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

Recommendations

List of Recommendations

Chapter 1

1.1 The Mental Health (Scotland) Act 1984 should be repealed and replaced with a new Act of the Scottish Parliament

Chapter 2

2.1 The new Mental Health Act should, so far as possible, be consistent with the Adults with Incapacity (Scotland) Act 2000. In due course, mental health and incapacity legislation should be consolidated into a single Act.

Chapter 3

3.1 The Mental Health Act should contain a Statement of Principles.

3.2 Interventions under the Act, and the Code of Practice, should have regard to the stated Principles.

3.3 The Principles should be as follows:

1. Non discrimination

People with mental disorder should whenever possible retain the same rights and entitlements as those with other health needs.

2. Equality

All powers under the Act should be exercised without any direct or indirect discrimination on the grounds of physical disability, age, gender, sexual orientation, race, colour, language, religion or national or ethnic or social origin.

3. Respect for diversity

Service users should receive care, treatment and support in a manner that accords respect for their individual qualities, abilities and diverse backgrounds and properly takes into account their age, gender, sexual orientation, ethnic group and social, cultural and religious background.

4. Reciprocity

Where society imposes an obligation on an individual to comply with a programme of treatment and care, it should impose a parallel obligation on the health and social care authorities to provide appropriate services, including ongoing care following discharge from compulsion.

5. Informal care

Wherever possible care, treatment and support should be provided to people with mental disorder without recourse to compulsion.

6. Participation

Service users should be fully involved, to the extent permitted by their individual capacity, in all aspects of their assessment, care, treatment and support. Account should be taken of their past and present wishes, so far as they can be ascertained. Service users should be provided with all the information necessary to enable them to participate fully. All such information should be provided in a way which renders it most likely to be understood.

7. Respect for carers

Those who provide care to service users on an informal basis should receive respect for their role and experience, receive appropriate information and advice, and have their views and needs taken into account.

8. Least restrictive alternative

Service users should be provided with any necessary care, treatment and support both in the least invasive manner and in the least restrictive manner and environment compatible with the delivery of safe and effective care, taking account where appropriate of the safety of others.

9. Benefit

Any intervention under the Act should be likely to produce for the service user a benefit which cannot reasonably be achieved other than by the intervention.

10. Child welfare

The welfare of a child with mental disorder should be paramount in any interventions imposed on the child under the Act.

Chapter 4

4.1 The provisions of the new Mental Health Act should apply where there is the presence of mental disorder.

4.2 There should be three categories of mental disorder: mental illness, learning disability and personality disorder.

4.3 These terms should not be defined further in the legislation, but guidance should be given as to their application in the Code of Practice.

4.4 It should only be possible for a person to be subject to compulsory measures of care under the Mental Health Act where the person has a mental disorder.

4.5 Mental illness should be taken to include psychotic conditions, and non-psychotic mental illnesses such as anorexia nervosa, obsessive compulsive disorders, and disorders of mood. It should also include dementia and acquired brain injury with associated mental symptoms.

4.6 There should be an expert review at an early date of the position of learning disability within mental health law. This review should consider

• the implications of the Scottish Executive's review of learning disability services for legislation affecting people with learning disability, including mental health law
• experiences from jurisdictions with different arrangements in respect of learning disability and compulsory care
• whether it is feasible and desirable to make separate provision for the compulsory care of people with learning disabilities, outwith the Mental Health Act
• the experiences of people with learning disabilities who have been detained under the 1984 Act, including their treatment and outcomes
• what measures might be taken to ensure that arrangements for people with learning disabilities who offend meet the needs of the offenders and society.

4.7 Pending any change arising from such a review, there should continue to be provision for learning disability within the Mental Health Act.

4.8 The definition of mental disorder for the purposes of compulsory measures of care, should include learning disability.

4.9 Learning disability should include autistic spectrum disorders.

4.10 The categories of 'mental impairment' and 'severe mental impairment' should be abolished.

4.11 Personality disorder should be specified as a category of mental disorder in the Mental Health Act, separate from mental illness and learning disability.

4.12 The definition of mental disorder for the purposes of compulsory measures of care,

should include personality disorder.

4.13 The definition of mental disorder should specifically prevent people being included within the definition by reason only of sexual orientation or behaviour, alcohol or substance misuse, anti-social behaviour, or 'acting as no prudent person would act'.

4.14 Where on renewal of long term compulsion the diagnosis of a patient changes from one of the categories of mental illness, learning disability and personality disorder to another, or there is a change in one aspect of a dual diagnosis, there should be an automatic review of the case by a mental health tribunal.

4.15 In the case of a restricted patient, there should be a review by the Restricted Patients' Review Board where a report by the responsible medical officer contains such a change in diagnosis.

4.16 The recommended definition of mental disorder should be incorporated into the Adults with Incapacity (Scotland) Act 2000, the Social Work (Scotland) Act 1968, and the Criminal Procedure (Scotland) Act 1995.

4.17 Other legislation which currently makes reference to the definition of mental disorder in the 1984 Act should be reviewed, and new definitions which are appropriate to the intended purpose substituted.

Chapter 5

5.1 The current criteria in respect of compulsory measures of 'appropriateness' and 'necessity'should be replaced.

5.2 It should only be possible to impose compulsory measures when it has been established that the necessary care and treatment cannot be provided by agreement with the patient.

5.3 It should only be possible for a person to be subject to long term compulsion where it can be shown that, as a consequence of the person's mental disorder, the person's judgement is impaired to a nature or degree which would justify compulsory measures.

5.4 In relation to emergency or short term measures, it would only be necessary to show a reasonable likelihood that the person's judgement is impaired.

5.5 The care and treatment proposed under compulsory measures should be the least restrictive and invasive alternative available, compatible with the delivery of safe and effective care.

5.6 It should only be possible for a person to be subject to long term compulsory measures where the treatment proposed to be administered under the plan of care for the patient is likely to provide a benefit for the patient, by alleviating or preventing deterioration in the patient's mental disorder, or associated symptoms of that disorder.

5.7 In relation to emergency and short term measures, it should be shown either, that compulsion is necessary to receive treatment for the above purpose, or that compulsion is necessary to assess the possible need for such treatment.

5.8 'Treatment' should be defined broadly, to include medical, nursing, psychotherapeutic and other interventions.

5.9 It should be a requirement of compulsory measures that there should be either:

• a significant risk of harm to the health or safety or welfare of the person for whom compulsion is sought, or
• a significant risk of harm to other persons.

5.10 The specific provision for a treatability test relating to those whose mental disorder is classified as mental impairment or a persistent disorder "manifested only by abnormally aggressive or seriously irresponsible conduct" should be repealed.

Chapter 6

6.1 The exclusive linking together of admission to hospital and compulsory treatment should be changed, to allow some patients subject to compulsory care and treatment to remain in the community.

6.2 The authorisation of compulsory measures should require consideration of the treatment proposed.

6.3 The basis of long term compulsory interventions should be a plan of care, which should be submitted to and approved by the tribunal.

6.4 The plan of care should specify:

• the interventions which require authority to be administered on a compulsory basis, and
• the proposed plan of medical treatment, care and support from health, social work and other agencies.

6.5 A community order should be introduced, and should be available where:-

• a patient meets the criteria for compulsory measures; and
• such an order would be more appropriate than a hospital based order, having regard to the principle of least restrictive intervention.

6.6 It should not be possible to administer treatment forcibly anywhere other than a clinic or hospital.

6.7 The Code of Practice should identify treatments which should normally only be administered in hospital.

6.8 The Code of Practice should identify general standards of care which should be observed for persons subject to compulsory treatment in the community.

6.9 Regulations should specify the range of compulsory measures which could be imposed in a community order.

6.10 Before authorising compulsory interventions, the tribunal should require to be satisfied that the plan of care contained provision for an adequate and appropriate level of services, consistent with the compulsory measures sought.

6.11 If not so satisfied, the tribunal should be entitled either:

• to refuse to make an order, or
• to make a temporary order lasting no more than 28 days authorising such interventions as it sees fit, pending submission of a revised plan of care.

6.12 The Mental Welfare Commission should be entitled to remit the case of a patient under compulsion to the tribunal on the basis that there is evidence that essential elements of the plan of care are not being delivered.

6.13 It should be possible for a mental health tribunal to transfer a person subject to a hospital based order to a community order, and vice-versa.

Where such a transfer between different types of order takes place, time limits for renewals of, and appeals against, the new order should be those which were applicable to the original order.

