Chapter 15: Duty to Inquire; Other Detention or Removal Powers; the Provision of Places of Safety; and Nurse's Power to Detain (sections 33-35; part 19)
This chapter examines a range of powers and duties which the Act confers on, for example, local authorities, nurses and the police. It then looks at the provision of places of safety under Part 19 of the Act. The topics discussed in this Chapter are:
a local authority's duty under section 33 to inquire into the situation of mentally disordered persons over the age of 16 who may be vulnerable to neglect or ill-treatment.
the power of the sheriff under section 292 to grant a warrant to an authorised person authorising that person to enter premises.
the power of the sheriff to grant a removal order under section 293 authorising the removal of a mentally disordered person to a place of safety and their detention there for a period of up to 7 days.
the power exercisable by the police under section 297 to remove a mentally disordered person from a public place to a place of safety.
a nurse's power under section 299 to detain an informal patient pending a medical examination.
the definition and designation of a place of safety under section 300.
This chapter begins with an overview of the various powers being discussed followed by an exploration in detail of each of the powers in turn. This chapter concludes with the definition of a "place of safety" and the process by which such places of safety should be designated.
Duty on a local authority to inquire
Warrant for entry to premises
Warrant for access to medical records
Warrant for medical examination
Warrant for an authorised person, for the purposes for which they are authorised, to enter premises to take/retake a patient - sheriff/justice of the peace
Order for patient's removal to a place of safety and detention for up to 7 days - sheriff/justice of the peace
Recall of variation of removal order
Police - removal from a public place to a place of safety
Nurse's power to detain
Note: All Warrants under Section 35 must be applied for separately
Overview of the Powers Available
01 Section 33 of the Act places a duty on a local authority to inquire into the situation of a person who appears to have a mental disorder who is living in the community. This duty to inquire is triggered, for example, where that person is suspected of being at risk of neglect or ill-treatment, where the patient is living alone or without care and where their property may be at risk of suffering loss or damage because of their mental disorder.
02 If it is thought that entry to premises, access to medical records, or a medical examination is necessary but access has been or is likely to be denied, the MHO should seek a warrant under section 35 of the Act. However, a warrant granted under section 35 does not authorise the removal of the person at risk to a place of safety. To remove a person at risk to a place of safety, an order under section 293 (or section 294, if urgently required) should be sought in addition to any warrant sought under section 35.
03 An order issued under sections 293 or 294 of the Act only authorises entry to the patient's premises and the patient's removal to a place of safety. It does not permit access to a patient's medical records nor does it permit detention for the purpose of carrying out a medical examination.
04 When deciding which warrant or order to seek, the key considerations will be how much is known about the person's circumstances and the perceived level of risk. If the level of risk is thought to be high, and if it is thought that the person may need to be removed to a place of safety, then a section 293 or section 294 order should be sought.
05 The purpose of a warrant to enter premises issued under section 292 of the Act is to allow a person to enter premises where that person has already been given authority under another section of the Act or associated regulations to take (or retake) a patient to any place or into custody. An example of a situation in which such warrant may be sought is where a patient subject to a CO has absconded and a person authorised to take the patient into custody or return them to hospital requires entry to the premises where the patient has been found. Another example is where a CTO has been made in respect of a patient and that patient must be conveyed to a hospital or another residence but access cannot be gained to the premises where the patient is currently residing or has been found.
06 Under sections 297 and 298 of the Act, the police may take a person to a place of safety if that person is in a public place and appears to be mentally disordered and in immediate need of care or treatment and where they consider that it would be in the interests of the person or necessary for the protection of any other person to remove the person to a place of safety. The person may be detained there for a period of up to 24 hours. The purpose of this detention is to allow a medical practitioner to examine the person and to make arrangements for their care and treatment. Arrangements should be in place to ensure that police officers can rapidly ascertain the location of the places of safety.
07 Under section 317, sanctions apply to any failure to comply with the Act. A person commits an offence where he/she:
refuses to allow a person authorised access to any premises;
refuses to allow access to a mentally disordered person by a person authorised to have such access;
refuses to allow the interview or examination of a mentally disordered person by a person authorised to interview or examine such person;
persists in being present when requested to withdraw by a person authorised to interview or examine, in private, a mentally disordered person;
refuses to produce any document or record to a person authorised to require the production of such document or record; or
otherwise obstructs a person in the exercise of any functions conferred on them by virtue of this Act
The patient themselves will not have committed an offence should they do any of the above.
