Publication - Advice and guidance

Mental Health (care and treatment) (Scotland) Act 2003: Code of Practice Volume 1

Published: 21 Sep 2005
Part of:
Health and social care
ISBN:
0755945689

Volume 1 of the Code of Practice for the Mental Health (Care andTreatment) (Scotland) Act 2003 deals with a range of issues relating tothe general framework within which the Act operates.

Mental Health (care and treatment) (Scotland) Act 2003: Code of Practice Volume 1
Page 7
Chapter 6: P atient Representation(Part 17, Chapters 1 and 2)

Introduction

This chapter describes three important issues relating to patient representation: named persons, advance statements and independent advocacy.

The chapter begins with a discussion of the right to nominate a named person in accordance with the provisions of Part 17 Chapter 1 of the Act. A named person is entitled to receive certain information about the patient who has nominated them and can act for them in certain circumstances, such as where the Tribunal is determining an application for a compulsory treatment order.

The chapter then turns to the subject of advance statements which can be made in accordance with the provisions of sections 275 to 276 of the Act.

Finally the Chapter describes the patient's right to access independent advocacy as set out in Part 17 Chapter 2 of the Act and includes best practice guidance for mental health officers, hospital managers and general practitioners.

The term "patient" has been used throughout this chapter to refer to the person nominating a named person or making an advance statement. It is acknowledged that a person who has no history of mental disorder may wish to implement one or both of these provisions, and that in this case "patient" as defined by the Act as 'a person who has or appears to have a mental disorder' would ordinarily be inappropriate. However, to avoid confusion and to ensure consistency, "patient" is used throughout.

Named Person

What is a named person?

01 In addition to their own rights to have their views heard, and to support and assistance, a patient's spouse or partner, relatives and carers may have an important role in mental health legislation in protecting the interests of a patient subject to compulsory measures, if they are appointed as a patient's named person under the Act.

02 The Act creates a new role - the "named person" - who has particular powers and rights in relation to patients who become subject to compulsory powers, whether under the 1995 Act or the 2003 Act.

03 Broadly speaking, the named person has similar rights to the patient to apply to the Tribunal, to appear and be represented at Tribunal hearings (for example, concerning compulsory treatment orders, appeals against short term detention, review of compulsion orders etc.), and to appeal. The named person is also entitled to be given information concerning many compulsory measures which have been taken or are being sought, where this is provided for in the Act.

04 Although generally the role of the named person is to represent and safeguard the interests of the patient, the named person does not take the place of the patient in the way that, for example, a welfare guardian appointed under the Adults with Incapacity (Scotland) Act 2000 may be able to do so (depending on their powers). The named person and the patient are entitled to act independently of each other. For example, a named person can apply to the Tribunal for a review of the patient's compulsory treatment order with or without the patient's approval. Similarly, the named person is not the same as, nor does he or she replace, an independent advocate. The named person has the right to put his or her own view forward, even when the patient has a different view.

05 The principles of the Act require any person exercising functions under the Act (other than the patient and the parties referred to at section 1(7)(b) to (h) who might represent the patient) to take account of the views of the named person when making a decision or considering a course of action, where it is reasonable and practicable to do so. What is reasonable and practicable will depend on the individual circumstances of the case.

06 It is anticipated that where a patient with mental disorder comes under the 1995 Act or the 2003 Act, he or she will benefit from having a named person who will be kept informed of their status and can undertake certain functions for the patient. An exception is where the patient becomes subject to emergency detention. Their nearest relative must be informed and, if the nearest relative does not reside with the patient, any person who resides with them must also be informed. The patient's named person must also be informed but only where the identity of the named person is known.

07 An MHO has a duty under sections 45 and 61 of the Act respectively to interview a patient when short-term detention or an application for a compulsory treatment order is being considered, unless it is impracticable to do so. Section 45(1)(b) of the Act states that the MHO must, where practicable, ascertain the name and address of the patient's named person before deciding whether to consent to the granting of a short-term detention certificate. Identifying the patient's named person may necessitate discussion with the medical practitioner who is considering granting the detention certificate and/or other relevant professionals as to whether the patient already has a named person, or where this is not the case, whether the patient has the capacity to nominate a named person. Section 61(2)(c)(i) of the Act states that the MHO must inform the patient of their rights in relation to the application for a compulsory treatment order. It would be best practice for the MHO, when undertaking either of these duties, to provide the patient with such information on the role of the named person as suits the patient's needs. It would be best practice for the MHO to discuss with the patient the process and effect of nominating and revoking a named person under section 250 of the Act as well as the process and effect of making and revoking a declaration stating who shall not be the named person under section 253 of the Act. The MHO might do this by explaining these issues to the patient orally and with a follow-up leaflet.

08 It would also be best practice for the MHO to explain to the patient what will happen if they do not nominate a named person. The MHO will consequently also need to explain the difference between the roles of the named person and the independent advocate. An independent advocate would enable a patient to have his or her voice heard and views taken into account, provide support and information to allow the patient to make informed choices, and assist the patient to put these views forward.

Who can be a named person?

09 The named person, if an individual, must have attained at least 16 years of age. While the Act does not prevent it, it is expected that the named person will not be someone with a professional relationship with the patient, such as a doctor/patient relationship, or anyone who works to deliver care or treatment to the patient, as it could create a conflict of interest. However, a person working in a related role but not responsible for the patient's care or treatment, for example a residential housing worker might be approached to act as named person and may feel reluctant to decline where the patient has made declarations stating that their carer and nearest relative shall not be their named person. A person working in such circumstances may feel that he or she has a duty of care and may wish to accept the named person role, to ensure the patient has a named person, but may also feel that a conflict of interest arises. For example, if an application for a community-based CTO were to be made specifying the service as part of the care plan, then the support worker acting as named person could feel that a conflict of interest had arisen between their work role and their role as named person. It may be that the patient would benefit from the assistance of an independent advocate, and this should be explored before agreeing to act as named person where a perceived conflict of interest may arise. It would be best practice for anyone working in a support role who wishes to undertake the named person role in circumstances like these to discuss the nomination with the patient's MHO with a view to identifying and preventing any potential difficulties. It would be best practice for a person in circumstances such as these to seek guidance and support from their employer before agreeing to act in the named person role.

When a named person should be given information

10 Once someone has been nominated, or becomes the named person under the provisions of the Act, it would be best practice for the MHO to ensure that they are provided with information about the role in a form which is helpful to them. This is likely to be presented both orally and in written form. This information should include an explanation by the MHO that the named person may decline to act by informing the patient and the local authority for the area in which the patient lives.

11 On all occasions where a named person is being nominated, the MHO should consider the impact on the nearest relative/primary carer where they are not nominated as the named person. This could be achieved by explaining to them the role of the named person and the rights of any relatives or carers who are not nominated as the patient's named person.

The named person's role and powers

12 The Act confers on the named person certain powers and rights which will come into effect usually when the patient becomes subject to a short term detention order, a compulsory treatment order or a compulsion order under the Act. The named person also has rights under the Act to receive information where a patient has been made subject to an emergency detention certificate or detained by way of the nurse's holding power at section 299. In addition, section 1(3) provides that a person who is discharging functions under the Act should take into account the views of the named person where this is relevant to the discharge of those functions.

