The Bolitho case2 Prior to this case, the standard of care expected in medical negligence c ases had been judged according to the \200\230Bolam test \200\231.3 This established the p rinciple that a doctor is not guilty of negligence if he has acted in accordance with a res ponsible body of professional opin- ion. This case centered on an individual who, as a chil d, had suffered brain damage as a result of a cardiac arrest induced by respiratory failure . The court \200\231s \201 nding was that, even if a body of professional opinion existed which held that the action was reasonable, the defendant could still be judged negligent i f the judge held the opinion that no logical basis for the opinion had been shown to the co urt. The Ms B case4 As a result of a serious illness a Ms B had been rendered paralyzed and dependent on arti \201 cial ventilation for survival. She refused consent for continued v entilation but, in view of the inevitable fatal out- come, the hospital refused to accept h er refusal. She was assessed by several consultant psychiatrists whose opinion was that she retained full capacity. She applied for a court decision where the ruling was that, once h er capacity had been established, any further treatment without con- sent was unlawful. The court also gave the opinion that, should doctors treating her feel unable to treat her in accordance with her wishes, they had a duty to transfer her care to other doctors. Ms B was subsequently transferred to another hospital where, following withdrawal of arti \201 cia l ventilation, she died. 1 Gillick v West Norfolk and Wisbech AHA ALL ER [1985], 3 ALL ER 4 02. 2 Bolitho v City and Hackney HA [1997] 3 WLR. 3 Bolam v Friern Hospital Management Comm ittee [1957] 2 All ER 118. 4 Re B (Adult: Refusal of Treatment) [2002] 2 FCR1; [2002] 2 All E R. 449. 21_Semple_Chap21.indd 875 12/7/2012 4:33:31 PM CHAPTER 21 Legal issues 876 Mental Capacity Act: England and Wales The Mental Capacity Act 2005 provides the legal fram ework guiding deci- sion-making on behalf of those who lack capacity to make decisions for themselves. The Act applies to individuals over the age of 16 in England and Wales. The Act introduces a new criminal offense of ill treatment or neglect of a person who lacks capaci ty. Principles The Act is underpinned by a set of \201 ve key principles set out in Section 1 . \200 Presumption of capacity is established that they lack capacity. All practical steps taken t o allow autonomy treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success. Allow unwise decisions make an unwise decisio n. Best interests lacks capacity must be in their best interests. Least restrictive option a person who lacks capacity should restrict as little as possible their basic rights and fr eedoms. A person is assumed to have capacity unless it A person is not to be A person is not incapable merely because they An intervention under the Act on behalf of a person who Any intervention under the Act on behalf of Assessment of incapacity Sections 2 and 3 of the Act set out a two-stage test for assessing incapacity: \200 A person lacks capacity if he is unable to make a decision for himself in relation to any m atter because of a permanent or temporary impairment in the functioning of the mind. A pers on is unable to make a decision for himself if he is unable: \200 \200 \200 to understand the information relevant to the decision; to retain that information for a su f \201 cient period to make a decision; to use or weigh that information as part of the pr ocess of making the decision; to communicate his decision. Judgements about incapacity are to be made on the balance of probabili- ties. Lack of capac ity is not to be presumed based on a person \200\231s age or appearance, on any aspect of h is behavior, on any condition or disorder from which he suffers. The Act speci \201 es cer tain decisions that cannot be made by one person on behalf of another. These are: agreeing to marriage, civil partnership or divorce, consent to a sexual relationship, and casting a ballot in an election. Techniques covered by the Act Lasting Powers of Attorney (LPA) A person may appoint an attorney to act on his behalf if h e should lose capacity in the future. This is like the current Enduring Power of Attorney ( EPA) in relation to property and affairs, but the Act also allows people to empower an atto rney to make health and 21_Semple_Chap21.indd 876 12/7/2012 4:33:31 PM MENTAL CAPACITY ACT: ENGLAND AND WALES 877 welfare decisions. Before it can be used an LPA must be registered with the Of \201 ce of the Public Guardian. Court appointed deputies The Act provides for a system of court appointed deputies to repla ce the current system of receivership in the existing Court of Protection. Deputies will be able to be appointed to take decisions on welfare, health care, and \201 nancial matters as