A Local Authority's "duty to inquire" Under Section 33 of the Act
08 A local authority's duty to inquire arises in relation to any person aged 16 or over who has a mental disorder but is not subject to other detention provisions under the Act (in other words, where the person is not in hospital.) It is important to remember that the duty to inquire arises where it appears that the person or their property may be subject to ill-treatment, neglect or some other deficiency in care or treatment. The duty to inquire is therefore not restricted to situations in which it has already been shown that this has taken place. The local authority must inquire into a person's case where any of the following circumstances applies:
where it appears to the local authority that the person may currently be, or may have been, subject to or exposed to ill-treatment, neglect or some other form of deficiency in care or treatment at a place other than a hospital;
where it appears to the local authority that the person's property may be suffering, or may have suffered loss or damage, or may be or have been at risk of suffering loss or damage because of their mental disorder;
where that patient may be living alone or without care, and may be unable to look after him/herself, or his/her property or financial affairs;
where the person is not in hospital and because of their mental disorder the safety of some other person may be at risk.
09 Local authorities have a function under section 10 of the Adults with Incapacity (Scotland) Act 2000 to investigate any circumstances made known to them where the personal welfare of an adult, within the terms of that Act, seems to be at risk. In order to comply with the statutory duty to inquire under section 33 of the Act, it would be good practice for local authorities to develop local investigation protocols. Such protocols should be consistent with the policies which should already be in place with respect to the protection of vulnerable adults, and, in particular, to their functions under the Adults with Incapacity (Scotland) Act 2000.
Co-operation of other parties where the duty to inquire arises
10 The Act requires a range of parties and institutions to co-operate with the relevant local authority to ensure that that local authority is able to comply with its duty to inquire. The local authority may ask for such co-operation where it is necessary for the purposes of their inquiries or where it would assist with the inquiries. The parties required to co-operate with the local authority in terms of section 34 of the Act are:-
11 These parties must co-operate with a request where it is compatible with their functions and where the request does not unduly prejudice the discharge of those functions. It would be expected that locally developed protocols on inquiry procedures would be drawn up in consultation and agreement with these parties. It would also be best practice to ensure that the police and other relevant services are involved in drawing up local protocols.
The next steps resulting from the duty to inquire
12 The local authority may decide that nothing further needs to be done within the parameters of this Act. It would be expected that this conclusion would only be arrived at after a range of functions have been carried out. These could include:
the individual has been spoken to alone;
the individual's accommodation has been visited;
the views of all relevant professionals have been sought and considered; and
there is evidence that the individual's welfare will be safeguarded and promoted in future.
13 Where it has been decided that no further action under this Act is required, it would be expected that the MHO would produce a report on the circumstances which gave rise to the initial inquiries; the actions taken; and why they believed that no further action was required. The report should then be added to the person's case file. If there is no extant case file, the local authority should keep a record of the referral in line with their standard means of recording referrals.
14 The next steps resulting from the duty to inquire could alternatively involve a wide range of voluntary or compulsory interventions. For example, care and support under the Social Work (Scotland) Act 1968 may be provided on an informal basis. Intervention under the Adults with Incapacity (Scotland) Act 2000 might also need to be considered. If intervention under the 2003 Act is required, consideration of an emergency or short-term detention certificate or even an application for a CTO may be appropriate.
15 In pursuance of the duty to inquire, the MHO may meet resistance from the person who is the subject of their enquiries or from others. For example, where investigations of allegations or suspicions of abuse or neglect are impeded by the threat of violence, care should be taken by the relevant local authority to ensure that staff are protected and supported when carrying out their duties. This could involve ensuring that visits are carried out in pairs or liaising closely with the police, where appropriate.