13 The MHO should make sure that the named person is fully aware that they have been nominated as named person or that they fall to be the named person under the primary carer or nearest relative provisions (where the patient has not nominated a named person). It would also be best practice for the MHO to ensure that the named person's identity is made known to all those who have functions under the Act which include a duty to notify the named person of certain events.

14 An MHO will need to be very familiar with the procedures regarding the nomination process of the named person. The MHO should explain to the patient that in the absence of their nominating a named person, their primary carer shall become their named person. If the patient has no primary carer or the carer declines to act, the patient's nearest relative will be the named person.

15 The MHO is required under the principles of the Act to take into account the views of the named person, any carer, any guardian and any welfare attorney. However, when ascertaining the identity of the named person, the primary carer or the nearest relative, the MHO should be careful to respect the patient's rights with respect to confidentiality.

16 Under section 255 of the Act, the MHO has a power to apply to the Tribunal for an order under section 257 to appoint a named person where the MHO cannot identify the named person or has established that the patient has no named person. The MHO is under a duty to make an application to the Tribunal where a named person has been identified but, in the opinion of the MHO, that person is unsuitable to act as the patient's named person. The application will be for an order to remove and replace an "apparent named person" ( i.e. a person whom the MHO has deemed to be inappropriate to act in that role). A named person may be inappropriate to act for example if he/she bullies the patient or lacks capacity. A named person who is or has been a mental health services user is not to be automatically deemed inappropriate to act. The expectation is that the patient's right to choose whom they wish to have as a named person would be respected. The MHO has no power to veto the patient's choice at the time of nomination, nor should they apply undue influence on the patient. The MHO should intervene using the powers at section 255 only where there are clear and significant reasons for doing so.

Nomination of named person

17 Section 250 of the Act sets out the process for nominating a named person. A patient aged 16 or over may choose an individual to be their named person. The nomination may be made whether or not the patient is, at the time, the subject of compulsory measures under the 1995 Act or the 2003 Act. The patient must have the capacity to understand the decision they are making and its effects, and have not been subject to any undue influence. It may be that the patient is content for their carer or nearest relative, as the case may be, to act as their named person. Where this is the case, no nomination is required, and the patient should not be put under any undue influence to nominate someone else.

18 To be valid, a nomination must be signed by the patient making it and witnessed by a prescribed person. It would be advisable for the patient to check whether their desired named person is willing to act in that role, prior to making the nomination. The prescribed person must witness the patient's signature of the nomination and must certify that the patient making the nomination understands its effect and has not been subject to any undue influence. The Act does not define undue influence. However, helping a patient to understand the choices they have in relation to nominating their named person would be likely to be reasonable, whereas persuading a patient to nominate a particular person is unlikely to be so. A nomination remains valid if the patient who made it subsequently becomes incapable. Under section 250(4) of the Act, a nomination may be revoked by the patient who made it provided that the revocation is signed, and witnessed by a prescribed person who certifies that the patient revoking the nomination understands its effect and has not been subject to any undue influence. Where the prescribed person cannot certify that the patient understands the effect of their nomination or revocation, and/or has not been subject to any undue influence, the prescribed person may decline to act as witness. It would be best practice then for the witness, if the patient so requests, to assist the patient to identify another prescribed person to act as witness.

19 A person nominated may refuse to act as the named person at any time. Section 250(6) states that the person declining to act must notify their refusal to the patient who made the nomination and to the local authority for the area where the nominator lives.

20 It will be important that the patient's named person is identified, wherever practical, in a patient's case notes and on correspondence between general practitioners and hospital managers. Such case notes could include the patient's primary care notes held by his or her general practitioner, by secondary care services such as a community mental health team, or by hospital managers. The named person should be made aware of this and of the purpose of this record by the healthcare professional who includes the information into the patient's case notes. Where a named person is not identified in the case notes, and other care colleagues have indicated that they have no such record, the MHO should be contacted to ascertain whether they know who the patient's named person is or whether any further action to identify the named person is necessary.

21 Where the patient is a child under 16, the child cannot nominate a named person. The Act makes provision at section 252 for the person with parental responsibilities in relation to the child, or the local authority where the child is looked after by the authority, to be the named person. Where parental responsibility is shared, the relevant parties may decide between themselves who will act as the named person. In any other case the child's primary carer (who must be 16 years or over) shall be the named person.

22 It is important that the information in the nomination is clear and reflects the patient's wishes, whatever language or form of communication is used. It would be best practice for any person discharging functions under the Act to offer assistance in contacting the relevant service where the patient appears to require interpretation and translation assistance.

Witnessing a nomination

23 The nomination by any patient of their named person must be witnessed by a prescribed person. The prescribed person must be able to assess and declare that in their opinion the patient making the nomination understands the effect of nominating a named person and has not been subjected to any undue influence in making the nomination. This is important to ensure the nomination is recognised as valid.

24 Regulations made under section 250 and 253 of the Act (The Mental Health (Patient Representation) (Prescribed Persons) (Scotland) (No.2) Regulations 2004 ( SSI No. 430)) provide that any of the following persons may act as a witness:

  • a clinical psychologist entered on the British Psychological Society's register of chartered psychologists;

  • a medical practitioner;

  • an occupational therapist registered with the Health Professions Council;

  • a person employed in the provision of (or in managing the provision of) a care service;

  • a registered nurse;

  • a social worker; and

  • a solicitor.

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

The named person may decline to act

26 A person nominated to act as named person can decline to act at any time. If they consider that there might be a conflict of interest in continuing in this role then the person should give serious consideration to declining to act as the named person. For example, if the independent advocate has been nominated as named person (without consultation), the independent advocate should decline to act, as there are differences between the two roles which could cause confusion were the same person to fulfil both roles.

27 A person may decline to act as named person by giving notice in writing to the patient who nominated them and to the local authority for the area in which the patient who nominated them resides.

28 It would be best practice for any professional who is informed that the patient's named person is no longer acting in that role, to ensure that the patient's MHO (or if the patient does not have a designated MHO, the local authority for the area in which the patient lives) is notified of this, to enable an MHO to ensure action is taken to identify another named person.

Revocation

29 The patient may revoke a nomination at any time. Any revocation must be signed by the patient and witnessed. The witness, as with the nomination process, must certify that in their opinion the patient understands the effect of the revocation and that they have not been subject to any undue influence. Where an MHO is made aware that the patient has revoked their named person nomination, they should discuss with the patient whether they wish to appoint another named person. Where they do not, the MHO should explain the Act's provisions whereby the primary carer, or, if there is none, or they decline to act, the nearest relative, would now become the named person.

Named person where no person is nominated or the nominated person declines to act

30 Where no named person is nominated under section 250, or the nominated person declines to act, section 251 determines who will be the named person (for a patient who is aged 16 or over). A person who is a named person by virtue of any of these rules may decline to act by giving notice, in accordance with the provisions of the Act, to the patient and to the local authority for the area in which the patient resides. Where a named person declines to act, the patient may nominate a new named person.

31 Where the named person declines to act and no new named person has been nominated, or no named person is nominated, the primary carer is the named person unless that carer is aged under 16 years. Where the primary carer is under 16, but the patient has one carer who is 16 or over, that carer is the named person. Where the primary carer is under 16, but the patient has 2 or more carers of at least that age, those carers may agree which of them is to be the named person.

32 Where a patient does not have a named person by virtue of any of the preceding rules (or if that person declines) the nearest relative, as defined by the list provided in section 254, is the named person.

