Scottish Government

MENTAL HEALTH (CARE AND TREATMENT) (SCOTLAND) ACT 2003
TRANSITIONAL TRAINING GUIDE
INTRODUCTORY TRAINING FOR MENTAL HEALTH OFFICERS AND OTHER PRACTITIONERS
EMERGENCY AND SHORT-TERM DETENTION AND RELATED MATTERS
READER 2

7. Assessment of risk in relation to conditions of Detention

The MHO now exercises considerably enhanced gate-keeping functions in relation to the various routes to detention and other compulsion under the 2003 Act. To put it bluntly, the fact that there will now be only extraordinary emergency circumstances in which any patient may be detained without MHO consent or assessment is a matter of great significance. It is therefore expected that MHOs will have to have well developed skills of risk assessment in acute and crisis situations involving mental disorder. It is for this reason that we offer you some words about risk assessment in this reader. However, this is not the place to propose any favoured models of risk assessment. It is rather our intention to discuss the general context of risk as it may arise in the framework of the Act and to highlight the ways in which some key features of assessment may fit into this framework. Having said this, it is a risky undertaking to propose discussion in which risk is generalised. The art of risk assessment is to be as precise and explicit as possible.

In the discussion we draw from some psychological sources, which have statistically quantified certain indicators of risk and proposed a clinical model for analysing risk. While we use these sources, our discussion keeps such a model in soft focus. This is because, however such measurements of risk may tend towards greater accuracy, they depend upon an ability to collate and analyse data. The opportunity to do such things is not available to MHOs, whose risk assessment must often be undertaken on the hoof, removed from clinically controlled settings and undertaken sometimes in situations of high stress and rapid action. This aside, O'Sullivan (1999) would stand in opposition to such attempts to scientifically quantify risk by indicating his view that precision in risk assessment is an illusory goal. He is also hesitant to recommend models of risk assessment, suggesting the danger that they may be mechanically applied.

7.1 What is risk?

Essentially risk can be described as the likelihood that something may happen. Risk assessment therefore implies an attempt to look into the future and quantify whether or not something good or bad may occur there. The 'assessment ' part of the equation also implies that we marry together the likelihood of this event happening, with the desirability or undesirability of it happening. ⁹

Risk assessment cannot therefore be an exact science. The variables involved in the passage from present to future are so great (potentially infinite) that only the more outrageous and unlikely can be discounted.

This point is emphasised by Tony Zigmond, speaking on behalf of the Royal College of Psychiatrists in England and Wales, in discussion of dangerousness in relation to the draft Mental Health Bill. 'My ability to predict who might go on to commit a serious offence, if they haven't already done so, is very poor. With the best assessment currently available I would need to detain between 2000 and 5000 people unnecessarily to prevent one homicide ' (Community Care 2003). This point echoes Thomas Szasz's contention that deprivation of liberty in mental health law rests not on what a person has done, as it would in criminal law, but on what a person might do (Szasz T. S, 1971.).

At the risk of pretending to make this conundrum more scientific than it ought to be, or making this seem like a standard grade maths paper, we may reduce risk assessment to the following sum:

Risk assessment = X x Y

X is the desirability/undesirability of a set of circumstances happening.

Y is the likelihood of it happening.

O'Sullivan (1999) proposes a diagrammatic form, not incompatible with our own:

In this model, hazards are the factors that increase the likelihood of danger happening. For example, an icy road is the hazard that increases the danger of a crash. The hazard is actual, in so far as it is observable in the present. The danger is potential, in so far as it may occur in the future.

In a similar way, strengths contained in the present situation may mitigate the negative risks that hazards indicate. Strengths may produce benefits rather than dangers in the future. If the icy road is the hazard that increases the likelihood of a crash, then a good driver and a safe car are strengths that may enhance the likelihood of a safe journey.

It should be borne in mind that the object of this equation is not to eradicate all undesirable or negative risks. A degree of negative risk is desirable or even necessary in life and any attempt to cushion a person by deleting all risk from their life will invariably be damaging in itself . 'The question is one of identifying an acceptable level of risk' .

7.2 Factors in the 'X x Y' equation

It will not surprise any social worker to know that the ' X x Y' equation also represents a minefield of potential to get it wrong. There are, however, discernible sources of error that we may guard against. One of these may be caused by falsely attributing prejudicial characteristics to the subject of risk assessment. For the purposes of this discussion, the most obvious of these would be the sort of prejudice that popularly abounds regarding the dangerousness of individuals with mental illness per se. Any risk assessment would be hopelessly negatively skewed were the assessor biased by such an uninformed prejudice.

A second source of error may be caused by insufficient or inaccurate knowledge. The detailed knowledge base of MHO training and the new requirement that practising MHOs continue to develop this by CPD are safeguards against this. For example, even setting aside prejudice, any risk assessment of a person who has schizophrenia would be jeopardised if the assessor lacked sound current knowledge available on the disorder.

A third source of error comes from drawing false conclusions from linking two sets of correlation. For example, it is true that the suicide rate amongst men is significantly higher than it is amongst women in Scotland. It is also true that men tend to earn more through employment than do women. However, this does not mean that earning higher wages places one at greater suicide risk.