16 The MHO should always first consider how entry to the person's premises may be achieved without recourse to further legal measures. Where the MHO cannot gain entry or is confident that entry to the premises is not or will not be possible, he/she may need to seek a warrant under section 35 from a sheriff or a justice of the peace. An MHO may also seek a warrant for the purpose of detaining a person in order to carry out a medical examination; or to allow a medical practitioner to have access to a person's medical records. A warrant can be sought under section 35 to authorise any of these three courses of action ( i.e. entry to premises; detention for the purpose of carrying out a medical examination; allowing access to medical records). However, a warrant which authorises, for example, entry to premises does not authorise access to the person's medical records. Each warrant must be applied for separately.
Making an application for a 'section 35 warrant'
17 The application must be made by an MHO. If a warrant is being sought to enter premises and open lock-fast places, the MHO making the warrant application must have been appointed by the local authority for the area in which the premises are located. An application for such a warrant must be made to a sheriff or justice of the peace of the sheriffdom or commission area in which the relevant premises is located. If a warrant is being sought for the purpose of detaining someone for the purpose of a medical examination or for allowing access to medical records, then the MHO making the warrant application must be appointed by the local authority making the inquiry. Similarly, an application for such a warrant must be made to a sheriff or justice of the peace for the sheriffdom or commission area where the person who is the subject of the duty to inquire is currently to be found. The MHO must provide evidence to the sheriff or justice of the peace and this evidence must be provided on oath. Local authorities will need to have in place protocols which address any cross-boundary issues which arise out of the application process.
18 The following statutory forms must be used for an application to the sheriff. (The statutory forms are available on the Mental Health Law website at:www.scotland.gov.uk/health/mentalhealthlaw)
application for warrant to enter premises: Form MHO1
application for warrant to detain person for the purposes of a medical examination: Form MHO2
application for warrant to access to a person's medical records: Form MHO3.
19 Note that an appeal cannot be made against the decision of the sheriff or justice of the peace to grant or refuse to grant a warrant.
20 Best practice would be for the MHO to inform the Commission of whether the application was refused or granted as soon practicable after the sheriff's determination has been made.
21 There are 3 separate warrants which can be issued under section 35. These are discussed in the following paragraphs.
Warrant to enter premises
22 A warrant issued under subsection (1) of section 35 relates to an application to enter premises. (Form MHO1 has been prescribed by regulations for this purpose.) The sheriff or justice of the peace must grant a warrant where he/she is satisfied that the MHO's application meets the following conditions:
it is necessary to enter the premises for the purposes of pursuing the local authority's duty to inquire; and
the MHO cannot obtain entry to the premises or reasonably believes that he/she will not be able to access the premises.
23 Where these conditions are met, the warrant authorises certain parties to enter the premises specified in the warrant within 8 days of the warrant being granted. (Note that the 8 day period begins with the day on which the warrant is granted.) The parties authorised to enter the premises are:
the MHO specified in the warrant (this could be a different MHO from the MHO who made the warrant application);
any other person specified in the warrant (for example, a GP or CPN); or
any police constable of the force covering the area in which the premises are situated.
24 Note that the warrant also authorises the police constable to open lock-fast places on the premises specified in the warrant. It would be expected that the MHO who made the application for the warrant would take all reasonable steps to ensure the security of the person's premises and belongings if force has been required to enter the premises.
25 Wherever possible, entry to premises should first be attempted without force. It is important that a multi-disciplinary plan be prepared in advance on how to carry out the entry and removal of the patient. In order to minimise distress and risk to the patient, the procedure should be carefully planned and co-ordinated with all those involved in the process. The plan should also include contingencies in case the patient does not respond as expected. Care should be taken to use the minimum restraint necessary. Where it is anticipated that the use of force may be necessary to execute the warrant, a multi-disciplinary assessment of the risk should similarly be undertaken. However, there may be exceptional occasions where the subject of the warrant presents a considerable risk of violence. In such circumstances, management of the process should be passed on to the police to enable them to address the issue of safety of all parties concerned. Unfortunately, there may be isolated occasions when reasonable force, including restraint, may be necessary in order to fulfil these duties. However, all parties involved should bear in mind the principle of "least restrictive alternative" at all times.
