainly not wish to make any recommendation that would act as a disincentive to GPs to work with mental health service users.

24. This could well be the case if a model of 'specialist' GPs were developed, who were given specific authorisation to deal with emergency detention. Any requirement that GPs with specialisms in mental health be the only ones who could undertake detentions would also cause serious difficulties in rural areas, where there may only be one GP within reasonable travelling distance. There would also be problems for out of hours services, where many emergencies are likely to arise. In an emergency it is unlikely that an on-call GP will have the time to contact and wait for approval from a colleague who is accredited to undertake detentions.

25. The alternative model is that all GPs should be obliged to be trained in the use of the Act. The difficulty with this approach is that initiating Mental Health Act procedures is a rare event in the practice of most GPs, and there would be difficulties in keeping such knowledge up to date. However, we do not believe that training required to ensure a basic knowledge of the emergency provisions of the Act need be particularly extensive, and we feel this is preferable to requiring the development of a cadre of specialist GPs for this purpose.

Short term detention

26. GPs do not currently have any role in short term (28 day) detentions. The proposals we make in Chapter 8 envisage the possibility of short term detention being initiated from the community, but they would involve a practitioner with expertise in treatment of mental disorders, i.e. a psychiatrist rather than a GP.

Long term compulsion

27. GPs are expected to provide the second medical recommendation for a long term detention³⁰. However, there remains the problem, similar to that surrounding emergency detentions, of GPs who are untrained in the use of the Act in recommending long term detentions.

28. In evidence a GP expressed reservations about this responsibility. We were advised that many GPs feel very unhappy at having to defend an application for detention in court. Furthermore, they often do not feel they can add significantly to the evidence of a consultant psychiatrist - particularly when the patient may have been in the care of the psychiatrist for several weeks by the time of the hearing.

29. Two main justifications have been put forward for the involvement of GPs in long term detentions.

30. Firstly, there is the argument that the GP provides an independent medical opinion, and we agree that there is significant value in having a doctor who is independent from the hospital system giving consideration to whether a long term detention is appropriate.

31. Secondly, it has been argued that the GP's recommendation is valuable since he or she will have personal knowledge about the service user and his or her background, which a s20 approved psychiatrist may not have. Indeed, this appears to be the main purpose at the moment of the second recommendation, since s20 states that the recommendation should be given, if not by the patient's own GP, by 'another medical practitioner who has previous acquaintance with him'. However, the evidence we received suggested that the way in which primary care services have developed over the past few years may make it less likely that a service user will have a long-term relationship with a single GP.

32. Taken at its worst, then, one could have a situation where the long term detention of a patient depends, in part, on the evidence of a doctor who may not have any real knowledge of the patient, and who professes no particular expertise in mental health or mental health law.

33. We considered a number of ways in which this could be addressed. There is no wholly satisfactory solution. The options appear to be

• Require all GPs to have training in mental health
• Restrict the second recommendation to doctors who have received specialist training
• Change the category of people authorised to give the second recommendation
• Remove the need for a second medical recommendation.

34. We do not believe that the second recommendation should be removed. Although it has limitations, we believe it is also a source of potentially important information for the tribunal and protection for the patient. If, as we recommend, the decision of the tribunal is broadened from the simple question of whether the grounds for detention are met, and there is also the potential for compulsory treatment in the community, the evidence of a health professional working in primary care will become even more significant.

35. We discuss at paragraphs 69 - 76 the role of the community psychiatric nurse (CPN), and conclude that the CPN should not undertake the role of providing the second recommendation. Given that there is already social work input from the MHO, we have not identified any other group of people from the community and primary care services who could provide the second recommendation.

36. It appears therefore that it would be appropriate for GPs to continue to make recommendations in relation to long term compulsory measures. However, in these cases there are not the time pressures that affect emergency or even short term detentions. There is a case therefore for requiring recommendations for long term detentions to be made only by GPs with specialist understanding of the use of the Act, and we considered such a proposal.

37. However, on balance, we do not support this approach. It would change the role of the GP from someone with a direct responsibility for the primary care of the patient to someone acting as a second specialist. While knowledge of the Act is desirable, it is not essential that the GP be an expert in the workings of the Act. It is important that he or she understands enough about mental health care to be able to state a view of the patient's condition, based on their knowledge of the patient, and to advise the tribunal as to what appropriate support can be provided to the patient by primary care services. The decision is of course then a matter for the tribunal.

