Mental Health (care and treatment) (Scotland) Act 2003: Code of Practice Volume 1
Volume 1 of the Code of Practice for the Mental Health (Care andTreatment) (Scotland) Act 2003 deals with a range of issues relating tothe general framework within which the Act operates.
Chapter 2: Mental Welfare Commission (Part 1)
Role of Mental Welfare Commission for Scotland
01 The Mental Welfare Commission for Scotland ("the Commission") is an independent organisation which carries out functions under the Act, the Adults with Incapacity (Scotland) Act 2000 and other relevant legislation.
General Duties
02 Section 5 of the Act places a duty on the Commission to monitor the operation of the Act and to promote best practice in relation to its operation. Specifically, it requires the Commission to promote the observance of the matters set out in Part 1 of the Act including the principles for discharging functions under the Act. These principles are discussed in Chapter 1 of this Volume of the Code of Practice and include giving patients information, taking account of their wishes and involving them in their treatment.
03 The Act does not empower the Commission to enforce these matters. However, it will have a significant role in highlighting situations where best practice is not being followed and making recommendations on how practice could be improved.
04 Section 6 of the Act requires the Commission to bring such matters concerning the operation of the Act as the Commission considers ought to be brought to the attention of the Scottish Ministers.
Particular Functions
05 Section 7 of the Act requires the Commission to bring to the attention of Scottish Ministers; a local authority; a Health Board; the Scottish Commission for the Regulation of Care; or others that the Commission considers appropriate, any matter of general interest or concern with regard to the welfare of any persons who have a mental disorder that the Commission considers ought to be brought to their attention.
06 Section 8 of the Act deals with the situation where it appears to the Commission in relation to a patient's case that:-
the patient is unlawfully detained;
the patient may be, or have been, subject to ill-treatment neglect or some other deficiency in care or treatment;
the patient may be living alone, or without care, and unable to look after himself, his property or his financial affairs;
because of the mental disorder, the patient's property
may be suffering, or have suffered, loss or damage; or
may be, or may have been, at risk of suffering loss or damage, or
the patient is detained in hospital under the Act or the Criminal Procedure (Scotland) Act 1995 and there may be some impropriety in relation to that detention.
07 If the Commission considers that a relevant person has or may have powers or duties which could prevent or remedy these circumstances or assist in doing so it must bring the facts of the case to the relevant person and, if it considers it appropriate, make recommendations regarding the case to the relevant person. "Relevant persons" are those listed in section 8(3) and include the Scottish Ministers, the Public Guardian, a local authority; and Health Boards.
08 Under section 9, the Commission has a duty to give advice on any matter arising from the Act to the following persons where that person has agreed that the matter should be referred to the Commission:-
the Scottish Ministers;
a local authority;
a Health Board;
a Special Health Board;
the Scottish Commission for the Regulation of Care; and
the Scottish Public Services Ombudsman.
09 Under Section 10, the Commission may publish information or guidance about any matter relevant to its functions and its conclusions in relation to an investigation under section 11(1), an inquiry under section 12(1) or visits under sections 13(1) or (3) of this Act. It may also publish information which comes to light in the course of these investigations, inquiries or visits. The Commission may also publish any advice given to the persons listed in paragraph 8 if they are in agreement.
10 Section 11 of the Act gives the Commission power to investigate a patient's case and to make such recommendations as it considers appropriate where any of the circumstances listed in section 11(2) of the Act apply. Those circumstances include that the patient is unlawfully or improperly detained or may be or have been subject to ill-treatment or other deficiency in care or treatment.
11 Section 12 gives the Commission the power to conduct an inquiry to investigate a case under section 11(1) of the Act. The Commission may appoint any person it considers appropriate to chair or conduct the inquiry and to report the findings. Proceedings in an inquiry under this section will have the privilege of proceedings in a court.
12 Section 13 provides that a person authorised by the Commission will visit as often as the Commission considers appropriate, patients who are detained in hospital under this Act or the 1995 Act. Visits may also involve patients who, though not detained in hospital, are subject to:-
a compulsory treatment order;
an interim compulsory treatment order;
an emergency detention certificate;
a short-term detention certificate;
a compulsion order;
an interim compulsion order;
an assessment order;
a treatment order;
a hospital direction; or
a transfer for treatment direction.
13 The Commission also has a duty under this section to visit patients subject to certain provisions of the Adults with Incapacity (Scotland) Act 2000.
14 A person authorised to do so by the Commission under section 14, may, in connection with the discharge of any of its functions under this Act or the 2000 Act, interview in private, any patient or any other person whom the authorised person considers appropriate.
