Mental Health (Care and Treatment) (Scotland) Act 2003: FOI Release

Information requested

You asked for a breakdown of figures since the Mental Health (Care and Treatment) (Scotland) Act 2003 (‘2003 Act’) came into force on the following; 

• The number of patients who have had their named persons and witnesses revoked under the 2003 Act. 
• How many of those patients went on to be made subject to compulsory measures under the 2003 Act which resulted in the loss of all/part of their home to pay for care, how many owned their own homes. How many were council tenants/homeless. 
• How many elderly patients were subject to compulsory measures under the 2003 Act with no savings or home to sell. 

In addition you asked for the following; 

• Any documents you need for a named person nomination to include the witness statement, along with procedural advice to lodge forms. 
• Clarity on who can act as a witness for a nominated named person and criteria for deeming a witness unsuitable. 
• Whether you can ask a person who works in a care home for dementia patients to act as a witness.
• Legal responsibility when a person has mental illness. 
• Details regarding personal circumstances. 

 

Response

While our aim is to provide information whenever possible, in this instance the Scottish Government does not have some of the information you have requested. We are unable to inform you about the about the number of patients who have had their named persons and witnesses revoked under the 2003 Act. However, you may wish to contact the Mental Health Tribunal Service (MHTS) who may be able to help you with the first point. I provided the contact details for MHTS in my letter to you on 26 July 2023. The reasons why we do not have this information is explained in the Annex to this letter. 

Your next two points ask about payment for care whilst a person is detained, and how many elderly patients were subject to compulsory measures with no savings or homes to sell. In Scotland people can only be detained for compulsory care and treatment under the 2003 Act or the Criminal Procedure (Scotland) Act 1995 and they are not charged for services they receive under this legislation. 

Named Person/Witnessing a Nomination 

You asked for a named person form to include the witness statement. This can be found at this link; Mental Health law: forms - gov.scot (www.gov.scot) 

The information about a named person is usually kept with the patient’s medical records but other people, for example a Mental Health Officer should have a record of who the named person is. Anyone who is responsible for a person’s care and treatment will need to know if there is a named person. Further guidance can be found here; 2. Choosing a Named Person - Mental health law in Scotland: guide to named persons - gov.scot (www.gov.scot) 

Changes were made by the 2015 Act to introduce safeguards to remove the ‘default’ named person. An individual must now give their written and witnessed consent if they wish someone to be their named person. The most recent guidance for who can act as a witness was published in 2019 and can be found in the above link at section 7. This confirms that people employed in the provision of a care service can act as a witness. 

Please note that the role of the witness is to certify that the patient can make a valid statement, not to scrutinise, veto or endorse the nomination. 

Criteria for detention 

With regards to your query in relation to legal responsibility when a person becomes unwell it may be helpful to note that most people who use mental health services receive treatment without being subject to an order or certificate under the Mental Health (Care and Treatment) (Scotland) Act 2003. For some individuals however, compulsory treatment is used to provide the person with medical treatment to alleviate suffering and for the protection of both the person and others. Compulsory treatment is only allowed under mental health legislation in Scotland in very strict circumstances. A person can only be made subject to compulsory measures or treatment under the 2003 Act if certain conditions are met: 

• the person has a mental disorder; 
• the person has significantly impaired decision-making ability with respect to medical treatment for mental disorder, as a result of their mental disorder; 
• detention in hospital is necessary to determine what medical treatment is required and to provide that treatment; and, 
• there is a significant risk to the health, safety and welfare of the person, or to the safety of others, if the patient is not detained. 

It is for a medical practitioner to assess whether or not these criteria are met. If they are not met, a medical practitioner cannot lawfully detain and treat an individual under mental health legislation. This is to ensure the protection of patients’ rights and freedom and to ensure no one is detained when this is not absolutely necessary. 

Once a detention order lapses, patients can still be admitted on a voluntary basis or, if circumstances change, they can be readmitted on a compulsory basis if they meet the legislative criteria again. 

Additional note 

In relation to your final points regarding personal circumstances, it would not be appropriate for the Scottish Government to comment on individual cases. 

If you have any concerns that an adult may be at risk the Adult Support and Protection (Scotland) Act 2007 (‘ASP Act’) is intended to protect those adults who are unable to safeguard their own interests, who are at risk of harm and because they are affected by disability, mental disorder, illness, physical or mental infirmity, are more vulnerable to harm than those who are not so affected. An individual can be subject to the 2003 Act in tandem with the ASP Act. An ASP referral can be made to the Local Authority where the adult at risk resides. Contact information for where to make such a referral can be found on the Act Against Harm website: Home - Act Against Harm. 

Scottish Mental Health Law Review 

An independent review of mental health law in Scotland, chaired by Lord Scott, published a report last year setting out a large number of recommendations for changes to the law in this area. You can find out more about this here, Scottish mental health law review: our response - gov.scot (www.gov.scot), 

The Scottish Government is setting up a Mental Health and Capacity Reform Programme to address recommendations made by the Review. The Review made a number of recommendations regarding the operation of the named person provisions under the legislation, and we will be looking at possible changes to the way named person provisions work as a priority. 

ANNEX 

REASONS FOR NOT PROVIDING INFORMATION

The Scottish Government does not have the information

The Scottish Government does not have the information you have asked for regarding the number of patients who have had their named persons revoked, because the Scottish Government is not responsible for holding data regarding decisions taken by the Mental Health Tribunal for Scotland. This Tribunal is part of the Scottish Courts and Tribunal Service which is a separate public authority.

This is a formal notice under section 17(1) of FOISA that the Scottish Government does not have the information you have requested. 

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at http://www.gov.scot/foi-responses.