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

Chapter 8: Application to the Tribunal in Relation to Unlawful Detention (section 291)

Introduction

This section of the Code of Practice offers best 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 1995 Act.

01 Section 291 conveys upon the following people the right to apply to the Mental Health Tribunal for an order requiring the managers of the hospital to cease to detain the patient:

1. the patient;

2. the patient';s named person;

3. if the patient is a child, any person who has parental responsibilities in relation to the patient;

4. a mental health officer;

5. the Commission;

6. any guardian of the patient;

7. any welfare attorney of the patient; and

8. any other person having an interest in the welfare of the patient.

02 This provision effectively allows the patient or any of the other people listed in section 291 to ask the Tribunal to review the need for the patient to remain in hospital when not formally detained. "Any guardian", at (f) above, includes any welfare guardian, and "any other person" at (h) above could include a relative, carer or independent advocate.

03 An application may be made where the patient has been admitted to hospital and is being given treatment for mental disorder otherwise than under the Act or the 1995 Act. Section 329 of the Act defines 'hospital' as any health service hospital, any independent health care service or any state hospital. The Tribunal must grant the application if it is satisfied that the patient is being unlawfully detained in hospital.

04 This provision might, for instance, be used to review the need for hospital care for a patient who had required hospital care and treatment for mental disorder, who had lacked capacity to consent to admission but who was not objecting to the care and treatment provided and therefore had not been detained compulsorily under either the Act or the 1995 Act. A patient with severe learning disabilities or dementia might come under this category. It might also be considered where a patient has been admitted to hospital as an informal patient but is being kept in a locked ward and denied free egress.

05 It is important that all patients, whatever their detention status, are provided with a safe, secure and therapeutic environment. At times this might mean limiting the patient's egress from or access to parts of the hospital grounds, particularly for patients with dementia or learning disability who may be at risk to their own health by way of falling, or tripping on stairs or similar hazards. Where the patient is a child or adolescent, it may be appropriate for reasons of their personal safety to exclude them from certain areas of the hospital. Low staffing levels are insufficient justification for limiting reasonable, safe mobility by patients around the hospital. It would be good practice for the multi-disciplinary team to review any such limitations placed on an informal patient, as part of the ongoing review of the patient's care.

06 It would be good practice for members of the multi-disciplinary team to inform the patient of their rights while in hospital when they are admitted. For informal patients these include among others the right to leave the unit, to make their own decisions about whether to accept treatment, and in what form, and to choose whether to accept the restrictions on movement that may be prescribed for them. Where a patient has limited capacity to understand their rights, it may be appropriate to include the patient's carer or independent advocate in the discussion. Where restrictions on movement have been agreed, a written summary or map or diagram suitable for the patient's needs may assist the patient's understanding and recall of these limitations. Where limitations are altered after an incident or review it would be good practice for the
multi-disciplinary team to inform the patient of these changes within a reasonable time, and to update any written materials that may have been provided to the patient. What constitutes a reasonable time will depend upon the circumstances.

07 Under section 315 of the Act it is an offence for a relevant person who provides, or purports to provide, care and treatment to a patient to ill-treat or wilfully neglect that patient. The provisions of section 315 apply to informal patients as they apply to persons being treated under the Act and 1995 Act. Section 83 of the Adults With Incapacity (Scotland) Act 2000 has a related provision, whereby it is an offence for any person exercising powers under the 2000 Act relating to the personal welfare of an adult to ill-treat or wilfully neglect that adult. In some circumstances inappropriate use of restraint or limitations to an informal patient's liberty might contribute to or constitute ill-treatment or wilful neglect.

08 The Mental Welfare Commission may be contacted for guidance on restraint and restrictions to mobility.