jéåí~ä=eé~äíü=iéöáëä~íáçå=qé~ã= = aáêéåíçê~íé=çñ=péêîáåé=mçäáåó=~åç=mä~ååáåö=

abcdefghijklm = eé~äíü=aéé~êíãéåí jéåí~ä=eé~äíü=iéöáëä~íáçå=qé~ã= = aáêéåíçê~íé=çñ=péêîáåé=mçäáåó=~åç=mä~ååáåö= jéåí~ä=eé~äíü=aáîáëáçå= = = pí=^åçêéïûë=eçìëé= oéöéåí=oç~ç= bçáåäìêöü=ben=pad= = qéäééüçåéw=mnpnjoqq=orvn= c~ñw=mnpnjoqq=rmts= ãéåí~äüé~äíüä~ï]ëåçíä~åçköëáköçîkìâ= ÜííéWLLïïïKëÅçíä~åÇKÖçîKìâ= = = PN=j~êÅÜ=OMMQ= Dear consultee VOLUME 1 OF THE DRAFT CODE OF PRACTICE FOR THE MENTAL HEALTH (CARE AND TREATMENT) (SCOTLAND) ACT 2003 Please find enclosed a copy of the volume 1 of the draft Code of Practice for the Mental Health (Care and Treatment) (Scotland) Act 2003. We are inviting written responses to this draft Code of Practice by 2 July 2004. Contents of this consultation document This volume of the draft Code of Practice deals with a range of issues relating to what can be termed civil detention procedures as well as to the general framework within which the Act operates. It therefore provides Code of Practice material on Parts 1, 5, 6, 7 (Chapters 1 to 5), 14 to 16, and 17 (Chapter 1) of the Act as well as on sections 33 to 35, 275 to 276, and 292 to 299 of the Act. This volume does not look at the procedures surrounding the compulsory care and treatment of a person with a mental disorder who has committed any form of criminal offence. Those procedures are set out in Parts 8 to 13 of the Act and will be examined in volume 2 of the draft Code of Practice to be issued for public consultation in the coming months. This volume, similarly, does not examine a range of other subjects for which provision is made in the Act. Examples of such subjects are: detention in conditions of excessive security (Part 17 Chapter 3 of the Act); cross-border transfers of patients (section 289 and 290); suspension (sections 41 and 42, 53 and 54, and Part 7 Chapter 7); and the definition of a place of safety (section 300). Draft Code of Practice material relating to these issues will be issued for public consultation in the coming months. Accessing this consultation document If you wish to access this consultation online, go to the following website: http://www.scotland.gov.uk/view/views.asp. You can telephone Freephone 0800 77 1234 to find out where your nearest public internet access point is. abcde abc a SE Approved Version 1.1

If you have any queries or would like additional copies of this document, please contact Ryan Stewart on 0131 244 2591. Responding to this consultation document We are inviting written responses to any aspect of this draft Code of Practice by 2 July 2004. Please send your response to mentalhealthlaw@scotland.gsi.gov.uk or to the postal address at the head of this letter. When you are submitting your response, please make sure to include the respondee information form to be found in annex 1 to this letter. We would be grateful if you could clearly indicate in your response which questions or parts of the consultation paper you are responding to as this will aid our analysis of the responses received. In addition to seeking written responses to this draft Code of Practice, we plan to organise some events which will both raise awareness of the publication of this draft Code of Practice and seek the views of interested parties on its contents. Further details about these events will be available shortly. Access to consultation responses We will make all responses available to the public in the Scottish Executive Library unless confidentiality is requested. All responses not marked confidential will be checked for any potentially defamatory material before being logged in the library or placed on the website. We draw your attention to the material in annex 2 of this letter which sets out information on the consultation process used by the Scottish Executive. Finally, thank you in advance for your responses to this consultation document. Yours sincerely FIONA TYRRELL abcde abc a SE Approved Version 1.1

ANNEX 1: RESPONDEE INFORMATION FORM Please complete the details below and attach it with your response. This will help ensure we handle your response appropriately: Name: Postal Address: Consultation title: Volume 1 of the draft Code of Practice for the Mental Health (Care and Treatment) (Scotland) Act 2003 1. Are you responding as: (please tick one box) (a) an individual (go to 2a/b) (b) on behalf of a group or organisation (go to 2c) 2a. INDIVIDUALS: Do you agree to your response being made available to the public (in Scottish Executive library and/or on Scottish Executive website)? Yes (go to 2b below) No, not at all 2b. Where confidentiality is not requested, we will make your response available to the public on the following basis (please tick one of the following boxes): Yes, make my response, name and address all available Yes, make my response available, but not my name or address Yes, make my response and name available, but not my address 2c ON BEHALF OF GROUPS OR ORGANISATIONS: Your name and address as respondees will be made available to the public (in the Scottish Executive library and/or on Scottish Executive website). Are you content for your response to be made available also? Yes No SHARING RESPONSES/FUTURE ENGAGEMENT 3. We will share your response internally with other Scottish Executive policy teams who may be addressing the issues you discuss. They may wish to contact you again in the future, but we require your permission to do so. Are you content for the Scottish Executive to contact you again in the future in relation to this consultation response? Yes No abcde abc a SE Approved Version 1.1

