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

chapter 1 overview

Introduction

This chapter begins with the definition of mental disorder and medical treatment and then other matters which underpin the legislation and which are laid out at sections 1 to 3 of the Act. The two important terms used commonly throughout the Act: namely, "mental disorder" and "medical treatment".

The chapter then gives a brief overview of the three principal certificates and orders in this Act on the authority of which a person may be detained: namely, an emergency detention certificate, a short-term detention certificate; and a compulsory treatment order.

This chapter also examines some issues relating to the criteria which must be met before compulsory powers can be used. For example, it looks at what is meant by 'significant impairment of decision-making ability' and contrasts this with the term 'incapacity'.

Finally, this chapter provides some clarification regarding the detention of children under this Act as well as regarding the expiry point of detention certificates and orders.

Definition of "mental disorder"

01 The Act refers throughout to a "patient". In terms of section 329 of the Act, "patient" means a person who has or appears to have a mental disorder.

02 Section 328 of the Act provides that "mental disorder" means any mental illness, personality disorder, or learning disability, however caused or manifested.

03 The definition of mental disorder has been drawn widely to ensure that the services provided for in the Act are available to anyone who needs them. A person with mental disorder will only be subject to compulsory measures under the Act if they meet the specific criteria for those measures. However, section 25 to 27 of the Act also provides for a range of local authority duties in relation to the provision of services for any person who has or has had a mental disorder.

04 Section 328(2) of the Act specifically states that a person is not mentally disordered by reason only of any of the following:

• sexual orientation;

• sexual deviancy;

• trans-sexualism;

• transvestism;

• dependence on, or use of, alcohol or drugs;

• behaviour that causes, or is likely to cause, harassment, alarm or distress to any other person;

• or by acting as no prudent person would act.

05 No person who suffers from mental disorder but also falls within any of the above categories should be excluded from consideration for assistance, treatment or services under the Act. For example, the provisions of the Act may be invoked in respect of people with mental disorder who also have alcohol problems or misuse drugs. Section 328(2) ensures that a person is not regarded as mentally disordered by reason only of their sexual orientation, deviancy, trans-sexualism, transvestism, dependence on drugs or alcohol, or by their behaviour.

Definition of "medical treatment"

06 Section 329 of the Act defines "medical treatment" as "treatment for mental disorder; and for this purpose "treatment" includes-

• nursing;

• care;

• psychological intervention;

• habilitation (including education, and training in work, social and independent living skills); and

• rehabilitation (read in accordance with the paragraph above)".

07 "Medical treatment" includes pharmacological interventions as well as other physical interventions (such as electro-convulsive therapy ( ECT)) in addition to psychological and social interventions (including occupational therapy) made with respect to mental disorder. Any references to "medical treatment" in the Act and this Code of Practice should be read in light of the definition in section 329 as outlined above.

08 Medical treatment for an unrelated physical disorder is not authorised by the Act. However, medical treatment for a physical disorder which is directly causing the mental disorder would be authorised. For example, where a patient has delirium (as a mental disorder secondary to a chest infection), then the administration of antibiotics would be a medical treatment (indirectly) for the mental disorder and so authorised by the Act. Other medically induced mental disorders could include starvation-induced depression, or hypothyroidism-induced depression. Self-harm (including overdose) as a result of a mental disorder may also be treated under the Act.

09 Where medical treatment for an unrelated medical disorder is required, and the patient is an adult and incapable of giving consent, then treatment under the Adults with Incapacity (Scotland) Act 2000 should be considered.

10 For further information on treating patients subject to an Emergency Detention certificate, see Chapter 7 of this Volume of the Code of Practice. For further information on "medical treatment", see also Part 16 of the Act and Chapter 10 of Volume 1 of the Code of Practice.

Overview of the civil compulsory powers

11 There are three principal "civil" certificates and orders under this Act. These are:

• an emergency detention certificate which grants an authority to detain a person in hospital for a period of 72 hours;

• a short-term detention certificate which grants an authority to detain a person in hospital for a period of 28 days; and

• a compulsory treatment order ( CTO) which grants an authority to exercise a range of compulsory powers over a person either in hospital or in the community for a period of 6 months. This period can be extended by 6 months, then by periods of 12 months thereafter.

12 A CTO can only be made by the Tribunal. A short-term detention certificate can only be issued by an approved medical practitioner while an emergency detention certificate can be issued by any registered medical practitioner.