A fourth source of error might be the anxiety caused by high-profile media criticism of social workers. This is a well-known phenomenon in social work practice. More particularly in the sphere of child protection, it carries almost mythical status. For example, anxiety may cause us to overlook potential strengths in a situation and over-emphasise the dangers. Solid risk assessment requires a steady nerve that is not swayed by such considerations. While covering one's back is a natural concern, risk assessment ought to be focussed upon the subjects of the intervention, not upon the risks attendant upon the worker, except of course in respect of the actual risks to personal safety in the situation.

7.3 Enhance accuracy of assessment

Not surprisingly, anxiety may be aroused by the context in which risk assessment arises. Sharing the assessment with a colleague may help to objectify it. Multi-disciplinary risk assessment broadens the base of knowledge upon which the assessment rests and introduces two or more perspectives to it. Assessment by one discipline alone is more one-dimensional than a multi-disciplinary assessment. The differing perspectives held by various disciplines may cause a practitioner to re-examine and justify the assessment.

Of course this works best where there is clear, unimpeded communication across disciplinary boundaries. It echoes the Draft Code of Practice's exhortation about interdisciplinary working. It should not be forgotten that this relates to one of the findings contained in the report of the Christopher Clunis Inquiry (Richie et al 1994), that an adequate safety net for the most vulnerable patients can only be provided by close working across disciplinary boundaries. In O'Sullivan's model multi-disciplinary risk assessment is a strength that may produce benefit in the future.

It is well known that 'The best predictor of future behaviour is past behaviour ' (Moor, B 1996), provided this predictor is placed in context of the situation in which the behaviour is triggered. This concept is underpinned by Hammond and O'Rourke (1997), who note that certain indicators in a person's behaviour and personal history can serve as the basic platform upon which risk analysis may be built.

It follows that past behaviour in a given context may be a hazard in the present. For example, where a person has, in the past, tended to self-harm because auditory hallucinatory voices have commanded it at times of emotional stress, it may be reasonable to be alert to the possibility of self-harming behaviour recurring if that person is now facing the break-up of a long-term relationship.

However, the hazard may be eroded by strengths such as insight into that behaviour. For example, attending a voice hearers' support group may enable the person to gain some insight into understanding the phenomenon of hearing voices and may assist in devising strategies for managing the voices.

Hammond and O'Rourke (1997) propose a cumulative model of risk analysis. This model entails psychometric testing and is not applicable in crisis situations or outside clinically controlled settings. However, it may assist in the application of risk assessment in practice. The model takes account of accumulated indicators of risk and places them in the context of the given situation in which risk is being considered. It is of value because it identifies different categories of risk:

• Dangerousness to others;

• Risk of self-harm and suicide; and

• 'The risk of mental deterioration and impending breakdown ' (Hammond and O'Rourke, 1997 pp 2).

The value of this is that it seems to allude to the 'significant risk to health, safety or welfare, or the safety of any other person' given in sections 36 and 44 of the Act, even if it does not address the welfare requirement as explicitly as it does the others (see 7.4 below). Jeopardy to health, safety or welfare may be seen as the dangers the Act allows us to consider.

Risk factors of dangerousness

The following cumulative factors to be aware of may be seen as hazards that may increase the likelihood of danger occurring. No single item may significantly heighten risk, but the more the items accumulate, the greater the risk.

• The person lives alone, in which case the person may have lower levels of support and early warning signs of deterioration may be missed. It may also indicate lower levels of domestic stability.

• Non-compliance with medication may indicate risk to the extent that medication alleviates symptoms that may be frustrating, upsetting or causing of fear, anger or other strong emotions.

• Past history of unpredictability may pose risk and may relate to an added factor: impulsiveness, which may indicate a disregard for the consequences of actions.

• Facing high levels of stress may predispose a person to act impulsively. It must be remembered that stress is not always caused by conventional sources.

For example, just because the rest of us do not share the reality of a psychotic experience, it does not make that experience less stressful. For example, the stress caused by a psychotic experience that one is being persecuted by the CIA is presumably as great as the real experience of such persecution. Perhaps it is greater, given that the subject will be hard pushed to find anyone to genuinely share the experience with.

• There is much research to indicate that problems with alcohol and certain other drugs may predispose a person to aggression or violence, whether self-directed or turned outwardly to others. They also cause disinhibition.

• History of high-expressed anger or evidence of it at the moment are indicators of risk. McGovern (1996) also gives a range of research to support this.

Hammond and O'Rourke give a range of factors that substantiate a history of dangerousness:

• History of criminal convictions for violent offences;

• Medical history of violence, aggression or self-harm;

• Record of suicidal ideation; past suicide attempts;

• Various histories that indicate specific risks such as carrying weapons, fire raising, predatory behaviours or hostage taking;

• Various indicators (such as head injury, low IQ) that suggest tendency to be frustrated;

• Factors such as cognitive or sensory impairment which may lead to unrealistic expectations of services; and

• History of child abuse indicates increased likelihood of self-harm, as do other factors that may lower self-esteem.

Both Hammond and O'Rourke and McGovern also note psychopathy as a potential risk factor, in that it embraces impulsivity, frustration and unrealistic expectations and is frequently linked to other indicators discussed above.

