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Mental Health (Care and Treatment) (Scotland) Act 2003 [S]

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



The Scottish Parliament passed the Bill on 20th March 2003 and it received Royal Assent on 25/04/2003.



Main Provisions

Part 1: Introductory

Contains a set of general principles largely related to the treatment of an individual under the Act by those persons who are making a decision on their treatment. The principles are largely related to listening to the views of those being treated or their representatives and that treatment should be given in the least restrictive fashion. All of the principles outlined by The Millan Committee are included although some will vary in their legislative effect. A new section (B1) sets out the principle the welfare of the child

Part 2: The Mental Welfare Commission for Scotland

The Mental Welfare Commission will continue to have the power to discharge patients from compulsory orders, will play a role in safeguarding the welfare of people with mental disorders. The Commission will be expected to promote the principles of the Act and protect the rights of patients. It is proposed that they bring to the attention of Scottish Ministers or others any circumstances where a patient is unlawfully detained, is subject to neglect or ill-treatment or may have suffered some loss or damage to property (Sect 6). Any person working on behalf of the Commission, as part of an investigation, will have the right to inspect medical records or interview either the patient or those involved in the patient's care (Sect 9).

Part 3: The Mental Health Tribunal for Scotland

The Mental Health Tribunal is a new body. Applications for compulsory care and treatment will be referred to the Tribunal who will have the power to grant or deny the application. The Tribunal will also have the power to revoke applications on appeal. The members of the Tribunal will have qualifications training and experience which would allow them to serve as convenors of the Tribunal. The Tribunal will also contain a member who is qualified in medicine and in the diagnosis of and treatment of mental disorder. A third member should have relevant qualifications, training and experience as laid down in regulations. The Tribunal will be able to call any individual with an interest in a given matter to give evidence. Failure to do so would constitute an offence.

Part 4: Health Board and Local Authority Functions

The Bill proposes that a duty be placed on health boards to maintain a list of approved medical practitioners who have special experience in the diagnosis in the diagnosis or treatment of mental disorder (Sect 19). An amendment was made to the Bill at Stage 3 placing a duty health boards to provide services to those under the age of 18, who are admitted to hospital voluntarily or involuntarily, services that are age appropriate. Local authorities will have a duty to provide services to those who have or have had a mental disorder (Sect 20). Local authorities will also be required to provide a sufficient number of mental health officers to meet the requirements of the Act. Health boards and local authorities will be required to work together, with voluntary organisations, to provide services under the Act (Sect 25)

Part 5: Emergency Detention

Proposals in this part of the Bill include arrangements for the emergency detention of individuals who have been diagnosed as having a mental disorder, that their ability to make a decision on their treatment is impaired and that if they were not detained in hospital they would pose either a risk to themselves or the safety of other people (Sect 31). The person will be detained in hospital to assess what treatment will be required. The Bill outlines the process that should be undertaken in these circumstances including the duties on medical practitioners and hospital managers in relation to examination and notification (Sect 32)

Part 6: Short Term Detention

Measures for short term detention are outlined. The grounds for short term detention are the same as those for emergency treatment. The proposal is that the patient would be detained in hospital for a period of 28 days and that medical treatment would be given as appropriate under part 13 of the Act (see below). A short term detention order must have the consent of a mental health officer (Sect 35) who must interview the patient as soon as practicable after being consulted. There are also proposals on the duty of medical practitioners and hospital managers to notify the patient, their named person or guardian and, within seven days, notify the Tribunal and Mental Welfare Commission. (Sect 37). The patient may apply to the Tribunal for revocation of the order (Sect 40). Extension of the 28 days is proposed where an application is being made for longer term detention under a Compulsory Treatment Order (Sect 41).