33 Where a person has become the named person through the provisions of sections 251 or 254, it would be best practice for the MHO to ensure that the named person is aware of the role placed on them and the rights and responsibilities which it brings. It would be best practice for the MHO to ensure that the named person is made aware of their right to decline to act as named person and the process and effect of doing so.

34 It would also be best practice for the MHO to ensure that the named person's identity is made known to all those who have a direct interest and at least to the patient's RMO, carer, independent advocate and legal representative, if they have one. In addition, the MHO should ensure that the patient for whom the named person has been identified in this way is aware of the named person's identity and consequent role and powers, and what action they can take if they are not content with the person acting as their named person. For example, the patient could make a declaration stating that their carer or nearest relative, as may be the case, shall not be their named person.

35 Where the carer and the nearest relative have both declined to act (or the patient has made a declaration stating that they shall not be the named person) then the patient does not have a named person.

Declaration in relation to named person

36 As well as the right to nominate a named person, a patient who is aged 16 or over also has the right under section 253 of the Act to specify someone whom he or she would not wish to be the named person. This right is to be exercised by making a declaration in a similar manner to nominating a named person. The declaration must be signed by the patient and witnessed by a prescribed person. The prescribed person must certify that, in their opinion, the patient understands the effect of making the declaration and that they have not been subject to any undue influence. Such a declaration remains valid even if the patient making it becomes incapable. It may be revoked by the patient at any time. Any revocation must also be signed by the patient and witnessed by a prescribed person. The prescribed person must certify that, in their opinion, the patient understands the effect of revoking the declaration and that they have not been subject to any undue influence.

37 Where an MHO is explaining to the patient the process and effect of making a declaration, it would be best practice to make the patient aware that the making of a declaration under this section does not prevent the Tribunal from appointing the person mentioned in it as the named person, where an application is made under sections 255 or 256 for an order under section 257.

Identifying a named person

38 Section 255 places a duty on a mental health officer, in certain circumstances, to take steps to find out whether a patient has a named person and if so, who it is. The circumstances are where the officer is discharging a function under the 2003 Act, or the 1995 Act, in relation to the patient and it is necessary for that purpose to establish whether the patient has a named person.

39 If the MHO is unsuccessful in identifying a named person they are required under section 255(4) of the Act to record the steps taken to identify the named person. The MHO is then required to give a copy of the record to the Tribunal and the Commission as soon as is practicable. The MHO may also apply to the Tribunal for an order under section 257 appointing a specified person to be the named person.

40 On the other hand, in the process of discharging any function under the Act, the MHO may identify the named person but consider that that person is inappropriate to act as the named person. In that situation, the MHO is under a duty to apply to the Tribunal under section 255 for an order under section 257 declaring that the person is not the named person and appointing someone else.

41 In this respect, the MHO is under a duty to assess the appropriateness of the named person for that role. The expectation is that the patient's right to choose whom they wish to have as a named person would be respected. Proposals to override those wishes should only be made where there are clear and significant reasons for doing so.

Named person: application by patient etc to the Tribunal

42 In addition to the duties imposed on an MHO by section 255, certain other persons listed in the Act have a power to apply to the Tribunal for an order. This applies where the patient has no named person; the apparent named person appears to the applicant to be inappropriate to act in that role; or such other circumstances as may be prescribed in regulations made by the Scottish Ministers.

The Tribunal's powers in relation to the named person

43 The Tribunal has powers under section 257 to make certain orders about named persons, where an application under section 255 or section 256 has been made. Where a patient has no named person, the Tribunal has a power to make an order appointing a specified person to be the patient's named person. The Tribunal also has the power to make an order declaring that the acting named person is not the named person or specifying someone else to be the named person in that person's place. The Tribunal may make such order as it thinks fit. However, it cannot appoint a child under 16 to be a patient's named person.

Advance Statements

What is an advance statement?

44 Sections 275 and 276 of the Act enable a patient to make an advance statement. This is a written statement setting out how they would wish to be treated, or wish not to be treated, for mental disorder should their ability to make decisions about treatment for their mental disorder become significantly impaired as a result of their mental disorder. The duty to have regard to an advance statement is one aspect of the duty on doctors and other persons discharging functions under the Act as set out in section 1. These functions include having regard to the past and present wishes and feelings of the patient which are relevant to the discharge of the function. The advance statement is not the only means of ascertaining the patient's past and present wishes and feelings, and other relevant sources of information should be taken into account when decisions are being made about care and treatment (whether an advance statement exists or not).

The making and withdrawal of an advance statement

45 Section 275 of the Act sets out how a patient may make or withdraw an advance statement. In terms of section 275(2), an advance statement requires to be in writing, subscribed (that is, signed) by the patient making it and such subscription must be witnessed by a prescribed person. Furthermore, the patient making the advance statement must, at the time of making the statement, have the capacity to properly intend the wishes specified in it. The witness must certify in writing on the advance statement that in their opinion the patient making the statement has such capacity.

46 An advance statement may be withdrawn by the patient who made it. A withdrawal of an advance statement must comply with section 275(3) of the Act. Firstly, at the time of making the withdrawal, the patient must have the capacity to properly intend the withdrawal. Secondly, the withdrawal must comply with all the requirements set out in section 275(2), namely it must be in writing, subscribed (signed) by the patient making it and witnessed by a prescribed person. The witness must certify in writing that the patient has the necessary capacity to intend withdrawing the advance statement.

47 Where a patient indicates that they wish to withdraw an advance statement, it would be best practice to halt decision-making about care and treatment until the patient has either withdrawn the advance statement (and possibly made another), or indicated that they are content to continue with their current statement.

The effect of an advance statement

48 Section 276(3) of the Act provides that where any person is giving medical treatment authorised by this Act or the 1995 Act, that person is to have regard to any advance statement which complies with the Act, made by the patient and not withdrawn. They must do this where they are satisfied that the patient's current decision-making ability is significantly impaired by reason of their mental disorder. There is an additional responsibility for any designated medical practitioner making decisions under section 276(4) to have regard to the wishes expressed in an advance statement.

49 In terms of section 276(1) of the Act, in making a decision in respect of a patient who has made and not withdrawn an advance statement, and where the Tribunal is satisfied as regards certain matters, the Tribunal must have regard to the wishes specified in the statement. The matters which the Tribunal requires to be satisfied about are that the advance statement complies with the requirements of the Act and that, because of their mental disorder, the ability of the patient who made the advance statement is significantly impaired.

50 Any person discharging functions under the Act (which will include those persons giving medical treatment authorised by the Act) shall have regard to the past and present wishes specified by the patient. Moreover, a responsible medical officer must, in terms of section 242(5)(a)(iv) of the Act, have regard to an advance statement, where one has been made and not withdrawn. To fulfil both these requirements, it would be best practice for the person giving medical treatment to undertake the following checks to ascertain whether the patient has made and not withdrawn an advance statement, in order to view a copy of that statement.

Locating an advance statement

51 The person giving medical treatment should ask the patient if they have an advance statement, ask where it is stored, and explain that they wish to see it before making their decision regarding medical treatment. If the patient cannot or does not provide the person giving medical treatment with the advance statement or the name of any person holding a copy of it (for example because the patient is too ill to understand the request), it would be best practice, where the patient is in hospital, to check the patient's hospital notes for a copy of the advance statement or for any reference to an advance statement.

