Mental Health (Scotland) Act 2015: advice for groups

Appeals against excessive security

Sections 14-16 of the 2015 Act

These sections of the 2015 Act and accompanying regulations extend appeals against excessive security. The changes mean that people who are detained in the three medium secure units in Scotland can apply to the Mental Health Tribunal for Scotland (the Tribunal) to decide that they are being held at a level of security that is excessive for them. People detained in the State Hospital could already do this. Any of these applications must include a report from a doctor known as an Approved Medical Practitioner (AMP) which says the AMP’s view is that the individual is being held at a level of security that is excessive.

People treated in the three medium secure units – the Orchard Clinic in Edinburgh, Rowanbank Clinic in Glasgow, and the medium secure service at the Rohallion Clinic in Perth are now able make an application to the Tribunal if they think that the security in their unit is excessive for them and they have a report from a doctor (AMP) that agrees. This change is already in place and people are making applications to the Tribunal.

Named persons

Sections 22 – 25 of the 2015 Act

These sections of the 2015 Act make various changes to the provisions around appointing a named person. The named person in the 2003 Act has a right to be consulted about some aspects of your care and treatment and can also make applications to the Tribunal. The changes  include:

• you will only have a named person if you actively choose one. The 2015 Act removes the sections of the 2003 Act that give an individual over 16 a named person by default if they have not chosen one
• the named person will actively choose to do the role. The 2015 Act changes the 2003 Act so that named person must consent in writing to taking on the role
• the Tribunal won’t be able to appoint a named person for people over 16. The 2015 Act removes the current power of Tribunal to appoint named person for an individual over 16 and for the Mental Health Officer (MHO) and others to apply to Tribunal for appointment of named person
• the Tribunal will be able to remove an inappropriate named person. The 2015 Act makes provision for the Tribunal to remove an existing person if they are considered inappropriate to act as a named person and, if the service user is under 16, substitute another person to act as named person
• people who lack capacity and have no named person are still protected. The 2015 Act allows the carer, nearest relative, welfare guardian or welfare guardian to initiate applications/appeals and receive information at specified points when (a) there is no named person and (b) the individual does not have capacity to do so on their own behalf. The individual can state in writing that they do not want any of those listed above to act in this way

This is likely to be one of the biggest changes from the 2015 Act for individuals aged 16 and over and their carers and families. It will give individuals more choice over their representation and privacy. As noted above, the changes will bring an end to named persons appointed by default (i.e. according to an order set out in the 2003 Act, unless the individual specifically chooses who it should be). It means individuals will not have to have a named person and will only have one if they actively nominate a named person in writing, or have previously done this. To provide support to individuals who do not choose to have a named person, the individuals carer, nearest relative, welfare guardian or welfare attorney will be able to make certain applications and appeals to the Tribunal on the individual’s behalf when they are not able to do it themselves.

You can choose to stop having a default named person from 30 June 2017, or you can wait and decide nearer to when your default named person will stop holding that role (your doctor or social worker can tell you when that will be). Have a think about who your named person is and speak to them, your social worker or doctor about what will happen as these changes take effect. You might be thinking about keeping things as they are, nominating the person who has been your named person, choosing someone else, or not having a named person at all. It’s an important decision, but remember you can change your mind as things go along.

Advance statements

Section 26 of the 2015 Act

The 2015 Act makes some changes to promote advance statements. You may find it helpful to write an advance statement when you are well, stating how you would like to be treated if you become ill in future. Anyone who makes decisions about your treatment, like doctors or a tribunal, should read your advance statement and take your wishes into account.

Because of changes brought in by the 2015 Act, a copy of your advance statement will be with your medical record so that the people who provide your care and treatment can see what you have written. The Mental Welfare Commission will make a list of everyone who has an advance statement and where it is held. This is so that if you move area or have new people looking after you, they can find out if you made an advance statement and where to look for it. Health Boards will have to let people know what they are doing to help people make advance statements. 

This should give you more confidence that the professionals caring for them will know where to find their advance statement and help individuals locate and access support for making an advance statement. If you have an advance statement, you might want to think about whether it is up to date. It is a good idea to review your advance statement every six or twelve months to make sure it is up to date. If you don’t have an advance statement, you might want to think about making one. The Mental Welfare Commission has good information about how to go about it on their website.