We are a team of private consultant psychiatrists who provide a professional, confidential and reliable service catered to individual needs of our clients. Operating throughout the UK, Independent Psychiatry consultants have experts that provide psychiatric opinions for Courts and Tribunals.
The current Act is from 2003 and while it was thought of as a leading piece of legislation at the time, the changes in the care and treatment of people with mental illness and an increased focus on human rights has caused the Commission to ask for a review for some years. It is thought that support for people with mental health conditions will be strengthened through an independent review of the Mental Health Act. A review group will also make recommendations that reflect people’s social, economic and cultural rights and will consider the future shape of incapacity, mental health and adult support and protection legislation. Two years ago, the Commission published a document with Edinburgh Napier University calling for reform of Scotland’s mental health and incapacity laws explaining why this change was needed. This document has helped drive this process of changing the current Scottish Mental Health Act.
The three areas for change mentioned were:
– New form of guardianship to provide more flexibility and rights respecting way to make decisions about money, care and welfare for people who cannot take those decisions themselves.
– The possibility of unified legislation, replacing Scotland’s two separate mental health and incapacity laws with new, non-discrimatory legislation for making decisions about welfare and treatment where an adult is unable to do to unaided.
– The issue of compulsion in care and treatment. Particularly how far decision-making capacity should be central to decisions on compulsory treatment, whether or not the person has mental illness.
Colin McKay, chief executive of the Mental Welfare Commission said: “This will be an ambitious project, which we will support in every way we can. We await the details of how the review will be undertaken but working together,
with professionals and with people with lived experience, Scotland has the opportunity to create new legislation that can bring real improvement to the care and treatment of some of the most vulnerable members of our
Please contact independent psychiatry for more questions. We have experts who provide psychiatric opinions for Courts and Tribunals. We can usually assess clients where they are based including care homes, hospitals and home visits.
The Mental Welfare Commission recently reported a 4.1% increase in episodes of compulsory treatment for mental health, which means 2017/2018 had the highest number of compulsory treatments since the inception of the Mental Health Act in 2003.
There are three detention certificates that make up these compulsory treatments:
Emergency detention certificates (EDCs), which are used in critical situations when a person needs to be detained in order to receive urgent specialist care for a mental illness. An EDC means they can be detained in hospital for up to 72 hours and can be issued by any doctor.
Short term detention certificates (STDCs) are often preferred by medical practitioners and need to be recommended by a psychiatrist and a mental health officers, which can then detain patients in hospital for up to 28 days.
Compulsory treatment orders (CTOs) are a more complex affair, as the applications must include two medical reports, an MHO report and a proposed care plan. The Tribunal then decides whether a CTO is granted, which can last up to six months.
Interestingly, the gradual increase shows that perhaps awareness amongst police officers and governmental branches is still not high enough. This could suggest that, in strenuous and unknown scenarios, police might hastily revert to emergency detentions as a means of finding a solution to a problem that involves a mentally ill patient. Additionally, this could be exacerbated by the fact that critical or crucial emergencies are often subjective and need to be determined quickly. This could explain why Emergency Detention Certificates in particular, have risen astronomically in the last ten-year period, increasing by as much as 45% in total.
Increasing Awareness of Key Issues
Most of these issues start with a better understanding of the legislation and the systems that are in place to help mental health patients. Instead of using the system to increase detentions, it should seek to improve the care and attention that people receive when they are detained.
The Mental Welfare Commission has repeatedly expressed its concerns over the “continued rise in the use of the law to treat people for mental illness,” but it will take a lot of input from various governmental branches to improve these statistics. Information campaigns could hold the key, and these could also help to lower the amount of Appeals submitted to the Mental Health Tribunal. As a result, this statistic is crucial to unlocking improvements when it comes to compulsory mental health treatments and it will be interesting to see what happens in 2019.
A blog assessing whether a power of attorney can overrule patient liberties when they no longer possess the capacity to make their own arrangements
When a person with capacity withdraws their consent, this has direct implications on their rights and liberties. However, there seems to be a bit of a grey area surrounding potential POA’s for patients who don’t have mental capacity. While this has definitely been discussed from a legal perspective, it remains a delicate situation which can not always be resolved by established laws. Additionally, this is often complicated by the fact that unique legal conditions and stipulations are applicable for each individual, making each case as complex and unique as the next. In this blog, we’ll look over some of these considerations, hoping to expose just how precarious this issue is in practice.
