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

chapter 7 emergency detention certificate (part 5)

Introduction

This chapter sets out the procedures which must be followed where the granting of an emergency detention certificate is being considered in accordance with the provisions of Part 5 of the Act.

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 emergency detention operates.

The remainder of the chapter traces the specific procedures which must be gone through for a valid emergency detention certificate to be granted.

The chapter closes with a discussion of the processes allied to the granting of a "suspension certificate": that is, a certificate which will temporarily suspend the requirement that the patient be detained in hospital.

Two flowcharts can be found at the end of this chapter. The first which is followed by a set of explanatory notes illustrates the statutory procedures to be followed by a medical practitioner when granting an emergency detention certificate. The second examines the occasions where an incapacity certificate may need to be granted under section 47 of the Adults with Incapacity (Scotland) Act 2000 instead of or in addition to an emergency detention certificate under the Act.

Overview of emergency detention

How long does a period of emergency detention last and when does the detention period begin?

01 The detention period is 72 hours.

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

• their transfer to hospital. This transfer must take place within 72 hours of the certificate being granted; and

• their detention in hospital for a further 72 hours.

03 Please see paragraph 22 of the Introduction Chapter of this Volume
for further information with respect to how these time periods should
be interpreted.

04 The granting of the emergency detention certificate does not in itself authorise the person's detention in hospital where the patient was in the community before the certificate was granted. Section 36(7) of the Act states that the detention of such a patient is authorised only if the emergency detention certificate has been given to the managers of the hospital in which the person is to be detained before the person is admitted to the hospital under the authority of that certificate. Therefore, with respect to a patient who was in the community prior to the certificate being granted, the 72 hour detention period therefore begins with the patient's admission to hospital under the authority of the certificate. It should be noted that the certificate does not have to be given to the managers of the hospital themselves. It may be given to a party acting on their behalf such as a member of the nursing staff on the admitting ward.

05 If a patient is already a hospital in-patient when an emergency detention certificate is granted, he/she may be detained for a total period of 72 hours. For such a patient the 72 hour period of detention begins at the point when the certificate was granted. Note also that the certificate gives authority to transfer the person from one hospital to another during that 72 hour period.

06 If a patient is in an Accident and Emergency Department and has not yet been admitted to hospital when the emergency detention certificate was granted, the patient should be considered as having been in the community prior to the certificate being granted, and the timescales relevant to a community-based patient should apply.

07 Although the transfer and detention periods have been described in the preceding paragraphs as 72 hours, these time periods should be understood as meaning up to 72 hours. The person should only be detained for as short a time as is possible and appropriate. If it is likely that a period of hospital detention lasting longer than 72 hours may be appropriate, a short-term detention certificate should be granted as early as is practicable and appropriate within the 72 hour period of emergency detention. The emergency detention certificate is revoked automatically on the granting of the short-term detention certificate.

08 It is important to note that a short-term detention certificate should be granted in preference to an emergency detention certificate, where this is practicable and where the relevant criteria have been met. For further information on this issue, please see paragraphs 20 to 21 of this Chapter as well as the overview of compulsory powers to be found in Chapter 2 of this Volume of the Code of Practice.

Who may not be made subject to a period of emergency detention?

09 Section 36 of the Act states that an emergency detention certificate may not be issued if, immediately before the medical examination is carried out, the person is detained in hospital by way of any of the following authorities:

• an emergency detention certificate;

• a short-term detention certificate;

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

• section 68 of the Act; and

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

Who has the authority to grant an emergency detention certificate?

10 Any registered medical practitioner may grant an emergency detention certificate: it is not necessary for the practitioner to be an approved medical practitioner. The practitioner must be a fully registered medical practitioner within the meaning of the Medical Act 1983.

11 An emergency detention certificate may not be granted by a different practitioner from the one who carried out the medical examination.

12 Best practice would suggest that the most suitable medical practitioner to grant the emergency detention certificate is the medical practitioner within the multi-disciplinary team currently responsible for the patient's care, in any case where the patient is already known to mental health services. For an in-patient, this would be the patient's current responsible medical consultant or his/her deputy. For a person who was in the community when the certificate was granted, this is likely to be their general medical practitioner. It would, however, of course be inappropriate in a situation of immediate risk to dispute which medical practitioner should grant the certificate. A pragmatic approach should be adopted in these circumstances, and the first practitioner to come into contact with the patient allowed to grant the certificate.

Conflicts of interest with respect to emergency detention

13 No regulations have been made under section 36(3) of the Act so in effect there can be no conflict of interest.

14 Nevertheless the detaining medical practitioner should bear in mind that it would be best practice to avoid becoming involved in the detention of a colleague, close relation or friend wherever possible. 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.

Is there a right of appeal against emergency detention?