Part 7: Compulsory Treatment Orders

This part of the Bill outlines the proposals for the detention of an individual on the longer term Compulsory Treatment Order (six months in the first instance). Two medical practitioners must carry out medical examinations of the patient and be satisfied that the patient has a mental disorder and that the medical treatment will prevent the mental disorder worsening or alleviate any of the symptoms, or effects of the disorder. They must also be satisfied that if treatment were not provided the patient would pose a significant risk to themselves or others. (Sect 45). It is proposed that the mental health officer make an application to the Tribunal. It is only the mental health officer who can make this application. The mental health officers duty will be extended to produce a report, a care plan and ascertain a named person (Sect 47). When an application is made the Tribunal will afford the patient, the patients named person and others with an interest in the application to make representations to the Tribunal. Proposals are also made on the extension of the Compulsory Treatment Order (Sect 66), the circumstances in which appeals can be made for revocation (Sect 75) of an order and the requirements for the review of orders (Sect 62)


Part 8: Mentally Disordered Persons: Criminal Proceedings

Proposals are made for the arrangements that should be made when a person is acquitted of an offence but requires admission to hospital as a civil patient. The Millan Committee took the view that the role of Scottish Ministers in overseeing the management of restricted patients should be reformed. Scottish Ministers will continue to retain some responsibilities. The Tribunal will have the power to discharge restricted patients. Other proposals include the criteria for admission to the State Hospital and for the treatment of offenders who have a mental disorder.

Part 9: Compulsion Orders

This part of the Bill applies to patients on whom a compulsion order is made. Proposals include the appointment of the patients responsible medical officer and the duties placed on mental health officers. The arrangements for the first review of a compulsion order are outlined (Sect 104) and a duty placed on the responsible medical officer either to review or revoke the order and if renewal is necessary to apply for an extension of the order to the Tribunal (Sect 107). Further proposals are made for the review of an extended order which must be carried out 2 months before the order expires.

Part 10: Compulsion Orders and Restriction Orders

This part of the Bill outlines proposals for those patients who are subject to compulsion orders and a restriction order. As well as the arrangements for a first review of the compulsory order there are also proposals for a duty on Scottish Ministers to review compulsion order and restriction orders and will have the power to apply to the Tribunal to revoke an order (Sect 129). An application can also be made by the patient for discharge from a restriction order (Sect 132). Arrangements for conditional discharge from hospital and for the recall of a patient from conditional discharge are given

Part 11: Hospital Directions and Transfer for Treatment Directions

The application of this part of the Bill relates to those patients who have offended and are detained on hospital.. Similar duties apply to the responsible medical officer and the mental health officers as in other parts of the Bill. Proposals are made for the duty on Scottish Ministers to review hospital direction from time to time and for review of the hospital direction by the responsible medical officer as the review might relate to the revocation of a hospital direction. (Sect 151).

Part 12A Transfers

Deals with the transfer of patients to other hospitals and appeals against transfer to other hospitals other than the state hospital.

Part 12 AA Suspension of Parts 8, 10 and 11

This part outlines arrangements for the preparation of assessment orders and the suspension of measures authorising detention. There are also arrangements for the revocation of an order by the responsible medical officer and Scottish Ministers.

Part 12B Assessment of Needs

This part deals with the duty on local authorities and Health Boards when a request is made for an assessment of needs for community care and other services.

Part 12C Preliminary duties on making of orders

This part outlines the arrangements for appointing a mental health officer and a responsible medical officer. It also sets out the duties of the mental health officer in preparing a social circumstances report.

Part 13: Medical Treatment

In this part of the Bill proposals are made for the treatment of persons under the Act. The Mental Welfare Commission will be responsible for compiling a list of medical practitioners who have the qualifications and experience to discharge duties under the Act. The Commission must also ensure that the list includes practitioners who have qualifications and experience in relation to persons who have not attained the age of 18 years (Sect 161). Safeguards are proposed for persons receiving particular types of treatment - such as surgery and Electro-Convulsive Therapy - for those capable of consenting and those incapable of consenting. Any decisions on a child's treatment - whether they are capable of consent or not - must be made by a child specialist (Sect 163 &164). In the case of urgent medical treatment the Bill proposes that treatment should be given, with or without consent, if the purpose of the treatment is to save the patients life, prevent serious deterioration in the patient's condition or to prevent the patient from harming themselves (Sect 171).

