Delegation of Local Authority Functions: Mental Health (Care and Treatment) Scotland) Act 2003 and Adults with Incapacity (Scotland) Act 2000

PART 2: DELEGATION OF FUNCTIONS UNDER THE 2003 ACT

Background

12. The Scottish Government appreciates the role played, in the mental health system, by MHOs in carrying out what one might call their "core functions" under the 2003 Act. These core functions include: interviewing and advising patients; making applications for compulsory measures; and the preparation of social circumstances reports, to name but a few. We are also conscious that these functions must be carried out in an independent manner by MHOs, without undue influence from others in the mental health system. Therefore, as previously announced, it is not the Scottish Government's intention to interfere unnecessarily with these functions, or the MHO's position as an appointee of a local authority.

13. However, as indicated in the introduction, local authorities and health boards have an existing duty on them under the 2003 Act to cooperate with one another in the provision of relevant services, to ensure a joined up approach. In addition, since 2002, it has been possible for local authorities to delegate certain functions to NHS Boards under the Community Care (Joint Working etc) (Scotland) Regulations 2002 ("the 2002 Regulations").

14. The extent of what local authority, and in particular MHO, functions could and should be capable of being delegated then came into sharper focus in 2011 in the context of the Highland Integration Project. To enable that project, consideration required to be given by the Scottish Government as to what local authority functions were currently capable of being delegated under the 2002 Regulations, and which further functions might be required to be included in those Regulations by Scottish Ministers amending the 2002 Regulations.

Scottish Government policy considerations

15. The Scottish Government have been clear to maintain the separation of "core" MHO functions under the 2003 Act from health board functions. That separation between the "core" MHO functions on the one hand, and those under Part 4 (health board and local authority functions) of the 2003 Act which are delegable by the 2002 Regulations on the other, is an important concept in ensuring transparent and appropriate decisions are made about patients' care and treatment under this Act.

16. That historic framework was touched on by the Millan Committee in their 2001 Report as part of their wider consideration of the role of MHOs; Millan highlighted the importance of the MHO in the detention and ongoing care of a service user and noted that social workers' independence from the health service meant that they can give a genuinely independent view on compulsory measures, as well as supporting the service user's perception that there is independent oversight of his or her case. That historic rationale, which we consider still holds true today, is one which we were mindful of when considering any amendments to the 2002 Regulations last year.

17. Therefore, in the circular issued in May 2012 (attached at annex A) in relation to the Community Care (Joint Workings etc.) (Scotland) Amendment Regulations 2012 ("the 2012 Regulations"), we were at pains to reassure and stress that there was no change in this approach or policy under the 2002 Regulations, either as they stood originally or as amended at that time.

The 2012 Regulations - enabling further delegation

18. As discussed above, consultees will be aware that MHOs appointed by local authorities in terms of the 2003 Act, have various functions conferred upon them. They will also be aware that the 2012 Regulations amended the 2002 Regulations to add to the local authority MHO functions which may be delegated between Health Boards and Local Authorities. Most of these MHO functions included in the revised 2012 Regulation had previously been able to be delegated to Health Boards by Local Authorities in terms of the 2002 Regulations (see table below), and the new 2012 Regulations simply restated the existing position rather than making any material changes to the law.

19. It may also be noted that the majority of the MHO functions that could be delegated to Health Boards related to those in Part 4 of the 2003 Act, therefore not touching the "core" MHO functions.

20. The 2012 Regulations did go beyond the previous position, by now allowing the section 33 "Duty to inquire" to be delegated, if appropriate, to Health Boards. It was thought sensible to provide Health Boards with the ability to initiate inquires if, and only if, the functions under section 25, 26 and 27 of the 2003 Act had also been delegated.

21. It was also highlighted in the May 2012 Circular that, in practical terms - particularly if it was expected to require a warrant to enter premises under section 35 of the 2003 Act - the NHS body would require to work with a MHO, since an MHO is required to provide evidence to a sheriff or a justice of the peace when applying for a warrant under that section. Section 34 was unaffected by the 2012 Regulations, and so persons listed at section 34(3) are required to co-operate (subject to specific exceptions).

Table of MHO functions under the 2003 Act that can currently be delegated

Reason for consulting now

22. However, also as discussed in the May 20012 circular we did express the view that the forthcoming Integration of Adult Health and Social Care Bill would be an appropriate opportunity to revisit this issue and seek views on, amongst other things, which MHO functions could be delegable by Local Authorities to Health Boards.

23. In addition, some concerns have been raised with us since the 2012 Regulations were made, specifically around the inclusion of the section 33 (duty to inquire) within the functions which can be delegated to Health Boards.

24. Therefore, in light of that commitment, and recognising the section 33 concerns which have been raised with us, we are now seeking views on the specific issues around local authority functions under the 2003 Act. As noted above, it is NOT our intention to include at this time any of the "core" MHO functions as being capable of being delegated, namely any functions that sit outwith Part 4 of the 2003 Act. However, your views are also sought on this.