15 Under section 15, an "authorised person" may carry out in private, a medical examination of the patient in connection with the discharge of any of the Commission's functions. The authorised person must be either a medical commissioner or a member of staff of the Commission who has such qualifications and experience as is prescribed in regulations. The Mental Welfare Commission for Scotland (Authorised Persons) Regulations 2005 ( SSI No. 205) provide that an authorised person shall be a medical practitioner and either a member or a fellow of the Royal College of Psychiatrists or have a minimum of four years whole-time equivalent experience of providing psychiatric services.
16 Section 16 provides that a person authorised by the Commission may, in connection with the discharge by the Commission of any of its functions under this Act or the 2000 Act, require any person holding a patient's medical records to produce them for inspection.
17 Section 17(1) makes provision for certain persons to afford the Commission all facilities necessary to enable them to discharge their functions under the Act. The persons are:-
the Scottish Ministers;
a local authority;
a Health Board;
a Special Health Board;
a police force;
the managers of a registered care service;
the managers of:
a prison; or
a young offenders institution;
the Scottish Commission for the Regulation of Care; and
the Scottish Public Services Ombudsman.
18 Increasingly, services are provided by voluntary and other independent agencies. The Mental Welfare Commission for Scotland (Prescribed Persons) Regulations 2005 ( SSI No. 176) have therefore prescribed the following to be included in the list of persons under section 17(1):-
any persons who provide, under contract to, or by arrangement with, a Health Board, a Special Health Board or a local authority, services in connection with any of the functions of those bodies under that Act.
19 Under section 18, the Commission shall submit an annual report to the Scottish Ministers at the end of each financial year.
20 Under section 19, in accordance with directions given to it by the Scottish Ministers, the Commission shall provide the Ministers with, and publish, statistical or other information relating to the discharge of its functions.
21 Section 20 provides that for the purposes of the law of defamation, any statement made in pursuance of any of the sections 6, 7-10 and 18(1) of this Act by the Commission, or any of its employees, shall be privileged unless such statements are shown to be made with malice.
22 The Commission has the power to make a reference to the Tribunal in the following cases:-
under section 98 of the Act, in respect of a compulsory treatment order to which the patient is subject;
under section 162 of the Act, in respect of a compulsion order to which a patient is subject.
23 The Commission may require the Scottish Ministers to make a reference to the Tribunal in the following cases, provided that it gives reasons for requiring the reference to be made:-
under section 186 of the Act, in cases where a patient is subject to a compulsion order and a restriction order, the Commission can require the Scottish Ministers to refer a case to the Tribunal;
under section 209 of the Act, where a patient is subject either to a hospital direction or a transfer for treatment direction.
24 The Commission may make an application to the Tribunal under section 291 of the Act for an order requiring the managers of a hospital to cease to detain an informal patient, that is a person who is not subject to the provisions of the Act or the 1995 Act.
25 Under section 162, the Commission has the power to make a reference to the Tribunal in respect of a patient who is liable to a relevant compulsion order.
26 In appropriate cases, the Commission's powers under the Act include the power to revoke short-term detention and extension certificates under section 51, interim compulsory treatment orders under section 73 and compulsory treatment orders under section 81. In the case of mentally disordered offenders, section 143 of the Act gives the Commission the power to revoke compulsion orders in appropriate cases.
27 The Commission has a central role in ensuring that the safeguards in place for patients receiving compulsory treatment are adhered to. Under section 233 it has a duty to maintain a list of designated medical practitioners who carry out the functions of designated medical practitioners set out in Part 16 of the Act. ( For further information see, Chapter 9 of this Volume of the Code of Practice.) The Commission also has the power, under section 248, to revoke certificates given under sections 235(2) or (3), 236(2) or (3), 238(1), 239 or 241(1) relating to certain types of medical treatment.
28 Under section 9 of the Adults with Incapacity (Scotland) Act 2000, the Commission continues to have general functions in relation to adults to whom that Act applies by reason of mental disorder. The functions under the Act include: to consult the Public Guardian and any local authority on any case of common interest; to receive and investigate complaints relating to the exercise of functions relating to the personal welfare of the adult in relation to welfare attorneys and guardians or persons authorised under intervention orders (where they are not satisfied by any investigation made by a local authority or where the local authority has failed to investigate); and to provide a guardian, welfare attorney or person authorised under an intervention order with information and advice in connection with the performance of his or her functions under the 2000 Act. Under section 73(3) of the 2000 Act, the Commission also has the power to recall the powers of a guardian relating to the personal welfare of the adult in the circumstances set out in that section.