15 No, the patient has no formal right of appeal against the granting of an emergency detention certificate. However, the patient's rights are protected by a range of factors which include:

• an MHO must, wherever practicable, be consulted and his/her consent sought to the granting of the emergency detention certificate;

• the medical practitioner who grants the certificate must provide on the certificate a justification of his/her reasons for granting the certificate;

• the managers of the hospital in which the patient is detained must notify the relevant local authority of the reasons why it was impracticable to consult and seek the consent of an MHO to the granting of the certificate, where this was the case;

• the Commission has the power under section 11 of the Act to investigate a case where a patient is subject to emergency detention;

• if it is deemed that ongoing detention would be appropriate, then the emergency detention certificate should be revoked as quickly as is practicable and a short-term detention certificate granted instead;

• the patient may not be given medical treatment in terms of Part 16 of the Act while subject to an emergency detention certificate; and

• the patient has a right of access to independent advocacy services under section 259 of the Act.

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

16 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 the emergency detention certificate for a total of 72 hours. The 2-stage process of 72 hours for the patient's removal to hospital followed by a further 72 hours of hospitalisation does not apply where an emergency detention certificate is granted with respect to a hospital in-patient.

17 Where a medical practitioner believes that it may be appropriate to grant an emergency detention certificate with respect to an informal in-patient, he/she would be well advised to discuss with that in-patient the various options for treatment including the possibility as a last resort of formal detention under the Act. The medical practitioner will also wish to ensure that the informal patient is provided with written information regarding their rights (for example, the right to apply to the Tribunal in relation to unlawful detention under section 291 of the Act).

18 Where an informal patient wishes to leave hospital against medical advice, he/she should not be placed in the position of feeling he/she must agree to stay in hospital purely because of the possibility of being detained under the Act. Such 'de facto detention' places restrictions on an informal patient without according him/her the protection of the rights he/she would be accorded were he/she to be formally detained; and it is important to remember that the patient's perception of whether or not he/she is likely to be detained if he/she does not comply with the medical practitioner's wishes is an important factor in deciding whether or not the patient is subject to 'de facto detention'.

19 It would, however, be appropriate for nursing staff to explain to a patient who is considering discharging him/herself or attempting to leave hospital the consequences of doing so: for example, that the nurse's holding power under section 299 of the Act could be exercised with a view to assessing whether the patient meets the criteria for the granting of an emergency or a short-term detention certificate. Nonetheless, an emergency detention certificate should never be granted purely as a means of preventing an informal patient from leaving hospital: the criteria for emergency detention at section 36 of the Act must always be met before the power may be exercised.

Processes preceding the granting of the emergency detention certificate

What are the criteria to be used when deciding whether an emergency detention certificate should be granted?

20 The criteria which must be met are laid out in section 36 of the Act. The medical practitioner must consider it likely that:

• the patient has a mental disorder; and

• because of that mental disorder, the patient's decision-making ability with regard to medical treatment for that mental disorder is significantly impaired.

21 The practitioner must also be satisfied that:

• it is necessary as a matter of urgency to detain the patient in hospital in order to determine what medical treatment should be provided to the patient for the suspected mental disorder;

• 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

• making arrangements with a view to granting a short-term detention certificate would involve undesirable delay.

22 It should be noted that the above conditions are cumulative: that is, that all five conditions must be met before the emergency detention certificate can be granted.

23 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.

When should an emergency detention certificate be granted?

24 An emergency detention certificate may be granted where the criteria at section 36 of the Act are met (see paragraphs 20 and 21 above). However, 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.

25 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; and

• 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.

26 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.

Emergency detention and the Adults with Incapacity (Scotland) Act 2000

27 A medical practitioner will need to decide whether a patient's condition and circumstances necessitate detention under the authority of an emergency detention certificate granted under this Act and/or whether the patient requires to be treated under the authority of a section 47 certificate granted under the Adults with Incapacity (Scotland) Act 2000 ("the 2000 Act"). This decision will depend on the nature of the intervention required and whether the patient meets the relevant criteria under the 2000 Act: for example, in relation to his/her capacity. An emergency detention certificate granted under this Act only provides a power to hold the person in hospital with no authority to provide medical treatment for mental or physical disorder. Where medical treatment for the mental disorder is urgently required, however, interventions are authorised under section 243 of the 2003 Act.

28 A certificate under section 47 of the 2000 Act, on the other hand, permits medical treatment for a physical disorder or for mental disorder where the patient is incapable in terms of section 1(6) of that Act of reaching a decision as to medical treatment. A section 47 certificate does not authorise the use of force or detention unless it is immediately necessary and only for as long as necessary in the circumstances. Moreover, it does not allow for a patient's detention in hospital for the purpose of being given medical treatment for mental disorder against his/her will. Detention with respect to treatment for mental disorder should be dealt with under mental health legislation. Where the patient is assessed as requiring medical treatment for a mental disorder but the patient objects and/or requires to be detained to administer that treatment, medical staff should have recourse to procedures under the 2003 Act rather than the 2000 Act.