authorized by the new Court of Protection, but will not be able to refuse consent to li fe-sustaining treatment. They will only be appointed if the Court cannot make a one-off dec ision to resolve the issues. Advance decisions The Act allows patients to make an advance decision to refuse treatment i f they should lack capacity in the future. The Act sets out safeguards of validity and appl icability in relation to advance decisions. Where an advance decision concerns treatment th at would be necessary to sustain life the decision must be in writing, signed and witnessed , and there must be an express statement that the decision stands \200\230even if life is at risk \200\231. Protection from liability when providing care and treatment to an incap- able adult Section 5 of the Act authorizes health care staff to carry out personal care, health care, and med ical treatment in an incapable adult without fear of liability. The care provider must esta blish that the patient lacks capacity, and that the proposed treatment is in their best int erest. If this is the case then the care provider does not incur any liability in relation to the Act that they would not have incurred if the adult had had capacity to consent in re lation to the matter, and had consented to the treatment. Where the proposed treatment involves physical restraint, the care provider must additional ly ensure that it is necessary in order to pre- vent harm and that it is a proportionate re sponse to the likelihood of the patient suffering harm, and the seriousness of that harm. S ection 5 does not authorize acting in a way which con \202 icts with decisions made by a l ast- ing power of attorney or court-appointed deputy; however, life-sustaining treatment or treatment necessary to prevent serious deterioration is acceptable while a decision is sou ght from the court. Bodies with powers under the Act Court of Protection This Court has jurisdiction relating to the whole Act. It will have its own procedures and nominated judges. It will be able to make declarations, decisions, and orders affecting people who lack capacity and make decisions for or appoint deputies to mak e decisions on behalf of people lacking capacity. It will deal with decisions concerning bo th prop- erty and affairs, as well as health and welfare decisions. The Public Guardian has several duties under the Act and will be sup- ported in carrying th ese out by an Of \201 ce of the Public Guardian (OPG). The Public Guardian and his staff w ill be the registering authority for LPAs and deputies. They will supervise deputies appoin ted by the Court and provide information to help the Court make decisions. 21_Semple_Chap21.indd 877 12/7/2012 4:33:32 PM CHAPTER 21 Legal issues 878 Incapacity Act: Scotland The Adults with Incapacity (Scotland) Act 2000 provides the legal frame- work regulating those who make decisions on behalf of adults with impaired capacity in Scotland. It covers \201 nancial and personal welfare deci- sions (which includes deci sions about medical treatment). The Act applies to individuals over the age of 16yrs. Principles Those making decisions on behalf of another are required to take account of the following fundamental principles, as in Section 1: \200 Bene \201 t Any intervention in the affairs of an incapable adult must bene \201 t the ad ult concerned and this bene \201 t must not be reasonably achievable without the intervent ion. Least restrictive option the adult as little as possible. Consider the adult \200\231s wishes Decisions made on behalf of an incapable adult must take account of their currently expressed and previously expressed wishes on the subject. Consultation with relevant other s Anyone making decisions on behalf of an incapable adult must take account of the views of the adult \200\231s nearest relative or primary carer, and of the adult \200\231s guardian , welfare attorney, or continuing attorney (if they exist). Encourage residual capacity exe rcise whatever capacity is still present. Any intervention must restrict the freedom of The adult should be encouraged to Assessment of capacity Under the Act, incapacity means to be incapable of: \200 \200 \200 \200 \200 acting; or making decisions; or communicating decisions; or understanding decisions; or ret aining the memory of decisions. Capacity is task-speci \201 c and must be judged in relation to the decision under conside ration. In assessing capacity under the Act the practitioner should consider for this parti cular decision whether the individual: \200 \200 \200 \200 understands what is being asked and why; understands that the information is personally rel evant to them; is aware of the alternative choices available; can weigh up the risks and be ne \201 ts associated with the alternative choices; has suf \201 cient memory ability to retain the relevant information. Additionally the practitioner should consider whether the decision is con- sistent with the patient \200\231s background, beliefs, and previously expressed wishes when greater capaci ty existed. It is important to note that a person is not incapable simply because they have a mental or physical illness or a learning disability. 