A Consultation on proposals for a Mental Health (Scotland) Bill

Chapter 2 Mental Health (Care and Treatment) (Scotland) Act 2003

Introduction

6. Part 1 of the draft Bill makes provision for amendments to the 2003 Act to implement the changes the SG said it would bring forward in relation to the advance statements, named persons, medical matters and suspension of detention provisions. The remaining draft provisions within Part 1 deal with minor technical and drafting amendments which have been drawn to the SG's attention by stakeholders (see "other amendments" below).

Advance Statements

7. An advance statement sets out the way a person wishes to be treated, or not treated, for mental disorder in the event of becoming mentally unwell and unable to make decisions about treatment.

8. Two amendments are being proposed to existing provision. Firstly a duty is being placed on Health Boards to ensure that where they receive an advance statement this must be placed in the person's medical records and a copy must be sent to the Mental Welfare Commission (the "Commission"). Secondly, the Commission will be required to maintain a central register of advance statements which will be accessible by certain persons authorised by, or acting in connection with, the person who made the statement.

Question 1: Do you have any comments on the proposed amendments to the Advance Statement provisions?

Named Person

9. The statutory framework for a named person is set out at sections 250-258 of the 2003 Act. These sections deal with appointing or identifying a named person to support and represent the interests of a patient subject to proceedings under the 2003 Act. The SG intends to bring forward a number of amendments to these provisions.

10. The SG considers that a service user should have a named person only if they wish to have one. Provision is therefore made in the draft Bill to allow a person to make a written and witnessed declaration that they do not wish to have a named person appointed. The SG believes that an individual should give their written consent to acting as a named person and that the giving of this consent should be witnessed. This will enable the nominated person to discuss matters with the service user and obtain information about the role and responsibilities of a named person prior to their accepting the nomination.

11. Concerns have been expressed about the automatic entitlement of a named person to be involved in Tribunal and Court hearings relating to a patient. Provision is made in the draft Bill such that a named person will need to seek leave from the Tribunal before they can make certain applications to the Tribunal. Separate amendments will be made, through secondary legislation, to the Tribunal Rules covering matters such as: the removal of the named person's automatic right to be entered as a party to any proceedings involving the patient; the provision of papers (including confidential information on the patient) to a named person or third party in relation to any hearing. A separate consultation on draft amending regulations will issue next year.

12. Section 257 (Named person: Tribunal powers) gives the Tribunal powers to make certain orders about named persons. Application to appoint a named person can be made to the Tribunal under section 255 and where such an application is made, it is open to the Tribunal to make an order appointing a person specified in the order as a patient's named person. The Tribunal has intimated to the SG that it has difficulty in such cases in identifying a suitable individual to act as the named person as the Tribunal has no information to hand to assist it with this task.

13. As mental health officers (MHOs) are already required under the 2003 Act to take steps to establish the identity and/or suitability of any named person, the SG considers that the MHO would be best placed to provide the Tribunal with information to assist the Tribunal in coming to a decision under section 257. The draft Bill provides for this.

Question 2: Do you have any comments on the proposed amendments to the Named Person provisions?

Medical matters

Medical examination and CTOs

14. The Act currently requires that 2 medical reports accompany the application to a Tribunal by a MHO for a Compulsory Treatment Order (CTO). Each medical examination must be carried out by an "approved medical practitioner" (AMP) except that a patient's GP is permitted to carry out the second medical examination even although not an AMP. Several problems have been identified with the provision of medical reports for applications for CTOs. These relate to the involvement of GPs, perceptions of a lack of independence between the two reports and of perceived conflicts of interest.

15. The SG proposes moving to a new system for the granting of a CTO. One medical report will require to be obtained from an AMP and the patient's GP will be able to offer a second report commenting on the report prepared by the AMP. If no GP can be identified then the patient would retain the right to instruct an independent medical report as a protection. In the scenario where there has been no information provided by the patient's GP and no independent medical report instructed by the patient then the Tribunal could instruct an independent medical report using existing powers. An MHO report will continue to be required. Provision has been made in the draft Bill to reflect this policy intention.