6.14 Where a patient subject to a community order fails to comply with a compulsory aspect of the plan of care, and there is a significant risk of deterioration in the patient's health, the responsible medical officer should notify the patient that the consequence of further breaches may be admission to a clinic or hospital for treatment.

6.15 Should the patient still fail to comply, the responsible medical officer should be able to require the person to be compulsorily admitted to a hospital or clinic for treatment.

6.16 This admission should be for a maximum period of two months after which it would be necessary to refer to the tribunal. The tribunal would be entitled to transfer the order to a hospital based order.

6.17 It should be possible for patients subject to a community order to be admitted to hospital on an urgent basis, where there is an immediate risk of harm to the patient or others. The admission should be authorised by the responsible medical officer, with the consent of the mental health officer.

6.18 An emergency admission should be authority to detain the patient for up to 28 days.

6.19 The Act should provide that any person in breach of a community order by reason of removing from his or her place of residence may be returned to the area where he or she was receiving services, whether he or she is in Scotland or elsewhere in the UK.

6.20 It should continue to be possible to grant leave of absence for a patient subject to a hospital based order.

6.21 A continuous period of leave of absence should last no longer than six months.

6.22 Before granting a period of leave of absence lasting more than 28 days, the responsible medical officer should be required to inform the patient's GP and mental health officer.

6.23 The total periods of leave of absence in any 12 month period should not exceed nine months.

6.24 Community care orders should be abolished.

Chapter 7

7.1 Relatives/nearest relatives should no longer have the right to consent to emergency or short term detention under the Mental Health Act.

7.2 The right of nearest relatives to make an application for long term detention should be abolished.

7.3 Greater training in mental health issues should be a routine expectation for GPs in training, and the continuing professional development of GPs should include elements relating to mental health, including the use of the Mental Health Act.

7.4 Any doctor should be able to undertake an emergency detention, as at present.

7.5 The second medical recommendation for long term compulsory orders should continue to be provided by the patient's GP, where possible.

7.6 The first recommendation for long term compulsion, and the recommendation for short term detention, should be by a doctor approved by a health board as having special experience in the treatment of mental disorder.

7.7 Regulations should specify the criteria to be applied by health boards in approving such doctors.

7.8 NHS trusts should ensure that a patient subject to compulsion has an available responsible medical officer at all times to fulfil the relevant statutory responsibilities, including giving evidence to a mental health tribunal.

7.9 The Act should require that no second medical recommendation, for long term compulsory measures, should be made by a person working directly to the person giving the first medical recommendation.

7.10 The Code of Practice should provide guidance on means to ensure that the second medical recommendation for long term compulsion should be given by a doctor independent from the doctor giving the first recommendation, as far as possible.

7.11 Mental health officers should continue to be appointed by the local authority. Regulations should provide that mental health officers should be specially trained social workers.

7.12 Local authorities and health boards should give consideration to ways in which the availability of mental health officers to respond to emergency detentions may be better ensured.

7.13 A mental health officer should continue to be required to give consent to an emergency detention 'where practicable', with reasons being given where consent has not been obtained.

7.14 Consent by a mental health officer should be required for a short term detention in all circumstances.

7.15 A mental health officer should be entitled to apply for long term compulsory measures on his or her own initiative, and required to do so when requested by a doctor who has made a recommendation for such measures.

7.16 A mental health officer should be required to prepare a report when a decision on renewal of long term detention is being made by the responsible medical officer. Should the report not support renewal, the question should be referred to the tribunal.

7.17 The Code of Practice should provide that GPs should wherever possible discuss any proposed detention of a mentally disordered person with a community psychiatric nurse.

7.18 NHS Trusts should have a responsibility to ensure that all nurses who have to deal with patients subject to compulsion have a basic understanding of the Mental Health Act.

7.19 The Code of Practice should contain guidance on the responsibilities of nurses under the Mental Health Act.

7.20 The requirements as to the grades of nurses who may exercise the nurse's holding power should be reviewed.

Chapter 8

8.1 The nurse's holding power should be retained, to allow the arrival of a doctor and to allow time for the doctor to assess the patient's condition and decide whether emergency or short term detention procedures should be undertaken.

8.2 In the event that no doctor has arrived within the period of two hours, the holding power should cease at the end of the two hours.

8.3 In the event that a doctor is already present or that a doctor arrives within the period of two hours, the holding power should continue for a period of one hour from the time of the arrival of the doctor, or until the end of the period of two hours, whichever is longer, to allow the doctor to assess the patient and decide whether detention procedures should be undertaken, and to contact a mental health officer where appropriate.

8.4 During the period of the holding power all practicable steps should be taken to contact and obtain the approval of a mental health officer in any decision relating to detention.

8.5 Emergency detention should continue to be for a maximum of 72 hours in duration, and not immediately renewable.

8.6 Emergency detention from the community and from hospital should continue to be separately recorded.

8.7 As at present, there should be no appeal against the imposition of an emergency detention.

8.8 Short term detention should continue to be for a maximum of 28 days in duration, and not be immediately renewable.

8.9 There should be provision for the continuation of short term detention for a brief period, to allow the determination of an application for long term compulsory measures. This should be similar to the provisions in s26A and s21(3A) to (3C) of the 1984 Act. The power to continue to detain where an application for long term compulsory measures has been adjourned should be limited to 28 days. The court should have discretion to extend this period at the request of the patient or patient's representative.

8.10 An appeal to a mental health tribunal by the patient and the named person (as provided for in Chapter 16) should be available against a short term (28 day) detention.

8.11 Any appeal against a short term detention should be initiated within 14 days of the commencement of detention, and the tribunal should be required to consider the appeal within seven working days of the appeal having been made.

8.12 Long term compulsion should be for six months in the first instance, renewable for a further six months and then annually.

8.13 Long term compulsion should require the prior authorisation of a mental health tribunal.

8.14 The patient and the named person should have a right to appeal to a mental health tribunal against renewal of long term compulsion.

8.15 An application to a mental health tribunal for a variation of the order should be available to the patient and the named person after the first three months of a long term compulsory order.

8.16 A mental health tribunal should automatically undertake a review of compulsory measures every three years, if the patient or named person has not appealed during that time.

8.17 The patient, named person, legal representative and other interested parties should be given the opportunity to contribute to the review.

8.18 When a plan of care is before a tribunal, the named person as well as the patient should have the right to challenge or ask for clarification on one or more elements of the patient's plan of care.

8.19 The Act should provide that the condition of a patient should be kept under constant review by the responsible medical officer, and, if the patient no longer meets the criteria for compulsion, he or she should be discharged.

8.20 The mental health officer should be consulted by the responsible medical officer prior to the discharge of a patient from compulsion, where it is anticipated that aftercare services may be required.

8.21 The requirement for a review of detention by the responsible medical officer after four weeks of long term detention should be abolished.

8.22 Hospital managers should no longer have the right to make an order for discharge.

8.23 The right of the nearest relative to discharge a patient subject to long term compulsion should be removed.

8.24 It should be possible to move directly from the community on to short term detention, with the approval of both a medical practitioner approved as having special experience in mental disorder, and a mental health officer. This procedure should be used in preference to an emergency detention wherever practicable.

8.25 The Act should require that written reasons for the use of an emergency detention, explaining why alternatives were not available or suitable, should always be given to the Mental Welfare Commission by the detaining doctor.

8.26 The Mental Welfare Commission should monitor the level of use of emergency detentions. Once the new Act has been in force for a period of time, the Mental Welfare Commission should consider commissioning research into the written reasons given for the use of an emergency detention.

8.27 It should be possible to transfer a patient subject to emergency detention onto a short-term detention as soon as the procedural requirements for the short-term detention have been completed.

8.28 The Act should provide that the responsible medical officer should assess the patient as early as possible in an emergency detention, with a view to removing the patient from emergency status.

8.29 It should be possible to treat a patient subject to short term detention for his or her mental disorder without consent, subject to the safeguards in relation to special treatments set out in Chapter 10.

8.30 It should only be possible to treat a patient subject to emergency detention for his or her mental disorder on a similar basis to the provision for emergency treatment in s102 of the 1984 Act, namely where such treatment is either -

• immediately necessary to save the patient's life, or
• not being irreversible or hazardous, is immediately necessary to prevent a serious deterioration of his or her condition or to alleviate serious suffering by the patient, or
• not being irreversible or hazardous, is immediately necessary and represents the minimum interference necessary to prevent the patient from behaving violently or presenting a serious danger to him or herself, or others.