Part 14: Patient Representation

This part of the Bill outlines proposals for individuals who have attained the age of 16 years to nominate a named person (Sect 177). The individual will also be able to revoke a named person if the individual is able to understand the effe3ct of revoking the named person. In relation to a child (under 16 years of age) it is proposed that the named person will be the person who has parental rights or, where a child is in the care of a local authority, that authority; or in any other case, the primary care. Where there are two parents there can be agreement between the two. ( Sect 179). Section 181 outlines the meaning of nearest relative. A duty is placed on each health board and each local authority to secure the availability of independent advocacy services to persons in their area who have a mental disorder (Sect 182). Patients subject to detention should also have access to a medical practitioner to advise the patient on making applications under the Act (Sect 183). A person under the age of 18 will be able to appeal to the Tribunal to have the appointed named person revoked if they are unhappy with the appointment.

Part 15: Miscellaneous

Proposal are made for the production of a Code of Practice giving guidance to any person discharging functions under the Act (Sect 184). Scottish Ministers intend to consult on what should be included in the Code of Practice. Other provisions are made for the supply of information to the patient and for the provision of assistance to a patient with communication difficulties (Sect 186), Proposals are made for individuals to make and withdraw an advance statement on how they wish to be treated for mental disorder and how they do not wish to be treated (Sect 187). The Education (Scotland) Act 1984 will be amended to ensure that those children detained in hospital continue to receive education (Sect 189). Section 190 outlines a proposed duty on the local authority or health board to mitigate the adverse effect of a compulsory treatment order on parental relations where a child or the parent is subject to that order.

Part 15 A Entry Removal and Detention Powers

This part deals with arrangements for the removal of an individual to hospital from a premises and gives details of the removal order and the circumstances for an urgent application for an order. Arrangements are also given for the removal of an individual from a public place. Section 200 outlines the powers of the nurse to hold a patient pending medical examination. A ""place of safety"" is defined in section 202F.

Part 16: Absconding

Outlines the proposals for the return to hospital of those patients who have absconded whilst subject to detention.

Part 17: Offences

This part of the Bill deals with offences against patients who are subject to the Act whether in the form of a sexual act, intimidation, threat, persuasion or deceit (Sect 213). It will also be an offence for anyone employed to provide a service to ill-treat or wilfully neglect a patent (Sect 217). It is proposed that it will be an offence for anyone to obstruct any person seeking to undertake their duties under the Act (Sect 218).

Part 18: Appeals

This part of the Act outlines proposals for individuals to appeal to the sheriff principal against certain decisions of the Mental Health Tribunal (Sect 219). A further appeal can made to the Court of Session against the decision of the sheriff principal in certain circumstances (Sect 220). Section 222 gives proposals for Scottish Ministers may appeal to have the Tribunal's decision suspended in the case of a restricted patient (Sect 222).

Part 19: General

Outlines general rules and regulations and orders (Sect 225).


Timelline

The Stage 1 debate took place on the 11th December. The Bill completed Stage 1 on 11th December.

Stage 2 is due to commence on 7th January 2003, and completed on 18/02/2003.

Stage 3 to be debated in the Scottish Parliament on 19 and 20th March.

01/03 - Mental Health (Scotland) Bill - 1st Marshalled List of Amendments for Stage 2.

14/01/03 - Mental Health (Scotland) Bill - 2nd Marshalled List of Amendments for Stage 2.

01/03 - Mental Health (Scotland) Bill - 3rd Marshalled List of Amendments for Stage 2.

21/01/03 - Mental Health (Scotland) Bill - 4th Marshalled List of Amendments for Stage 2.

