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

Chapter 4: Health Boards (Part 4 Chapter 1)

Introduction

This part of the Code of Practice addresses the main duties which the Act places on Health Boards and hospital managers (health bodies). Other duties and powers may be found elsewhere in the Act, and Health Boards, hospital managers and relevant others should make reference to those further sections as appropriate.

Health Board provisions

01 The Act places a number of duties on health bodies in relation to the provision of services for people with mental disorder, including services for mentally disordered offenders.

General Principles

02 Sections 1 and 2 of the Act set out the principles and other matters which those who are performing functions under the Act require to take into account in so far as they are relevant to the function they are discharging. For those purposes, making a decision not to act is still considered as discharging a function and any such decision must be made taking the matters set out in sections 1 and 2 into account. Section 3 places a duty on specified persons exercising functions under the Act to discharge those functions in a manner which encourages equal opportunities and the observance of the equal opportunities requirements.

(For further information, see Chapter 1 of this Volume of the Code of Practice.)

Service Provision

03 It would be best practice for health bodies to ensure that there are adequate resources, including sufficient numbers of staff, to ensure, for example, that a person who is compelled to receive services under the Act is treated no less favourably than any other patient.

04 Due regard must be given to the patient's background including for example age, sex, sexual orientation and cultural and linguistic background (section 1(3)(h)). Consideration should always be given to whether physical assistance is needed, for example, whether patients would benefit from interpreting services, the provision of culturally sensitive in-patient accommodation and therapeutic activities, and appropriate services for those with sensory impairments. In carrying out their functions, health bodies should be aware of the need to eliminate unlawful racial discrimination; and to promote equality of opportunity and good relations between persons of different racial groups.

Duties to the Commission - section 17

05 Under section 17 a Health Board or Special Health Board amongst others must afford the Mental Welfare Commission, or a person authorised by the Commission, all facilities necessary to enable the Commission, or that person, to discharge their functions under the Act. Regulations made under section 17 have prescribed that any persons or agencies who provide a Health Board or Special Health Board with services under contract or other arrangement also have this duty.

Approved Medical Practitioners - section 22

06 Approved medical practitioners have specific duties under the Act in relation to, for example, assessing a patient in relation to short term detention, a compulsory treatment order or compulsion order under the Act. Section 22(1) of the Act requires each Health Board and the State Hospitals Board for Scotland to compile and maintain for its area a list of approved medical practitioners ( AMPs).

07 Section 22 confers power on the Scottish Ministers to give directions as to the qualifications, training and experience required of medical practitioners in order for them to be included in a list of AMPs. In May 2005 Scottish Ministers made a direction that specifies that the practitioner must:-

• be a Member or Fellow of the Royal College of Psychiatrists; or

• be a medical practitioner with at least four years experience working in psychiatric services; and, in either case,

• have successfully completed a training course in relation to the provisions of the Act which has been developed by the Scottish Ministers in consultation with the Royal College of Psychiatrists.

08 It is important that the lists compiled by Health Boards are regularly maintained, that new AMPs are added and that doctors no longer in the employ of the Health Board are removed promptly. It would be helpful for Health Boards to provide, when appropriate, to the Scottish Executive Health Department a copy of any updates to the list for their area. The Scottish Executive Health Department will publish these lists for information.

09 Doctors appointed on a short-term basis, for example 'locums', must meet the criteria specified in the directions made by Scottish Ministers before being added to a Health Board's list of AMPs. Similarly, GPs who wish to undertake duties as AMPs must meet the requirements of the directions before they can be appointed as AMPs by a Health Board. The Act makes no provision to bypass or circumvent the qualifications, training and experience specified in these directions.

10 A training course for qualifying doctors wishing to be appointed as AMPs has been prepared by the Scottish Executive in conjunction with NHS Education Scotland and the Royal College of Psychiatrists. This course will be available at frequent intervals to ensure that as far as possible doctors can undergo the necessary training for appointment as AMPs with the minimum of delay. (For further information on appointment of responsible medical officers, see Chapter 9 of this Volume of the Code of Practice.)