ANNEX 2: THE SCOTTISH EXECUTIVE CONSULTATION PROCESS Consultation is an essential and important aspect of Scottish Executive working methods. Given the wide-ranging areas of work of the Scottish Executive, there are many varied types of consultation. However, in general Scottish Executive consultation exercises aim to provide opportunities for all those who wish to express their opinions on a proposed area of work to do so in ways which will inform and enhance that work. While details of particular circumstances described in a response to a consultation exercise may usefully inform the policy process, consultation exercises cannot address individual concerns and comments, which should be directed to the relevant public body. Consultation exercises may involve seeking views in a number of different ways, such as public meetings, focus groups or questionnaire exercises. Typically, Scottish Executive consultations involve a written paper inviting answers to specific questions or more general views about the material presented. Written papers are distributed to organisations and individuals with an interest in the area of consultation, and they are also placed on the Scottish Executive web site (http://www.scotland.gov.uk) enabling a wider audience to access the paper and submit their responses. Copies of all the responses received to consultation exercises (except those where the individual or organisation requested confidentiality) are placed in the Scottish Executive library at Saughton House, Edinburgh (K Spur, Saughton House, Broomhouse Drive, Edinburgh, EH11 3XD, telephone 0131 244 4552). The views and suggestions detailed in consultation responses are analysed and used as part of the decision making process. Depending on the nature of the consultation exercise the responses received may: indicate the need for policy development or review inform the development of a particular policy help decisions to be made between alternative policy proposals be used to finalise legislation before it is implemented If you have any comment about how this consultation exercise has been conducted, please send them to the Mental Health Division Branch 3 at the address at the head of this letter. abcde abc a SE Approved Version 1.1

MENTAL HEALTH (CARE AND TREATMENT) (SCOTLAND) ACT 2003 DRAFT CODE OF PRACTICE VOLUME 1

DRAFT 2

TABLE OF CONTENTS Introduction to Volume 1 Coverage of this volume Structure of this volume Note on abbreviations PAGE 7 7 8 Chapter 1: Overview Principles of the Act Definition of mental disorder Definition of medical treatment Summary of the compulsory powers available Criteria for compulsory powers Interpretation of expiry of compulsory powers 9 12 13 14 16 18 Chapter 2: Patient representation (Part 17, Chapter 1; sections 275 to 276) Named persons Advance statements 19 26 Chapter 3: Emergency detention (Part 5) Overview of emergency detention Processes preceding the granting of an emergency detention certificate Processes following the granting of an emergency detention certificate 33 37 43 Chapter 4: Short-term detention (Part 6) Overview of short-term detention Processes preceding the granting of a short-term detention certificate Processes following the granting of a short-term detention certificate Revoking a short-term detention certificate Extending a period of short-term detention 49 51 57 59 61 Chapter 5: Applying for a compulsory treatment order (Part 7, Chapter 1) Overview of the CTO application process Preparing a mental health report Duties of the MHO once in receipt of two mental health reports Preparing a mental health officer s report Preparing a proposed care plan Submitting the application to the Tribunal and the Tribunal s determination What can the Tribunal authorise with respect to the CTO application? Interaction of CTO with other orders and certificates 65 67 73 77 79 81 83 85 DRAFT 3

Chapter 6: The compulsory treatment order in operation (Part 7, Chapters 2 & 3) Transferring the patient once the CTO has been made Operation of an interim CTO Responsibilities subsequent to the CTO being made 87 88 90 Chapter 7: Reviewing the compulsory treatment order (Part 7, Chapter 4) Overview of the review process Carrying out a review: what must be done and when? Options subsequent to a review taking place Revoking a CTO Extending a CTO with no variation of its terms: a section 86 determination Extending a CTO with a variation of its terms: a section 92 application Varying a CTO: a section 95 application What other applications can be made to the Tribunal with respect to a CTO? 93 94 96 97 99 103 107 110 Chapter 8: Non-compliance with a community-based compulsory treatment order or interim compulsory treatment order (Part 7, Chapter 5) Overview of non-compliance procedures Lack of compliance with compulsory measures where hospital detention is not authorised Further period of hospital detention following lack of compliance with compulsory measures Interaction between a CTO or interim CTO and a detention period or certificate authorised by or issued under sections 113 to 115 Lack of compliance with the attendance requirement 115 116 117 120 120 Chapter 9: A local authority s duty to inquire, warrants and associated powers (sections 33 to 35 and 292 to 298) Overview of the powers available A local authority s duty to inquire ( section 35 warrant ) Removal order (a section 293 warrant ) An authorised person s warrant ( a section 292 warrant ) Removal from a public place 123 125 130 133 134 Chapter 10: Medical treatment (Part 16) Medical treatment: safeguards Provisions and safeguards for particular treatments Urgent medical treatment 137 140 144 DRAFT 4