29 There may additionally be occasions where it may be appropriate for a medical practitioner to grant both an emergency detention certificate and an incapacity certificate under section 47 of the 2000 Act: for example, where a patient has acute schizophrenia but also has insulin dependent diabetes. For an illustration of this point, see the flowchart at the end of this chapter.

What form of medical examination should the medical practitioner carry out before granting an emergency detention certificate?

30 A medical examination is required for the purpose of deciding whether or not to grant an emergency detention certificate. Best practice would be for such an examination to 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;

• a basic 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;

• a basic 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.

31 There may be occasions on which it would not be reasonable or practical to carry out such a complete medical examination because the situation presents too great a danger to the practitioner or because the patient will not consent to any form of examination. It would therefore be possible for a patient to be detained after a medical examination carried out by observation only (for example, through a letter box, or a window into a police cell). However, this should only happen where the medical practitioner has first exhausted all other appropriate means of communication with the patient.

32 There may also be occasions on which the medical practitioner may need to consider whether a warrant under section 35 of the Act is required. Such a warrant can be sought by a mental health officer where, for example, a medical practitioner wishes to carry out a medical examination of a mentally disordered person who may be subject or exposed to ill-treatment or neglect but where that practitioner is unable to obtain the consent of that person to the medical examination. Any such warrant, issued by a sheriff or a justice of the peace under section 35(4) of the Act, authorises the detention of the mentally disordered person for a period of 3 hours for the purpose of carrying out a medical examination. It should be noted that such a warrant does not authorise the person's removal from the premises which they are in at the time of the medical examination. A warrant issued under section 35(4) only authorises the person's detention. Where it is thought likely that the mentally disordered person should be removed from those premises to a place of safety, a warrant should be sought under section 293 of the Act. For further information on the various warrants available under the Act, see Chapter 15 of Volume 1 of the Code of Practice.

When must the medical practitioner involve an MHO?

33 Section 36(3)(d) of the Act makes clear that the medical practitioner must consult and seek the consent of an MHO to the granting of the certificate. However, the Act also recognises that there may be occasions where the urgency of the situation is so great that it would not be practicable for such consultation to take place. On such occasions it is permissible for the practitioner to grant the emergency detention certificate without the consent of an MHO.

34 Where the medical practitioner has been able to consult an MHO, it is imperative that the two parties engage in as much joint assessment and consultation as possible with respect to the patient before the certificate is granted. The MHO may be able to provide valuable information regarding, for example, any available alternatives to formal detention; the patient's personal and social circumstances which may have contributed to or caused the current crisis; and the views of the patient's family or carers; etc.

35 A medical practitioner should always make all reasonable efforts to contact an MHO before a certificate is granted. It should be noted that where a certificate is granted without MHO consent, the practitioner must inform hospital managers (who must then inform the Commission and notify the relevant local authority) of the reasons why it was impracticable to consult and seek the consent of an MHO.

36 It would be expected that a medical practitioner would not 'shop around' for an MHO who will consent to the granting of the emergency 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 is important that the procedures for and the circumstances in which such a second opinion may be sought are 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.

37 Only where it is impracticable for the medical practitioner to consult an MHO or obtain his/her consent may a medical practitioner grant an emergency detention certificate without any MHO involvement. Such exceptional circumstances could include situations in which:

• there is immediate, serious or life-threatening danger to the patient and/or others around the patient (for example, if the patient is actively threatening violence to others or self-harm);

• no MHO can be contacted; or

• the patient is likely to abscond or has absconded immediately after the medical examination has taken place.

38 Once an emergency detention certificate has been granted, the role of the MHO does not end. The practitioner and all those involved with the patient's care should ensure that the MHO can play as large a role as possible in the entire process. This will ensure that the patient's rights are given the maximum degree of protection possible throughout the detention period and not merely before the certificate is granted. (Further information on the MHO's role after the certificate has been granted can be found later in this Chapter.)

What should the MHO take into account when deciding whether or not to consent to the granting of the certificate? What is the role of the MHO if he/she refuses consent?

39 Before the MHO can come to a conclusion on whether or not to consent to the granting of the detention criteria, 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 emergency 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.

40 Once the MHO is in possession of as much of the above information as is possible and practicable in the circumstances, and once he/she is satisfied that the relevant criteria are met, 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.

41 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 emergency 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 are appropriate and available.

42 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. These parties may be able to provide knowledge of the possible and viable alternatives to compulsory powers. They may also need to be involved in planning the patient's care and treatment if the detention certificate is ultimately granted.

