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

chapter 2 short-term detention certificate (part 6)

Introduction

This chapter sets out the procedures which must be followed where the granting of a short-term detention certificate is being considered in accordance with the provisions of Part 6 of the Act. As stated in Chapter 1, short-term detention is the preferred "gateway order" to compulsory powers.

The chapter begins with a general overview of the provisions which relate to the granting of a certificate as a means of establishing the framework in which short-term detention operates.

The remainder of the chapter traces the specific procedures which must be gone through for a valid short-term detention certificate to be granted, extended and suspended.

At the end of the chapter, a flowchart illustrates the process by which a medical practitioner grants a short-term detention certificate.

Overview of short-term detention

How long does a period of short-term detention last?

01 The detention period is 28 days.

02 If a patient is not in hospital before the certificate is granted, the granting of the certificate authorises two separate procedures. These are:

• the patient's transfer to hospital. This transfer must take place within
  3 days of the certificate being granted; and

• the patient's detention in hospital for a further 28 days.

03 For further information with respect to how these time periods should
be interpreted, see paragraph 20 of Chapter 1 of this Volume of the
Code of Practice.

04 The granting of a short-term detention certificate does not in itself authorise the patient's detention in hospital where the patient was in the community before the certificate was granted. The detention is only authorised when the short-term detention certificate has been given to the managers of the hospital in which the patient is to be detained before the patient is admitted to the hospital. Therefore, with respect to a patient who was in the community prior to the certificate being granted, the 28 day detention period begins with the patient's admission to hospital under the authority of the certificate.

05 If the patient is already in hospital before the certificate is granted, he/she may only be detained for a period of 28 days from the beginning of the day on which the certificate is granted.

06 Although a short-term detention certificate authorises a 28 day period of hospital detention, it should not be assumed that the patient is always to be detained for the full 28 days. The detention certificate must be revoked if the relevant detention criteria are no longer met.

07 A short-term detention certificate can only be extended in two ways:

• by an extension certificate granted under section 47 of the Act; or

• by the 5 working days extension period permitted by section 68 of
  the Act where an application has been made for a compulsory treatment order.

08 For further information on these extensions, see paragraphs 79 to 91 of this chapter.

When can a short-term detention certificate be granted?

09 A short-term detention certificate can be granted where the criteria set out at section 44 of the Act have been met. It is important to note that a short-term detention certificate can be granted in respect of a patient who was immediately beforehand not subject to an emergency detention certificate.

10 A short-term detention certificate should be granted in preference to an emergency detention certificate, where this is practicable and where the relevant detention criteria have been met. For further information on this point, see the section on the "overview of the civil compulsory powers" in Chapter 1 of this Volume of the Code of Practice.

Who cannot be made subject to a short-term detention certificate?

11 Section 44(1) and (2) of the Act state that a short-term detention certificate may not be granted in respect of a patient who was subject to any of the following authorities to detain immediately before being examined for the purpose of the granting of the short-term detention certificate:

• a short-term detention certificate;

• an extension certificate granted under section 47 of the Act;

• section 68 of the Act;

• a certificate issued under sections 114(2) or 115(2) of the Act.

Who has the authority to grant a short-term detention certificate?

12 A short-term detention certificate may only be granted by an approved medical practitioner (that is, a practitioner approved by a Health Board under section 22 of this Act).

Conflicts of interest with respect to short-term detention

13 Section 44(1) and (3) state that a short-term detention certificate may only be granted where there is no conflict of interest with respect to the medical examination. Section 44(8) provides a regulation-making power to define what is meant in this context by a conflict of interest. (See The Mental Health (Conflict of Interest) (Scotland) (No 2) Regulations 2005 ( SSI No. 262)).

Those regulations state that a conflict of interest may exist where the approved medical practitioner is:

short-term detention -

• related to the patient in any degree (see prohibited degree of relationship below)

• employed by, or contracted to provide services in or to, an independent health care service in which the patient will be detained

co mpulsory treatment -

• either practitioner is related to the patient (see prohibited degrees of relationship below)

• the two medical practitioners are related to each other in any degree (see prohibited degrees of relationship below)

• where it is proposed the CTO treatment authorise detention of the patient in an independent health care service and either medical practitioner is employed by or contracted to provide services in or to that hospital

Prohibited degrees of relationship are:

• child, grandchild, parent, grandparent, wife, husband, sister, brother, daughter-in-law, son-in-law, mother-in-law, father-in-law, sister-in-law, brother-in law, cohabitee or family of the cobabitee

14 There are, however, circumstances where there will not be considered a conflict of interest for a short-term detention. These are where the failure to carry out the medical examination by the approved medical examiner would result in a delay which would involve serious risk to the health, safety and welfare of the patient or to the safety of other persons.

15 In addition, if one of the medical practitioners is a consultant, the other medical practitioner must not work directly with or under the supervision of that consultant.

16 It would be best practice in such circumstances for the RMO to record the conflict(s) of interest which exist and their reason for their involvement
in the short-term detention.

17 Although the Act makes no reference to conflicts of interest which may arise in relation to the MHOs involvement in the detention process, an MHO should nonetheless bear in mind that it would be best practice to avoid becoming involved in the detention of a colleague, close relative or friend, etc. An MHO who believes that a conflict of interest might arise in relation to the proposed detention should request his/her local authority employers to allocate another MHO to deal with the case.

Does the patient have a right of appeal against short-term detention?

18 Yes. The patient and the patient's named person both have a right to apply to the Tribunal under section 50 for a revocation of the short-term detention certificate. Further information on this provision can be found in paragraphs 72 to 75 of this chapter.

