Chief Executive advice notes
I have compiled this series of advice notes to provide information on some of the legal and ethical aspects of mental health care and treatment in Scotland. I include advice on the practical operation of mental health and incapacity law and reflect our findings around issues in current practice.
I hope you find these bulletins useful. Please send any feedback to
Dr Donald Lyons, Chief Executive
Mental Health Act
“Unlawful” short-term detention and section 291
We heard of a case where an individual was detained under a short-term detention certificate which the Tribunal ruled unlawful. There were discrepancies in the times of examination and granting of the certificate. The order was made under section 291 which, although perhaps not intended for this purpose, allows the Tribunal to rule that a certificate has been granted unlawfully. The Tribunal is not required to test the grounds for detention, unlike an appeal under section 50.
The individual was re-detained on a further short-term detention certificate. She appealed again to the Tribunal under section 291 on the basis that this was an unlawful “back-to-back” short-term detention. The Tribunal granted her appeal but this was overturned by the Sheriff Principal.
This means that an individual can lawfully be re-detained in this way if the Tribunal decides that a short-term detention certificate had been granted unlawfully. However, the danger is that this extends the total period of detention well over 28 days before the Tribunal tests the grounds. As with our previous advice on back-to-back detention, we strongly recommend the earliest possible application to the Tribunal for a compulsory treatment order in these circumstances to ensure the individual has the right of independent scrutiny of the grounds for compulsory detention and treatment.
Nurse’s power to detain
In our report on emergency detention, we found some individuals who had been restrained by nurses in order to stop them leaving hospital before the emergency detention certificate was granted. We found no record of the use of the nurse’s power to detain.
Registered mental health and learning disability nurses can detain individuals for up to two hours (extended in some cases) to allow medical examination. This should be notified to hospital managers who must report the use of the power to the Commission. We have found surprisingly few notifications of the use of this power. We think some nursing staff misunderstand the process.
The record of detention (formis provided for this) is a report that the individual has been detained in this way. It is not intended to be completed before detention. Some nurses may be under the mistaken belief that, if they restrain an individual to prevent them from leaving when they have no time to complete the form first, this is “common law” action and not detention under section 299.
This is wrong. If nurses of the prescribed class detain an individual in this way, they must always report it by notifying hospital managers. The best way of doing this is to complete a NUR1 form as soon as possible after the event. Failure to do so may be ruled an unlawful deprivation of liberty.
Recall to hospital under section 113
A scenario that the Act did not envisage: what if there is a separate RMO for community and in-patient treatment? An individual is recalled by the community RMO under section 113 because of non-compliance with the measures in a community CTO. A different approved medical practitioner becomes the in-patient RMO. We think the community RMO should complete theform (which is a retrospective record of the recall), and record the examination after admission by filling in part (b) on page three of the form.
Part 16 – more issues
A reminder that the RMO must report urgent treatment under section 243 to the Commission within 7 days. Formis available for this purpose. Note that this form is a record that urgent treatment has been given, not an authorisation for the treatment. Medical practitioners should clearly record the grounds for urgent treatment in the individual’s case record when authorising it.
We have found a situation where the RMO consulted a designated medical practitioner (DMP) of his/her choice instead of contacting the Commission. The Commission appoints a DMP to provide an independent opinion on safeguarded treatment. In this case, the DMP had given a previous opinion.
When requesting an independent opinion, it is quite acceptable to inform the Commission that a particular DMP had given a previous opinion. But it is the Commission that chooses the DMP. Depending on circumstances, we may decide to appoint the same or a different DMP.
Please check your patient is still actually detained before requesting a DMP visit. If any order is revoked then any existing T2 and T3 forms are revoked, and cannot be used for subsequent periods of detention.
DMPs are reporting difficulties accessing electronics notes especially for visits out of hours. Please discuss with DMPs how this is to be arranged and ensure that ward staff are aware of the procedures for the visit. There may need to be discussions locally with your medical director about this issue.
In previous reports, although surprisingly omitted from our guidance on consent to treatment, we advised that T2 and T3 forms for medication should last no longer than three years. We advise RMOs to complete a new T2 or request a DMP opinion no less often than once every three years. There is no time limit in the Act although we have recommended an amendment to this effect. If we find a treatment certificate that is more than three years old, we may give notice of our intention to revoke it.
We were asked to look at a case of a patient on clozapine therapy who had died. This is a complex area of clinical practice often involving a clozapine clinic as well as the usual CMHT and GP. While we did not conclude that there was a deficiency of care, we thought there were a number of useful learning points.
Services should consider protocols for how they monitor physical health care in a
systematic way and in particular communication with GP about possible side effects and the action to be taken in the light of any abnormal findings
There should be an awareness of important complications eg constipation, in addition
There needs to be a system for communicating changes to prescriptions by all
Although monitoring of serum clozapine and norclozapine levels is not mandatory it
can be a useful adjunct in clinical care provided staff understand the significance of results. Local guidelines developed with pharmacy colleagues may be useful.
The provision of appropriate information for patients and carers is essential, and can
include packs for patients starting medication and informal carers groups.
Adults with incapacity act
Part 5: medical treatment
We are finalising our report on compliance with part 5 of the Act. In advance of its publication, a reminder that treatment to reduce sex drive where the individual is not subject to mental health legislation but lacks capacity to consent needs independent authorisation by a medical practitioner appointed by the Commission. The section 48 requires annual review for this treatment even if section 47 is for three years. Also, we still find many section 47 treatment certificates to be worded very broadly. As per the code of practice, we advise the
use of treatment plans. The plan can be incorporated into a self-produced certificate as long as the wording exactly follows the prescribed certificate (see previous advice on this).
Powers of attorney
The Law Society of Scotland is working on updated guidance for solicitors on capacity to grant power of attorney and the danger of undue influence. We remind practitioners to read our investigation report on the care of
We have had several requests for advice about the extent of the powers, especially whether or not the attorney can deprive the granter of liberty and authorise force or restraint. Our view is that the Act did not intend this, and that guardianship powers are likely to be needed. If in doubt, the Sheriff can give directions under section 3 on the use of the powers.
We have lots of new publications available at our website;
Our latest good practice guide on the use of the Mental Health Act in cases of drug-induced psychosis
Our latest investigation. Ms AB was admitted to a rural hospital after becoming confused. We had some concerns about the legality of her care and treatment and have made recommendations, particularly on the use of medication.
We visited every adult acute mental health ward in Scotland to speak to service users about their experiences. This is a report on what we found.
We have updated some of our good practice guides, in line with changes in the law.
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