13 Mental health officers ( MHO) play a key role in the use of compulsory powers. For example, an MHO prepares an application for a CTO and the consent of an MHO must be obtained before a short-term detention certificate can be granted. The consent of an MHO must also be sought where it is practicable to do so before an emergency detention certificate can be granted.

14 The Act also provides for a range of other compulsory measures. These include a power of entry to the premises of a mentally disordered person and the removal of a mentally disordered person to a place of safety. These powers are not, however, described in this volume but are described in Volume 1 of the Code of Practice. Volume 3 similarly sets out procedures to be followed with respect to mentally disordered offenders.

Interaction between emergency and short-term detention certificates

15 It should be noted that a person can be made subject to a short-term detention certificate without the need to have been subject to an emergency detention certificate beforehand.

16 A short-term detention certificate should be granted, wherever possible, in preference to an emergency detention certificate, where this is practicable and where the relevant detention criteria have been met. A short-term detention certificate is the preferred "gateway order" because, as compared with an emergency detention certificate, it can only be granted by an approved medical practitioner; the consent of an MHO to the granting of a short-term detention certificate is mandatory; and it confers on the patient and the patient's named person a more extensive set of rights, including the right to make an application to the Tribunal to revoke the certificate.

17 When any decision about whether or not to grant an emergency or short-term detention certificate is being made, the difference in the criteria for emergency and short-term detention, as set out in sections 36 and 44 of the Act respectively, is paramount. In addition to these criteria, practitioners may also wish to consider other factors before deciding on whether it would be more appropriate to grant an emergency detention certificate or a short-term detention certificate. These could include:

• whether urgent action must be taken, and whether there is, as a result of this urgency, insufficient time to comply with the more extensive procedures allied to the granting of a short-term detention certificate;

• whether the medical practitioner is satisfied that the assessment for treatment could not be made with the patient's consent;

• whether an approved medical practitioner or an MHO is immediately or directly available to grant or consent to the granting of a short-term detention certificate.

18 Where the clinical urgency of the situation will not permit the granting of a short-term detention certificate, it should be borne in mind that the primary purpose of an emergency detention certificate is to permit a full assessment of a person's mental state. It is not to administer medical treatment for the suspected mental disorder. Such treatment may, however, be given where it is urgently required under the authority of section 243 of the Act.

Criteria for civil compulsory power

19 Compulsory powers can only be exercised under the Act where strict criteria have been met. For details of the criteria which must be met before the various certificates and orders may be granted, see the relevant Part of the Act. Taking the example of a short-term detention certificate, such a certificate may only be granted where the approved medical practitioner considers it likely that the following criteria have been met:

• the patient has a mental disorder;

• the patient's ability to make decisions about the provision of medical treatment is significantly impaired as a result of that mental disorder;

• it is necessary to detain the patient in hospital for the purpose of determining what medical treatment should be given to the patient or of giving them medical treatment;

• there would be a significant risk to the health, safety or welfare of the patient or to the safety of any other person if the patient were not detained in hospital; and

• the granting of a short-term detention certificate is necessary.

20 It should be noted that all the criteria listed in the previous paragraph must be met before a short-term detention certificate can be granted. It should also be noted that the onus does not rest on the patient to prove that he/she does not in fact meet these criteria; the onus rests instead on the practitioner to demonstrate that he/she considers it likely that the above criteria are indeed met.

21 Two criteria in the list at paragraph 19 deserve particular mention. The final criterion is that the granting of a short-term detention certificate is necessary. This means that the patient must be unwilling to agree
to admission to hospital and medical treatment on an informal or voluntary basis.

22 The second criterion in the list of criteria at paragraph 19 above concerns the concept of significantly impaired decision-making ability. This concept is separate to that of "incapacity" as defined under the Adults with Incapacity (Scotland) Act 2000. However, when assessing a person's decision-making ability, it is likely that similar factors will be considered to those taken into account when assessing incapacity. Such factors could involve consideration of the extent to which the person's mental disorder might adversely affect their ability to believe, understand and retain information concerning their care and treatment, to make decisions based on that information, and to communicate those decisions to others.

23 One difference between incapacity and significantly impaired decision-making ability arguably is that the latter is primarily a disorder of the mind in which a decision is made, resulting in the decision being made on the basis of reasoning coloured by a mental disorder. Incapacity, by contrast, broadly involves a disorder of brain and cognition which implies actual impairments or deficits which prevent or disrupt the decision-making process.