A Grey Area
Anyone with capacity can withdraw consent at any given moment, which means any future action that would jeopardize their liberty would need to be granted by a court. However, there is plenty of legal justification to support decisions that do limit people’s liberties. After all, if the adult did specifically address arrangements that included a “deprivation of liberty,” as the Mental Welfare Commission calls it, then it is legally justified to assume that these must be adhered to.
But what do you do when a patient loses capacity after their Power of Attorney has already been made? Naturally, things are not always as clear-cut when it comes to patients who lack the mental capacity to make their own decisions. However, this is especially true when you consider some of the most important principles set out in the Adults with Incapacity Act, which specifically state that you must respect the “wishes and feelings, past and present, of an adult who subsequently has lost capacity.”
Power of Attorney and the Adults with Incapacity Act
As a result, patients who appear to disagree with these decisions or are uncomfortable with the arrangements being made, need to be considered carefully, so as not to taint their previously validated and legally binding Power of Attorney with a lack of liberty. The Adults with Incapacity Act does not provide any specific guidelines for this situation, and how much importance should be placed on a person’s attitude to their situation after their loss of capacity. And while any person has the right to challenge these decisions, this is more complex when exercised in practice. There is something innately contradictory about challenging the decision of a Power of Attorney that you yourself enacted, transferring your power and restricting your own liberty in the process. If that doesn’t make things complicated enough, there is also the issue of which authority has the power or right to overrule a Power of Attorney made by an adult who now lacks mental capacity, should that same adult protest the proposed arrangements made for them.
This complicated matter deserves our utmost attention and poses a difficult query for lawyers and those granted with a Power of Attorney. Until there are specific guidelines which can negotiate this tricky terrain, there will continue to be cases where the individual liberties of adults without capacity could be threatened.
Please contact Independent Psychiatry for more questions or if you require medico-legal reports for you or your client. We have experts who provide comprehensive and efficient incapacity assessments for Welfare and Financial Guardianships under the Adults with Incapacity Act, having provided in excess of 230 guardianship assessments last year in Scotland. We are aware of the statutory timescales and thus provide the flexibility to turn around reports within tight deadlines. We can usually assess clients wherever they are based, including care homes, hospitals and home visits.
Recently, the Mental Health Tribunal presented its Annual Report to the Scottish Parliament. As a result, we think this is an excellent opportunity to explore some of the most important findings and statistics surrounding detentions and treatment orders. In this blog, we’ll highlight some of the key trends and focus on the implications this can have on the judicial processes surrounding the Mental Health Tribunal.
Steady Increase in applications since 2010
The increase in applications has continued steadily since 2010/2011, with a record 4,459 applications made thus far this year. This trend does show that the Mental Health Tribunal has an important role to play in the existing judicial and legal framework surrounding mental health patients and those under treatment orders. However, keeping up with the high demand and growing number of applications, including a potential increase in the amount of appeals, will mean that the Mental Health Tribunal may find its resources stretched to the limit in upcoming years. Nevertheless, the annual report does stipulate that “the statutory timescale for holding a hearing for a section 63 application within 5 working days of the expiry of a patient’s short-term detention certificate” was met in 100% of cases.
Types of Cases
Since its inception in 2005, roughly 91.6% of all cases were linked to a mental illness diagnosis, whereas 3.43% of all cases were linked to mental illness and a learning disability. It was also interesting to note the frequency of the types of cases and what applications were made:
6% of applications were for a compulsory treatment order (CTO)
76% of applications were for a short-term detention certificate
61% applied to extend and vary a CTO
3% applied to vary a CTO
Will the number of patients with a named person decrease?
73.6% of all cases had a named person in place, which is interesting, especially since amendments made to the Mental Health Act in 2015 mean that named persons are now no longer appointed by default. As a result, the report mentions that this legislative change could cause a decrease in the number of named persons appointed in the upcoming years. This can have implications for any potential judicial processes or appeals, as a named person is usually instrumental in facilitating this process and ensuring that the views of the patient is accurately reflected during hearings. However, it is still to be seen whether this predicted decline will actually materialise.
