Mental Health (Scotland) Act 2015: advice for groups

Reports when extending a CTO or a CO

Sections 2 and 50 of the 2015 Act

These sections of the 2015 Act require MHOs to provide a report to the Mental Health Tribunal for Scotland when a Compulsory Treatment Order (CTO) or Compulsion Order (CO) is being reviewed under section 86 or 152 where:

• the diagnosis has changed
• the MHO disagrees with, or does not give view on, the decision to extend a CTO/CO

This is quite a small change. Providing these reports is already best practice in the Code of Practice. Figures for the number of reviews in these circumstances for November 2013 – November 2014 suggest this would have required 11 extra reports across Scotland.

Removal orders

Section 19 of the 2015 Act

This section on the 2015 Act introduces a requirement for MHOs to notify the Commission as to (i) whether any application for a removal order under section 293 is refused or granted, and (ii) the outcome of any application to the sheriff under section 295 seeking recall or variation or a removal order. 

Many MHOs will already  be doing this as a matter of good practice. It is already in the Code of Practice and this change makes it a requirement.

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. This includes:

• 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 will remove the duty from the MHO to establish who the default named person is as there will no longer be named persons appointed by default. In the short-term, MHOs are likely to play a key role in helping individuals understand their options in relation to representation and help choose the best option for them. This additional role will be short term.

Advance statements

Section 26 of the 2015 Act

This section of the 2015 Act requires a copy of advance statements to be placed with person’s medical records. It requires certain information to be sent to the Mental Welfare Commission to be held in register which can be accessed by certain persons including the MHO. Places duty on Health Board to publicise information about support it offers on making an advance statement.

There are no additional duties for MHOs, although MHOs may want to ensure that any advance statements they hold or have a copy with, are also held with medical records at the health board and that where appropriate they also have a copy of any held by the health board.

Communication assistance at medical exams

Section 28 of the 2015 Act

This section of the 2015 Act extends circumstances where communication assistance must be provided. This includes interviews with the service user under section 45 (STDC) and 61 (CTO application) of the 2003 Act and 57C (CO application) and 59B (Hospital Direction). If the interview does not take place in hospital, the MHO has the responsibility to organise this assistance (if the interview takes place in hospital, the responsibility lies with hospital managers).

Organising communication assistance will already be a matter of good practice. We think that there would be a very small number of cases each year where the MHO would have this responsibility.

Transfer for treatment direction

Section 34 of the 2015 Act

This section of the 2015 Act provides that a Transfer for Treatment Direction (TTD) can only be made if the MHO has agreed to it unless impracticable.

There are a relatively low number of TTDs made each year, 45 in 2013/14 and 36 in 2014/5. It is currently best practice in the Code of Practice for an MHO’s opinion to be sought. We will provide guidance in the Code of Practice including a suggested protocol for MHOs who are local to the prison to act on behalf of the MHO from the area of origin.