Mental Health (Scotland) Act 2015: consultation analysis report

Consultation Part 1 - Analysis

Questions 1 and 2 asked for views on about the new limited right of appeal for the nearest relative, carer, welfare attorney or welfare guardian, known in this context as 'listed persons'.

24 respondents marked that they agreed and 3 that they disagreed with the suggestion that listed persons should have the status of relevant persons before the Mental Health Tribunal for Scotland. Of those who only commented, 7 suggested they were broadly in agreement, 1 broadly disagreed and 2 did not give a clear view either way.

The overwhelming majority of respondents agreed that listed persons should receive no or nearly no information in relation to their appeal to protect the privacy of the service user, but should be able to give evidence to the Tribunal. The suggestion that the listed person could have the status of a relevant person before the Tribunal was largely agreed with, although there were some reservations as to whether this was the most appropriate status as it could allow the listed person to receive additional information in some circumstances.

There were differing opinions as to whether the Responsible Medical Officer ( RMO) should be the person who confirms to the Tribunal that the patient is incapable of appealing, and therefore the listed person has a right of appeal, or whether any Approved Medical Practitioner ( AMP) should certify this. A middle way suggested was that the RMO was preferable, but that it should be possible for another AMP to confirm this if needed.

Many respondents raised the issue of clear guidance about the different roles, abilities and status of named and listed persons, and the benefits of choosing either for the individual service user. These included ensuring that a service user with no close relatives or friends is supported; ensuring that the limits to listed persons rights are well understood and guidance sets out how a listed person can act in line with the service user's will and preferences; and how service users' views about representation could be set out in advance statements.

Questions 3 and 4 asked for views about transitional provisions to move from the current law on named persons, including default named persons, to the provisions in the 2015 Act, which remove named persons appointed by default.

26 respondents marked that they agreed and 5 that they disagreed with the general approach that the final point at which the default named person should remain in their role should be the next major point of interaction with the 2003 Act. Of those who only commented, 2 suggested they were broadly in agreement and 2 broadly disagreed. 25 respondents marked that they agreed and 1 that they disagreed with the more detailed approach set out, based on this general approach. Of those who only commented, 3 suggested they were broadly in agreement, 5 broadly disagreed and 1 did not give a clear view either way.

Although most respondents indicated agreement, there were several concerns and reservations raised with this approach. Particular concerns included that some patients would be disadvantaged by continuing to have a default named person for longer than others and that discussions between care teams and service users about representation could take place at a stressful time for the service user if it is too close to a Tribunal hearing.

Question 5 asked for views on transitional provisions related to a new requirement for a named person to agree in writing to take on the role.

All respondents (31) marked that they agreed with the proposal that this requirement should only apply to new named persons, so that previous nominations would not be invalidated. Of those who only commented, all 3 suggested they were broadly in agreement.

Question 6 asked for views about the Tribunal removing an unsuitable named person.

27 respondents marked that they agreed and 3 that they disagreed with the principle that, where the Tribunal used its power to remove an unsuitable named person, no replacement named person should be appointed for patients over 16. Of those who only commented, 4 suggested they were broadly in agreement and 1 did not give a clear view either way.

Several respondents emphasised the importance of a named person being someone that the service user themself choose and also the importance of the service user being supported to make decisions about the representation that they want if their named person is removed.

Question 7 asked respondents about transitional provisions for the listed persons provisions.

27 respondents marked that they agreed and 3 that they disagreed with the proposal that transitional provisions should bring in the right of appeal for listed persons in line with the phasing out of default named persons and that existing appeal limits should apply to listed persons. Of those who only commented, 2 suggested they were broadly in agreement, 1 broadly disagreed and 1 did not give a clear view either way.

Question 8 asked for views about transitional provisions for welfare guardians and welfare attorneys receiving information about certain decisions.

27 respondents marked that they agreed and 1 that they disagreed with the proposal that these provisions should come into force in all cases on the commencement date. Several respondents noted the importance of clear guidance in relation to these provisions. Of those who only commented, 3 suggested they were broadly in agreement and 3 did not give a clear view either way.

Questions 9 to 11 asked for views on supporting service users to choose the best representation under the Act for themselves.

There was a wide range of suggestions for the guidance and information, including:

• Ensuring guidance is clear on what a named person role involves and what listed person rights are, what information a named person could receive, and what the impact of not having a named person could be.
• Suggestions on how this could relate to advance statements, e.g. encouraging people to say in their advance statement what should happen if their named person was no longer able to fulfil the role.
• Noting that real life examples could be helpful.

Question 12 asked for views regarding proposals for amending the Mental Health (Patient Representation) (Prescribed Persons) (Scotland) (No. 2) Regulations 2004.

27 respondents marked that they agreed and 3 that they disagreed with the proposal that the current list of prescribed persons able to witness the service user's choice of named person should be extended to those able to witness the named person's agreement. Of those who only commented, 5 suggested they were broadly in agreement. In addition, it was suggested that the regulations should include independent advocates and allied health professionals in the list of prescribed persons.