21_Semple_Chap21.indd 878 12/7/2012 4:33:32 PM INCAPACITY ACT: SCOTLAND 879 Techniques covered by the Act Powers of attorney A capable adult can provide for eventual i ncapacity by granting power of attorney to another person. A continuing power of attorney r elates to \201 nancial decisions; a welfare power of attorney relates to personal welfare decisions. The latter becomes active only when the adult loses capacity in relation to the welfare decision in question. Intromission with funds An individual can apply to the Public Guardian for authority to gai n access to the adult \200\231s \201 nances, in order to fund the adult \200\231s living expenses. Management of residents \200\231 \201 nances Following review by a medical practi- tioner certifying incapacity in relation to \201 nancial affairs, registered estab- lishments ( e.g. nursing homes) can manage the \201 nancial affairs of residents with impaired capaci ty up to a prescribed limit. Guardianship and intervention orders Following application, supported by at least two medic al recommendations, the Sheriff Court can grant an individual ongoing authority to make \201 nancial or personal welfare deci- sions on behalf of an adult. The former is \201 na ncial guardianship, the latter is welfare guardianship. For decisions which require a \200 \230one-off \200\231 interven- tion the Sheriff can grant a \201 nancial or welfare inter vention order covering the proposed intervention. Medical treatment Under part 5 of the Act, if a medical practitioner responsible for the me dical treatment of an adult is of the opinion that the adult is incapable in relation to a decision about the medical treatment in question, he may issue a certi \201 cate of incapa city authorizing the treatment. The certi \201 cate must state the nature and likely durat ion of the incapacity and the proposed treatment. Bodies with powers under the Act The Of \201 ce of the Public Guardian This body supervise s those individuals authorized under the Act to make decisions on behalf of another. It mai ntains a register of continuing and welfare powers of attorney, guardianships and intervent ion orders, authorizes access to funds, and has powers to investigate complaints on matters related to the \201 nancial affairs of an incapable adult. The Mental Welfare Commission for Scotland In addition to its duties under the Mental Healt h Act, the MWC has duties to guide and supervise the actions of those appointed to make wel fare decisions on behalf of an incapable adult. The Sheriff Court Applications for guardianships or intervention orders are made to the She riff Court. This court is also the forum for appeals against medical treatment decisions. Local authorities The local authority has a duty to investigate circum- stances where the p ersonal welfare of an adult in the community may be at risk due to incapacity, to supervise appointed attorneys and guardians, and to investigate complaints in relation to those exer cising welfare pow- ers. Additionally they have a duty to apply for intervention or guardia nship orders and to subsequently act as welfare guardian where necessary and no-one else is applying to do so. 21_Semple_Chap21.indd 879 12/7/2012 4:33:32 PM CHAPTER 21 Legal issues 880 Mental Health Act: England and Wales 1 Introduction The Mental Health Act 1983 governs the care and treatment of patients with mental disorder within England and Wales. The Act was a mended in several signi \201 cant areas by the Mental Health Act 2007 (see Box 21.3 for ch anges). Principles The 1983 Act did not contain a statement of principles. In the 2007 Act, section 8 directs the Secretary of State to include a statement of principles in a future revision of the code of practice. At the time of writing this amended code of practice was in draft form. The draft principles are: \200 Decisions under the Act should be taken with a view to minimizing the harm done by mental d isorder, by maximizing the safety and health of patients and protecting the public from har m. Any intervention without the patient \200\231s consent must be the least restrictive alt ernative intervention. Decision-makers must recognize and respect the diverse needs, values , and circumstances of each patient. They should consider the patient \200\231s wishes and feelings and respect those wishes wherever that is practicable and consistent with the purp ose of the decision. Patients, their carers and family members should be involved, as far a s is practicable, in planning and developing their care. Decision-makers must seek to use t he