New mental health legislation

Summary of the main provisions of the Mental Health (Care and Treatment) (Scotland) Act 2003

Principles

Guide practitioners when applying the act

Include: consideration of patients’ wishes, participation, benefit to patients, non-discrimination, least restrictive measures, consideration of carers, and primacy of child welfare

Definition of mental disorder

Any mental illness, personality disorder or learning disability

Exclusions: sexual disorders; alcohol or drug use or dependence; causing harassment, alarm or distress to others; or acting as no prudent person would act

Criteria for compulsory intervention*

Mental disorder

Medical treatment is available that is likely to prevent disorder worsening or to alleviate the symptoms or effects of the disorder

Significant risk to the patient’s health, safety, or welfare, or to the safety of another person

Ability to make decisions about the provision of medical treatment is significantly impaired because of mental disorder

Compulsory procedures

Emergency detention: assessment in hospital for up to 72 hours; only if using short term detention would involve undesirable delay

Short-term detention: assessment and treatment in hospital for up to 28 days

Compulsory treatment order: longer term compulsory treatment in hospital or community; non-compliance with treatment, including medication, may lead to hospital detention

Specific provisions for nurses to hold patients in hospital and for police to convey to place of safety

Medical treatment

Medication for over two months requires consent or second opinion

Electroconvulsive treatment may not be given to refusing patient with capacity

Legal review

Mental Health Tribunal for Scotland replaces sheriff court

Tribunal will make compulsory treatment order and review orders

Patient can request tribunal annually and must have tribunal at least every two years

Safeguards

Patient may nominate named person who can act on his/her behalf

Advance statements: clinician must be able to justify acting against these

Statutory duty to provide advocacy services

Role of Mental Welfare Commission for Scotland widened

Procedures for mentally disordered offenders

Range of orders allows assessment and treatment at various stages of the criminal justice process

Community and hospital disposals available following a finding of unfitness to plead or insanity, and following conviction

Restriction order (hospital disposal where discharge or transfer must be authorised by tribunal or Scottish Executive) or hospital direction (prison sentence with initial placement in hospital) available for cases where there is serious risk to others

* These are the criteria for a compulsory treatment order. For shorter orders the criteria are less stringent.