Tag: Mental Health (Care and Treatment) (Scotland) Act 2003

What is the Mental Welfare Commission for Scotland?

Published on by Andrew Marshall4 Comments

Introduction

The Mental Welfare Commission for Scotland is a non-departmental public body, responsible for safeguarding the rights and welfare of people in Scotland with a learning disability, mental illness or other mental disorder.

The Commission was original established by the Mental Health (Scotland) Act 1960.

It enquires into cases of alleged ill treatment or deficiency of care or treatment, with investigations that include visits to alleged victims in hospitals and community settings.

The Commission is accountable to the Scottish Government Health and Social Care Directorates for its statutory duties and how its public money is spent. It is required to follow NHS customary accounting rules and to meet NHS financial targets.

Refer to Chronology of UK Mental Health Legislation.

Legal Framework

It has statutory duties to safeguard the interests of people considered to be mentally disordered or incapacitated under the Mental Health (Care and Treatment) (Scotland) Act 2003 or the Adults with Incapacity (Scotland) Act 2000.

The Scottish Executive’s introduction to the Act specifies:

“Part 2 of the 2003 Act sets out provisions relating to the continued existence of the Mental Welfare Commission for Scotland. The Commission will have:

  • new duties to monitor the operation of the Act and to promote best practice;
  • specific powers and duties in relation to carrying out visits to patients, investigations, interviews and medical examinations, and to inspect records; and
  • powers and duties to publish information and guidance, and to give advice or bring matters to the attention of others in the mental health law system.

These powers and duties should enable the Commission to maintain and develop its vital role in protecting the rights of service users, and in promoting the effective operation of mental health law. Schedule 1 of the Act sets out more detail on the membership, organisation and general powers of the Commission and makes provision for regulations to specify some matters in more detail, if necessary.”

The same act also set up the Mental Health Tribunal for Scotland, which hears appeals against detentions and applications for compulsory treatment orders under the 2003 act.

Working with Other Organisations

The Commission also works closely with several other organisations including the Office of the Public Guardian, Scottish Public Services Ombudsman (SPSO), Scottish Social Services Council (SSSC), Healthcare Improvement Scotland and the Care Inspectorate.

Location

The offices of the Commission are based in Edinburgh. In 2005 the Scottish Executive had wanted the Commission to relocate to Falkirk as part of a Scotland-wide approach to the location of government jobs. However, the Commission did not need to comply with the policy on the location of government jobs because it is an independent body.

What was the Mental Health (Public Safety and Appeals) (Scotland) Act 1999?

Published on by Andrew Marshall1 Comment

Introduction

The Mental Health (Public Safety and Appeals) (Scotland) Act 1999 was an Act of the Scottish Parliament which was passed by the Parliament in September 1999 and was designed to close a loophole in the law which led to the release of mentally ill killer, Noel Ruddle, who was released from the state hospital at Carstairs after arguing its treatment programmes were no longer of benefit to him.

An Act of the Scottish Parliament to add public safety to the grounds for not discharging certain patients detained under the Mental Health (Scotland) Act 1984; to provide for appeal against the decision of the sheriff on applications by these patients for their discharge; and to amend the definition of “mental disorder” in that Act.

This was the first act passed by the Scottish Parliament after its establishment in 1999.

Refer to Chronology of UK Mental Health Legislation.

Purpose of Act

The Act had two main purposes:

The first was to add a new criterion to the statutory tests applied by a sheriff or the Scottish Ministers when considering whether to order the discharge of a restricted patient. The sheriff and the Scottish Ministers must now refuse to order a discharge (either conditional or absolute) if satisfied that the patient has a mental disorder, the effect of which is that continuing detention in hospital is necessary to protect the public from serious harm. That is so whether or not the patient is to receive medical treatment for the mental disorder.

The second is to introduce a right of appeal against a decision, notification or recommendation of a sheriff in relation to an appeal brought by a restricted patient in terms of Part VI of the Mental Health (Scotland) Act 1984. The right of appeal against the sheriff’s decision, notification or recommendation is conferred on both the patient and the Scottish Ministers. The appeal is to the Court of Session.

The Act also widens the term ‘mental disorder’, which appears in earlier legislation, to include a personality disorder.

Brief History

In December 1991, Noel Ruddle killed his neighbour with a Kalashnikov rifle. On 20 March 1992, Ruddle pled guilty to several charges at Glasgow High Court and was ordered to be detained and sent to Carstairs State Hospital without limit of time. Ruddle obtained his released in August 1999 after making a legal appeal at the Lanark Sheriff court on the basis that treatment programmes were no longer of benefit to him. With the risk of other patients at Carstairs making appeals on similar grounds, an emergency bill was quickly brought by the Scottish Executive to the Scottish Parliament. An executive bill was introduced by Jim Wallace on 31 August and some amendments made. It passed on 08 September 1999 and then gained Royal Assent on 13 September 1999, becoming the first legislation to be passed by the Parliament.

In 2001, the legislation survived a challenge made to the Judicial Committee of the Privy Council.

The act was repealed on 05 October 2005 by the Mental Health (Care and Treatment) (Scotland) Act 2003.

What is the Mental Health (Care and Treatment) (Scotland) Act 2003?