resources available to them and to patients in the most effective, ef \201 cient, and e quitable way. De \201 nition of mental disorder The 2007 Act de \201 nes mental disorder as \200\230an y disorder or disability of the mind \200\231, replacing the four subdivisions of mental di sorder described in the 1983 Act. The draft code of practice states that conditions which c ould fall within this de \201 nition include: organic mental disorders; disorders due to s ubstance use; schizophrenia and other delusional disorders; affective dis- orders; neurotic disorders; eating disorders, non-organic sleep disorders and non-organic sexual disorders; personality disorders; learning disabili- ties; autistic spectrum disorders; and behaviora l and emotional disorders of children and adolescents. Other de \201 nitions Approved doctor Under section 12(2) the Secretary of State may appro ve a registered medical practitioner as having special experience in the diag- nosis and tr eatment of mental disorder. This is done in practice through the regional health authority. Responsible clinician The practitioner in charge of the patient \200\231s treat- ment, usua lly a consultant psychiatrist. (Previously referred to as RMO.) Approved Mental Health Professional (AMHP) A professional (usually a social worker) who has undergone speci \201 c training and assessment and is appointed for the purposes of the A ct as having competence in dealing with individuals with mental disorder (previously referr ed to as ASW). Nearest relative Determined by who is \201 rst on the following list: spouse or civil par tner, child, parent, sibling, grandparent, grandchild, uncle or 21_Semple_Chap21.indd 880 12/7/2012 4:33:32 PM MENTAL HEALTH ACT: ENGLAND AND WALES 1 881 aunt, nephew or niece. If two relatives are of equal standing then the elder prevails. If a patient lives with a relative, or has lived with a non-relative as a spouse for 6mths, the n that person is the nearest relative. Mental Health Review Tribunal (MHRT) Legal forum to which a patient or a nearest relative c an appeal against detention. The MHRT has three members: a legally quali \201 ed chair, a medical practitioner, and a lay mem- ber. It must discharge a patient if criteria for deten tion no longer apply. Mental Health Act Commission (MHAC) The MHAC monitors the use of the MHA and the care of pa tients subject to it. It also investigates cer- tain complaints, appoints second opinion do ctors, and maintains the Code of Practice. It produces a biennial report. Second Opinion Appointed Doctor (SOAD) An independent doctor appointed by the Secretary of State (in practice by the Mental Health Act Commission), who gives a second opinion regardi ng treatment which can be given without the patient \200\231s consent under section 57 or s ection 58. Box 21.3 Changes to the 1983 Act made by the 2007 Act \200 De \201 nition of mental diso rder A single de \201 nition of mental disorder applies throughout the Act, which abolishe s the previous four sub- categories of disorder. Criteria for detention The previous \200 \230treatability \200\231 and \200\230care \200\231 tests are abolished and replaced by a new \200\230appropriate medical treatment \200\231 test applying to the longer-term powers of detention. This does not allow continued compulsory detention unless medical treatment which is appropriate to the patient \200\231s mental disorder and all other circumstances o f the case is available to that patient. Broadened professional roles are replaced by Appro ved Mental Health Professionals (AMHPs), and non-social workers can enter this role, subjec t to appropriate training. The responsible medical of \201 cer (RMO) role is replaced by t hat of the responsible clinician, allowing non-medical staff such as psychologists, social workers, and nurses to undertake this role. Nearest relative (NR) application to change the ir NR and courts are enabled to displace an NR where there are reasonable grounds for doing so. The list of nearest relatives is amended to include civil partners. Supervised communi ty treatment community treatment (SCT) which is described on b p. 885. Mental Health Review Tribunal (MHRT) Tribunal for England alongside one in Wales and introduces an order-making power to reduce the time before a case has to be referred to the MHRT by the hospital mana gers. Age-appropriate services patients aged under 18 admitted to hospital for mental disor der are accommodated in an environment that is suitable for their age. Advocacy (IMHA). Use of ECT Approved Social Workers (ASWs) Patients are given the right to make an The 2007 Act introduces supervised The Act introduces a single Hospital managers must ensure that There is a right to independent mental health advocacy New safeguards are introduced. 