Notification to the Mental Welfare Commission
29 In view of the Commission's statutory protective, investigatory and monitoring functions, it is essential that the Commission is provided with the required notifications under the Act and within the specified timescale.
30 A list of what should be notified, the person responsible for providing written notification and the corresponding timescale is attached at Annex A.
N otifications to Mental Welfare Commission - Annex A
Section |
What |
Who |
Timescale |
|---|---|---|---|
Emergency Measures |
|||
section 35(10) |
Grant or refusal of warrant by sheriff or justice of the peace authorising detention for medical examination, entry to premises or production of medical records for inspection by a medical practitioner |
MHO |
As soon as practicable after the warrant is granted or refused |
Sections 38(3)(a) and 38(4)(d) |
Grant of Emergency detention certificate |
Hospital Managers |
Before the expiry of the period of 12 hours beginning with the giving of the certificate to the hospital managers |
Sections 38(3)(b)(i) and 38(4)(d) |
Grant of emergency detention certificate |
Hospital Managers |
Before the expiry of the period of 7 days beginning with the day of being given notice under section 37 by the practitioner who issued the certificate |
Section 40(2) and 38(4)(d) |
Revocation of emergency detention certificate by an AMP |
Hospital Managers |
As soon as practicable after being informed of the revocation by the AMP |
Section 42(4) and 38(4)(d) |
Revocation by RMO of certificate specifying a period during which an emergency detention shall not authorise detention of a patient in hospital |
Hospital Managers |
As soon as practicable after being informed of the revocation by the RMO |
Short-term Measures |
|||
Section 46(3)(b) |
Granting of short-term detention certificate |
Hospital Managers |
Before the expiry of the period of 7 days beginning with the day on which the certificate is granted |
Section 48(1) and (2)(d) |
Granting of extension certificate |
AMP |
Before the expiry of the period of 24 hours beginning with the granting of the certificate |
Section 49(4)(b) |
Revocation of short-term detention certificate or extension certificate |
RMO |
Before the expiry of the period of 7 days beginning with the day the certificate is revoked |
Section 54(3)(e) |
Revocation of certificate specifying a period during which a short-term detention certificate shall not authorise the detention of a patient in hospital |
RMO |
As soon as practicable after revoking the certificate |
Compulsory treatment orders |
|||
Section 60(1)(c) |
MHO's intention to apply to the Tribunal for compulsory treatment order ( CTO) |
MHO |
As soon as practicable after the duty to make the application arises and, in any event, before making the application |
Section 74(1) |
Revocation of Interim CTO under section 72 |
RMO |
As soon as practicable after making the determination to revoke |
Section 82(1) |
Revocation of CTO under section 79 or section 80 |
RMO |
Before the expiry of the period of 7 days beginning with the day on which the determination to revoke is made |
Section 87(2)(c)(iv) |
Determination extending a CTO under section 86 |
RMO |
As soon as practicable after the determination is made and, in any event, before the day on which the CTO will cease |
Section 91(f) |
Application to the Tribunal for extension and variation of CTO |
RMO |
As soon as practicable after the duty to make application arises and, in any event, before making the application |
Sections 94 and 91(f) |
Application to the Tribunal for variation of CTO |
RMO |
As soon as practicable after the duty to make application arises and, in any event, before making the application |
Sections 97 and 91(f) |
Reference to Tribunal by RMO, if recorded matter specified in CTO is not being provided |
RMO |
As soon as practicable after the duty to make the reference arises |
Section 116(3)(b) |
Detention of person subject to (community) CTO, under section 114(2), pending review or application for variation |
Hospital Managers |
Before the expiry of the period of 7 days beginning with the granting of the certificate |
Section 116(3)(b) |
Detention of person on (community) interim CTO, under section 115(2), pending further procedure |
Hospital Managers |
Before the expiry of the period of 7 days beginning with the granting of the certificate |
Sections 119(b) and 116(3)(b) |
Revocation under section 117 of detention under section 114(2) - detention pending review or application for variation of CTO |
RMO |
Before the expiry of the period of 7 days beginning with the revocation |
Sections 119(b) and 116(3)(b) |
Revocation under section 118 of detention under section 115(2) - detention pending further procedure for interim CTO |
RMO |
Before the expiry of the period of 7 days beginning with the revocation |
Section 124(12) |
Transfer to another hospital |
Hospital Managers |
Before the expiry of the period of 7 days beginning with the transfer |
Section 127(9) |
Suspension of detention under interim CTO or CTO, for a period of more than 28 days |
RMO |
