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

Annexes

Annex 1

Summary of the Mental Health (Scotland) Act 1984, its History and Comparison with England and Wales.

Nature of the Mental Health (Scotland) Act 1984

1. The 1984 Act is commonly thought of as the legislation which provides for the compulsory detention and treatment of mentally disordered people. However, the Act contains a number of other important provisions. We summarise the provisions of the Act in paragraphs 20 to 45 below.

2. On the other hand, the 1984 Act is not a comprehensive statutory code covering all aspects of the care and treatment of mentally disordered persons. Most of the legislation relating to the duties of public authorities can be found in other Acts, such as the Social Work (Scotland) Act 1968, and the National Health Service (Scotland) Act 1978.

3. The 1984 Act contains provisions regarding people subject to mental health disposals by order of the criminal courts. These interact closely with provisions of the Criminal Procedure (Scotland) Act 1995.

4. A number of provisions in the 1984 Act have been replaced by provisions in the Adults with Incapacity (Scotland) Act 2000.

History of the 1984 Act

5. The 1984 Act introduced no new law. It was a consolidating Act, re-enacting the 1960 Act with all subsequent amendments up to and including those in the Mental Health (Amendment) (Scotland) Act 1983.

The 1960 Act

6. The last comprehensive reform of mental health law was in 1960. Until then the relevant law was contained in the Lunacy (Scotland) Acts, 1857 to 1913 and the Mental Deficiency (Scotland) Acts 1913 and 1940.

7. The Percy Commission (1954-57), followed in Scotland by the Dunlop Committee, led to fairly sweeping reform in the Mental Health (Scotland) Act 1960. The 1960 Act was concerned primarily with detention, and was a liberalising measure. It sought to ensure that people with mental disorders were not automatically subject to legal controls, and to protect the rights of those who were detained against their will.

1983 Amendments

8. In 1983, the Act was amended substantially. The debate in the early 1980s focussed on tightening legal safeguards for patients, and defining more precisely the compulsory powers which could be exercised over them. Safeguards over treatment, not just detention, were extended. This was consistent with the general growth of concern for patients' rights.

9. The 1983 amendments

• sought to shift the role of guardianship from 'detention and restriction' to 'protection';
• introduced additional safeguards for treatment given to detained patients (Part X of the present Act);
• introduced the present s9 with its requirements for qualifications, experience and competence for mental health officers (MHOs) who, until these amendments, were simply whoever was appointed as such by local authorities;
• introduced enhanced roles in procedures, for example in the 28 day review of detention cases;
• forbade successive use of emergency and short-term detention procedures;
• introduced emergency detention by a nurse for a period of up to two hours;
• introduced the right of appeal to the sheriff against detention under a hospital order with restrictions.

10. Other amendments included provisions in relation to patients' correspondence and patients absent without leave, and the requirement under s110 to give information to detained patients and nearest relatives.

Major amendments to mental health law since 1984

The Mental Health (Detention) (Scotland) Act 1991

11. This was introduced following a court decision¹ that a person could not be detained under common law powers by medical staff if the detention was not specifically authorised by the Act. The particular problem concerned a patient whose condition unexpectedly deteriorated towards the end of a 28 day period of detention under s26 - too late for the procedures to detain under s18 (up to six months) to be completed. The 1991 Act allowed for extensions to 28 day detentions to allow court processes to be completed.

The Criminal Procedure (Scotland) Act 1995

12. This consolidated changes to criminal procedure since 1975.

13. Part VI of the Act reformed the procedure for people accused of crimes who are found to have been 'insane' at the time of the alleged offence or at trial. In the past, such people were automatically transferred to hospital, whether or not this was the most appropriate disposal, and without any formal hearing to establish that they had carried out the alleged criminal act. The 1995 Act introduced a new 'examination of facts' to test the evidence against an accused person found insane in bar of trial, and provided that a person found insane could be subject to a range of disposals, including a new community based order: the 'supervision and treatment order'.

The Mental Health (Patients in the Community Act) 1995

14. This Act, which covered both Scotland and England and Wales, was introduced after several high profile English cases of severely mentally ill people in the community harming themselves and others. It introduced the community care order in Scotland. This is available for patients who have been detained in hospital, and are to be discharged into the community. The order contains a range of conditions with which the patient is expected to comply, tailored to that patient's situation. The order has been criticised by psychiatrists as lacking any effective means of enforcement.

15. The Act also restricted the period under which a patient could be discharged from hospital under 'leave of absence' (which makes the patient liable to recall at any time) to 12 months. Prior to this, the duration of leave of absence was potentially unlimited.

The Crime and Punishment (Scotland) Act 1997

16. Following the report of the Reed working group into psychopathic disorder², a new criminal disposal was introduced: the hospital direction. The direction allows a court to impose a prison term for an offence, but in addition to direct that the person be sent in the first instance to hospital. If the person recovers, or is found to be not mentally disordered or to be untreatable, they can be transferred to prison to serve out the rest of their term. If the offender continues to be mentally disordered, beyond the expiry of the prison sentence, he or she can continue to be detained in hospital under civil procedure.

The Mental Health (Amendment)(Scotland) Act 1999

17. This Act authorised hospital managers to continue to hold, expend and dispose of the property of patients discharged from hospital to whom s94(1) of the Mental Health (Scotland) Act 1984 no longer applied.

The Mental Health (Public Safety and Appeals)(Scotland) Act 1999

18. This Act was introduced in Scotland to add public safety to the grounds for not discharging certain detained patients. The Act amends the 1984 Act by providing that a restricted patient can continue to be detained, whether or not he or she is receiving treatment, if detention is necessary to protect the public from serious harm. It also amends the definition of mental disorder to include personality disorder, and introduces a new appeal against a decision of a sheriff in relation to the discharge of a restricted patient.

The Adults with Incapacity (Scotland) Act 2000

19. This introduced a new legal framework in relation to financial, personal and medical decision-making for adults who are unable to act on their own behalf. It replaces the provisions concerning guardianship and management of patients' funds in the 1984 Act. The provisions are due to come into effect in the period from April 2001 to April 2002.

Provisions of the 1984 Act

Part I

20. Section 1 contains the key definitions setting out who is included in the Act, particularly the definition of 'mental disorder'.

Part II

21. Section 2 regulates the Mental Welfare Commission for Scotland. Sections 3-6 provide for the functions and duties of the Commission to exercise protective functions over people with a mental disorder who are unable to protect themselves. Their powers include the power to visit detained patients and persons subject to guardianship, to hear complaints and to carry out enquiries where there may be ill treatment, lack of care or improper detention.

Part III

22. Sections 7-11 impose duties on local authorities to provide after-care services and to appoint mental health officers (MHOs). Section 11 provides for the training and occupation of people with mental handicaps. This is in the context of broader duties to provide community care services under the Social Work (Scotland) Act 1968.

Part IV

23. Sections 12-16 impose controls on private hospitals for mental disorder and provide for their registration.

PartV

24. This is one of the major parts of the Act. Sections 17-35 deal with compulsory detention in hospital, setting out the conditions which must apply before a person can be compulsorily detained (s17) and providing for the means of application for admission (s18) and those eligible to make the application to the sheriff (s19). Section 20 details the requirement for examination by two doctors.

25. Emergency detention (up to 72hours) is dealt with in s24 and s25. Section 26 deals with subsequent periods of short-term detention (up to 28 days).

26. Section 27 provides for leave of absence from hospital for up to 12 months. Section 28 deals with the return and re-admission of patients who leave hospital without permission, fail to return after an authorised absence, or fail to live where they are required to under leave of absence.

27. Provisions for the transfer of detained patients to another hospital or into guardianship are dealt with in s29.

28. Sections 30-34 provide for the duration of the authority under the Act for the detention of patients in hospital and for discharge, and make provision for patients who are absent without leave, in custody, or sentenced to imprisonment.