21_Semple_Chap21.indd 881 12/7/2012 4:33:32 PM CHAPTER 21 Legal issues 882 Mental Health Act: England and Wales 2 Compulsory measures The main procedures allowing com pulsory detention in hospital are sec- tion 2 (admission for assessment), section 3 (admiss ion for treatment), section 4 (emergency admission), and section 5(2) (emergency detention of informal inpatient). Compulsory admission should usually be under sec- tion 2 or 3; sect ion 4 is only used rarely, in a genuine emergency where an approved doctor is not available soon enough. Emergency detention Section 4 allows the emergency detention of patients who have not yet b een admitted to hospital (this includes those in A&E, outpatient departments, and day hospi tals); section 5(2) is similar but applies to patients who have already been admitted to ho spital (whether in a psychiatric or non-psychiatric ward). \200 For section 4 the application is made by the nearest relative or AMHP and requires a recomm endation from one registered medical practitioner. For section 5(2) the medical recommendat ion must be by the responsible clinician or his nominated deputy; this will usually be the duty psychiatrist, but the nomination should be made before the relevant period of duty. In volvement of the nearest relative or AMHP is not required for section 5(2). The duration of detention is 72hrs, during which an assessment must be undertaken to determine if detentio n under section 2 or 3 is warranted. Section 5(4) allows nurses (of the prescribed class) t o hold an informal inpatient in hospital for up to 6hrs to allow for a medical assessment. Admission for assessment An application for detention under section 2 may be made by the ne arest relative or AMHP and requires two medical recommendations, one of which must be by an approved doctor. Duration of detention is 28 days. Following the section 2 an application may be made for detention under section 3. Alternatively the patient may remain in hospital informally or be discharged. Admission for treatment An application for detention under section 3 is made in a similar m anner to section 2. Duration of detention is initially 6mths, which may be renewed for a fu rther 6mths, and then 12-monthly thereafter. Treatment of patients subject to compulsion \200 A patient detained in hospital (except under emergency provisions) may be given medication for mental disorder for up to 3mths, whether they consent and/or have capacity or not. Unde r section 58, medication for over 3mths or ECT requires the patient \200\231s consent (the responsible clinician completes form 38) or, if the person refuses or is incapable of conse nting, agreement of a SOAD (who issues a form 39). Under section 62, authorized by the resp onsible clinician without consent or a second treatment that is urgently necessary may be 21_Semple_Chap21.indd 882 12/7/2012 4:33:32 PM MENTAL HEALTH ACT: ENGLAND AND WALES 2 883 opinion; this is usually used for giving ECT to severely ill and at-risk patients while awa iting a second opinion. Under section 57, the patient \200\231s consent and agreement of a SOAD are required if any patient (whether detained or informal) is to receive neurosurgery for mental disorder or surgical implantation of hormones to reduce male sex drive. Leave, absconding, and transfer Procedures allow for patients to be granted leave of absenc e with the authorization of the responsible clinician (section 17); for patients to be take n into custody and returned to hospital if they abscond (section 18); and for patients to b e transferred between hospitals (section 19). Review Patients subject to emergency detention have no right of appeal. Patients detained u nder section 2 or 3, or subject to guardianship under section 7, may appeal to an MHRT. The nearest relative may also appeal against sec- tion 3 or 7. One appeal is allowed during ea ch period of compulsion. The responsible clinician may terminate a patient \200\231s detent ion at any point. 21_Semple_Chap21.indd 883 12/7/2012 4:33:33 PM CHAPTER 21 Legal issues 884 Mental Health Act: England and Wales 3 Aftercare following detention Care program approach and section 117 aftercare Section 117 places a statutory duty on health and social services to provide aftercare for patients who have been discharged from detention under sec- tions 3, 37, 47, or 48 (the last 3 are sections used for mentally disordered offenders, see b Ch apter 17). The framework within which this aftercare is planned and implemented is the Care Program Approach (CPA), which was introduced in 1991, but has since been signi \201 cantl y modi \201 ed. The CPA should be used for all patients where appropriate, even if they ha ve not been detained in hospital. For patients in hospital the CPA pro- cess should start w ell before discharge. The key aspects of CPA are: A co-ordinated assessment of the patient \200\231s health and s ocial care needs. The development of a care plan addressing the identi \201 ed needs, whic