Warrant to detain a person for the purpose of carrying out a medical examination
26 A warrant under subsection (4) of section 35 authorises the detention of a person for the purpose of carrying out a medical examination. (The form prescribed in regulations for this purpose is Form MHO2.) Where an application is made on these grounds, the sheriff or the justice of the peace must grant the warrant where he/she is satisfied that:
it is necessary for a medical practitioner to carry out a medical examination of the person who is the subject of the local authority's duty to inquire; and
the MHO cannot obtain the consent of that person to the medical examination.
27 Under these circumstances, the warrant authorises that person's detention for a period of up to 3 hours. It should be noted that this 3 hour time period runs from the moment the patient is detained rather than from the moment the warrant is granted. Where an application for such a warrant is being considered, this should be discussed with the appropriate medical practitioner to ensure that they are in a position to attend.
28 When a person is detained pending a medical examination, all parties involved should keep in mind the principle of least restrictive alternative, while maintaining the safety of all the parties involved. Where practicable, any carers or family members of the person detained should be involved in discussions about how the situation can be managed safely and humanely. The roles and responsibilities of the parties involved should be as clearly defined in advance as is possible. It would be expected that roles and responsibilities would be defined within the context of the relevant, locally agreed psychiatric emergency plan.
Warrant for access to a person's medical records
29 A warrant under subsection (7) of section 35 is for the purpose of allowing a medical practitioner to gain access to a person's medical records. (The form prescribed in regulations for this purpose is Form MHO3.) Where an application is made on these grounds, the sheriff or justice of the peace must grant the warrant where he/she is satisfied that:
30 If granted, the warrant authorises access to the person's medical records. Any person who holds the person's medical records is required to produce them for inspection by the medical practitioner specified in the warrant, if that medical practitioner asks them to do so.
Removal Order (A "section 293 order")
31 An MHO may apply to a sheriff under section 293 of the Act for a "removal order" which would allow a mentally disordered person over the age of 16 to be removed to a place of safety. The circumstances in which an MHO would make an application for a removal order with respect to such a person are where the MHO believes that the person is likely to suffer significant harm if not removed to a place of safety and if any of the following circumstances apply:
the person is subject to or exposed to ill-treatment, neglect or some other deficiency in care or treatment;
because of the mental disorder the person's property is suffering loss of damage or is at risk of suffering loss or damage; or
the person is living alone or without care and is unable to look after him/herself or his/her property or financial affairs.
Making an application for a removal order
32 The application must be made by an MHO who has been appointed by the local authority for the area in which the premises are situated.
33 The application must be made to a sheriff of the sheriffdom in which the premises are situated. Section 294 of the Act provides, however, that an application for a removal order can be made to a justice of the peace if it is impracticable to make the application to the sheriff and if any delay in obtaining the removal order would be prejudicial to the person who is the subject of the application. It is therefore best practice to make an application to the sheriff wherever possible.
34 The MHO must provide evidence on oath to the sheriff or justice of the peace. The following statutory forms must be used for an application to the sheriff or a justice of the peace. (The statutory forms are available on the Mental Health Law website at:www.scotland.gov.uk/health/mentalhealthlaw)
35 During the course of their inquiries, the MHO must ascertain, where practicable, the following persons prescribed under The Mental Health (Removal Order) (Scotland) Regulations 2005:
any nearest relative of the person;
any guardian of the person;
any welfare attorney of the person;
any primary carer of the person.
36 Where the MHO considers that it would be prejudicial to the person's welfare for a hearing to be held by the sheriff, then the MHO may introduce a crave to the sheriff to dispense with intimation to the person who is the subject of the application and the prescribed persons listed at paragraph 35. The MHO should provide the sheriff with their reasons in coming to this conclusion to assist the sheriff in reaching his/her decision. (This may be done by way of the statutory application MHO5.)
37 Where the MHO considers that it would not be detrimental to the person's welfare, it would be best practice for the MHO to inform the person who is the subject of the application about the application for the removal order.
38 Where practicable, it would also be best practice for the MHO to advise any other persons who may have an interest in the person's welfare of the application. This would enable any parties to then enter the proceedings by way of a Minute.
Determining an application for a removal order
39 Where the application is being determined by a sheriff, he/she must give the person who is the subject of the application and the prescribed persons the opportunity to make written or oral representation and to lead or produce evidence with respect to the application. Where the sheriff decides to hold a hearing, then the sheriff will arrange for intimation of the date, place and time of the hearing to the person who is the subject of the application and the prescribed persons. However, a sheriff can dispense with this requirement if he/she believes that a delay caused by complying with this requirement would be prejudicial to the person who is the subject of the application.
