Scottish Government

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In this Issue

National Mental Health Services Assessment - Dr Grant's final report
National Mental Health Services Assessment Event - 27 May, Edinburgh
Updates on implementing the new Act
An Introduction to the Mental Health (Care and Treatment) (Scotland) Act 2003
Tell us your views: Witnessing Named Person and Advance Statement documents
Welcome to two new user/carer secondees
Keeping in Touch

Welcome to the third edition of the Scottish Executive's newsletter, 'Reforming Mental Health Law'.

The purpose of this newsletter is to keep you in touch with work to implement the new Mental Health (Care and Treatment) (Scotland) Act 2003, which should bring real benefits for people with mental health problems in Scotland and those who care for them.

This newsletter

• announces the publication of Dr Sandra Grant's final report on the National Mental Health Services Assessment;

• gives more detail about the work the Scottish Executive is doing or supporting to implement the Act;

• announces the publication of An Introduction to the Mental Health (Care and Treatment) Act 2003;

• welcomes two new user/carer secondees to assist with developing the Code of Practice.

The Scottish Executive is taking forward a number of strands of work to implement the Act. We have provided updates on:

• establishing the new Mental Health Tribunal for Scotland;

• developing the Code of Practice;

• supporting arrangements for training on the new Act;

• developing arrangements for monitoring, assessment and research;

• supporting the development of services.

The Mental Health Tribunal for Scotland

A project team has been established to set up the new Mental Health Tribunal for Scotland. Tribunal hearings will be held at different locations throughout Scotland so the team will be working closely with Health Boards and Local Authorities to ensure that the facilities provided take the needs of service users into account.

The Tribunal will be an independent Public Body and as such the Tribunal President and Members will be recruited in line with public appointments guidance. We anticipate that the President will be recruited and in post by September 2004, with Tribunal Members' posts being advertised sometime early autumn. We hope to attract a diverse set of individuals either with expert knowledge in mental health law or with knowledge and understanding of mental health patients' needs.

The Tribunal will be an organisation which is a model of responsiveness and adaptability and, to this end, the project team has started drafting and consulting on the procedures to ensure it runs smoothly. It will be serviced by administrative support provided by the Scottish Executive. Ministers will announce the location of its headquarters later this year.

Effective communication is a priority for the Tribunal project team. A MHTS website will be developed over the coming months but in the meantime the team can be contacted at: Mental Health Tribunal for Scotland, Room 1N.01 St Andrew's House, Edinburgh EH1 3DG or mhts@scotland.gsi.gov.uk

The Code of Practice

Much progress is being made on the development of the Code of Practice which will accompany the Act. We are planning for a public consultation on the draft Code of Practice to take place in the coming months. For example, we plan to publish the parts of the draft Code which relate to 'civil compulsion' (i.e. issues such as emergency detention or compulsory treatment orders) shortly. The consultation period will last for three months.

In May we plan to publish the parts of the draft Code which relate to criminal justice procedures. Given the specialised nature of this section of the Code we intend to put this out for a 'forensic' public consultation for a period of two months.

We will then work on completing the final version of the Code of Practice as a whole in light of the comments we receive during this public consultation phase. The final version of the Code has to be laid before the Scottish Parliament before it can come into effect.

Training on the new Act - Mental Health Officers

The Scottish Executive recently completed a successful tendering exercise and has awarded a contract to Robert Gordon University for the development of training material to meet the transitional training needs of MHOs appointed under the 1984 Act. We expect that the material will be available by the end of August.

MHOs will have to undertake this training before they will be able to practise under the 2003 Act. The programmes will be delivered locally in a series of one-day seminars offering an introduction to the new Act and how it differs from the 1984 Act. These one-day seminars will be aimed at both MHOs and health and voluntary sector partners who will need to be familiar with the new legislation. An additional four days of training will focus on the new MHO duties and responsibilities and the implications for professional practice. Some of this training may also be suited to joint training, e.g. with consultant psychiatrists and GPs, and local training programme providers should keep this in mind when developing training programmes based on this material.

Further work is underway with NHS Education Scotland and the Royal College of Psychiatrists to develop training materials for psychiatrists and other health professionals. In addition a Training Needs Assessment has been commissioned to look more widely at training needs in relation to the Act.

Monitoring, assessment and research: The Mental Health Law Research Programme

The Mental Health Law Research Programme's Analysis of Responses to the Consultation document was published on 16 February. It collates and examines the wide variety of comments raised by respondents to the proposed research questions posed in the consultation exercise carried out by the Executive in 2003. The responses ranged beyond the remit of the research programme itself, so the document includes an Action Matrix to show how the Executive intends to address a variety of wider issues related to the implementation of the Act over the coming months.

Plans for pre-enactment research are already underway. This will help us to collect information on how things are working under the present legislation and will provide a baseline against which to measure changes brought about by the 2003 Act. It is important that this is carried out sensitively and establishes data collection processes that will help us to track the impact of the new Act long-term. The Analysis of Responses is available on the Scottish Executive's Social Research website. Further information will be included on the website as it becomes available. For enquiries, contact Dr Rosemary Rushmer at Rosemary.Rushmer@scotland.gsi.gov.uk

Development of Services: Perinatal Mental Illness (Including Postnatal Depression)

From April 2005, the new Act allows for mothers with a perinatal mental illness to be admitted to hospital with their child where they so wish and each NHS Board will have to decide how they will respond to these new statutory provisions.

Guidance has been prepared to inform NHS Boards' (and their partners') planning processes. The guidance builds on precedent by offering a template for the best organisation of joint admission services and lends itself equally for application as a planning or an audit tool. The document anticipates the forthcoming legislation and reflects the current advice on the best organisation of mother and child joint admission care.