19 The Mental Welfare Commission also has a power to revoke a short-term detention certificate under section 51 of the Act. Further information on this provision can be found in paragraphs 76 to 78 of this chapter.

Are the detention procedures relating to hospital in-patients different from those relating to a person who was in the community when the certificate was granted?

20 No, the statutory procedures with respect to the granting of the certificate are the same. It should be remembered, however, that a hospital in-patient may only be detained on the authority of a short-term detention certificate for a total of 28 days. The 2-stage process of 3 days for the patient's removal to hospital followed by 28 days of hospitalisation does not apply where a short-term detention certificate is granted with respect to a hospital in-patient.

21 For a discussion of issues relating to the subject of unlawful detention with respect to informal patients, please see Chapter 7 of Volume 1 of the Code of Practice.

Process preceding the granting of the short-term detention certificate

Which criteria must be met before the short-term detention certificate can be granted?

22 The approved medical practitioner must consider it likely that the criteria which are listed at section 44(4) of the Act have been met before a short-term detention certificate can be granted. The criteria are that:

• the patient has a mental disorder;

• because of the mental disorder, the patient's ability to make decisions about the provision of medical treatment is significantly impaired;

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

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

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

23 It should be noted that these conditions are cumulative: that is, that all five conditions must be met before the short-term detention certificate can be granted.

24 In instances where the practitioner believes that the patient will not undergo treatment voluntarily during the detention period even if the patient claims to consent to treatment before or at the beginning of the detention period, the practitioner should use his/her judgement to decide whether the patient's claim can be relied upon. This requires a close examination of the person's previous psychiatric history and also as full and proper a consultation between the medical practitioners, the MHO and relevant other parties providing care and treatment to the patient as patient confidentiality allows.

What form of medical examination should the medical practitioner carry out before granting a short-term detention certificate?

25 In deciding which form of medical examination is appropriate, it is important to remember that the period of detention authorised by a short-term detention certificate is longer than that authorised by an emergency detention certificate. Moreover, a short-term detention certificate authorises the patient's detention in hospital for the dual purpose of determining what medical treatment needs to be given to the patient as well as for the giving of medical treatment for mental disorder under Part 16 of the Act. This is in contrast to an emergency detention certificate which only authorises the patient's detention in hospital for the purpose of determining what medical treatment needs to be given. It would therefore be expected that the medical practitioner would carry out a sufficiently thorough examination of the patient to justify this longer period of detention and the giving of medical treatment authorised by a short-term detention certificate.

26 It would be expected then that an examination would always include:

• a direct, face-to-face, personal examination of the patient;

• a mental state examination;

• an assessment of the patient's decision-making ability and of whether the patient will agree to treatment on a voluntary basis;

• an assessment of the patient's physical state in order to help decide whether the patient should be sent to a psychiatric hospital receiving service or to a medical hospital receiving service;

• an assessment of the potential risk to the patient and/or others; and

• consideration of as much available and relevant information on the patient's medical and social circumstances as is possible under the circumstances of an emergency, including, where available and practicable, what is contained in past records, case notes as well as the views of carers and any other parties who may be providing care and treatment to the patient.

27 Where the patient will not consent to being examined, the medical practitioner should weigh up whatever information is available in the context of the patient's current presentation, their past psychiatric history and the views of other members of the multi-disciplinary team to make a pragmatic decision balancing the right of the patient to treatment with the need to provide such treatment in the least restrictive environment. It may well be that an emergency detention certificate would be the most appropriate detention authority to grant in such cases, assuming that the relevant detention criteria are met.

28 It should be noted that section 44 of the Act provides that the short-term detention certificate must be granted within 3 days of the completion of the initial medical examination.

Which other steps must the approved medical practitioner take before the certificate can be granted?

29 The Act imposes two specific duties on the approved medical practitioner. These are:

• to consult and obtain the consent of an MHO to the granting of the certificate; and

• to consult and have regard to the views of the patient's named person, where it is practicable to do so.

30 The first duty is to consult an MHO with regard to the granting of a short-term detention certificate. The certificate can only be granted if that MHO has granted his/her consent. It would be expected that a medical practitioner would not 'shop around' for an MHO who will consent to the granting of the detention certificate where one MHO has already refused consent. However, to account for a highly exceptional circumstance in which a medical practitioner wishes to seek a second MHO opinion, it will be important for the procedures for and the circumstances in which such a second opinion may be sought to be set out in agreed protocols between the local authority and the relevant health partners. In any case where a second MHO assessment is sought, the second MHO should always be informed that another MHO has already refused consent to the granting of the certificate and of the reasons for this refusal.

31 The second duty is to consult the patient's named person and have regard to their views with respect to the proposed detention certificate, where this is practicable to do so. A medical practitioner will need to remember that the Act places a duty on the MHO to ascertain the name and address of the named person. (For further details on this point see paragraphs 45 and 51 of this Chapter.) The MHO should pass these details to the approved medical practitioner as quickly as possible within the detention process to enable the approved medical practitioner to comply with this duty of consultation.

32 Where it has not been practicable for the approved medical practitioner to consult the named person in advance of granting the certificate, it would be best practice for him/her to attempt to consult the named person as soon as practicably possible after the certificate has been granted.

33 In considering whether or not it would be appropriate to grant a short-term detention certificate, the approved medical practitioner should take into account relevant information from the other members of the multi-disciplinary team who are providing care and treatment to the patient. The MHO and AMP should also remember that section 1(3) of the Act imposes on them a duty to have regard to the views of the present and past wishes and feelings of the patient which are relevant to the situation and to the views of the patient's named person, any carer, guardian and welfare attorney of the patient.