40 Where the application is made to a justice of the peace, the Act does not allow the patient or prescribed persons the opportunity to make representation or to lead or produce evidence. Where this is practicable, an application for a removal order must be made to a sheriff rather than to a justice of the peace.
41 The application can be granted if the sheriff or the justice of the peace is satisfied that:
the person is aged 16 or over:
the person has a mental disorder;
the person is likely to suffer significant harm if not removed to a place of safety; and
any of the circumstances outlined in sections 293(2) of the Act as set out at paragraph 30 above applies.
What does a removal order authorise?
42 In terms of section 293(3) of the Act, a removal order confers several powers:
it authorises the MHO specified in the order, any other persons specified in the order, and any constable of the police force for the area in which the premises are situated to enter any premises specified in the order within the period of 72 hours beginning with the granting of the order;
it authorises any constable of the police force maintained for the area in which the premises are situated to open lock-fast places on the premises before the expiry of the 72 hour period;
it authorises the removal of the person to a place of safety which was specified in the order within that 72 hour period; and
it authorises the detention of the person in that place of safety for a period which is specified in the order. This period may not exceed 7 days.
43 It should be noted that although the removal order authorises entry to premises and the removal of the person within a 72 hour period, the order should be executed as quickly as is safe and practicable in order to limit any potential for further harm to the person, or further loss or damage to their property. Similarly, although the person may be detained at a place of safety for a period of up to 7 days, the person should be moved as swiftly as possible from the place of safety to a more suitable care and treatment environment.
44 It would be best practice for the MHO to notify the Mental Welfare Commission as to whether the application was granted or refused and to give an account to the Commission of the circumstances which led the MHO to conclude that an application for a removal order was appropriate.
45 Where a removal order is granted, it would be best practice for the MHO to inform the prescribed persons (see paragraph 35 above) of the outcome where a hearing was not held or the prescribed person(s) could not attend. The MHO may also wish to consider informing the person who is the subject of the removal order. It would also be best practice for the MHO to inform any other person who the MHO considers may have a legitimate interest in the person's welfare, setting out the procedure they should follow should they wish to exercise their right to apply to the sheriff under section 295 for an order to recall or vary the removal order.
Recalling or Varying a Removal Order (section 295)
46 An application can be made to a sheriff under section 295 of the Act which would 'recall' ( i.e. cancel) the removal order. Similarly, an application can also be made to vary the removal order by specifying a different place of safety in the order.
47 The application must be made on Form MHO7. (The statutory form is available on the Mental Health Law website at:www.scotland.gov.uk/health/mentalhealthlaw)
48 Such an application can be made by the person who is the subject of the removal order or by any person claiming an interest in the welfare of that person. The application must be made to a sheriff of the sheriffdom in which the premises to which the application for the removal order related are situated. Note that application cannot be made to a justice of the peace, unlike the initial application for the removal order.
49 Before the sheriff determines an application for such an order, he/she must afford the person who is the subject of the application and any person prescribed by regulations the opportunity to make written or oral representations and to lead or produce evidence. As the person who made the initial application, the MHO will be cited as the defender and will therefore receive intimation of such application.
50 Where the sheriff grants an order varying the removal order, this variation may authorise:
the removal of the person to a new place of safety within 72 hours of the order varying the initial removal order being granted; and
the person's detention there for the remainder of the period specified in the original order.
51 Where the sheriff grants an order recalling the removal order, then the order may authorise the return of the person concerned to the premises from which they were originally removed, or to some other appropriate place chosen by that person.
52 No appeal is possible against a decision of a sheriff to make or refuse to make an order which would recall or vary a removal order.
53 Best practice would be for the MHO to inform the Commission of those cases where the sheriff has granted a recall or variation of the order and the reasons for this.
