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

PART TWO - PAPERWORK AND PROCEDURES

17. I've agreed to act as named person - so what next?

Once you have agreed to act as named person the service user must complete what is known as a Nomination. It must be made in writing, signed by the service user, and then be signed and dated by a witness. It does not have to be typed, but it must be easily readable. Any style of Nomination which contains the essential information and is properly signed and witnessed is acceptable.

See Form 1 in folder on back cover for a form you may wish to use. However, note that all the forms contained in this booklet are intended simply as guides and do not have to be used).

The witness must certify that the service user understands the effect of choosing a named person, and that they have not been under any undue pressure from anyone in making their choice. The witness must be chosen from a specified group of professionals - a medical practitioner, clinical psychologist, occupational therapist registered with the Health Professions Council, a registered nurse, social worker, solicitor or certain persons working in or managing certain care services.

When the Nomination of you as the named person has been completed and witnessed, copies should be sent to all those who need to know about it. They might include: the primary carer, family members, solicitor, nurse, independent advocate, guardian, welfare attorney, Responsible Medical Officer ( RMO), Mental Health Officer ( MHO), General Practitioner ( GP), and any other people who are close to the service user.

It is very important for the service user to keep a list of the names and contact details of everyone who has been given a copy of their Nomination. If the service user later decides to change their named person, they will need to notify everybody who received a copy.

As the named person, it would be a good idea for you to hold a copy of the list of names and contact details for safe keeping.

18. What if the service user does not want a particular person to be appointed as named person - are there any safeguards to prevent this?

In view of the provisions for the Tribunal appointing a named person where one hasn't been nominated, you may be concerned that an unsuitable person - perhaps one who doesn't really know the service user, or might not have their best interests at heart - could be given the role. The service user can protect themselves against this by making what is known as a Declaration.

In a Declaration, the service user states the name of any person or persons they do not wish to act as their named person. Such a Declaration does not have to be typed, but it must be easily readable, signed and appropriately witnessed as for a Nomination (see Form 2 in folder on back cover).

19. What if the service user changes their mind?

If a service user changes their mind about their named person, they can make what is known as a Revocation of their Nomination following the usual rules regarding the Documentation - readable, signed and appropriately witnessed, with copies sent to everyone on their contact list (see Form 3 in folder on back cover). A copy of the Revocation should be sent to everyone who received the Nomination - including the named person.

If the service user wishes to appoint a new named person they will need to complete one document revoking the original Nomination, and another document making a new Nomination. Copies of both documents should be sent - preferably at the same time - to everybody who received copies of the original Nomination, including the original and new named persons. The contact list should be updated to include the new named person.

The service user can also revoke a Declaration that identified someone they didn't want to be their named person, if they later decide that the person would be suitable - despite their earlier reservations, by following the usual rules in regard to legibility, signing and witnessing (see Form 4 in folder).

If at some later date they wish the person referred to in the original Declaration to act as their named person, they will need to complete one document revoking their Declaration, and another document - a Nomination - appointing same as their named person. Again, copies of both documents should be sent to everybody on the contact list.

20. Once I've accepted the role, might I be removed by anybody other than the service user?

The Mental Health Tribunal can change a nominated or appointed named person if he or she is thought to be acting inappropriately. It may be, for example, that the named person is always arguing for the opposite of what the service user said he or she would want in their Advance Statement (see Q.22), or are thought to be acting in a "bullying" fashion towards the service user. In such circumstances - and while it will always take account of the service user's wishes - The Tribunal can make whatever decisions it thinks are in the service user's best interests.

In addition, a number of people can apply to the Tribunal to have the named person changed if he or she is thought to be unsuitable or acting inappropriately. These include the service user's Mental Health Officer ( MHO), Responsible Medical Officer ( RMO), hospital managers if the service user is in hospital, their welfare attorney if they have one, their guardian if they have one, family and relatives, and anyone else who has an interest in the service user's welfare. In response, the Tribunal will make whatever decision it thinks is in the service user's best interests.