Question 3: Do you have any comments on the proposed amendments to the medical examination and compulsory treatment order provisions?

Suspension of detention

16. Section 127 (Suspension of measure authorising detention) of the 2003 Act provides that where a patient is subject to a CTO that authorises detention in hospital, the responsible medical officer (RMO) can grant a certificate suspending that detention for up to 6 months. Sub-section 127(2) places a limit on the maximum amount of time for which a RMO may grant a suspension certificate for. In effect, this limits suspension to no more than 9 months in any 12 month period.

17. The SG considers that suspension of detention is an essential tool in the treatment of MDOs. It allows patients to attend Court hearings or clinical appointments and it facilitates the gradual testing out of a patient's response to increasing freedoms and the assessment of risk associated with this and their eventual return to the community. However, concerns have been raised that the application of the 9 month limit for allowing periods of suspension is arbitrary, complicated and difficult to operate in practice. To provide the RMO with greater flexibility and to mitigate against any potential disruption to a patient's rehabilitation, the SG proposes removing the 9 month restriction in sub-section 127(2).

18. Part 13 of the 2003 Act makes provision for a patient's RMO to grant certificates suspending detention authorised by certain orders or directions in the case of MDOs for a period not exceeding 3 months. Section 221 applies to patients subject to an Assessment Order (AO). Section 224 applies to patients subject to a Treatment Order (TO), an Interim Compulsion Order (ICO), a Compulsion Order and Restriction Order (CORO), a Hospital Direction (HD) and a Transfer for Treatment to Direction (TTD). The SG proposes to add a Temporary Compulsion Order (TCO) to this list of orders.

19. Currently, these certificates suspending detention can only be granted by the RMO with the consent of the Scottish Ministers. The SG proposes that in the case of AOs, TOs, ICOs, and now TCOs the prior consent of the Scottish Ministers will no longer be required in two specific circumstances. These are: to enable a patient to attend a court hearing or a necessary medical (including dental) appointment.

20. The overall limit of 9 months suspension of detention in any 12 month period matter discussed above in relation to section 127 is also of relevance in relation to section 224 and the draft Bill amends sub-section 224(4) accordingly.

Question 4: Do you have any comments on the proposed amendments to the suspension of detention provisions?

Information about extending a CTO

21. The SG considers there should be a requirement, to submit a report to the Tribunal, placed on MHOs in cases where the RMO makes a determination under section 86 (Responsible medical officer's duty to extend order).

22. Currently, where an RMO notifies an MHO, as they are required to do under the legislation, that they intend to make a section 86 determination, the MHO requires to carry out the duties set out at section 85 (Mental Health Officers duties: extension of order). These include giving a view to the RMO as to whether or not they agree with the proposed extension and setting out the reasons for reaching such a view. When the RMO, having considered the views of the MHO, decides to make a determination under section 86 extending the CTO, the RMO must prepare a record for the Tribunal and notify the relevant parties, all as set out in section 87 (Determination extending order: notification etc).

23. The draft Bill therefore provides that the MHO, on receipt of the notification of the section 86 determination and the copy of the report prepared by the RMO under section 87, must submit a report to the Tribunal containing the information listed at new section 87A(4) in the draft Bill.

Question 5: Do you have any comments on the proposed amendment requiring a MHO to submit a written report to the Mental Health Tribunal

Emergency, short-term and temporary steps

24. Section 36 of the 2003 Act provides for the granting of an Emergency Detention Certificate (EDC). Any medical practitioner may grant an EDC if the conditions set out at sub-section (7) are met. Before granting an EDC, the medical practitioner must examine the patient. A patient cannot be detained under emergency procedures if, immediately before the examination is carried out, the patient was detained in hospital under any of the authorisations listed in sub-section (2) (e.g. an extension certificate).

