Information

Consultation on the implementation of certain sections of the Mental Health Act (Scotland) 2015 and Associated regulations (Part 1).

First consultation on the implementation of the Mental Health (Scotland) Act 2015 and associated secondary legislation. It focuses on implementation of named persons, advance statements, conflict of interest regulations and safeguards for certain informal patients regulations.


Chapter 2 – Named Persons

Some patients need someone else to make decisions about their health and wellbeing for them. This is called a Named Person.

The law says that if a patient who is over 16 does not pick a Named Person, one will be chosen for them. This is usually a relative or carer. The law is changing so that the patient will not have a named person unless they choose one.

If the patient is too unwell, they may not be able to make an appeal to ask the Mental Health Tribunal to look at their case if they think the Tribunal should look at a decision. The new law will let a relative or carer ask the Tribunal instead. This person would be called the 'listed person'.

We think the law should say that the 'listed person' should be able to be heard by the Tribunal but they shouldn't see the patient's medical reports or listen to the doctors and others talking about the case and sit at the whole hearing. This is called being a 'relevant person'

This would only happen if the patient was not able to speak for themselves at the Tribunal, or to make the appeal themselves. A doctor would have to agree that the patient does not have the ability to speak for themselves.

Question 1 - Do you agree that relatives and carers should be a 'relevant person' at the Tribunal and not get to see the reports or listen to the whole hearing? Please tell us if you have any different suggestions.

Question 2 - Is there anything else that you think the Tribunal rules should say about the new appeal right for listed persons? Do you agree that any doctor should be able to say whether or not the patient can appeal on their own or should it just be the patient's responsible doctor?

Transition

We need to decide what happens to people who are already Named Persons once the new law comes in. We suggest that that person should stay as the Named Person until the patient's case is looked at again.

This would only happen if the Named Person was not picked by the patient themselves.

Question 3 - Do you agree with this? Please tell us if you have any different suggestions.

When the patient's case is looked at again, the patient will be asked if they want the Named Person to go on making decisions about their health and wellbeing, or if they want to choose someone else. The law says that when the patient's case is being looked at again, either their responsible doctor or their mental health officer must interview the patient. We think this is the best time for the patient to decide whether they still want to have a Named Person. If not, this is when the Named Person would stop being the Named Person.

Question 4 - Do you agree with this? Please tell us if you have any different suggestions and if you have any views on how patients who can't speak for themselves should be supported at this point.

The new law will say that Named Persons have to agree to the role in writing. We suggest that Named Persons who have already been chosen by the patient will not have to agree in writing, but can continue being Named Persons.

Question 5 - Do you agree with this? Please tell us if you have any different suggestions.

The new law says the Tribunal cannot choose a Named Person for a service user over the age of 16, but it can remove a Named Person who is not appropriate.

This could mean that a patient chose a Named Person who is later removed by the Tribunal, after the patient can no longer have their say.

We think it is better for the service user to no longer have a Named Person than to have one they didn't choose for themselves.

Question 6 - Do you agree with this? Please tell us if you have any different suggestions.

We think that the new law should say that the 'listed person' would not be able to appeal to the Tribunal to look at the patient's case until the named person steps down. As we described above, this would be when it is time for the patient's case to be looked at again.

This would only happen if the patient is not able to make an appeal or application on their own.

Question 7 - Do you agree with this? Please tell us if you have any different suggestions.

The law says that a guardian or welfare attorney should be given information about new certificates or orders to do with the patient. We suggest that this should include orders already in place, so that this right comes in to force in all cases at the same time.

Question 8 - Do you agree with this? Please tell us if you have any different suggestions.

Supporting service users to choose the right representation

It will be important that service users, their carers and others are given information that helps them choose whether it would be better for them to have a named person, a listed person or neither.

We think the best way to do this is through clear guidance for staff, saying when to discuss this with the service user and what information should be given. There will also be new information leaflets for service users and carers.

Question 9 - What do you think is the most important information to give?

Question 10 – What's the best way to give information to service users not already in touch with specialist services, and should any one agency or profession be in charge of this?

Question 11 - Is there any guidance or support needed for staff beyond the Code of Practice and service user guidance?

The law has a list of people who can witness the nomination or removal of a named person. These are called 'prescribed persons'. We think the list in the new law should stay the same. The people on the list are:

  • clinical psychologists
  • medical practitioners
  • occupational therapists
  • care service workers
  • registered nurses
  • social workers
  • solicitors

Question 12 - Do you agree that the list should stay the same? Please tell us if you have any different suggestions.

Contact

Email: Mental Health Law Team

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