Implementation of the Mental Health (Scotland) Act 2015: consultation, part 2

Annex A

Other transitional and savings provisions

The following sets out our proposals for transitional provisions in relation to individual sections of the 2015 Act. Where helpful we have used examples to illustrate how the proposed transitional provisions might work in different scenarios. This is likely only to be of interest to those who work with the Act on a day-to-day basis, as in most cases, the transitional provisions will apply for only a short time.

The examples are to demonstrate the interaction of dates and processes only, rather than necessarily reflecting best practice. All these examples are based on 1 May as the commencement date. This is for illustrative purposes only, as the commencement date is yet to be proposed. Further details of the exact provisions of the 2015 Act can be found in the Explanatory Notes:

http://www.legislation.gov.uk/asp/2015/9/notes/contents

Section 1 of the 2015 Act
What the provision does:
Reduces period of initial 6-month CTO or 56 day maximum of an Interim Compulsory Treatment Order ( ICTO) if a patient has been detained under an extension certificate or for 5 day period for arranging a hearing, meaning that the maximum length of the Compulsory Treatment Order ( CTO) or ICTO dates from the end of the original Short Term Detention Certificate ( STDC).

Proposed transitional provisions:
That this applies only to CTOs or ICTOs where the process for application for begins on or after the commencement date, i.e. when both the medical examinations required under s57(2) of the Act take place on or after the commencement date.

Why we have suggested this:
This means that when an application is made for a CTO, the patient will only be subject to one set of provisions throughout the process, from medical examination to the decision of the Tribunal whether or not to grant a CTO.

Examples in practice (with 1 May used as the commencement date):
Patient A's CTO (or ICTO) is granted by the Tribunal on 20 April but will run past the commencement date - as the medical examination took place before 1 May, the 2015 Act provisions do not apply.

Patient B's ICTO is granted on 20 April and, following a Tribunal hearing, a CTO is granted on 20 May - as the medical examination took place before 1 May, the 2015 Act provisions do not apply.

The first medical examination for the CTO application for Patient C takes place on 29 April and the second on 2 May. The application is made by the Mental Health Officer ( MHO) on 10 May - as the first medical examination took place before 1 May, the 2015 Act provisions do not apply.

Both the medical examinations under s57(2) for the CTO application for Patient D take place on 2 May - the 2015 Act provisions apply.

Section 2 and section 50
What the provisions do:
Section 2 requires MHOs to provide a report to the Mental Health Tribunal when a CTO is being reviewed (where diagnosis has changed or where MHO disagrees with, or does not give view on, decision to extend a CTO.) Section 50 makes this provision for Compulsion Orders ( CO).

Proposed transitional provisions:
That this applies to all relevant cases where the section 86 (2003 Act) determination (for CTOs) or the section 152 (2003 Act) determination (for COs) is made by the Responsible Medical Officer ( RMO) on or after the commencement date.

Why we have suggested this:
This determination is made when there must be a mandatory review of the order. The RMO must determine under section 86 or 152 if the order is still required. This means that the new provisions will only apply where the formal process for reviewing the order in these circumstances begins after the commencement date.

Examples in practice (with 1 May used as the commencement date):
The RMO makes the section 86 determination on 27 April in relation to Patient A, the MHO gives their view disagreeing with assessment on 2 May and hearing takes place later in May - as the RMO's determination was made before 1 May, the 2015 Act provisions do not apply.

The RMO makes a section 86 determination on 2 May in relation to Patient B. B's diagnosis has changed since the CTO was granted or last reviewed by the Tribunal - the 2015 Act provisions apply and the MHO must provide a report to the Tribunal.

Section 4 and Section 5
What the provisions do:
These sections contain two main provisions; section 4 relates to Emergency Detention Certificates ( EDC) and section 5 to STDCs.
(a) Adds category of patients who are recalled to hospital for non-compliance with order to those who cannot be detained under EDC or STDC.
(b) Changes requirements around notifications for EDCs or STDCs.

Proposed transitional provisions:
(a) That this applies only to certificates granted on or after the commencement date and does not invalidate any certificate already granted in these circumstances.
(b) That this only applies to certificates granted on or after commencement date.

Why we have suggested this:
This will avoid any certificate made under the current provisions shortly before the commencement date being inadvertently invalidated as it did not comply with provisions that came into place between the making of and expiry of the certificate.

Examples in practice (with 1 May used as the commencement date):
(a) An STDC is granted for Patient A on 30 April in the circumstances described above - certificate remains valid. A certificate cannot be granted in these circumstances from 1 May onwards.
(b) An STDC is granted for Patient B on 30 April but hospital managers are not able to notify all relevant parties until the next day - as the certificate was granted before the commencement date, the 2015 Act provisions do not apply.

Section 7 and Section 8
What the provisions do:
Provide that measures authorised by COs or interim CTOs are suspended (with exception of giving medical treatment under part 16) when patients become subject to EDC (section 7) or an STDC (section 8), in same way as currently for CTOs.

Proposed transitional provisions:
That this only applies to EDCs or STDCs granted in these circumstances on or after the commencement date regardless of when the CO or ICTO was granted.

Why we have suggested this:
This should be the simplest option as practitioners will only have to check the date that the EDC or STDCs is granted to determine whether 2015 Act provisions apply.

Examples in practice (with 1 May used as the commencement date):
A community-based interim CTO is granted for Patient A on 23 April but A becomes more unwell an STDC is granted on 29 April - as the STDC is granted before the commencement date, the 2015 Act provisions do not apply.

A community-based CO is granted for Patient B on 26 March but B becomes more unwell an STDC is granted on 2 May - as the STDC is granted after the commencement date, the 2015 Act provisions do apply and the measures authorised by the interim CTO are suspended.

Section 11-13 and sections 47-48
What the provisions do (see explanatory notes for full details of individual sections):
(a) Allow a range of certificates, orders and directions under the Act to specify detention in a particular hospital unit.
(b) Allow transfers between specific units within the same hospital where a unit is specified in the certificate, order or direction in certain circumstances.

Proposed transitional provisions:
(a) That this applies where the process for initiating, renewing or amending certificates, orders and directions begins on or after the commencement date.
(b) That these apply to all orders that specify a unit from the commencement date.

Why we have suggested this:
(a) This will ensure that, in line with other provisions of this type, the process will take place under the same provisions from start to finish.
(b) This will mostly apply to any order granted under the new provisions described at (a) and will make clear that the provisions described at (b) apply to these orders as soon as they are granted. If there were any circumstances where an order etc already specified a unit, these provisions would also apply to them as our view is this would be simplest and clearest.

Examples in practice (with 1 May used as the commencement date):
The process for applying for a CTO for Patient A (e.g. medical examinations and MHO interview) take place between 27-29 April. The CTO is granted by the Tribunal on 3 May - as the process to apply for the order began before the commencement date, the 2015 Act provisions do not apply.

An STDC for Patient B on 15 April. The clinical team decide to apply for a CTO for Patient B and the first medical examination in relation to this application takes place on 5 May - as the process to apply for the relevant order began after the commencement date, the 2015 Act provisions apply and the order can specify a unit. The provisions relating to transfer between units also apply.

Section 19
What the provisions do:
Introduces requirement for MHOs to notify the Commission as to (a) whether any application for a removal order under section 293 is refused or granted, and (b) the outcome of any application to the sheriff under section 295 seeking recall or variation or a removal order.

Proposed transitional provisions:
(a) Applies to any order applied for on or after the commencement date.
(b) Applies to any application for recall or variation made on or after the commencement date.

Why we have suggested this:
This will avoid MHOs inadvertently not fulfilling a duty in relation to an order made under the current provisions shortly before the commencement date as the provisions changed between the making of and expiry of the certificate.