Chapter 11: Generic procedures (Parts 14 and 15) Appointment of RMO Designation of MHO responsible for patient s case Preparing a social circumstances report Nurse s power to detain a patient pending a medical examination Assessment of needs 145 147 150 151 153 Chapter 12: Glossary of commonly used terms 155 DRAFT 5

DRAFT 6

Introduction to Volume 1 Coverage of this volume 1. Volume 1 of the draft Code of Practice for the Mental Health (Care and Treatment) (Scotland) Act 2003 deals with a range of issues relating to what can be termed civil detention procedures as well as certain issues relating to the general framework within which the Act operates. It therefore provides Code of Practice material on Parts 1, 5, 6, 7 (Chapters 1 to 5), 14 to 16, and 17 (Chapter 1) of the Act as well as on sections 33 to 35, 275 to 276, and 292 to 299 of the Act. 2. This volume does not look at the procedures surrounding the compulsory care and treatment of a person with a mental disorder who has committed any form of criminal offence. These procedures are set out in Parts 8 to 13 of the Act and will be examined in volume 2 of the draft Code of Practice to be issued for public consultation in the coming months. 3. This volume, similarly, does not examine a range of other subjects for which provision is made in the Act. These subjects include, for example, detention in conditions of excessive security (Part 17 Chapter 3); cross-border transfers of patients (section 289 and 290); suspension (sections 41 and 42, 53 and 54, and Part 7 Chapter 7); absconding (Part 20); and the definition of a place of safety (section 300). Draft Code of Practice material relating to these issues will also be issued for public consultation in the coming months. Structure of this volume 4. This volume is divided into 12 chapters. Chapter 1 provides a description of the principles of the legislation as set out in sections 1 and 2 of the Act before turning to a brief overview of the principal civil detention certificates and orders which can be granted or made as well as the criteria for detention which must be met before these certificates or orders can be granted or made. 5. Chapter 2 examines issues which can be grouped together under the heading of patient representation. It therefore looks at a person s right to nominate a named person (Part 17 Chapter 1), and to make an advance statement (sections 275 to 276). 6. Chapters 3 and 4 examine in detail the procedures which must be followed when granting an emergency detention certificate and a short-term detention certificate respectively under Parts 5 and 6 of the Act. Each chapter adopts a chronological approach to the relevant procedures moving from the point at which the person presents with a suspected mental disorder to the point at which the detention certificate is granted and the person admitted to hospital. 7. Chapters 5 to 8 focus on the compulsory treatment order (CTO). This is an order which can be made under Part 7 of the Act and which authorises compulsory treatment for a period of at least 6 months at a time. These four chapters also adopt a chronological approach as they start from the point at which it appears to the relevant parties that an application for a CTO might be appropriate before progressing to the point at which a CTO is reviewed and/or DRAFT 7

revoked. Chapter 5, therefore, describes the process by which an MHO makes an application for a CTO. It also describes the process by which this application is determined by the Mental Health Tribunal for Scotland. Chapter 6 deals with issues relating to a CTO once it is in operation and the procedures which should follow on immediately from it being made while Chapter 7 describes the processes associated with reviewing and revoking a CTO. Chapter 8 then examines the procedures to be followed where a patient has not complied with any of the compulsory measures which have been specified in a community-based CTO. 8. Chapter 9 deals with a range of other duties and powers under the Act, such as a local authority s duty under section 33 of the Act to inquire into the situation of a vulnerable mentally disordered person and the police s power under section 297 of the Act to remove a mentally disordered person from a public place to a place of safety. 9. Chapter 10 covers the subject of medical treatment for mental disorder which may be given in accordance with Part 16 of the Act. It looks at, for example, safeguards which the Act puts in place with respect to certain treatment, such as electro-convulsive therapy. It also examines issues relating to the giving of urgent medical treatment under section 243 of the Act. 10. Chapter 11 turns to a range of what might be termed generic duties and procedures, some of which relate to both civilly detained patients and to mentally disordered offenders. These duties and procedures are those described at Parts 14 and 15 of the Act. They are: the appointment of the patient s responsible medical officer; the designation of the patient s mental health officer; the preparation of a social circumstances report; and the assessment of a person s needs for community care services. 11. Chapter 12, finally, provides a glossary of important terms which are commonly used throughout this volume. Note on abbreviations 12. Although the use of abbreviations has been avoided wherever possible, the following are used commonly throughout this volume: Commission: CPN: CTO: DMP: MHO: RMO: Tribunal: Mental Welfare Commission Community Psychiatric Nurse Compulsory Treatment Order Designated Medical Practitioner Mental Health Officer Responsible Medical Officer The Mental Health Tribunal for Scotland 13. The following pieces of legislation are also on occasion referred to in an abbreviated form: the 1995 Act : Criminal Procedure (Scotland) Act 1995 the 2000 Act : Adults with Incapacity (Scotland) Act 2000 the Act, this Act, or the 2003 Act : Mental Health (Care and Treatment) (Scotland) Act 2003 DRAFT 8