52 Where a copy is stored in the patient's records, it would be best practice for the advance statement to be prominently labelled to ensure it can be located quickly.

53 Where the patient is not in hospital, the person giving medical treatment should contact the patient's general practitioner to ascertain whether they have a copy in the patient's medical records. If the general practitioner holds a copy of the advance statement, the person giving medical treatment should request a copy. The general practitioner should treat this request in the same manner as a request for any other of the patient's medical records.

54 When trying to locate a patient's advance statement it would be reasonable to ask the patient's named person and/or the carer if they know of the existence and location of any advance statement.

Making decisions or authorising treatment which conflicts with those wishes

55 Where any person discharging functions under the Act makes a decision or authorises treatment which conflicts with the wishes specified in the advance statement, the Act requires certain procedures to take place (see section 276(7) and (8)). The Tribunal, the person having functions under the Act, or the designated medical practitioner, as the case may be, who makes a treatment decision or authorises or gives treatment in conflict with the advance statement, must comply with requirements set out in section 276(8) of the Act. This includes a situation where treatments or decisions which might have been authorised, given or made are not, with the consequence that there is a conflict with the wishes expressed in the advance statement.

56 The requirements of section 276(8) of the Act are that those persons record in writing the circumstances in which the measures or treatment or decision were authorised, given or made or, not authorised, given or made. They must also record the reasons why the measures were taken or this treatment was given or decision was made. The Act also requires that a copy of this record is sent to:

  • the patient who has made the advance statement;

  • the patient's named person;

  • any guardian or welfare attorney of the patient; and

  • the Mental Welfare Commission.

57 A copy of this record must also be placed in the patient';s medical records.

58 A competently made advance statement would be a strong indication of a patient's wishes about medical treatment but should not be considered in isolation. An advance statement cannot bind a medical practitioner or member of the care team to do anything illegal or unethical, nor can it bind a medical practitioner or member of the care team to provide, arrange or withhold specific services, medicines or treatments. A decision to act in agreement or in conflict with an advance statement should not be made on the basis of the costs involved. Where care or treatments requested in an advance statement are not available, it would be best practice to record that the patient has an unmet need.

What is included in an advance statement?

59 An advance statement may contain details setting out how the patient would wish to be treated for mental disorder should they become mentally disordered and their capacity to make decisions regarding medical treatment become significantly impaired. In the statement, the patient may also refuse particular treatments or categories of treatment for mental disorder.

60 The advance statement might include a list of medical treatments which the patient has tried and have found to be beneficial, and a corresponding list of treatments they have found to be unhelpful. An advance statement might also contain information concerning early changes in symptoms, thinking and behaviour. This information might facilitate interventions aimed at preventing the need for treatment under compulsion. An advance statement cannot require that a service or medical treatment must be made available to the patient.

61 Only advance statements drawn up by patients in accordance with the provisions of the Act from 10 October 2004 (when the provisions in sections 275 and 276 dealing with advance statement were brought into force) will be considered as valid advance statements in accordance with the terms of the Act. It would be best practice to view any advance statement made before 10 October 2004 as an expression of the patient's wishes at the time of making the statement and to take it into account when considering the patient's past and present wishes and feelings about the treatment under consideration. In terms of section 1(3)(a) of the Act, persons exercising functions under the Act are required to have regard to the present and past wishes and feelings of the patient which are relevant to the discharge of such a function.

62 A pre-existing advance statement might be converted into an advance statement within the meaning of the Act by following the witnessing procedures now that the relevant provisions of the Act have been brought into force. It would be best practice for the medical practitioner or other relevant member of the multi-disciplinary team to advise the patient as to how they can 'validate' their pre-existing statement under the procedures set out in the Act.

63 It is important that the information in the advance statement is clear and reflects the patient's wishes, whatever language or form of communication is used. It would be best practice for any person discharging functions under the Act to offer assistance in contacting the relevant service where the patient appears to require interpretation and translation assistance.

Preparation of an advance statement

64 The preparation of an advance statement provides the patient drawing up the statement with an opportunity to discuss their care and treatment with their care team, their MHO and perhaps their named person, carer(s) and independent advocate. It provides those consulted with an opportunity to give information about the process and effect of an advance statement, which may empower the patient to participate in care and treatment decisions. Whether or not a written, formally witnessed advance statement is produced, it is considered that such a dialogue would be in line with the principles of the Act and should be encouraged, where relevant and appropriate, as an ongoing part of the patient's care and treatment.

65 An advance statement cannot require that a service or medical treatment must be made available to the patient. Where a medical practitioner is assisting the patient to produce a list of preferred treatments to be included in an advance statement, it would be best practice to ensure that the patient making the statement is aware that clinical practice in the future might mean some medicines may be unavailable or less appropriate and substitutions might need to be used. Where care or treatments requested in an advance statement are not available, it would be best practice to record that the patient has an unmet need. Best practice guidelines should also be followed with respect to informing a patient of the possible benefits, risks and side-effects of receiving, or rejecting, each treatment.

66 Where a medical practitioner is assisting the patient to produce a list of treatments they would, or would not, wish to receive in future, it would be best practice to ensure the patient understands the relevant safeguards provided in Part 16 of the Act for treatments for mental disorder. If the patient understands such safeguards, they will be better able to make an informed decision about which treatments they do or do not wish to have in the future.

67 It would be best practice for any person(s) assisting in the drafting of the advance statement to emphasise the importance of the patient being content that their advance statement reflects their wishes before having it witnessed. It would also be best practice to explain the process by which someone giving medical treatment under the Act must have regard for the advance statement under section 276(3); the process by which a health professional might act against the wishes of the advance statement; and the actions to be taken in such circumstances. The Act provides at section 276(8) a list of people who must be informed of such a decision to act against the wishes set out in the advance statement.

68 There will be no prescribed form for an advance statement, although it must accord with the requirements of the Act. However it is considered that it would be of use, and best practice, if the advance statement contained the name and address of the patient, the witness, and the patient's GP, and details of any named person, carer, guardian and welfare attorney.

Witnessing an advance statement

69 To be valid, the Act requires that an advance statement must be signed by the patient and witnessed by a prescribed person. The witness must sign the statement and certify in writing that in their opinion the patient making the statement has the capacity to properly intend the wishes specified in it.

70 The prescribed person witnessing the advance statement need not have been involved in the drafting of the advance statement. The role of the witness is to certify that in their opinion the patient has capacity to understand and intend the statement about the treatments mentioned. The witness has no power to edit, endorse or veto the contents of the advance statement, only to assess the patient's capacity to intend the wishes recorded in it. Where the prescribed person cannot certify that the patient has capacity to intend the wishes in the advance statement, the prescribed person may decline to act as witness. It would be best practice then for the witness, if the patient so requests, to assist the patient to identify another prescribed person to act as witness.

71 A prescribed person acting as witness should not attempt to dissuade the patient from making an advance statement. However, if a witness is being asked to witness frequent changes to a statement, he or she may wish to suggest the patient seek assistance. It is important that the patient is content that their advance statement reflects their wishes before seeking a witness.

72 It would be best practice for the witness to check that the statement has been signed by the person making it before witnessing it. In witnessing the patient's signature on the advance statement, the witness must sign the document and must certify in writing on the document that, in their opinion, the patient making the statement has the capacity to intend the contents of the statement. As a matter of practice it is important that the statement includes the date it was witnessed to avoid ambiguity.