25. The Commission has raised with the SG whether the list of specified measures in sub-section 36(2) should be extended to include a reference to sub-section 113(5). Section 113 applies to patients who fail to comply with any of the measures specified in a community-based CTO or community-based interim CTO. The patient may be taken into custody and conveyed to a hospital where the patient may be detained for a period of up to 72 hours. A similar scenario arises in relation to Short Term Detention Certificates (STDCs) and so provision has been made to amend sub-sections 36(2) and 44(2) respectively by including a reference to sub-section 113(5).

26. Section 38 (Duties on hospital managers: examination, notification etc) applies where a patient is detained in hospital under the authority of an EDC granted under sub-section 36(1). Sub-section 38(3)(a) requires the managers of the hospital, within 12 hours from when an EDC is granted to notify persons specified at sub-section (4) (e.g. the patient's nearest relative) that an EDC has been granted. Section 37 (Notification by medical practitioner) requires a medical practitioner who grants an EDC to give managers of the hospital in which the person is detained notice of certain matters. In turn there is a legislative requirement placed on the hospital managers that within 7 days of receiving the section 37 notice to, in turn, give notice of the matters in that notice to persons specified in sub-section 38(4).

27. The Commission has expressed concern to the SG that the second more detailed notification may, in some cases, be inappropriate as this notification can provide quite a lot of sensitive information including the reasons for the granting of an EDC. The SG agrees with the Commission on this matter and the draft Bill enables hospital managers to exercise discretion as to whether notice in terms of sub-section 38(3)(b) is given to these specified persons.

28. The Commission has raised a further matter with the SG relating to the requirement placed on hospital managers to inform the Commission that an EDC has been granted. The Commission advise that this frequently amounts to no more than a message on an answer machine (given an EDC can be granted in the middle of the night) and this serves little useful purpose. In the interests of streamlining procedures, the SG agrees and the draft Bill repeals this provision.

29. Section 44 (Short term detention in hospital) of the 2003 Act sets out the procedure for granting a STDC. Amongst other matters this section provides that the AMP who grants the certificate is required to give the certificate to the managers of the hospital in which the patient is to be detained. Section 46 (Hospital managers' duties: notification) provides that the hospital managers must notify the patient, the patient's named person, any guardian of the patient and any welfare attorney of the patient of the granting of the certificate as soon as is practicable after the certificate has been produced. The SG considers that in addition to giving notice of the granting of a certificate to these persons the hospital managers should also send a copy of the STDC. The draft Bill provides for this

Question 6: Do you have any comments on the proposed changes to the emergency, short-term and temporary steps provisions?

Suspension of certain orders etc

30. Under the Act, the Tribunal can make an Interim CTO (ICTO) pending full determination of a CTO application. An ICTO can authorise any of the measures set out in sub-section 66(1) for a period of up to 28 days. The Tribunal can grant more than one interim order in respect of a patient provided the total period authorised by said orders does not exceed 56 days. Certain provisions in the 2003 Act apply to both CTOs and ICTOs, whilst others apply only to CTOs or ICTOs.

31. Section 43 sets out what happens where a patient is already subject to a CTO when an EDC is granted. Section 56 sets out what happens when a patient who is subject to a CTO is subsequently given a STDC. As it is possible for a patient subject to an ICTO to subsequently be given an EDC or a STDC, the SG considers that sections 43 and 56 should apply to both CTOs and ICTOs. The SG also considers that these sections should also apply to patients subject to Compulsion Orders (COs). The situation may arise where a community based CO is given but it becomes necessary to detain the person in hospital under a civil order to allow time to apply to the Tribunal to vary the terms of the CO. The draft Bill contains the necessary amending provisions.

Question 7: Do you have any comments on the proposed changes to the suspension of certain orders etc. provisions?

Removal and detention of patients

32. Sections 293 to 296 of the 2003 Act make provision to allow a MHO to apply to the sheriff for a removal order. Such an application can be made in relation to a person over 16 who has a mental disorder and where any of the circumstances in sub-section 293(2) apply (for example, the person lives alone and is unable to look after themselves). By virtue of subsection 293(3), a removal order authorises certain specified persons to enter premises for the purpose of removing the person subject to the order to a place of safety and to detain that person in that place for a period not exceeding 7 days.