Which steps must be taken by the MHO before consenting to the granting of the certificate?

34 Before the MHO can come to a conclusion on whether or not to consent to the granting of the short-term detention certificate, he/she will need, wherever practicable, to try to elicit the views of the patient with respect to the proposed detention and to any alternative courses of action. The MHO will then need to elicit relevant information about the patient's personal and social circumstances from other mental health professionals who have knowledge of the patient. This could involve a discussion with the medical practitioner about his/her views on why a period of detention is appropriate; what he/she has observed; why he/she feels that the person's health, safety or welfare or the safety of others is at significant risk as a result of the mental disorder; and why any delay in having recourse to a short-term detention certificate would be undesirable. It will also be important to seek information on such issues from other sources where they are available and where this proves to be practicable. These other sources could include the patient's named person, where the patient already has one, or carers/relatives. Any advance statement, where one exists, should also be considered. All such information will be of relevance not only to the MHO in his/her decision about granting consent but also to the practitioner who is considering whether or not to grant the certificate.

35 Once the MHO is in possession of as much of the above information as is possible and practicable in the circumstances, he/she will need to assess any possible alternatives to the proposed period of formal detention in hospital. He/she should therefore make sure that as many forms of informal and less restrictive treatment as practicable have been explored before consenting to the last resort of compulsory detention.

36 An important consideration for the MHO in deciding whether or not to consent to the granting of the certificate is the likely impact on the person and their carers/family of the detention not taking place. The MHO will therefore need to give serious consideration to whether the patient's family/carers, etc are willing and able to continue to care for and support the patient in an appropriate manner, if they have already been involved in doing so, and, if not, whether alternative forms of community-based care and support is appropriate and available.

37 It would be expected that, where practicable, if the patient has been in receipt of mental health services prior to the certificate being granted, members of the multi-disciplinary team providing those services would be consulted. This will be particularly important where the patient was immediately beforehand subject to an emergency detention certificate. These parties may be able to provide knowledge of the possible and viable alternatives to compulsory powers and may also need to be involved in planning the patient's care and treatment if the detention certificate is ultimately granted.

38 In essence, the MHO should be taking into account the following questions when deciding whether to consent to the granting of the short-term detention certificate:

• do you believe, after appropriate assessment, that all the detention criteria have been met?

• do you believe that the principles of the Act (see sections 1 and 2 of the Act) have been adhered to in both letter and spirit? For example, have all relevant, less restrictive alternatives been considered?

• is there strong reliable evidence that the patient's treatment could be provided on a voluntary basis? Do you believe that recourse to compulsory measures could be avoided whilst protecting the patient's rights?

• are you and the approved medical practitioner in possession of sufficient information on which to base a sound professional judgement?

39 In order to be in a position to answer the questions above, the MHO must comply with a series of duties. These duties are outlined in section 45 of the Act. The MHO must:

• interview the patient;

• ascertain the name and address of the patient's named person; and

• inform the patient of the availability of independent advocacy services; and

• take appropriate steps to ensure that the patient has the opportunity to make use of these advocacy services.

These three areas are dealt with in paragraphs 41 to 54 of this chapter.

40 In circumstances where it is impractical for the MHO to interview the patient or to ascertain the name and address of the patient's named person, the MHO must record the steps taken with a view to complying with the duties, and before the expiry of 7 days beginning with the day the MHO was consulted, give a copy of that record to the AMP.

The MHO's interview with the patient

41 During the interview, the MHO should explain to the patient what a period of short-term detention can involve in the event of the certificate being granted. The MHO should also attempt to learn the patient's views on his/her circumstances, his/her attitude towards the assessment of mental disorder and the proposed treatment (where this is known) and the proposed hospitalisation. It would also be good practice to provide the patient with an explanation of his/her right to appeal to the Tribunal and with advice on how to access legal support as well as the support of an independent advocate in the event of the detention certificate being granted.

42 There are only a small number of circumstances in which the MHO might consider consenting to the granting of the certificate without, at the very least, having been in the physical presence of the patient. Circumstances which would not preclude the MHO giving his/her consent to the certificate being granted without having interviewed the patient could include:

• where communication difficulties with the patient cannot be overcome speedily; and

• where the patient is extremely dangerous or violent; and

• where the patient refuses to co-operate or participate in the interview.

43 Even under such circumstances, it would be expected that the MHO would elicit as much information as possible about the proposed detention from the patient's family, friends, carers, GP, psychiatric nurse, advance statements, social work records in advance of granting his/her consent to the detention certificate. Similarly, it may well be best for the MHO to defer his/her decision with respect to consenting to the granting of the certificate until the patient can be interviewed in more favourable circumstances.

44 There may be other exceptional circumstances (such as a ferry strike, etc) which would prevent the MHO from interviewing the patient. Given that such circumstances are by their nature exceptional and given that standard practice routinely includes a face-to-face MHO assessment, it would be appropriate for consent to be given where the MHO is satisfied that the approved medical practitioner's assessment is based on the fullest set of information available. It would be best practice for the MHO, however, to ensure that he/she undertakes an assessment of the patient as soon as is possible after the certificate has been granted and to make available to the hospital managers, the relevant local authority/authorities and the Commission a full account of the exceptional circumstances which led to the MHO consenting to the certificate without interviewing the patient.