CHAPTER 1: OVERVIEW Introduction This chapter begins with a discussion of the principles which underpin the legislation and which are laid out at sections 1 to 3 of the Act. It then describes two important terms used commonly throughout the Act: namely, mental disorder and medical treatment. The chapter then gives a brief overview of the three principal certificates and orders in this Act on the authority of which a person may be detained: namely, an emergency detention certificate, a short-term detention certificate, and a compulsory treatment order. This chapter also examines some issues relating to the criteria which must be met before compulsory powers can be used. For example, it looks at what is meant by significant impairment of decisionmaking ability and contrasts this with the term incapacity. Finally, this chapter provides some clarification regarding the expiry point of detention certificates and orders. PRINCIPLES OF THE ACT Taking account of the principles 1. The Act lays out a set of principles which it requires certain people who are performing functions under the Act to take into account in so far as they are relevant to the function they are discharging. These principles apply, for example, to any professional such as a doctor or MHO but only where they are discharging a function under the Act. Examples of situations in which a person is discharging a function under the Act are where a doctor, a member of medical staff or a mental health officer is taking a decision concerning a period of emergency or short-term detention, or where an application is being made for a compulsory treatment order. In addition, the Tribunal is also bound by the principles when making decisions about a patient. 2. However, the Act does not require that the patient, patient s named person or the patient s informal carers or anyone who represents them is bound by these principles. 3. Section 1 of the Act sets out general principles which must be taken into account and are discussed in detail below. Section 1, however, applies only to those patients who are over the age of 18. Section 2 of the Act makes specific provision with regard to patients under the age of 18. Section 3 applies to all patients where a person is discharging functions under the Act and concerns equal opportunities. However, the list of persons who must have regard to the principle set out at section 3 is limited. DRAFT 9

General principles to be applied in the case of adult patients (section 1) 4. Section 1 of the Act sets out certain general principles. In taking account of those principles, any person must do so as far as is practical and reasonable. What is practical and reasonable will depend on the circumstances. While in an emergency the time available to consult and provide information may be limited, in other circumstances the person making the decision or taking a course of action should be able to take time to consult and consider the matters laid out in the principles. In any case the person must be able to justify their action or decision when asked to do so by, for example, the Tribunal or the Mental Welfare Commission. 5. The principles at section 1 require that any person, other than those exempted by the Act, in considering a decision or course of action takes into account the present and past wishes and feelings of the patient (in so far as they can be ascertained by any means of communication appropriate to the patient). Where the decision relates to medical treatment and the patient has an advance statement, then this should be given due consideration (see sections 275 and 276 of the Act or chapter 2 of the Code Practice for further information on advance statements). 6. In considering any decision or action the views of the patient's named person, primary carer, guardian or welfare attorney should also be taken into account. 7. The principles set out at section 1 affirm the importance of the patient being helped to participate as fully as possible in any decisions being made and the importance of providing information to help that participation (in the form that is most likely to be understood by the patient). Where the patient needs help to communicate (for instance, translation services or signing), then these should be considered. 8. Section 1 also provides that when considering a course of action the range of options available in the patient's case and the importance of providing the maximum benefit to the patient must be taken into account. 9. The principles at section 1 also require that in making any decision or considering a course of action the patient should not be treated any differently from the way in which any other person who is not a patient would be treated in a comparable situation, unless that treatment can be shown to be justified by the circumstances. 10. Section 1 further provides that, in making any decision or taking a course of action, the patient should not be treated in a discriminatory manner. Due consideration should be given to the patient s abilities, background and characteristics, including, without prejudice to that generality, the patient's age, sex, sexual orientation, religious persuasion, racial origin, cultural and linguistic background, and membership of any ethnic group. 11. The section 1 principles also require that any decision or course of action being considered (other than a decision about medical treatment) should as far as practical and reasonable take into account the needs and circumstances of the patient's carer and the importance of providing such information to any carer as might assist the carer to care for the patient. DRAFT 10

12. Section 1 requires that persons performing functions under the Act have regard to the importance of providing appropriate services to anyone who is, or who has been, subject to: an emergency detention certificate granted under this Act; a short-term detention certificate granted under this Act; a compulsory treatment order made under this Act; or a compulsion order made under the 1995 Act. 13. After taking into account the principles set out at section 1 of the Act, the person discharging the function is required to carry it out in the way that involves the minimum restriction on the freedom of the patient that is necessary in the circumstances. 14. For the purposes of applying the principles set out at section 1, making a decision not to act is still considered as taking a decision and any such consideration is bound by the principles of the Act. 15. Any person discharging a duty which may be discharged in more than one way or any power must have regard to these principles. Principles applying in the case of patients under 18: welfare of the child (section 2) 16. Section 2 of the Act makes specific provisions to safeguard the welfare of any child who comes within its provisions. For this purpose, a child is any person under the age of 18 years. The principles require that the welfare of the child is paramount when any person exercising functions under the Act is making a decision under the Act. In other respects the principles at section 1 apply as for adults in any situation where a duty can be exercised in more than one way and choices as to the course of action have to be considered. In particular, the views of the child and any carers should be taken into account in making decisions. Equal opportunities (section 3) 17. Section 3 of the Act provides a duty which applies to specific persons who are exercising functions under the Act to ensure that the function is discharged in a manner which encourages equal opportunities and the observance of the equal opportunities requirements. The definition of equal opportunities and equal opportunities requirements is found in the Scotland Act 1998. Those persons who are bound by the requirements of section 3 are listed at subsection (3) of that section. DRAFT 11

