Here is a general summary of some of the key provisions of the Mental Health (Scotland) Act 2015. You can also find information about the provisions of the 2015 Act as they relate to individual service users and carers, certain practitioner groups and organisations.
Part 1 makes provision about the operation of the Mental Health (Care and Treatment) (Scotland) Act 2003
Part 2 amends the Criminal Procedure (Scotland) Act 1995 in relation to the treatment of mentally disordered offenders. It amends timescales for assessment and treatment orders and provides for variations of certain orders.
Part 3 of the Act creates a new notification scheme for victims of some mentally disordered offenders. This will allow certain information to be provided to victims of offenders subject to certain orders and to allow victims to make representations in certain circumstances in connection with the release of the patient from detention.
Part 1 of the Act – further information on key provisions
The 2015 Act allows regulations to extend the right of appeal against being detained in an excessive level of security to qualifying patients in qualifying hospitals. Regulations, which came into force in November 16, set out that the qualifying hospitals are Orchard Clinic, Rowanbank Clinic and the medium secure service at Rohallion Clinic. The 2015 Act and regulations also require that any application (including those from the State Hospital) be accompanied by a supportive report from an Approved Medical Practitioner.
The most significant change related to named persons in the 2015 Act is to remove provisions for the appointment of named persons by default so that adult patients only have a named person if they choose to have one (this does not apply to patients under 16). It also introduces a limited right, where the patient has no named person, for listed persons (the carer, nearest relative, guardian or welfare attorney) to apply or appeal to the Mental Health Tribunal, if the patient does not have capacity to do so on their own behalf. There is an associated limited right to information for guardians and welfare attorneys in certain circumstances.
The 2015 Act also removes the power of the Tribunal to appoint or substitute a named person for adult patients and requires named persons to agree to taking on the role in writing.
The 2015 Act introduces a requirement for NHS Boards to keep a copy of any advance statement received with the patient's records and to provide certain information about the existence and location of the statement to the Mental Welfare Commission, to be held on a register of information. It also requires NHS Boards to publicise the support that it provides to make and withdraw an advance statement.
The 2015 Act builds on the right in the 2003 Act to independent advocacy services. It requires local authorities, Health Boards, and the State Hospitals Board for Scotland to provide information to the Mental Welfare Commission about how they are meeting their duties under the 2003 Act to provide independent advocacy services, at least every two years.
Suspension of detention
The 2015 Act makes some changes to the operation of suspension of detention provisions, particular in relation to calculating the total maximum allowed suspension of detention. For example, for Compulsory Treatment Orders (CTO), the maximum allowed will now be 200 days in any 12 month period, excluding any period of less than eight hours. There are also changes in calculating maximums for suspension of measures other than detention.
Cross border transfers and absconding patients
The 2015 Act extends certain provisions relating to cross-border transfers and absconding to EU patients outwith the UK and sets out that the cross-border transfer regulations must include a right of appeal against the transfer for the named person or listed person where there is no named person. It allows regulations to set out how certain provisions governing medical treatment in Part 16 of the 2003 Act may be applied to patients who have absconded to Scotland from elsewhere.
Support to patients (communication at medical exams/ services for mothers)
The 2015 Act extends the provisions in the 2003 Act which require provision of support with communication to certain other medical examinations. It amends the provisions in the 2003 Act related to providing services and accommodation to mothers with post-natal depression to mothers with any mental disorder.
The 2015 Act allows regulations to prescribe what statistical information must be provided by the Mental Welfare Commission to Ministers.
Reviews of deaths of patients in hospital for treatment
The 2015 Act requires Ministers to carry out a review of the arrangements for investigating the deaths of patients in hospital for treatment for a mental disorder. This section of the Act came into force on December 24, 2015 and the review must be carried out within three years of this date.
Technical changes to operation of orders and certificates
There are also a range of other provisions which make more minor changes to the operation of various orders and certificates, including to timescales and notification requirements. This includes extending the scope of conflict of interest regulations; changing the timescale for the nurse's holding power from two hours with an hours extension to a simple maximum of three hours, minor changes to the calculation of the length of an initial compulsory treatment order or interim compulsory treatment order and a small numer of changes in relation to Mental Health Officer (MHO) duties.
For a comprehensive note of the provisions in Part 1 of the Act, please see the Act's explanatory notes.
Mental Health Law Team
Mental Health and Protection of Rights Division
3ER St Andrew's House