29. Section 35 deals with appeals against detention.

30. Sections 35 (A) to (K) set out the provisions for community care orders.

31. Sections 36-52 deal with the general provisions on application for guardianship and will be superseded by the Adults with Incapacity (Scotland) Act 2000.

32. Sections 53-57 set out the procedures to establish who is the patient's nearest relative.

33. Section 58 allows for regulations to be prescribed and s59 defines the meaning of 'responsible medical officer', 'local authority', 'absent without leave' and 'court holidays' within Part V of the Act.

Part VI

34. Sections 60-76 are concerned with the transfer to hospital of persons with a mental disorder convicted of criminal offences or otherwise in contact with the criminal justice system.

Part VII

35. Sections 77-89 deal with the transfer of detained patients between Scotland and England, Wales, Northern Ireland, the Channel Islands and the Isle of Man.

PartVIII

36. Section 91 makes certain administrative arrangements regarding the State Hospital.

Part IX

37. Sections 92-95 impose duties on local authorities and the Mental Welfare Commission to take steps to ensure that people's property is protected while they are in hospital. Section 94 will be replaced by the Adults with Incapacity (Scotland) Act 2000 when the provisions of that Act come into effect.

Part X

38. The consent to treatment rules for detained patients are dealt with in ss96-103.

Part XI

39. Offences under the Act are addressed in ss104-109. Sections 106 and 107 are intended to protect people against inappropriate sexual relationships.

40. Sections 110-113 cover the rights of patients to receive information, to express their views at a court hearing and to have respect shown for their religious beliefs.

41. Sections 114-116 relate to patients in hospital, authorising the giving of an allowance for personal expenses to patients and setting out the circumstances in which a detained patient's correspondence can be intercepted.

42. A mental health officer (MHO) or Medical Commissioner of the Mental Welfare Commission is given the right to enter private premises under s.117, if a mentally disordered person is thought to be there and at risk. Section 118 gives the police the power to take to a place of safety a mentally disordered person found in a public place who appears to be at risk.

43. Section 119 imposes a duty on the Scottish Ministers to produce a Code of Practice for the guidance of doctors, hospital staff and mental health officers (MHOs), governing the detention and care of patients detained under the Act and to revise it as necessary.

44. Sections 120-121 deal with the transfer of patients to hospital or the place they should live under guardianship and gives powers to retake patients absent without leave.

45. Section 123 gives Scottish Ministers the power to hold an inquiry into any matter arising under the Act.

Comparison with mental health law in England and Wales

46. Scottish mental health legislation has, in recent years, tended to develop in parallel with English law, although there are significant differences between the 1984 Act and its counterpart in England and Wales, the Mental Health Act 1983.

47. Such differences include:

• the English Act has four categories of mental disorder: mental illness, mental impairment, severe mental impairment and psychopathic disorder, while the Scottish Act has only two: mental illness and mental handicap;
• it is possible to be detained for a period of assessment of up to 28 days in England, without having first been subject to emergency detention;
• all long-term detentions in Scotland (lasting up to six months before renewal and renewable thereafter) require the prior approval of the sheriff. In England and Wales the Tribunal need not consider a case until the end of the first six month period, if the patient has not appealed;
• in England and Wales, the appeal route is to specialised Mental Health Review Tribunals, while in Scotland it is the Sheriff Court;
• the Mental Health Act in England and Wales contains the main provisions concerning management of the property and assets of mentally disabled people. In Scotland this is now contained in the Adults with Incapacity (Scotland) Act 2000; and
• the Mental Welfare Commission for Scotland has a wider remit than the English Mental Health Act Commission, which is only concerned with detained patients.

48. Following a review by the Richardson Committee³, the Department of Health in England has issued a green paper discussing reforms to the 1983 Act⁴. In some respects, the proposals, if implemented, would make English law more similar to Scottish law, for example by introducing quasi-judicial oversight at the commencement of long term detention. The English review, although less comprehensive than ours, covers a number of issues which we also address, particularly the question of compulsory treatment in the community.

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