Examples in practice (with 1 May used as the commencement date):
(a) An MHO applies for a removal order for Patient A on 30 April and the decision is made on 1 May - the 2015 Act provisions do not apply (although it is best practice in the Code of Practice)

(a) An MHO applies for a removal order for Patient A on 2 May - the 2015 Act provisions apply and the Mental Welfare Commission must be notified of decision.

(b) A removal order is granted for Patient B on 28 April. An MHO applies for the recall or variation of the removal order on 30 April and the decision is made on 1 May - the 2015 Act provisions do not apply (although it is best practice in the Code of Practice)

(b) A removal order is granted for Patient C on 28 April. An MHO applies for the recall or variation of the removal order on 1 May and the decision is made on 2 May - the 2015 Act provisions apply and the Commission must be notified of decision.

Section 21
What the provision does:
Provide that two year referrals of CTOs, COs, Compulsion Orders with Restriction Orders ( CORO), Transfer for Treatment Directions ( TTD) and Hospital Direction ( HD) to the Tribunal are required where an application has not been determined by the Tribunal within the two years prior to the 'relevant day' (the anniversary of the granting of the order), rather than whether an application for review has been made in that time.

Proposed transitional provisions:
That this applies to orders the next time the 'relevant day' occurs on or after the commencement date.

Why we have suggested this:
The determination whether the order or direction must be referred to the Tribunal is made on or shortly after the 'relevant day'. This should be simplest as those making the determination will be able to tell clearly and easily if the new provisions apply.

Examples in practice (with 1 May used as the commencement date):
'Relevant day' falls on 28 April, though determination whether referral required until 24 May - 'relevant day' falls before commencement date so 2015 Act provisions do not apply.

'Relevant day' falls on 3 May - 'relevant day' falls after commencement date so 2015 Act provisions apply and referral to the Tribunal is now only required if the application has not been determined in the previous two years rather than made.

Section 26
What the provision does:
(a) Requires copy of advance statements to be placed with person's medical records. Requires certain information, including the location of the advance statement, to be sent to Commission to be held in register which can be accessed by certain persons.
(b) Places duty on Health Board to publicise information about support it offers on making an advance statement.

Proposed transitional provisions:
Only required for (a). Propose that this applies to existing advance statements held by Health Boards. Health Boards would be given a short compliance period from the commencement date and we would propose this is 3 months.

Why we have suggested this:
Part of the purpose of the provision is to give service users confidence that medical teams will be aware of their statement and also to ensure that the Commission has an accurate overview of the number of valid advance statements. These provisions will ensure that all existing advance statements are included. The compliance period will allow Health Boards sufficient time to gather the relevant information, as advance statements may be held in a variety of areas in the Health Board depending on what services the service user has had contact with.

Examples in practice (with 1 May used as the commencement date):
Health Board has been given a copy of an advance statement on 1 February - Health Board must ensure that it is placed with records and the relevant information sent to Commission by 31 July.

Health Board is given a copy of an advance statement on or after 1 May - the statement must be placed with records and the information sent to the Commission as soon as is practicable.

Section 30
What the provisions do:
Adds guardian and welfare attorneys to people who must be consulted before certificate allowing treatment under certain sections of Part 16 is granted.

Proposed transitional provisions:

That this applies only to certificates which are granted after the commencement date.

Why we have suggested this:
This was intended to provide an additional safeguard in particular where a patient no longer has a named person. If it applied to existing certificates as well, many would have to be reissued on or shortly after the commencement date, adding a burden to practitioners and potential uncertainty for patients.

Examples in practice (with 1 May used as the commencement date):
A treatment certificate is granted for Patient A on 1 April and authorises treatment for several months - the 2015 Act provisions do not apply and the certificate remains valid.

A treatment certificate is granted for Patient A on 4 May and authorises treatment for several months - the 2015 Act provisions apply and any guardian or welfare attorney must be consulted.