In the case of those service users who are not yet 16 years of age, an application to remove or replace their named person can be made by someone with parental responsibilities.

21. What if I decide that I no longer want to act as a named person?

Having agreed to act as a named person, you can change your mind at any time by giving notice in writing to the service user and the local authority for the area where the service user lives. Copies of your withdrawal from the role should be sent to everybody on the contact list. That is, everybody who received copies of your Nomination.

22. What is an Advance Statement?

In normal circumstances, health professionals should work with service users to find out what care and treatment options they think might be best for them. However, if the service user becomes very ill, it might be difficult for him/her to be involved or to make their views clear. In order to ensure that their wishes about their care and treatment will be taken into account despite such circumstances, the service user can prepare an Advance Statement.

An Advance Statement is a document that the Act says any service user has a right to complete. The statement should be written when the service user is well and has capacity to understand the choices for their treatment. It sets out their views on what care and treatment they would (or would not) prefer to receive in future if they become unwell and require treatment. It can include their wishes about medications, therapies and particular treatments, like ECT, or where they would prefer to be treated, such as a particular ward. The Advance Statement only becomes relevant if, at some time in the future, the service user becomes too unwell to make decisions about their treatment.

If someone involved in the care and treatment of a service user subject to compulsory measures makes a decision that goes against their Advance Statement, the service user will be informed in writing of the reasons for this. A copy of this letter will also be given to you as the service user's named person, and to their welfare attorney and guardian if they have them. The Mental Welfare Commission will also be informed and may investigate further.

At the same time that they are making an Advance Statement, the service user may choose to make a Personal Statement, which explains what actions they would like others to take (other than care and treatment - which is covered in their Advance Statement) if they become unwell in the future - for example, if they are taken into hospital, who will look after their children or pets. This is a separate document from the Advanced Statement.

For further details on Advance Statements, see the Scottish Executive's booklet:
The New Mental Health Act - A Guide to Advance Statements.

23. When can compulsory treatment be given under the Act?

People's needs for care and treatment can vary greatly depending on their particular circumstances. The Act deals with situations where it is believed someone needs care and treatment, but that care and treatment cannot be provided on a voluntary basis - either because the person refuses or is unable to accept it (perhaps because they are too ill to make a decision about it). Powers are set out in the Act which allow care and treatment to be provided in these types of situations - subject to conditions and safeguards being met.

Additionally, there will be times when a person who is subject to criminal proceedings may be in need of care and treatment. In such cases, various orders may be made by a court under the Criminal Procedure (Scotland) Act 1995.

Service users may be placed on different kinds of compulsory orders, according to their particular needs. Some are short-term powers to deal with emergency situations.

For further details on Compulsory Treatment, see the Scottish Executive's booklets:
The New Mental Health Act - A guide to compulsory treatment orders, and The New Mental Health Act - A guide to consent to treatment.

24. How can I object to the service user's treatment or the compulsory measures?

As a named person, if you don't think the principles set down in the Act are being applied to the care and treatment of the service user you are representing - whether by an individual or organisation - you are advised, in the first instance, to discuss your concerns with the service user's Responsible Medical Officer ( RMO) or Mental Health Officer ( MHO). They should explain to you why they think the treatment is in the service user's best interests.

If you're still not satisfied, as the service user's named person you can contact the Mental Welfare Commission who provide free information and advice. If they agree that the principles are not being applied in a particular case, they can take this up with the health professionals providing the care.

Finally, if you are still unhappy about the service user's treatment, or their being subject to compulsory powers, you may be able to apply to the Mental Health Tribunal to review the case. You can appeal to the Tribunal against a short-term detention. If the service user is on a Compulsory Treatment Order ( CTO), then you can appeal against the order, or ask the Tribunal to change the requirements in the order, if the service user has been subject to an order for longer than 3 months.

If you wish to appeal on the service user's behalf, then you should consider seeking advice from a solicitor. Legal aid may be available to assist with the appeal.

You can also make a complaint through the Health Board or local authority complaints system about the service the service user has received.