43 The MHO should only consent to the detention over the telephone in exceptional circumstances: that is, only where the MHO already has a close knowledge of the patient and the patient's recent case history; or where the MHO has already seen the patient within a short time previous to the medical practitioner's call. (The definition of this time period will necessarily depend on the MHO's judgement within the circumstances
of an individual case, but in any case it is unlikely to be more than 48 to 72 hours.)

44 Where the MHO has only been able to give consent over the telephone or has not been able to respond to the medical practitioner's request promptly, he/she should attempt to see the patient as soon as is practicably possible after the certificate has been granted, or arrange for another MHO to do so.

45 In all cases where an MHO has been involved with an emergency detention, best practice would dictate that the MHO should send as soon as practicable a short follow-up report of their involvement and assessment to the patient's RMO and the practitioner who granted the certificate. Such a report will be particularly important in any case where an MHO has withheld consent to the granting of the emergency detention certificate but the certificate was granted all the same. This report could include reference to the actions which the MHO took to ensure, for example, that:

• a discussion took place between the MHO and the practitioner as to the reasons why consent was withheld and why the alternative which the MHO proposed was considered preferable;

• there was a written record of the decision which could be given to the patient's GP, RMO and the Commission;

• there was a viable and safe alternative to detention;

• the practical arrangements to support such an alternative were in place;

• where relevant, others involved with the patient's care and treatment were aware of the alternative and agree their role in any arrangements supporting it; and

• a contingency plan was in place should alternative arrangements break down.

What role is played by the patient's nearest relative or named person before the certificate is granted?

46 The nearest relative plays no formal role in consenting to detention. It is vital to note, however, that a key principle of the Act involves having regard to the views of the patient's carers and their named person as well as any welfare guardian or attorney appointed under the 2000 Act with respect to functions being discharged under the Act. The views of such parties should always therefore be sought, wherever practicable, when a practitioner is discharging a function under this Act.

47 If the patient is entering the mental health service system for the first time when being made subject to a period of emergency detention, it is unlikely that he/she will have already nominated a named person. In such cases, the patient's named person will most likely be their primary carer. However, those medical practitioners, MHOs, and nursing staff subsequently involved with the patient's care and treatment should provide advice to the patient on the role of the named person; on whom he/she might want to have as a named person; and on how to go about nominating a named person.

When and how should the emergency detention certificate be completed?

48 Section 36(12) of the Act provides that the practitioner who grants the detention certificate must have personally examined the patient on the day on which the certificate is granted where the medical examination was completed by 8pm. If the medical examination was completed after 8pm, then the certificate must be granted within 4 hours. It should also be noted that the initial examination of the patient may not be carried out by one practitioner, and then the certificate granted by another.

Processes following the granting of the emergency detention certificate

Transferring the patient to hospital

49 It would be expected that responsibility for organising the patient's transfer to hospital would be assumed by the medical practitioner who granted the emergency detention certificate. Where the medical practitioner is unable to organise the patient's transfer him/herself, he/she should take all reasonable steps to ensure that the transfer and admission to hospital is taken care of by another person/party. This is likely to be the Ambulance Service, a psychiatric nurse or other mental health professional.

50 Where the medical practitioner assumes overall responsibility for the organisation of the transfer, it should be remembered by the other parties involved in the patient's transfer that the practitioner will likely have no control over the means of transferring the patient. The other parties involved in the transfer, particularly those who do control the means by which the patient is transferred, should therefore co-operate as fully as possible with the medical practitioner to ensure that the transfer takes place as swiftly and as smoothly as possible.

51 A hospital or other service should never demand that a medical practitioner grant an emergency detention certificate as a prerequisite to obtaining transport to hospital and/or an escort. Receiving hospitals or other services should assess requests for admission, transport and escort on the basis of need alone and separately from any considerations of whether or not compulsory powers have been granted or are likely to be granted.

52 Although the Act provides for a 72 hour period during which the patient may be transferred to hospital, it would be extremely rare for the full
72 hour period to be required except in the most exceptional circumstances. Such circumstances would be most likely to arise in rural or remote environments. In all cases, however, the patient should be transferred to hospital as quickly as practicable and should be cared for within the least restrictive, safest and most therapeutic environment possible. If the transfer is unduly delayed, the assessment of the patient's mental health and the provision of beneficial care and treatment will also be unduly delayed.

53 If it is predicted that there will be a considerable delay before the transfer to hospital can proceed (for example, because the patient must be conveyed from an island setting to a distant psychiatric facility), consideration should be given to the use of other facilities such as community hospitals or treatment centres, particularly where the delay is likely to extend overnight. It should be noted, however, that where a patient is admitted to hospital (whether it be a community hospital or psychiatric hospital), the 72 hour period during which the patient may be removed to hospital ends, and the 72 hour period of emergency detention begins.

54 Holding a patient in a police car, police van or another location such as a police cell for lengthy periods should be avoided other than in the most exceptional circumstances of physical risk.

