Mental Health (Scotland) Act 2015: consultation analysis report

Consultation Part 2 - Analysis

Question 1 asked for views on changes related to appeals and notifications for transfers from Scotland, including a right of appeal for a named persons or listed persons and the process for reissuing warrants after an unsuccessful appeal.

Of those who commented, 10 largely agreed with the proposals, 1 largely disagreed with the proposals and 8 gave a mixed response or no clear view.

Among the points made included the importance of clear guidance for named persons and listed persons where relevant, and to ensure that these provisions respect the privacy and autonomy of patients as far as possible.

Question 2 asked for views on extending a right to appeal an order to the Tribunal in limited circumstances for those transferring to Scotland.

Of those who commented, 15 largely agreed with the proposals, and 4 gave a mixed response or no clear view.

Among the points made include the importance of clear guidance for service users setting out their rights when they transfer, including their appeal rights and their rights around support such as advocacy and advance statements.

Question 3 asked for views on amending notifications where a patient is transferring to Scotland and they have no named person.

Of those who commented, 12 largely agreed with the proposals, 4 largely disagreed with the proposals and 3 gave a mixed response or no clear view.

Among the points made were the importance of respecting the views and wishes of the patient about sharing information, particularly with the primary carer, although many acknowledged that the proposed information to be shared was very limited.

Question 4 asked about changes to the requirements for a Designated Medical Practitioner ( DMP) visit for approving on-going medication for patients who have transferred to Scotland.

Of those who commented, 6 largely agreed with the proposal to change this DMP timescale to four weeks, 5 suggested the timescales should largely stay the same and 4 gave a mixed response or no clear view. Of those who commented on the need for a second DMP visit within two months, 5 largely agreed with the proposals that no second visit would be needed, 1 largely disagreed with the proposals and 3 gave a mixed response or no clear view.

Reasons for agreeing with the proposed changes included that the patient may have been on the treatment for some time before transfer. Reasons for disagreeing included that this would be quite early in the new RMO's treatment of the patient and assessment of their requirements, as well as practicality concerns. There was also a suggestion that patients should have the option of requesting a DMP visit sooner than the statutory timescale.

Question 5 asked if respondents had any suggestions for further changes that should be made to the regulations governing reception of patients into Scotland.

Comments included bringing in a duty to inform patients transferring to Scotland about safeguards such as independent advocacy, advance statements and named persons; and giving the Commission discretion about visiting patients who have transferred, particularly if the extended appeal right proposed at question 2 is introduced or alternatively reducing that timescale to three months. There were also comments around provision of information on legislation in other EU countries when relevant and the importance of providing appropriate support to children and young people who transfer to Scotland.

Question 6 asked respondents whether they agreed with proposals to amend certain timescales for transfers of patients from Scotland to outside the UK.

Of those who commented, 15 largely agreed with the proposals, 1 largely disagreed with the proposals and 1 gave no clear view.

Alongside the general agreement to these provisions were comments noting the importance of ensuring that the patient is supported in understanding the transfer process, particularly where they decide to agree to a quicker transfer. There was also a suggestion that transfers earlier than 28 days after the effective date of the warrant should be possible where it has been demonstrated to the satisfaction of Scottish Ministers that appropriate care and treatment is available to the patient as soon as they transfer, and an early transfer is of maximum benefit to the patient.

Question 7 asked for views on transferring of patients from Scotland who are subject to suspension of detention measures.

Of those who commented, 9 were largely of the view that cross-border transfers should be permitted for patients who were subject to suspension of detention measures, 2 largely disagreed with this and 5 gave a mixed response or no clear view.

Among the comments made, it was noted that that a clearer process could be useful to those wanting to stay nearer family or support outwith Scotland or for testing out in community care that is not available in Scotland. Other comments expressed concern about how this could work with parallel legislation and with the conditions set out by the RMO that may accompany suspension of detention. The importance of patient consent to such a transfer was also noted.

Question 8 asked for views on proposals to allow quicker transfers of patients from Scotland where all parties consent and to make it easier to vary warrants in certain circumstances.

Of those who commented, 11 largely agreed with both proposals and 1 largely disagreed with both proposals. In addition, 3 largely agreed with the proposal on quicker transfers and 1 gave no clear view, and 3 largely agreed with the warrant proposals, 2 largely disagreed and 1 gave no clear view.

Among the comments made were those welcoming the suggestion that certain transfers would be able to take place more quickly, alongside those noting the importance of ensuring the patient and their relatives and carers were supported in understanding the process and setting out their views. This included their ability to withdraw their consent at any time. Also noted was the importance of ensuring that patients were clear about which hospital they were being transferred to and that it was not one with which they had negative associations; and the importance of ensuring that the destination bed was appropriate to their needs and not more restrictive.

Question 9 asked if respondents had any suggestions for further changes that should be made to the regulations governing transfer of patients from Scotland.

The comments mainly focused on the importance of supporting patients to understand and realise their rights both in relation to the transfer and in the jurisdiction to which they are moving. There were also comments in the consultation suggesting that timescales are set out for Scottish Ministers decisions on transfers and timescales for setting a Tribunal hearing for an appeal.

Question 10 asked about whether the same process for patients transferring from elsewhere in the UK should apply to patients transferring from elsewhere in Europe.

7 respondents indicated that there should be different processes or additional safeguards and conditions, 7 indicated that they considered there should be largely the same process and 5 gave a mixed response or had no clear view.

The main additional or new safeguard suggested was the ability to appeal the equivalent order decision of the RMO to the Tribunal. Respondents also commented on the need for clarity should Scotland's status within the EU change.

Question 11 asked for any further views on cross-border transfers.

There were a limited number of comments which included reiterating the importance of good practice and guidance in supporting patients and providing information to protect patients' rights.

Question 12 asked for views on whether regulations for treating patients who have absconded from outwith Scotland should apply where the patient consents to the treatment.

7 respondents marked that they agreed and 2 that they disagreed with the proposal. Of those who only commented, 6 suggested they were broadly in agreement with the proposal, 2 broadly disagreed and 2 did not give a clear view either way.

Comments included that if a patient was an order elsewhere and consented, then using the regulations would be less restrictive than placing the patient on a short-term detention certificate as well. There were also comments about the need to be clear as to the safeguards that would apply in these circumstances and that these may be significantly lower than those attached to a Short Term Detention Certificate ( STDC).

Question 13 asked for views on whether the regulations should apply provisions related to urgent treatment to patients who have absconded from other jurisdictions.

6 respondents marked that they agreed and 2 that they disagreed with the proposal. Of those who only commented, 5 suggested they were broadly in agreement with the proposal, 5 broadly disagreed and 1 gave a mixed response.

Among the comments were some that felt this would help treat a patient so that they could be well enough to return to their home jurisdiction, and that 72 hours would be an appropriate timescale for this treatment. Others commented that there needed to be safeguards in place and that treatment should not be automatically authorised following detention.

Question 14 asked for views about if there were any other treatment circumstances that should be permitted under these regulations.

2 respondents marked that they thought there were other circumstances and 4 that there were not. Of those who only commented, 2 suggested they were broadly in agreement with there being other circumstances, 5 broadly disagreed and 3 gave a mixed response or no clear view.

Comments included that it could be of benefit to the patient to ensure treatment continued, rather than being stop-start and allow for depot treatments. Others commented that as this could be longer treatment or treatment with a long-term effect, a short-term detention certificate would be more appropriate and has clear safeguards, as well as reiterating concerns expressed at questions 12 and 13.

Question 15 asked for views on whether a timescale should be set out, either in regulations or guidance, for the length of time the regulations should apply before a short-term detention certificate should be issued.

6 respondents marked that they agreed and 2 that they disagreed with the proposal. Of those who only commented, 5 suggested they were broadly in agreement with the proposal, 3 broadly disagreed and 3 gave a mixed response or no clear view.

Comments noted either 7 days or 72 hours (the equivalent to an emergency detention certificate) could be the most appropriate timescale limit for any regulation to apply. Guidance was welcomed as important, but several respondents commented that this should be underpinned by clear regulations.

Question 16 asked for views on circumstances and safeguards related to return of patients who have absconded from other jurisdictions.

11 respondents suggested they broadly agreed there should be safeguards for the return of the patient in certain circumstances, 2 broadly suggested there were not and 2 gave a mixed response or no clear view.

Among suggested things to take into account were human rights concerns with safeguards in the original jurisdiction, the patient's views and reasons where they did not want to return and whether the patient still met detention criteria.

Question 17 asked for views about regulations allowing RMOs to specify classes of persons who may take certain absconding patients back in to custody.

13 respondents suggested they were broadly in agreement with the proposal and 4 gave a mixed response or no clear view.

Some respondents suggested that appropriate training and guidance be made available to the people who are likely to have this role, as well as ensuring that this did not lead to a rise in the use of police stations as a place of safety.

Question 18 asked for views on minor changes to notification requirements for certain absconding patients.

5 respondents marked that they agreed and 2 that they disagreed with the proposal. Of those who only commented, 7 suggested they were broadly in agreement with the proposal, 2 broadly disagreed and 1 gave no clear view.

Comments included noting instances where it would be helpful for the Commission to monitor absconding and the importance of avoiding unnecessary duplication.

Questions 19 to 22 asked for views on proposals for transitional and savings provisions.

8 respondents marked that they agreed with the proposed transitional arrangements for suspension of detention. Of those who only commented, 6 suggested they were broadly in agreement with the proposal, and 1 gave no clear view.

8 respondents marked that they agreed with the proposed general approach to transitional and savings provisions. Of those who only commented, 5 suggested they were broadly in agreement with the proposal, and 1 gave a mixed response. 6 respondents suggested they were broadly in agreement with the proposed detailed approach to individual transitional and savings provisions.

Among the comments on what would be useful for guidance was ensuring guidance was appropriate or tailored for individual professional groups and welcoming the use of case studies and flowcharts. One respondent suggested that there should be a single approach to all transitional provisions, with the new provisions only applying to any order or certificate that is made after the coming into force date.

Questions 23 to 26 asked for views on how implementation of these provisions might impact on equalities, business and organisations, privacy and children.

Amongst the comments on equalities, respondents noted the positive impact for service users from the proposals such as rights of appeal related to cross-border transfers, that patients' rights needed to be more strongly considered in the proposals and the need for certain training to ensure there was not a negative impact on service users.

Amongst the comments about the impact on business and organisations, respondents noted concerns for increased workloads for new duties and the need to provide training on changes, but also that certain provisions such as suspension of detention will be less complex.

On children's rights, comments included the importance of ensuring that cross-border transfers of children and young people are supported by consideration for other factors such as education and recreational opportunities and the importance of supporting children and young people for example through independent advocacy. On privacy, the comments focused on ensuring any new proposals to share limited information with carers are carefully considered for their impact on patient privacy.

Question 27 asked for any further views on relevant issues not raised by the consultations.

Issues raised included concerns about numbers of mental health officers, the importance of rights underpinning the implementation of the 2015 Act, that guidance should focus on ways of supporting patients to make decisions, and the importance of clear and accessible guidance.