Published on by Andrew Marshall3 Comments

Introduction

The Mental Health (Care and Treatment) (Scotland) Act 2003, which came into effect on 05 October 2005, is an Act of the Scottish Parliament which enables medical professionals to detain and treat people against their will on grounds of mental disorder, with the Mental Health Tribunal for Scotland and the Mental Welfare Commission for Scotland providing safeguards against mistreatment.

An Act of the Scottish Parliament to restate and amend the law relating to mentally disordered persons; and for connected purposes.

It largely replaces the Mental Health (Scotland) Act 1984.

Refer to Chronology of UK Mental Health Legislation and the Mental Health (Public Safety and Appeals) (Scotland) Act 1999.

Detention Certificates

The act provides for short-term detention certificates and emergency detention certificates.

Short-term certificates are referred to by the act as the ‘preferred gateway’ to detention, and lead, notionally, to up to 28 days’ detention during which treatment may be administered against the will of the detainee, and can also lead to compulsory treatment orders, which have longer term implications for the detainee’s liberty.

Detainees can apply to the Mental Health Tribunal for revocation of short-term certificates.

Emergency certificates lead, notionally, to up to 72 hours’ detention, and can also lead to detentions under short-term certificates.

Emergency certificates do not enable treatment against the will of detainees, except for urgent treatment, and there is no formal process of appeal against them.

Unless a certificate is completed for someone who is already in a mental health hospital, both forms of detention are preceded by detention of up to 72 hours in what are called ‘places of safety’, while transport to hospital is arranged.

Also, short-term detentions may be extended for periods of up to three ‘working days’, to facilitate applications to the Mental Health Tribunal for compulsory treatment orders.

Saturdays, Sundays and Scottish bank holidays are not counted as working days.

Principles

The law is based on a set of principles. These principles should be taken into account by anyone involved in a person’s care and treatment.

Past and Present Wishes

Patients should be given the information and support they need to take part in decisions about their care and treatment. To help service users get their views across, the Act puts in place the right to access independent advocacy services. It also puts in place advance statements as a way to help service users say what care and treatment they would and would not want to have. The Mental Health Commission in Scotland examines cases where a person’s advance statement has been overridden.

The Views of any Carer, Guardian or Welfare Attorney

Carers should be involved in decision-making and should be given information they need to help them in their role. We will be developing guidance this year to help service providers and carers with the problem of patient confidentiality and sharing information.

Options

A patient’s care plan should reflect their needs as an individual. A Mental Health Tribunal reviews care that looks for a compulsory treatment order that lasts longer than 2 years or the service users can request this if they wish to appeal a compulsory treatment order after 3 months.

The Care and Treatment that will be of Most Benefit

This should be reflected in a care plan. In addition the Act puts in place safeguards when consent to treatment has not been given.

On many occasions a patient’s care and treatment becomes much to the opinion of any one person, with a psychiatric disorder (mentalis confusio), latest labels that of chemical imbalance or chemical disorder, perplex and confuse not only the patient, but those whom may be designated decision makers on a patient’s behalf. Family members all too often are not given any information, nor the correct questions to ask.

All too often the system fails to accept a lack of science behind these labels. “where is that chemical test for this chemical imbalance?” Truth is that like the word illness: no such disease exists, nor any chemical as where is this chemical test; well paid professionals or populus of institutions together, with no clear facts and no willingness to discuss any way except that of psychiatry & adding of substance of those many same category as Class substances.

Individual Abilities and Background

Important things about a person such as their age, gender, sexual orientation, religion, racial origin or membership of any ethnic group should be taken into account by people providing care and treatment.

People providing care should also make sure that:

  1. Any restrictions on a person’s freedom are the least necessary.
  2. The person being treated under the act shouldn’t be treated any less favourably than anyone else being treated for a mental illness, or other mental disorder.
  3. Carer’s needs are taken into account.
  4. The person being treated is getting services that are right for them.
  5. When a person is no longer receiving compulsory treatment, he or she should still continue to get care and treatment if it is needed.
  6. If the person being treated is under 18, his or her welfare is of the highest priority.

What is the Mental Health Tribunal for Scotland?

Published on by Andrew Marshall4 Comments

Introduction

The Mental Health Tribunal for Scotland is a tribunal of the Scottish Government to hear applications for, and appeals against, Compulsory Treatment Order, and appeals against Short Term Detention Certificates made under the Mental Health (Care and Treatment) (Scotland) Act 2003, and other matters in relation to that Act, for example, appeals against Compulsion and Restriction Orders.

Refer to Chronology of UK Mental Health Legislation and Mental Health Review Tribunal (England and Wales).

Background

The Mental Health Tribunal for Scotland was established on 05 October 2005, under the Mental Health (Care and Treatment) (Scotland) Act 2003.

Its headquarters are located in Hamilton, although it has staff who work throughout Scotland.

The Tribunal discharges its functions through panels of three members: a legal member (who acts as Convener), a medical member and a general member. The judicial arm of the Tribunal is supported in its functions by the staff of the Scottish Courts and Tribunals Service (SCTS).

The primary role of the Tribunal is to consider and determine applications for compulsory treatment orders (CTOs) under the 2003 Act and to operate in an appellate role to consider appeals against compulsory measures made under the 2003 Act. The Tribunal also plays a monitoring role by periodic review of compulsory measures.

You can find out more about the Tribunal here.