DEFINITION OF MENTAL DISORDER 18. The Act refers throughout to a person with mental disorder. By way of section 328 of the Act, mental disorder includes any mental illness, personality disorder, or learning disability, however caused or manifested. 19. The Act s provisions extend not just to compulsory measures in relation to care and treatment but also to the assessment and provision of services for any person who is or has been a user of mental health services. The definition of mental disorder has been drawn widely to ensure that no-one who needs these services is excluded from them by the provisions within the Act. A person with mental disorder as defined under the Act will only be subject to compulsory measures under the Act if they meet the criteria for these as set out in the Act. 20. The Act specifically states, in terms of section 328(2), that a person is not mentally disordered by reason only of sexual orientation, sexual deviancy, trans-sexualism, transvestism, dependence on, or use of, alcohol or drugs, behaviour that causes, or is likely to cause, harassment, alarm or distress to any other person, or by acting as no prudent person would act. 21. However, it is not intended that a person who falls within any of the above categories but who also suffers from mental disorder be excluded from consideration for assistance treatment or services. The provisions of the Act may be invoked in respect of those people with mental disorder who also have alcohol problems or misuse drugs. The exceptions apply so that a person will not be regarded as mentally disordered by reason only of their sexual orientation, deviancy, trans-sexualism, transvestism or dependence on drugs and alcohol or by their behaviour. DRAFT 12

DEFINITION OF MEDICAL TREATMENT 22. The Act provides a specific definition of medical treatment. Section 329 defines it as "treatment for mental disorder; and for this purpose "treatment" includes- (a) nursing; (b) care; (c) psychological intervention; (d) habilitation (including education, and training in work, social and independent living skills); and (e) rehabilitation (read in accordance with paragraph (d) above). 23. The term medical treatment includes pharmacological interventions as well as other physical interventions (such as ECT) in addition to psychological and social interventions made with respect to mental disorder. Medical treatment for a physical disorder is not authorised by this Act. Any references to medical treatment in the Act and this Code of Practice should be read in light of the definition given at section 329. 24. For further information on medical treatment, see also Part 16 of the Act and chapter 10 of the Code of Practice. DRAFT 13

OVERVIEW OF THE CIVIL COMPULSORY POWERS AVAILABLE 25. This Act sets out three principal certificates and orders on the authority of which a person may be detained. These are: an emergency detention certificate which grants an authority to detain a person in hospital for a period of 72 hours; a short-term detention certificate which grants an authority to detain a person in hospital for a period of 28 days; a compulsory treatment order (CTO) which grants an authority to exercise a range of compulsory powers over a person either in hospital or in the community for a period of 6 months. This period can be extended by 6 months, then by 12 months thereafter. 26. A CTO can only be made by the Tribunal. A short-term detention certificate can only be issued by an approved medical practitioner while an emergency detention certificate can be issued by any fully registered medical practitioner. 27. Mental Health Officers play a key role in the use of compulsory powers. For example, an MHO prepares the application for a CTO while the consent of an MHO must be obtained before a short-term detention certificate can be granted. The consent of an MHO must also be sought where it is practicable to do so before an emergency detention certificate can be granted. 28. The Act also provides for a range of other compulsory measures. These include entry to the premises of a mentally disordered person, and the removal of a mentally disordered person to a place of safety. These powers are provided for at sections 33 to 35 and Part 19 of the Act. They are also discussed in Chapter 9 of the Code of Practice. When should a short-term detention certificate be issued in preference to an emergency detention certificate? 29. A person can be made subject to a short-term detention certificate without the need to have been subject to an emergency detention certificate beforehand. A short-term detention certificate should be granted, wherever possible, in preference to an emergency detention certificate, where this is practicable and where the relevant detention criteria have been met. A short-term detention certificate is the preferred gateway order because, as compared with an emergency detention certificate, it can only be granted by a specialist in psychiatry; the consent of an MHO is mandatory; and it confers on the patient and the patient s named person a more extensive set of rights, including the right to make an application to the Tribunal to revoke the certificate. 30. Where the clinical urgency of the situation will not permit the granting of a short-term detention certificate, it should be borne in mind that the primary purpose of an emergency detention certificate is to permit a full assessment of a person s mental state. It is not to administer medical treatment. Medical treatment for the suspected mental disorder may, however, be given where this is urgently required under the authority of section 243 of the Act. (See Chapter 10 of this volume for further information about urgent medical treatment). The difference in the criteria for short-term and emergency detention is paramount when any decision about whether or not to grant an emergency or short-term detention certificate is DRAFT 14

being made. Those additional factors which therefore may also be taken into account before an emergency detention certificate, as opposed to a short-term detention certificate, is granted include: urgent action must be taken; the medical practitioner is satisfied that the assessment for treatment could not be made with the patient s consent; no approved medical practitioner or MHO is immediately or directly available to grant or give consent to a short-term detention certificate, and urgent action must be taken to avoid the risk of harm to the patient or to others. DRAFT 15