An Authoried Person's Order - (A section 292 warrant)
54 The purpose of a section 292 warrant is to authorise a person to enter premises where that person has already been given authority by this Act to take a patient to any place or into custody. This could be, for example, a party authorised under the Act to return a patient who absconds while being transferred from one hospital to another. Another example would be where a person who is subject to the 1995 Act breaches a condition specifying that they reside in a specified place. A warrant can only be granted under section 292 where it is necessary to enter premises to enable that person to fulfil the purpose for which they had previously been authorised; and where the sheriff or justice of the peace is satisfied that the "authorised person" cannot obtain, or reasonably expect to obtain, entry to those premises.
55 The "authorised person" ( i.e. the person who has already been given authority to take a patient to a place or into custody) must make the application to a sheriff or to a justice of the peace. (Regulations have provided that statutory application form MHO4 must be used for this application. The statutory form is available on the Mental Health Law website at:www.scotland.gov.uk/health/mentalhealthlaw.)
56 The warrant authorises specific parties to access the premises specified in the order. These parties are:
57 Note that these parties may also be accompanied by a medical practitioner and any other authorised person.
58 The warrant also authorises any police constable for the area in which the premises are situated to open lock-fast premises, where required, for the purpose of gaining access to the premises specified in the order. Prior to the execution of a warrant, the relevant parties should discuss the best way to proceed which would maintain the dignity of the person who is the subject of the warrant as well as protect the patient and which would safeguard their own safety and the safety of others.
Removal from a public place (sections 297 and 298)
59 Sections 297 and 298 of the Act confer on the police a power to take a person who appears to be mentally disordered and who appears to be in immediate need of care or treatment to a place of safety and to detain them there for a period of up to 24 hours. The purpose of this detention is to allow a medical practitioner to examine the person and to make arrangements for their care and treatment. The police may only exercise this power if the person is in a public place.
60 The grounds which must be met before the person may be removed from a public place are that a police constable reasonably suspects that:
61 Before exercising the power the constable must also consider that it would be in the interests of the person or necessary for the protection of any other person to remove him/her to a place of safety.
62 If these grounds are met, the person may be detained at a place of safety for no more than 24 hours from the point of being removed from the public place. Note that the detention period under the Act is 24 hours, not 72 hours as was the case under section 118 of the 1984 Act. The purposes of the detention must be to allow arrangements to be made for a medical practitioner to examine the person and to make arrangements considered necessary by the medical practitioner for their care or treatment.
63 Section 297(5) of the Act permits a person to be removed to a police station when a place of safety is not immediately available. This is the only circumstance, in which a police station can be used as a place of safety. The person should be detained in a police station under this power for as short a time as is possible and, in any case, for no longer than it takes to make more suitable arrangements for the person's care and treatment.
64 Section 297(4) of the Act makes clear that the definition of a public place includes any place to which the public or any section of the public has or is permitted to have access, whether on payment or otherwise. It also includes the common parts of a building containing two or more separate dwellings.
65 Section 298 places a duty on the relevant police constable to ensure that several parties are informed of a range of issues connected to the removal. These issues are:
the name and address of the person removed to a place of safety;
the date and time at which the removal took place;
the circumstances giving rise to the removal of the person;
the address of the place of safety; and
if the person was removed to a police station, the reason why the person was removed there.
66 The parties who must be given information in relation to these facts are:
the local authority in whose area the place of safety is situated. The local authority must be informed as soon as is reasonably practicable after the removal has taken place. Where the person's address is known, best practice would be to also inform the local authority for that place. Doing so would allow their mental health services to respond more quickly.
the nearest relative of the person. The nearest relative must also be informed as soon as practicable after the removal has taken place. If it is impracticable for the constable to inform the nearest relative or if the nearest relative is informed but does not live with the person removed, then the constable should ensure that one of the following is informed instead: a person who lives with or provides a care service to the person; or who is a carer of that person.
the Commission. They must be notified within a period of 14 days beginning on the day on which the person was removed to the place of safety.
67 A police constable will also wish to involve a medical practitioner once the patient has been removed to a place of safety. Police officers will need to be aware of how to contact police surgeons, CPNs, MHOs and other mental health professionals, where appropriate. Where a medical practitioner has been in attendance, the practitioner should check whether the relevant local authority has already been notified of the person's removal. If contact has not been made with the relevant duty MHO service, this should be done as quickly as possible to enable the patient to be interviewed jointly to facilitate the assessment and planning of an emergency or short-term detention certificate, where appropriate. (There is no form prescribed in regulations for this application but a pro forma ( POS1) is available on the Scottish Executive's website at:www.scotland.gov.uk/health/mentalhealthlaw.)
