mental health (care and treatment) (scotland) act 2003 code of practice volume 2 ?civil compulsory powers (parts 5, 6, 7 and 20)

introduction to volume 2

Coverage of this volume

01 Volume 2 of the Code of Practice for the Mental Health (Care and Treatment) (Scotland) Act 2003 ("the Act") deals with a range of issues relating to what can be termed "civil compulsory powers". It therefore provides Code of Practice material on Parts 5, 6, 7 and 20 of the Act 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.

02 This volume does not 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 are set out in Parts 8 to 13 of the Act and are examined in volume 3 of the Code of Practice.

03 This volume, similarly, does not examine a range of other subjects for which provision is made in the Act. These subjects include, for example, detention in conditions of excessive security (Part 17 Chapter 3); cross-border transfers of patients (section 289 and 290); the duties of Health Boards and local authorities (Part 4); the provision of advocacy services (section 259). These issues are discussed in volume 1 of the Code of Practice.

Structure of this volume

04 This volume is divided into 11 chapters.

05 Chapter 1 provides an overview to this volume by describing the principles of the Act before providing definitions of 2 keys terms: that is, "mental disorder" and "medical treatment". It then provides an overview of the civil compulsory powers available as well as a discussion of the criteria which must be met before these powers can be exercised.

06 Chapter 2 examines the procedures which must be followed when granting a short-term detention certificate under Part 6 of the Act. The chapter adopts a chronological approach to the relevant procedures moving from the point at which the person presents with a suspected mental disorder to the point at which the detention certificate is granted and the person is admitted to hospital. It also examines processes relating to the revocation and the suspension of a short-term detention certificate.

07 Chapters 3 to 6 focus on the "compulsory treatment order" ( CTO). This is an order which can be made under Part 7 of the Act and which authorises compulsory treatment for a period of at least 6 months at a time. These four chapters also adopt a chronological approach as they start from the point at which it appears to the relevant parties that an application for a CTO might be appropriate before progressing to the point at which a CTO is reviewed and/or revoked.

08 Chapter 3, therefore, describes the processes by which an application for a CTO is made. It covers, for example, the medical practitioners' preparation of mental health reports as a prelude to the preparation of the application, including the proposed care plan and mental health officer's report, by an MHO. The chapter also describes the process by which this application is determined by the Mental Health Tribunal for Scotland ("the Tribunal").

09 Chapter 4 deals with issues relating to a CTO and an interim CTO once it is in operation and the procedures which should follow on immediately from it being made, including the preparation of a care plan and the processes by which the compulsory measures specified in a CTO or an interim CTO can be suspended.

10 Chapter 5 describes the processes associated with reviewing and revoking a CTO, including the making of "a section 86 determination"
to extend a CTO; "a section 92 application" to extend a CTO with a variation of its terms; and "a section 95 application" to vary the terms of the CTO. The chapter also examines applications to the Tribunal by the patient and the patient's named person.

11 Chapter 6 examines the procedures to be followed where a patient has not complied with any of the compulsory measures which are specified in a community-based CTO or interim CTO.

12 Chapter 7 examines the procedures to be followed when granting an emergency detention certificate under Part 5 of the Act. The chapter adopts a chronological approach to the relevant procedures moving from the point at which the person presents with a suspected mental disorder to the point at which the detention certificate is granted and the person admitted to hospital. It also examines the processes relating to the revocation and the suspension of an emergency detention certificate.

13 Chapter 8 focuses on the provisions of the Act which relate to patients who abscond while subject to the civil compulsory powers outlined in this volume.

14 Chapter 9 turns to the procedures to be followed where a patient who is subject to civil compulsory powers is being transferred from one hospital to another within Scotland. (For further information on the procedures to be followed where a patient is being transferred in or out of Scotland, see Chapter 14 of Volume 1 of the Code of Practice.)

15 Chapter 10 provides a glossary of important terms and abbreviations which are commonly used throughout this volume and the other 2 volumes of the Code of Practice.

16 Chapter 11 gives a list of non-statutory forms. Although there is no statutory requirement to use these forms, you are strongly recommended to do so. The forms draw attention to some procedural requirements under the Act. Failure to observe procedural requirements may invalidate either the application or certificate or report, etc. Non-statutory forms can be found on the Commission's website at www.mwcscot.org.uk . Statutory forms are to be found on the Mental Health Law website at www.scotland.gov.uk/health/mentalhealthlaw

Abbreviations and other commonly used terms

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

Commission	Mental Welfare Commission
CPN	Community psychiatric nurse
CTO	Compulsory treatment order
DMP	Designated medical practitioner
ICTO	Interim compulsory treatment order
MHO	Mental health officer
RMO	Responsible medical officer
Tribunal	The Mental Health Tribunal for Scotland

18 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"	Mental Health (Care and Treatment) (Scotland) Act 2003

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.

19 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 which is made by the Scottish Ministers under the Act in terms of section 326

Good practice versus best practice

20 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 are 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

21 The section 1 principles also 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

22 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.

23 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'.

24 Where the Act specifies a number of days or weeks beginning at a certain point these are counted from the beginning of the first 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 …'.

25 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.

26 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

(b) Sunday

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

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