CRITERIA FOR COMPULSORY POWERS 31. Compulsory powers can only be exercised under the Act where strict criteria have been met. For details of the criteria which must be met before the various certificates and orders may be granted, see the relevant Part of the Act or chapter of the Code of Practice. Taking the example of a short-term detention certificate, such a certificate may only be granted where the approved medical practitioner considers it likely that the following criteria have been met: the patient has a mental disorder; the patient s ability to make decisions about the provision of medical treatment is significantly impaired as a result of that mental disorder; it is necessary to detain the patient in hospital for the purpose of determining what medical treatment should be given to the patient or of giving them medical treatment; there would be a significant risk to the health, safety or welfare of the patient or to the safety of any other person if the patient were not detained in hospital; the granting of a short-term detention certificate is necessary. 32. It should be noted that all the criteria listed in the previous paragraph must be met before a short-term detention certificate can be granted. It should also be noted that the onus does not rest on the patient to prove that s/he does not in fact meet these criteria; the onus rests instead on the practitioner to demonstrate that s/he considers it likely that the above criteria are indeed met. 33. The second criterion in the list of criteria at paragraph 31 above concerns the concept of significantly impaired decision-making ability. This concept is separate to that of incapacity as defined under the Adults with Incapacity (Scotland) Act 2000. However, when assessing a person s decision-making ability, it is likely that similar factors will be considered to those taken into account when assessing incapacity. Such factors could involve consideration of the extent to which the person s mental disorder might adversely affect their ability to believe, understand and retain information concerning their care and treatment, to make decisions based on that information, and to communicate those decisions to others. 34. One difference between incapacity and significantly impaired decision-making ability arguably arises out of the fact that the latter is primarily a disorder of the mind in which a decision is made, but is made on the basis of reasoning coloured by a mental disorder. Incapacity, by contrast, broadly involves a disorder of brain and cognition which implies actual impairments or deficits which prevent or disrupt the decision-making process. 35. Moreover, significantly impaired decision-making ability must always be linked to the patient s mental disorder. Incapacity, by contrast, is defined at section 1 of the Adults with Incapacity (Scotland) Act 2000 and includes incapacity by reason of physical disability. 36. It is important to emphasise that the criterion listed at paragraph 31 above with respect to a significant impairment of decision-making ability means a significant impairment with respect to the provision of medical treatment for mental disorder. 37. Significantly impaired decision-making ability must always be as a result of mental disorder, but it should not necessarily be taken to be synonymous with mental disorder. DRAFT 16

38. A person s decision-making ability should not be considered to be significantly impaired by reason only of a lack or deficiency in a faculty of communication. Similarly, it should not be taken as equivalent to disagreeing with the opinions of professionals. DRAFT 17

INTERPRETATION OF EXPIRY OF COMPULSORY POWERS 39. The various detention certificates and orders which can be granted or made under the Act have time limits. Taking once again the example of a short-term detention certificate, two powers are authorised. The first is the power to remove the patient to hospital or to a different hospital. Section 44(5)(a) of the Act makes clear that this removal must take place before the expiry of the period of 3 days beginning with the granting of the short-term detention certificate. The time limit runs from the exact time at which the event occurs, in this case the granting of the certificate. Therefore, if a short-term detention certificate is granted at 6pm on Monday, the removal to hospital must have taken place by 6pm on Thursday. 40. The second power authorised by a short-term detention certificate is that under section 44(5)(b)(ii) of the Act to detain the patient in hospital for a period of 28 days. The time limit will run, either from the time the certificate is granted if the patient is already in hospital (see section 44(5)(b)(i)), or from admission to hospital where the patient is being transferred from the community (see section 44(5)(b)(ii)). The time period at section 44(5)(b)(ii) begins with the beginning of the day on which the certificate is granted. Unlike section 44(5)(a) of the Act, the time period runs form the start of the first day rather than the exact time of the event. The whole day on which the event occurs will be included in the calculation. Therefore, if the short-term detention certificate is granted at 6pm on 2 January, the power to detain the patient in hospital begins at midnight of 2 January (that is, during the night of 1 and 2 January) and expires at midnight of 30 January (that is, during the night of 29 and 30 January). All other references in the Act to the expiry point of compulsory powers should be read in this light. DRAFT 18