Find out more
Independent Psychiatry are experts when it comes to providing independent psychiatric reports for those subject to detentions under the Mental Health Act. We specialise in Short-Term Detentions and Compulsory Treatment Orders, which make up nearly 80% of all Mental Health Tribunal applications. We can help address whether the criteria for detention are being met and that all necessary guiding principles are being adhered to. Contact us today for more information regarding our award-winning services.
A recent report by the Mental Welfare Commission shows that the use of guardianship orders has increased in Scotland, as has been the case in recent years. These orders are generally used to protect those who lack the capacity to make their own decisions, placing the emphasis on a guardian (usually a relative, carer, or friend) to ensure that their rights and wishes are protected and respected.
New statistics reveal that that the number of existing guardianship orders is up by 12% since 2016-17 and now stands at a new high of 13,501. This is coupled with a rise in the amount of guardianship applications in Scotland in general.
Complex legal processes
The majority of all guardianships are related to either a learning disability (45%) or dementia/Alzheimer’s disease (41%). Interestingly, Mike Diamond, an executive Director at the Mental Welfare Commission, noted that the ‘continued steep rise in guardianship applications is concerning,’ because ‘it is a complex legal process and takes up a considerable amount of time for care professionals, particularly mental health officers.’
While he does mention that most relatives find guardianships helpful, it does create a complex situation that involves detailed assessments, and a variety of expert opinions, many of which require extensive corroboration. This process can take a while and is often fraught with legal implications – mostly concerning patient assessments and documentation surrounding any eventual incapacity.
Outcomes of the report
There have been many calls to reform the Adults with Incapacity Act, and this debate will continue to be relevant as the Government, in conjunction with the NHS and other regulatory bodies, seeks to protect the rights of patients who lack mental capacity. Furthermore, the report places a renewed emphasis on the role of medical practitioners and psychiatrists, who need to be able to provide reports, often at short notice, if they are to keep up with the growing number of guardianship applications made each year.
We have experts who provide comprehensive and efficient incapacity assessments for Welfare and Financial Guardianships under the Adults with Incapacity Act, having provided in excess of 230 guardianship assessments last year in Scotland. We are aware of the statutory timescales and thus provide the flexibility to turn around reports within tight deadlines. We can usually assess clients wherever they are based, including care homes, hospitals and home visits. Contact us today for more information about this.
Under the Mental Health Act of 2003, anyone has the right to appeal decisions taken by the Mental Health Tribunal. In this blog, we’ll take you through this process and which parties are normally involved, be that named persons, the patient themselves, or solicitors and welfare attorneys.
Who is involved in the appeals process?
The right of appeal applies to a ‘relevant party,’ which is subject to change depending on the specific decision that is being appealed. To summarise, the Mental Health Tribunal states that this almost always includes “the patient, the patient’s named person, any guardian of the patient, any welfare attorney of the patient, the mental health officer and the patient’s responsible medical officer.”
It’s important to remember that the Tribunal cannot provide advice to those who are considering filing an appeal against a tribunal decision. As a result, many patients who are involved in an appeal often choose to do so with the aid of a solicitor or welfare attorney, as this may help speed up the process.
When can you make an appeal?
According to the Mental Health Tribunal themselves, there are four main grounds for making an appeal:
that the Tribunal decision was based on an error of law;
that there has been a procedural impropriety in the conduct of any hearing by the Tribunal on the application;
that the Tribunal has acted unreasonably in the exercise of its discretion;
that the Tribunal’s decision was not supported by the facts found to be established by the Tribunal.
Outcome of an appeal
There are two main outcomes of any given appeal, as per section 324 of the 2003 Act:
Change the decision, if it is deemed to be credible in light of new or unconsidered information.
Submit the case to the tribunal for renewed consideration.
What is the timescale for an appeal process?
Any appeal made to the Mental Health Tribunal must be made within 21 days of the date of the decision being disputed. More information on this can be found on the Mental Health Tribunal website.
Contact Independent Psychiatry
If you are solicitor working with a client who is looking to appeal a decision by the Mental Health Tribunal, we can help. Please contact us directly, as we can help assess whether the criteria for detention are met, that guiding principles are being adhered to and that the least restrictive options have been given due consideration.