Nurse's Power to Detain a Patient Pending a Medical Examination (section 299)
68 Section 299 of the Act empowers certain nurses to detain an informal patient who is in hospital receiving treatment for a mental disorder but that treatment is not being given by virtue of the Act or the 1995 Act. There is only one exception to this general rule: that is where the patient is subject to a probation order with a requirement for treatment for a mental condition in terms of section 228(1) of the 1995 Act.
69 Regulations under The Mental Health (Class of Nurse) (Scotland) Regulations 2005 provide that the nurse must be registered in Sub-Part 1 of the Nursing and Midwifery Order 2001 and their field of practice in mental health or learning disabilities nursing.
70 The patient can be detained by the nurse for a period of up to two hours ("the holding period") for the purpose of enabling arrangements to be made for a medical examination of the patient to be carried out. However, if the medical practitioner arrives to examine the patient at any point after 1 hour of the holding period has elapsed, the patient can be detained for a further hour from the point of the medical practitioner arriving to allow the medical examination to take place.
71 The nurse's holding power should not be used consecutively. If the nurse's holding period of 2 hours has elapsed without a medical practitioner attending, it would not be best practice to immediately re-detain the patient under section 299 of the Act.
72 A patient may only be detained by a nurse where it is not practicable to secure the immediate medical examination of the patient by a medical practitioner and if he/she believes that it is likely that the following conditions are met:
that the patient has a mental disorder;
that it is necessary for the protection of the health, safety or welfare of the patient or for the protection of the safety of any other person for the patient to be immediately restrained from leaving the hospital; and
that it is necessary to carry out a medical examination of the patient to determine whether an emergency or short-term detention certificate should be granted.
73 Before deciding whether or not to exercise this power, a nurse should weigh up the likely arrival time of a medical practitioner against the likely intention of the patient to leave. Many patients who express a wish to leave hospital can be persuaded to wait until a medical practitioner arrives to discuss the options further. The nurse should also assess the likely consequences of the patient leaving hospital immediately, taking into account factors such as, for example, the harm that might occur to the patient or others; any recently received messages from relatives or friends; any recent disturbances on the ward; or any relevant involvement of other patients. Where a nurse does exercise the power, he/she should attempt to communicate to the patient as clearly as the situation will allow what is happening and the implications for them of the power.
74 The nurse who has exercised the holding power must take all reasonable steps to inform an MHO of the patient's detention as soon as practicable after the holding period begins. Although there would undoubtedly be value in the patient being assessed by an MHO with previous involvement in the patient's case history, priority should be given to securing an MHO assessment as quickly as possible. Hospital managers and local authorities should work closely together to ensure that nurses have the contact information for the duty MHO service readily to hand both during the day and out of hours.
75 Although it would be best practice for the patient's existing RMO or another approved medical practitioner to carry out the medical examination, this may not always be possible. A pragmatic approach should therefore be adopted, particularly where the patient requires immediate medical attention. Should a more junior doctor carry out the medical examination, then the detention options, if detention is required, will necessarily be limited to the issuing of an emergency detention certificate.
76 The nurse who exercised the holding power must make a written record of the following facts as soon as practicable after the holding period begins:
the fact that the patient has been detained;
the time at which the holding period began;
the nurse's reasons for believing it likely that the conditions of detention (see section 299(3)(a) to (c) of the Act as set out in paragraph 67 above) have been met.
(There is no form prescribed in regulations for this purpose but a pro forma ( NUR1) is available on the Scottish Executive's website at:www.scotland.gov.uk/health/mentalhealthlaw.)
77 The nurse must ensure that this written record is given to the managers of the hospital in which the patient is held as soon as practicable after the record has been made. However, the nurse may authorise another person to carry out this task. It would also be best practice for the nurse to make this record available to the relevant MHO. The managers of the hospital must send a copy of this record to the Commission within 14 days of their receiving it.