38. Our general conclusion, then, is that GPs should continue to perform similar roles in relation to compulsory measures as at present.

39. Since any GP however may be called upon to undertake emergency detention or to become involved in long term detention, the training and professional updating they receive in relation to mental health should include basic information regarding the use of the Act.

40. It may be that the development of Local Health Care Co-operatives could provide an opportunity for more structured arrangements, and the possibility of the development of specialisms in mental health by interested GPs. However, we have concluded that this need not affect the legislative provision.

41. Our recommendations relating to an improved and more detailed Code of Practice (see Chapter 36) should improve knowledge and understanding of the Act amongst all groups who use the Act, including GPs.

42. The Mental Welfare Commission, which has taken steps recently to develop its links with GPs, would also be an important source of advice and support.

Role of psychiatrists

'Section 20' Doctors

43. We propose that one of the medical recommendations for long term compulsion, and the medical recommendation for short term detention, should continue to be by a doctor with special experience in the treatment of mental disorder. The current provision in s20 of the Act requires that such practitioners be approved by a health board as having such experience. However, there is no specific requirement that approved doctors have undergone specific training, and no formal criteria set which should be applied by boards. We believe that these provisions should be strengthened to set out the appropriate level of experience for approved doctors, and requirements to have attended relevant accredited training courses.

Substitution of responsible medical officers

44. The RMO has an important statutory role, and we believe it is important that a senior doctor is identified as the responsible medical officer throughout a period of compulsory care. This will require NHS bodies to have appropriate arrangements for temporary substitution, where the patient's normal RMO is absent, whether on leave or because of illness.

45. In particular, it should be the norm that a patient's usual RMO is available to give evidence at any tribunal hearing. Should this not be possible, internal arrangements should be made for substitution by a colleague who is also approved as having special experience in the treatment of mental disorder.

Psychiatrists in junior grades

46. The 1984 Act states that any second medical recommendation required for long term detention should not be given by a person in a junior grade working directly to the consultant giving the first medical recommendation³¹. This is presumably designed to ensure that there is no bar to the independence of the second medical recommendation.

47. We support this provision, and recommend that the Act should contain a broader statement that no second medical recommendation should be made by a person working directly to the person giving the first medical recommendation.

48. Ideally, the second recommendation would be wholly independent. We considered whether the Act should specify that the second doctor not be employed in the same hospital, or even NHS Trust, but concluded that this requirement might in some cases be impractical, particularly in rural areas. It is a matter which is best dealt with in the Code of Practice.

Role of mental health officers

Professional background of mental health officers

49. The MHO has an important role in the detention and ongoing care of a service user. We have given considerable thought to the issue of whether professions other than social work could undertake the role of an MHO.

50. The 1984 Act states that an MHO is 'an officer of a local authority appointed to act as a MHO for the purposes of this Act'³². The local authority must be satisfied that MHOs have competence in dealing with persons who are suffering from mental disorder, and Scottish Ministers may issue directions regarding their qualifications, experience and competence.³³ Current directions require that MHOs should have a professional qualification in social work and have completed an approved training course³⁴.

51. We asked in our first and second Consultations about this issue. The response was divided, but the number of respondents in favour of keeping MHO status exclusively available to social workers was greater than the number of those against, in both consultations.

52. In our second Consultation, about three quarters of those that responded were in favour of retaining the restriction of MHO status to qualified social workers. Social work respondents were almost unanimous in this view. However, one in three medical and nursing bodies (including the Royal College of Nursing and the Royal College of Psychiatrists) were of the opinion that other professional groups such as nurses and occupational therapists, if suitably trained, should be able to act as MHOs. ENABLE suggested that, subject to suitable training, MHO status could be widened to other professions, such as clinical psychologists and the new area co-ordinators proposed by the Review of Services for People with Learning Disability³⁵.

53. The College of Occupational Therapists argued that occupational therapy was the one profession that spans health and social care; that its participants were well trained and subject to professional standards, and often undertook similar assessment and case management tasks to social workers. They suggested that there was no rationale behind excluding occupational therapists from the MHO role.