73 If the patient is making a personal statement about matters other than treatment for mental disorder in addition to an advance statement, the personal statement does not require to be witnessed. However, such a statement (which may include personal preferences, for example whom to contact about care of dependants or pets, or what their employer is to be told, if the patient is taken into hospital) should also be in writing and dated to avoid ambiguity about the patient's intentions. A personal statement may be attached to the patient's advance statement in their records but it will not have the same effect in law.

74 It would be helpful for the patient making the advance statement to identify, possibly in a separate document, a list of the people who will hold a copy of the advance statement and the personal statement described in the preceding paragraph, where one has been made. For example, a copy may be given to the witness, the patient's named person, carer, relatives, solicitor, independent advocate, MHO, GP, or RMO (if any) to place in their medical records. If the advance statement is later withdrawn, any person holding a copy will need to be notified.

75 Regulations made under section 275 of the Act (The Mental Health (Advance Statements) (Prescribed Class of Persons) (Scotland) (No.2) Regulations 2004 ( SSI No. 429)) provide that any of the following persons may act as a witness:

  • a clinical psychologist entered on the British Psychological Society's register of chartered psychologists;

  • a medical practitioner;

  • an occupational therapist registered with the Health Professions Council;

  • a person employed in the provision of (or in managing the provision of) a care service;

  • a registered nurse;

  • a social worker; and

  • a solicitor.

Witnessing an advance statement: risk of future conflict of duty

76 A prescribed person acting as a witness may feel that there is a perceived risk of future conflict of duty if they witness an advance statement which they might, at some future time, have to override in order to provide care and treatment appropriate to the patient's needs. For example, a health professional witnessing an advance statement might subsequently be involved in authorising or administering treatment which conflicts with the wishes specified in a statement. This may be of particular concern for medical practitioners in rural or remote locations who may be not only the preferred witness (or only witness available) but also the person called upon to administer treatment measures compulsorily.

77 In such circumstances, it would be best practice for the prescribed person asked to witness it to discuss with the patient making the statement any potential risk of conflict of interest and to confirm with that patient that they still wish them to act as a witness. The prescribed person may decline to act as witness if, in their opinion, the risk of future conflict of duty is high. In declining to witness the advance statement the prescribed person may wish to help the patient making the statement to identify another prescribed person who is further removed from the risk of conflict, or another person independent of the care and treatment process, such as a solicitor, who could be asked to witness it.

Storing and accessing an advance statement

78 To ensure that the advance statement can be considered at any future date, the patient making the advance statement will wish to make sure that other people are aware of its existence, and to ensure that it is filed in their relevant notes by the GP, RMO and MHO, where appropriate in the circumstances. These other persons could also be asked to hold a copy of the advance statement, or, at least, to be made aware of the details of the person who does hold a copy of the advance statement. This might include the patient's named person, carer and MHO and the hospital managers, if the patient is in hospital.

79 Where an advance statement is lodged in a patient's medical records, it should be treated as a medical record in terms of patient confidentiality. Best practice protocols for storing, retrieving, sharing, access by the patient, and destroying a patient record should be used when handling the advance statement.

Withdrawal of an advance statement

80 The process by which an advance statement may be withdrawn is similar to that for making one. The withdrawal may be witnessed by one of the same prescribed persons who can witness an advance statement. A witness should not attempt to dissuade the patient from withdrawing an advance statement.

81 After observing the patient sign that they are withdrawing their advance statement, the witness must certify that in their opinion the patient has the capacity of properly intending their wishes. They should also sign the statement. As a matter of practice it would also be helpful to date the statement.

82 The patient withdrawing the advance statement should ensure that all those who were given a copy or made aware of the existence of their advance statement are made aware of its withdrawal. These people should receive written notification from the patient that the advance statement has now been withdrawn. Notification that the advance statement has been withdrawn should also be given by the patient to their general practitioner, or, where the patient is in hospital, to the hospital managers. Notification that the advance statement has been withdrawn should also be given to the witness, the patient's named person, carer, relatives, solicitor, independent advocate, and MHO where any of these received a copy of the advance statement. It should be noted that the withdrawal is only valid where it complies with section 275(3). Therefore these people should not rely on being notified about the withdrawal in this way and to protect themselves they should see the withdrawal before relying on the fact of its withdrawal.

83 It is imperative that those involved with the care and treatment of the patient are made aware of the withdrawal of any advance statement. The patient withdrawing the advance statement may ask a member of their multi-disciplinary team to help them deal with these notifications, and where such a request is made, it would be best practice for the relevant professional to give such assistance as is appropriate in the circumstances.

Having regard to an advance statement: additional requirements for designated medical practitioners

84 Before making a decision under sections 236(2)(c), 239(1)(c) or 241(1)(c) of the Act, a designated medical practitioner should undertake checks to ascertain whether the patient for whom treatment is being considered has made and not withdrawn an advance statement, and to view a copy of that statement. The designated medical practitioner is required to do this in order to comply with the statutory requirement at section 276(4) to have regard to the wishes specified in such a statement.

85 The designated medical practitioner should ask the patient if they have an advance statement, ask where it is stored and explain that they wish to see it before making their decision. If the patient is unable to or does not provide the designated medical practitioner with the advance statement or the name of any person holding a copy of it (for example because they are unable to do so through illness), it would be best practice for the designated medical practitioner to check the patient's hospital notes for a copy of the statement or for a reference to a statement. If any advance statement exists, it ought to have been placed with the patient's medical records in accordance with section 276(8)(c) of the Act.

86 Where the hospital notes do not contain an advance statement, it would be best practice for the designated medical practitioner to consider contacting the patient's general practitioner to ascertain whether they have a copy in the patient's medical records. The named person and/or the carer may know of the existence and location of any advance statement, and it would be reasonable to contact them to check.

87 A decision under sections 236(2)(c), 239(1)(c) or 241(1)(c) of the Act can only be made after these steps have been taken. Furthermore, under section 1(3)(a) of the Act, the designated medical practitioner must also have regard to the patient's past and present wishes and feelings (which may be expressed in a form other than an advance statement). Under sections 1(3)(b) and 1(9) the designated medical practitioner must have regard to the views of the patient's named person, any carer of the patient, any guardian of the patient, and any welfare attorney of the patient, unless it is unreasonable or impracticable to do so.

Acting in conflict with an advance statement

88 In terms of section 276(5) of the Act, the Tribunal must consider an advance statement (or a withdrawal of an advance statement) to be valid unless the contrary appears. If the Tribunal has considered an advance statement as valid, it should be presumed to be valid by any person giving treatment authorised by a decision of that Tribunal. Similarly, if medical treatment is being given otherwise than by virtue of a decision of a Tribunal, then the person giving that treatment must consider a statement (or its withdrawal) to be valid unless the contrary appears.

89 As mentioned above, where the Tribunal or a person giving medical treatment under the Act or a designated medical practitioner makes a decision which conflicts with the advance statement, section 276(8) of the Act requires that they record this in writing stating how the treatment conflicted with the patient';s requests, and the reasons why this treatment decision was made. They must send a copy of this record to the patient, the named person, any guardian or welfare attorney and to the Mental Welfare Commission. This record must also be placed in the patient';s medical records.