45 If an MHO refuses to consent to the granting of a short-term detention certificate (assuming that he/she has had an opportunity to assess the patient), it would not be acceptable for that medical practitioner to grant an emergency detention certificate instead (for which the consent of the MHO is not mandatory), unless the patient's clinical situation has changed in the interim. However, the MHO would still need to be able to justify his/her refusal to consent to the detention against the opinion of the approved medical practitioner. Many of the duties which an MHO would be expected to carry out subsequent to a refusal to consent to the granting of an emergency detention certificate apply to a refusal to consent to the granting of a short-term detention certificate (see Chapter 7 of this Volume). In particular, it would be best practice for the MHO to submit a justification of his/her refusal to the MWC and the RMO and for that to be included in the patient's medical notes. Rather than refuse consent to the certificate outright, one option might be for the MHO to encourage the practitioner to defer making a firm decision on the need to grant the certificate until the MHO has had the full opportunity to contribute to the joint assessment process. The short-term detention certificate can, after all, be granted up to 3 days after the initial medical examination has taken place.

Ascertaining the name and address of the patient's named person

46 Section 45(1)(b) of the Act states that the MHO must ascertain the name and address of the patient's named person before deciding whether to consent to the granting of the short-term detention certificate. Identifying the patient's named person may necessitate discussion with the medical practitioner who is considering granting the detention certificate and/or other relevant professionals as to whether the patient has the capacity to nominate a named person.

47 It would be best practice for the MHO to first explain to the patient verbally and with a follow-up leaflet, the status and rights of the named person with respect to the short-term detention certificate as well as the role they can play in the CTO application process and beyond. The MHO will consequently also need to explain the difference between the roles of the named person and the independent advocate.

48 An MHO will need to be very familiar with the procedures outlined in Part 17 Chapter 1 of the Act regarding the nomination process of the named person. This is because under section 255 of the Act the MHO has a duty in certain circumstances and a power at other times to apply to the Tribunal for an order under section 257 to remove and replace an "apparent named person" ( i.e. a person whom the MHO has deemed to be inappropriate to act in that role). The decision as to whether or not the apparent named person is inappropriate to act should not be made by the MHO alone but in consultation with other relevant parties of the patient's multi-disciplinary team. The expectation is that the patient's
right to choose whom he/she wishes to have as a named person
would be respected. The MHO has no power to veto the patient's
choice at the time of nomination, nor should they apply undue influence on the patient. The MHO should intervene using the powers given at section 255 only where there are clear and significant reasons for doing so. (For further information regarding the nomination process of a named person, see Part 17 Chapter 1 of the Act or Chapter 2 of Volume 1 of the Code of Practice.)

49 The MHO should explain to the patient that in the absence of them nominating a named person, their primary carer shall become their named person. When ascertaining the identity of the named person and the primary carer, the MHO should be careful to balance the patient's rights with respect to confidentiality (the patient may wish, for example, a relative with whom they have a poor or abusive relationship to know little about their detention) with the need for the MHO to be in possession of sufficient information on which to make an informed decision.

50 As with all occasions where a named person is being nominated, the MHO should consider the impact on the nearest relative/primary carer where they are not nominated as the named person. This could be done by explaining to them the role of the named person and the rights of relatives or carers who are not nominated as the patient's named person.

51 The MHO should make sure that the named person is fully aware of the fact that they have been nominated; of the fact that he/she is indeed willing to act as the named person; what the role of named person entails; and what rights and responsibilities it confers on them, for example, in relation to making an application to the Tribunal to revoke a short-term detention certificate. It would also be best practice for the MHO to ascertain at this stage whether the patient has an advance statement and, where one exists, to convey information on its existence and contents to the relevant parties providing the patient with medical treatment.

Informing the patient of independent advocacy rights

52 The MHO should provide an explanation to the patient of the role of an independent advocate and of how an independent advocate might be able to help them both now and in the future. Wherever possible, this should be done in person. The MHO should also make this information available in printed form in appropriate languages/format, etc. As with any process of information giving, this should be a dynamic process with an ongoing assessment of the patient's capacity to understand and retain the information. Merely handing a leaflet to the patient is unlikely to be considered as acceptable in terms of the MHO fulfilling their duties.
It may be acceptable, however, if all other options have been tried and have failed. Overall, the MHO may be assisted in carrying out these duties by other members of the multi-disciplinary team involved in the patient's care and treatment.

53 The MHO will also need to play a part in ensuring that hospital ward staff (if the patient is ultimately detained) are aware of the extent of the independent advocate's involvement in that patient's case. The MHO will want to monitor effective access to independent advocacy services and to intervene more actively where problems arise.

54 It should be noted that section 260(2)(a)(iii) places a duty on hospital managers to inform the patient, subsequent to a range of events taking place, of the availability of independent advocacy services and to take appropriate steps to ensure that the patient has the opportunity to make use of those services. One such event is the granting of a short-term detention certificate.

When must the certificate be completed and what might it look like?

55 Section 44(1) states that the approved medical practitioner who examined the patient must grant the certificate. It cannot be completed by anyone else. The detention certificate must be granted within 3 days of completing the medical examination. (There is no form prescribed for these treatments but a pro-forma, DET2, may be found on the Scottish Executive website at: www.scotland.gov.uk/health.mentalhealthlaw.)

56 Section 44(9) states that the certificate must state the reasons for believing the criteria for granting the certificate to be met. The medical practitioner should give specific reasons on the detention certificate for why he/she believes each of the conditions are met. One 'blanket' reason should not be given to cover all the criteria. The medical practitioner must sign the certificate.