Provision of services and accommodation for certain patients under 18 - section 23

11 Section 23 imposes a duty on a Health Board to provide sufficient services and accommodation to meet the needs of any child or young person under 18 ("the young patient") who is either detained or voluntarily admitted to hospital for the purposes of receiving treatment for a mental disorder. (For further information about patients under 18 years of age, see Chapter 1 of this Volume of the Code of Practice.)

12 A young patient should only be admitted to an adult ward in exceptional circumstances, for example, where no bed in a child or adolescent ward is immediately or directly available.

13 If a detained young patient cannot be admitted to a unit specialising in child and adolescent psychiatry, special consideration should always be given to the environment to which they are to be admitted, and what impact that may have on the young patient concerned. Any risks to the young patient should be identified in advance and a plan put in place to minimise such risks. For example, the allocation of a single room, with en-suite facilities may be prioritised, or special arrangements put in place to monitor the young patient's general well-being within the ward environment. Particular consideration should be given to the likely impact on the patient of the behaviour of other patients on the ward and also the need to protect them from exposure to distressing experiences. Other ward policies, such as visiting and smoking may also need to be modified to apply to young patients. Every effort should be made to provide for the young patient's needs as fully as possible. Nursing staff with experience of working with young people should also be available to provide direct input to care, and support and guidance to ward staff. Best practice would be for the RMO to be a child specialist.

14 In the event of a young patient being admitted to an adult ward, it would be best practice for the hospital managers to notify the Mental Welfare Commission of this to enable the Commission to monitor the general provision of age-appropriate services under the Act.

15 Section 23 should be considered in conjunction with the following sections of the Act:-

• section 2(4) states that any function under the Act which is being discharged in relation to a patient under the age of 18 must be discharged in the manner that appears to the person discharging the function to be the manner that best secures the welfare of the patient;

• section 277 amends the Education (Scotland) Act 1980 to provide that education authorities have a duty to make arrangements for the education of pupils unable to attend school because they are subject to measures authorised by the Act or, in consequence of their mental disorder, by the Criminal Procedure (Scotland) Act 1995;

• section 278 requires health bodies to take all reasonable steps to reduce any adverse effect on the relationship between a child and a person with parental responsibilities for that child, in the event of either the child or such a person being made subject to measures authorised by the Act or, in consequence of their mental disorder, by the 1995 Act.

Provision of services and accommodation for certain mothers with post-natal depression - section 24

16 Section 24 places a duty on Health Boards to provide "such services and accommodation as are necessary" to allow women with post natal depression to be admitted to hospital accompanied by their child under one year old.

17 This duty applies whether or not such a mother has been admitted to hospital voluntarily, and where her proximity to the child would not endanger the health or welfare of the child.

18 Health Boards must provide or arrange suitable accommodation for both the mother and any child, or children, under one year of age to ensure that the woman is able, if she wishes, to care for the child or children in hospital.

19 Best practice would be for hospital bodies also to be aware of persons, other than the mother, who have parental rights which may require to be accommodated. For example, a father with parental rights and responsibilities may be entitled to remove the child. It should also be borne in mind that legal advice may have to be sought when giving consideration to the mother's wishes as to the involvement or otherwise of the extended family.

20 The Act places a minimum duty on Health Boards to provide services and accommodation for mothers with post-natal depression. However, Health Boards may wish to extend such services to cover all women affected by perinatal and pre-natal mental illness, including conditions such as, psychosis, schizophrenia, etc that can occur in the weeks or months leading up to or following a birth.

21 Guidance has already been published to assist planners and providers.

Co-operation with local authorities - sections 30 and 31

22 Section 30 requires local authorities to co-operate with any Health Boards, Special Health Boards, or voluntary organisations that appear to the local authority to have an interest in, or power or duty to provide or secure, the provision of those services mentioned in sections 25 to 27. Those services are the provision for persons who are not in hospital and who have or have had a mental disorder of:-

• care and support services (section 25);

• services to promote the well-being and social development of those persons (section 26); and

• facilities for or assistance in travelling to allow access to such services (section 27).

23 Under section 31, the local authority can request assistance from a Health Board or Special Health Board to enable or help the authority to provide the services in section 25 or 26. The Board must comply with the request so long as the request:-

• is compatible with the discharge of its own functions; and

• would not prejudice unduly the discharge of those functions.

