The Mental Health (Care and Treatment) (Scotland) Act 2003 came into effect on April 2005. The Act applies to people with a 'mental disorder', which refers to people with mental health problems, personality disorders and learning disabilities.
The Act also contains safeguards which protect the rights of persons with a mental disorder. Every person with a mental disorder has a right of access to independent advocacy and the right to be able to choose someone (a 'named person') to support them and to protect their interests in any proceedings under the Act.
The Act is based on a number of principles:
1. Non-discrimination - People with mental disorder should, wherever possible, retain the same rights and entitlements as those with other health needs.
2. Equality - All powers under the Act should be exercised without any direct or indirect discrimination on the grounds of physical disability, age, gender, sexual orientation, language, religion or national or ethnic or social origin.
3. Respect for diversity - Service users should receive care, treatment and support in a manner that accords respect for their individual qualities, abilities and diverse backgrounds and properly takes into account their age, gender, sexual orientation, ethnic group and social, cultural and religious background.
4. Reciprocity - Where society imposes an obligation on an individual to comply with a programme of treatment of care, it should impose a parallel obligation on the health and social care authorities to provide safe and appropriate services, including ongoing care following discharge from compulsion.
5. Informal care - Wherever possible, care, treatment and support should be provided to people with mental disorder without the use of compulsory powers.
6. Participation - Service users should be fully involved, so far as they are able to be, in all aspects of their assessment, care, treatment and support. Their past and present wishes should be taken into account. They should be provided with all the information and support necessary to enable them to participate fully. Information should be provided in a way which makes it most likely to be understood.
7. Respect for carers - Those who provide care to service users on an informal basis should receive respect for their role and experience, receive appropriate information and advice, and have their views and needs taken into account.
8. Least restrictive alternative - Service users should be provided with any necessary care, treatment and support both in the least invasive manner and in the least restrictive manner and environment compatible with the delivery of safe and effective care, taking account where appropriate of the safety of others.
9. Benefit - Any intervention under the Act should be likely to produce for the service user a benefit that cannot reasonably be achieved other than by the intervention.
10. Child welfare - The welfare of a child with mental disorder should be paramount in any interventions imposed on the child under the Act.
The Mental Health Tribunal for Scotland (MHTS) is involved in considering care plans, deciding on compulsory treatment orders and carrying out reviews. Service users and carers are able to challenge compulsory treatment orders if they want to. Services users can make advance statements, setting out how they would wish to be treated if they become unwell and unable to express their views clearly at some point in the future. The Tribunal and any person responsible for giving treatment under the new Act would have to take an advance statement into account.
The Act allows for people to be placed on different kinds of compulsory order according to their needs. There are three main kinds of compulsory powers:
1. Emergency detention - This would allow someone to be detained in hospital for up to 72 hours where hospital admission is required urgently to allow the person's condition to be assessed. It will only take place if recommended by a doctor.
2. Short-term detention - This would allow someone to be detained in hospital for up to 28 days. It will only take place where it is recommended by a specially trained doctor (a psychiatrist) and agreed by a mental health officer (an officer of the local authority).
3. Compulsory Treatment Order (CTO) - A CTO would last for 6 months initially but could then be extended for a further 6 months, and after that could be extended for 12 months at a time. This has to be approved by a Tribunal. A mental health officer would have to apply to the Tribunal. The application would have to include two medical recommendations and a plan of care detailing the care and treatment proposed for the patient. The patient, the patient's named person and the patient's primary carer would be entitled to have any objections that they have heard by the Tribunal. The patient and the named person would be entitled to free legal representation for the Tribunal hearing.