55 Wherever possible, a patient should always be accompanied by and/or supervised by at least one suitably trained health care professional. Every effort should be made to comfort and reassure the patient during the transfer process.

56 Because of the nature of the situation, emergency detentions can easily become public events. It would therefore be good practice to take all reasonable steps to ensure that the transfer and detention proceedings are conducted with as low a profile as is possible under the circumstances so as to preserve the privacy and dignity of the individual involved. For example, marked police vehicles and ambulances can be parked within easy reach of, but not necessarily in immediate proximity to the emergency scene, ready to respond quickly if and when they are required. In all cases, regard should be had to the principle of least restrictive alternative.

57 All the parties involved with the transfer procedure should also be particularly sensitive towards the needs of carers and other family members in such situations. Local authorities and, consequently, MHOs will also need to be conscious of their responsibilities under the National Assistance Act 1948 with respect to the preservation of the patient's property and should also consider the needs of any dependants and pets. The possible existence of an advance statement made by the patient should be considered, as far as is possible under the circumstances, as there may be particular treatment issues that the patient would want practitioners to have regard to.

Development of Psychiatric Emergency Plans

58 As a means of addressing all these issues comprehensively and in a manner which best reflects local circumstances, it would be best practice for the relevant local agencies and service providers who might potentially be involved in psychiatric emergencies to work together to develop and agree on a "Psychiatric Emergency Plan" ( PEP). This would allow potential local difficulties to be addressed and contingency procedures put in place before they arise for real. The aim of a PEP would be to agree on procedures which would manage the transfer and detention process in a manner which minimises distress, disturbance and risk for the patient and others and which ensures as smooth and safe a transition as possible from the site of the emergency to the appropriate treatment setting. The professionals involved in the drawing up of a PEP could include, but should not necessarily be limited to, general practitioners, approved medical practitioners, MHOs, other social workers, social care workers, CPNs, ward nursing staff, independent service providers, police officers, and ambulance personnel. It will also be important to seek input into the preparation of a PEP from mental health service users and carers.

59 It would be best practice to use a PEP as a basis for joint training of all those professionals named in the plan as having specific responsibilities in the transfer and detention process. Similarly, it would be best practice to ensure that the PEP is updated regularly to ensure its relevance and robustness, particularly in light of any significant incident.

Admitting the patient to hospital

60 A patient's initial experience of hospital and of detention can be influenced considerably by the procedures involved with admission to hospital. This is particularly the case where the patient is being admitted in an emergency. An emergency admission can be a highly distressing and traumatic procedure for the patient, sometimes as traumatic as the patient's condition itself. All those involved with the patient's care and treatment will need to keep in mind the possibility that the patient may well retain significant insight into the condition and its implications and/or into other important aspects of their lives. Hospital staff should also bear in mind that patients will often have considerable anxieties about the practical considerations which they have left behind at home, such as dependants, pets etc. Although hospital staff are not directly concerned with such issues, they should nonetheless take the patient's concerns seriously, be willing to discuss them and provide relevant assistance via the relevant bodies or organisations, wherever practicable.

61 Patients should be treated with as much sensitivity as possible and afforded the greatest degree of privacy achievable under the circumstances of an emergency. Wherever possible, a member of the ward staff should be available to explain all relevant procedures to the patient. In this connection, it would always be good practice for a patient to be allocated a named nurse on admission. It would also be good practice for a hospital to provide each patient with an information pack on admission to hospital. This would be written in plain English (as well as being made available in other languages) and could cover, for example, details of any restrictions the patient will face in hospital; possible side effects of medications; where to find public telephones in the hospital, etc.

62 In this connection, practitioners are reminded of the duties placed on hospital managers by section 260 of the Act to provide the patient with information on a range of issues such as, for example, the power of the RMO with respect to revoking the detention certificate and the consequences of the operation of the provision under which the patient is detained. Similarly, section 261 places duties on the hospital managers to take all reasonable steps to secure for the patient assistance in overcoming communication difficulties.

Duties of the medical practitioner who granted the emergency detention certificate

63 The medical practitioner who granted the emergency detention certificate must ensure that the certificate is passed to the managers of the hospital in which the patient is to be detained. Section 36(7) of the Act 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.

64 Section 37 of the Act makes clear that the practitioner who granted the emergency detention certificate must give notice to the managers of the hospital in which the patient is detained of a range of matters. Those matters are:

• the reason for granting the certificate;

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

• if the certificate was granted without consent to its granting having been obtained from an MHO, the reason why it was impracticable to consult an MHO; and

• the alternatives to granting the certificate which were considered by the medical practitioner and the reason(s) why the medical practitioner determined that these alternatives were inappropriate.

