The Mental Health (Care and Treatment) (Scotland) Act 2003: Are You a Named Person? - A Guide Supporting the Role of Named Person

PART ONE - THE NAMED PERSON

1. What does a named person do?

A named person is someone chosen by the service user to represent and help protect their interests should they become subject to compulsory measures under the Act. Where the service user hasn't chosen a named person for themselves, one may be appointed either under the default provisions within the Act, or by the Mental Health Tribunal.

As a named person, you have various rights with regard to the welfare of the service user if an application is being made, a certificate has already been issued, or if an order has been made for the service user to be treated under the Act. You must be informed and consulted about some aspects of their care and treatment, and can make certain applications on their behalf. Your views and wishes, and those of the service user, will be taken into account when considering the care and treatment of the service user - unless those wishes are unreasonable or impractical to carry out.

It is important to note that the named person can act independently of the service user, and that they may not always agree with what the service user thinks is in their best interests. The named person in such circumstances has a right to state what their own views are. Acting in someone's best interests is not the same as representing the service user, for instance in a tribunal hearing - that is the role of their lawyer.

For the service user, choosing a named person is a very important decision, as the choice could affect their future welfare. They should be advised to think very carefully about the decision and discuss their choice - with their family and friends, doctors and nurses, and their solicitor or independent advocate if they have one.

The service user will want to be sure that their named person is someone who knows them well, and whom they trust to act in their best interests at all times. Someone who will be able to make important decisions about their care and treatment if they are not able to do so themselves.

If you are asked to be a named person you must ask yourself if you are prepared to invest your time and effort in representing the service user should this be required at some time in the future. You must recognise that the role of named person is not one to be undertaken lightly - not least because the named person can act independently of the service user.

However, you should not feel too daunted by the task, or the level of knowledge that may seem to be required. Nobody will expect you to know what to do for the best all the time, in any given situation. You won't be expected to make decisions on your own, without any support. There are a number of agencies, including the Mental Welfare Commission (covered in more detail later in this document at Q11), who are able to provide support, advice and information.

2. Can a service user have more than one named person?

A service user cannot have joint named persons sharing the role. The named person must be an individual. Of course, you may be supported by others - but they will have no rights or powers under the Act to represent the best interests of the service user.

3. What's the difference between a carer and a named person?

The Act states that a person whose paid job it is to provide care to a service user, or who is a paid or unpaid employee of a voluntary organisation which is providing service to the service user cannot be defined as a carer. Instead, a carer is a person who provides a substantial amount of care on a regular basis, and support to, a service user without any payment being made. They don't have to be a relative. Nor do they have to live with the person they support. Carers may be a spouse, a partner, relatives, friends or neighbours.

You may also hear the term: "primary carer". This is the person who provides all or most of the care and support for the service user, without receiving any payment. If there are two or more such carers providing roughly equal amounts of care and support, they must decide between themselves who is the primary carer. Under the Act, the primary carer has specific rights that cannot be shared.

A carer is not the same as a named person. However, you can be both the carer and named person for a service user, if you are already the main carer and the service user then asks you to also be their named person, and you agree. Where a service user hasn't appointed a named person, their carer may become their named person by default, but only if the carer agrees to it.

4. What is an independent advocate - and can they be the named person?

A service user can have both an independent advocate and a named person, but because their roles are different they cannot be the same person.

The Act gives all service users the right to be helped by an independent advocate - they do not have to be in hospital or on any kind of order to receive the help. Independent advocates do not work for hospitals or social services and their services are absolutely free. Independent advocates can help a service user in many different ways from accompanying them to a meeting with a doctor to helping deal with a housing issue.

Independent advocacy is a way to help a service user have a stronger voice and to have as much control as possible over their own life. It is called "independent" because it is not tied to the people who provide other types of services. It does not make decisions on the service user's behalf, guide them, or tell them what to say. Instead it helps service users get the information they need to make real choices and assists them discover all their options. It is there to help service users decide what they want to say, and then to help them say it.

An independent advocate can accompany a service user to a tribunal hearing to support them - but does not have the same rights you, as named person, have to be consulted, informed or to make applications and representations to the Tribunal.

If the service user is in hospital, their doctor, nurse or social worker may provide them with information about advocacy services and give them every opportunity to make contact with advocacy service providers. Alternatively, the service user should be able to approach a nurse for information.

If the service user is under any form of compulsory order, their Mental Health Officer ( MHO) is required by law to inform the service user of their right to independent advocacy, and to take the appropriate steps to ensure that the person has the opportunity to make use of the service.

Anyone can find out about agencies that provide a free independent advocacy service - and also obtain a free booklet with more detailed information regarding the use of independent advocates - by checking the Scottish Independent Advocacy Alliance website (see contact details on page 20).

