Nurses' power to detain
A registered mental health or learning disability nurse may detain a person in hospital for up to two hours in order that a medical examination can be carried out. If the medical practitioner attends during the second hour, the power is extended for up to an hour after the medical practitioner arrives. We remain surprised by the apparent low use of these orders in most hospitals.
The 2003 Act allows this for a person who is "in hospital and receiving medical treatment". According to the Act, medical treatment means treatment (defined broadly) for mental disorder. We have been asked whether or not the power can be used:
• In general hospital wards,
• In accident and emergency departments,
• In "walk-in" clinics held on hospital premises.
The Act and codes of practice are not clear on this. We have discussed these scenarios with the Mental Health Law Team at the Scottish Government. They agree with us that it is reasonable to use the nurses' power to detain people who meet the criteria in all three of these scenarios. We interpret "in hospital" as being within the hospital premises. The process of assessment by a mental health or learning disability nurse involves "care" and therefore constitutes medical treatment.
The power cannot be exercised by any other class of nurse. However, all health care practitioners have a duty of care. Other classes of nurses can lawfully use their "common law" duty of care if it is necessary to prevent a person from leaving hospital if it appears immediately necessary in order to prevent a person from coming to harm or to protect others.
Absconding (sections 301-303)
The sections on absconding also apply to people subject to community compulsory treatment. Some people contacted us because they thought the person could only be taken to hospital. That is not correct. If a person absconds from a specified place of residence, then he/she can be returned to that place of residence or taken to any other place deemed suitable by the responsible medical officer. This also applies to people subject to suspension of detention where a specified place of residence is a condition of suspension.
Recall under section 113/114
These are orders that are used to admit a person who does not comply with the community provisions of a compulsory treatment order. A few points:
• A person cannot be detained on a S114 certificate unless first admitted under S113.
• S113 can last for "up to 72 hours". The RMO could revoke it earlier. Also, it ends if the person is further detained under S114.
• S114 takes effect from the day it is granted and authorises detention for up to 28 days.
• It is not appropriate to use these orders to admit a person who complies with the CTO but becomes ill and may need compulsory admission. That person should be assessed for detention under a short-term detention certificate (or emergency detention certificate if necessary).
• If in doubt as to whether the person may or may not be complying, it is better to assess for STDC or EDC. Admission under S113 does not require a medical examination and could be challenged unless it is clear that the person had not been complying.
Community CTOs and cross border transfer
A warrant for transfer is granted by the RMO in Scotland and does not need to be authorised by Scottish Ministers (unlike a hospital to hospital transfer). You can find the suggested wording for the warrant here. The regulations outlining the steps to take to authorise the transfer are here.
We have heard of cases where the RMO has suspended detention with the requirement to stay at an address in England, pending application to vary the order. After discussing this with the Mental Health Law Team, we advise against doing this. While the Act appears to allow this, there is no agreed mechanism for transferring the conditions of a suspended hospital CTO from Scotland to England. The best advice we can give is to apply for a warrant to transfer the person to an English hospital and then they will decide whether to grant leave of absence. Of course, suspension of detention to allow visits to places elsewhere in the UK is absolutely fine.
Part 16 ( yet again)
We have reported that compliance with part 16 of the Act on safeguarded medical treatment is incomplete. Our report can be found here. Some other points came up while we were discussing the report:
• The form T2 (documenting consent) must be sent to MWC within 7 days. The act was modified to require that certificates under S 238 be sent to the MWC.
• When calculating two months before a T2 or T3 form is needed, start from the first administration of medication under the act. This includes any urgent treatment given during emergency detention
• T2 and T3 certificates end when the episode ends. If there is a break in compulsory treatment, however short, treatment certificates are no longer valid.
• We are sometimes asked to arrange DMP opinions on informal patients. We advise asking a local colleague for an opinion. A DMP opinion carries no authority in these situations.
• Sometimes, we are asked to arrange a DMP opinion for medication much earlier than two months after the start of treatment. This is often because the RMO is uncertain whether to proceed with treatment when the patient actively resists. There is no value in this request. The DMP's authorisation carries no legal value until two months have passed since the start of treatment. The best time to ask for a DMP opinion is two weeks before the two month period expires.
• We have made the "appendix E" form available on our website. The RMO can download this form and complete it when asking for a DMP visit. It can be found here (bottom of page).
• It is the RMO who must complete a T2 form or a notification of urgent treatment (T4). If he/she is unavailable, hospital managers should have a scheme for deciding who acts as the RMO. Other medical practitioners in the team who are approved medical practitioners (e.g. experienced trainees, speciality doctors) can only undertake RMO duties if appointed to do so by hospital managers.
• Remember that T2 certificates for people under 18 must be completed by child specialists.
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Adults with Incapacity Act – welfare guardianship
We remain concerned about the practice of applying for indefinite welfare guardianship for young adults. Our concerns are greatest where the powers sought are wide-ranging and do not appear tailored to the individual person's needs. Practitioners should remember that there is no automatic judicial review of indefinite welfare guardianship. We have already expressed concerns that restrictive powers, exercised indefinitely without review by a court or tribunal, may not be compatible with human rights legislation. We recommend applying for time limited periods.
Tailoring powers to the individual is very important. Also, welfare guardians and their supervisors should not assume that a power exists unless it is clear in the order. This is especially important when considering anything that could be a deprivation of liberty such as restraint or CCTV surveillance. We advise either applying to the Sheriff for the specific power or, at the very least, asking the Sheriff for a direction as to the use of the powers (section 3 of the Act).
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General Information
For more advice on applying best legal, ethical and professional practice to the care and treatment of people with mental health problems or learning disability, contact; www.mwcscot.org.uk e-mail enquiries@mwcscot.org.uk
phone 0131 313 8777
freephone service users and carer line: 0800 389 6809
typetalk users dial 18001 before dialling
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