Mental Health (care and treatment) (Scotland) Act 2003: Code of Practice Volume 1

Introduction to Volume 1

Introduction

Coverage of this volume

01 Volume 1 of the Code of Practice for the Mental Health (Care and Treatment) (Scotland) Act 2003 deals with a range of issues relating to the general framework within which the Act operates. These subjects include, for example, the duties placed on health boards and local authorities (Part 4); cross-border transfers of patients (section 289 and 290); and medical treatment (Part 16). It therefore provides Code of Practice material on Parts 1, 2, 3, 4, 14, 16, 17 (chapters 1 and 2), 19, 21, 22 as well as sections 229-231, 281-286, 289-291, 328 and 329.

02 This volume does not look at the range of issues about what can be termed "civil compulsory powers" which relate to an emergency detention certificate; a short-term detention certificate; an extension certificate; a compulsory treatment order; an interim compulsory treatment order; and absconding from any of these certificates/orders. These procedures are set out in Parts 5, 6, 7 and 20 of the Act and are discussed in Volume 2 of the Code of Practice.

03 Neither does this volume look at the procedures surrounding the compulsory care and treatment of a person with a mental disorder who has committed any form of criminal offence. These procedures which are set out in Parts 8 to 13 of the Act are examined in Volume 3 of the draft Code of Practice.

Structure of this volume

04 This volume is divided into 18 chapters. Chapter 1 provides a description of the principles of the legislation as set out in sections 1 and 2 of the Act and the definition of "mental disorder" and "medical treatment" (under sections 328 and 329). It then concludes with a brief overview of matters in relation to children and young people.

05 Chapter 2 describes the power and duties of the Mental Welfare Commission for Scotland as set out in Part 2 of the Act. It includes the role and functions of the Commission, and emphasises the importance of ensuring that notifications required by the Act are correctly made. Attached to Chapter 2 is an Annex setting out the notifications required, who must comply with each particular duty, and the timescales within which the notifications must be made.

06 Chapter 3 discusses the Mental Health Tribunal for Scotland (';the Tribunal';), which is an independent judicial body, established by Part 3 and Schedule 2 of the Act. The Tribunal is the body that makes the decisions in a wide range of situations on the care and treatment of patients who are subject to the Act. This chapter provides guidance on the types of proceedings the Tribunal determines.

07 Chapter 4 sets out the powers and duties on Health Boards, under Part 4 Chapter 1. Health Boards have further responsibilities and functions under other parts of the Act, and those relevant sections of the Code of Practice should also be referred to where appropriate.

08 Chapter 5 sets out the powers and duties on local authorities, under Part 4 Chapter 2. Local authorities have further responsibilities and functions under other parts of the Act, and those relevant sections of the Code of Practice should also be referred to where appropriate.

09 Chapter 6 examines issues which can be grouped together under the heading of patient representation. It therefore looks at a person's right to nominate a named person (Part 17 Chapter 1), to make an advance statement (sections 275 to 276) and a patient's right to advocacy (section 259).

10 Chapter 7 discusses the duty placed on local authorities and health boards with regard to the assessment of a person's needs for community care services (sections 227 and 228). This duty applies to both civilly detained patients and to mentally disordered offenders.

11 Chapter 8 describes what is meant at section 291 by "unlawful detention". It offers good practice guidance with regard to informal patients, who can be described as voluntary patients receiving care and treatment for mental disorder in hospital, and who are not subject to compulsion or detention under either the 2003 Act or the Criminal Procedure (Scotland) Act 1995.

12 Chapter 9 turns to the appointment of the patient's responsible medical officer and the designation of the patient's mental health officer (sections 230 and 229).

13 Chapter 10 covers the subject of medical treatment for mental disorder which may be given in accordance with Part 16 of the Act. It looks at, for example, safeguards which the Act puts in place with respect to certain treatments, such as electro-convulsive therapy ( ECT). It also examines issues relating to the giving of urgent medical treatment (under section 243).

14 Chapter 11 provides guidance on the preparation of a social circumstances report by the patient's MHO (Part 15 section 231) which relates to both civilly detained patients and to mentally disordered offenders.

15 Chapter 12 focuses on communications and safety and security in hospitals. This chapter provides guidance on the withholding of correspondence of people detained in hospital (sections 281 to 283) and the use and interception of telephone calls (sections 284 and 285). It then turns to the issues surrounding safety and security in hospitals, including the restriction of certain articles to be kept by patients; the taking of samples of body fluid and other materials; prohibitions and restrictions on visitors; and the search and surveillance of both patients and visitors.

16 Chapter 13 provides an overview of appeals against certain decisions of the Tribunal and the sheriff principal (Part 22). The majority of appeals against decisions of the Tribunal are made to the sheriff principal under section 320(2). However complex cases, where an appeal is made under section 320(2), may be remitted by the sheriff principal, or on the motion of any party to the appeal, to the Court of Session.

17 Chapter 14 discusses the procedures to be followed in relation to the cross-border transfer of detained patients (sections 289 and 290).

18 Chapter 15 deals with a range of other duties and powers under the Act, such as a local authority's duty to inquire into the situation of a vulnerable mentally disordered person and the associated warrants and orders which may be applied for in pursuance of this duty (sections 33, 35 and 293), an authorised person's warrant to take or retake a patient (section 292); a nurse's holding power (section 299) and the police's power to remove a mentally disordered person from a public place to a place of safety (section 297). It also describes what is meant at section 300 of the Act by a "place of safety" and provides guidance on the issues which local agencies would be expected to agree upon when designating places of safety within their locality.