Right of Access to Independent Advocacy

90 Independent advocacy supports a patient's right to have their own voice heard in decisions made about their health and well-being. Independent advocacy enables vulnerable people to be heard and promotes social inclusion. Section 259 of the Act sets out the main provisions for independent advocacy.

"Every person with a mental disorder shall have a right of access to independent advocacy; and accordingly it is the duty of -

  1. each local authority, in collaboration with the (or each) relevant Health Board; and

  2. each Health Board, in collaboration with the (or each) relevant local authority, to secure the availability, to persons in its area who have a mental disorder, of independent advocacy services and to take appropriate steps to ensure that those persons have the opportunity of making use of those services." (Sections 259(1))

91 For local authorities and Health Boards, the duty is a mutual one. Each local authority is required to collaborate with each Health Board in its area and likewise each Health Board is required to collaborate with each local authority in its area to secure the availability of these services. In the case of patients in the State Hospital, responsibility for securing the availability of independent advocacy services falls to the State Hospitals Board alone. However, in the case of a State Hospital patient who is granted a conditional discharge or for whom a compulsory treatment order has been suspended, the State Hospitals Board is required to collaborate with the local authority and Health Board for the area in which the former patient is now residing. This may be helpful in ensuring continuity of advocacy services to the patient.

Who can access independent advocacy under the Act?

92 The right of access to independent advocacy under section 259 applies to anyone with a mental disorder, here referred to as the "patient". The term "mental disorder" is defined in section 328 of the Act and means any mental illness, personality disorder or learning disability, however caused or manifested. In addition, section 328 specifically provides that a person is not mentally disordered by reason only of:

  • sexual orientation;

  • sexual deviancy;

  • transsexualism;

  • transvestism;

  • dependence on, or use of, alcohol or drugs;

  • behaviour that causes, or is likely to cause, harassment, alarm or distress to any other person; or

  • acting as no prudent person would act.

93 This right applies to any patient:

  • regardless of age, disability, ethnic origin, culture, faith, religion, sexuality, social background or personal circumstances;

  • whatever their need for advocacy; and

  • whether or not they are ordinarily resident in Scotland.

What is independent advocacy?

94 Section 259(4) describes independent advocacy services for the purposes of the Act as:

"services of support and representation made available for the purpose of enabling the person to whom they are available to have as much control of, or capacity to influence, that person';s care and welfare as is, in the circumstances, appropriate."

95 Under the Act, independent advocacy might assist a patient to express their needs and thoughts or to present their views. An independent advocate might help the patient in their everyday dealings in relation to their healthcare and might speak on their behalf in their dealings with, for example, their MHO, RMO or members of hospital staff. Independent advocacy can assist patients:

  • to make informed decisions;

  • to increase their decision-making capacity by helping them to understand the issues being discussed;

  • in communicating their views to others; and

  • in representing the patient's interests to enable those to be taken into account in decisions made relating to their care and treatment.

96 Local authorities and Health Boards should make arrangements to ensure that their staff are aware of a patient's right of access to independent advocacy and the role of independent advocates and advocacy groups, whether or not those staff have any specific duties corresponding to the patient's rights, as detailed below. It is important that staff understand that independent advocates may assist any patient with a mental disorder, including those with incapacity or communication difficulties, children and adolescents, or elderly patients.

The role of independent advocacy

97 Independent advocacy can enable a patient to express their needs and thoughts and to make these known to those who are making decisions about the patient's care and welfare. Many of those decision makers are required to take the patient's views into account and an independent advocate can play a vital part in ensuring that this can be done. The role of independent advocacy is to help a patient to understand their options and to convey their views. While it is not the role of an independent advocate to make decisions for the patient, he/she is there to offer support to facilitate the patient's decision-making.

98 The involvement of independent advocacy does not change the level of responsibility on other professionals involved with the patient. Those professionals still require to exercise their professional judgement in the patient's case. Nor does the involvement of independent advocacy affect a patient's rights with regard to seeking advice from a solicitor or access to legal aid.

99 Independent advocacy organisations may provide individual or group advocacy. The Act is not specific about the type or types of independent advocacy services to which a patient should have a right of access. Any or all of the various types might be appropriate depending on the circumstances and personal preferences of the patient concerned.

100 Each Health Board and local authority should produce and maintain a list of independent advocacy organisations in their area.

101 As a matter of best practice, where the patient has chosen to use independent advocacy, the independent advocacy organisation or advocate should then be entitled to (where the patient agrees):

  • be invited to attend, where practicable, a consultation, interview or meeting about the patient's treatment or care in order to support or represent the patient there;

  • have access to the patient at any reasonable time to provide any support or representation needed;

  • correspond or communicate in any other way with the patient on any matter relating to the patient's care and welfare; and

  • receive such information as would assist them to perform their role.

102 Independent advocacy organisations and its advocates must be clear about their obligations in respect of patient confidentiality. The patient should be asked to consent, where they are capable of giving that consent, before any personal information is passed on to a third party. The nature and amount of such information released to another person should be proportionate and relevant to the desired objective. Where it is not possible to obtain such consent, the independent advocate may consider that effective advocacy support cannot be provided if personal information is not shared. In those circumstances, the independent advocate must be alert to the need to respect patient's confidentiality and must only disclose information on a strictly "need to know basis" with appropriate safeguards. Otherwise, it will not be appropriate for an independent advocate to pass on information.

103 Independent advocacy organisations and advocates do not have an automatic right of access to the patient's medical records, although the patient may authorise them to have such access.

104 Where the patient consents, it would be best practice for the MHO and hospital managers to help ensure that patients who are members of advocacy groups are able to:

  • receive assistance to attend the meetings of their advocacy group, where practicable; and

  • correspond or communicate with their advocacy group.

105 Where the patient consents, it would be best practice for MHOs and hospital managers to ensure that advocacy providers and groups are given:

  • information from those planning or providing patient care or treatment which would assist the group to perform its role; and

  • an opportunity to be involved, where practicable, in all stages of the decision-making process, including representation on planning and strategy groups.

Written communications with an independent advocate or independent advocacy organisations

106 Section 281 of the Act gives hospital managers the power to prevent certain detained patients ("specified persons") from sending or receiving mail. However, mail to or from any person who is known by the hospital manager to be providing independent advocacy services, is specifically excluded from this provision under section 281(5)(n). Therefore a "specified person" has the right to send mail to or receive mail from their independent advocate, even where the patient is otherwise restricted in sending or receiving mail.

107 Any independent advocate or independent advocacy organisations should inform hospital managers responsible for a patient of their interest, and give their contact details. This is particularly important where the patient may be subject to restrictions in terms of section 281. Wherever possible, mail should be sent to or from the contact address notified to hospital managers. This will enable hospital managers to recognise more easily that mail is intended for, or is from, an independent advocate or organisation.

What is meant by "Independent" advocacy

108 Independence is key in the patient's right to advocacy, because it is vital that the role of independent advocacy is not compromised in any way. Independence ensures that the advocacy services provided are divorced from the interests of those persons concerned with the patient's care and welfare. Conflict might occur for example, if a person providing advocacy services was also a care provider and a patient wanted to raise issues about their care. It is clear that in those circumstances, the advocate's ability to support that patient would be severely compromised.

109 The Act, therefore, makes specific provision that to be "independent", the advocacy services must be provided by persons other than a local authority or a Health Board responsible for providing services in the area where the patient is to receive care or treatment, or a member of those bodies or any other person involved in their care treatment or in providing services to them. Any independent advocacy organisation should have policies in place to identify and manage/minimise the risk of any conflict of interest.