The template will shortly be available on the Scottish Executive Mental Health and Well Being Support Group Website: www.show.scot.NHS.UK/mhwbsg/

Tell us your views: Witnessing Named Person and Advance Statement documents

The Scottish Executive is currently considering the regulations it will seek to make to supplement the detail of the new Act. In particular, we would welcome views and comments on the following proposals in connection with for making a Named Person nomination, and for making an Advance Statement. We plan to bring into effect the provisions which allow people to nominate their named person and to draw up an advance statement from October 2004.

We are seeking views on who should be the 'prescribed person' for each of the Named Person (section 250) and Advance Statement witness provisions (section 275).

Named Person

A person can nominate a Named Person to receive information and have the right to make applications and appeals to the Tribunal on their behalf. Section 250(2) of the Act sets out the procedure for nominating a named person. Section 250(4) sets out the procedure for revoking such a nomination. Section 253(2) sets out the procedure for making a declaration that a person specified in the declaration shall not be the declarer's named person and section 253(5) set out the procedure for revoking any such declaration.

The Act states that a list of persons who may witness the nomination of the named person or any subsequent revocation of that nomination or any declaration (or subsequent revocation of that declaration) in relation to a named person will be prescribed by regulations (section 250(7) and 253(6)).

In terms of section 250(2)(c) and (4)(c), in order to comply with the requirements of the Act, the 'prescribed person' as well as witnessing a person's Named Person nominated or revocation must also certify that in his opinion the nominator -

(i) understands the effect of nominating a person to be the nominator's named person or, as the case may be, revoking the nomination; and

(ii) has not been subject to any undue influence in making the nomination or, as the case may be, the revocation

Similarly, in terms of section 253(2)(b) and (5)(b), in order to comply with the requirements of the Act, the 'prescribed person' as well as witnessing a person's declaration in relation to a named person or any subsequent revocation of that declaration, must also certify that in his opinion, the nominator -

(i) understands the effect of making the declaration or, as the case may be, revoking the declaration; and

(ii) has not been subjected to any undue influence in making the declaration or, as the case may be, the revocation.

Advance Statements

A person can draft an Advance Statement setting out how they would wish to be treated, or not to be treated, for mental disorder should their decision-making capacity become significantly impaired due to mental disorder in the future. An Advance Statement is a written indication of the patient's wishes to medical staff and they ought to have regard to those wishes when carrying out their function under the Act.

The Act states that a list of persons who may witness a person's Advance Statement will be prescribed by regulations (section 275(2)(d)).

In terms of section 275(2)(e) of the Act, in order to comply with the requirements of the Act, as well as the 'prescribed person' witnessing the making of the Advance Statement, he must also certify that in his opinion at the time of making the advance statement, the person has the capacity of properly intending the wishes specified in it.

Prescribed Persons

We are seeking views on the 'prescribed persons' who could make these judgments.

Perhaps you think the best people would be:

• only registered medical practitioners (including GPs and psychiatrists) and solicitors;

• a wider list of associated professionals, including registered medical practitioners, solicitors, nurses, psychologists, occupational therapists, practitioners of allied medical services, other health workers, and social workers/mental health officers;

• anyone from a much broader list, for example the list of people who can countersign passport photographs (this list includes a wide variety of professions).

You may consider that the same people could be a 'prescribed person' for each role, or you might think that they are very different and suggest different kinds of people for each 'prescribed' group.

Please send your comments to the Mental Health Law Team by 30 April 2004 at mentalhealthlaw@scotland.gsi.gov.uk

New secondees to consult service users and carers

We have been indebted to our other secondees Ed Finlayson, Willie Paxton and Raj Darjee for assistance in developing the Code of Practice, and we look forward to working further with them as implementation continues. We also welcome Mark Ramm to the team, and say thank you and farewell to John Mitchell.

We are delighted to welcome Chris Evans and Joyce Mouriki to our team of secondees. Joyce and Chris will dedicate one day per week to ensure the views of users and carers are taken into account in developing the Code of Practice and other documents. They will complement our existing secondees (who offer advice about best practice for psychiatrists, general practitioners, mental health officers and psychologists) by collecting and feeding back to us views from service users and carers.

Joyce writes:

I have been a user of mental health services for about nine years. I returned to Scotland at the end of 1998 having previously lived in Greece for twenty years. Since my return, because I am personally engaged with services provided by primary care, secondary care and social work, I have been involved with the formation of an organisation called Lanarkshire Links. The main purpose of our organisation has been to build on partnership working with all the agencies involved in the planning and delivery of mental health services. I am also a user member of the Mental Health and Well Being Support Group and have enjoyed the opportunities afforded to me to date to share good practice through involvement in their work.

Chris writes:

After graduating in 1972, I taught Chemistry for 15 years in the Midlands, becoming Head of Department and then being seconded to work on pre-vocational education developments. Following a move to Ardnamurchan (to pursue sailing interests!), I worked with older people in a small residential setting for almost a decade. Since then I've been a support worker for adults with mental health problems, helping them to maintain tenancies in the community. My personal experience of depression led me to join HUG as an active volunteer, leading to employment with them as communication/support worker. Advocacy has been one of my main interests since being a volunteer for a pilot project in Lochaber in 1996/7, enabling me to contribute to the subsequent development of Advocacy Highland.

Chris and Joyce will be contacting networks and groups throughout Scotland during the next six months to gather service users' and carers' opinions and feedback. If you wish to contribute your ideas and views, please write or email them through the usual contact address for the Mental Health Law Team.