8.31 Where a patient is given treatment without consent during an emergency detention, the prescribing doctor should notify the Mental Welfare Commission of the fact, and the reasons why treatment was felt to be necessary.

8.32 It should continue to be possible for a patient, who has been detained on an emergency basis, to move directly onto a long term detention.

8.33 Mental health service managers should be under a duty (so far as practicable) to ensure that patients subject to any form of compulsion are aware of the nature and effect of the compulsion, and their rights in relation to this. The fact that this has been done should be recorded.

8.34 During mental health hearings, evidence should be led to the tribunal as to the steps that have been taken to inform the patient of his or her rights.

8.35 The Code of Practice should give guidance on the most effective implementation of these duties, including the need for:

• clear and comprehensible information;
• information being given as often as necessary;
• steps to be taken to seek to ensure that service users feel able to exercise their rights, including rights to legal representation and
• the involvement of an advocate if the service user so wishes.

Chapter 9

9.1 There should be a requirement that all members of the forum for mental health hearings receive ongoing training in mental health issues.

9.2 There should be statutory rules of procedure, drawn up after consultation with service user, carer and professional interests.

9.3 The rules of procedure and practical arrangements should encourage the attendance of patients.

9.4 There should be a procedure for straightforward access to free legal representation by solicitors accredited in mental health law.

9.5 A curator ad litem should be appointed in every case where the forum is satisfied that the patient is unable to instruct legal representation. The responsible medical officer should have a duty to advise the forum as to the ability of the patient to instruct representation.

9.6 Hearings should be in private, unless the patient or patient's representative requests otherwise, but doctors and other professional staff may be present as appropriate for training purposes.

9.7 Hearings should be in hospital, unless the patient or patient's representative requests otherwise. Health boards should have a statutory duty to provide suitable facilities for the holding of hearings.

9.8 The forum should have the right to compel the attendance of parties concerned with the care and treatment of the patient.

9.9 There should be a right of appeal to the Court of Session on a point of law. For restricted patients, the right of appeal should remain, as now, available on issues of both fact and law.

9.10 The forum for mental health hearings should be a new mental health tribunal.

9.11 There should be a national structure for mental health tribunals, with a senior member of the judiciary at its head.

9.12 Mental health tribunals should be funded by the Scottish Executive Department of Justice.

9.13 Tribunal members should be appointed by the Minister for Justice.

9.14 Each tribunal should have three members: a legal chair, a medical member, and a member with professional and/or personal experience of mental health services.

9.15 The medical member should examine the patient prior to the hearing. Any findings should be given to the hearing, and the medical member should be able to be questioned by the parties or their representatives.

Chapter 10

10.1 The Act should specify that the factors to be taken into account when considering whether a treatment for mental disorder should attract special safeguards should include the extent to which the treatment:

• may be hazardous
• may be irreversible
• is novel
• may involve significant physical distress
• may carry a high risk of serious side effects
• is perceived as controversial by society, or significant sections of society.

10.2 The Act should continue to distinguish broadly between

• certain treatments which should require both the patient's consent and approval from an independent doctor and others representing a non medical opinion (the present s97); and
• treatments which should require either the patient's consent or a second medical opinion, (the present s98).

10.3 The current procedures in s97 for neurosurgery for mental disorder should apply by specific provision in the Mental Health Act to all patients, whether or not subject to compulsion.

10.4 It should only be possible to carry out neurosurgery for mental disorder on a patient who is not capable of consenting to the treatment if:

(a) the patient does not oppose the treatment being carried out, and

(b) the treatment has been approved by the Court of Session.

10.5 The Scottish Executive should implement the outstanding recommendations of the Central Research Audit Group (CRAG) Working Group on neurosurgery for mental disorder. These recommendations should be incorporated in the Code of Practice.

10.6 The provision in current regulations governing approval surgical implantation of hormones to reduce male sexual drive should be removed, on the basis that the procedure is obsolete.

10.7 The administration of oral medication to reduce sexual drive should be specified as a special treatment by specific provision in the Mental Health Act requiring either consent or a second opinion as in the present s98, and in the case where a second opinion is required, treatment should begin only after that has been obtained.

10.8 ECT should be specified as a special treatment by specific provision in the Mental Health Act. This should normally be authorised by consent or a second opinion, as under the present s98, but it should not be lawful to administer ECT to a patient who is refusing the treatment, and who is competent to make such a decision.

10.9 The administration of medication for mental disorder after the expiry of two months from the date of the imposition of compulsory measures should be specified as a special treatment in the Mental Health Act, requiring consent or a second opinion as in the present s98.

10.10 Forcible feeding should be specified as a special treatment in the Mental Health Act, requiring a second opinion, consent not having been obtained.

10.11 The administration of dosages of medication for mental disorder should be specified in regulations as a special treatment requiring consent or a second opinion where they

• are above the maximum levels specified in the British National Formulary, or
• involve the administration of more than one neuroleptic drug in dosages which, when expressed as percentages of the maximum recommended dose, add up together to more than 100%, or
• are used for a purpose other than the normal recommended purpose;

10.12 Consideration should be given as to whether regulations should specify particular types of behavioural or psychotherapeutic intervention as special treatments requiring consent or a second opinion.

10.13 The Mental Welfare Commission should have a statutory responsibility to consider from time to time whether there are treatments which should be added to the list of special treatments under the Act, and to advise Scottish Ministers accordingly.

10.14 The second opinion doctor should be required to consider whether the proposed treatment is appropriate, bearing in mind the principles of the Act, and any possible alternative treatment approaches.

10.15 The Code of Practice should set out the responsibilities of the second opinion doctor, and all approved second opinion doctors should receive training in these.

10.16 A second opinion should be renewed at least every two years.

10.17 Before approving long term compulsion based on a plan of care involving the use of special treatments, a mental health tribunal should be entitled to be satisfied that the statutory safeguards for such treatments have been or will be followed, but should not impose additional special requirements in relation to such treatments.

10.18 Provisions similar to those of s102 should continue to apply to urgent treatments administered to patients subject to compulsion.

10.19 The Code of Practice should highlight the importance of the requirement to notify the Mental Welfare Commission of urgent treatments administered to patients subject to compulsion.

10.20 The same safeguards in relation to special treatments should apply to children who are incapable of consenting to treatment on their own behalf as would apply to children subject to compulsion under the Mental Health Act.

10.21 The second opinion for any treatment which is a special treatment in terms of the Act which is to be administered to a person aged 18 or under, should be given by a specialist in child and adolescent psychiatry. Where the responsible medical officer in relation to any such treatment is not a specialist in child and adolescent psychiatry, a further opinion by such a specialist should be obtained.

10.22 The Code of Practice should emphasise that neurosurgery for mental disorder should not normally be considered for patients aged under 20.

Chapter 11

11.1 There should continue to be provisions to allow patients subject to compulsion to be transferred between hospitals, by agreement between the managers of the respective hospitals.

11.2 There should be a requirement to notify a patient subject to long term compulsion and the named person of an impending transfer. Wherever practicable, the notice should be at least seven days in advance.

11.3 Unless the patient objects, the primary carer (if not also the named person) should also be entitled to notice. The Code of Practice should set out circumstances where the primary carer should be given notice, notwithstanding objections by the patient.

11.4 Details of the transfer should be provided to the Mental Welfare Commission within seven days of it taking place. This should include confirmation that at least seven days prior notice had been given to the patient, the named person and, where appropriate, the primary carer; or a note of the reasons why such notice was not practicable.

11.5 Where a patient is subject to long term compulsion, the patient and the named person should have the right to appeal to a mental health tribunal against a transfer. The appeal should be initiated within 28 days. This right should not apply in cases where the transfer has already been considered and approved by a mental health tribunal as part of its consideration of the patient's plan of care.

11.6 The Code of Practice should contain guidance on responding to requests by patients for transfer.

11.7 The Scottish Health Advisory Service should consider monitoring the extent to which patients subject to emergency and short term detention are transferred for non clinical reasons.

11.8 Withholding of the correspondence of patients should continue to be dealt with on a similar basis to that outlined in s115 of the 1984 Act, with the safeguards currently in s116.

11.9 The restrictions on the powers of the State Hospital to withhold correspondence should be extended to correspondence with recognised advocacy groups, MSPs and MEPs.

11.10 Similar provisions should apply to the transmission of written communications by other means, including electronic mail and faxes.