33. Where a removal order is made, section 295 allows the person subject to the order, or any other person claiming an interest in the welfare of that person, to apply to the sheriff for an order recalling the removal order or varying it. The Commission has expressed its concern to the SG that it is not notified when such applications are made. This precludes the Commission from considering whether it should make a section 295 (Recall of variation or removal order) application to the sheriff. This absence of a duty to notify the Commission is at odds with other provisions in the 2003 Act dealing with similar situations. The draft Bill therefore imposes a duty on the MHO to notify the Commission.

34. The SG also proposes an amendment to section 299 (Nurse's power to detain pending medical examination) so that, where a patient is in hospital on an informal basis and is receiving treatment, the patient can be detained for up to three hours for the purpose of enabling the examination of the patient to be carried out by a medical practitioner. This three hour period of detention will apply regardless of whether a doctor is immediately available to carry out the examination.

Question 8: Do you have any comments on the proposed amendments to the removal and detention of patients provisions?

Timescales for referrals and disposals

35. Section 189 of the 2003 Act imposes a duty on the Scottish Ministers to refer a patient's case to the Tribunal two years after the making of the CORO if no reference or application has been made to the Tribunal during that period.

36. Difficulties can arise in some cases when considering whether a reference requires to be made to the Tribunal under this section if the two year time period is determined by taking account of dates when applications or references were made to the Tribunal during the preceding two years as opposed to the dates when these matters were determined by the Tribunal. For example, if a section 192 application is made by the patient the day before the anniversary of the CORO, but it takes 4 months before the Tribunal determines the case, a section 189 reference will require to be made 20 months later despite the Tribunal having reviewed the case within the previous two year period. The draft Bill provides that, in relation to section 189, the duty to refer only arises where no reference or application has been determined by the Tribunal in the preceding 2 year period.

37. A similar scenario arises in relation to section 213 which imposes a duty on the Scottish Ministers to refer a patient's case to the Tribunal two years after the making of the hospital direction or transfer for treatment direction if no reference or application has been made to the Tribunal during that period. The draft Bill provides that, in relation to section 213, the duty of the reference only arises in certain specified circumstances.

38. In various places throughout the 2003 Act certain persons are given the right to apply to the Tribunal to have certain certificates or orders revoked. For example section 50 allows the patient to apply to the Tribunal for revocation of an STDC. Where such an application is made, section 50 does not require the Tribunal to hear the case within a set timescale. This is common to many similar provisions in the 2003 Act which give a right to certain persons to apply to the Tribunal for revocation of the certificate or order to which the patient is subject.

39. The SG proposes to make a number of amendments to the 2003 Act in relation to the various timescales within which the Tribunal is to hear certain applications. As can be seen from the draft Bill provisions, the framing of the timescales differs from case to case. Should the Tribunal fail to comply with a time limit in a case, it must hear that case without undue delay and also state in the record of the proceedings that the failure occurred and the reason for the failure.

Question 9: Do you have any comments on the proposed amendments to the timescales for referrals and disposals provisions?

Support and services

40. Section 261 covers the provision of assistance to patients with communication difficulties. Sub-section 261(2) requires that this assistance is provided to the patient at any Tribunal proceedings, any review of the patient's detention or any medical examination carried out to assess the patient's mental disorder. The SG proposes extending this provision so that in addition to applying to patients detained in hospital by virtue of the 2003 Act or the 1995 Act and to persons not detained in hospital but subject to an order or direction listed at sub-section (1)(b) (e.g. a CTO), the duty should also apply to persons who are subject to an application for such an order to be made, or in respect of whom an order or directions is being considered. The draft Bill provides for this.

41. Section 24 (Provision of services for certain mothers with post-natal depression) places a duty on Health Boards to provide services and accommodation for mothers with post-natal depression. The duty consists of providing such services and accommodation as are necessary to ensure the mother is able, if she wishes, to care for the child in hospital. The draft Bill makes provision to widen the scope of this provision by replacing the words "post-natal depression" with the words a "mental disorder". A consequential amendment is made to the title of the section.

