Chapter 5: Local Authority Duties
This part of the Code of Practice addresses the principal duties which the Act places on local authorities. Other duties and powers may be found additionally elsewhere in the Act and local authorities and MHOs should make reference to those further sections as appropriate.
Local authority provisions
01 The Act places a number of duties on local authorities in relation to the provision of services for persons with mental disorder (including services for mentally disordered offenders) and on Mental Health Officers ( MHOs) appointed by those authorities.
02 Sections 1 and 2 of the Act set out the principles and other matters which those who are performing functions under the Act require to take into account in so far as they are relevant to the function they are discharging. For those purposes, making a decision not to act is still considered as discharging a function and any such decision must be made taking the matters set out in sections 1 and 2 into account. Section 3 places a duty on persons exercising a function under the Act to discharge that function in a manner which encourages equal opportunities and the observance of the equal opportunities requirements. (For further information, see Chapter 1 of this Volume of the Code of Practice.)
Children and Young People
03 The Act makes specific provision in relation to patients under 18 years of age ("young patients"). Subsection 2(4) requires an authority in discharging functions in relation to young patients to do so in a manner that best secures their welfare.
04 Section 277 amends the Education (Scotland) Act 1980 to provide that education authorities have a duty to make arrangements for the education of pupils unable to attend school because they are subject to measures authorised by the Act or, in consequence of their mental disorder, by the Criminal Procedure (Scotland) Act 1995.
Care and support services and services designed to promote well-being and social development - sections 25 to 28
05 Under section 25 of the Act, a local authority have a duty to provide, or secure provision of, care and support services for persons who have or who have had a mental disorder and are not in hospital. They may also provide, or secure provision of, such services to patients who have or have had a mental disorder and who are in hospital. Care and support services include residential accommodation and personal care and personal support, but not nursing care.
06 For these purposes "personal care" means care which relates to the day-to-day physical tasks and needs of the person (such as eating and washing) and to mental processes related to those tasks and needs (such as remembering to eat and wash). "Personal support" means counselling, or other help, provided as part of a planned programme.
07 There are a number of ways in which people in need of services may come to be identified either by care management services, children and family services, criminal justice social work services, or by MHOs in their role of considering people for compulsory measures under the Act (and possibly finding that these are not required). Section 25 states that the care and support services provided shall be designed to:-
minimise the effect of the mental disorder on such persons; and
give such persons the opportunity to lead lives which are as normal as possible.
08 Section 26 of the Act imposes a duty on a local authority to provide, or secure the provision of, services to promote the well-being and social development of persons who have or who have had a mental disorder who are not in hospital. A local authority may also provide or secure the provision of such services for those patients in hospital.
09 These services include:-
the provision of social, cultural and recreational activities; and
training and assistance in obtaining and undertaking employment for such of those persons as are over school age.
10 Social activities aimed at advancing the well-being of people with mental disorder might include services such as day care, recreational opportunities, drop-in centres and support services. Cultural enhancement may be achieved both through services that reflect and support minority cultures and services that support and reflect the particular culture of an area.
11 Section 27 of the Act places a duty on a local authority to provide facilities for, or assistance with, travel for persons with mental disorder who are not in hospital as that authority may consider necessary to allow such persons to attend and participate in the services provided under sections 25 and 26 outlined above. Local authorities may similarly provide assistance for persons in hospital who have or have had a mental disorder. It would be best practice not to use a distinctive form of transport which may stigmatise the user.
12 Section 28 of the Act amends section 87 of the Social Work (Scotland) Act 1968 and sections 2 and 22(1) of the Community Care and Health (Scotland) Act 2002 so that a local authority providing a service under sections 25 to 27 of the Act may recover such charge (if any) for it as they consider reasonable. However, if a patient satisfies the local authority that they cannot afford to pay the charge for the service, the authority must only charge what the patient can practically afford. Scottish Ministers also have the power by regulations to exclude services from the charging regime.
13 The duties to provide services in sections 25 to 28 relate to all people, including children and young people, who have or who have had a mental disorder, not just those subject to (or who have been subject to) compulsory measures.
