Mental Health Act – Scotland

Background

• The Mental Health (Scotland) Act 2003 is a legal framework that governs the rules by which healthcare professionals may detain and treat patients who have a mental health disorder against their will
  • Remember that this is an imposition of somebodies rights, and care must be taken before deciding to detain an individual.

There are strict conditions in the Act about when these powers might be used.  These are:

• That the person has a mental disorder.
• Medical treatment is available which could stop their condition getting worse, or help treat some of their symptoms.
• If that medical treatment was not provided, there would be a significant risk to the person or to others.
• Because of the person’s mental disorder, his/her ability to make decisions about medical treatment is significantly impaired.
• That the use of compulsory powers is necessary.

• There are 3 main ways in which a doctor can use the MHA

Emergency Detention (sec 36)

• Terms
  • Allows the patient to be taken to hospital and kept there for 72 hours
  • Should have the consent of the mental health officer where possible (although not required)
  • Allows medical treatment to be given if urgently necessary (in reality it should really be used for assessment- non-urgent treatment is not given)
  • Carries no right of appeal
    • NB A short term certificate should always be considered before and preferred to an emergency one
• Criteria
  • it is likely that the patient has a mental disorder
  • it is likely that the patient has significantly impaired decision-making ability with respect to medical treatment for mental disorder
  • the doctor must be satisfied that significant risk to the patient or others exists, which would be ameliorated by detention under an emergency certificate
  • the doctor must be satisfied that the need for the certificate is urgent and that detention under a short-term detention certificatewould involve undesirable delay.

Short Term (sec 44)

• Lasts 28 days; patients must be transferred within 3 days
• Requires consent from MHO and, where possible, the named person for the individual
• Can be appealed; revoked and extended (although a CTO should be considered prior to extension, which would supercede the Short term order)
• Criteria
  • the patient is likely to have a mental disorder
  • the patient is likely to have significantly impaired decision-making ability with respect to medical treatment for mental disorder, as a result of his or her mental disorder
  • it is likely that detention in hospital is necessary to determine what medical treatment is required or to provide that treatment
  • it is likely that significant risk exists to the health, safety and welfare of the patient or to the safety of others if the patient is not detained
  • it is likely that granting of a short-term detention certificate is necessary, for example because  a patient is refusing to accept treatment on a voluntary basis.

Compulsory Treatment Order (part 7)

• Can be hospital or community based and is used to provide treatment
• Lasts 6 months; requires MHO consent; can also be appealed and suspended etc
• Criteria
  • the patient must have a mental disorder
  • medical treatment would be likely to prevent the mental disorder worsening, or alleviate its effects
  • significant risk to health, safety and the welfare of the patient, or to the safety of others, exists if medical treatment is not provided
  • the patient’s ability to make decisions about his or her treatment is significantly impaired by mental disorder
  • the order is necessary

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