McGoven further noted feelings and expressions of hopelessness as being indicators of suicide risk especially amongst young people with the disorder. The strong link between suicide and depression should always be borne in mind.

The Sainsbury Centre for Mental Health has produced a very helpful and informative paper Clinical Risk Management: A Clinical Tool and Practitioner Manual written by

Steve Morgan. The chapter on Risk Indicators alone is worth a read but, as above, it is stressed that these must be viewed within the proper context of the situation and the process of the assessment. The paper categorises the broad areas of risk indicators as: suicide; neglect; aggression/violence; and other risks.

Among suicide indicators it highlights the need to consider the following factors:

• Previous attempts on their life;

• Previous use of violent methods;

• Misuse of drugs and/or alcohol;

• Major psychiatric diagnoses;

• Expressing suicidal ideas;

• Considered/planned intent;

• Belief in having no control over their life;

• Expressing high levels of distress;

• Helplessness or hopelessness;

• Family history of suicide;

• Separated/widowed/divorced;

• Unemployed/retired;

• Recent significant life events;

• Major physical illness/disability; and

• Other (eg Age, sex, access to means, lack of positive social contracts/relationships/networks/cultural links).

7.4 Risk assessment in the context of the conditions for detention

The framework of the various sources of detention and compulsion under the Act give a useful shape to the assessment process. Discussion of risk assessment cannot be separated from the subject of the assessment, the nature of the attendant risks and the scope for allowing these risks to happen or taking steps to prevent them from happening.

Let us draft a generalised approximation of the conditions for Emergency and Short-term Detention, merging sections 36(4) and (5) with sections 44(4) such a hybrid might read as follows. The patient may be detained in hospital provided it is likely that:

• 'He or she has a mental disorder;

• Because of the mental disorder, his or her ability to make decisions about medical treatment is significantly impaired;

• Were the patient not detained there would be a significant risk to his or her health or safety or welfare;

• To the safety of any other person; and

• The detention is necessary '.

The subject of the risk assessment has to be either 'the patient ' who has a mental disorder and impaired decision making ability in relation to treatment decisions or 'any other person' who may be exposed to risks that jeopardise his or her safety, or both of these.

The risks to the patient are confined to three broad areas health or safety or welfare and the risk to 'any other person ' is restricted to consideration of safety. It is worth noting that 'any other person' in this case may actually be the MHO, or any other professional involved, should there be immediate risk to their safety. Therefore, risk assessment may call upon you to quantify and objectify a subjective feeling of personal danger from the patient.

Further risk of dangerousness to others, risk of self-harm and suicide and 'the risk of mental deterioration and impending breakdown ' may arise here (Hammond and O'Rourke, 1997 pp 2). As we acknowledged above, this does not do justice to the condition of risk to welfare, which requires further discussion here.

The concept of welfare

Under the 1984 Act, the term 'welfare ' was sometimes criticised as too broad in consideration of the grounds for application for mental health guardianship. Moreover, section 329 of the Act 2003, which gives definition to how certain key terms in the Act are to be interpreted, does not give a meaning for welfare. So this remains a broad concept which, at best, may achieve sharper definition through decisions made by the Tribunal. On the other hand, welfare is also the province of social workers who may welcome the breadth of scope it offers.

Welfare is an holistic concept that, in the context of mental health, echoes the term 'mental wellbeing '. For example, a person threatened with homelessness may be seen to be at risk to welfare because of the global effects that homelessness has upon a life. In the same way, a woman who is routinely humiliated by her partner to such a degree that it has a marked effect upon her self-esteem could be seen as having her mental health jeopardised because of the over-all effect that this experience may have upon other spheres of her life.

We do not suggest that such humiliation alone would constitute grounds for detention; however, it may be a contributory factor if that woman was prone to severe depression and other factors were present, such as inability to comply with treatment because her partner did not wish her to receive it. In this way too, the concept of welfare more accurately allows us to consider the effects of sexual or emotional abuse, the impact of which may fall short of jeopardising health or safety. In considering that a humiliating relationship alone is insufficient reason to consider compulsory measures, we are acknowledging that, in assessing risk, we have to take account of issues of degree of seriousness. There, of course, are other areas of risk to welfare associated with social exclusion, poor self-care, poor environment and the impact of the mental disorder on the individual's ability to cope with the consequences of these.

The scope to take steps to minimise or prevent risk from happening is restricted by the duties given to anyone with a function under the Act ie in this case the medical practitioner and MHO.

The use of the word 'significant' in the phrase 'were the patient not detained there would be a significant risk to his or her health or safety or welfare; or to the safety of any other person' means 'significant ' enough to merit the deprivation of freedom inherent in the authority to detain. This can require a balancing act: If the potential damage caused by allowing the risk to materialise or grow outweighs the loss of freedom cause by the detention, then the detention is merited. In weighing this up the principles become guiding factors, with regard for 'benefit to the patient, equality of opportunity and minimum necessary restriction all figuring large'.

One area in which MHOs can make a significant contribution to the assessment of risk in a crisis situation is by increasing the knowledge of those involved in assessing the risk collectively of the service responses available as well as other informal, but real, supports available to potentially manage and minimise the risky behaviour as it is thought likely to occur.