54. Some of the arguments made to us in favour of extension of the role were:

• Professions other than social work have the requisite care skills and knowledge and understanding of individual mental health needs.
• Much of MHO training as it currently operates could be accessible to other professions, thus making work within the statutory framework and other 'social work' skills more accessible to them.
• There are sometimes problems, in rural and other areas, with gaining access to MHOs, which could be alleviated if the numbers of MHOs were increased, by allowing other professions to undertake the role.
• Staff rotas mean that MHOs sometimes have had little previous involvement with an individual client.
• MHOs could maintain their separateness from the health service but need not be exclusively social workers: it was noted by one respondent that social work departments already employ care managers from fields other than social work.

55. Arguments that were put to us for retaining MHO status exclusively within social work included:

• Social workers have a unique set of skills and experience which they can bring to the role. These include working with clients subject to compulsion, court work and risk assessment.
• These fundamental social work skills are an implicit precondition of the current MHO training.
• Social workers are best able to provide a social care perspective and link the service user into community care services and resources.
• Social workers are independent from the health service, which both means that they can give a genuinely independent view on compulsory measures, and helps the service user's perception that there is independent oversight of his or her case.

56. The Mental Welfare Commission took the view, in responding to our second Consultation, that social workers are currently the only profession to combine independence from the health service with training and experience of working within a statutory framework. We concur. In our view, it would not be appropriate for the independent role of the MHO to be performed by someone employed within the health service, which rules out both nurses, and the great majority of occupational therapists with mental health expertise. We therefore believe that MHO status should continue to be restricted to specially trained social workers.

57. However, we do not believe that this should be specified in primary legislation, since such a requirement may become outdated if there are changes in the structure of social care provision. The Act should set out the general framework, with the specific requirements to be set out by regulations.

Consent to emergency and short-term detention

58. Where practicable, either an MHO or a relative must currently be asked to consent to an emergency or short term detention. We say above that we do not believe that relatives should continue to undertake this role. This, therefore, makes the role of the MHO even more important. We think it is highly desirable that an MHO is involved in all types of detention procedures.

59. We considered whether, in the case of emergency detentions, the consent of an MHO should be mandatory. However, we appreciate the difficulties of ensuring that an MHO is available in all circumstances. We therefore believe that the consent of an MHO should be obtained 'where practicable', as at present, with reasons given where consent has not been obtained.

60. We note that the Annual Report of the Mental Welfare Commission for 1998-9 draws attention to wide variations in the percentage of detentions obtained without consent by a nearest relative or MHO. These vary by hospital from none to 30%, with the variations not easily explained by the location of hospitals. We recommend that all local authorities and health boards give consideration to how the availability of an MHO to respond to emergency detentions may better be ensured.

61. However, it appears to us that, in the case of short term detentions, there should be no difficulty in ensuring that an MHO is available. (They are currently obtained in 99% of cases, according to Mental Welfare Commission statistics.) The emergency detention, if undertaken first, will allow up to 72 hours within which an MHO opinion might be obtained. A short term detention might also be undertaken directly from the community (as we propose in Chapter 8), but even in these circumstances, we believe that it should be necessary to have obtained consent from an MHO before the detention takes place.

62. We therefore recommend that the new Act require consent from an MHO in all cases where a short term detention is being considered.

Initiation of long term compulsory measures

63. The 1984 Act gives either MHOs or the nearest relative the right to initiate long term detentions³⁶. We have already stated that we do not believe nearest relatives should any longer have this right.

64. There are three ways in which an MHO can currently initiate an application for long term detention:

• Firstly, if it appears to him or her to be appropriate to do so, an MHO can initiate an application for long term detention without being asked to do so.
• Secondly, if requested to do so by a nearest relative, an MHO must assess the patient and either make an application for detention or give written reasons why he or she does not think detention is appropriate.
• Thirdly, if the MHO has received recommendations for detention from two doctors, and one of them requests that an application for detention be made, the MHO must make the application, irrespective of his or her own views on the matter. In making the application, the MHO must provide a statement of whether he or she thinks detention is appropriate.

65. Other than the right of the nearest relative to request assessment for detention, which we discuss in Chapter 13 (paragraph 19-30), we believe that these provisions are adequate, and do not recommend any change in them.

Renewals of long term compulsory measures

66. At present, although they have a fundamental role in applying for long term detentions, the Act does not require MHOs to be involved in the renewal of a long term detention³⁷.

