Due to the coronavirus outbreak there have been difficulties arranging for a prescribed person to formally witness the named person ‘docket’, as required by s250(2A)(c) of the Mental Health (Care and Treatment)(Scotland) Act 2003. The “docket” must be completed in writing, and signed. If the docket is not witnessed then it affects the validity of the named person nomination.
The requirement for a witness is becoming problematic as there have been changes to work practices to reflect the impact of COVID-19 such as physical distancing.
The Coronavirus (S) (No.2) Act (“the Act”) temporarily removes the requirement for a nominated person to have their signature witnessed by a prescribed person when they agree to become a named person.
Scottish Ministers commenced this temporary provision on 27 May 2020.
What this means in practice
There are no changes to the process for the patient (nominator). The safeguards around the nomination process are unaffected and in particular, nominations continue to have to be made in writing. The patient will still require to have their signature witnessed by a prescribed person. The prescribed person in witnessing the signature will be certifying that they believe that the nominator understands the effect of their nomination and that the nominator has not been subject to any undue influence in making the nomination.
The proposed named person
The change only affects the process for the proposed named person (nominee). The nominee is still required to sign “the docket” when agreeing to take on the role as named person. However, as of 27 May 2020 there will no longer be a requirement for a prescribed person to act as a witness to the nominees’ signature.
Who a prescribed person is
The classes of prescribed person are set out in the Mental Health (Patient Representation) (Prescribed Persons) (Scotland) Regulations 2017 (S.S.I.2017/175). They include:
- independent advocates
- medical practitioners
- arts therapists, dieticians, occupational therapists, physiotherapists, practitioner psychologists and speech and language therapists
- people employed in the provision of, or managing the provision of, a care service
- registered nurses
- social workers
The temporary change will ensure that the patient safeguard to have a named person, should they choose to do so, remains effective during the coronavirus outbreak and will minimise any delays to the nomination process being completed effectively.
This temporary provision will expire on 30 September 2020, although the Scottish Parliament are able to approve that provisions can continue until 31 March 2021. They may then approve one further, final extension until 30 September 2021, at which point any remaining provisions in the Act will expire. However during the said periods whilst the Act is in force, Scottish Ministers can suspend and also subsequently revive provisions depending on the need for the provision.
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