h will be agreed by the patient and any carers who are involved. An identi \201 ed care co ordinator (e.g. CPN, social worker, psychiatrist) who will be the main contact and will mon itor the care plan. Regular reviews of the care plan with changes as necessary (at a minimu m there must be an annual review). The CPA should be integrated with care management (the process of care coordination used by social services). There are two levels of CPA: standard and enhanced: Standard CPA support or intervention of one agency or discipline; require only low- key support from more than one agency or disci pline; are more able to self-manage their mental health problems; have an active informal s upport network; pose little danger to themselves or others; are more likely to maintain app ropriate contact with services. Enhanced CPA may be appropriate for patients who: have mult iple care needs requiring inter-agency coordination; are only willing to cooperate with one professional or agency but have multiple care needs; may be in contact with a number of ag encies (including the criminal justice system); are likely to require more frequent and int ensive interventions; are more likely to have mental health problems coexisting with other problems such as substance misuse; are more likely to be at risk of harming themselves or o thers; are more likely to disengage with services. may be appropriate for patients who: require the Supervision registers, which identify patients particularly at risk to them- selves or othe rs, have been abolished with the introduction of enhanced CPA. A patient may not be compelled to accept or participate in any aspect of aftercare under se ction 117. When the aftercare services are no longer required, the section 117 duty ends. 21_Semple_Chap21.indd 884 12/7/2012 4:33:33 PM MENTAL HEALTH ACT: ENGLAND AND WALES 3 885 Supervised community treatment The 2007 Act introduces supervised community treatment (SCT) as an option for patients following a period of detention in hospital. The stated aim is t o address the mental health needs of that group of patients who recover following a period of compulsory hospital treatment but repeat- edly leave hospital, discontinue treatment, an d relapse, requiring further compulsory treatment (so-called \200\230revolving door \200 \231 patients). Community Treatment Order Section 32 of the 2007 Act introduces the Community Treatment Ord er (CTO), a new power to discharge a patient detained under section 3 from hospital subject to his being liable to recall. A CTO is authorized by the Responsible Clinician with the a greement of an AMHP. To be valid a CTO must be in writing and the relevant criteria must be met: \200 The patient is suffering from mental disorder of a nature or degree which makes it appropri ate for him to receive medical treatment. It is necessary for his health or safety or for t he protection of other persons that he should receive such treatment. Subject to his being liable to be recalled, such treatment can be provided without his continuing to be detained in a hospital. It is necessary that the responsible clinician should be able to exercise t he power under section 17E(1) to recall the patient to hospital. Appropriate medical treatm ent is available for the patient. A CTO may specify conditions to which the patient is subject and a patient can be recalled to hospital if the conditions are not met or if there is a risk of harm to the patient or t o other persons if the patient were not recalled. The conditions must be for the purpose of ensuring that the patient receives medical treatment, or to prevent risk of harm to the pa tient or to other people, and should be kept to a minimum number consistent with achieving their purpose. The responsible clinician can vary and suspend conditions. A CTO lasts for 6 mths and can be renewed for a further 6-mth period and yearly thereafter. 21_Semple_Chap21.indd 885 12/7/2012 4:33:33 PM CHAPTER 21 Legal issues 886 Mental Health Act: Scotland 1 Introduction The Mental Health (Care and Treatment) (Scotland ) Act 2003 replaced the Mental Health (Scotland) Act 1984 in 2005. The 2003 Act emphasizes the protection of the rights of mentally disordered patients and shifts the emphasis from d etention in hospital to treatment for mental disorder, whether in hospital or the community . Principles Anyone using the Act must take account of the ten guiding principles: \200 Non-discrimination wherever possible the same rights as those with other health needs. Equa lity discrimination on any grounds. Respect for diversity sensitive to their individual bac kgrounds and needs. Reciprocity Act there is a parallel obligation on the health service to provide an appropriate service for the patient, including ongoing care following discharge from detention. Informal care provided without use of compulsory powers. Participation