Co-operation with Health Boards and others; assistance from Health Boards and others - sections 30 and 31
14 Section 30 of the Act requires local authorities, in providing services to persons under sections 25 to 27 to co-operate with any Health Boards, Special Health Boards or voluntary organisations that appear to the local authority to have an interest in the provision of services by the local authority or a power or duty to provide or secure the provision of services for the person. Under section 31, the local authority can request assistance from a Health Board or Special Health Board and these bodies must comply with the request so long as complying with the request:-
is compatible with the discharge of its own functions; and
would not prejudice unduly the discharge of those functions.
Appointment of mental health officers - section 32
15 Section 32(1) of the Act requires a local authority to appoint a sufficient number of persons to discharge in their area the functions of Mental Health Officers ( MHOs) under the Act, the Criminal Procedure (Scotland) Act 1995 and the Adults with Incapacity (Scotland) Act 2000.
16 Section 32(2)(b) of the Act provides that a local authority may only appoint under section 32(1) persons who satisfy such requirements as the Scottish Ministers may direct as to registration, education and training, experience, competence as respects persons who have or have had a mental disorder and any other matters that may be specified in the direction.
17 In May 2005 Scottish Ministers made a direction under section 32(2) specifying the requirements and to the matters mentioned in section 32(2)(b) of the Act which must be satisfied by a person seeking appointment as an MHO. These are:-
registration as a qualified social worker;
a minimum of 2 years post-qualifying experience; and
having completed a specified amount of specialised training.
18 Social workers seeking appointment as MHOs must therefore undergo an approved MHO training course in addition to having the necessary registration and qualifying experience before they can be appointed as an MHO by a local authority.
19 An MHO must be an officer of a local authority at the time of appointment as an MHO and must continue to be an officer of a local authority for the duration of the appointment. The Act does not prevent an authority appointing MHOs who are in the employment of another local authority, but that appointing authority will then be responsible for the training, etc, of any MHO appointed by them.
20 Section 32(3) makes provision that MHOs in post on the day prior to the coming into force of section 32 of the Act (on 5 October 2005) are deemed to have been appointed under section 32(1) of the Act. Section 32(4) and (5) makes provision in relation to the training of MHOs and the termination of appointment as an MHO and applies to persons appointed in this way as to new MHOs appointed on or after 5 October 2005. (For further information on the designation of MHOs, see Chapter 9 of this Volume of the Code of Practice.)
Duty to inquire, and warrants - sections 33 to 35
21 Section 33 of the Act places a duty on a local authority to cause inquiries to be made into deficiencies in care, treatment or support for people with a mental disorder living in the community. Section 34 applies where the local authority considers that assistance from specified persons is necessary or would assist in their inquiries under section 33, and allows the authority to request that assistance from those specified in the section. Section 35 makes further provision in relation to inquiries under section 33. It allows for a warrant to be sought by a relevant MHO 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. (For further information, see Chapter 15 of this Volume of the Code of Practice.)
Assessment of needs for community care services - section 227
22 Section 227 of the Act deals with the situation where an MHO notifies the local authority that a patient in respect of whom the authority are under a duty or have a power to provide or secure the provision of community care services may be in need of such services. In those circumstances, the local authority must carry out an assessment of needs under section 12A of the Social Work (Scotland) Act 1968. Section 227 also amends section 23 of the Children (Scotland) Act 1995 to provide that where an MHO has responsibility for a child's case under the Children (Scotland) Act 1995 and the MHO makes a request, the local authority shall carry out an assessment to determine the needs of the child or of any other person in the child's family, so far as is attributable to the mental disorder. (For further information, see Chapter 7 of this Volume of the Code of Practice.)
Assessment of needs for community care services etc. - section 228
23 Where a written request for an assessment of the needs of a person with a mental disorder has been received by a local authority or Health Board, provided the circumstances referred to in section 228(2) are met, the local authority or Health Board is under a duty to respond to the request within 14 days, indicating whether or not they intend to carry out the assessment and, if not, why not. (For further information, see Chapter 7 of this Volume of the Code of Practice.)