Process following the granting of the short-term detention certificate

Transferring and admitting the patient to hospital

57 Where a short-term detention certificate is granted in respect of a person who was not a hospital in-patient when the certificate was granted, many of the same problems and issues will arise with respect to that person's transfer and admission to hospital as arise in relation to the transfer and admission of a person subject to an emergency detention certificate. For further information on this subject and on psychiatric emergency plans, please see Chapter 7 of this Volume of the Code of Practice.

What should the medical practitioner who granted the certificate do after it has been granted?

58 Where that practitioner is to have no further involvement with the patient's care and treatment, the only duty on that medical practitioner is to ensure that the detention certificate is passed to the managers of the hospital in which the patient is to be detained. Section 44 makes clear that the patient's detention in hospital is only authorised if the certificate has been given to the hospital managers before the patient is admitted. The actual person(s) in an individual hospital who may perform the function of receiving the certificate on behalf of the hospital managers should be clearly designated and identified by those managers.

What should the MHO do once the certificate has been granted?

59 The MHO must prepare a social circumstances report within 21 days of the short-term detention certificate being granted, unless he/she is satisfied that such a report would serve little or no practical purpose. For further information on social circumstances reports, see Chapter 11 of Volume 1 of this Code of Practice.

60 Best practice would suggest that the MHO should consider whether the following are appropriate:

• ensuring that the patient is as aware as is possible of his/her status and rights and has access to information on representation, advocacy services, and interpretation or translation services;

• consulting the patient's carers and eliciting their views;

• attending the ward assessment meeting and liaising with ward staff and other members of the multi-disciplinary team, particularly where the patient was using mental health services prior to being hospitalised;

• ensuring that ward medical staff are aware of the patient's views on consent to treatment, including the existence and content of any advance statement made by the patient;

• ensuring that a written record of the MHO's decision to give consent is included in the patient's records;

• liaising with community care teams, other sections of the local authority (Criminal Justice Teams, CMHT, Housing, Education, Leisure and Recreation, etc) and other relevant statutory and non-statutory organisations ( e.g. supported accommodation or visiting support workers) for the purposes of through-care planning, wherever necessary;

• ensuring that any dependants which the patient might have are being appropriately cared for, particularly where there may be children or other vulnerable persons previously in the charge of the patient;

• securing the patient's property and belongings, if necessary, and arranging, for example, suitable pet care;

• determining whether a full community care assessment should be undertaken under section 227 of the Act and make such a request to the local authority if they are not going to be undertaking this assessment themselves;

• beginning preparations for any eventual CTO application or for a discharge plan of care;

• attending to issues which the patient may face in relation to their personal finances ( e.g. benefits, employment, etc) because of their detention in hospital;

• making sure that the patient and the named person, etc remain fully aware of their rights throughout the detention period - for example,
  in relation to their right to appeal for a revocation of the short-term detention certificate under section 50 or in relation to their rights to advocacy services.

What duties are placed on hospital managers with respect to a short-term detention certificate?

61 The Act places a range of duties on the managers of the hospital to which the patient has been admitted when subject to a short-term detention certificate. These duties are set out in paragraphs 64 to 65.

62 Section 46 places a duty on hospital managers to notify certain parties of the granting of the short-term detention certificate as soon as is practicable after they have received the certificate. The parties are:

• the patient;

• the patient's named person;

• any guardian of the patient under the 2000 Act; and

• any welfare attorney of the patient under the 2000 Act.

63 Within 7 days of the certificate being granted, hospital managers must also notify the Tribunal and the Commission that the certificate has been granted. They must also send them a copy of the detention certificate. Best practice would suggest that the patient's named person, guardian, etc, be informed orally first (for example, by telephone) rather than have to wait for the formal written notification to arrive in the post several days after the detention has taken place.

64 Section 260 of the Act places a duty on the managers of the hospital to which the patient is admitted to provide the patient with a range of information which principally relates to the patient's rights. Section 261 similarly places duties on those hospital managers to provide the patient with assistance in overcoming communications problems.

65 Finally, section 230 obliges hospital managers to appoint an approved medical practitioner to act as the patient's responsible medical officer as soon as is practicable after the granting of the short-term detention certificate. Acute medical and surgical hospital management services will need to enter into local arrangements with psychiatric providers to ensure the availability of approved medical practitioners to act as the RMO for such a patient. (For further information on this, see Chapter 9 of Volume 1 of the Code of Practice.) Where it is practicable, it would be best practice for the approved medical practitioner appointed as the patient's RMO to be the same practitioner who examined the patient as soon as practicable after admission to hospital.

Which forms of treatment can be given to a patient subject to a short-term detention certificate?

66 Section 44(5) states that the patient can be given medical treatment for their mental disorder under Part 16 of the Act. For a discussion of the definition of medical treatment set out in the Act, see Chapter 1 of Volume 1 of the Code of Practice.

Revoking a short-term detention certificate

67 There are 3 ways in which a short-term detention certificate can be revoked, and these are described in paragraphs 68 to 78 of this chapter. The 3 ways are:

• by the patient's RMO;

• by the Tribunal subsequent to an application under section 50 by the patient or the patient's named person; and

• by the Commission.

Review and revocation of short-term detention certificate by RMO

68 Section 49 places a duty on the patient's RMO to keep under the review the continued necessity for the short-term detention certificate. If the RMO is satisfied that the patient no longer meets the detention criteria listed in section 49(1) of the Act or that the continued detention of the patient in hospital is no longer necessary, then the RMO must revoke the detention certificate. Where the RMO does revoke a certificate, he/she must as soon as is practicable give written notice of the revocation to the following parties:

• the patient;

• the patient's named person;

• any guardian of the patient;

• any welfare attorney of the patient; and

• the MHO who consented to the granting of the detention certificate.