11.11 Legislation should regulate the extent to which detained patients should have a right of access to mobile telephones, the internet, and other forms of electronic communication. It should only be possible to restrict access where it can be demonstrated that this is in the interests of the health or safety of the patient or for the protection of other persons from harm or distress. The patient should have the right to have any such restriction of access reviewed by the Mental Welfare Commission, who should be entitled to require that access be given.

11.12 The State Hospital should have the right to restrict access to mobile telephones, the internet and other forms of electronic communication, in accordance with directions by Ministers. A patient should have a right to appeal to the Mental Welfare Commission.

11.13 All detained patients should have a legal right to obtain access to a telephone.

11.14 Directions by Ministers to the State Hospital, under s4(6) of the Regulation of Investigatory Powers Act 2000, should

• take account of the recommendations of the Inquiry into Ashworth Special Hospital
• provide that decisions regarding the monitoring of telephone calls or control of access to telephone calls should take account of individual circumstances
• provide for review by the Mental Welfare Commission of decisions to monitor telephone calls or restrict access to a telephone.

11.15 Hospitals other than the State Hospital should only be entitled to restrict use of a telephone, or monitor calls, of a detained patient where

• this is necessary to protect other persons from harm or distress, or
• the recipient of the calls has requested that such calls should be restricted, or
• making the calls would be in breach of a court order, or
• this is necessary to prevent nuisance calls, or
• to do so is necessary in the interests of the health, safety or welfare of the patient

Any such restriction or monitoring in respect of an individual patient should be reported to the Mental Welfare Commission who should have the power to require that the decision be changed.

11.16 It should not be lawful to restrict or monitor telephone calls to or from the parties to whom correspondence from a detained patient cannot be withheld, except where the recipient has requested that any such calls be monitored or prevented, or such calls are unlawful under any other provision.

11.17 The Act should contain provisions regarding patients absent without leave similar to those contained in sections 28, 31, 31A, 31B, 120 and 121 of the 1984 Act.

11.18 For patients detained under civil procedure, the period of absence during which the patient may be taken into custody and returned to hospital should be reduced to three months.

11.19 There should continue to be an offence of assisting or inducing a detained patient to be absent without leave, similar to s108 of the 1984 Act.

11.20 The Code of Practice should contain general guidance on searching of patients and visitors.

11.21 All services which accommodate detained patients, and who on any occasion search patients or visitors should be required to have a policy on searches.

11.22 The Mental Welfare Commission should monitor individual searching policies, and their implementation.

11.23 The Code of Practice on Personal Health Information should be revised as a matter of urgency, and should give general guidance on disclosure for risk assessment purposes.

11.24 The Mental Health Act Code of Practice should contain more detailed guidance on disclosure of information with regard to patients subject to compulsion.

11.25 Local protocols on patient confidentiality should take account of issues of risk assessment and intelligence gathering.

Chapter 12

12.1 The Codes of Practice for the new Act and for the Adults with Incapacity (Scotland) Act 2000 should provide guidance on the circumstances when it is appropriate to admit, detain or treat a patient compulsorily under mental health legislation, rather than under the Adults with Incapacity Act.

12.2 The Mental Welfare Commission should issue guidance on best practice in relation to the use of compulsory measures of care and treatment when patients are reluctant to accept treatment on a voluntary basis.

12.3 The Code of Practice should contain general guidance on restraint, including an expectation that care providers will develop policies on restraint, which will be monitored by the Mental Welfare Commission.

12.4 The provisions to be made for 'exceptional treatments' under s48 of the Adults with Incapacity (Scotland) Act 2000 should be the same as those which we recommend for special treatments under the Mental Health Act, except in the case of patients in the community, for the provisions relating to drug treatment for mental disorder which lasts for over two months.

12.5 Where a patient in the community receives drug treatment for over two months on the basis of an authority to treat conferred by s48 of the Adults with Incapacity (Scotland) Act 2000, the nearest relative, or primary carer, or any other person with an interest in the welfare of the patient should be able to require that a second opinion be obtained by a medical practitioner appointed for the purpose by the Mental Welfare Commission.

Chapter 13

13.1 There should be a duty on health and social work services to participate in an assessment of needs for patients subject to compulsion under the terms of the Mental Health Act.

13.2 In these circumstances, this assessment should form the basis of a plan of care.

13.3 The right to assessment for people subject to compulsion should be framed in a manner to make it compatible with the relevant provisions of the Social Work (Scotland) Act 1968.

13.4 The Code of Practice should give guidance on how the responsiveness of primary care service providers may be improved with respect to requests for assessment by service users and carers during the user's first period of suspected mental illness.

13.5 Service users and carers should have a right to request an assessment of needs for a user who has previously had contact with mental health services. Mental health services would not be bound to undertake such an assessment, but would be required to give reasons for a refusal to do so.

13.6 There should be a duty on health boards and local authorities to provide appropriate services to those subject to compulsion under the provisions of the Mental Health Act, as assessed and detailed in their plan of care.

13.7 There should continue to be a duty on local authorities to provide or arrange care and support services to persons who are, or have been, suffering from a mental disorder.

13.8 There should be a duty on local authorities to ensure provision of or arrange day activities for people with mental disorders.

13.9 These 'day activities' should include support for employment, training and education, and social activities. This duty should include a duty to arrange transport, where appropriate, including where patients are in hospital.

13.10 There should be a provision in the Act which requires agencies to co-operate in the provision of care to people with mental disorders. The Code of Practice should give guidance to service providers on the most appropriate means by which this may be achieved.

Chapter 14

14.1 The Mental Health Act should give a right to all mental health service users to obtain access to an advocate.

14.2 There should be an obligation on service providers to inform service users about the availability of advocacy services, and to take steps to ensure that the user has an advocate if the user so wishes.

14.3 There should be a joint duty on health boards and local authorities to ensure that advocacy services are available.

14.4 The duty to ensure that advocacy is of a reasonable standard should fall on the commissioning services.

14.5 The Scottish Executive should give consideration of what steps it should take to promote advocacy for carers.

14.6 There should be a statutory obligation on service providers to provide support services to collective advocacy groups as required.

14.7 There should be a statutory obligation on service providers to recognise collective advocacy groups, whether in hospital or elsewhere, as a legitimate voice of service users and involve them in decisions on service development and policy.

Chapter 15

15.1 Service users should be entitled to make advance statements, setting out their wishes in relation to future care and treatment, but these should not be legally binding when the relevant treatment is authorised by the Mental Health Act.

15.2 In considering the validity of an advance statement, account should be taken of whether

• the person was able to understand the implications of the statement at the time the statement was entered into;
• the statement covers the treatment which is being considered and
• there has been any material change of circumstances since it was entered into.

The Code of Practice should contain guidance on advance statements, including guidance as to

• the preferred format of such statements
• how such statements should be drawn up and recorded
• the requirements for execution of an advance statement
• the requirements for establishing the validity of an advance statement
• the circumstances in which it would be appropriate not to implement an advance statement.

15.4 Advance statements should not be legally enforceable by patients subject to compulsory measures under mental health law, but the tribunal considering such measures, and any person authorised to act under such measures, should be required to take a valid advance statement into account.

15.5 Where the responsible medical officer authorises any treatment for mental disorder on a patient subject to compulsion which appears to contradict the terms of a valid advance statement, the responsible medical officer should record the reasons for doing so in writing.

15.6 Professionals should not be legally liable for any actions or omissions which are inconsistent with an advance statement, or for failure to make adequate enquiry into the validity of an advance statement whose terms they have followed, provided they have acted in good faith and with reasonable care.

Chapter 16

16.1 There should be a 'named person', who should exercise powers comparable to those of the nearest relative under the 1984 Act (other than the power to consent to detention or to order discharge).

16.2 A service user should have the right, when able to do so, to nominate a person to take on the functions of the 'named person'.

16.3 A nomination by a service user of a person to take on the functions of a 'named person' should be in writing, and should be witnessed by a person from a prescribed class, who should certify that the nominating person appeared to understand the nature and effect of the document, and appeared not to be acting under any form of undue influence.

16.4 Where no nomination has been made by the service user, or the nominated person declines to act, the named person should be the primary carer, as determined by the mental health officer.

16.5 Where there is no primary carer, or the primary carer declines to act, the named person should be the nearest relative.

16.6 The definitions of primary carer and nearest relative should be in similar terms to those contained in the Adults with Incapacity (Scotland) Act 2000.