110 Independent advocacy should be provided by an organisation whose sole role is independent advocacy or whose other tasks either complement, or do not conflict with, the provision of independent advocacy. If the independent advocacy service or advocate has a conflict of interest, they should inform all relevant parties of this, and should withdraw from acting for the patient.

Duty to inform patients of and assist them to access independent advocacy

111 Mental Health Officers ( MHOs) have a duty under the Act at certain times to:

  • inform patients about the availability of independent advocacy services; and

  • take appropriate steps to ensure that patients have the opportunity to make use of those services.

112 MHOs are required by the Act to carry out this duty at each of the following times.

  • when considering whether to consent to the grant of a short-term detention certificate (section 45);

  • on application for, extension of and extension and variation of, compulsory treatment orders (sections 61, 85 and 89); and

  • on extension of and extension and variation of compulsion orders (sections 147, 151 and 155).

113 The 2003 Act has been modified by an order made under section 330 of the Act (The Mental Health (Care and Treatment) (Scotland) Act 2003 Modifications Order 2004 ( SSI No. 533)) to include the following times when the MHO must inform the patient about the availability under section 259 of independent advocacy services:

  • Application by RMO for variation of an order (section 94); and

  • Application by RMO for variation of a compulsion order (section 160).

114 Regulations made under section 290 of the Act (The Mental Health (Cross-border transfer: patients subject to detention requirement or otherwise in hospital) (Scotland) Regulations 2005) place a duty on the MHO to inform a patient of their right to access independent advocacy and to take steps to help them use such services where consideration is being given to the removal of the patient to a hospital outwith Scotland and on a patient's reception into a hospital in Scotland on removal from another part of the United Kingdom, the Isle of Man or the Channel Islands.

115 The "appropriate person" is under a duty in terms of section 260 of the Act to 'take all reasonable steps' to:

  • inform patients subject to any form of compulsion of the availability of independent advocacy services; and

  • ensure that those patients have the opportunity of making use of those services.

116 The "appropriate person" to carry out the duties under section 260 is:

  • the managers of the hospital where a patient is detained;

  • where, by virtue of a certificate granted under the Act, the authorisation to detain is suspended, the managers of the hospital in which, but for the certificate, the patient would be treated; or

  • in any other case, the managers of the hospital specified in the order.

117 This duty must be carried out for patients who are:

  • detained in hospital by virtue of the 2003 Act or the 1995 Act, or

  • are not detained in hospital but are subject to:

  • an emergency detention certificate;

  • a short-term detention certificate;

  • a compulsory treatment order;

  • an interim compulsory treatment order;

  • an assessment order;

  • a treatment order;

  • a hospital direction;

  • a transfer for treatment direction;

  • an interim compulsion order; or

  • a compulsion order.

118 In addition, section 260(3) states that the duty of the appropriate person to inform and assist patients in relation to independent advocacy must be carried out:

  • as soon as practicable after the beginning of a detention order, where the patient is detained in hospital;

  • as soon as practicable after the making of the order, where the patient is not detained in hospital;

  • as soon as practicable after any occasion on which the patient 'reasonably requests' to be informed of those matters; and

  • at such other times as may be prescribed by regulations.

119 Regulations made under section 260(3)(c) of the Act (The Mental Health (Provision of information to patients) (Prescribed times) (Scotland) Regulations 2005 ( SSI No. 206)) require that, in addition to the times specified above, the managers of the hospital must also inform the patient about the availability under section 259 of the Act of independent advocacy services as soon as practicable after a number of other events. These events include:

  • the making of an order by the Tribunal in relation to a CTO or a compulsion order;

  • the making of a determination by the RMO in relation to such orders;

  • the grant of a certificate by an RMO suspending detention for more than 28 days under an interim CTO;

  • a CTO, a compulsion order (with or without restrictions) or a transfer direction and the revocation of such a certificate.

120 In practice, the role of the appropriate person may be carried out by other hospital staff on behalf of the managers. However, it remains the appropriate person's responsibility to ensure that their duty is fulfilled. Where the duty is to be delegated, they should ensure that there are clear processes in place to ensure effective delegation, and in particular, that roles and responsibilities of members of staff or others who are to exercise delegated authority are defined.

121 All relevant staff should be made aware of the patient's right to independent advocacy and its role, the legal requirements relating to independent advocacy under the Act and of best practice. It is important that staff know that advocates may support any patient, including child and adolescent patients, patients with incapacity, and patients with communication difficulties.

122 It would be best practice for information on independent advocacy to be displayed in public areas and on wards as well as in forms which can be handed out to people, such as leaflets or cassette tapes. In addition, MHOs and hospital managers might provide such information at other times where it appeared to them that the patient would benefit from learning about, or how to access, independent advocacy services.

123 MHOs and the appropriate person should ensure that they are aware of the independent advocacy services that are available in their area. Claiming ignorance of these will not be sufficient excuse for a failure to comply with a duty under the Act.

124 Information about independent advocacy services will need to be communicated to patients in a way which each patient can understand, taking account of any special communication needs they may have. Such needs may arise, for example, where the patient is deaf or hard of hearing or has a visual impairment, a learning disability or where their first language is not English. In addition, any information provided in writing should be clear and in a style and language which can be easily understood by the individual patient. This is especially important for child and adolescent patients, as standard information may be presented using vocabulary which is too advanced or complex for them. While it may be considered to be important to give the patient information for their own future reference, perhaps in the form of a leaflet or a cassette tape, it will not be sufficient for the MHO or appropriate person to just hand over that leaflet or tape without making sure that the patient understands the information being given or has the means to play the tape.

125 The MHO and the appropriate person may need to explain what an independent advocate is and how an advocate or an advocacy group might help. It may be necessary for discussions on independent advocacy to take place on more than one occasion, as there may be factors such as stress, which make it difficult for the patient to fully absorb or understand the information being offered. The MHO or the appropriate person may wish to ask ward staff or other members of the multi-disciplinary team to assist them in this.

126 In addition to informing people about the availability of independent advocacy services, the MHO and the "appropriate person" also have a duty to take appropriate steps to ensure that the patient has the opportunity of making use of those independent advocacy services. The Act is not specific about the steps which they should take and what is appropriate and these will depend on the circumstances. Again, this may take more than one approach from the MHO or the appropriate person and other staff may be asked to assist and support to achieve this.

127 Where the patient would like independent advocacy, it would be best practice for an MHO and the appropriate person to assist the patient to contact an independent advocacy organisation. For example, they might contact the independent advocacy organisation on that patient's behalf to make arrangements for the patient to meet with an independent advocate if the patient would otherwise be unable to do this. They should not at this stage be disclosing any personal information about the patient to the independent advocacy organisation. The patient should be asked for consent to disclose any information before it may be shared with the organisation. Where the patient cannot give consent to the sharing of information the MHO or the appropriate person should consult the RMO and members of the multi-disciplinary team to consider what information, if any, it might be appropriate to share in the circumstances, bearing in mind the patient's right to confidentiality. It may also be appropriate to seek legal advice on the sharing of personal information.