28/01/03 - Mental Health (Scotland) Bill - 5th Marshalled List of Amendments for Stage 2.

04/02/03 - Mental Health (Scotland) Bill - 6th Marshalled List of Amendments for Stage 2.

05/02/03 - Mental Health (Scotland) Bill - 7th Marshalled List of Amendments for Stage 2.

10/02/03 - Mental Health (Scotland) Bill - 8th Marshalled List of Amendments for Stage 2.

17/02/03 - Mental Health (Scotland) Bill - 9th Marshalled List of Amendments for Stage 2.

18/02/03 - Stage 2 completed. The Bill has been renamed to Mental Health (Care and Treatment) (Scotland) Bill and has been re-printed at Stage 2.

18/02/03 - Stage 3 amendments can now be lodged.

05/03/03 - Stage 3 to be debated in the Scottish Parliament on 19 and 20th March.

18/03/03 - 1st Marshalled List of Amendments selected for Stage 3.

20/03/03 - The Scottish Parliament passed the Bill.

24/03/03 - Mental Health (Care and Treatment) (Scotland) Bill re-produced as passed.

25/04/03 - Mental Health (Care and Treatment) (Scotland) Act 2003 received Royal Assent

Further Information

  1. Health and Community Care Committee - 18th Report 2002
  2. Mental Health (Scotland) Bill (Explanatory Notes )
  3. Mental Health (Scotland) Bill (as introduced)
  4. Mental Health (Care and Treatment) (Scotland) Bill
  5. Mental Health (Scotland) Bill - 2nd Marshalled List of Amendments for Stage 2
  6. Health and Community Care - 2nd Report 2003: Report on Subordinate Legislation
  7. Amendments to Mental Health (Care and Treatment) (Scotland) Bill Stage 3 lodged on 12/03/03.
  8. Mental Health (Scotland) Bill - 7th Marshalled List of Amendments for Stage 2
  9. Amendments Mental Health (Care and Treatment) (Scotland) Bill lodged on 19 March 2003.
  10. New amendments to Mental Health (Scotland) Bill Stage 2 lodged on 13/02/03
  11. Mental Health (Scotland) Bill - 3rd Marshalled List of Amendments for Stage 2
  12. Health and Community Care 18th Report 2002 Evidence
  13. New amendments to the Mental Health (Scotland) Bill Stage 2 lodged on 20th December 2002.
  14. New amendments to Mental Health (Care and Treatment) (Scotland) Bill Stage 3 lodged on 13/03/03.
  15. Mental Health (Scotland) Bill - 5th Marshalled List of Amendments
  16. Mental Health (Scotland) Bill - 6th Marshalled List of Amendments for Stage 2
  17. Health Committee Calls for Written Evidence on Mental Health (Scotland) Bill
  18. Mental Health (Care and Treatment) (Scotland) Bill Stage 3 amendments
  19. New amendments to Mental Health (Scotland) Bill Stage 2 lodged on 14/02/03
  20. Mental Health (Scotland) Bill - 1st Marshalled List of Amendments for Stage 2
  21. New amendments to Mental Health (Scotland) Bill Stage 2
  22. Mental Health (Scotland) Bill - 2nd Marshalled List of Amendments selected for Stage 3
  23. New amendments to Mental Health (Scotland) Bill Stage 2 lodged on 6 February 2003
  24. New amendments to Mental Health (Care and Treatment) (Scotland) Bill Stage 3 lodged on 14/03/03.
  25. Mental Health (Scotland) Bill - 8th Marshalled List of Amendments for Stage 2
  26. Mental Health (Scotland) Bill - 4th Marshalled List of Amendments for Stage 2
  27. Mental Health (Scotland) Bill - (as passed)
  28. New amendments to Mental Health (Scotland) Bill Stage 2 lodged on 7th February 2003.
  29. Mental Health Bill - 1st Marshalled List of Amendments selected for Stage 3