Independent Advocacy Services - section 259

24 Under section 259 Health Boards and local authorities have a duty to collaborate with each other to secure the availability of independent advocacy services, and to make sure that mentally disordered persons are able to make use of such services. (For further information on independent advocacy, see Chapter 6 of this Volume of the Code of Practice.)

Provision of information to patient - section 260

25 Section 260 requires the managers of a hospital specified in an order, detention certificate, direction, or order, whether or not the patient is detained, to take all reasonable steps to:-

• ensure that the patient understands the relevant matters;

• ensure that the patient is supplied with material appropriate to their needs (and in a form that is appropriate to their needs and permanent) to refresh the patient's understanding of those matters; and

• inform the patient of the availability of independent advocacy services and to take appropriate steps to ensure that the patient has the opportunity of making use of those services.

26 "Relevant matters" means:-

• the provision of the Act or the 1995 Act by which the patient is being detained or the order has effect;

• the consequences of the operation of that provision;

• the powers that the patient's RMO and the Tribunal each has in relation to revoking that provision;

• any right the patient has to make an application, or appeal, to the Tribunal by virtue of that provision;

• how the patient may exercise such right;

• how the patient may obtain legal assistance in respect of such right;

• the powers the Tribunal may exercise in the event of the patient exercising that right; and

• the Commission's functions that appear relevant to the patient's case.

27 The Act and regulations made under section 260 make provision in relation to the times at which hospital managers must provide such information. A full list of the times set out in the Act and in the regulations is found at the end of this Chapter.

For a full list of the prescribed times, please refer to end of this Chapter.

Provision of Assistance to patient with communication difficulties - section 261

28 Section 261 applies where:-

• a patient has difficulty in communicating or generally communicates in a language other than English; and

• the patient is subject to the provisions of the Act listed in section 261(1), whether or not the patient is detained in hospital.

29 In those circumstances, managers of the hospital are required to take reasonable steps to ensure that arrangements appropriate to the patient's needs are made or that the patient is provided with assistance or material appropriate to their needs to allow the patient to communicate at certain events.

30 The events are:-

• any medical examination of the patient carried out for the purpose of assessing the patient's mental disorder;

• any review of the patient's detention under the Act or the 1995 Act; or

• any proceedings before the Tribunal relating to the patient.

31 The managers of the hospital must make a written record of the steps taken as soon as practicable after they have been made.

32 To enable users with communication difficulties to interact with people effectively, reasonable adjustments should be made to support the patient's needs when identified. The onus is on the hospital manager to ensure that these steps are taken. Whenever possible, the patient should be asked which format he/she prefers. A record should be kept, with the patient's permission, if the patient uses technical aids to support communication or requires information to be interpreted, translated or adapted.

33 There are various aids and adaptations which can support and enable communication, as well as 'human aids to communication' such as British Sign Language ( BSL) interpreters, lip speakers, Makaton, and deaf-blind communicators.

34 Where possible, materials should also be available in alternative formats such as large print, audio tape, Braille and computer disk. If they are not available, hospital managers should make reasonable adjustments to meet the request or to offer an alternative means of making the information accessible.

35 Hospital managers should have measures in place to support staff in making reasonable adjustments, thereby enabling them to respond accordingly.

36 If videos are offered to support users, these should, where ever possible, be purchased or designed by the Board with subtitles and if possible in BSL.

37 Consideration should also be given to the surrounding environment. This can affect communication due to noise levels, provision of loop systems, lighting, soft furnishings and décor.

38 There should be strategies in place to enable patients not only to receive and provide information but which also offer various means by which patients can contact services, including telephone, fax and text-telephone numbers and, where appropriate, e-mail addresses.

39 The above is not an exhaustive list of actions but provides examples of areas which hospital managers should take into consideration.

Collation of data - section 279

40 Section 279 places a duty on health bodies, on being required to do so by the Scottish Ministers, to provide them for research purposes with specified information as to the operation of the Act. The section contains safeguards to protect the identity of patients by specifying that if information from which a patient might be identified can be provided in an anonymous form then it should be so provided.