69 The RMO must also give written notice to the Tribunal and the Commission within 7 days of the certificate being revoked. Best practice dictates that the patient and the parties listed at the paragraph above also be informed orally of the revocation of the detention certificate immediately. Close consideration should also be given to the actions required to meet any support needs as part of the discharge plan of care.

70 Although the RMO is under a duty to review the certificate "from time to time", best practice would suggest that the RMO keep the need for the certificate under continual review. In practical terms, this could mean carrying out an at least weekly review with input into the decision-making process from the full multi-disciplinary team involved with the patient's care. Moreover, all ward staff should remain active in this review process, and it will be vitally important that the RMO seeks the views of other members of the multi-disciplinary team, particularly from the patient's MHO, before taking the decision to revoke the certificate.

71 Note that the medical practitioner acting as the patient's RMO is the only practitioner who can revoke a short-term detention certificate.

The patient's and the patient's named person's right to apply to the Tribunal for a revocation of the short-term detention certificate

72 Section 50 confers on the patient and the patient's named person the right to appeal to the Tribunal where the patient is subject to a short-term detention certificate. Before the Tribunal makes a decision on the appeal, it must allow the following parties the chance to make representations orally or in writing and to lead or produce evidence:

• the patient;

• the patient's named person;

• any guardian of the patient;

• any welfare attorney of the patient;

• the approved medical practitioner who granted the certificate;

• the MHO who consented to the granting of the certificate;

• the patient's RMO;

• any curator ad litem appointed by the Tribunal; and

• any other person who appears to the Tribunal to have an interest in the application (for example, the patient's nearest relative (if they are not the primary carer), solicitor, other medical practitioner or clinical psychologist they wish to call to give evidence, etc).

73 In determining the appeal, the Tribunal must judge whether the criteria listed at section 50(4) continue to be met. The criteria are:

• that the patient has a mental disorder;

• that, because of that mental disorder, the patient's ability to make decisions about the provision of medical treatment for that mental disorder is significantly impaired; and

• that 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.

74 If these criteria do not continue to be met, or if the Tribunal is not satisfied that it continues to be necessary for the patient's detention in hospital to be authorised by the short-term detention certificate, then the Tribunal must revoke the certificate.

75 It should be noted that the onus does not rest on the patient (or the patient's representatives) to demonstrate that the patient does not require to be subject to the compulsory powers authorised by the certificate. Instead, evidence justifying the continuing recourse to compulsory powers will have to come from a range of sources, including the patient's RMO (if one has been appointed), the medical practitioner who granted the certificate, and other members of the multi-disciplinary team providing care and treatment to the patient.

The Commission can revoke the certificate

76 Section 51 of the Act confers on the Commission a power to revoke a short-term detention certificate where it is not satisfied that the following conditions continue to be met:

• that the patient has a mental disorder;

• that, because of that mental disorder, the patient's ability to make decisions about the provision of medical treatment for that mental disorder is significantly impaired; and

• that 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.

77 The Commission may also revoke the short-term detention certificate where it is satisfied that it is no longer necessary for the patient to be detained in hospital on the authority of the certificate.

78 Where the Commission revokes a certificate under these circumstances, it must notify in writing the following parties as soon as is practicable after revoking the certificate:

• the patient;

• the patient's named person;

• any guardian of the patient;

• any welfare attorney of the patient;

• the managers of the hospital in which the patient is detained;

• the MHO who consented to the granting of the certificate; and

• the Tribunal.

Extending a period of short-term detention

79 There are two ways in which a period of short-term detention can be extended. These are:

• the granting of an extension certificate under section 47 of the Act; and

• where a CTO has been submitted to the Tribunal.

Granting an "extension certificate"

80 The first way in which a period of short-term detention can be extended is by the granting of an "extension certificate" under sections 47 and 48 of the Act. This is a detention certificate which authorises the patient's continued detention in hospital for a period of 3 working days beginning with the expiry of the short-term detention certificate. It also authorises the giving of medical treatment to the patient in accordance with Part 16 of the Act. The purpose of an extension certificate is to extend the patient's detention in hospital in order to enable an application for a compulsory treatment order to be prepared.

81 An extension certificate may only be granted by an approved medical practitioner in terms of section 47(1) of the Act. It should be noted that the certificate must be granted within the period of 24 hours beginning with the completion of the medical examination. Where an extension certificate is granted, it is recommended that form is always used.

When may an extension certificate be granted?

82 The power to grant an extension certificate should only be exercised where there has been a change in the patient's health in the days immediately prior to the expiry of the short-term detention certificate with the result that there would be insufficient time to put together an application for a compulsory treatment order. The criteria which must be met before this extension certificate can be granted are:

• that the patient has a mental disorder;

• that, because of the mental disorder, the patient's ability to make decisions about the medical treatment to be provided for that mental disorder is significantly impaired;

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

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

• that because of a change in the mental health of the patient, an application for a CTO should be made.

83 These detention criteria are very similar to those which must be met before a short-term detention certificate can be granted. Note, however, that section 47(2)(b) of the Act states that the approved medical practitioner must consider these criteria to be met. This compares with the detention criteria for a short-term detention certificate where the RMO need only consider that the relevant detention criteria are likely to be met (see section 44(3)(b) of the Act).

84 It would be best practice to ensure that, where practicable, the extension certificate be granted by the patient's RMO rather than a different approved medical practitioner who has had little contact with the patient during the period of detention authorised by the period of short-term detention. The approved medical practitioner who examines the patient prior to the granting of the extension certificate should also ensure that there is no conflict of interest in relation to the medical examination.