67. We believe that the independent input of an MHO is as important a safeguard at the renewal stage as it is at the time of initial detention. Ongoing input by social work is also important, since the longer-term care of most service users will be in the community.

68. Therefore, we recommend that MHOs should, in future, be required to prepare a report when a long term compulsory order is being renewed by the RMO. The report should state whether the MHO supports or does not support the renewal, and the reasons for the MHO's view. When the MHO does not support the renewal, the case should be referred to the tribunal for consideration.

Role of Nurses

Community psychiatric nurses

69. Community psychiatric nurses (CPNs) increasingly play a central role in the treatment and care of service users living in the community.In responses to our consultations, we were told by service users of the importance they place on the support that they receive from CPNs. They are, in addition, a valuable source of specialist knowledge on mental health matters in a primary care setting.

70. CPNs do not currently have any formal role under the Act. Some oral evidence that we received on our visits suggested that CPNs heavily influence many GPs in their considerations of detention procedures. We therefore asked in our second Consultation document whether this should be formalised, to give CPNs the power to initiate emergency detentions and/or act as a second medical recommendation for long term detention.

71. Overall, most respondents thought that CPNs should neither be given the power to initiate emergency detention nor give a recommendation for a long term detention. The Scottish Association for Mental Health (SAMH), ENABLE and the Scottish Users' Network (SUN), as well as other social work, voluntary sector organisations and users and carers were against such powers, on the basis that the power to detain would compromise the CPN's supportive role.

72. There was more support for these proposals from health boards and trusts and nursing and medical bodies. The United Kingdom Central Council for Nursing, Midwifery and Health Visiting (UKCC) and the Royal College of Nursing (RCN) supported both proposals. The UKCC noted that other professions are currently required to manage the tension between powers to compel and the development of a therapeutic relationship, and added that nurses may even be better placed to do so than other professionals, since they are skilled in supporting people in periods of distress and enabling them to recognise the necessity of actions taken to pursue recovery. The Community Psychiatric Nurses Association (CPNA) said that CPNs have always resisted becoming the person with a power of detention although they accepted there were some practical arguments in favour of such a power in relation to emergency detention.

73. We are aware of developments currently taking place which are extending the role of nurses into areas previously the preserve of doctors. We also accept the argument that CPNs have specialist knowledge of mental disorder and the fact that GPs, in many cases, already take advice from CPNs about detention.

74. Nonetheless, on balance, we are not persuaded that CPNs should have a formal role in applications for detention, either on their own behalf, or in support or consent to medical recommendation.

75. We have already said that we do not support nurses being given the role of MHOs. Nor do we feel it would be helpful to add a formal requirement for a report by a further professional, particularly in emergency and short term detention.

76. However, we suggest that, instead of giving CPNs a formal role in detentions, the Code of Practice should provide that GPs should, whenever possible, discuss any proposed detention of a mentally disordered person with a CPN. This will formalise a practice that already takes place, will make the best use of a specialist resource available to GPs and, if a CPN is already working with the person, it will make it more likely that a recommendation for detention is based upon personal knowledge of the mentally disordered person.

Nurses in hospital

77. We are aware that nurses in hospital play an increasingly important role as part of the care team. However, we found little support for the introduction of any new statutory role for nurses in the Mental Health Act so far as it applies to patients in hospital.

78. We discuss the 'nurse's holding power' in Chapter 8. Nursing organisations said in evidence to us that the level of training which nurses receive in their legal responsibilities when operating this power is sometimes inadequate. The Mental Welfare Commission has in the past and again recently commented on variations in the extent to which nurses are aware of other parts of the Act with relevance to their work, such as the implications of the forms completed under Part X, which set out what medication may lawfully be administered without consent. We believe that steps should be taken to ensure that all nurses working with patients subject to compulsion have a basic understanding of the Act, particularly as it relates to their professional responsibilities.

79. Regulations specify the classes of nurse who may exercise the nurse's holding power³⁸. It was pointed out to us that practical problems may arise if the nurse on the scene at the time a patient seeks to leave has not attained the prescribed status. On the other hand, we would not wish junior nurses to be placed in the invidious position of exercising legal powers of restraint when they are not appropriately trained or experienced. We believe that the appropriate level of qualification for nurses entitled to exercise the holding power should be reviewed.

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