41 Information need not be provided where:-

• if, were it evidence which might be given in proceedings in any court in Scotland, the person having the evidence could not be compelled to give it in such proceedings; or

• the person required to provide the information is under a duty of confidentiality in respect of that information and they cannot provide the information requested without breaching that duty, unless the person to whom the duty is owed has given their consent to it being provided.

Other implications of the Act for health bodies

42 In addition to the sections already mentioned above, the Act contains a number of sections with implications for health bodies. These include:-

• section 5: Mental Welfare Commission (the Commission) duty to promote best practice. It is likely that this will involve the Commission regularly making hospital visits. ( See Chapter 2 in this Volume.)

• section 11: Commission's duty to make investigations into deficiencies of care;

• section 13: Commission's duty to make visits to patients;

• section 16: Commission's authority to inspect medical or other records of the patient;

• section 21: The Act creates the Mental Health Tribunal for Scotland, which largely replaces the Court as the forum for determining applications, granting orders and hearing appeals. It may well be that many Tribunals take place within the hospital;

• section 33: The local authority has specific duties to make inquiries into situations of apparent deficiency in care, neglect or ill-treatment etc in the community. ( See Chapter 15 in this Volume.)

• section 34 imposes a duty on various persons including Health Boards to co-operate with these inquiries, in so far as compatible with, and not unduly prejudicial to, their functions. (See Chapter 15 in this Volume.)

• section 228: Where a written request for an assessment of the needs of a person with a mental disorder has been received by a local authority or Health Board, provided the circumstances referred to in section 228(2) are met, the local authority or Health Board is under a duty to respond to the request within 14 days, indicating whether or not they intend to carry out the assessment and, if not, why not. (See Chapter 7 of this Volume.)

• section 230 requires the managers of a hospital to appoint an RMO to any patient who is receiving services by compulsion in or out of that hospital. (See Chapter 9 of this Volume.)

• section 274 states that any person discharging functions under the Act must have regard to the Code of Practice in discharging their functions.

• section 291 allows various persons, including the Commission, to apply to the Tribunal where it appears that a patient is unlawfully detained. This may occur when an informal patient is restricted from leaving the hospital, for example, where a ward door is locked and staff refuse to open it on request. It may also include an improperly made detention, for example one made without proper regard to the principles. Where the Tribunal find that a patient has been so detained, it will require the hospital managers to cease the detention. (See Chapter 8 of this Volume.)

• sections 311, 313, 315 and 316 create offences in relation to non-consensual sexual acts; sexual offences; ill-treatment and wilful neglect; and inducing and assisting absconding in respect of persons providing care services, care and treatment, or employed by, providing services to or managing a hospital. (See Chapter 16 in this Volume.)

• section 317 creates offences of obstructing in relation to persons carrying out functions under the Act, for example, refusing access to premises to a person authorised by a warrant under sections 35 or 292 of the Act, or refusing to allow a person authorised under the Act to interview or examine a patient. (See Chapter 16 in this Volume.)

• section 318 provides for offences relating to the deliberate making of or using false statements in any application or relevant document required, authorised, granted, prepared, sent or given for the purposes of the Act. (See Chapter 16 in this Volume.)

Provision of information to patient - list of prescribed times - section 260

43 Where the patient reasonably requests such information.

44 Where the patient is detained in hospital, the beginning of the detention, or where not in hospital, the making of the following orders:-

• an emergency detention certificate under section 44(1) of the Act;

• a short term detention certificate under section 47(1) of the Act;

• a compulsory treatment order under section 64(4) of the Act;

• an interim compulsory treatment order under section 65(2) of the Act;

• an assessment order under section 52D of the 1995 Act;

• a treatment order under section 52M of the 1995 Act;

• a hospital direction under section 59A of the 1995 Act;

• a transfer for treatment direction under section 136 of the Act;

• an interim compulsion order under section 53 of the 1995 Act;

• a compulsion order (with or without a restriction order) under section 57A of the 1995 Act;

• a determination extending a compulsory treatment order (the making of a determination by a responsible medical officer) under section 86(1) of the Act;

• the confirmation of determination and variation of a compulsory treatment order (the making of an order by the Tribunal) under section 102(1)(d) of the Act;

• the making of an order by the Tribunal with respect to -

• extension and variation by Tribunal of a compulsory treatment order under section 103(1)(a) of the Act;

• extension by Tribunal of a compulsory treatment order under section 103(1)(b) of the Act;

• confirmation of determination and variation by Tribunal of a compulsory treatment order under section 103(2)(d) of the Act;

• variation by Tribunal of a compulsory treatment order under section 103(3)(b) of the Act; or

• variation by Tribunal of a compulsory treatment order under section 103(4)(a) of the Act.