5. Who can choose a named person?

A named person can be chosen by anyone aged 16 or over - so long as a suitably qualified witness can verify that they understand the effect of choosing a named person and was not unduly influenced by others when making their choice. (The person choosing a named person does not have to be a user of mental health services, though clearly this is usually the case.)

6. Can a child choose their named person?

Children under 16 cannot nominate a named person for themselves. The person with parental rights and responsibilities for the child, as long as they themselves are 16 years old or more, will be the named person. Where parental responsibility is shared, the parties must decide between themselves who will act as the named person. Where the child is looked after by a local authority, the local authority will automatically be the named person. In any other case, the child's primary carer (if they are 16 years or over) will be the named person.

7. Who can be a named person?

As a named person, you could be anyone the service user feels can be trusted - if they become subject to compulsory treatment - to always act in their best interest. You could be their carer, spouse, partner, relative, or friend.

You can be a named person if you are a mental health service user, so long as you are - and continue to be - capable of taking on this important role.

You must be aged 16 or over, know what is involved in the role and agree to act as named person. The service user's nomination of yourself as their named person must be signed and witnessed (covered later in this document at Q.17).

Alternatively, where a service user has failed to nominate a named person, one may be appointed under default provisions contained in the Act (see Q.12), or be appointed for the service user by the Mental Health Tribunal.

8. Can a health professional act as named person?

As a general rule, the named person should not be someone responsible for providing professional care to the service user - for example their General Practitioner ( GP), Mental Health Officer ( MHO) or Community Psychiatric Nurse ( CPN). This is because the named person must be able to make independent decisions about what is in the service user's best interests - and this might be different to the care team's views.

9. What if I work in a related role and there may be a conflict of interest?

If you work in a related role but are not responsible for the service user's care or treatment - for example, you might be a residential housing worker - you could be approached to act as named person and might feel reluctant to decline if, say, the service user has made Declarations (see later at Q.18) stating that their carer and nearest relative shall not be their named person.

In such circumstances, you may wish to accept the named person role, in order to ensure the service user has a named person, but may also feel that there is the potential for a conflict of interests. For example, if an application for a community-based Compulsory Treatment Order ( CTO) were to be made specifying the service you work for as part of the care plan, then you might feel a conflict of interest had arisen between your work role and your role as named person.

It would be best practice for you - as a person working in a support role who wishes to undertake the named person role in circumstances like these - to discuss the Nomination with the service user's Mental Health Officer with a view to identifying and preventing any potential difficulties.

Also, it would be best practice for you, in circumstances such as these, to seek guidance and support from your employer before agreeing to act in the named person role. Some organisations have clear organisational stances on whether their staff can ever act in this capacity, in which case individual staff members will not have the discretion to decide for themselves.

10. If I accept the appointment, who can help me?

When you are first appointed as a named person, you should discuss this with the service user's Responsible Medical Officer ( RMO). That is, the medical practitioner, usually a consultant psychiatrist, who is responsible for the service user's care and treatment. They will be able to signpost you to someone who will assist with the process. They may also explain the role of the Mental Welfare Commission and the Mental Health Officer ( MHO).

11. What is the Mental Welfare Commission, and will they support me?

Any named person can seek the support and guidance of the Mental Welfare Commission - an independent organisation whose job is to safeguard the rights and welfare of everyone with a mental illness or learning disability. Named persons, carers, service users, people who work in the care services, and independent advocates are just some of those who can contact the Commission if they are unsure or unhappy about any aspect of someone's care or treatment.

The Commission is a group of people - including medical practitioners, social workers and lawyers - with experience of mental health and learning disabilities services, medicine, social care and law. Some of the Commissioners have been appointed because they have experience either in using mental health and learning disability services or in caring for a service user.

They have a free phone advice line for people who are concerned about their rights or the rights of others - you can call 0800 389 6809 during office hours to access this.

The Mental Welfare Commission also produce a range of information that can be found on their website at www.mwcscot.org.uk ( see contact details on page 20).

12. What happens if I do not wish to act as named person?

Nobody has to take on the role of named person - you must agree to it.

A service user who becomes subject to compulsion under the Act might not have a named person for a variety of reasons. In such circumstances, a named person may be appointed for them by the Mental Health Tribunal for Scotland (see later, Q.18), according to rules set down in the Act.

The Act states that if a named person hasn't been nominated, or the person previously chosen is now unable or unwilling to undertake the responsibility, then the service user's primary adult carer (aged 16 or over) will automatically become their named person, but only if the primary carer agrees. If the service user has more than one adult carer, they can decide between them who will undertake the responsibility. And if no adult carer is willing to become the named person, then it will be the service user's nearest relative - if the relative agrees.

