Chapter 1: Overview
This chapter begins with a discussion of the principles and other matters which underpin the legislation and which are laid out at sections 1 to 3 of the Act. It then describes two important terms used commonly throughout the Act: namely, "mental disorder" and "medical treatment". The chapter then concludes with an overview of some of the topics relating to children.
Principles of the Act
Taking Account of the Principles of the Act
01 Section 1 of the Act sets out the principles according to which people performing functions under the Act must discharge those functions. The principles apply to any professional, such as a doctor, nurse, social worker or MHO who is carrying out a function or exercising a duty in relation to a patient. For example, any doctor, member of medical staff or MHO taking a decision concerning emergency or short-term detention of a patient, or applying for, renewing, or seeking to vary a compulsory treatment order is discharging a function under the Act. The Tribunal is bound by the principles when making decisions about a patient.
02 The following persons are not bound by the principles: the patient; the patient's named person; the patient's primary carer; a person providing independent advocacy services; the patient's legal representative; a curator ad litem appointed by the Tribunal; and any guardian or welfare attorney of the patient. However, these principles may serve to guide such persons in their dealings with the patient, their carer and others.
03 The principles require that any person, other than those who are exempt, in considering a decision or course of action, takes into account the following matters:-
the present and past wishes and feelings of the patient, where they are relevant to the exercise of the function and in so far as they can be ascertained by any means of communication appropriate to the patient. Where the decision relates to medical treatment and the patient has an Advance Statement then this should be given due consideration ( For further information on advance statements, see Chapter 6 of this Volume of the Code of Practice).
the views of the patient';s named person, carer, and any guardian or welfare attorney so far as it is practical and reasonable to do so.
the importance of the patient participating as fully as possible in any decisions being made and the importance of providing information to help that participation (in the form that is most likely to be understood by the patient). Where the patient needs help to communicate (for example, translation services or signing) then these should be considered. Any unmet need should be recorded.
the range of options available in the patient';s case.
the importance of providing the maximum benefit to the patient.
the need to ensure that the patient is not treated any less favourably than the way in which a person who is not a patient would be treated in a comparable situation, unless that treatment can be shown to be justified by the circumstances.
the patient's abilities, background and characteristics, including, without prejudice to that generality, the patient';s age, sex, sexual orientation, religious persuasion, racial origin, cultural and linguistic background, and membership of any ethnic group.
04 Except where a decision is being made about medical treatment, the principles also require that the needs and circumstances of the patient';s carer and the importance of providing such information to any carer as might assist the carer to care for the patient, so far as it is reasonable and practical to do so, must also be taken into account. What is practical and reasonable will depend on the circumstances. While in an emergency the time available to consult and provide information may be limited, in other circumstances the person making the decision or taking a course of action should be able to take time to do so.
05 When a person is considering the information to be shared with the carer, it would be good practice to consider in every case the patient's right to confidentiality about their private medical details and treatment options, before information is supplied. It should also be noted that the Community Care and Health (Scotland) Act 2002 amends the Social Work (Scotland) Act 1968 to give carers a right to have their carer needs assessed by the local authority. It would be good practice to bring this assessment right to the notice of any carer providing a substantial amount of care where the carer appears to have unmet caring needs.
06 Where the person is discharging a function in relation to anyone who is, or who has been, subject to:-
an emergency detention certificate under the Act;
a short-term detention certificate under the Act;
a compulsory treatment order under the Act; or
a compulsion order under the Criminal Procedure (Scotland) Act 1995.
07 The person must also have regard to the importance of the provision of appropriate services to the person, including continuing care, where the person is no longer subject to the certificate or order.
08 The principles require that, after taking into account the matters set out above and any other relevant circumstances, the person discharging the function must then carry it out in the way that appears to that person to involve the minimum restriction on the freedom of the patient that is necessary in the circumstances.
09 For the purposes of these principles, making a decision not to act is still considered as taking a decision and any such consideration is bound by the principles of the Act.
Welfare of the Child
10 Section 2 of the Act makes specific provisions to safeguard the welfare of any child in respect of whom a person is discharging a function under the Act which may be exercised in more than one way. For this purpose a child is any person under the age of 18 years.
11 A person discharging such a function must do so in the manner that appears to that person to best secure the welfare of the child. The person must also take into account the matters set out in section 1 of the Act. For example, the views of the child and any carers should be taken into account in making decisions regarding the child. The importance of acting in the manner which involves the minimum restriction on the freedom of the child must be considered.