16.7 Any person who can demonstrate an interest should be entitled to request that the tribunal remove the appointment of a named person, and, if appropriate, appoint a new named person.

The tribunal would be entitled to appoint any individual whom it deemed suitable to the role of named person.

16.8 The named person should be entitled to be notified of

• the service user's legal status under the Mental Health Act, and any compulsion to which he or she is subject
• any application for compulsory measures
• any hearing by the tribunal in relation to the service user
• any decision to discharge the service user from compulsory measures.

16.9 The Code of Practice should contain guidance on

• the nature of information that should be provided to the primary carer of a person subject to compulsory measures, whether or not the primary carer is the named person, and
• when it is appropriate to provide information to the primary carer without the consent of the service user.

16.10 The Act should provide that the named person should, when practicable, be consulted where compulsion is being considered.

16.11 The Scottish Executive should formulate a central information strategy for carers of mentally disordered persons, including giving consideration to a single contact point for carers seeking information.

16.12 Carers should continue to have the right to an assessment of their needs by social work services. Local authorities should consider how carers might be better informed of their right to such an assessment.

16.13 In considering compulsory measures of care, the tribunal should be required to consider the extent to which any informal carer is willing and able to undertake any caring responsibilities which may be implied by any order they make.

16.14 Young carers should be given the right to an assessment of needs, whether or not a new type of carers' assessment is introduced by the Scottish Executive.

16.15 The Scottish Executive should consider strengthening the legal position of carers seeking respite.

Chapter 17

17.1 The Scottish Executive should develop guidance on positive action and non-discriminatory practice in relation to the housing needs of people with mental disorders. This guidance should be developed in collaboration with mental health organisations, and its implementation overseen by the proposed Housing Regulator.

17.2 There should be a review of the extent to which the rules regarding Social Security benefits may adversely affect people with mental disorders, particularly those who are subject to detention. The Scottish Executive should seek to ensure that such a review is undertaken by the Department of Social Security, and that it takes due account of the implications of mental health law in Scotland.

17.3 The Scottish Executive should consider the introduction of an offence of harassment which would protect people with disabilities, including mental disorders.

17.4 The Scottish Executive should promote a major campaign of public education to improve public understanding of mental disorder, and attitudes towards people with mental disorders.

17.5 All establishments under the Mental Health Act which accommodate patients subject to compulsion should have a written policy on visits to the establishment, and the Code of Practice should provide guidance on such policies.

Chapter 18

18.1 Local authorities and health boards should be required to secure access to services for interpretation and assisted communication for mental health service users and carers who have particular communication needs as a result of physical or sensory disability.

18.2 Where a person, who has particular communication needs as a result of disability, is subject to compulsory measures, the mental health officer (in emergency detentions, the detaining doctor) should be required to take all reasonable steps to ensure that the person has been made aware of the implications of the compulsory measures, and the person's rights in relation to those measures. In any appeal, or application for long term compulsory measures, the mental health officer should be required to demonstrate to the tribunal that this has been done.

18.3 Children subject to compulsory measures of care under the Mental Health Act should have a legal right of access to an independent advocate.

18.4 The Code of Practice should contain guidance on

• the circumstances in which treatment without the consent of the child should be provided under mental health law, rather than on the basis of consent by an adult with parental responsibilities,
• how the principles underlying the Children (Scotland) Act 1995, and the UN Convention on the Rights of the Child, should be applied to mental health interventions, and
• how mental health and child protection systems should interact.

18.5 Health boards should be placed under a statutory obligation to provide or secure age-appropriate mental health services including secure services, for children and young people in their area.

18.6 The provisions of s131 of the Education (Scotland) Act 1980, insofar as they remove the duties of education authorities towards children and young people subject to compulsion under mental health law, should be repealed.

18.7 Any young person who is subject to compulsory measures of care under the Mental Health Act should have a named social worker.

18.8 Single sex accommodation should be available to men and women with a mental disorder.

18.9 Local authorities and health bodies should have a statutory responsibility to promote personal relations and direct contact between mental health service users and children for whom such service users have parental responsibility, where this is in the interests of the child.

18.10 Local authorities and health boards should be required to obtain information regarding the mental health service needs of people from black and ethnic minority communities in their area. Such information should be obtained using standardised methodologies.

18.11 Arrangements should be made by the Scottish Executive to obtain information regarding the extent to which compulsory measures under the Mental Health Act are applied to particular minority ethnic communities.

18.12 Local authorities and health bodies should be required to promote racial awareness training amongst staff employed in mental health services.

18.13 Local authorities and health boards should be placed under a statutory obligation to develop policies for meeting the needs of service users from ethnic minorities in their area.

18.14 Local authorities and health boards should be required to ensure that they have access to services for interpretation and translation for service users and carers whose first language is not English.

18.15 Where a person whose first language is not English is subject to compulsory measures, the mental health officer (or, in the case of emergency detention, the detaining doctor) should be required to take all reasonable steps to ensure that the person has been made aware of the implications of the compulsory measures, and the person's rights in relation to those measures. In any appeal or application for long term compulsory measures, the mental health officer should be required to demonstrate to the tribunal that this has been done.

Chapter 19

19.1 The Scottish Law Commission proposals, contained in their Report on Vulnerable Adults, should be implemented in respect of adults with mental disorder.

19.2 Rules of Court for proceedings under the Vulnerable Adults proposals should be broadly consistent with those which we recommend for hearings concerning compulsory measures of care, under the Mental Health Act.

19.3 Where a person is removed from home under the Vulnerable Adults proposals, and it is determined that the person requires compulsory measures of care under the Mental Health Act, the normal procedures under that Act should apply.

19.4 It should not be possible to be made subject to emergency (72 hour) detention under the Mental Health Act immediately following a period of removal from home under the Vulnerable Adults proposals.

19.5 The Mental Health Act Code of Practice should include guidance as to the exercise of functions under the Vulnerable Adults proposals.

19.6 It should be an offence for a person wilfully to ill-treat or neglect a person with mental disorder who is in his or her care.

19.7 The following persons would be among those who could potentially commit the offence of wilful ill-treatment or neglect of a person with mental disorder:

• any member of staff or manager at any hospital or healthcare facility, where the patient is receiving treatment, whether as an in-patient or out-patient;
• any manager or member of staff, whether paid or unpaid, in any residential care facility where the mentally disordered person is living;
• any person employed to deliver care services in the community to the mentally disordered person; or
• any other person who undertakes substantial responsibilities for the care of the mentally disordered person.

19.8 There should be a provision in the Act which protects any person from liability in civil or criminal proceedings for acts purporting to be done in pursuance of the Act, unless done in bad faith or without reasonable care. This protection should also apply to liability under the above offence of wilful ill treatment or neglect.

19.9 There should continue to be an offence relating to obstruction, similar to that contained in Section 109 of the 1984 Act.

19.10 It should not be possible for a mentally disordered person to be prosecuted for obstruction, in relation to compulsory measures of care or protective measures directed at the mentally disordered person.

19.11 The definition of vulnerable person in s271 of the Criminal Procedure (Scotland) Act 1995 should be amended to include any person with a mental disorder, as defined in Chapter 4.

Chapter 20

20.1 The police should retain the power granted by s118 of the 1984 Act to take persons appearing to be suffering from mental disorder to a place of safety. The duration of the power should be limited to 24 hours.

20.2 Where a person has been removed to a place of safety, the constable should be required to notify the person or persons who appears to be the primary carer and nearest relative of the person so removed, whom failing, any responsible person who appears to reside with or provide support to the person. If no such person can be identified, the social work department should be notified. Such notification should take place within six hours of the person being removed.

20.3 Health boards should be under a legal duty to secure the provision of places of safety, to accommodate people detained by the police, under Mental Health Act powers.

20.4 A place of safety should not be a police station except in an emergency, or where it is impossible to safely accommodate the mentally disordered person in the facilities provided under arrangements made with health boards.

20.5 The Code of Practice should set out minimum standards for such places of safety.

20.6 The police should be required to report to the Mental Welfare Commission any use of police powers to detain a mentally disordered person, and provide details of the place of safety which was used.

20.7 The Mental Welfare Commission should monitor the development of local protocols and joint training initiatives concerning the detention and assessment of mentally disordered persons who come to the attention of the police.

20.8 The police should be required to notify the Mental Welfare Commission of the use of CS gas on any person who is, or appears to be, mentally disordered.