128 As a matter of best practice, the MHO and the appropriate person should record in the patient's medical records the steps taken to inform that patient of independent advocacy, how and where to access it. It would be best practice to keep other people who support the patient informed about whether or not the patient would like independent advocacy, and any follow-up action required, where a patient has consented to such information being shared. Where an independent advocate is involved, details of that advocate's involvement should be intimated to others concerned in the care and welfare of the patient.

129 If a patient has been fully informed about independent advocacy services, and chooses not to involve an advocate in their case, it would be best practice for the MHO and the appropriate person to:

  • record in the patient's medical records the fact that the patient was informed about independent advocacy and did not want advocacy support; and

  • check with the patient again at a later date that they remain of the same view, in the event that they may have changed their mind.

130 If the MHO or appropriate person considers that the patient's decision
to decline independent advocacy is due to their mental disorder, and
also considers that independent advocacy would benefit the patient, then the MHO may wish to consult the RMO and other members of the multi-disciplinary team as to whether to refer the patient to independent advocacy services anyway.

What happens if the MHO does not interview the patient?

131 It is possible, in very limited circumstances, for an MHO to consent to a detention without having seen the patient in question. Section 45(1) states that the MHO has a duty to inform the patient about independent advocacy services before deciding whether to consent to a detention. If the MHO does not interview the patient for whatever reason, the MHO still has a duty to inform that patient about independent advocacy services and to take appropriate steps to ensure the patient has the opportunity of making use of those services. The MHO may have to visit the patient on more than one occasion.

132 Sections 85, 89, 147, 151 and 155 place a duty on the MHO to inform the patient about independent advocacy services, and to ensure the patient has the opportunity to use those services, as soon as practicable after receiving notice of a proposed extension of an order to which the patient is subject and, where applicable, grant of such an extension, notwithstanding that it may be impractical for the MHO to interview the patient.

133 It would be best practice for the MHO to record in the patient's records the steps taken in these cases.

What does 'as soon as practicable' mean?

134 Section 260(3) states that the duty on the appropriate person to inform and assist patients in relation to independent advocacy must be carried out:

  • as soon as practicable after the beginning of a detention order, where the patient is detained in hospital;

  • as soon as practicable after the making of the order, where the patient is not detained in hospital;

  • as soon as practicable after any occasion on which the patient 'reasonably requests' to be informed of those matters; and

  • at such other times as may be prescribed by regulations.

135 Regulations made under section 260(3)(c) of the Act (The Mental Health (Provision of information to patients) (Prescribed times) (Scotland) Regulations 2005 ( SSI No. 206)) require that, in addition to the times specified above, the managers of the hospital must also inform the patient about the availability under section 259 of the Act of independent advocacy services as soon as practicable after a number of other events. These events include the making of an order by the Tribunal in relation to a CTO or a compulsion order, the making of a determination by the RMO in relation to such orders, the grant of a certificate by an RMO suspending detention for more than 28 days under an interim CTO, a CTO, a compulsion order (with or without restrictions) or a transfer direction and the revocation of such a certificate.

136 The Act does not define what 'as soon as practicable' means, because it is a matter of what is reasonable in the circumstances of any particular case.

What constitutes a 'reasonable request'?

137 Section 260(3)(b) states that the appropriate person will inform a patient of the availability of independent advocacy services "as soon as practicable after any occasion on which the patient reasonably requests to be informed of those matters". Again, the question of what is reasonable depends on the facts and circumstances of the individual case. It would be best practice to consider all requests to be reasonable in the first instance, unless there is some unusual circumstance suggesting otherwise, and to inform that patient about the services available. It would also be best practice to record in the patient's records when and how the request for information was responded to.

General Practitioners

138 General practitioners ( GPs) are not specifically allocated duties regarding independent advocacy by the Act. However, as a key point of contact for patients their involvement is important to the successful implementation of these provisions. It is expected that general practices will have information about independent advocacy services on display, as well as having them available in a form that patients can take away with them. Where a patient requests information about independent advocacy, GPs and practice staff would be expected either to provide this information themselves or to direct the patient toward appropriate sources of information. Where the request for information is made during a consultation, it would be best practice for that request and the response to be recorded in the patient's case notes.

What happens when a patient is unable to communicate whether or not they would like an independent advocate?

139 Every patient has a right of access to independent advocacy under the Act, as detailed above in paragraph 90. It is important that they are able to make use of this right, in view of their potential vulnerability. Where a patient lacks capacity to make a particular decision, it should not be assumed that the patient does not have capacity to make decisions on any subject at any time. A patient's capacity may change over time and this needs to be taken into account. Where a patient appears to lack capacity to decide on making use of independent advocacy, the subject should be discussed again with them by those who have specific duties to bring the availability of those services to their attention, at a time when their capacity to understand the issue appears to have improved.

140 Where a patient has a degree of incapacity, or cannot for any reason clearly say whether or not they would like an independent advocate, an MHO/hospital managers/appropriate person should consider how an independent advocate may be involved. MHOs/hospital managers/ appropriate persons should pay particular attention to the patient's past wishes, the views of people supporting them and any advance statement or other record of a patient's prior comments on having an independent advocate. The right of access to independent advocacy is for each patient and is not limited only to those who are best able to articulate their needs.

Speed of Response

141 When a referral is made to independent advocacy, it is expected that the independent advocacy organisation will respond to the patient concerned as quickly as is appropriate and practicable in the circumstances. For example, priority may be required where some immediate action is needed and in particular where a patient is liable to be or is subject to compulsion under the Act.

142 It is recognised that independent advocacy organisations often work 'office hours' and that in certain circumstances, this may mean that there will be a delay in responding to the referral, at such times as weekends and holidays. Following initial contact, independent advocacy organisations should prioritise provision according to agreements with local authority and Health Board commissioners based on local needs and national priorities.

Tribunals

143 As part of their role in supporting and representing a patient, an independent advocate may assist a patient in the time before and during any tribunal hearing. The independent advocate would not replace any legal representative a patient may have, though an independent advocate may fulfil a useful role in helping a patient in communicating with their legal representative.

Advance statements

144 Advance statements are described in section 275 of the Act as statements setting out the way the patient who has capacity to decide how they wish to be treated, or do not wish to be treated, at some time in the future, in the event that they become unable to make such decisions through mental disorder. Advance statements may be useful for patients to indicate whether they would wish to have an independent advocate or not.

145 Independent advocates may assist patients to write an advance statement and keep it up to date. Independent advocates are not one of the classes of persons authorised by regulations under section 275 of the Act to witness an advance statement. Where an independent advocate is qualified as a result of their professional qualifications (for instance, a nurse) to witness a patient's advance statement, then they will wish to consider carefully whether there may be a conflict of interest in doing so.

Independent advocates and named persons

146 Generally, a named person under the Act is any person 16 years and over nominated by a patient and the Act details the form in which this must be done. Independent advocates are not one of the classes of persons authorised by regulations under section 250 of the Act to witness a nomination but may assist a patient in writing out the nomination. Where an independent advocate is qualified as a result of their professional qualifications (for instance, a nurse) to witness a patient's named person nomination then they may wish to consider carefully whether there would be any conflict of interest in doing so.

147 Where there is no nominated named person, a patient may have as a named person, the primary carer, or the nearest relative where the patient is an adult, or the person with parental rights and responsibilities, the local authority, or the primary carer, where the patient is a child under 16.

148 As a matter of best practice, an individual should not act as both independent advocate and named person for the same patient. There are differences between the two roles which could cause confusion were the same person is to fulfil both roles.