Equal Opportunities (section 3)
12 Section 3 of the Act provides a duty which applies to specified persons who are exercising functions under the Act to ensure that the function is discharged in a manner which encourages equal opportunities and the observance of the equal opportunities requirements.
13 The Act refers to the meaning given to "equal opportunities" and "equal opportunities requirements" set out in the Scotland Act 1998. In terms of that Act, "equal opportunities" means the prevention, elimination or regulation of discrimination between persons on grounds of sex or marital status; on racial grounds; or on grounds of disability; age; sexual orientation; language or social origin; or of other personal attributes, including beliefs or opinions, such as religious beliefs or political opinions. "Equal opportunity requirements" means the requirements of the law for the time being relating to equal opportunities.
14 The persons who are bound by the requirements of section 3 are the Scottish Ministers; Mental Welfare Commission; a local authority; a Health Board; a Special Health Board; the managers of a hospital; a mental health officer; a patient's responsible medical officer; a medical practitioner; and a nurse.
Definition of "Mental Disorder"
15 The Act refers throughout to a "patient". In terms of section 329 of the Act, "patient" means a person who has or appears to have a mental disorder.
16 Section 328 of the Act provides that "mental disorder" means any mental illness; personality disorder; or learning disability, however caused or manifested.
17 The definition of mental disorder has been drawn widely to ensure that the services provided for in the Act are available to anyone who needs them. A person with mental disorder will only be subject to compulsory measures under the Act if they meet the specific criteria for those measures. However, sections 25 to 27 of the Act also provide for a range of local authority duties in relation to the provision of services for any person who has, or has had, a mental disorder.
18 Section 328(2) of the Act specifically states that a person is not mentally disordered by reason only of any of the following:-
dependence on, or use of, alcohol or drugs;
behaviour that causes, or is likely to cause, harassment, alarm or distress to any other person; or
by acting as no prudent person would act.
19 No person who suffers from mental disorder but also falls within any of the above categories should be excluded from consideration for assistance, treatment or services under the Act. For example, the provisions of the Act may be invoked in respect of people with mental disorder who also have alcohol problems or misuse drugs. Section 328(2) ensures that a person is not regarded as mentally disordered by reason only of their sexual orientation, deviancy, trans-sexualism, transvestism or dependence on drugs or alcohol, or by their behaviour.
Definition of "Medical Treatment"
20 Section 329 of the Act defines "medical treatment" as "treatment for mental disorder"; and for this purpose "treatment" includes:-
habilitation (including education, and training in work, social and independent living skills); and
rehabilitation (read in accordance with the paragraph above).
21 "Medical treatment" includes pharmacological interventions as well as other physical interventions (such as ECT) in addition to psychological and social interventions (including occupational therapy) made with respect to mental disorder. Any references to "medical treatment" in the Act and this Code of Practice should be read in light of the definition in section 329 as outlined above.
22 Medical treatment for an unrelated physical disorder is not authorised by the Act. However, medical treatment for a physical disorder which is directly causing the mental disorder would be authorised. For example, where a patient has delirium (as a mental disorder secondary to a chest infection), then the administration of antibiotics would be a medical treatment (indirectly) for the mental disorder and so authorised by the Act. Other medically induced mental disorders could include starvation-induced depression, or hypothyroidism-induced depression. Self-harm (including overdose) as a result of a mental disorder may also be treated under the Act.
23 Where medical treatment for an unrelated medical disorder is required, and the patient is an adult and incapable of giving consent, then treatment under the Adults with Incapacity (Scotland) Act 2000 should be considered.
24 For further information on treating patients subject to an Emergency Detention certificate, see Chapter 7 of Volume 2 of this Code of Practice. For further information on "medical treatment", see also Part 16 of the Act and Chapter 10 of this Volume of the Code of Practice.
Children and Young People
Principles applying in the case of patients under 18: welfare of the child
25 Section 2 of the Act makes specific provisions to safeguard the welfare of any child. For this purpose, a child is any person under the age of 18 years.
26 Section 2 requires that any functions under the Act in relation to a child with mental disorder should be discharged in the way that best secures the welfare of the child. In particular it is necessary to take into account:-
the wishes and feelings of the child and the views of any carers;
the carer's needs and circumstances which are relevant to the discharge of any function;
the importance of providing any carer with information as might assist them to care for the patient;
where the child is or has been subject to compulsory powers, the importance of providing appropriate services to that child; and
the importance of the function being discharged in the manner that appears to involve the minimum restriction on the freedom of the child as is necessary in the circumstances.