Question 13 asked for views regarding continuing existing provisions of the Mental Health (Conflict of Interest) (Scotland) (No 2) Regulations 2005.

23 respondents marked that they agreed and 3 that they disagreed with the proposal. Of those who only commented, 3 suggested they were broadly in agreement, 1 broadly disagreed and 5 did not give a clear view either way. In addition, it was suggested that regulations should set out that a conflict of interest exists when the doctor is a close relative of a patient made subject to an Emergency Detention Certificate.

Question 14 asked for views on whether there should be a change to what is defined as a conflict of interest where the agreement of two Approved Medical Practitioners is required.

20 respondents marked that they agreed and 6 that they disagreed with the proposal that the second medical examination coming from a doctor in a different management structure (e.g. separate clinical directorates) would be more useful than from a different hospital. Of those who only commented, 2 suggested they were broadly in agreement, 4 broadly disagreed and 3 did not give a clear view either way. Requirements for clear definitions and guidance on conflict of interest and management structure were highlighted as key to this proposal working in practice.

Questions 15 to 17 asked for views on extending conflict of interest regulations to reviews of orders, particularly in the case of those in independent hospitals.

22 respondents marked that they agreed and 3 that they disagreed with the proposal that it would be considered a conflict of interest for the RMO to extend a Compulsory Treatment Order for a patient detained in an independent hospital. Of those who only commented, 3 suggested they were broadly in agreement, 2 broadly disagreed and 3 did not give a clear view either way. Some respondents highlighted practical and cross border issues to take into account and others questioned the premise of treating independent hospitals differently.

21 respondents marked that this should also apply to those orders with additional scrutiny, such as Compulsion Orders and Compulsion Orders with Restriction Orders and 4 respondents marked that it should not. Of those who only commented, 4 suggested they were broadly in favour of this applying to these orders and 1 was broadly not in favour.

14 respondents marked that these rules would be suitable for rural health boards and 8 marked that they would not. Of those who only commented, 1 suggested they were broadly of the view that these rules would be suitable for rural health boards, 4 broadly disagreed and 5 did not give a clear view either way. Some respondents whilst generally supportive of the proposals, described practical difficulties to address.

Question 18 asked for views on changes to the Mental Health (Safeguards for Certain Informal Patients) (Scotland) Regulations 2005.

26 respondents marked that they agreed and 2 that they disagreed with proposals around the inclusion of artificial nutrition within the scope of these regulations. Of those who only commented, 3 suggested they were broadly in agreement and 4 did not give a clear view either way. The majority of respondents were supportive of the proposal, recognising the circumstances of this treatment in practice. Descriptions of how the regulations could work in practice were given by clinicians in the field.

Question 19 asked for views on the most effective best practice for Health Boards to promote support available for making an advance statement.

The majority of respondents would like a best practice approach adopted by all which would encourage discussion (at a suitable point in the patients journey of recovery when they are well enough to engage and understand matters). staff should be trained and equipped to facilitate such discussions using the relevant materials. Advance statements should also be accessible and reviewed from time to time.

There was a recognition that Health Boards are not the only ones to promote advance statements so they should also create and strengthen links with advocacy services and voluntary groups as they are also likely to support people who could benefit from an advance statement. Information should be easily accessible and in a format which is easy to understand

There was also a call for the Scottish Government to ensure Health Boards are aware of the changes, what they have responsibility for and to ensure their staff undertake appropriate training so that they are able to talk to patients about advance statements at the appropriate time, possibly as part of the discharge process.

Question 20 asked for views and suggestions on how the implementation of the 2015 Act could encourage the uptake of advance statements.

For those who responded to this question there was a wide held view that a national campaign utilising various tools i.e. social media, printed leaflets may provide the widest reach.

A few asked whether the Mental Welfare Commission could incorporate questions surrounding the promotion of advance statements as part of their annual inspection process. There was also a suggestion that a concerted effort is made to engage with professional and support groups to promote the benefits of advance statements.

Questions 21 - 24 asked for views on how implementation of these provisions might impact on equalities, business and organisations, privacy and children.

Those who responded stated that the revised Code of Practice should have a positive impact for professional staff and will encourage transparency, regular monitoring and clarity.

However those who identified a negative impact thought that business and public sector costs could rise due to the need for additional staff training combined with the increase in resource associated with higher workloads for those seeking advance statements and advocacy services.

A few concerns were raised in relation to the changes to named persons as they felt this could lead to family tensions however others thought that the additional safeguards were a positive step.

On the impact of privacy, respondents asked for transparency, clear guidance and the inclusion of family in decision making to ensure that their rights are respected.

Question 25 asked for views on any other related issues.

Among the general points raised were the importance of awareness of rights about named persons, advance statements and advocacy; and of making sure service users understood how and when these rights were changing. Also raised was the need for more guidance about the use of force, restraint and covert medication in the Code of Practice and guidance about information sharing between organisations.