Chapter 21

21.1 Sections 106 and 107 of the 1984 Act, and s13 of the Criminal Law (Consolidation) (Scotland) Act 1995, should be replaced by two new statutory offences: sexual abuse of a mentally disordered adult, and sexual abuse by staff and formal carers.

21.2 Both new offences should apply to male and female perpetrators and victims, and to perpetrators of any age (above the age of criminal responsibility).

21.3 Both new offences should apply to all types of mental disorder, as defined in Chapter 4.

21.4 Both offences should apply to sexual intercourse, and other acts which could constitute sexual offences at common law.

21.5 The offence of sexual abuse of a mentally disordered adult would be committed where

(a) because of a mental disorder, the adult is unable to understand, or make a decision about, the nature of the sexual act or its consequences, or

(b) the adult has a mental disorder and is unable to give free agreement to the relationship.

21.6 It should be an offence to procure a mentally disordered adult to commit a sexual act.

21.7 In establishing whether an adult is able to give free agreement to a relationship the court should have regard to the nature and degree of the adult's mental disorder, and the nature of the relationship between the parties.

21.8 It should be a defence to the crime of sexual abuse of a mentally disordered adult to show that the accused person did not know, and could not be expected to know, that the adult came within the category protected by the provisions of the legislation.

21.9 The Crown Office should issue guidance on its policy in relation to sexual activity between adults with mental disorders, and sex education for people with learning disabilities.

21.10 The offence of sexual abuse by staff and formal carers would be committed where there is a sexual relationship between

(a) a patient with a mental disorder, whether inpatient or outpatient, and a member of staff, whether paid or unpaid;

(b) a mentally disordered person in residential care and a member of staff, whether paid or unpaid;

(c) a mentally disordered person and a person employed to deliver care services in the community to that person; or

(d) a mentally disordered person and a doctor or therapist involved in a professional relationship with that person.

21.11 The offences of sexual abuse of a mentally disordered adult and sexual abuse by staff and formal carers should be included in Schedule One of the Sex Offenders Act 1997.

Chapter 22

22.1 The role of Ministers in regulating private mental hospitals, currently in Part IV of the 1984 Act should be abolished.

22.2 Should the Scottish Commission for the Regulation of Care be given responsibility for registration of private hospitals, it should be the primary regulatory body for all private hospitals caring for psychiatric patients, whether subject to compulsion or not.

22.3 The Scottish Commission for the Regulation of Care should be permitted to designate nursing and residential care homes as appropriate accommodation for mentally disordered patients subject to compulsion, if the care and facilities available are of an appropriate standard.

22.4 The Scottish Commission for the Regulation of Care should issue appropriately rigorous standards of care relating to the care of people with mental disorders, including those subject to compulsory measures of care under mental health law.

The CRC should address the question of whether these standards should be the same or different for groups of mentally disordered persons with different status in law.

Chapter 23

23.1 The Mental Welfare Commission should continue to exercise protective functions in respect of people with mental disorders, whether or not they are subject to compulsory measures.

23.2 There should be a requirement in the Act for three psychiatrists and one experienced legally qualified person to be members of the Commission.

23.3 The Act should require that at least two members of the Commission should have personal experience of mental disorder, and at least two members should have personal experience of caring for a person with mental disorder.

23.4 The minimum number of members of the Commission should be increased from 10 to 18.

23.5 There should be a statutory requirement that Commissioners receive such induction and training as may be specified by Ministers.

23.6 The requirement to consult interested parties prior to appointment of Commissioners should be removed.

23.7 All vacant Commissioner posts should be publicly advertised.

23.8 The Mental Health Act should continue to be flexible regarding the structure and internal management arrangements of the Mental Welfare Commission.

23.9 There should be a review of the structure and internal management arrangements of the Commission, and the current Memorandum of Agreement with the Scottish Executive, to consider changes which might be desirable in the light of a proposed new Mental Health Act, and other recent developments. The review should involve other interested parties.

23.10 The Memorandum of Agreement between the Commission and the Scottish Executive should be published.

23.11 The Commission's Annual Report should be submitted jointly to Scottish Ministers and the Scottish Parliament, and arrangements should be made for it to be debated in Parliament.

23.12 The Commission should be specifically entitled to draw matters concerning the welfare of people with mental disorder to the attention of the Scottish Parliament (and, where appropriate, the UK Parliament).

23.13 The Mental Welfare Commission should have a responsibility to promote the principles of the Mental Health Act, as set out in Chapter 3.

23.14 The Commission should continue to be entitled to revoke compulsory measures on non-restricted patients under the Mental Health Act or to recall guardianship under the Adults with Incapacity (Scotland) Act 2000.

23.15 The Commission should not be obliged to review, with a view to considering whether discharge is appropriate, every request for discharge from compulsory measures.

23.16 There should be no appeal against a decision by the Commission in relation to compulsory measures under the Mental Health Act, other than by judicial review.

23.17 The Mental Welfare Commission should publish reports on issues arising from its visiting programme.

23.18 The Commission should continue to have a duty to visit psychiatric and learning disability hospitals, and a power to request interviews with patients.

23.19 The Commission should also have the power to visit community services and facilities, and to conduct private interviews with service users at such facilities.

23.20 The Commission should have a statutory duty to conduct unannounced visits to hospitals and community psychiatric facilities.

23.21 The Commission should have a statutory duty to visit prisons.

23.22 Commissioners, and Commission staff, should have the power to inspect medical and other records relating to a person with mental disorder, whether in hospital, prison or community based mental health services.

23.23 The Commission should continue to have the power to hold enquiries into deficiency in care, either on a formal or informal basis.

23.24 The Commission should have the power to publish reports of its enquiries. Such reports should attract qualified privilege.

23.25 The Commission should continue to publish an Annual Report.

23.26 The Commission should publish an accessible summary of its Annual Report.

23.27 In addition to the Annual Report, the Commission should be specifically entitled to publish and disseminate from time to time information, guidance and advice about any matters relevant to the Mental Health Act.

23.28 The Commission should strengthen its efforts to make its own work more widely known, and to ensure that its information, guidance and advice reaches all who would benefit from it.

23.29 The Memorandum of Understanding between the Mental Welfare Commission and the Health Service Commission should be published.

23.30 The investigation of the handling of complaints by NHS bodies under the NHS complaints procedure concerning people with mental disorders should be the responsibility of the Health Service Commissioner.

23.31 Where the Health Service Commissioner or the Commissioner for Local Administration in Scotland deals with a complaint, which includes issues concerning the provision of care for a person with a mental disorder, the Commissioner should be required to consult with the Mental Welfare Commission. The Commission should offer such advice and support as it deems appropriate.

23.32 As part of its responsibility to promote the principles of the Mental Health Act, the Commission should be entitled to offer advice and guidance on dealing with complaints affecting mental health service users, and may make enquiries as to the way in which such complaints are dealt with.

23.33 The Commission should have a responsibility to monitor the implementation and operation of the Mental Health Act, and the degree to which this is consistent with the principles of the Act.

23.34 The Commission should have the power to follow up enquiries into deficiency in care, and publish reports on whether and how its recommendations have been implemented.

23.35 The Commission should be under a duty to collect and publish such statistical and other information as it deems appropriate in relation to the operation of the Act.

23.36 The Code of Practice should set out guidance on the reporting of significant incidents to the Commission.

Chapter 24

24.1 Consideration should be given to consolidating the provisions of Part VI of the Criminal Procedure (Scotland) Act 1995 within the Mental Health Act.

24.2 If the Criminal Procedure (Scotland) Act continues to contain provisions regarding mentally disordered offenders, the Scottish Executive should ensure that information is made available in a single document to professionals, service users and carers, which deals with both pieces of legislation and how they interact. This document should be regularly updated.

Chapter 25

25.1 It should continue to be possible for a court to commit an accused person to hospital on the basis of a single medical recommendation.

25.2 Following admission, the responsible medical officer should assess the patient to determine whether the patient meets the criteria for compulsory admission to hospital under the Mental Health Act.

25.3 The responsible medical officer should be required to report to the court, as soon as possible, but no later than 28 days after the admission to hospital as to whether the grounds for compulsory admission to hospital under the Mental Health Act are met. Should the court be satisfied that this is the case, it may authorise continuing detention in hospital. Should it not be so satisfied, it should revoke the order.

25.4 Where a remanded prisoner is admitted to hospital, he or she may be treated compulsorily, subject to the protections contained in the Mental Health Act for treatment of patients subject to compulsion but it should not be possible to administer medication for mental disorder to such a prisoner, except in an emergency, without first obtaining the consent of the prisoner or a second medical practitioner with experience in the assessment and treatment of mental disorder.

