Mental Health (Care and Treatment) (Scotland) Act 2015 patient representation provisions: interim guidance

Interim informal guidance on patient representation including named persons, advance statements and advocacy, under the Mental Health (Care and Treatment) (Scotland) Act 2015.

An overview of patient representation and support for decisionmaking 

The principles in Part 1 of the 2003 Act must underpin any function carried out by practitioners under the Act. Among these are taking into account:
  • the present and past wishes and feelings of the patient, where they are relevant to the exercise of the function and insofar as they can be ascertained by any means of communication appropriate to the patient  
  • the views of the patient's named person, carer, and any guardian or welfare attorney so far as it is practical and reasonable to do so
  • the importance of the patient participating as fully as possible in any decisions being made and the importance of providing information to help that participation in the form that is most likely to be understood by the patient 
  • the importance of providing the maximum benefit to the patient
  • the need to ensure that the patient is not treated in a way that is less favourable than the way in which a person who is not a patient might be treated in a comparable situation, unless it can be justified by the circumstances

The 2003 Act provides three specific rights related to patient representation that can assist in putting these principles into effect. Advance statements and independent advocacy provide complementary ways that can help practitioners to understand and take into account the past and present wishes of the feelings of the patient and  help the patient participate in decision-making. If the patient chooses to appoint a named person, the named person may also be able to help to put across the wishes and feelings of the patient, as well as their own which practitioners must take into account.

Practitioners will have a dual role, as well as engaging with these ways of supporting patient participation, practitioners also have an important role in helping the patient understand how they work and how they can best make use of them. It would be best practice for practitioners to take several opportunities to discuss these issues with patients, and their carers, in a way that helps the patient to understand their rights. Although there are certain duties that cover informing patients of their rights, there will be other times in the patient’s journey that it will be as or more important to discuss their options with them.

Practitioners should consider the principles in the Act within the wider human rights context. The principles set out the importance of taking into account the individual patient’s present and past wishes and feelings and the importance of supporting the individual patient to be involved in decision-making about their care and treatment. Patient representation in this chapter can help with support for decision-making and realising these rights. Practitioners carrying out functions under the Act, such as a decision to grant a detention certificate or to provide treatment under Part 16 of the Act, should be considering these principles and the rights framework. The patient representation elements described in this chapter are important in helping patients to exercise these rights in practice.

There are benefits in promoting and making use of these forms of patient representation for both individual patients and for care teams. These different forms of patient representation can work together and should be used in a complementary way to best establish the past and present wishes and feelings of the patient when required. It would be best practice to set out to the patient the distinct roles of an independent advocate and a named person in supporting the patient in realising their rights and in decisionmaking, and how these roles can be complementary.

The 2003 Act contains statutory duties setting out when patients must be given information about their rights and be made aware of their right to access independent advocacy services. It is best practice to undertake these duties promptly. In addition, best practice would be that conversations about representation are on-going. The patient may need the information on multiple occasions and in different formats to understand the consequences and benefits and to make the relevant decisions. For patients who are detained for longer periods, it would be best practice to discuss the these options for representation, in particular advance statements, whenever there is a significant change in circumstances. In addition, it would be best practice for practitioners to consider regularly what representation the patient uses, and discuss rights and options with the patient.

It would be best practice for practitioners to identify appropriate on-going opportunities to discuss representation with the patient, for example as part of a wider discussion of their rights, and depending on the circumstances and needs of the patient. Practitioners should look to verify that the patient understands their options and has any questions answered and feels supported in making a decision, for example to appoint a named person or make an advance statement. The practitioner should also be clear about from where the patient can get further information.

Where a patient does not nominate a named person and chooses not to have support from an independent advocate, it may be helpful to return to these topics more frequently than where a patient has chosen to make use of all forms of representation described. It will be best practice to give patients information early after their first detention, but this may also be a time at which the patient is having to take in a lot of information about their treatment and detention. It would be best practice to return to these topics to ensure they have clearly understood their rights in relation to patient representation and support the patient further in deciding what representation they would find most helpful. It would also be best practice to discuss this following a significant change to the patient’s status, such as moving from an STDC to a CTO, or a change between a community-based order and detention-based order.

In addition, practitioners should make use of any materials tailored for certain types of patients, such as children and adolescents. This will be particularly important for patients under 16 where the process and rules for named persons are different to those for other patients.

Independent advocacy - interim guidance
Named persons - interim guidance
Advance statements - interim guidance
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