Question 10: Do you agree with the proposed amendments to the support and services provisions? If you disagree please explain the reason(s) why.

Arrangements for treatment of prisoners

42. Prisoners who become mentally unwell whilst serving a sentence of imprisonment can be transferred to a hospital under the authority of a TTD made by the Scottish Ministers under section 136 (Transfer of prisoners for treatment for mental disorder) of the 2003 Act. Cases may arise where the individual may still be in hospital at the expiry of their prison sentence and may need to remain subject to compulsory measures of treatment and care under the 2003 Act. In such cases a different order (a CTO) must be applied for to ensure continuity of treatment when the TTD ends.

43. The SG is proposing to make two amendments to the current legislative position. Firstly with respect to a CTO hearing, in the context of a patient subject to a TTD, to remove the obligation for the Convenor of the Tribunal Panel to be either the Tribunal President or to be selected from the Shrieval panel. This will lead to efficiencies in terms of some cost savings and the scheduling of cases. The second change relates to the process of applying for a CTO in cases where a TTD has been in place. The application and hearing for a CTO occur whilst the patient is still on a TTD. Currently the legislation does not provide that the Scottish Ministers must be notified of any such CTO application. The SG considers that would be helpful and the draft Bill makes provision for this.

44. Where it appears that a prisoner has a mental disorder and would benefit from being detained in hospital rather than prison, section 136 of the 2003 Act allows the Scottish Ministers to make a TTD authorising the transfer of the prisoner to a specified hospital, and their detention there so they can receive medical treatment. Currently there is no legislative requirement for the Scottish Ministers to consult an MHO when considering making such a direction.

45. MHOs are involved in other contexts where persons are made subject to a mental health order. For example, an MHO is heavily involved in the application process for a CTO. The SG therefore considers that the involvement of an MHO in the process for making a decision under section 136 would be beneficial and provision has been made for this in the draft Bill.

Cross border patients and absconding patients

46. Sections 289 (Cross-border transfer: patient subject to requirement other than detention) and 290 (Cross-border transfer: patient subject to detention requirement or otherwise in hospital ) currently do not enable regulations made under these sections to authorise the reception of patients from out-with the UK. Provision is made in the draft Bill to extend these regulation making powers to authorise the reception of persons from other EU member states. The purpose of receiving such persons into Scotland is to provide treatment for mental disorder.

47. Sections 301 (Absconding etc. by patients subject to CTO) to 310 (Regulations as to absconding by other patients) of the 2003 Act make provision for the taking into custody and returning of patients who have absconded from the place where they are detained or required to reside. With the exception of EDCs granted under section 36 of the 2003 Act, all mental health orders made under the 2003 Act or the 1995 Act which authorise detention in hospital also allow for the giving of medical treatment in accordance with Part 16 of the 2003 Act.

48. However there is no provision to authorise the giving of treatment to patients who abscond from detention in another jurisdiction and are taken into custody in accordance with section 309 (Patients from other jurisdictions) of the 2003 Act and the 2008 regulations^[4]. A situation could arise where a patient absconds in England and is taken into custody in Scotland and it may take a few days for the hospitals to organise transport for the return of the abscondee. If the patient was unwell and required treatment during this period, the hospital would have no authority to provide any treatment other than emergency treatment under section 243 (Urgent medical treatment) of the 2003 Act.

49. Sub-section 302(3) (absconding etc, by other patients) applies the provisions of section 303 (taking into custody and return of absconding patients) to patients who are subject to an ICTO, where they have absconded or otherwise failed to comply with a requirement or condition of the order or the certificate. The draft Bill amends sub-section 303(3) to ensure that a member of the staff from the establishment at which an ICTO patient is required to reside has the authority to take the person into custody and return them to the place where they absconded from.

Question 11: Do you agree with the proposed amendments to the arrangements for treatment of prisoners and cross border-and absconding patients provisions? If you disagree please explain the reason(s) why.