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I have put together this bulletin to provide you with advice on some of the legal and ethical aspects of mental health care and treatment in Scotland. The bulletin includes advice on the practical operation of mental health and incapacity laws and reflects our findings around issues in current practice.
I hope you find it useful. I would welcome any feedback by email to enquiries@mwcscot.org.uk
Dr Donald Lyons,
Director, Mental Welfare Commission for Scotland
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Monitoring the use of the Mental Health Act
Emergency detention gender differences
- Our annual monitoring report found that the use of emergency detention has fallen for men but not for women. More people, especially men, are ending up in hospital via the courts. The preference in the Act is that .wherever possible, people should be admitted under short-term detention certificates after assessment by an approved medical practitioner and a mental health officer. Where this is not possible, emergency detention is better than unnecessary police custody and a court appearance.
Some common mistakes around compulsory treatment orders
- Consultants sometimes apply for an extension and variation to a CTO (using form CTO4), usually to vary from hospital to community. Sometimes, they withdraw application to extend and vary because the person needs to stay in hospital. When they do this, they sometimes forget to make a determination to extend the order. They must complete form CTO3a. The CTO4 form is no longer valid in this situation. The CTO3a form can be found at http://www.scotland.gov.uk/Resource/Doc/924/0052029.PDF. We wonder if it is better to apply for variations and make determinations to extend CTOs separately.
- People can be admitted to hospital from a community order under sections 113 and then 114 because of non-compliance, or under emergency and short-term detention certificates due to illness. In both cases, there is no provision for the orders to be extended to allow the Tribunal to hold a hearing (unlike the process for granting a CTO in the first place). We advise making an early application to the Tribunal to vary or extend and vary the order. We think the Tribunal can make an interim variation without a full evidential hearing but would advise phoning the Tribunal to discuss the situation. The relevant sections of the Act can be found at: http://www.opsi.gov.uk/legislation/scotland/acts2003/asp_20030013_en_9#pt7-ch4-pb11-l1g103
- We still hear of problems where people have been out of hospital on suspension of detention for nine months in a 12 month period before there is an application to vary the order. There is doubt over a person's legal status when this happens. RMOs should apply to vary the order at the earliest opportunity. They could ask the Tribunal for an interim variation pending a full hearing if the 9 month date gets close.
Some common mistakes in giving medical treatment under part 16 (safeguarded treatments)
- Either written consent, certified on a T2 form, or a designated medical practitioner (DMP) opinion on a T3 form is needed for artificial nutrition from the outset. Treatment can be given before a DMP opinion is provided, if urgent, under section 243 and reported to the Commission on form T4.
- For medication given beyond 2 months: this period refers to time passed from the first administration of any medication for mental disorder, including any treatment given "as required". We found some practitioners who thought that they could switch from oral to depot antipsychotic drug treatment where the person did not consent and then wait for 2 months before asking for a DMP opinion. Because more than 2 months had passed since any treatment, they needed the opinion before first giving the depot injection.
Some mistakes when transferring people into or out of Scotland
- We have found cases of detained people who were transferred from Scotland to other parts of the UK without a warrant from Scottish Ministers. The form TX1a is used as an application to Scottish Ministers. The form is completed and sent to the relevant department in the Scottish Government. The person cannot be transferred until the warrant is received.
- Remember that you cannot transfer people from Scotland if they are on pre-disposal criminal procedure orders.
- We looked into the case of a person who was transferred from England to a care home in Scotland under "leave of absence" provisions in English legislation. The hospital in England should have obtained a warrant for transfer but did not. Hospitals and care homes should not accept people who are detained in, or on leave of absence from, hospitals in England without a warrant.
Monitoring the use of the Adults with Incapacity Act
Part 5 Consent to treatment
- Our visits to people who can't consent to medical treatment still show that part 5 of the Act is not being used properly and/or when required. We think that people in hospitals and care homes should have an annual review of health care with a plan for the next year. It would be easy to attach such a plan to a section 47 certificate of incapacity. Except in emergency situations, it is unlawful to give treatment to an adult who lacks capacity to consent without using procedures under incapacity of mental health legislation. Doctors cannot charge a fee unless it is to certify incapacity for specific procedures outwith their normal responsibility (e.g. dentistry). Remember that drug treatment to reduce sex drive carries special safeguards under the Adults with Incapacity Act. The prescribing doctor must certify incapacity on a section 47 certificate and then contact the Mental Welfare Commission for an independent second opinion on the treatment. See regulations on section 48 of the Act: http://www.opsi.gov.uk/legislation/scotland/ssi2002/20020275.htm
Guardianship and applications for indefinite periods of time
- We are concerned about the use of welfare guardianship powers for an indefinite period especially for young people. Social Work Department supervising officers and those carrying out guardianship functions on behalf of the Chief Social Work Officer should make sure that powers are being used only where the adult lacks capacity and in line with the principles of the Act. For more information see our report on the use of guardianship for adults under 25.
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, you can
visit 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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