pla nning all aspects of their care and support. Respect for carers should receive appropriate support and advice and have their views taken into account. Least restrictive alternative P atients should receive care in the least restrictive manner which is compatible with safe a nd effective care, taking appropriate account of the safety of others. Bene \201 t bene \201 t for the patient, not achievable without use of the Act. Child welfare The welfare of any child with mental disorder is paramount in any interventions imposed on a child by the Act. Patients with mental disorder should retain Powers should be exercised without any direct or non-direct Patients should receive care and treatment Where an obligation is placed on a patient through the Wherever possible, care and treatment should be Patients should, as far as they are able, be involved in Those who provide informal support to patients Any intervention under the Act should be likely to produce a De \201 nition of mental disorder Section 328 de \201 nes \200\230mental disorder \200 \231 as \200\230any mental illness, personality dis- order or learning disability \200\231 however caused or manifest. None of these terms is further de \201 ned. A person is not mentally disordered solely by reason of sexual orienta- tion, sexual devian cy, transsexualism or transvestism, dependence on or use of alcohol or drugs, \200\230exhi biting behavior that causes or is likely to cause, harassment, alarm, or distress to any ot her person \200\231, or \200\230acting as no prudent person would act \200\231. Other de \201 nitions Approved medical practitioner (AMP) Under section 22 these are doc- tors with the necessary quali \201 cations and experience, who have under- taken training, and are approved by a Health Board as having special expe- rience in the diagnosis and tre atment of mental disorder. 21_Semple_Chap21.indd 886 12/7/2012 4:33:33 PM MENTAL HEALTH ACT: SCOTLAND 1 887 Responsible medical of \201 cer (RMO) The registered medical practitioner in charge of the patient \200\231s treatment, usually the consultant. Mental health of \201 cer (MHO) A so cial worker, with the necessary regis- tration, experience, education, training, and compet ence in dealing with individuals with mental disorder; appointed under section 32 of the Ac t. Designated medical practitioner (DMP) Medical practitioners appointed by the MWC to give second opinions regarding the medical treatment of patients subject to compulsion. Care pl an A document that sets out the care, treatment, and services that it is proposed that a pa tient subject to compulsion should receive. It will include compulsory and non-compulsory m easures. Named person Someone nominated by a person under section 250 to support them and p rotect their interests. Entitled to be informed about certain decisions and to act on the p atient \200\231s behalf in certain circum- stances. If one has not been nominated then it i s the primary carer or nearest relative. For a child under 16 it is a parent. Advance state ment May be made under sections 275 and 276. When making this the person must have capacity and must make it in writing with a witness. Those carrying out duties under the Act must \200\230have regard to the wishes speci \201 ed in the advance statement \200\231. If acti ng against these wishes this must be recorded in writing with reasons, and a copy of this r ecord must be sent to patient, named person, welfare attorney, guardian, MWC. Advocacy Unde r section 259 every person with mental disorder has right of access to independent advocacy , and it is the duty of local authority and health board to ensure availability of this. Me ntal Health Tribunal for Scotland (MHTS) The legal forum for making decisions regarding app lications for certain compulsory orders, propos- als to amend compulsory orders, and appeal s against compulsory orders. Consists of three members: one legal, one medical and one lay. Mental Welfare Commission (MWC) Similar to the MHAC for England and Wales but has wider re mit and powers. Criteria for compulsory intervention Less stringent for emergency and shorter-term measures (i.e. parts 5 and 6) than they are for longer-term measures (i.e. part 7). The criteria fo r compulsion under a part 7 compulsory treatment order (CTO) are: \200 \200 The person has a mental disorder. Medical treatment is available which would be likely to p revent that disorder worsening or be likely to alleviate the effects of the disorder. There would be a signi \201 cant risk to the patient \200\231s health, safety, or welfare, or t o the safety of another person if such treatment were not provided. The patient \200\231s a bility to make decisions about the provision of medical treatment is signi \201 cantly imp aired because of their mental disorder. The making of the order is necessary. For short-term (part 6) or emergency (part 5) detention it only has to be likely that the c riteria apply, and the second criterion above regarding treatability does not need to be co nsidered. 