• the variation of a compulsory treatment order (the making of an order by the Tribunal) under section 104(1)(a) of the Act;

• the extension, or extension and variation, of a compulsory treatment order (the making of an interim order by the Tribunal) under section 105(2) of the Act;

• a variation of a compulsory treatment order (the making of an interim order by the Tribunal) under section 106(2) of the Act;

• the grant of a certificate by the responsible medical officer -

• for continued detention in hospital for 28 days under section 114(2) ¹ of the Act; or

• authorising continued detention in hospital until the expiry of the authority in the order under section 115(2) of the Act.

• the giving of notice by the managers of a hospital -

• notice of proposed transfer to another hospital under section 124(4) ² or 124(6)(a); or

• notice of transfer to another hospital having taken place under section 124(6)(b).

• the suspension of a requirement that a patient be detained in hospital (suspending for more than 28 days a measure specified in a compulsory treatment order or a relevant compulsion order) the grant of a certificate by a responsible medical officer under section 127(1)(b) ³ of the Act;

• the suspension of other measures (suspending for more than 28 days other measures specified in a compulsory treatment order or a relevant compulsion order) the grant of a certificate by a responsible medical officer under section 128(1)(b) ⁴ of the Act;

• the revocation of certificate suspending measure in compulsory treatment order or a relevant compulsion order (the revocation of a certificate by an RMO) under section 129(2) ⁵ of the Act;

• the duty to extend compulsion order (the making of a determination by a responsible medical officer) under section 152(2) of the Act;

• a confirmation of determination and variation of compulsion order (the making of an order by the Tribunal) under section 166(1)(d) of the Act;

• the making of an order by the Tribunal with respect to -

• the extension of a compulsion order under section 167(1)(a) of the Act;

• the extension and variation of a compulsion order under section 167(2)(a) of the Act;

• the extension of a compulsion order under section 167(2)(b) of the Act;

• the confirmation of determination and variation of a compulsion order under section 167(3)(d) of the Act;

• the variation of a compulsion order under section 167(4)(b) of the Act; or

• the variation of a compulsion order under section 167(5)(a) of the Act.

• the extension, or extension and variation, of a compulsion order (the making of an interim order by the Tribunal) under section 168(2) of the Act extending a compulsion order;

• a variation of a compulsion order (the making of an interim order by the Tribunal) under section 169(2) of the Act;

• a variation of a compulsion order (the making of an order by the Tribunal) under section 171(1)(a) of the Act;

• the making of an order by the Tribunal under-

• variation of compulsion order under section 193(6) of the Act; or

• conditional discharge and imposition of conditions under section 193(7) of the Act.

• the variation of any condition imposed by the Tribunal by the Scottish Ministers under section 200(2) of the Act;

• the recall of the patient to hospital by warrant by the Scottish Ministers (recall of patients from conditional discharge) under section 202(2) of the Act;

• the suspension of a requirement that a patient be in hospital - the grant of a certificate by the patient's RMO under section 224(2) of the Act suspending for more than 28 days the detention in hospital for a patient subject to -

• a treatment order;

• an interim compulsion order;

• a compulsion order and a restriction order;

• a hospital direction; or

• a transfer for treatment direction.

• the suspension of authorisation for detention of patient in hospital - the revocation, by the patient's RMO under section 225(2) of the Act, of a certificate granted by the patient's RMO under section 224(2); and

• the suspension of authorisation for detention of patient in hospital - the revocation of a certificate granted by the patient's RMO under section 224(2) by the Scottish Ministers under section 226(2) of the Act.