Before the expiry of the period of 14 days beginning with the day on which the certificate is granted |
Section 128(5) |
Suspension of measures under (community) CTO |
RMO |
Before the expiry of the period of 14 days beginning with the day on which the certificate is granted |
Section 129(5) |
Revocation of suspension under section 127 or section 128 |
RMO |
Before the expiry of the period of 14 days beginning with the day on which the certificate is revoked |
Criminal procedures |
|||
Section 52D(10)(e) of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act") |
Making of an assessment order |
Court |
As soon as reasonably practicable after making the order |
Section 52G(11) and 52D(10)(e) of the 1995 Act |
Variation of assessment order, on review by RMO |
Court |
As soon as reasonably practicable after variation of the order |
Section 52M(9)(e) and section 52N(3) of the 1995 Act |
Making of a treatment order |
Court |
As soon as reasonably practicable after making the order |
Sections 52Q(3) and 52M(9)(e) of the 1995 Act |
Variation of treatment order made under section 52Q(2)(b)(ii) of the 1995 Act |
Court |
As soon as reasonably practicable after variation of the order |
Section 53(11)(d) of the 1995 Act |
Making of interim compulsion order ( ICO) |
Court |
As soon as reasonably practicable after making the order |
Section 60D(2) of the 1995 Act |
Detention under section 60C of the 1995 Act (detention of acquitted persons by court) |
Court |
Before the expiry of the period of 14 days beginning with the day on which the order is made |
Sections 144(1) and 144(4)(b)(i) |
Revocation of Compulsion Order ( CO) by RMO |
RMO |
Before the expiry of the period of 7 days beginning with the day on which the determination is made |
Section 153(2)(c)(iv) |
Extension of CO by RMO |
RMO |
As soon as practicable after the determination is made and, in any event, before the day on which the CO will cease (unless extended) |
Section 157(f) |
Application to Tribunal for extension and variation of CO |
RMO |
As soon as practicable after the duty to make the application arises and, in any event, before making the application |
Sections 160 and 157(f) |
Application to Tribunal for variation of CO |
RMO |
As soon as practicable after the duty to make the application arises and, in any event, before making application |
Sections 177(2) and (3) 116(3)(b) |
Detention of person on community based CO (cf. Section 114) |
Hospital Managers |
Before the expiry of the period of 7 days beginning with the granting of the order |
Sections 177(3) and 119 |
Revocation of detention under section 177(3) (cf. section 117) |
RMO |
Before the expiry of the period of 7 days beginning with the revocation |
Section 178 and 124(12) |
Transfer to another hospital of person whose detention is authorised by CO (cf. section 124) |
Hospital Managers |
Before the expiry of the period of 7 days beginning with the transfer |
Sections 179 and 127(9) and 128(5) |
Suspension of detention or other compulsory measures in relation to a person subject to a CO (cf. Sections 127 & 128) |
RMO |
Before the expiry of the period of 14 days beginning with the day on which the certificate is granted |
Section 185(2)(g) |
Reference of restricted patient by Scottish Ministers to Tribunal on recommendation from RMO |
Scottish Ministers |
As soon as practicable after receipt of report from RMO |
Sections 190 and 185(2)(g) |
Application by Scottish Ministers to Tribunal for an order under section 193 in respect of restricted patient |
Scottish Ministers |
As soon as practicable after the duty to make the application arises |
Section 210(4)(g) |
Reference to Tribunal by Scottish Ministers of patient subject to hospital direction or transfer for treatment direction |
Scottish Ministers |
As soon as practicable after they make reference to the Tribunal |
Section 224(10) |
Suspension of detention for a period of more than 28 days in respect of a treatment order, interim compulsion order, compulsion order and restriction order, hospital direction or transfer for treatment direction |
RMO |
Before the expiry of the period of 14 days beginning with the day on which the certificate is granted |
Section 225(4) |
Revocation by RMO of suspension under section 224 ( for a period of more than 28 days) |
RMO |
Before the expiry of the period of 14 days beginning with the day on which the certificate is revoked |
Section 226(4) |
Revocation by Scottish Ministers of suspension under section 224 (for a period of more than 28 days) |
Scottish Ministers |
Before the expiry of the period of 14 days beginning with day on which the certificate is revoked |
Social Circumstances Reports |
|||
Section 231(1)(b)(ii) |
Copy of Social Circumstances Report |
MHO |
Before the expiry of the period of 21 days beginning with the day on which the relevant event occurs (relevant events are listed at section 232) |
Section 231(2)(b)(ii) |
Statement of reasons for non-compliance with section 231 |
MHO |
Before the expiry of the period of 21 days beginning with the day on which the relevant event occurs |
Medical Treatment |
|||
Section 243(6) |
The giving of urgent medical treatment to a patient who does not consent/is incapable of consenting |