Definition of a Place of Safety
78 Section 300 of the Act provides a specific definition of a "place of safety" for the purposes of Part 19 of the Act. The following scenarios are dealt with in Part 19:
where a warrant has been granted to enter a person's premises under section 292;
where a removal order has been granted under sections 293 or 294;
where a mentally disordered person has been removed from a public place under section 297; and
where a nurse has exercised the holding power under section 299.
79 The definition of a place of safety given in section 300 of the Act is:
premises which are used for the purpose of providing a care home service (as defined in section 2(3) of the Regulation of Care (Scotland) Act 2001 (asp 8)); or
any other suitable place (other than a police station) the occupier of which is willing temporarily to receive a mentally disordered person.
80 It should be noted that section 2(3) of the Regulation of Care (Scotland) Act 2001 defines a "care home service" as: a service which provides accommodation, together with nursing, personal care or personal support, for persons by reason of their vulnerability or need; but the expression does not include -
a public, independent or grant-aided school;
an independent health care service; or
a service excepted from this definition by regulations.
81 No regulations have been made under section 2(3)(d) of the Regulation of Care (Scotland) Act 2001.
82 In light of the definition of a place of safety given in section 300 of the Act, it is important to emphasise that a police station may not be used as a place of safety in the scenarios described in Part 19 of the Act. The only exception to this rule is given in section 297(5) which states that a police station may be used where a police constable has removed a mentally disordered person from a public place under section 297 of the Act and where no place of safety is immediately available. On any rare occasion where a person is held in a police station instead of a place of safety, it would be expected that the person be moved on to a suitable place of safety as swiftly as possible under the circumstances.
83 For further information on the use of police stations and places of safety subsequent to the granting of an emergency or short-term detention certificate in respect of a patient in the community, see the relevant Chapters of Volume 2 of the Code of Practice.
Designation of a Place of Safety
84 All relevant local agencies should work closely together to ensure the provision of sufficient places of safety within their localities. They should designate agreed preferred places of safety to which persons detained under Part 19 of the Act could be taken and all parties should be fully aware of their location and use. It may also be necessary for local agencies to designate an alternative place of safety to which those whose behaviour makes them unsuitable for the preferred place may be taken (for example, where a person is particularly violent or disturbed).
85 When designating places of safety, it would be expected that local agencies have in place policies which, among other issues, would:
make clear who has responsibility for the transfer, reception and assessment of the patient and within which timescales;
ensure that all staff potentially involved with the incidents described at Part 19 of the Act know how to access referral information for mental health specialists, where appropriate;
address the training and awareness needs of such staff with respect to the needs of persons with acute mental disorder;
put in place clear after-care arrangements where the person detained under Part 19 of the Act is not formally admitted to hospital; and
audit and regularly review the use and effectiveness of the locations designated as places of safety within their locality, looking at, for example, issues linked to absconding; the handling of episodes of violence; failures of communication; and users'/relatives' views and experiences.
86 It is unlikely that a single solution will apply across all areas of Scotland to the issue of designating places of safety (particularly in rural/remote locations). However, it is likely that the preferred place of safety would not usually be an A&E department. It could instead, where appropriate, be a specialised assessment unit closely linked to, or at least accessible to, a psychiatric facility. Any designated place of safety will need to be suitably equipped and staffed by qualified mental health staff who have experience in the management of acute mental disorder. Although it may be necessary to designate an A&E department as a place of safety, their use should not be standard practice and should, wherever possible, be restricted to occasions where the person also has significant physical health problems related to, for example, self harm or substance misuse.
87 Where local agencies are designating places of safety within their locality, it would be expected that they would also develop contingency plans for occasions where a person is removed to an establishment other than a designated place of safety. Contingency plans will need to focus on ensuring that the range of health and non-health professionals who may become involved with such a situation (for example, A&E staff, GPs, police officers, etc) are aware as is possible of the issues outlined at paragraph 85 above.
88 The process by which relevant local agencies work together to agree on suitable designated places of safety should be carried out in parallel to their development of Psychiatric Emergency Plans, which would come into operation after the granting of an emergency or short-term detention certificate. For further information on Psychiatric Emergency Plans, see the relevant Chapters of Volume 2 of the Code of Practice.