CHAPTER 2: PATIENT REPRESENTATION (PART 17, CHAPTER 1, SECTIONS 275-276) Introduction This chapter describes two important issues relating to patient representation: namely named persons and advance statements. The chapter begins with a discussion of the right to nominate a named person in accordance with the provisions of Part 17 Chapter 1 of the Act. A named person is entitled to receive certain information about the person who has nominated them and can act on their behalf in certain circumstances, such as where the Tribunal is determining an application for a compulsory treatment order. Finally, the chapter turns to the subject of advance statements which can be made in accordance with the provisions of sections 275 to 276 of the Act. NAMED PERSON What is a named person? 1. In addition to their own rights to support and assistance, a patient s spouse or partner, relatives and carers may have an important role in mental health legislation in protecting the interests of a patient subject to compulsory measures if they are appointed as a patient s named person under the Act. 2. The Act creates a new role - the named person who has particular powers and rights in relation to persons who become subject to compulsory powers, whether under the 1995 Act or the 2003 Act. 3. Broadly speaking, the named person has similar rights to the patient to apply to the Tribunal, to appear and be represented at Tribunal hearings concerning compulsory treatment orders, and to appeal against a short-term detention certificate. The named person is also entitled to be given information concerning many compulsory measures which have been taken or are being sought where this is provided for in the Act. 4. Although generally the role of the named person is to represent and safeguard the interests of the patient, the named person does not take the place of the patient in the way that, for example, a welfare guardian appointed under the Adults with Incapacity (Scotland) Act 2000 might be able to (depending on their powers). The named person and the patient are entitled to act independently of each other. For instance, a named person can apply to the Tribunal for a review of the patient s compulsory treatment order with or without the patient s approval. 5. The principles of the Act require any person exercising functions under the Act (other than the patient and the parties referred to at section 1(7)(b) to (h) who might represent the patient) to take account of the views of the named person when making a decision or DRAFT 19

considering a course of action, where it is reasonable and practicable to do so. What is reasonable and practicable will depend on the individual circumstances of the case. 6. It is anticipated that where a person with mental disorder comes under the jurisdiction of the 1995 Act or the 2003 Act that they will benefit from having a named person who will be kept informed of their status and can undertake certain functions for the person. In most situations, the named person will replace the nearest relative as the person who is informed or notified about compulsory measures relating to a patient and who has similar rights to those previously awarded to the nearest relative. An exception is that when the patient becomes subject to emergency detention their nearest relative is informed in addition to the patient s named person (if known). 7. An MHO has a duty under sections 45 and 61 of the Act respectively to interview a person when short-term detention or an application for a compulsory treatment order is being considered, unless it is impracticable to do so. Section 45(1)(b) of the Act states that the MHO must, where practicable, ascertain the name and address of the patient s named person before deciding whether to consent to the granting of a short-term detention certificate. Identifying the patient s named person may necessitate discussion with the medical practitioner who is considering granting the detention certificate and/or other relevant professionals as to whether the patient has the capacity to nominate a named person. Section 61(2)(c)(i) of the Act states that the MHO must inform the patient of their rights in relation to the application for a compulsory treatment order. It would be good practice for the MHO, when undertaking either of these duties, to provide the person with such information on the role of the named person as suits the person s needs. It would be good practice for the MHO to discuss with the person the benefits and process of nominating a named person under section 250 of the Act as well as the process and effect of making a declaration under section 253 of the Act. The MHO might do this by explaining these issues to the patient verbally and with a follow-up leaflet. 8. It would also be good practice for the MHO to explain to the person what will happen if they do not nominate a named person. The MHO will consequently also need to explain the difference between the roles of the named person and the independent advocate. It would also be best practice for the MHO to ascertain at this stage whether the patient has an advance statement and also to ascertain its location. Nomination of named person 9. Section 250 of the Act sets out the process of nomination of a named person. A person aged 16 or over may choose an individual to be their named person. The nomination may be made whether or not the patient is, at the time, the subject of compulsory measures under the 1995 Act or the 2003 Act. The person must have the capacity to understand the decision they are making and its effects. 10. To be valid, a nomination must be signed by the person making it and witnessed by a prescribed person. The prescribed person must certify that the person signing the nomination understands its effect and has not been subject to any undue influence. The Act does not define undue influence. However, helping a person to understand the choices they have in relation to nominating their named person would be likely to be reasonable, whereas persuading a person to nominate a particular person is unlikely to be so. A nomination DRAFT 20

remains valid if the person who made it subsequently becomes incapable. Under section 250(4) of the Act, a nomination may be revoked by the person who made it provided that the revocation is signed and witnessed. 11. A person nominated may refuse to act as the named person. Section 250(6) states that the person declining to act must notify their refusal to the person who made the nomination and to the local authority for the area where the nominator lives. 12. It will be important that the person s named person is identified, wherever practical, in a person s case notes. The named person should be made aware of this and of the purpose of this record by the healthcare professional who includes the information into the person s case notes. Where a named person is not identified in the case notes, the MHO should be contacted to ascertain whether they know of such a person or whether any further action to identify such a person is necessary. Similarly, where a person exercising any functions under the Act has concerns about the suitability of a named person it would be good practice to consult the MHO to ensure that they are aware of their concerns. The MHO may take these views into account in considering any action necessary under section 255. 13. Where the patient is a child under 16, the Act makes provision at section 252 for the person with parental responsibilities in relation to the child, or the local authority where the child is in the care of the authority, to be the named person. In other cases the child s primary carer shall be the named person. When a named person should be given information 14. Once someone has been nominated, or becomes the named person under the provisions of the Act, it would be good practice for the MHO to ensure that they are provided with information about the role in a form which is helpful to them. This is likely to be both verbally and in written form. This information should include an explanation by the MHO that the named person may decline to act by informing the person and the local authority for the area in which the person lives. 15. On all occasions where a named person is being nominated, the MHO should consider the impact on the nearest relative/primary carer where they are not nominated as the named person. This could be done through explaining to them the role of the named person and the rights of any relatives or carers who are not nominated as the patient s named person. The named person s role and powers 16. The Act confers on the named person certain powers and rights which will come into effect usually when the person becomes subject to short term detention order, a compulsory treatment order or a compulsion order under the Act. The named person has rights under section 260(1)(b)(i) and 260(4) to receive information where a patient has been made subject to an emergency detention certificate or detained by way of the nurse s holding power at section 299. In addition, section 1(3) of the Act provides that a person who is discharging functions under the Act should take into account the views of the named person where this is relevant to the discharge of those functions. DRAFT 21