To illustrate the above, we have introduced to the accompanying hypothetical case study factors in relation to our discussion of welfare above.

8. What next?

Assuming that you are studying this reader in preparation for session 2 of the transitional study days, we advise you to test the fruits of your study against our second self-assessed test of knowledge, attached to this reader. We advise you to read and reflect upon the attached case study if you have spare guided study time. This is because the case study is complicated and poses challenging questions. Your contribution to the discussion will be the better for having considered the questions beforehand. Feel free to make notes of your reflections and compare them to your thoughts after the study session.

8.1 References

Hammond, S. M. and O'Rourke, M. M. (1997) Developing a Psychometric Model for Risk Assessment: The Case for RAMAS. Clinical Decision-Making Support Unit, Broadmoor.

Leason, K. (20/11/2003) Suitable Cases for Treatment? Community Care.

McGovern, J. (1996). Management of Risk in Psychiatric Rehabilitation. The Psychologist, September 1996, pages 405-408.

Moor, B. (1996.) Risk Assessment: A practitioner's Guide to Predicting Harmful Behaviour. Whiting and Birch.

Morgan, S. (2000). Clinical Risk Management: A Clinical Tool and Practitioner Manual. The Sainsbury Centre for Mental Health

O'Sullivan, T. (1999), Decision Making in Social Work, Macmillan.

Ritchie, J. Dick, D. & Lingham, R. (1994). The Report of the Christopher Clunis Inquiry. North West Thames Regional Health Authority.

Szasz, T. S. (1971), The Manufacture of Madness, Routledge & Keegan Paul.

9. Training Materials and Exercises for Session 2: The Second Self- Assessed Test of Knowledge

1. What situations might invoke the local authority's duties to inquire (section 33)? If you feel like a more challenging variant on this question, are you able to address this comparatively, by articulating the ways in which section 33 covers a broader scope than does section 10 of the 2000 Act?

2. Who may make application for section 35 warrants and what potential powers can a warrant contain? Again, if you wish a challenge, are you able to say how section 35 warrants differ from those under section 117 of the 1984 Act?

3. How do the conditions for Emergency Detention under the 2003 Act differ from those contained in section 24 of the 1984 Act?

4. In what way does the person who may grant an Emergency Detention differ from the person who may grant a Short-term Detention?

5. How does the requirement upon the Medical Practitioner to obtain MHO consent differ between Emergency and Short-term Detention?

6. Who may appeal against Short-term Detention?

7. In what ways may Short-term Detention be revoked?

8. In what ways does Short-term Detention contain greater safeguards for the patient, relative to Emergency Detention?

9. In what ways is the local authority's duty to appoint MHOs changed from the 1984 Act to the position under the 2003 Act?

The answers are found in Annex A.

A word about session 2:

The exercises in this session are deliberately designed to have less conclusive outcomes than those in session 1. They are intended to generate discussion amongst experienced MHOs, who carry awareness of the complexities of real-life practice and should be able to bring this to bear upon the paper exercises in hand. To this end the discussion may very likely raise questions to which there are no answers as yet. Indeed, some of the following is almost designed to do so. Therefore, should you raise any of these questions, it is not a failure on anyone's behalf. Such unanswerable questions are very important and should be kept and used as material for you to reflect upon in practice.

While we do give quoted reference to the law where it is required in the exercises and we provide you with a copy of the abbreviated list of principles used in the Reader 1, you are advised to have a copy of the Act itself and the Codes of Practice to hand for reference during your discussion. This is because interpretation of the actual Act must be seen as the best preparation of all. This is your opportunity to try it out in a safe setting.

Instructions for discussion of the case study:

As per session 1, before beginning discussion, each discussion group is asked to appoint a note-taker and spokesperson. This is for the purpose of collecting feedback to the bigger group should it be required. Remember that the emphasis of this undertaking is the sharing of thoughts, concerns, anxieties and ideas, so the more collective contribution is facilitated, the better. You are advised to agree a small number of points from the case discussion. These may be answers to the questions, in so far as they have answers, considerations that you feel are relevant to the matters being discussed or unanswerable questions raised by your discussion.

As well as this generalised set of instructions, the case study has its own brief introduction, which is intended to focus you upon the specific purpose of your discussion. Take time to read the three sections of case study as the programme directs. Allow the questions at the end of the study's three sections to focus your discussion but do not be too constrained by them. While it is unhelpful to go off at irrelevant tangents, do not allow the questions to prevent your group from exploring relevant issues that may be useful in your area of practice. Contribute as fully as you can to the discussion.

Finally, unlike the exercises attached to Reader 1, those contained here are not inter-disciplinary in their focus. You are therefore expected to address them in your role as MHO. For this reason, when referring to the discharge of any given function under the Act, we have been precise so as to constrain you to the MHO task.

Introduction to the case study:

You will be working on one case study for the entirety of this second session. To enable you to deal with its complicated structure, it is best to think of it unfolding in three sections, dealing respectively with inquiries, warrants and detention. Your training facilitator will have a programme prepared to enable you to pace your discussion of the sections of the case study over the day.

The 3 sections of the study direct you along a particular sequence of practice decisions which you may not have agreed to. This is a device to get you to consider various aspects of the Act - making inquiries, applying for warrants and considering emergency and Short-term Detention.