65 The practitioner must provide this notification to the hospital managers when they receive the emergency detention certificate. If s/he cannot provide this notification at that point, he/she must do so as soon as is reasonably practicable after that point. Although the Act states that the certifying practitioner must give this information to the hospital managers, it would still be acceptable for the practitioner to entrust the detention certificate to the person in charge of the patient's escort to hospital and for them to deliver it to the hospital managers.

66 The medical practitioner should also be fully involved with the processes allied to transferring the patient to hospital, where relevant, as described in paragraphs 49 and 57 above.

What is the role of the MHO after the certificate has been granted?

67 It would be best practice for the MHO to send to the practitioner who granted the certificate and to the approved medical practitioner appointed as the patient's RMO, a written record of his/her involvement with the detention process. This record would be particularly important in cases where the MHO did not have the opportunity to interview the patient prior to it being granted.

68 Where the MHO has given his/her consent to the detention, he/she will want to ensure that a range of actions take place. These actions are in addition to and complementary to any which ward staff may carry out but will necessarily vary according to the circumstances of the individual patient. The MHO will wish to take all reasonable steps to ensure:

• that the patient is aware of his/her status and rights;

• that the patient has access to information on representation and advocacy and where necessary, provide assistance in making contact with these services;

• that the patient has access to interpretation and translation services, or services that address other communication needs;

• the safety of any children or other dependants or those in the patient's care;

• the safety of any pets;

• the security of the patient's premises and belongings if the patient has been detained at home and force was required to enter the premises;

• that the patient's named person and/or nearest relative has been informed and has the MHO's contact details;

• that the 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;

• that the ward medical staff have contact details of the MHO and of the patient's named person/carers, etc;

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

• that the patient and his/her carers and dependants have the MHO's contact details.

69 The MHO should also be fully involved with the processes allied to transferring the patient to hospital, where relevant, as described in paragraphs 49 to 57 above.

Duties of hospital managers

70 The Act imposes a range of duties on the relevant hospital managers where a patient becomes subject to an emergency detention certificate.

71 Section 38 also places a duty on hospital managers to ensure that the patient is examined by an approved medical practitioner as soon as is practicable and appropriate after the patient's admission to hospital. (It may, of course, be additionally necessary for the patient to be examined by a specialist in physical disorders.) The purpose of such an examination is to ensure that the patient is examined by a specialist in psychiatry as soon as possible after admission in order to review the ongoing need for detention.

72 If, as a result of this review, the AMP is not satisfied that the relevant detention criteria continue to be met, he/she must revoke the certificate and follow the procedures set out in sections 39 and 40 of the Act. If the AMP is satisfied that the relevant detention criteria continue to be met, he/she should give consideration to revoking the emergency detention certificate as soon as practicable and to granting a short-term detention certificate where the practitioner believes it would be appropriate to do so and where the relevant criteria are met.

73 Where the emergency detention certificate was granted without an MHO having been consulted, it would be best practice for the approved medical practitioner carrying out the initial examination of the patient to contact and consult an MHO with respect to the detention certificate as soon as is practicable.

74 Even before this examination by an approved medical practitioner, however, it would be expected that the medical practitioner admitting the patient to hospital would assess whether the patient's mental state is such as to justify the continued operation of the emergency detention certificate. Where he/she believes that the detention criteria are no longer met, he/she should bring these views to the attention of an approved medical practitioner as quickly as is possible so that the approved medical practitioner can consider whether the emergency detention certificate needs to be revoked.

75 There may be occasions where an approved medical practitioner has some concerns about the reasons why the emergency detention certificate was initially granted. It would be best practice for the approved medical practitioner to bring any such concerns to the attention of the Mental Welfare Commission to allow them to contact the certifying practitioner for a fuller discussion of the circumstances surrounding the detention.

76 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.

77 Section 230 obliges hospital managers to appoint an approved medical practitioner to act as the patient's RMO as soon as is practicable after the granting of the emergency 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 11 of this Volume 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.

Who must the hospital managers notify that the detention has taken place?

78 In terms of section 38(3)(a) of the Act, the managers of the hospital in which the patient is detained must inform a range of parties that the emergency detention certificate has been granted within 12 hours of their receiving the certificate. Such informing will most likely be carried by telephone. The parties are:

• the patient's nearest relative;

• any person who lives with the patient, if the patient's nearest relative does not live with the patient;

• the patient's named person, if the hospital managers know who the named person is; and

• the Commission.

79 Hospital managers must also give notice to the parties listed in the preceding paragraph of the information set out at section 38(3)(b)(i) within 7 days of their receiving it from the practitioner who granted the certificate. The information in section 38(3)(b)(i) is that which is described in paragraph 64 above. Additionally, in a situation where the certificate was granted without the consent of an MHO, hospital managers must give this notice to the local authority for the area in which the patient lives or to the local authority for the area where the hospital is situated if the managers do not know where the patient lives.