25.5 It should be possible for a court to authorise the transfer of a prisoner who is on remand in custody to hospital to assess whether his or her mental state warrants admission to hospital.

25.6 Before authorising such a transfer, the court should be satisfied that a suitable hospital is available for the prisoner's admission, and should receive evidence from a medical practitioner that the prisoner appears to have a mental disorder which may require treatment in hospital.

25.7 When a prisoner is admitted to hospital under this procedure, similar arrangements should apply to those set out in recommendations 25.3-25.4 for prisoners admitted at the initial remand hearing.

25.8 Where a court

• has received recommendations which would have entitled it to make a hospital order or hospital direction on the conviction of an accused person, and
• that person is acquitted, other than by reason of insanity, and
• it appears to the court that it may be urgently necessary for the person to be detained in hospital to assess whether he or she requires compulsory measures under the Mental Health Act,

the court should be entitled to order the detention of the person in a place of safety for a period of up to six hours to allow examination by a registered medical practitioner.

Chapter 26

26.1 For any mental health disposal in a criminal case which currently requires the evidence of two medical practitioners, a court should also be required to receive a report from a mental health officer.

26.2 For any mental health disposal in a criminal case which currently requires the written or oral evidence of two medical practitioners, the court should be entitled to require further evidence from a chartered clinical psychologist with appropriate expertise.

26.3 All agencies dealing with offenders with mental disorders should ensure that professionals who evaluate risk, or make decisions based on risk, are appropriately trained.

26.4 It should be possible to appeal against an order for remand of a convicted person to hospital for enquiry into his or her medical condition at any time during the period of remand.

26.5 The provisions for compulsory treatment which apply to untried prisoners remanded to hospital (see recommendation 25.4) should also apply to convicted offenders remanded to hospital for enquiry into their mental condition.

26.6 An interim hospital order should be possible where-

• the offender is suffering from mental disorder, and
• there is reason to suppose that the mental disorder from which the offender is suffering is such that it may be appropriate for a hospital order with restrictions or a hospital direction to be made.

26.7 Where a psychiatric report recommends the imposition of a hospital order with restrictions, the psychiatrist should be required to address in the report the question of why an interim hospital order is not appropriate.

26.8 The time limit for renewal of an interim hospital order, after the initial 12 week duration, should be increased from every 28 days to every 90 days.

26.9 The criteria for a hospital direction should be amended to include, in addition to the existing criteria, that either

• there is not considered to be a strong association between the offender's mental disorder and the offence, or
• the alleviation of those aspects of the person's mental state which are likely to respond to treatment may not substantially reduce the extent to which the offender presents a risk to the public.

26.10 It should be possible for conditions of treatment attached to a probation order to last for up to a maximum of three years.

26.11 Before imposing a requirement of treatment specifying that the offender attend a particular service, the court should obtain written or oral evidence from a person who would have responsibility for the delivery of the service, that it is appropriate and available.

26.12 It should be possible for a court to remit a mentally disordered offender to a mental health tribunal, for consideration of a community order.

26.13 In relation to any such referral, the tribunal should consider the appropriateness of such an order, and its nature, and should report back to the court as to whether it recommends a community order.

26.14 On receiving such a report, the court would be entitled to

• approve a recommended community order, or
• substitute any other disposal it is entitled to make where the court does not approve a recommendation for a community order, or such an order is not recommended.

26.15 The right of appeal against a transfer direction should be to a mental health tribunal.

26.16 Where a prisoner has been assessed by two medical practitioners as meeting the criteria for admission to hospital under the Mental Health Act, there should be a right of appeal to a mental health tribunal against a decision by Scottish Ministers not to authorise a transfer direction.

26.17 The time limit for an appeal against a transfer direction, or the refusal to make a transfer direction, should be ten weeks.

26.18 It should continue to be possible for Scottish Ministers to return transferred prisoners who no longer require hospital treatment to prison to serve the remainder of their sentence.

26.19 Where a person subject to a transfer direction or hospital direction would be entitled to be released from prison, but the responsible medical officer is satisfied that the prisoner requires continued detention under the Mental Health Act, it should be necessary for the continued detention to be authorised by the normal civil procedures.

26.20 The provisions of s32 of the 1984 Act should continue to apply to persons who are liable to detention in hospital under the Mental Health Act and detained in custody in pursuance of an order of a court.

26.21 Where a person who is subject to a community order is detained in custody in pursuance of an order of a court for less than six months, the community order should continue in operation on the discharge from custody.

Chapter 27

27.1 Scottish Ministers should no longer have responsibility for the management and discharge of restricted patients.

27.2 The Parole Board, sitting as the Restricted Patients Review Board, should take over the responsibility of Ministers for decisions concerning the discharge of restricted patients.

27.3 The Risk Management Authority, if established as proposed by the MacLean Committee, should be given responsibility for those aspects of Ministers' responsibility for restricted patients which are currently delegated to officials, namely the authority to approve leave of absence for restricted patients, transfers between hospitals (other than transfers to lower levels of security, and cross border transfers), and urgent recalls from conditional discharge.

27.4 The responsible medical officer should report on the patient's progress to the Restricted Patients Review Board at least annually, and should furnish additional reports where there is a significant change of circumstances.

27.5 Restricted patients should have a right of appeal to a mental health tribunal once in the period between six and 12 months from the commencement of the relevant order, and once in any subsequent period of 12 months.

27.6 The Memorandum on Procedure regarding Restricted Patients should be revised and made publicly available.

27.7 A tribunal dealing with a restricted patient should be chaired by a sheriff.

27.8 The tribunal and the Restricted Patients Review Board should be under a duty to discharge the patient absolutely if satisfied that the criteria for detention in hospital are no longer met, and it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment.

27.9 If satisfied that the criteria for compulsory care continue to be met, but that the patient does not currently require to be detained in hospital, the tribunal or Restricted Patients Review Board should be under a duty to grant a conditional discharge.

27.10 The Risk Management Authority should have responsibility for ensuring that adequate arrangements are in place in respect of patients subject to conditional discharge, on the basis of a risk management plan.

27.11 The Risk Management Authority should issue guidance on best practice in managing patients subject to conditional discharge.

27.12 Where a patient subject to conditional discharge breaches any of the conditions of discharge, there should be a review of the case by the Restricted Patients Review Board.

27.13 It should be possible to recall patients subject to conditional discharge to hospital on the grounds of continuing mental disorder and evidence of risk of harm to members of the public. Breaches of conditions of discharge could be considered as evidence of increased risk.

27.14 The Mental Welfare Commission should be required to visit patients subject to conditional discharge from time to time.

27.15 The Mental Health Act should set out specific criteria for admission to the State Hospital.

27.16 The criteria for admission to the State Hospital should be that the patient suffers from mental disorder of a nature or degree such that

• he or she presents a significant risk of harm to self or others, and
• requires treatment under conditions of special security, and
• cannot be suitably cared for in a hospital other than a State Hospital.

27.17 Urgent consideration should be given to the possible need for appropriate services offering intensive support to prisoners or patients at high risk of self harm, as an alternative to admission to the State Hospital.

27.18 The period during which a patient can appeal against transfer to the State Hospital should be extended from 28 days to 10 weeks.

27.19 Patients should have a right of appeal to be transferred from the State Hospital, or a medium secure facility, to conditions of lower security.

27.20 The procedures and time limits for such appeals should be consistent with the rights of patients to appeal to a tribunal seeking absolute or conditional discharge, as set out in Recommendation 27.5.

27.21 Should the tribunal uphold such an appeal, it could order the relevant health board to make the necessary arrangements for the patient within a specified time, not exceeding three months.

27.22 Should the necessary arrangements not have been made by the end of the specified time, the tribunal would be entitled to require the health board to appear before it. The tribunal would have power to extend the time for arrangements to be made for a further period, not exceeding three months.

27.23 At the expiry of this further period, the tribunal would have the power to order that arrangements be made for the patient within 14 days.

27.24 The Restricted Patients Review Board and the Risk Management Authority should take over from Scottish Ministers the oversight of prisoners made subject to restriction directions.

Chapter 28

28.1 The 'public safety' test provided under s1 of the Mental Health (Public Safety and Appeals) (Scotland) Act 1999 should be abolished.

28.2 For patients subject to mental health disposals under a new Mental Health Act, including restricted patients, the grounds for discharge from the mental health disposal should be the same as the grounds for admission.