Finally, before you begin to engage with the case study, here is the abbreviated version of the principles to use as an aide memoir:

The principles place a requirement on those people who have what we have called a formal role to discharge any function under the Act. The requirement is that, in discharging his or her function, such a person has regard for:

1. The present and past wishes and feelings of the patient;

2. In so far as is practicable, the views of the patient's named person, carer and any guardian or welfare attorney;

3. The importance of the patient participating as fully as possible in the discharge of the function;

4. The importance of providing information and support for the patient, in the form that is most likely to be understood, to enable the patient to participate;

5. The importance of the range of options available in the patient's case;

6. The importance of providing the maximum benefit to the patient;

7. The importance of the patient's abilities, background and characteristics, including age, sex, sexual orientation, religious persuasion, racial origin, cultural and linguistic background and membership of any ethnic group;

8. The importance of providing appropriate services and continuing care to the patient;

9. The needs and circumstances of the patient's carer, providing such information as might be needed to assist in the care of the patient; and

10. The function must be discharged in a manner that' Involves the minimum restriction on the freedom of the patient that appears to be necessary in the circumstances, encourages equal opportunities and if the patient is a child (under 18 years old) best secures his or her welfare.

The scenario, section 1:

In engaging with the scenario below, assume that the information set out has been gleaned from the medical records and from Eileen, the informant who has notified the local authority of the need to make an investigation.

Janice McLeod is a woman who has a history of depression in which low self-esteem is a chronic feature. She is in a bullying relationship with her husband John, a man who aggrandises his own self-esteem by dominating and humiliating her. Janice has a job as a school cleaner. She has little social life and keeps poor contact with her elderly mother. This is because John won't allow it, even though Janice is secretly desperately guilty and worried that her mother is increasingly in need of domestic help due to her failing eyesight and diabetes. In almost all decisions Janice defers to John, to the point where she feels she has no confidence to exercise choice in her own right.

Before she met John four years ago, Janice received in-patient treatment for depression following the death of her father. She was admitted to hospital following a suicide attempt by overdose. Admission was not by compulsion but Janice agreed to it with some reluctance. At the time she identified unresolved childhood issues of emotional abuse at her father's hands as largely causal of her depression. She has never discussed these events with John.

Janice is known to her GP surgery where she was treated for depression for eighteen months after her discharge from hospital. More recent contact with her GP has been for numerous minor physical complaints but she has had no contact in the last six months.

Over the last year Janice has been aware of sinking back into depression. However John will not allow her to seek help for it. He is acutely aware of the stigma of mental illness, having been mocked as a child for having a mother who spent periods in psychiatric hospital. Furthermore, John uses Janice's inability to 'snap out of it' as an excuse to further degrade her.

The situation has now developed to the point at which Janice feels too incapacitated by the weight of her low mood to get out of the house and go to her work. This has now happened for two weeks with Janice furnishing no medical certificate for her employer. Eileen, her friend from work, has called round to advise Janice that her work supervisor says that unless she responds to the letters that have been written to her or returns to work, she will lose her job.

Eileen was at first unable to get in to the flat to see Janice. John sent her away telling her Janice was out. However, Eileen thought it improbable that Janice would be out, since the time of her visit was 8.00am, following the end of Eileen's cleaning shift at the school. Eileen returned when John was at work. When she was eventually able to rouse Janice to answer the door by shouting through the letterbox, Eileen was shocked to see how painfully thin her friend had become. Having no experience of depression, she was equally shocked to see how deflated and empty Janice seemed- almost devoid of any will to go on living, was how she described it. What worried Eileen most was that Janice didn't even seem to have the emotional reserves to cry, in her desperate situation.

Janice brushed off Eileen's concerns and refused to go to the doctors, saying that John would never stand for it. She got rid of Eileen with a promise that she would be fine and she would see her at work next week. When Janice did not show at work, Eileen was yet again debarred from seeing her by John. Eileen has had contact with care management in the past and the only thing she could think of doing in this situation was phoning the social work department. However, she has not yet told Janice that she has made this referral.

Questions:

1. Is this the sort of situation in which you would consider there to be a duty to make an investigation? In considering this, you may have to closely consider the circumstances in which such a duty arises (section 33 (2) (a)) - 'the person may be subject to or exposed to ill-treatment; neglect or some other deficiency in care or treatment…'

2. If you agree that the conditions may have been met, what advantages are there in having an MHO make the investigation? Who else in the local authority might be competent to make such an investigation?

3. If your answer to the first question was that there would be no duty in this case, what would you do with the information? If your answer was that there is such a duty, how would you proceed?

4. What considerations would there be in your plan of action, in relation to protecting Janice, given her fragile mental health?

5. What considerations would there be in relation to protecting Eileen's confidentiality?

6. Are there considerations in respect of John's rights?

The scenario, section 2:

Having written to advise Janice and John of your intention to visit, you have called at their flat at the first available opportunity. John refused to allow you entry despite your explanations that you have a duty to make an investigation under section 33 and that you may have a duty to apply for a warrant under section 35.

John has told you in no uncertain terms that you are not getting in to the flat and that his wife is not available to speak to you. He has also told you that you may get a warrant, bring the police or whoever you want. This is his home and no one is getting in.