Which forms of treatment may be administered during a period of emergency detention?

80 The granting of an emergency detention certificate does not give general authority to provide compulsory medical treatment for mental disorder under Part 16 of the Act. Medical treatment for a mental disorder during a period of emergency detention will normally require either the consent of the patient; authority under the Adults with Incapacity (Scotland) Act 2000; or, in the case of a child, the consent of the child in terms of the Age of Legal Capacity (Scotland) Act 1991 and the Children (Scotland) Act 1995.

81 Urgent medical treatment for a mental disorder may, however, be administered under the terms of section 243 of the Act to any patient whose detention in hospital is authorised by an emergency detention certificate. Such treatment can be administered to the patient even where the patient does not consent to the treatment or is incapable of consenting to the treatment.

82 For further information on urgent medical treatment and section 243 of the Act, see Chapter 10 of Volume 1 of the Code of Practice.

Revoking an emergency detention certificate (sections 39 and 40)

83 Sections 39 and 40 of the Act set out the procedures to be followed where an approved medical practitioner revokes an emergency detention certificate. A certificate must be revoked under two sets of circumstances. These circumstances are:

• where the practitioner is not satisfied that it continues to be necessary for the patient's detention in hospital to be authorised by the emergency detention certificate (in other words, the practitioner is not satisfied that the patient needs to be treated on a compulsory basis); or

• where the practitioner is not satisfied that the conditions at section 36(4)(a) and (b) and (5)(b) continue to be met in respect of the patient. (These conditions are firstly, that the patient has a mental disorder; secondly, that the patient's decision-making ability with respect to medical treatment for mental disorder is significantly impaired by that mental disorder; and thirdly, 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.)

84 Where either of these two sets of circumstances apply, the practitioner must revoke the certificate.

85 Where a practitioner revokes an emergency detention certificate, a range of notification procedures must be complied with. These are set out in section 40 of the Act. The practitioner must inform the patient and the managers of the hospital in which the patient is detained as soon as practicable after revoking the certificate. Those hospital managers must then inform the following parties of the revocation as soon as practicable after being informed by the approved medical practitioner. These parties are:

• the patient's nearest relative;

• any person who resides with the patient if the patient's nearest relative does not reside with the patient;

• the patient's named person if the hospital managers know who the named person is and if the named person is not covered by the two preceding categories;

• the Commission;

• if the managers know where the patient resides, the local authority for the area in which the patient resides; and

• if the managers do not know where the patient resides, the local authority for the area in which the hospital is situated.

Suspending an emergency detention certificate (sections 41 and 42)

86 Where a patient is subject to an emergency detention certificate and is detained in hospital on the authority of that certificate, it is possible to suspend that authorisation of the patient's detention in hospital for a limited period of time without revoking the emergency detention certificate itself. Under such circumstances, section 41 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 can a suspension certificate last?

87 A suspension certificate can last for any period of time which the patient's RMO stipulates. In terms of section 41(2), this period 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 emergency detention certificate is due to expire.

Can conditions be attached to a suspension certificate?

88 Yes. The patient's RMO may attach conditions to the suspension certificate by virtue of section 41(3) and (4) of the Act. Such conditions may be:

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

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

89 The patient's RMO can only grant any such conditions where, in terms of section 41(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.

90 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 expected that the RMO informs the patient's MHO and other members of the multi-disciplinary team of any conditions attached to the suspension certificate, and that he/she ensures 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?

91 Given the brevity of a period of emergency detention, there are unlikely to be many occasions or events which would require a patient's attendance in person outwith the hospital in which they have been detained but which would not require the emergency detention certificate itself to be revoked. It would be expected, however, that before a suspension certificate is granted under section 41 the RMO would carry out as full an assessment as possible of the potential risk to the health and welfare of the patient and/or others (for example, carers, family members or accompanying staff) of granting the suspension certificate. Such an assessment should only be carried out after as full a consultation as possible has taken place with the other members of the multi-disciplinary team providing care and treatment to the patient.

92 Practitioners are also reminded that they should have regard to the principles of the Act and other matters laid out in sections 1 to 3, when deciding whether or not to grant a suspension certificate. Particularly important in this connection will be the principle stated at section 1(4) of the Act which provides that any person discharging a function under the Act must discharge that function in the manner which "involves the minimum restriction on the freedom of the patient that is necessary in the circumstances".

93 Before granting a suspension certificate (for example, for the purpose of allowing the patient to attend a funeral of a close relative), the RMO and the multi-disciplinary team will need to balance an acknowledgement of the social and emotional importance of attending such an event against the likely impact of attendance on the symptoms and behaviours related to the patient's mental disorder. This is particularly important given that these symptoms and behaviours had after all dictated that it was "necessary as a matter of urgency to detain the patient in hospital"
when the emergency detention certificate was first granted. Similarly, cognisance will have to be taken of the views of others (family, carers, friends, etc), who may also be involved in the event, on the patient's proposed attendance.

