Mental Health (Scotland) Act 2015: advice for groups

Reports when extending a CTO or a CO

Sections 2 and 50 of the 2015 Act

This section of the 2015 Act requires MHOs to provide a report to the Mental Health Tribunal for Scotland and also send a copy to the RMO 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 will be a small impact for RMOs, but they will wish to be aware that this is now a duty in legislation.

Suspension of detention

Section 9-10 of the 2015 Act

These section of the 2015 Act make various changes to the rules around suspension of detention. In particular, it changes the maximum cumulative total allowed to 200 days in a rolling year period, excluding any period of less than 8 hours. Transitional provisions set out that any certificate granted before 30 June 2017 can be made under the former rules (even if the sus authorised is after 30 June). Any certificate granted on or after 30 June 2017 must meet the new timescales.

RMOs who will need to be aware of the changes to timescales and the new sus limits and ensure that future sus plans fit with the new rules.

Appeals against excessive security

Sections 14-16 of the 2015 Act

These sections of the 2015 Act and accompanying regulations make changes to the provisions around appeals against excessive security. The changes add individuals detained in the three medium secure units in Scotland to apply to the Mental Health Tribunal for Scotland that they are being held at a level of security that is excessive in their individual case (this already applied to those individuals detained in the State Hospital). It also requires any application in such cases to be accompanied by a report from an approved medical practitioner stating that the AMP’s view is that the individual is being held at a level of security that is excessive in their case.

RMOs will wish to be aware that individuals held 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 – who will now be able make an apply to the Tribunal in these circumstances and that all applications, including those from the State Hospital, should be accompanied by a supportive AMP report.

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:

• removes the sections of the 2003 Act that give an individual over 16 a named person by default if they have not chosen one
• changes the 2003 Act so that named person must consent in writing to taking on the role
• removes current power of Tribunal to appoint named person for an individual over 16 and for MHO and others to apply to Tribunal for appointment of named person
• 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
• allows the carer, nearest relative, welfare guardian or welfare guardian to initiate applications/appeals and receive information at specified sections of the Act when (a) there is no named person and (b) the individual does not have capacity to do so on their own behalf

As well as needing to be aware of the changes, RMOs will have a role in supporting individuals, their carers and families, to understand the new options for representation and helping the individual to decide what is best for them.

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. 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 RMO. Places duty on Health Board to publicise information about support it offers on making an advance statement.

There are no additional duties for RMOs, but RMOs will want to be aware that advance statements will be held with medical records and the new duties on Health Boards. It may prove useful when an individual moves to a new service to be able to find out if they have an advance statement.

Conflict of interest

Section 29 of the 2015 Act  

This section of the 2015 Act adds medical examinations related to mandatory reviews of CTOs and COs to the list of medical examinations where regulations may set out what is considered a conflict of interest and what is not a permitted conflict of interest and is set out in new regulations.

RMOs will need to be aware of, and make sure they are acting in line with, the new conflict of interest regulations  including that these will now govern mandatory reviews of CTOs and COs.

Consulting welfare guardians and welfare attorneys

Section 30 of the 2015 Act

This section of the 2015 Act adds welfare guardians and welfare attorneys to the list of people who must be consulted before a certificate is granted under sections:

• 235 (certain surgical operations etc. where the patient is capable of consenting)

• 236 (certain surgical operations etc. where the patient is incapable of consenting)

• 239 (electro-convulsive therapy etc.) 

• 241 (treatments given over period of time etc)

This is an additional duty where RMOs already are required to consult the individual service user and their named person.

Services and accommodation for mothers

Section 31 of the 2015 Act

This section of the 2015 Act extends the duties in section 24 of the 2003 Act to provide provide services and accommodation for certain mothers with post-natal depression to mothers with a mental disorder other than post-natal depression.

These services are often already offered to the mothers who will now be included, but RMOs should be aware that there is now a duty to provide these services and accommodation.

Cross-border transfers and cross-border absconding

Section 32 – 33 of the 2015 Act

These sections of the 2015 Act allow regulations relating to cross-border transfers to Scotland and to absconding patients from other jurisdictions to be applied to those transferring or absconding from other EU jurisdictions. It also allows the regulations to apply treatment under certain sections of Part 16 of the 2003 Act to patients who have absconded from other jurisdictions. Changes to cross-border transfers have been set out in regulations which includes new appeal rights, an amended process and a fast-track process in limited circumstances where all parties agree. 

New processes and forms are in place for cross-border transfers. If you are involved in cross-border transfers, you will need to ensure that these new processes are followed.

Transfer for treatment orders

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 and RMOs will need to be aware that this is now a duty except where it would be impracticable.

Assessment orders

Section 40 of the 2015 Act

This section of the 2015 Act includes a change to the timescales for assessment orders, meaning that the court can grant one extension of up to 14 days, rather than up to 7 days as at present.

RMOs involved with assessment orders will need to be aware of these changes to timescales, which are in force from 30 September 2017.