Questions:

1. Revisit section 33(2)(a), which now becomes the conditions for considering application for a warrant on the grounds that 'the person may be subject to or exposed to ill-treatment; neglect or some other deficiency in care or treatment…' Assume John's refusal to be adamant. Assume also that you have made repeated attempts to obtain access over a period of days. Assume that, when John is out, the flat is locked and there is no sign of Janice. Assume also that the flat is on the second floor so you cannot even look in through the windows. Is the issue of such significance that you would apply for a warrant?

2. In applying for the warrant, section 35(1) would only allow the authority to gain access to Janice. A warrant under section 35(4) would allow you to obtain authority to enable a medical practitioner to carry out a medical examination of Janice, were you unable to obtain her consent to it. Under section 35 (5), a section 35(4) warrant also carries potential authority to detain her for a three-hour period in order to facilitate the examination. Assuming that you do agree that a warrant ought to be applied for anyway, from the information you have above, do you consider that these additional powers may be necessary?

3. If you do agree that the wider scope of a warrant under section 35(4) is needed, how would the principles shape your plan for implementing such a warrant? (See the abbreviated list given above.)

4. In having regard for the views of any carer, would you consider John to be Janice's carer? Consider also the Code of Practice's direction that the MHO should consult as widely as possible with any people involved with the care of Janice in the situation.

Scenario, section 3:

Assessment of risk in relation to Short-term Detention:

You may recall that, at the end of the discussion of risk to welfare, in the Reader 2, we promised you a case study upon which to consider the balance between 'significant risk to health, safety or welfare ' and the loss of liberty involved in detention. We also suggested that the principles should be guiding features in considering where the balance lay. In particular, in this regard, we highlighted the principles of having regard to benefit to the patient, equality and minimum restriction in relation to freedom.

We do not wish to assume that your discussion of first two sections of the scenario took you in any given direction. Indeed, the design of the case study is intended to provide you with enough uncertainty that your discussion could travel in a number of directions. However, for the purposes of advancing the discussion into the sphere of consideration of consent for Short-term Detention, please assume that you did successfully apply for warrants under section 35(1) and (4).

You are now inside the McLeod's flat with a very angry John McLeod, who reluctantly opened the door to the police constable on production of the warrant. You have taken the precaution of discussing the entire process with a Medical Practitioner who has agreed to be on stand-by to make herself available within one or two hours, should you need her.

To enable you to discuss the merits and practical implications of Emergency Detention versus Short-term Detention, please consider the case to have two alternative possibilities at this point:

1. That you have arranged for the GP (who is not an AMP) to attend. In this case it may be assumed that it is less than likely that an AMP would agree to attend such a situation for a patient unknown to the hospital for the last 4 years; and

2. That you have been able to arrange the attendance of an AMP.

Should detention be required, Short-term Detention would not be possible in scenario a).

Upon your insistence, you are led to the sitting room where a dishevelled woman sits in dirty clothes. She does not acknowledge your presence at first, with her gaze frozen in front of her. When you ask Mr McLeod to leave the room she does speak to you in a halting whisper, asking you to leave and refusing to consider accompanying you to see a doctor. She acknowledges that she is depressed but she states that she does not wish any treatment, as she can manage her condition without it. She also states that to accept medical intervention would just anger her husband and make things more difficult between them. In her view it is, after all, her fault for being so miserable.

Questions:

1. What options would be available to you at this point? Do you consider it would be important to call in the AMP/GP for a medical examination?

2. Are there any circumstances in which you would not call in any Medical Practitioner at this stage?

At this stage you do call in the AMP. Having interviewed Janice, she asks you to consent to Short-term Detention, based on her assessment that Janice is significantly impaired by her depression, that she is unable to make treatment decisions because of it and that the situation with Mr McLeod will deteriorate because of the intervention so far.

Questions:

1. From the information you have so far, do you agree that Janice's ability to make treatment decisions is significantly impaired by her mental disorder?

2. Considering our discussion in Reader 2 about 'significant' in respect of 'significant risk to health, safety or welfare', do you consider that the risks to Janice's welfare out-weigh considerations of loss of freedom entailed in any Short-term Detention? In this discussion please bear in mind the principles and particularly those relating to benefit to the patient, equality and minimum restriction in relation to freedom.

3. Discuss the merits of emergency versus Short-term Detention.

4. Assuming detention to have been proposed and consented to, what arrangements should be made for conveying Janice to hospital?

ANNEX A
Answers to the second self-assessed test of knowledge (Reader 2)

In this appendix, as in the subsequent appendices giving answers to the other self-assessed tests, we give a set of answers and, in some places, a set of comments upon the answers. The comments are offered as 'marking criteria' by which to measure your answer against the one we give. For example, we ask some questions which are manifestly unfair in that the full answer is a list of legally correct points such as you would not know at this point. In such a case, we loosely identify within what scope a good-enough answer would lie and ask you to use your judgement as to how well your answer compares to this comment.

1. Q: What situations might invoke the local authority's duties to inquire (section 33)? If you feel like a more challenging variant on this question, are you able to address this comparatively, by articulating the ways in which section 33 covers a broader scope than does section 10 of the 2000 Act?

A: Section 33 of the 2003 Act embraces a wide purpose, enumerated as follows:

• Section 33(2)(a) (i) ill-treatment; (ii) neglect; (iii) some other deficiency in care or treatment.

• Section 33(2)(b) because of mental disorder, the person's property (i) may be lost or damaged; (ii) may be at risk of loss or damage.

• Section 33(2)(c) the person may be (i) living alone or without care; and (ii) unable to look after himself or his property or financial affairs.

• Section 33(2)(d) because of mental disorder, the safety of some other person may be at risk.

Compared to this, section 10 of the 2000 Act is restricted to matters in relation to the personal welfare of the adult.

The detailed answer given above is very precise. Unless you have memorised the 2003 Act, you are unlikely to have replicated it. If your answer states that section 33 relates to wider matters, for example, protection of property and of the safety any other person, it will pass muster.

2. Q: Who may make application for section 35 warrants and what potential powers can a warrant contain? Again, if you wish a challenge, are you able to say how section 35 warrants differ from those under section 117 of the 1984 Act?

A: In section 35 the MHO alone may make application. The powers contained in it allow for access to the patient, medical examination of the patient should he or she be unable to consent, detention for up 3 hours, to facilitate this examination and access to medical records by a medical practitioner where it has been denied.

In section 117 of the old Act, the narrower grounds for application were simply that a person is suffering from a mental disorder and has been kept otherwise than under control, in any place; or being unable to care for himself, is living alone, uncared for in any place.

Section 117 could be applied for by either a medical commissioner or an MHO. 117 required execution by a named constable while 35 allows for any constable of the police force to effect the warrant. Section 117 also differs in that it allowed for removal to a place of safety and detention therein for up to 72 hours, where as section 35 only allows for detention in situ for up to 3 hours, with no authority to remove the person.

Section 117 lasted for 72 hours, whereas a section 35 warrant to gain access lasts for up to 8 days.

Again this answer is more detailed than anything you are likely to be able to give. If you have been able to recall several items from it, your answer will do.

3. Q: How do the conditions for Emergency Detention under the 2003 Act differ from those contained in section 24 of the 1984 Act?

A: Section 36 of the 2003 Act requires it to be likely that the patient has a mental disorder and it is likely that, because of the mental disorder, the patient's ability to make decisions about the provision of medical treatment is significantly impaired (36(4)(a) & (b)). Compared to this, section 24 (1) bases its grounds on a presumption that the urgency to detain is by reason of mental disorder.

Section 36(5)(a) states that it is a matter of urgency to detain the patient in hospital for the purpose of determining what medical treatment is required. Section 24(1) gives no specific purpose other than the urgency itself ;

Section 36(5)(b) states: were there to be no detention, there would be a significant risk to the health, safety or welfare of the patient or to the safety of other persons. Section 24 only gives risks of health, safety or protection of other persons.

The 2003 Act states that arrangements for Short-term Detention would involve undesirable delay. While there is a similar statement in 24(1), the implications are very different in that the undesirable delay of the 2003 Act would be a matter of hours, in order to effect Short-term Detention, while the delay in the 1984 Act would be days or even weeks to make an application to Sheriff Court.

The precision of the above answer assumes that by now you will be able to reproduce sections of the law accurately. It is unlikely that you will have memorised complete sections of the 1984 Act, let alone the 2003 Act. However we would hope that you have a picture of the salient differences between these sections fixed in your mind by now. For example, if you did not note that the test for ability to make treatment decisions or the condition of significant risk to welfare are new and significantly different conditions that must be satisfied in the 2003 Act, we would not consider your answer to be adequate.

4. Q: In what way does the person who may grant an Emergency Detention differ from the person who may grant a Short-term Detention?

A: Any medical practitioner may grant Emergency Detention while only an Approved medical practitioner (approved by the Health Board under section 22) may grant a Short-term certificate.

We would hope that you had this question precisely correct.

5. Q: How does the requirement upon the Medical Practitioner to obtain MHO consent differ between Emergency and Short-term Detention?

A: The 'where practicable' clause stands in relation to MHO consent only in Emergency Detention. In Short-term Detention, no certificate may be granted without MHO consent.

As our answer suggests, the MHO consent position is fairly unambiguous and is a matter of great importance to MHOs.

6. Q: Who may appeal against Short-term Detention?

A: Either the patient or his/her named person may appeal to the Tribunal at any time and as many times as they wish during the detention period.

We would hope that you included both the named person and the patient here. If you only mentioned the patient, we will grudgingly let you consider it to be correct.

7. Q: In what ways may Short-term Detention be revoked?

A: The RMO has a duty to review the detention 'from time to time' and to revoke it if s/he is not satisfied that the conditions continue to be met. The Tribunal may revoke the certificate if not satisfied that the conditions are met upon appeal. The Commission may revoke the certificate if they are not satisfied that the conditions remain met.

You may consider your answer correct if you got any two of the above.

8. Q: In what ways does Short-term Detention contain greater safeguards for the patient, relative to Emergency Detention?

A: The MHO's gate-keeping scrutiny of the conditions of detention is strengthened by the absence of a 'where practicable' clause in respect of MHO consent in Short-term Detention. Short-term Detention is strengthened by the greater expertise of an Approved Medical Practitioner in terms of understanding of mental disorder and knowledge of legislation. The right of appeal to the Tribunal in Short-term Detention strengthens rights for the patient and named person.