21_Semple_Chap21.indd 887 12/7/2012 4:33:33 PM CHAPTER 21 Legal issues 888 Mental Health Act: Scotland 2 Compulsory measures The main compulsory orders are set out under part 5 (emergency deten- tion), part 6 (short- term detention), and part 7 (compulsory treatment order). Emergency detention Under part 5, section 36, any fully registered medi- cal practitioner m ay grant an emergency detention certi \201 cate (EDC) author- izing the detention of a per son in hospital for 72 hrs. Consent from an MHO is necessary (unless impracticable), the si tuation must be urgent and such that making arrangements for short-term detention under par t 6 would involve \200\230undesirable delay \200\231. There are no separate procedures for inpatients and outpatients. As soon as practicable the patient should be assessed by an AM P to determine if detention under part 6 should be applied or if the patient should be deal ed with informally. Nurses \200\231 holding powers (section 299) may be used for up to 2hrs and continue for 1h r after the doctor has arrived. Short-term detention Under part 6, section 44, any AMP may grant a Short Term Detention Ord er (STDO) authorizing the detention of a per- son in hospital for 28 days. Consent from an MHO is necessary in all cases. At the end of the order the patient may be discharged, remai n as an informal patient, or may be placed on a CTO. Compulsory treatment order (CTO) Under part 7 an application may be made to the MHTS for a patient to be made subject to a CTO authorizing compulsory treatment in hospital or in the community for 6mths. The application is made by an MHO and has three components: two medica l reports (one by an AMP and the other by the patient \200\231s GP or another AMP), a repor t prepared by the MHO, and a proposed care plan (pre- pared by the MHO in consultation with the RMO and others who will be involved in the care and treatment of the patient). The MHT must be satis \201 ed that the criteria for a CTO are met; if there are issues tha t require clari \201 cation the MHT may grant an interim com- pulsory treatment order inst ead. A CTO in the community may make requirements as to residence, attendance for treatment and other serv- ices, access of staff to the patient \200\231s residence, and acceptance o f medica- tion for mental disorder. A CTO may be renewed for 6mths, then annually thereafte r, without further application to the MHTS unless some variation to the order is proposed. If a patient on a community-based CTO refuses medication then they may be taken to hospital and detained there for up to 6hrs to receive this. If the patient is non-compliant with ot her aspects of the order, then deten- tion in hospital for up to 72hrs can be authorized by the RMO; this may be extended by a further 28 days with the approval of the RMO and MHO to allow an assessment as to whether an application should be made for the CTO to be varied. 21_Semple_Chap21.indd 888 12/7/2012 4:33:33 PM MENTAL HEALTH ACT: SCOTLAND 2 889 Treatment of patients subject to compulsion (part 16) \200 A patient subject to compulsion (except under emergency provisions) may be given medication for mental disorder for up to 8wks, whether they consent and/or have capacity or not. Pati ents in the community cannot be given medication using physical force. Medication for over 2mths requires the patient \200\231s consent or, if the person refuses or is incapable of c onsenting, authorization by a DMP. ECT may only be given if a patient can and does consent, or \200\224if incapable of consenting \200\224with the authorization of a DMP. ECT cannot be given, even in an emergency, to a patient with capacity who refuses. Treatment that is w ithout consent or a second opinion; this may be used for giving ECT to severely ill and at- risk patients lacking capacity while awaiting a second opinion and for giving medication to acutely disturbed patients on emergency detention. To receive neurosurgery for mental diso rder there must be an independent opinion from a DMP that the treatment will be bene \201 cial, two opinions from lay people appointed by the MWC that the person has capacity and co nsents, or if they do not have capacity, that they do not object. If the person is incapabl e but is not objecting, the treatment must be authorized by the Court of Session. urgently necessary may be authorized by the RMO Leave, absconding, and transfer Procedures allow for \200\230suspension of detention \200 \231 of patients detained in hos- pital so that they may leave hospital; the taking into cu stody and return of patients who abscond either from hospital or the residence speci \201 ed in a community-based CTO; and for patients to be transferred to other hospitals.