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Mental Health Law Team
Mental Health and Protection of Rights Division
3ER St Andrew's House
Regent Road
Edinburgh
EH1 3DG
 
mentalhealthlaw@gov.scot

Mental Health (Scotland) Act 2015 - implementation and secondary legislation

Implementation of the 2015 Act - consultations

Implementation of the Act includes secondary legislation, implementation of the Victim Notification Scheme for victims of mentally disordered offenders and revisions to guidance, forms and the Code of Practice. Officials have been working with stakeholders on the implementation of the Act, including through the Implementation Reference Group and the Code of Practice working group:

Part One of public consultation on implementing the 2015 Act was published in March 2016. The consultation included provisions relating to named persons, advance statements, conflict of interest regulations, and amendments to the Mental Health (Safeguards for Certain Informal Patients) (Scotland) Regulations 2005.

You can access the consultation papers at the links below. An analysis report will be published in due course. 

Part Two of the consultation on the implementation of the 2015 Act was published in July 2016. The consultation included regulations for cross-border transfers and for absconding patients along with the transitional and savings provisions for the 2015 Act.

We have also published a joint analysis report for Parts One and Two of the consultation.

Mental Health (Detention in Conditions of Excessive Security) (Scotland) Regulations 2015 and related secondary legislation

New regulations related to appeals against levels of security are in force from 16 November, 2015. The regulations extend the ability to appeal against being detained in an excessive level of security to those in medium secure units. They set out the test to be applied by the Mental Health Tribunal for Scotland and require that applications must include a supportive report from an approved medical practitioner:

Parliamentary progress

The regulations were laid before Parliament on 31 August 2015 and approved by Parliament on 28 October 2015. The Minister for Sport, Health Improvement and Mental Health gave evidence on the regulations to the Health and Sport Committee on 29 September 2015.  

A related commencement order, the Mental Health (Scotland) Act 2015 (Commencement No. 1, Transitional and Saving Provisions) Order 2015 was laid in Parliament on Nov×ember 2, 2015. An instrument amending the Mental Health Tribunal for Scotland (Practice and Procedure) (No. 2) Rules 2005 was laid in Parliament on 17 September 2015.  These orders also come into force on 16 November 2015.

Cross-border transfer and cross-border visits regulations

Regulations amending the Mental Health (Cross-border transfer: patients subject to detention requirement or otherwise in hospital) (Scotland) Amendment Regulations 2005, the Mental Health (Cross-border transfer: patients subject to requirements other than detention) (Scotland) Regulations 2008 and the Mental Health (Cross-border Visits) (Scotland) Amendment Regulations 2008 are in force from 30 June 2017.

The changes to the 2005 regulations include extending appeal rights to named persons (and others where there is no named person, in line with changes in the 2015 Act); adjustments to the process after Scottish Ministers have decided to grant a warrant for transfer outwith Scotland, which include introducing a fast-track process where all parties agree to the transfer; some changes to notifications and the information which must be sent to Scottish Minister (which is reflected in the revised TX1a form); and extends the provisions for transferring patients to Scotland to those from other EU countries.

More information about the process under the Mental Health (Cross-border transfer: patients subject to detention requirement or otherwise in hospital) (Scotland) Amendment Regulations 2017 is available.

Similar changes are made to the 2008 cross-border transfer regulations where appropriate.

The 2008 cross-border visits are amended to allow the provisions to apply to cross-border visits by those from other EU countries.

 

Conflict of interest regulations

These regulations replace existing regulations that set out when there is taken to be a permitted or not permitted conflict of interest, and mostly reflect existing provisions.  These regulations are in force from 30 June 2017.

There are two main changes.  Where two medical examinations are required, at least one of those is to be carried out by a practitioner who does not work in that NHS hospital. However, if one examination is undertaken by a consultant, the other examination can be carried out by another doctor in that hospital but there must be no supervisory relationship between them.

Where a doctor carrying out a medical examination for a review of certain orders is employed in an independent health care service in which the patient is or will be detained, there must be a second examination by a doctor not employed by that independent health care service.

Other secondary legislation

Three other regulations also make amendments to existing regulations and are in force from 30 June 2017.

Amendments to the Tribunal Rules will set out the process for a listed initiator to make an application or appeal to the Tribunal where the patient does not have a named person and does not have capacity to make an appeal on their own behalf. This includes that the application must be accompanied by a statement by an approved medical ractitioner that the patient is incapable of initiating an application or appeal on their own behalf.

The Mental Health (Patient Representation) (Prescribed Persons) (Scotland) Regulations 2017 adds independent advocates and some allied professionals to the list of prescribed persons who can witness a named person declaration. This list of prescribed persons will also apply to witnessing the agreement by the named person to take on the role and to a declaration made by a patient that they do not want their carer or nearest relative to act as a listed initiator.

The final set of regulations makes changes to statutory treatment forms.

Commencement orders

Commencement orders set the date when legislation comes into force and also set out whether any transitional or savings provisions are required to help bridge the old legislation and the new legislation.

The Mental Health (Scotland) Act 2015 (Commencement No. 4 and Transitional and Savings Provisions) Order 2017 is the commencement order for the bulk of Parts 1 and 2 of the Mental Health (Scotland) Act 2015. It brings most of the remainder of Parts 1 and 2 of the 2015 Act in to force on 30 June 2017. Apart from those already in force, the other exceptions are Section 1, which is not commenced at this point, and sections 40-45, which come into force on 30 September 2017.

For the most part, the transitional provisions are relatively simple. There are slightly lengthier transitional provisions relating to named persons appointed under section 251 (sometimes referred to as default named persons). From 30 June, anyone who does not want their default named person to continue in the role can make a written declaration and the default named person will cease to hold that role. Also from 30 June 2017, any default named person will cease to hold their role if their certificate or order comes to an end. From 30 September 2017, remaining default named persons will start to fall away. This will generally happen at the point of a medical examination for a planned review of the order. If there are any default named persons still holding their role at 30 June 2018, their role will cease on this date.

Provisions requiring Scottish Ministers to carry out a review of the arrangements for investigating the deaths of patients who were either detained in hospital or admitted voluntarily to hospital for treatment for a mental disorder came into force on December 24, 2015. Section 37 of the Act requires that the review is carried out within three years of the section coming into force; that, where practicable, the nearest relatives of patients and other appropriate persons are consulted; and that a report is published setting out the findings. Further detail is available in the policy note for the commencement order: