CHAPTER ONE INTRODUCTION
1.1 The Mental Health (Care and Treatment) (Scotland) Act 2003 ( MHSA) was an important reform of mental health law in Scotland. The Act was informed by the range of professionals and others involved in mental health care, including health care professionals, policy makers, service planners, carers and service users. The Mental Health Tribunal for Scotland ( MHTS), an independent body, was put in place and replaced the Sheriff Court as the forum to consider decisions about the compulsory care and treatment of those with mental health problems and represents one of the fundamental changes to the mechanisms for applying Mental Health Law in Scotland.
1.2 A review of the operation of the MHSA is currently underway. In light of concerns about the decisions arising from MHTS hearings, the review is examining both the efficiency and quality of the processes for civil orders. In particular, as the research brief describes, concerns relating particularly to multiple hearings, interim orders, and the nature of the participation of parties in the process require exploration. The review is intended to lead to more streamlined and simpler processes which, in turn, would result in fewer hearings and a more satisfactory experience for patients and clinicians. This research reported here was commissioned in order to inform the review by exploring the early operation of MHTS.
Mental Health (Scotland) Act 2003: key elements
1.3 The Mental Health (Scotland) Act 2003 ( MHSA) provides a comprehensive revision of the legal framework for compulsory detention and treatment of those with mental disorders. The new act sets out the roles, responsibilities and principles underpinning the legislation, the compulsory powers for detention and treatment, and the rights and responsibilities of patients and service providers alike.
1.4 Underlying the Act are a set of guiding principles that reflect the recommendations of the Millan Committee (2001). These are intended to enshrine the basic rights of all those with mental disorders and, fundamentally, set the tone for the ways in which care is delivered. The new Act creates a series of "certificates" that determine in what situations, by whom, and with what conditions compulsory care can be invoked. The Act also codifies the rights of people with mental disorders to advocacy, support and redress through the newly established Mental Health Tribunal Scotland ( MHTS) and extends the remit of the Mental Welfare Commission to monitor the working of the Act.
1.5 The Act also defines a set of specific professional roles - Mental Health Officers ( MHOs), Responsible Medical Officers ( RMOs), and Nurses 'of the prescribed class' - each of whom has distinct functions in relation to the Act.
1.6 Most importantly, the Act establishes that people with mental disorders must retain their basic rights and responsibilities and should not be subject to discrimination on the grounds of social position (e.g. age, gender, sexual orientation, and ethnicity). Moreover, care should be delivered in ways that respect individual diversity. It is assumed that, wherever possible, care and treatment should be provided without recourse to compulsory powers. However, where care is imposed on an individual, local authority and health care services have a reciprocal obligation to provide safe and appropriate services and, while respecting their own and others need for safety, to do so in ways that are "in the least restrictive manner and to be of benefit the service users". Insofar as it is possible, service users should be enabled to participate in decisions relating to all aspects of their care and their wishes should be taken into account. The rights, needs and experience of carers are also to be acknowledged, and the welfare of children with mental disorders are deemed paramount.
1.7 The Act therefore creates a set of procedures, roles and responsibilities that, taken together, represent a significant shift in the ways in which mental health care and, particularly, compulsory detention and treatment is delivered. In turn, these changes are likely to affect the experiences of mental health patients, their carers and the professionals and organisations delivering care. 2
The Mental Health Tribunal Service
1.8 The creation of the Mental Health Tribunal for Scotland ( MHTS) is one of the fundamental changes to the mechanisms for applying Mental Health Law in Scotland. As mentioned previously the MHTS replaced the Sheriff Court as the forum to consider applications for civil compulsion and all appeals against compulsion.
1.9 The MHTS is made up of two distinct areas: the Administration, based at the Hamilton Headquarters staffed by 80 Scottish Government civil servants, and the Tribunal which is an independent Non-Departmental Public Body ( NDPB), headed by a President.
1.10 The Administration process all applications, appeals and revocations regarding compulsory orders. Individual caseworkers record and process applications, invite participants to hearings, handle paperwork, and coordinate tribunal hearings. The scheduling team assist in coordinating attendance of panel members at the hearing venue and Hearings Clerks assist on the day of the hearing.
1.11 The independent tribunals, convened across Scotland, are responsible for hearing and making decisions on the long term compulsory care and treatment of people with mental health disorders. Each three-member tribunal panel comprises a legal member (convenor), a medical member (psychiatrist) and a general member 3 drawn from a pool of some 300 panel members, each appointed for five years on a part-time basis.
1.12 A number of other people can be involved with someone whose case is brought before the Tribunal and may be present at a tribunal hearing, e.g.: the patient; the named person; the patient's carer; the patient's guardian; the patient's solicitor; the Mental Health Officer; Responsible Medical Officer ( RMO); Medical practitioner; Welfare Attorney; Curator Ad Litem; and any other person with an interest.
1.13 The powers of the Tribunal in determining an application are to:
- grant it
- refuse it
- grant an interim Order for a shorter period
- vary measures
- add new measures
1.14 This research was primarily concerned with the processes and procedures involved in the granting of compulsory treatment orders ( CTOs) and interim compulsory treatment orders ( iCTOs) by the Tribunals. Compulsory powers concerning offenders with mental disorder were not the focus of this research and have, therefore, not been included.