Can a child be made subject to civil compulsory powers?
27 Yes. A child under the age of 18 years can be made subject to an emergency or short-term detention certificate or a compulsory treatment order in the same way as an adult, and the procedures for granting or making such a certificate or order are the same irrespective of whether the patient is a child or an adult. Where it becomes apparent that it may be appropriate to grant, for example, an emergency detention certificate with respect to a child, special consideration should be given to the effects of detention on the child and to ensuring that all other options have been fully explored. While these points are, of course, also relevant to the detention of adults, they should be given particular consideration where a child is being detained.
28 Best practice would be for the RMO responsible for the child's care to be a child specialist.
Consent to treatment under the provisions of the Act - under 18 years of age
29 The principles of consent apply to children suffering from mental disorder who are detained under the provisions of the Act. The treatment provisions and safeguards of Part 16 of the Act, including those relating to urgent treatment in emergencies, apply to child patients.
30 The medical practitioner attending the child must consider whether the child is capable of understanding the nature and possible consequences of the procedure or treatment. If the child is considered capable, the practitioner must seek the consent of the child rather than of the parent. Section 2(4) of the Age of Legal Capacity (Scotland) Act 1991 states:-
"a person under the age of 16 years shall have 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."
31 Where a child is capable of giving consent on their own behalf, best practice suggests that parents are still involved in discussions where possible. Unless there are confidentiality issues, it would be reasonable to involve parents, advocacy workers or other appropriate persons to assist the child to reach a decision.
32 In practical terms, medical practitioners should look for signs that the child can consent on this basis from when the child is about 12 years old.
Consent to treatment for specified treatments for informal child patients - under 16 years of age
33 An informal child patient cannot be compelled to accept treatment against the child's wishes or those of a person with parental rights and responsibilities and rights towards the child. In the event of consent to proposed treatment being refused, consideration should be given to whether compulsory measures under the Act would be appropriate.
34 Where an informal child patient is being treated on the basis of consent by a person with parental rights and responsibilities, and the child appears to object to, or resist, treatment, then again consideration should be given to whether it would be more appropriate to use the powers contained in the Act.
35 The Mental Health (Safeguards for Certain Informal Patients) (Section 244) (Scotland) Regulations 2005 under section 244 of the Act have specified conditions that must be satisfied before the following treatments may be given to children under the age of 16 who are informal patients:-
Electro Convulsive Therapy ( ECT);
Transcranial Magnetic Stimulation ( TMS);
Vagus Nerve Stimulation ( VNS).
36 The safeguards are similar to those which apply to patients being treated formally under section 237 and its associated regulations. It should be noted that consent to treatment by either the child or a person with parental rights and responsibilities does not provide authority to treat in the absence of the additional safeguards. ( For further information on safeguards for certain treatments in relation to informal child patients, see Chapter 10 of this Volume of the Code of Practice.)
37 Where a child patient is judged incapable of providing consent, due to either incapacity or their age, then consent must be obtained from a person with parental rights and responsibilities for the child under sections 1 and 2 of the Children (Scotland) Act 1995, or other person entitled to give consent on behalf of the child.
Legal measures for the protection of children at risk - under 16 years of age
38 The provisions of section 33, a local authority's duty to inquire, and section 293, application for a removal order, of the Act do not apply to children under 16 years of age. The appropriate provisions of the Children (Scotland) Act 1995 must therefore be used.
39 In some cases local authorities must take urgent action to protect a child from significant harm. A child's parents may agree to the local authority providing the child with accommodation and looking after him or her, until concerns about the child's safety, or allegations of abuse or neglect, can be clarified. The local authority might also consider whether others in the child's extended family or social network could look after the child while agencies carry out further inquiries or assessment. There will, however, be cases where the risk of significant harm befalling the child may make it necessary for agencies to take legal action for his or her protection. Any person may apply to a Sheriff for a Child Protection Order ( CPO), or the local authority may apply for an Exclusion Order ( EO).
40 The responsibility to take any urgent action to protect a child rests with the local authority within whose boundaries the child is located when such action is deemed necessary, even if the child does not normally live within that local authority's area. Other agencies or professionals may need to apply to a Sheriff for a CPO or to a Justice of the Peace, where a Sheriff is not available, for authority to remove a child where emergency protection is necessary.