94 A suspension certificate should only be granted in relation to the assessed needs of the patient and not as a method 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?

95 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 or have been 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 applies to any time where the patient is subject to a suspension certificate.

96 It will always be important to ensure that clear and effective communication channels exist between the patient, relatives and/or carers (especially where the patient is residing with them for the duration of the suspension certificate), members of the patient's multi-disciplinary team and 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 medical treatment in another hospital?

97 There may be occasions where a patient detained in hospital on the authority of an emergency detention certificate requires to be transferred urgently to another hospital, for example, to receive treatment for a physical disorder. (Note that only urgent treatment for mental disorder can be administered to a patient subject to an emergency detention certificate under section 243 of the Act: an emergency detention certificate does not give practitioners a general authority to treat under Part 16 of the Act.) A suspension certificate would not have to be granted in such circumstances as no hospital is specified in an emergency detention certificate. Best practice would suggest, however, that the RMO 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 such emergency transfer as soon as possible after it becomes apparent that the transfer may be necessary.

Can a suspension certificate be revoked?

98 It may be necessary for the patient's RMO to revoke a suspension certificate granted under section 41 of the Act. He/she may revoke the certificate 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. Where an RMO revokes a suspension certificate, he/she must in terms of section 42(3) of the Act inform a range of parties of the revocation as soon as practicable after it has taken place. These parties are:

• the patient;

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

99 It would also be best practice for the RMO to inform the patient's MHO and the other members of the patient's multi-disciplinary team of the revocation of the suspension certificate.

100 Those hospital managers must then in terms of section 42(4) of the Act inform a further group of parties of the revocation. These parties are:

• the patient's nearest relative;

• any person who resides with the patient assuming that the nearest relative does not live with the patient;

• the patient's named person assuming that the managers know who the named person is and that the named person is not the patient's nearest relative or a person who resides with the patient;

• the Commission;

• if the managers know where the patient resides, the local authority for the area in which the patient resides; and

• if the managers do not know where the patient resides, the local authority for the area in which the hospital is situated.

Guide for medical practitioners on the granting of an emergency detention certificate under section 36 of the Mental Health (Care and Treatment) (Scotland) Act 2003

Notes on the procedures to be followed by medical practitioners when granting an emergency detention certificate.

Note 1: Any registered medical practitioner may grant an emergency detention certificate. You do not have to be an "approved medical practitioner" (" AMP"). (An AMP is a term particular to the Act. It is a medical practitioner who has been approved by a Health Board under section 22 of this Act and who has "special experience in the diagnosis and treatment of mental disorder". An AMP will therefore normally be a psychiatrist).

Note 2: Section 328(1) of the Act defines "mental disorder" as "mental illness, personality disorder or learning disability, however caused or manifested". Section 328(2) further states that a person is not mentally disordered 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 an other person; or acting as no prudent person would act.

Note 3: The relevant provisions are set out at section 36(2) of the Act and they are:

• an emergency detention certificate;

• 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 have not been made for conflict of interest in connection with the emergency detention certificate.

Note 5: The medical practitioner must consult and seek the consent of an MHO to the granting of the certificate. All reasonable efforts should be made to contact an MHO. However, where the urgency of the situation is so great that it would not be practicable for this consultation to take place then it is permissible for the practitioner to grant the EDC without consent. Best practice would suggest that the most suitable medical practitioner to grant the emergency detention certificate is the medical practitioner within the multi-disciplinary team responsible for the patient's care.

Note 6: Best practice would be that if one MHO refuses to grant consent, then the medical practitioner should take account of the exceptional circumstances in which a second opinion is required. It is important
that the procedures are agreed between the local authority and relevant health partners.

Note 7: A valid emergency detention certificate can be issued on any document if form DET 1 is not available. However it is strongly recommended that the form be used in all circumstances. If form DET 1 is not used, the emergency detention certificate must state the practitioner's reasons for believing the conditions mentioned at points 1 and 2 be met and must be signed by the medical practitioner.

All non-statutory forms may be found on the Scottish Executive's website www.scotland.gov.uk/health/mentalhealthlaw

Note 8: The emergency detention certificate must be completed either by the end of the day on which the medical examination takes place (if the examination takes place before 8pm) or within 4 hours of the medical examination being completed (if it takes place after 8pm).

Note 9: The emergency detention certificate authorises, firstly, the patient's transfer to hospital within 72 hours of the certificate being granted; and, secondly, the patient's detention in hospital for 72 hours.

Note 10: Section 36(7) of the Act states that the patient's detention in hospital is only authorised if the emergency detention 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.

Patient is likely to have a mental disorder and may require medical treatment for that disorder as a hospital in-patient