In 2017 the Policing and Crime Act introduced some significant changes to sections 135 and 136 of the Mental Health Act 1983.
Important changes to section 135 and 136 of the Mental Health Act, made by the Policing and Crime Act 2017, came into force on 11 December 2017.
The changes to the police powers and places of safety provisions have already be set out. Briefly they are as follows:
Section 135 provides for a magistrate to issue a warrant allowing a police officer to enter premises to remove a mentally disordered person to a place of safety. The amended legislation allows an assessment to take place in the premises/ home under certain circumstances.
Sectioin 136 – if a person appears to a constable to be suffering from mental disorder and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons remove that person to a place of safety….. or, if already in a place of safety to keep them there or to take them to another place of safety
Section 136 powers may be exercised anywhere other than in a private dwelling;
It’s unlawful to use a police station as a place of safety for anyone under the age of 18 in any circumstances;
A police station can only be used as a place of safety for adults in ‘exceptional circumstances’, which are set out in regulations;
The previous maximum detention period of up to 72 hours will be reduced to 24 hours (unless a doctor certifies that an extension of up to 12 hours is necessary);
Before exercising a section 136 power police officers must, where practicable, consult a health professional;
Where a section 135 warrant has been executed, a person may be kept at their home for the purposes of an assessment rather than being removed to another place of safety (in line with what is already possible under section 136);
A new search power will allow police officers to search persons subject to section 135 or 136 powers for protective purposes.
The Department of Health and Home Office have published guidance to support the implementation of changes.
The guidance isn’t statutory, and should be used in conjunction with other relevant guidance, standards and Codes of Practice but noting that the current MHA Code of Practice will certainly be updated at some point to incorporate guidance in relation to the places of safety provisions.
The guidance addresses how the legislative changes may apply over the time course of a typical ‘engagement’ and also makes suggestions regarding additional steps that may be considered when implementing changes in a locality.
These include reviewing existing training courses; impact monitoring and revision of local policies and liaison with relevant partners.
It’s important that clinicians are aware of the changes and the time limits that will apply.
Agencies need to be very clear about how the provisions apply and anticipate the challenges that will happen in their area.
When people refuse treatment, they may, in some extenuating circumstances, be detained, or ‘sectioned,’ under the Mental Health Act. This has several important legal implications and, as such, has been widely discussed and elaborated upon in recent years. We’ve made a list of some of the most interesting and relevant facts and findings about detentions under the Mental Health Act.
1. There are three types of civil detentions
These are Emergency Detention, Short- term Detention, and a Compulsory Treatment Order (CTO). Emergency Detention allows a person to be held in hospital for up to 72 hours, whereas a Short-term Detention means that a person can be detained for 28 days. A CTO, however, can take place in a hospital or in the community and lasts for a treatment period of 6 months, which can be renewed when it terminates.
2. Right to Appeal
If a person is detained against their will, they have a right to an appeal and get help from an independent advocate.
Anyone suffering from a mental disorder who needs care and treatment can be taken to a place of safety by the police. A 24-hour assessment period will follow where the person’s treatment needs are assessed. Police cells are being used less and less frequently as ‘places of safety,’ which is partly because hospitals are used more often for this purpose. Note that this is a different process from an Emergency Detention.
5. Detention rates usually decline with age
Recent detention rates in the UK are highest for the 18-34 age bracket (more than a third higher than those aged 50-64), which suggests that detention rates usually decline with age. Interestingly, however, there is also a slight increase in the amount of detentions in the 65+ age group.
6. Doctors can stop detainees from receiving visitors
However, if they do so, doctors need to prove that this is necessary and that it has serious safety or security implications. These should be explained to the detainee. If a doctor prohibits a detainee from receiving visitors when it’s not necessary, it could be breach of their rights and might require a solicitor.
7. Post-Natal Depression Care
Health Boards must ensure that there are mother and baby units available to accommodate mothers admitted to hospital for treatment of post-natal depression. This will allow her to take care of her child while she is in hospital. This was not always guaranteed under the previous Health Act.
8. Detentions must be recommended by the relevant authorities
All detentions must pass the proper legal and psychiatric requirements needed in order for a person to be detained. Emergency Detentions must be recommended by a doctor and might even require approval from a mental health officer, whereas Short-term Detentions are almost always recommended by a psychiatrist and a mental health officer. CTO’s, however, must be approved by a special Mental Health Tribunal and must meet several important criteria.
