Changes to the current Mental Heath (Care and Treatment) (Scotland) Act 2003

The current Act is from 2003 and while it was thought of as a leading piece of legislation at the time, the changes in the care and treatment of people with mental illness and an increased focus on human rights has caused the Commission to ask for a review for some years. It is thought that support for people with mental health conditions will be strengthened through an independent review of the Mental Health Act. A review group will also make recommendations that reflect people’s social, economic and cultural rights and will consider the future shape of incapacity, mental health and adult support and protection legislation. Two years ago, the Commission published a document with Edinburgh Napier University calling for reform of Scotland’s mental health and incapacity laws explaining why this change was needed. This document has helped drive this process of changing the current Scottish Mental Health Act. The three areas for change mentioned were: - New form of guardianship to provide more flexibility and rights respecting way to make decisions about money, care and welfare for people who cannot take those decisions themselves. - The possibility of unified legislation, replacing Scotland’s two separate mental health and incapacity laws with new, non-discrimatory legislation for making decisions about welfare and treatment where an adult is unable to do to unaided. - The issue of compulsion in care and treatment. Particularly how far decision-making capacity should be central to decisions on compulsory treatment, whether or not the person has mental illness. Colin McKay, chief executive of the Mental Welfare Commission said: “This will be an ambitious project, which we will support in every way we can. We await the details of how the review will be

The implications of the recent rise in compulsory treatments for Mental Health

The Mental Welfare Commission recently reported a 4.1% increase in episodes of compulsory treatment for mental health, which means 2017/2018 had the highest number of compulsory treatments since the inception of the Mental Health Act in 2003. There are three detention certificates that make up these compulsory treatments: Emergency detention certificates (EDCs), which are used in critical situations when a person needs to be detained in order to receive urgent specialist care for a mental illness. An EDC means they can be detained in hospital for up to 72 hours and can be issued by any doctor. Short term detention certificates (STDCs) are often preferred by medical practitioners and need to be recommended by a psychiatrist and a mental health officers, which can then detain patients in hospital for up to 28 days. Compulsory treatment orders (CTOs) are a more complex affair, as the applications must include two medical reports, an MHO report and a proposed care plan. The Tribunal then decides whether a CTO is granted, which can last up to six months. Interestingly, the gradual increase shows that perhaps awareness amongst police officers and governmental branches is still not high enough. This could suggest that, in strenuous and unknown scenarios, police might hastily revert to emergency detentions as a means of finding a solution to a problem that involves a mentally ill patient. Additionally, this could be exacerbated by the fact that critical or crucial emergencies are often subjective and need to be determined quickly. This could explain why Emergency Detention Certificates in particular, have risen astronomically in the last ten-year period, increasing by as much as 45% in total. Increasing Awareness of Key Issues Most of these issues start with a better

The Implications of Mental Incapacity on a Power of Attorney

A blog assessing whether a power of attorney can overrule patient liberties when they no longer possess the capacity to make their own arrangements When a person with capacity withdraws their consent, this has direct implications on their rights and liberties. However, there seems to be a bit of a grey area surrounding potential POA’s for patients who don’t have mental capacity. While this has definitely been discussed from a legal perspective, it remains a delicate situation which can not always be resolved by established laws. Additionally, this is often complicated by the fact that unique legal conditions and stipulations are applicable for each individual, making each case as complex and unique as the next. In this blog, we’ll look over some of these considerations, hoping to expose just how precarious this issue is in practice. A Grey Area Anyone with capacity can withdraw consent at any given moment, which means any future action that would jeopardize their liberty would need to be granted by a court. However, there is plenty of legal justification to support decisions that do limit people’s liberties. After all, if the adult did specifically address arrangements that included a “deprivation of liberty,” as the Mental Welfare Commission calls it, then it is legally justified to assume that these must be adhered to. But what do you do when a patient loses capacity after their Power of Attorney has already been made? Naturally, things are not always as clear-cut when it comes to patients who lack the mental capacity to make their own decisions. However, this is especially true when you consider some of the most important principles set out in the Adults with Incapacity Act, which specifically state that you

Mental Health Tribunal for Scotland publishes Annual Report

Recently, the Mental Health Tribunal presented its Annual Report to the Scottish Parliament. As a result, we think this is an excellent opportunity to explore some of the most important findings and statistics surrounding detentions and treatment orders. In this blog, we’ll highlight some of the key trends and focus on the implications this can have on the judicial processes surrounding the Mental Health Tribunal. Steady Increase in applications since 2010 The increase in applications has continued steadily since 2010/2011, with a record 4,459 applications made thus far this year. This trend does show that the Mental Health Tribunal has an important role to play in the existing judicial and legal framework surrounding mental health patients and those under treatment orders. However, keeping up with the high demand and growing number of applications, including a potential increase in the amount of appeals, will mean that the Mental Health Tribunal may find its resources stretched to the limit in upcoming years. Nevertheless, the annual report does stipulate that “the statutory timescale for holding a hearing for a section 63 application within 5 working days of the expiry of a patient’s short-term detention certificate” was met in 100% of cases. Types of Cases Since its inception in 2005, roughly 91.6% of all cases were linked to a mental illness diagnosis, whereas 3.43% of all cases were linked to mental illness and a learning disability. It was also interesting to note the frequency of the types of cases and what applications were made: 6% of applications were for a compulsory treatment order (CTO) 76% of applications were for a short-term detention certificate 61% applied to extend and vary a CTO 3% applied to vary a CTO Will the

Guardianship Orders Continue to Increase in Scotland

A recent report by the Mental Welfare Commission shows that the use of guardianship orders has increased in Scotland, as has been the case in recent years. These orders are generally used to protect those who lack the capacity to make their own decisions, placing the emphasis on a guardian (usually a relative, carer, or friend) to ensure that their rights and wishes are protected and respected. New statistics reveal that that the number of existing guardianship orders is up by 12% since 2016-17 and now stands at a new high of 13,501. This is coupled with a rise in the amount of guardianship applications in Scotland in general. Complex legal processes The majority of all guardianships are related to either a learning disability (45%) or dementia/Alzheimer’s disease (41%). Interestingly, Mike Diamond, an executive Director at the Mental Welfare Commission, noted that the ‘continued steep rise in guardianship applications is concerning,’ because ‘it is a complex legal process and takes up a considerable amount of time for care professionals, particularly mental health officers.’ While he does mention that most relatives find guardianships helpful, it does create a complex situation that involves detailed assessments, and a variety of expert opinions, many of which require extensive corroboration. This process can take a while and is often fraught with legal implications – mostly concerning patient assessments and documentation surrounding any eventual incapacity. Outcomes of the report There have been many calls to reform the Adults with Incapacity Act, and this debate will continue to be relevant as the Government, in conjunction with the NHS and other regulatory bodies, seeks to protect the rights of patients who lack mental capacity. Furthermore, the report places a renewed emphasis on the

Appealing against Mental Health Tribunal Decisions

Under the Mental Health Act of 2003, anyone has the right to appeal decisions taken by the Mental Health Tribunal. In this blog, we’ll take you through this process and which parties are normally involved, be that named persons, the patient themselves, or solicitors and welfare attorneys. Who is involved in the appeals process? The right of appeal applies to a ‘relevant party,’ which is subject to change depending on the specific decision that is being appealed. To summarise, the Mental Health Tribunal states that this almost always includes “the patient, the patient’s named person, any guardian of the patient, any welfare attorney of the patient, the mental health officer and the patient’s responsible medical officer.” It’s important to remember that the Tribunal cannot provide advice to those who are considering filing an appeal against a tribunal decision. As a result, many patients who are involved in an appeal often choose to do so with the aid of a solicitor or welfare attorney, as this may help speed up the process. When can you make an appeal? According to the Mental Health Tribunal themselves, there are four main grounds for making an appeal: that the Tribunal decision was based on an error of law; that there has been a procedural impropriety in the conduct of any hearing by the Tribunal on the application; that the Tribunal has acted unreasonably in the exercise of its discretion; that the Tribunal’s decision was not supported by the facts found to be established by the Tribunal. Outcome of an appeal There are two main outcomes of any given appeal, as per section 324 of the 2003 Act: Change the decision, if it is deemed to be credible in light