Designated MHOs - section 229
24 Section 229 places a duty on a local authority, as soon as reasonably practicable after the occurrence of a relevant event in respect of a patient, to ensure that an MHO is designated as the MHO having responsibility for the patient's case. "Relevant event" is defined in section 232 and includes the granting of a short-term detention certificate and the making of a compulsory treatment order and other orders. (For further information, see Chapter 9 of this Volume of the Code of Practice.)
Independent advocacy - section 259
25 Under section 259 Health Boards and local authorities have a duty to collaborate with each other to secure the availability of independent advocacy services and to make sure that mentally disordered persons have the opportunity to make use of the services. (For further information, see Chapter 6 of this Volume of the Code of Practice.)
Parental relations - section 278
26 Section 278 requires any authority exercising functions under the Act to take all reasonable steps to reduce any adverse effect on the relationship between a child and a person having parental responsibilities in the event of either the child or such person being made subject to measures authorised by the Act or, in consequence of their mental disorder, by the 1995 Act.
Collation of data - section 279
27 Section 279 places a duty on local authorities, on being required to do so by the Scottish Ministers, to provide them for research purposes with specified information in relation to the operation of the Act. The section contains safeguards to protect the identity of patients by specifying that if information from which a patient might be identified can be provided in an anonymous form then it should be so provided.
28 Information need not be provided where:-
if, were it evidence which might be given in proceedings in any court in Scotland, the person having the evidence could not be compelled to give it in such proceedings; or
the person required to provide the information is under a duty of confidentiality in respect of that information and they cannot provide the information requested without breaching that duty, unless the person to whom the duty is owed has given their consent to it being provided.
The Act contains a number of other sections with implications for local authorities:
Section 29 states that the duties of a local authority under sections 25 to 27 are without prejudice to the duties imposed on them by sections 12(1) (provision of advice, guidance and assistance on an appropriate scale), 13A (provision of residential accommodation with nursing), 13B (provision of care and after-care) and 14 (provision of domiciliary and laundry services) of the Social Work (Scotland) Act 1968 and by section 22(1) (duty to provide services for children in need) of the Children (Scotland) Act 1995.
Section 252 states that where a child is in the care of a local authority by virtue of a care order made under section 31 of the Children Act 1989, the local authority shall be the child's "named person". Section 252 also provides that where two or more persons have parental rights and responsibilities in relation to a child and one of those persons is a local authority by virtue of an order under section 86(1) of the Children (Scotland) Act 1995, the local authority is also to be the child's "named person".
Section 274 states that local authorities must have regard to the Code of Practice in discharging their functions under the Act.
Section 292 provides that an authorised person may be granted a warrant by a sheriff or justice of the peace to enter premises, where they are unable to obtain access, or reasonably expect that they will not obtain access. An "authorised person" is a person already authorised under the Act to take the patient to any place, or to take (or retake) the person into custody, and may include an MHO. (For further information on duty to inquire, warrants and associated powers, see Chapter 15 of this Volume of the Code of Practice.)
Section 293 makes provision for the application to the sheriff by an MHO for a removal order to authorise the removal of a person from premises to a place of safety. Section 294 allows such an application to be made in urgent circumstances to a justice of the peace. (For further information, see Chapter 15 of this Volume of the Code of Practice.)
Section 300 specifies what constitutes a "place of safety". (For further information on the provision of places of safety, see Chapter 15 of this Volume of the Code of Practice.)
Sections 311, 313, 315 and 316 create offences in relation to non-consensual sexual acts; sexual offences; ill-treatment and wilful neglect; and inducing and assisting absconding in respect of persons providing care services, care and treatment, or employed by, providing services to or managing a hospital. (See Chapter 16 in this Volume.)
Section 317 creates offences of obstructing in relation to persons carrying out functions under the Act, for example refusing access to premises to a person authorised by a warrant under sections 35 or 292 of the Act, or refusing to allow a person authorised under the Act to interview or examine a patient. (See Chapter 16 in this Volume.)
Section 318 provides for offences relating to the deliberate making of or using false statements in any application or relevant document required, authorised, granted, prepared, sent or given for the purposes of the Act. (See Chapter 16 in this Volume.)