Section 35
What the provisions do:
(a) Provides that for proceedings relating to an application for a CTO in respect of a patient subject to a TTD or an HD, the convener does not have to be the President of the Tribunal or a member of the Tribunal who serves as a sheriff.
(b) Adds requirement to give notice to Scottish Ministers where CTO applied for, for patients subject to HD and TTD.

Proposed transitional provisions:
(b) That it applies only where the process for application begins on or after the commencement date.

Why we have suggested this:
(b) This will avoid practitioners inadvertently not fulfilling a duty in relation to an order made under the current provisions shortly before the commencement date as the provisions changed between the making of and expiry of the certificate.

Examples in practice (with 1 May used as the commencement date):
(b) The medical examinations for the CTO application for Patient A and the CTO application is determined by the Tribunal on 3 May - as the first formal part of process began before 1 May, the 2015 Act provisions do not apply.

(b) The medical examinations for the CTO application take place on 1 and 3 May and the MHO interview on 4 May - as the first formal part of the process began on the commencement date, the 2015 Act provisions apply and notification must be given to Scottish Ministers.

Section 40 and sections 41-44
What the provisions do:
(a) Changes the way in which timescales for removal of a person to hospital under an assessment order ( AO), treatment order ( TO), interim compulsion order ( ICO), compulsion order and hospital direction are calculated.
(b) Section 40 also allows the court to make an order extending the AO for 14 days, instead of 7 days at present.

Proposed transitional provisions:
That these changes would only apply to orders where the criminal proceedings for the order falls on or after the commencement date

Why we have suggested this:
This means that when an application is made for an order or direction listed above, the patient will only be subject to one set of provisions throughout the process, from the beginning of the proceedings until the granting of the order or direction by the court.

Examples in practice (with 1 May used as the commencement date):
The first court appearance for patient A is on 29 April and an assessment order is made. In late May, an application to extend the AO is made - as the proceedings began before the commencement date, the 2015 provisions do not apply.

The first court appearance for patient B is on 3 May - the 2015 provisions apply and, if needed, the court can further extend the assessment order of up to 14 days.

There are also a small number of sections of the 2015 Act where that require simple transitional provisions that state that the provision applies from on or after the commencement date. The table below sets these out.

	Description of provision	Proposal
3	Allows transfer of those detained in hospital on the authority of an interim CTO in the same way as those subject to CTOs.	That this applies to any proposed transfer on or after the commencement date, whenever the ICTO was granted.
20	Amends nurse's power to detain so that patient can be detained for up to 3 hours for the purpose of enabling an examination of the patient to be carried out by a medical practitioner.	That this applies only to incidences beginning on or after the commencement date.
31	Extends requirement to provide accommodation to mothers to allow them to care for a child up to a year old beyond those with post-natal depression to all mothers with a mental disorder. Also adjusts duty to allow the welfare of the child to be taken into account more clearly.	That the changes to the duty apply from the commencement date.
33	(i) Extends scope of absconding regulations to other EU countries and allows regulations to set out how Part 16 of 2003 Act can be applied to patients absconding from other jurisdictions. (ii) Adds interim CTO to provisions about absconding for patients subject to CTO. (iii) Allows for regulations to specify persons authorised by patient's RMO as persons who can take absconding patients into custody.	(i) and (iii) will be dealt with in regulations. (ii) That applies to all relevant patients from the commencement date.
46	Give the RMO authority to transfer a person subject to an AO, a treatment order, an interim CO, or a temporary CO to a hospital other than that originally specified by the court. Involves consent of Scottish Ministers.	That this applies to all orders, regardless of when made.
49	Makes consequential repeals to section 9 of the Crime and Punishment (Scotland) Act 1997, and paragraph 66 of schedule 7 to the Criminal Justice and Licensing (Scotland) Act 2010, relating to power to specify hospital units.	Would specify, if required, that this does not impact the validity of existing orders which rely on 1997 Act to authorise detention in a specified hospital unit.