Approved Medical Practitioners - Mental Health (Care and Treatment) (Scotland) Act, 2003 Training Manual

Section 9. New Rules on Patients' Rights and Representation

New rules on the patient's rights and representation are set out under the 2003 Act. These include rules in relation to:

• The named person.

The named person:

• Replaces the 'nearest relative' (except under EDCs).
• Has official standing.
• May often be a partner or carer.
• Represents and looks after the interests of the patient.
• Must have their views taken into account.
• Is chosen by the patient.
• Must be nominated in writing, witnessed by a prescribed person; the nominee can refuse or later revoke the nomination.
• Must be aged over 16 years.
• Can apply to the Tribunal, and can appear or be represented at the Tribunal.
• Should receive information on the whereabouts of the patient if he or she is subject to an EDC.
• Must be interviewed by the MHO if an application for an STDC or CTO is being made.

Where there is no named person, the primary carer adopts the role. In addition, the Tribunal can appoint a named person.

• Advance statements. This is a written statement on how the patient would or would not want to be treated for mental disorder in the future, should his or her decision making become impaired.

Any person providing medical treatment (such as a responsible medical officer) is 'to have regard to' preferences detailed in an advance statement. Designated medical practitioners should ascertain the presence of and views within the advance statement. Statements drawn up from October 2004 are considered valid, but a statement can be withdrawn once the patient's capacity has been established and witnessed.

When making an advance statement, the person needs to have 'the capacity of properly intending' the wishes specified in it, and a witness needs to sign agreeing to such. The following professionals may act as witnesses:

• A doctor ( GP, responsible medical officer, or another doctor)
• A registered nurse (community psychiatric nurse or another nurse)
• A solicitor
• A social worker ( MHO or another social worker)
• A clinical psychologist
• An occupational therapist, or
• A social service worker such as a supervisor or manager of a care service.

Where the wishes expressed in an advance statement are not followed, the reasons must be recorded and copied to:

• The patient
• Named person
• Guardian or welfare attorney
• The Mental Welfare Commission.

Advance statements must comply with the terms of the 2003 Act and can neither bind a doctor into illegal or unethical treatment, nor require a doctor to provide specific services or treatments.

There is no standard form on which to make an advance statement (although proformas do exist), but it should contain the name and address of:

• The patient
• GP
• Named person
• Guardian or welfare attorney.

Copies of advance statements should be stored in medical notes.

Offences

There are no statutory duties specified here, but details are provided regarding non-consensual sexual acts (Section 311) and sexual offences (Section 313). Ill-treatment and wilful neglect (Section 315) are addressed in Part 21 of the 2003 Act.