Conflict of interest with respect to the granting of an extension certificate

85 Section 47(2)(a) of the Act stipulates that an extension certificate may only be granted where there is no conflict of interest in relation to the medical examination. Section 47(5) provides for a regulation-making power to specify the circumstances in which there is and there is not be taken to be such a conflict of interest. The Mental Health (Care and Treatment) (Conflict of Interest) (No 2) (Scotland) Regulations 2005 apply when granting an extension certificate as when granting a short-term detention certificate. See paragraph 13 of this chapter for details.

Must an MHO be consulted in advance of the extension certificate being granted?

86 Yes. An MHO should be consulted and his/her consent sought, wherever practicable, before the practitioner can grant an extension certificate. The Act states that the consent of anMHO is required before the certificate can be granted, where this is practicable. This means that the practitioner may seek the consent of anyMHO rather than the consent of the designated MHO. However, it would always be best practice to make every effort to involve the designated MHO to ensure continuity and consistency in the assessment process.

Who must be notified that an extension certificate has been granted?

87 Within 24 hours of the extension certificate being granted, the approved medical practitioner must give the extension certificate to the managers of the hospital in which the patient is to be detained. That practitioner must also provide notification of the granting of the extension certificate to the following parties:

• the patient;

• the patient's named person;

• the Tribunal;

• the Commission;

• any guardian of the patient;

• any welfare attorney of the patient; and

• the patient's MHO.

88 The parties listed in the previous paragraph must also be notified of a range of other issues connected to the granting of the certificate under section 48(1) of the Act. These are:

• the approved medical practitioner's reasons for believing that the patient met the detention criteria listed at section 44(4)(a) to (d) of the Act (that is, the conditions described in paragraph 84 above);

• whether the consent of an MHO was obtained to the granting of the extension certificate; and

• if the consent of an MHO was not obtained prior to the extension certificate being granted, the reason why it was impracticable to consult an MHO.

89 The practitioner should consider whether the parties listed at paragraph 89 above should be informed verbally first as if notification is sent out in the post, it is unlikely to be received within 24 hours.

Can an extension certificate be revoked? Is there an appeal procedure against an extension certificate?

90 Yes. The appeal and revocation procedures with respect to extension certificates are the same as those relating to a short-term detention certificate. For further information on these procedures, see paragraphs 68 to 71 and 72 to 78 of this chapter, respectively.

Extending the short-term detention period pending the outcome of a CTO application

91 The second way in which a period of short-term detention can be extended is where a CTO application has been submitted to the Tribunal. Section 68 of the Act states that once an application for a CTO has been submitted to the Tribunal, the patient's detention in hospital continues to be authorised for a further 5 working days from the point where the short-term detention certificate or extension certificate would have expired.

Interaction of short-term detention certificates with other detention certificates

92 Section 55 of the Act states that any emergency detention certificate must be revoked once the short-term detention certificate has been granted. Section 56 of the Act provides that where a patient is subject to a compulsory treatment order and a short-term detention certificate is granted in respect of that patient, the measures authorised in the CTO cease to be authorised for the period of the short-term detention certificate.

93 It would be best practice to ensure that the notifications of both the detention and its subsequent revocation have been made as required by the Act.

Suspending a short-term detention certificate (sections 53 and 54)

94 Where a patient is subject to a short-term detention certificate and is detained in hospital on the authority of that certificate, it is possible to suspend that certificate for a limited period of time (and thereby suspend the patient's detention in hospital) without revoking the certificate in its entirety. Under such circumstances, section 53 of the Act allows for a "suspension certificate" to be granted. Such a certificate can only be granted by the patient's RMO.

How long does a suspension certificate last?

95 A suspension certificate can last for any period of time stipulated by the patient's RMO. In terms of section 53(2), this period specified in the suspension certificate may be the duration of an event or series of events with or without any associated travel. By implication, the time and date on which this suspension certificate is due to expire may not go beyond the time and date on which the short-term detention certificate is due to expire.

Can conditions be attached to the suspension certificate?

96 Yes. The patient's RMO may attach conditions to this suspension certificate. In terms of section 53(4) of the Act, such conditions are that:

• the patient be kept in the charge of a person authorised in writing for that purpose by the patient's RMO for the period specified in the certificate; and

• any other conditions which the patient's RMO wishes to specify.

97 The patient's RMO can only grant such conditions where, in terms of section 53(3) of the Act, he/she considers them to be in the interests of the patient or necessary for the protection of any other person. It should be noted that the RMO's giving of authority to another person to keep a patient in his/her charge can only be done in writing.

98 Examples of conditions which could be attached to a suspension certificate include that the patient live in a specified place under the care of a specified person; be kept in the charge of an escorting nurse; or that the patient accept visits from a medical practitioner or an MHO. It would be best practice for the RMO to ensure that the patient's MHO and other members of the multi-disciplinary team are informed of any conditions attached to the suspension certificate, and to ensure that procedures and contingency plans are put in place for any occasion where the conditions are not complied with.

When would it be appropriate to grant a suspension certificate?

99 The range of events and occurrences which might give rise to the granting under section 53 of a suspension certificate is likely to be greater than that which might give rise to the granting of a suspension certificate under section 41 of the Act suspending an emergency detention certificate. It may be necessary to suspend the short-term detention certificate in order to plan discharge and care planning: for example, to allow the patient to visit and/or be assessed by a community care service provider; or to allow the patient to be gradually re-integrated into their pre-existing social circumstances in the community, including making visits and staying overnight at home, with relatives and carers,
or in other care facilities. Before any decision is taken with respect to granting a suspension certificate, however, it would be expected that the patient's RMO consult with the MHO and other members of the multi-disciplinary team. The potential risk to the health and welfare of the patient and of others should be assessed as well as the extent to which the proposed suspension period will aid the patient's recovery. Practitioners are also reminded that they should have regard to the matters laid out in sections 1 to 3 of the Act, when deciding whether or not to grant a suspension certificate.

100 A suspension certificate should not be granted under section 53 of the Act as a means of managing beds in wards which are running at or above capacity. A decision to suspend the power to detain the patient in hospital should only ever be taken where it is in the best interests of the patient.

Who is responsible for the patient's care and treatment while subject to a suspension certificate?

101 The patient's RMO remains responsible for the patient's care and treatment while the patient is subject to a suspension certificate. He/she must therefore ensure that appropriate arrangements are made for the patient's care and treatment while not in hospital. It should also be remembered that the duty under section 1(6) of the Act to provide "appropriate services" to the patient includes any time where the patient is subject to a suspension certificate.

102 It is important that the patient's relatives and/or carers (especially where the patient is residing with them for the duration of the suspension certificate) and all the members of the patient's multi-disciplinary team should have easy access to the RMO so that the patient's progress towards recovery can be effectively monitored and acted upon, where appropriate.

What should happen where a patient requires emergency treatment in another hospital?

103 There may be occasions where a patient who is detained in hospital on the authority of a short-term detention certificate requires to be transferred urgently to another hospital to receive emergency treatment for a physical disorder. A suspension certificate would not have to be granted under such circumstances as no hospital is specified in a short-term detention certificate. Best practice would suggest, however, that the RMO should take steps to ensure that the patient's named person, primary carer, MHO and other relevant members of the multi-disciplinary team are informed of any emergency transfer as soon as possible after it becomes apparent that the transfer may be necessary.

Can a suspension certificate be revoked?

104 Yes. There may be occasions where it is necessary for the patient's RMO to revoke a certificate suspending a short-term detention certificate. In accordance with section 54(2) of the Act, he/she may do this where he/she is satisfied that it is necessary in the interests of the patient to do so or that it is necessary for the protection of any other person to do so.

105 Where an RMO revokes a suspension certificate, he/she must in terms of section 54(3) of the Act notify in writing a range of parties of the revocation as soon as practicable after it has taken place. These parties are:

• the patient;

• the patient's named person;

• the patient's MHO;

• any person who had been authorised by the RMO to keep the patient in his/her charge for the duration of the suspension certificate; and

• the Commission.

(There is no form prescribed for these treatments but a pro-forma, REV1, may be found on the Scottish Executive website at: www.scotland.gov.uk/health.mentalhealthlaw.)

Guide for medical practitioners on the granting of a short-term detention certificate under section 44 of the Mental Health (Care and Treatment) (Scotland) Act 2003

Note 1: Only an approved medical practitioner may grant a short-term detention certificate ( i.e. a medical practitioner approved under section 22 of the Act).

Note 2: Section 328(1) of the Act defines "mental disorder" as "mental illness, personality disorder or learning disability, however not by reason only of 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 acting as no prudent person would act".

Note 3: The relevant provisions are set out at section 44(2) of the Act. They are:

• a short-term detention certificate;

• an extension certificate issued under section 47 of the Act pending an application for a CTO;

• section 68 of the Act ( i.e. the extension to the detention period authorised once a CTO application has been submitted to the Tribunal);

• a certificate granted under sections 114(2) or 115(2) of the Act ( i.e. a certificate issued subsequent to a patient's non-compliance with the terms of a community-based interim CTO or a CTO).

Note 4: Regulations prescribe the circumstances where there is and there is not to be taken a conflict of interest in relation to the medical examination of a patient subject to short-term detention in hospital and a CTO. The Regulations also list the prohibited degrees of relationship. For further information on conflict of interest, see Chapter 4 of this Volume of the Code of Practice.

Note 5: A short-term detention certificate can only be granted if you have consulted the patient's named person about the proposed granting of the certificate, where it was practicable to do so, and if you have had regard to their views.

Note 6: You should ask the MHO whose consent you have sought to the granting of the certificate about the identity of the patient's named person. Section 45(1) of the Act places that MHO under a duty to interview the patient and to ascertain the name and address of the patient's named person before he/she consents to the granting of the certificate, where it is practicable to do so. If the MHO cannot carry out these duties, he/she must provide you within 7 days of you consulting him/her with a copy of a record which states the steps which he/she took in trying to carry out these duties.

Note 7: There is no form prescribed when granting a short-term detention certificate but it is strongly recommended you use pro forma, DET2. This pro forma may be found on the Scottish Executive website at: www.scotland.gov.uk/health/mentalhealthlaw. Where pro forma DET2 is not used, for the certificate to be valid, it must state the practitioner's reasons for believing that the grounds for detention are met and must be signed by the practitioner. (See lilac box of flow chart overleaf.)

Note 8: The short-term detention certificate must be completed within 3 days of the completion of the medical examination.

Note 9: The short-term detention certificate authorises, firstly, the patient's transfer to hospital within 3 days of the certificate being granted and, secondly, the patient's detention in hospital for 28 days.

Note 10: Section 44(6) of the Act states that the patient's detention in hospital is only authorised if the certificate is given to the managers of the hospital before the patient is admitted to hospital under the authority of the certificate. If the patient is already in hospital when the certificate is granted, then the certificate must be given to the hospital managers as soon as practicable after it was granted.