Please note that as a carer or relative, you might become named person even if the service user hasn't nominated you. In such circumstances - if you become the named person by default - and do not want to take on the role, you must let the service user know this. You must also tell the local authority that you do not want this role (see later on how to decline to act, Q.21).

If there are no carers or relatives willing or able to be named person, then the Mental Health Officer or anyone else who has an interest in the service user's welfare can apply to the Mental Health Tribunal to have another person appointed as named person.

13. I'm already a carer - what rights do I have to information?

Anyone involved in the care and treatment of the service user must provide you, as a carer, with the information you need to provide effective care. However, you will not receive any personal information that the service user does not want to be given to you.

Unless a service user has given permission, hospital and other staff are obliged by law not to share their personal health information with people such as a relative, carer or friend.

Unfortunately this may sometimes mean that staff may be unable to release information to people who are desperate to understand what is happening to their friend or family member. But the law is very clear regarding this issue. Medical information cannot be shared unless the service user gives permission - though hospital staff can provide general information about mental illnesses, signpost carers support services and listen to what carers have to say about the service user and their care.

The service user can give full or limited consent to the sharing of information with you. That is, they can give permission for all and any aspects of their care and treatment to be discussed, or can say if there is some particular information about their illness or treatment that they don't want to be shared, while allowing other information to be passed on.

There are limited exceptions to this. Where a person has been be appointed under other legislation to have specific powers to act on behalf of a service user (for instance to have parental rights for a child or to act as a guardian or welfare attorney for a person with incapacity) they may, if they have appropriate welfare powers, be allowed to see the service user's records and discuss their care. In these special cases, that person will not receive any information that the service user has told NHS staff they don't want them to have, or which staff feel would be harmful to the service user's health or the health of others.

The best way for a service user to ensure that information can be given to a member of their family or to their carer, should they become too unwell to give nursing staff permission at the time, is to have their consent included in an Advance Statement (see later, Q.22) lodged with their records at the hospital. This allows them to choose who the nursing staff should contact and can talk to if they are unwell in the future.

The Mental Welfare Commission has very useful guidance on Carers and Confidentiality which explains the issues in more detail. www.mwcscot.org.uk/web/FILES/Publications/Carers_Confidentiality_web.pdf

A comprehensive guide to all aspects of patient confidentiality can be found on the NHSScotland website at: http://www.confidentiality.scot.nhs.uk/publications/6074NHSCode.pdf

14. What other rights does a carer have?

As a carer, your views must be taken into consideration whenever decisions about the service user's care and treatment are made.

Primary carers have the right to attend a Mental Health Tribunal and present relevant information. Other carers may ask the Tribunal if they may be invited to attend, but may only do so if the Tribunal considers them to have an interest in the application being considered.

Primary carers have a right to ask their local authority and NHS Board to carry out an assessment of the service user's needs.

The Act requires that the primary carer has the right to be notified by hospital management when the service user they support is going to be transferred to another hospital in Scotland under the Act. Unless this transfer is urgent (in which case they should be notified as soon as possible after the transfer), they have the right to be informed at least seven days beforehand.

15. What further rights does a named person have in representing a service user subject to compulsory measures?

A named person has a number of rights or "powers" in representing a service user subject to compulsory measures, which appear throughout the Act. For example:

• to be consulted when certain things happen - such as when a short-term detention or an application for a compulsory treatment order ( CTO) is being considered;
• to be notified that the RMO has applied to the Tribunal for changes to the service user's order;
• to be notified when certain changes to the service user's circumstances happen - for example, if their short-term detention is revoked, where a certificate suspending the service user's detention in hospital is granted or if the service user is to be transferred to another hospital;
• to receive copies of certain records or information which are given to the service user, including the record made if treatment has been given which conflicts with the service user's Advance Statement (if they have made one);
• to make applications or appeals to the Mental Health Tribunal;
• to be a party in any hearing involving the service user and to speak and give or lead evidence at a hearing;
• to consent to two medical examinations taking place at the same time, if the service user is not capable of giving their consent to this (two medical examinations are needed when an application is being made for a compulsory treatment order);
• to ask for an assessment of the service user's needs from the local authority and/or Health Board.

16. What rights does a named person have?

The named person also has rights while the service user is being treated on an informal, voluntary basis. These are:

• to ask for an assessment of the service user's needs from the local authority and/or Health Board;
• to ask the Tribunal to review the need for the service user to remain in hospital when not formally detained - that is, to challenge situations where you believe a voluntary patient is being detained unlawfully.