41 The Children (Scotland) Act 1995 also makes provision for the local authority to apply for a Child Assessment Order ( CAO) if it has reasonable cause to suspect that a child may be suffering, or is likely to suffer, significant harm and the parents or carers are refusing to allow the local authority to see the child. The CAO requires the parents or carers to produce the child and allow any assessment needed to take place to help professionals decide whether they should act to safeguard the child's welfare. The authority may ask, or the Sheriff may direct, someone else, such as a GP, paediatrician or psychiatrist, to carry out all or any part of the assessment. Professionals must assist in carrying out these assessments when asked to do so and local procedures should make provision for this.
42 Section 53 of the Children (Scotland) Act 1995 enables any person or agency with concerns about a child aged under 16, and where compulsion may be required, to refer the matter to the Children';s Reporter. The Children';s Reporter has the power to investigate the referral and where necessary convene a Children';s Hearing. At a hearing the child may accept or deny the grounds. Where denied, the reporter may apply to the Sheriff for a finding as to whether the grounds are established. If accepted or established, the Children';s Hearing is responsible for deciding whether compulsory measures of supervision are necessary and if so, what conditions should be attached.
A child's named person - under 16 years of age
43 Where the patient is a child under 16 years of age, the Act makes provision at section 252 for the "relevant person" who has parental rights and responsibilities for the child to be the child's named person. Where two or more "relevant persons" have such rights and responsibilities, then they must decide between them who is to be the named person. If they do not reach agreement, then the named person will be the person who is the child's primary carer.
44 A "relevant person" must have parental responsibilities and parental rights as defined by sections 1(3) and 2(4) of the Children (Scotland) Act 1995. In addition, The Mental Health (Care and Treatment) (Scotland) Act 2003 (Modification of Enactments) Order 2005 has amended the Act to also provide that a "relevant person" must be:
45 However, if a local authority has parental rights and responsibilities in relation to the child by virtue of an order under section 86(1) of the Children (Scotland) Act 1995, then the local authority shall automatically be the child's named person.
46 Where a child is in the care of a local authority by virtue of a care order made under section 31 of the Children Act 1989, then the local authority shall be the child's named person.
47 Persons discharging functions under the Act must be aware of the duties placed on them by section 278 of the Act. This section applies where a child or a person with parental responsibilities is subject to any provisions of the Act or the Criminal Procedure (Scotland) Act 1995. Persons discharging functions under these Acts must take all practicable and appropriate steps to mitigate any effects of the measures authorised by the Acts which might impair the personal relations or diminish direct contact between a child and a person with parental responsibilities. The patient's designated MHO will play an important role in this process, particularly in relation to liaising closely with colleagues in the social work children and families teams.
Provision of services and accommodation for certain patients under 18
48 Wherever possible, it would be best practice to admit a child to a unit specialising in child and adolescent psychiatry.
49 Practitioners are reminded of the requirement which section 23(1)(b) of the Act places on Health Boards to provide "such services and accommodation as are sufficient for the particular needs of that child" who is either detained or voluntarily admitted to hospital for the purposes of receiving treatment for a mental disorder. The provision of services and accommodation must be sufficient for the particular needs of that child patient.
50 A child should only be admitted to an adult ward in exceptional circumstances, for example, where no bed in a child or adolescent ward is immediately or directly available. If the detained child cannot be admitted to a unit specialising in child and adolescent psychiatry, special consideration should always be given to the environment to which they are to be admitted, and what impact that may have on the child concerned. Any risks to them should be identified in advance and a plan put in place to minimise such risks. For example, the allocation of a single room with en-suite facilities may be prioritised, or special arrangements put in place to monitor the child's general well-being within the ward environment. Particular consideration should be given to the likely impact on the child of the behaviour of other patients on the ward and also the need to protect them from exposure to distressing experiences. Other ward policies, such as visiting, may also need modified to apply to children. Every effort should be made to provide for the child's needs as fully as possible. Nursing staff with experience of working with children should also be available to provide direct input to care, support and guidance to ward staff.
51 In the event of a child patient being admitted to an adult ward, it would be best practice for the hospital managers to notify the Mental Welfare Commission to enable them to monitor the general provision of age-appropriate services under the Act.
52 Education authorities have a duty to make arrangements for the education of pupils unable to attend school because they are subject
to measures authorised by the Act or, in consequence of their mental disorder, by the Criminal Procedure (Scotland) Act 1995. (Section 277
of the Act amends the Education (Scotland) Act 1980 to that effect.)
Please refer to the appropriate Volume and Chapter for further guidance on the remaining provisions of the Act.