19 Chapter 16 examines offences and provides best practice guidance in relation to Part 21 of the Act. The offences include sexual offences where someone is providing care services for a person with mental disorder; non-consensual sexual acts; ill-treatment and wilful neglect of a mentally disordered person, and of inducing and assisting a person to abscond.

20 Chapter 17 provides a glossary of important terms which are commonly used throughout this volume.

21 Chapter 18 gives a list of both statutory and non-statutory forms. Although there is no requirement to use the non-statutory forms, you are strongly recommended to do so as these draw attention to some procedural requirements under the Act. Failure to observe procedural requirements may invalidate either the application or certificate or report etc. From September 2005, all forms will be available on the Scottish Executive website at: www.scotland.gov.uk/health/mentalhealthlaw

Good practice versus best practice

22 The phrase "best practice" has been used throughout this Code of Practice in preference to the phrase "good practice". This is to provide consistency with the duty placed on the Commission by way of section 5 of the Act to "promote best practice" in relation to the operation of the Act. The use of the term "best practice" does not imply that any of the activities or duties described in that way is purely aspirational or less likely to be achieved than an activity or duty which might elsewhere be described as being indicative of "good practice".

Patient confidentiality

23 The section 1 principles require that any decision or course of action being considered (other than a decision about medical treatment) should as far as practical and reasonable, take into account the needs and circumstances of the patient';s carer and the importance of providing such information to any carer as might assist the carer to care for the patient. However, when a person is considering the information to be shared with the carer, it would be best practice to consider in every case the patient's right to confidentiality about their private medical details and treatment options, before information is supplied. It should also be noted that the Community Care and Health (Scotland) Act 2002 amends the Social Work (Scotland) Act 1968 to give carers a right to have their carer needs assessed by the local authority. It would be best practice to bring this assessment right to the notice of any carer providing a substantial amount of care where the carer appears to have unmet caring needs.

Interpretation of timescales under the Act

24 The Act uses a number of ways of counting the time period in relation to Orders, etc. In all cases, the relevant section of the Act is specific about how these time periods should be counted.

25 Where the Act specifies a number of hours these should be counted in hours from the time of signing the certificate, etc. Examples of this are the period of 72 hours provided for at section 36(8) and in section 44(5)(a) where the Act says "the period beginning with the granting of the certificate".

26 Where the Act specifies a number of days or weeks beginning at a certain point, these are counted from the beginning of the 1st day of the period. Examples of this are the period of 3 days provided for at section 44(5)(a) and the 7 day period in section 45(3)(b) where the Act states "before the expiry of the 7 day period beginning with the day on which the MHO is consulted…", and the period of 28 days provided for at section 44(5)(b) where the Act says "a period of 28 days beginning with … the beginning of the day on which …".

27 The Act also provides at some points for time periods (generally months or years) ending at a specific time. For example, section 165 states "the period of two years ending with the day on which the order would have ceased to authorise these measures…". This period will be counted back from the beginning of the day on which the order ceases to have effect.

28 At some sections the Act specifically says "working" days. Section 47(8) of the Act defines a "working day" as a day which is not:

• a Saturday;

• a Sunday; or

• a day which is a bank holiday under the Banking and Financial Dealings Act 1971 in Scotland.

29 At all other places where the Act mentions days, weeks or months these are calendar days, weeks, months as appropriate.

Note

The Act should be read in conjunction with all subordinate legislation made under the Act. The Code of Practice refers to the regulations, orders and directions made under the Act at appropriate points.

Readers should be aware in particular of two orders made under the Act - The Mental Health (Care and Treatment) Scotland Act 2003 Modification Order 2004 ( SSI No. 533) and The Mental Health (Care and Treatment) (Scotland) Act 2003 (Modification of Enactments) Order 2005 - which have amended the Act.

The Code points out where important changes have been made but practitioners may be advised to check the relevant orders themselves and to seek their own legal advice as required, when referring to the relevant provisions of the Act.

At the time of drafting this version of the Code, some of the regulations and orders referred to have not yet been approved by the Scottish Parliament.
It was felt that nonetheless it was helpful to the reader to include references prospectively. Practitioners are advised to check the mental health pages on the Scottish Executive website for current information and links to the latest versions of subordinate legislation on OPSI.

Note on Abbreviations

Although the use of abbreviations has been avoided wherever possible, the following are used commonly throughout this volume:

Commission:	Mental Welfare Commission
CPN:	Community Psychiatric Nurse
CTO:	Compulsory Treatment Order
ICTO:	Interim Compulsory Treatment Order
DMP:	Designated Medical Practitioner
MHO:	Mental Health Officer
RMO:	Responsible Medical Officer
Tribunal:	The Mental Health Tribunal for Scotland
The following pieces of legislation are also on occasion referred to in an abbreviated form:
"the 1995 Act":	Criminal Procedure (Scotland) Act 1995
"the 2000 Act":	Adults with Incapacity (Scotland) Act 2000
"the Act":	The Mental Health (Care and Treatment) (Scotland) Act 2003
Certain terms which are used regularly throughout this volume have a specific meaning in the context of the Act which it is important to note. Although these terms are defined in section 329 of the Act, it is worthwhile repeating some of them here.
"notice"/"notify"	notice in writing
"patient"	a person who has or who appears to have a mental disorder
"regulations"	secondary legislation made by the Scottish Ministers under the Act