11 Facts on detentions under the Mental Health Act

When people refuse treatment, they may, in some extenuating circumstances, be detained, or ‘sectioned,’ under the Mental Health Act. This has several important legal implications and, as such, has been widely discussed and elaborated upon in recent years. We’ve made a list of some of the most interesting and relevant facts and findings about detentions under the Mental Health Act. 1. There are three types of civil detentions These are Emergency Detention, Short- term Detention, and a Compulsory Treatment Order (CTO). Emergency Detention allows a person to be held in hospital for up to 72 hours, whereas a Short-term Detention means that a person can be detained for 28 days. A CTO, however, can take place in a hospital or in the community and lasts for a treatment period of 6 months, which can be renewed when it terminates. 2. Right to Appeal If a person is detained against their will, they have a right to an appeal and get help from an independent advocate. 3. Number of detainees has increased by 47% The number of people detained under the Mental Health Act in England increased by 47% between 2005 and 2015. The Royal College of Psychiatrists says that it is unsure what the exact reasons for this rise are. A report by the Care Quality Commission proposed that better care for return detainees and early intervention programmes may help to improve the situation. 4. Removal to a Place of Safety Anyone suffering from a mental disorder who needs care and treatment can be taken to a place of safety by the police. A 24-hour assessment period will follow where the person’s treatment needs are assessed. Police cells are being used less and less frequently

What is Independent Advocacy and why is it important?

Independent Advocacy is an important concept that was widely discussed during the 2015 changes to the Mental Health Act. It has recently surfaced yet again, after recent reports surrounding advocacy planning and implementation revealed that there is still a lot of work to be done. In this blog, we’ll explore what independent advocacy is, why it’s so important, and the impact of these recent findings on its development. The purpose of Independent Advocacy Independent advocacy enables people to exert as much control as possible over their own lives. Crucially, independent advocates are structurally, financially, and psychologically removed from service providers, healthcare providers, and other services. This helps to prevent a possible conflict of interest, which is particularly relevant with patients who are either mentally ill or who do not have mental capacity. It also means that they don’t make any direct decisions for the person they are supporting; instead, they provide them with all the necessary information so that they can make an informed decision themselves. Of course, if the individual in question does not have mental capacity or suffers from a mental illness, then it is possible for an independent advocate to speak on their behalf. As a result, they act as an important spokesperson for these individuals, advising them on their rights and making sure their wishes are carried out (where possible). The Scottish Independent Advocacy Alliance (SIAA) states that there are four main themes of advocacy: Safeguarding people who are vulnerable and discriminated against or whom services find difficult to serve. Empowering people who need a stronger voice by enabling them to express their own needs and make their own decisions. Enabling people to gain access to information, explore and understand their

The most important amendments to the Mental Health Act in 2017

In 2017 the Policing and Crime Act introduced some significant changes to sections 135 and 136 of the Mental Health Act 1983. Important changes to section 135 and 136 of the Mental Health Act, made by the Policing and Crime Act 2017, came into force on 11 December 2017. The changes to the police powers and places of safety provisions have already be set out. Briefly they are as follows: Section 135 provides for a magistrate to issue a warrant allowing a police officer to enter premises to remove a mentally disordered person to a place of safety. The amended legislation allows an assessment to take place in the premises/ home under certain circumstances. Sectioin 136 - if a person appears to a constable to be suffering from mental disorder and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons remove that person to a place of safety….. or, if already in a place of safety to keep them there or to take them to another place of safety Section 136 powers may be exercised anywhere other than in a private dwelling; It’s unlawful to use a police station as a place of safety for anyone under the age of 18 in any circumstances; A police station can only be used as a place of safety for adults in ‘exceptional circumstances’, which are set out in regulations; The previous maximum detention period of up to 72 hours will be reduced to 24 hours (unless a doctor certifies that an extension of up to 12 hours is necessary); Before exercising a section

Have You Drawn Up Your Will Yet?

It's prudent for every adult to draw up and sign a will. You may say that your assets are minimal, and you think it's not worth the trouble. However, things may change unexpectedly. You might receive a surprise inheritance. If you die without a will, the court will decide who receives your assets. Young people may think they are invincible, and the farthest thing from their mind is making a will. For many others, it is just procrastination. Their intentions are good, but they just never get around to making a will. Recent research reports that fewer than 50% of adults in the UK have a will. There are some excellent reasons for having a will set up: If you pass away with no will, the court must appoint a person to act as administrator of your will. It can either be someone in the family or a third party. The administrator may make decisions which may seem very unfair and cause contention among family members. The court system will be in charge of distributing your assets. Your estate will be settled by following the state laws of inheritance. Having a will can spare your heirs unnecessary expense, time and possibly excess emotional stress by not knowing how you wanted them to distribute your assets. If you have dependent children, the court will be the one to choose a guardian for the children. A solicitor can set up a will by filling out forms you need, but you should do some research about any exceptional circumstances that may apply to your particular situation. Drawing up a will allows you to name an executor and choose an estate attorney. This document gives your executor the power