If you did not note that Short-term Detention is strengthened by the no consent = no detention clause, then your answer was not adequate. If you got the other two factors then your answer was very good.

9. Q: In what ways is the local authority's duty to appoint MHOs changed from the 1984 Act to the position under the 2003 Act?

A: The duty to appoint sufficient MHOs to their area now relates to three pieces of legislation the 1995, 2000 and 2003 Acts, whereas the 1984 Act's duty related only to the 1984 Act itself, in its original design. The 2003 Act makes specific reference to the registration of MHOs and to their education and training, while the 1984 Act only alluded to qualifications, competence and experience in dealing with mental disorder. Most importantly, appointment under 2003 Act is not 'for life', but is most likely to be for periods of 5 years only, renewable upon satisfying the original requirements for appointment as MHO in relation to continuing professional development.

This is another answer that would require you to have memorised the 2003 Act and probably been more acquainted with the detail of section 9 of the 1984 Act than most MHOs would need to be. Therefore, if you vaguely remembered that the 2003 Act involves greater complication across three pieces of legislation, entailing registration and being a time limited appointment, then you did well enough.

ANNEX B
Mental Health (Care and Treatment) Act Scotland 2003 comparison with Mental Health (Scotland) Act 1984

Main Provisions

Principles

Local Authority Responsibilities

Meaning of Mental Disorder

Meaning of Treatment

Emergency Detention - Conditions

Emergency Detention - Effect

Short Term Detention in Hospital - Conditions

Short Term Detention in Hospital - Effect

This pack is one of a series of Training Guides detailed below developed for local authority mental health officers and related health and social care staff commissioned from Robert Gordon University by the Scottish Executive.

Reader 1
Introductory training for mental health officers and other practitioners

Reader 2
Emergency and short-term detention and related matters

Reader 3
Compulsory treatment orders and related matters

Reader 4
Provision of social circumstance reports and provisions for people with mental disorder within the criminal justice system and other related matters

Trainers Guide for Readers 1-4

Briefing Paper
For health service and local authority managers

Briefing Paper

For local authority elected members

This material is also available on the Scottish Executive's mental health law website
www.scotland.gov.uk/health/mentalhealthlaw

1. You may already have noted in the text of the first reader that the phrase 'compulsory powers', sometimes also referred to as 'measures of compulsion' is used in relation to the CTO, as opposed to the narrower term 'detention', which is used in terms of Emergency and Short-term powers. This is because the CTO may compel its subject to accept a far wider range of measures than detention in hospital (whether for treatment or not).

2. The section 10 duty in the 2000 Act is upon the local authority 'to receive and investigate any complaints relating to the exercise of functions relating to the personal welfare of an adult in relation'… to various proxies and 'any circumstances made known to them in which the personal welfare of the adult seems to be at risk'

3. Section 35 (4) is the power to require a medical examination without consent. The actual authority to detain the patient in situ for up to 3 hours is contained in section 35(5).

4. Under the 1991 Act presumption of capacity to consent commences at 12 years old. Section 2 (4) states that ' a person under the age of 16 years shall have the legal capacity to consent on his own behalf to any surgical, medical or dental procedure or treatment where, in the opinion of a qualified medical practitioner attending him, he is capable of understanding the nature and possible consequences of the procedure or treatment.' The implication of this section is any medical practitioner proposing treatment must have regard for a child under 16's views as long as the child appears to have capacity. Any person with parental responsibility may exercise the right to consent on behalf any child under 16 years-old, where it is the Medical Practitioner's opinion that the child lacks that capacity.

5. New Directions, Report on the Review of the Mental Health (Scotland) Act 1984, Scottish Executive, January 2001.

6. Neither may follow on from the extension certificate that may be granted to prolong Short-term Detention beyond its 28-day's duration. This section 47 certificate is granted to facilitate application for a CTO, much like the section 26 A of the 1984 Act. Neither may be applied when the patient has had a community based CTO varied to a hospital based detention upon non-compliance with the terms of the order (sections 114 and 115) If these brief allusions to the intricate mechanics of CTOs seem confusing, do not worry. We will set them in a context that makes sense, in the third reader in the sequence.

7. When we look closely at medical treatment in the third reader, we will see that it is broadly defined to include such things as nursing and social care, but in the definition (section 329) it is also restricted in application to the treatment of mental disorder.

8. Section 44 (10) requires the AMP, where practicable, to consult with the named person and have regard for his or her views. The Code of Practice underlines that it would be best practice for the AMP to consult as widely as possible 'with anyone who is directly involved with the care and treatment of the patient prior to hospitalisation or who might be expected to provide care and support upon discharge- e.g. staff at a supported accommodation project.'

9. With our professional preoccupation to avoid catastrophe, it is easy to overlook the gamblers preoccupation that something good might happen. It is worth carrying in mind that risk assessment should also include assessment of positive risks.

10. Sections 32 to 56 relate to appointment of MHOs, duty to make inquiries, application for warrants in relation to section 33 inquiries and matters in relation to emergency and Short-term Detention.