9. Minorities most likely to be detained under Mental Health Act
In 2016/17, people in the white ethnic group were the least likely to be detained (compared to the other broad ethnic groups). The rates for detention (not the total amount) for the ‘Black or Black British’ group were over four times as high as those in the White ethnic group.
10. Known rates of CTO use for males is almost twice the rate for females
11. Detainees can receive help from an Independent Mental Health Advocate (IMHA)
Hospital staff inform you of your right to receive help from an IMHA as soon as you are detained. They can help detainees understand their rights, voice their concerns, and clarify their treatment process. An IMHA must be an independent of the hospital staff. However, you may not receive help from an IMHA if you are under an Emergency Detention, under holding powers, or in a place of safety under police powers.
Need expert advice?
We provide independent psychiatric reports for clients subject to detention under the Mental Health Act, including both Short-Term Detentions and Compulsory Treatment Orders (CTO). We address whether the criteria for detention are met, that guiding principles are being adhered to and that the least restrictive options have been given due consideration.
Independent Advocacy is an important concept that was widely discussed during the 2015 changes to the Mental Health Act. It has recently surfaced yet again, after recent reports surrounding advocacy planning and implementation revealed that there is still a lot of work to be done. In this blog, we’ll explore what independent advocacy is, why it’s so important, and the impact of these recent findings on its development.
The purpose of Independent Advocacy
Independent advocacy enables people to exert as much control as possible over their own lives. Crucially, independent advocates are structurally, financially, and psychologically removed from service providers, healthcare providers, and other services. This helps to prevent a possible conflict of interest, which is particularly relevant with patients who are either mentally ill or who do not have mental capacity. It also means that they don’t make any direct decisions for the person they are supporting; instead, they provide them with all the necessary information so that they can make an informed decision themselves. Of course, if the individual in question does not have mental capacity or suffers from a mental illness, then it is possible for an independent advocate to speak on their behalf. As a result, they act as an important spokesperson for these individuals, advising them on their rights and making sure their wishes are carried out (where possible).
Safeguarding people who are vulnerable and discriminated against or whom services find difficult to serve.
Empowering people who need a stronger voice by enabling them to express their own needs and make their own decisions.
Enabling people to gain access to information, explore and understand their options, and to make their views and wishes known.
Speaking on behalf of people who are unable to do so for themselves
The importance of Independent Advocacy
Independent Advocacy is crucial to safeguarding the wants and needs of all people. It is a powerful tool that holds relevant decision makers accountable to the desires of these individuals and as a result, is vital in protecting people’s rights. As mentioned previously, it is especially important for those who suffer from mental disorders, as they may find that their wishes are not always considered fully. Equally, it is a vital safety measure that allows them to be fully involved in decisions that directly impact their lives. While this may be somewhat limited if a person does not have mental capacity, it still affords them the right to Independent Advocacy, irrespective of the nature or severity of their mental illness. Indeed, it helps to safeguard the vulnerable from potential abuses of power and institutional inefficiencies which prevent them from expressing their wishes.
Recent review of advocacy planning accross Scotland
Recently, the Mental Welfare Commission published a report that concluded that ‘advocacy services across Scotland is variable and lacks clarity.’ It was released as a follow-up to the 2015 update to the Mental Health Act, which includes a detailed plan for ensuring that advocacy services were both accessible and readily available. Key findings include that the budgets for advocacy services seem to have decreased (except for three areas), and that provisions for children and young people were severely lacking, as those who were receiving compulsory care/treatment were often prioritised. This last issue is further exacerbated by the lack of clear guidelines on how these services are to be made available to children and young people with mental health issues or learning disabilities.
Despite the somewhat discerning conclusions in these reports, it is the renewed awareness and various resulting action points that will, over time, allow us to keep expanding and improving advocacy services.
We provide independent psychiatric reports for clients subject to detention under the Mental Health Act, including both Short-Term Detentions and Compulsory Treatment Orders (CTO). We address whether the criteria for detention are met, that guiding principles are being adhered to and that the least restrictive options have been given due consideration. Please contact us for more information.