24 Moreover, significantly impaired decision-making ability must always be linked to the patient's mental disorder. Incapacity, by contrast, is defined at section 1 of the Adults with Incapacity (Scotland) Act 2000 and includes incapacity by reason of physical disability.

25 It is important to emphasise that the criterion listed at paragraph 19 above with respect to a significant impairment of decision-making ability means a significant impairment with respect to decisions about the provision of medical treatment for mental disorder.

26 Significantly impaired decision-making ability must always be as a result of mental disorder, but it should not necessarily be taken to be synonymous with mental disorder.

27 A person's decision-making ability should not be considered to be significantly impaired by reason only of a lack or deficiency in a faculty of communication. Similarly, it should not be taken as equivalent to disagreeing with the opinions of professionals.

Can a child be made subject to civil compulsory powers?

28 Yes, a child under the age of 18 years can be made subject to an emergency or short-term detention certificate or a compulsory treatment order in the same way as an adult, and the procedures for granting or making such a certificate or order are the same irrespective of whether the patient is a child or an adult. Where it becomes apparent that it may be appropriate to grant, for example, an emergency detention certificate with respect to a child, special consideration should be given to the effects of detention on the child and to ensuring that all other options have been fully explored. While these points are, of course, also relevant to the detention of adults, they should be given particular consideration where a child is being detained.

29 For these purposes, a child is someone under the age of 18. It should further be noted section 2 requires that where a function is being discharged with respect to a child, it should be discharged in a manner "that best secures the welfare of the patient". Best practice would be for the RMO responsible for the child's care to be a child specialist.

30 If there is no option but detention, it would be best practice to admit the child, wherever possible, to a unit specialising in child and adolescent psychiatry. Practitioners are reminded of the requirement which section 23(1)(b) of the Act places on Health Boards to provide "such services and accommodation as are sufficient for the particular needs of that child or young person".

31 If the detained child 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. Any risks to the child should be identified in advance and a plan put in place to minimise such risks. This could entail, for example, prioritising the allocation of a single room and making special arrangements to monitor the child's general well-being within the ward environment. Particular consideration should also be given to the likely impact on the child or young person of the behaviour of other patients on the ward. Status should be given to the need to protect them from exposure to distressing experiences or potential risk. While these points are, of course, also very relevant to the detention of adults, they should be given particular consideration where a child is being detained.

32 Where a child/adolescent subject to compulsory powers is in an adult ward, it would be expected that the relevant hospital managers would notify the Mental Welfare Commission of this fact to enable it to monitor the provision of age-appropriate services under the Act.

33 Persons discharging functions under the Act are also reminded of the provisions of section 278 of the Act. That section applies where a child or a person with parental responsibilities is subject to any provisions of this Act or the 1995 Children (Scotland) Act. It states that persons discharging functions under these Acts must take all practicable and appropriate steps to mitigate any effects of the measures authorised by the Acts which might impair the personal relations or diminish direct contact between a child and a person with parental responsibilities. The patient's designated MHO will play a particularly important role in this process, particularly in relation to liaising closely with colleagues in social work children and families' teams.

Interpretation of expiry of compulsory power

34 The various detention certificates and orders which can be granted or made under the Act have time limits. Taking the example of a short-term detention certificate, two powers are authorised. The first is the power to remove the patient to hospital or to a different hospital. Section 44(5)(a) of the Act states that this removal must take place "before the expiry of the period of 3 days beginning with the granting of the short-term detention certificate". The time limit runs from the exact time at which the event occurs: in this case the granting of the certificate. Therefore, if a short-term detention certificate is granted at 6pm on Monday, the removal to hospital must have taken place by 6pm on Thursday.

35 The second power authorised by a short-term detention certificate is a power under section 44(5)(b) of the Act to detain the patient in hospital for a period of 28 days. If the patient is already in hospital, the time limit will run from the beginning of the day on which the certificate is granted (see section 44(5)(b)(ii)). If the patient is being transferred from the community the time limit will run from the beginning of the day on which the patient is admitted to hospital (see section 44(5)(b)(i)). Therefore, for the purposes of section 44(5)(b), the time period runs from the beginning of the first day rather than the exact time at which the event took place. The whole day on which the event occurs is included in the calculation. For example, if a patient is admitted to hospital under a short-term detention certificate at 6pm on 2 January, the power to detain the patient in hospital begins at 00.00 midnight of 2 January (that is, during the night of 1 and 2 January) and expires at 00.00 (midnight) of 30 January (that is, during the night of 29 and 30 January). All other references in the Act to the expiry point of compulsory powers should be read in this light.