17. The MHO should make sure that the named person is fully aware that they have been nominated as named person or are the named person under the primary carer or nearest relative provisions. It would also be good practice for the MHO to ensure that the named person s identity is made known to all those who have functions under the Act which include a duty to notify the named person of certain events. 18. An MHO will need to be very familiar with the procedures regarding the nomination process of the named person. The MHO should explain to the patient that in the absence of them nominating a named person, their primary carer shall become their named person. 19. When ascertaining the identity of the named person and the primary carer, the MHO should be careful to respect the patient s rights with respect to confidentiality. 20. Under section 255 of the Act, the MHO has a power to apply to the Tribunal for an order under section 257 to appoint a named person where the MHO cannot identify the named person or has established that the patient has no named person. The MHO is under a duty to make an application to the Tribunal where a named person has been identified but, in the opinion of the MHO, that person is unsuitable to act as the patient s named person. The application will be for an order to remove and replace an apparent named person (i.e. a person whom the MHO has deemed to be inappropriate to act in that role). The expectation is that the patient s right to choose whom s/he wishes to have as a named person would be respected. The MHO has no power to veto the patient s choice at the time of nomination, nor should they apply undue influence on the patient. The MHO should intervene using the powers given at section 255 only where there are clear and significant reasons for doing so. Witnessing a nomination 21. The nomination by any person of their named person must be witnessed. A witness to the nomination of a named person must be able to assess and declare that in their opinion the person making the nomination understands the effect of nominating a person to be the named person and has not been subjected to any undue influence in making the nomination. This is important to ensure the nomination is recognised as valid. 22. The role of the witness is to certify that the person can make a valid statement, not to scrutinise, veto or endorse the nomination. 23. [The Scottish Executive is consulting on proposed regulations to be made under section 250(7) of the Act which would specify the classes of people who are entitled to witness the nomination of a named person. For further information on the policy intentions which are being considered with respect to these regulations, see the regulations policy consultation document.] DRAFT 22

Who can be a named person? 24. The named person, if an individual, must have attained at least 16 years of age. While the Act does not prevent it, it is not expected that the named person will be someone with a professional relationship with the person, such as a doctor/patient relationship, or anyone who works to deliver care or treatment to the person. It would be good practice for any professional who is nominated by a person to be their named person to discuss the nomination with the person s MHO with a view to the MHO discussing with the person any potential difficulties with such a nomination. The named person may decline to act 25. Any person who is nominated by a person can decline to act as their named person. If there is any suggestion in their mind that there might be a conflict of professional interest in continuing in this role then the person should give serious consideration to declining to act as the named person. 26. A person may decline to act as named person by giving notice to the person who nominated them and to the local authority in which the person who nominated them resides. 27. In such situations it would be good practice for any professional who is informed that the person s named person is no longer acting in that position to ensure that the patient s MHO (or if the patient does not have a designated MHO, the local authority for the area in which the person lives) is notified of this, to enable an MHO to ensure action is taken to identify a named person. Revocation 28. The person may revoke a nomination at any time. Any revocation must be signed by the patient and witnessed. The witness, as with the nomination process, must certify that in their opinion the patient understands the effect of the revocation and that they have not been subject to any undue influence. In such cases the MHO should discuss with the patient whether they wish to appoint another named person and where they do not, the MHO should explain the Act s provisions whereby the primary carer, or if there is none or s/he declines to act, the nearest relative would now become the named person. Named person where no person is nominated or the nominated person declines to act 29. Where no named person is nominated under section 250, or the nominated person declines to act, section 251 determines who is the named person for a person who is aged 16 or over. A person who is a named person by virtue of any of these rules may decline to act by giving notice in accordance with the provisions of the Act to the person and to the local authority for the area in which the person resides. 30. First the patient s primary carer is to be the named person unless the carer is under 16. Where the primary carer is under 16, but the person has one carer who is 16 or over, that carer is the named person. Where the primary carer is under 16, but the person has 2 or more carers of at least that age, those carers may agree which of them is to be the named person. DRAFT 23