RMO |
Before the expiry of the period of 7 days beginning with the day on which the treatment is given (or first given) |
Section 245(5) |
Copies of certificates in respect of consent to treatment provisions, under
|
Person who gives certificate |
Before the expiry of the period of 7 days beginning with the day on which the certificate is given |
Section 246(2) |
Copies of certificates in respect of consent to treatment provisions, under
|
Person who gives a certificate |
Before the expiry of the period of 7 days beginning with the day on which the certificate is given |
Section 248(1) |
Report on treatment given under
|
RMO |
On the next occasion after the giving of treatment that the RMO submits a record or applies to the Tribunal under section 87(2)(b) or section 92 respectively, or as required to do so by the Commission |
Named Person |
|||
Section 255(5)(b) |
Copy of record made where a patient does not have a named person or MHO unable to establish if they have a named person |
MHO |
As soon as practicable after making the record |
Appeals against excessive security |
|||
Section 264(9) and (10)(j) |
Appeal to Tribunal against detention in conditions of excessive security in State Hospital |
Tribunal |
Before determining an application |
Sections 265(7) and 264(10)(j) |
Tribunal hearing in relation to an order under section 264 |
Tribunal |
Before making an order under section 265(3) |
Sections 266(7) and 264(10)(j) |
Tribunal hearing in relation to an order under section 265 |
Tribunal |
Before making an order under section 266(3) |
Sections 267(5)(a) and 264(10)(j) |
Recall of orders under sections 264(2), 265(3) or 266(3) |
Tribunal |
Before determining the application |
Section 268(9) and (10)(j) |
As section 264, in relation to hospitals other than State Hospital. Appeal to Tribunal against detention in conditions of excessive security |
Tribunal |
Before determining an application |
Sections 269(7) and 268(10)(j) |
Tribunal hearing in relation to an order under section 268 |
Tribunal |
Before making an order under section 269(3) |
Sections 270(7) and 268(10)(j) |
Tribunal hearing in relation to an order under section 269. |
Tribunal |
Before making an order under section 270(3) |
Sections 271(5)(a) and 268(10)(j) |
Recall of Orders under sections 268(2), 269(3) or 270(3) |
Tribunal |
Before determining an application |
Advance Statements |
|||
Section 276(8)(b)(v) |
Record of circumstances in which measures, treatment or decision authorised which conflict with wishes specified in advance statement |
|
Not specified |
Correspondence |
|||
Section 282(2) |
Withholding of postal packet |
Hospital Managers |
Before the expiry of the period of 7 days beginning with the withholding of the packet or anything contained in it |
Telephones |
|||
Regulations made under Section 284 |
Making a patient a "specified person" |
RMO |
Before person can be treated as "specified person" AND</ On review |
Reviewing decision to restrict or prohibit a "specified person's" calls |
RMO |
As soon as practicable |
|
Record of periods of restriction etc of telephone calls |
Hospital Managers |
As requested by the Commission |
|
Safety and Security |
|||
Regulations made under Section 284 |
Making a patient a "specified person" |
RMO |
Before person can be treated as "specified person" AND</ On review |
Statement on incidence and circumstances of implementation of these regulations |
Hospital Managers |
As requested by the Commission |
|
Cross border transfers |
|||
Section 289(2)(d)(iii) |
In terms of any regulations made for the removal of community-based CTO/ CO patient outwith Scotland |
RMO |
Before decision to authorise removal |
Section 290(2)(c)(iv) |
In terms of The Mental Health (Cross-border transfer: patients subject to detention requirement or otherwise in hospital) (Scotland) Regulations 2005 which make provision for the removal of a detained patient outwith Scotland (subject to regulations) |
Scottish Ministers |
At least 7 days before the date proposed for removal if within the UK or at least 28 days before the date proposed for removal if outside the UK |
Place of Safety |
|||
Section 298(2)(b) |
Removal of a person to place of safety under section 297 |
Constable |
Before the expiry of the period of 14 days beginning with the day on which the person is removed to the place of safety |
Nurses' holding power |
|||
Section 299(8) |
Record in respect of detention of person under nurses' power to detain pending medical examination |
Hospital Managers |
Before the expiry of the period of 14 days beginning with the day on which the record is received from a nurse or person authorised by a nurse |
Absconding |
|||
Section 310(2)(ii) |
The Mental Health (Absconding by mentally disordered offenders) (Scotland) Regulations 2005 make provision as to absconding or failure to comply with requirements imposed by orders or directions |
RMO |
When the RMO becomes aware that the patient has absconded or has been taken into custody after having absconded or has failed to comply with requirements imposed on them |
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