28.3 S74(1A) and s74(1B) of the Mental Health (Scotland) Act inserted by the Mental Health (Public Safety and Appeals) (Scotland) Act 1999 should be repealed.

28.4 If the Scottish Executive and Parliament judge it to be necessary to retain any of the provisions of Section 1 of the Mental Health (Public Safety and Appeals) (Scotland) Act 1999 as a transitional measure to deal with the very limited group of patients detained under current mental health law who present a high risk to public safety and who would not be detainable under the new Act, the transitional provisions should be drawn in such terms as to ensure that their effect does not reach beyond this group.

28.5 Should the provisions of s1 of the Mental Health (Public Safety and Appeals) Act 1999 be retained in respect of any group of patients, they should be amended to allow such patients to benefit from the possibility of conditional discharge.

Chapter 29

29.1 The Scottish Executive should consider reforms to the procedures for persons who plead insanity, or are found insane, to address the practical difficulties identified in the research into Mentally Disordered Offenders and Criminal Proceedings.

29.2 The Scottish Law Commission should be invited to review the special defence of insanity, and insanity in bar of trial.

29.3 As part of this review, the Scottish Law Commission should consider whether section 54 of the Criminal Procedure (Scotland) Act should be amended to allow evidence as to fitness to plead to be given by chartered clinical psychologists as well as by psychiatrists.

29.4 Supervision and treatment orders should be amended to allow compulsory treatment and other interventions, as specified in the order, with procedures for admission to hospital in appropriate cases in the event of non-compliance.

29.5 The range of disposals available to a court in relation to a person charged with murder and acquitted by reason of insanity should be the same as for persons charged with other offences who are acquitted on that basis.

29.6 The Scottish Law Commission should be invited to review the defence of diminished responsibility.

Chapter 30

30.1 Research should be commissioned by the Scottish Executive into the operation of appropriate adults schemes for mentally disordered people who come into contact with the criminal justice system. This should investigate

• the extent to which such schemes are operating effectively
• any difficulties arising from current guidance.

30.2 The Scottish Executive should make arrangements for the ongoing monitoring of appropriate adult schemes, and the sharing of information between such schemes.

30.3 The Scottish Executive should keep under review the possibility of formalising the appropriate adult scheme on a statutory basis.

30.4 The Scottish Executive should develop, in consultation with the Association of Chief Police Officers (Scotland) and agencies concerned with mental disorder, a training strategy for police officers on dealing with members of the public who have mental disorder, and the use of the police's statutory powers under mental health law. This strategy should be published and regularly reviewed.

Chapter 31

31.1 There should be liaison between the Scottish Executive Health Department, the Department of Health and the Northern Ireland Health and Social Services Department to ensure that the provisions on cross-border transfers in the various Mental Health Acts remain complementary.

31.2 The grounds for transfer of a patient subject to compulsion outwith Scotland should continue to be 'the best interests of the patient', not further defined.

31.3 The specific grounds for transfer should be recorded.

31.4 There should be a requirement for Scottish Ministers to notify the patient, the named person and the Mental Welfare Commission of an impending transfer from Scotland. At least seven days advance notice should be given, unless the patient agrees to an earlier transfer, or there are strong clinical reasons for an earlier transfer. Where seven days notice is not given, the reasons for this should be recorded on the notification of the transfer to the Mental Welfare Commission.

31.5 Unless the patient objects, the primary carer (if not also the named person) should also be entitled to notice. The Code of Practice should set out circumstances where the primary carer should be given notice, notwithstanding objections by the patient.

31.6 Details of the transfer of a patient to Scotland should be provided to the Mental Welfare Commission and the named person by the responsible medical officer within seven days of it taking place.

31.7 Ministers should retain responsibility for approving the transfer of non-restricted patients between Scotland and other parts of the UK.

31.8 The responsibility for approving transfer of restricted patients between Scotland and other parts of the UK should be transferred from Ministers to the Restricted Patients Review Board. The proposed Risk Management Authority should be consulted prior to a transfer of a restricted patient to or from Scotland being arranged.

31.9 Patients being transferred outwith Scotland should have a right to appeal to a mental health tribunal at any time between notification to the patient and named person and the date of transfer, or within 28 days following the transfer.

31.10 Following a transfer of a patient to Scotland, the Mental Welfare Commission should arrange to visit the patient within three months.

31.11 Patients should be transferred onto compulsion under the terms of the law of the receiving country, but that compulsion should be deemed to have started on the date of compulsion under the law of the previous jurisdiction.

31.12 Consideration should be given by the Northern Ireland Health and Social Services Department as to whether there should be an appeal available to Northern Irish patients against detention in the State Hospital.

31.13 There should also be consideration given to how the difficulties of transferring Northern Irish patients out of the State Hospital may be addressed.

31.14 Should orders similar to our recommended community order be introduced in other parts of the UK, regulations should allow a patient subject to such an order who moves between jurisdictions to be subject to the equivalent order in the receiving jurisdiction.

31.15 There should continue to be arrangements to allow Ministers to transfer in-patients receiving treatment for mental illness, who do not have a right of abode in the UK, to countries outside the United Kingdom.

31.16 Such transfers should only take place if Ministers are satisfied that the patient will receive adequate care in the receiving country.

31.17 Unless he or she consents to early removal, a patient should be given at least 28 days notice of the intention to remove him or her from the UK.

31.18 The patient should have the right to appeal to a mental health tribunal against such a decision.

31.19 Specialist advocacy should be provided to asylum seekers and refugees with mental disorders to assist them in understanding their legal position and to provide liaison with their legal representatives and/or immigration officials.

31.20 The amendments to the 1984 Act introduced by the Immigration and Asylum Act 1999 should be repealed.

Chapter 32

32.1 The new Mental Health Act should, as far as possible, be drafted on the relevant issues in line with the provisions of the Hague Convention on the International Protection of Adults.

32.2 The Mental Health Act should make clear that emergency and short term detentions are on the basis of recommendations to the hospital managers.

32.3 There should be a specific provision attached to detention orders for patients not habitually resident in Scotland, which states that these orders may apply during the period of transfer to a country with jurisdiction over the patient.

32.4 The orders should apply until the patient has been transferred to the control of the judicial or administrative authorities in the country with jurisdiction, or until the end of the period of detention, whichever is the earlier.

Chapter 34

34.1 The Scottish Executive should initiate a co-ordinated programme of statistical and other information gathering and of research relating to the new Mental Health Act.

34.2 The statutory forms which support procedures under the Act should be drafted to ensure that

• they provide adequate information for the relevant purpose
• they assist the process of information gathering and research into the use of the Act, and
• they can be used efficiently by professionals.

34.3 There should be statutory forms to support mental health disposals in cases before the criminal courts.

34.4 The Scottish Executive should develop a strategy to ensure that all who have to operate the new Mental Health Act are appropriately trained.

Chapter 35

35.1 Part VIII of the 1984 Act should be repealed.

Chapter 36

36.1 The Act should require Scottish Ministers to prepare a Code of Practice.

36.2 The Code should operate as follows:

• It should be a guide to the Principles of the Act and their implications for care and treatment.
• It should be a practical guide for service-providing agencies and medical and other professional staff on the provisions of the legislation.
• It should give advice on best professional practice in relation to the Act.
• It should wherever practical, be written in straightforward non-legal language, that users and carers and other non-specialists may refer to.

36.3 The Scottish Executive should develop and implement a strategy to promote awareness of the Code amongst all those with an interest.

36.4 The Code of Practice should not be legally binding, but a failure to apply the Code should require to be justified if challenged in legal proceedings.

36.5 It should be a requirement of the Act that the Code of Practice should be published within a year of the Act receiving Royal Assent and should be drafted in consultation with relevant parties.

36.6 Updates of the Code should be undertaken on a regular basis.

36.7 There should be a five-year maximum period within which a full revision of the Code must be undertaken, in consultation with relevant parties.

36.8 Notes on the new Mental Health Act should be published by the Scottish Executive, and any changes to the Act should be reflected in changes to the Notes on the Act.

Chapter 37

37.1 A Mental Health Act Implementation and Monitoring Group should be set up to oversee the implementation of the new Act and any associated Regulations and Guidance.

37.2 The Mental Health Act Implementation and Monitoring Group should represent user, carer, voluntary sector, service provider and professional interests.

37.3 The Mental Health Act Implementation and Monitoring Group should have an ongoing monitoring role relating to the Act.

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