28917 Mental Welfare AR Txt - Mental Welfare Commission for

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A new year, a new law


Chairman’s Statement

2:

2.1

Our Views on Mental Welfare in Scotland

Introduction

2.2

Detention under mental health and criminal procedures legislation

2.2.1

Compulsory treatment under criminal procedures 2005-2006

2.2.2

Mental health services for children and young people

2

1.1 Investigations and inquiries

1.1.1 Report of the inquiry into the care and treatment of Mr L and Mr M

1.1.2 Investigation into the use of “leave of absence”

6

8

1.1.3 Report on the investigation into the care and treatment of Mr H

1.1.4

Follow up to the inquiry into the care and treatment of Ms D

10

13

1.1.5

Follow up to the inquiry into the care

1.1.6

and treatment of Mr A

Compensation for Mr B

1.2

Visiting work

1.2.1

General

1.2.2

1.3

Unannounced visits

Suicides, accidents and incidents

1.4

1.5

Consent to treatment

Requests for discharge from detention

1.6

Communications, information and advice 27

1.6.1

Information and advice 27

1.6.2

Our communication programme 29

20

20

22

27

14

15

15

15

6

6

36

36

37

54

58

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2.2.3

The role of mental health officers and

2.2.4

consent to detention

Social Circumstances Reports

2.3

Best practice under the new Act

2.3.1

Principles and new safeguards

2.3.2

2.3.3

Use of emergency powers

Mental Health Tribunal for Scotland

74

76

2.3.4

Transitional provisions

2.4

Adults with Incapacity (Scotland) Act 2000

77

78

62

69

72

72

2.4.1

Guardianship and intervention orders

3: The Future: Key Mental Welfare

78

Developments 86

3.1 The future of the Adults with

Incapacity (Scotland) Act 2000

3.2

Adult support and protection

4:

6:

Financial Statement

5: Bibliography

Who We Are

86

88

88

92

93


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Chairman’s Statement

Mr Ian J Miller

This year I would like to start my report by paying tribute to all Commissioners, full-time and part-time, and to the professional, administrative and secretarial staff of the

Commission for their dedication and hard work during a year of major change. Not only have they risen to the challenges posed by the new Act, which in itself has created the biggest changes in mental health law in Scotland for several decades, but also to a substantial internal re-organisation in the way the Commission conducts its business. We have introduced a new information management and patient record system to coincide with the new Act; we have extended our telephone advice service, launched a new website, and produced new publications and posters; and we have absorbed our new duties of promoting the principles of the new Act, monitoring its operation and promoting best practice in its use. My thanks go to everyone for coping with so many changes in such a professional way.

In monitoring the operation of the new Act, we consulted with service user organisations, carers groups and advocacy organisations, as well as groups of practitioners, and they told us which parts of the new

Act concerned them most.

We therefore decided to focus our attention initially on five areas. We are examining care plans in detail to make sure they take account of individual needs and have been developed in partnership with the person they are designed to support. We are visiting every person on a compulsory treatment order within the first year of the order, and for those on compulsory orders in the community, within the first six months of the order.

We are examining cases where advance statements have been overridden, as it is particularly important that service providers pay proper regard to a person’s wishes about their care and treatment. We are pleased to see that there has been a significant reduction in the use of emergency detentions, as the Act makes clear that as far as possible people who need compulsory treatment should be assessed by experienced practitioners and treated under a short-term order.

The provision of services for children and young people up to the age of 18 has been of concern to us for many years, and we have commented in earlier annual reports about the inappropriate admission of young people to adult wards.

In Section 2.2.3 we stress the requirement on Health

Boards in terms of the new Act to provide sufficient services and accommodation for young people. Yet in the first six months of the operation of the Act, we were notified of 68 admissions of young people to adult wards. While we welcome the recognition by Health Boards that substantial investment is needed, and we recognise that it will take time to make improvement, we are nonetheless extremely concerned about the present lack of facilities for young people. We shall continue to raise this with Health Boards and the Executive until we see major improvements.


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The new Act also saw the establishment of the Mental

Health Tribunal for Scotland, and we were impressed by the way in which around

300 members were recruited and trained in such a short timescale. We have worked closely with the Tribunal and we have established a regular series of meetings with the President and her senior team, as well as weekly conference calls with the Tribunal administration during the early months.

The Commission and the

Tribunal do, of course, have different statutory roles to perform, and it is inevitable that there will be areas of disagreement from time to time. This is recognised by both organisations, and we will continue to work closely together, mindful of our respective, independent roles.

Aside from the new Act, we have of course continued with our duties to enquire into deficiencies in people’s care and treatment which have been brought to our notice.

As we report in Section

1.1.1, we were invited by the First Minister to carry out an inquiry into the care and treatment of Mr L, a restricted patient on conditional discharge who was found guilty of the murder of a former patient

Mr M. We made a series of recommendations and were pleased with the positive responses from the Scottish

Executive, the Health Board and the local authority, who all accepted our recommendations and have produced a joint action plan.

In Section 1.1.3 we report on the case of Mr H, a man with alcohol related brain damage

(ARBD) and we concluded that services had been deficient in his care. We also felt that, given what we know about other services in

Scotland, there were likely to be other individuals with

ARBD across the country who have not received proper attention from Health

Boards or local authorities.

It is essential that health and social care practitioners pay greater attention to people with ARBD, as it appears to be an increasing problem in Scotland and evidence shows that a significant number of those who are affected have the potential to recover, if given proper health and social care.

During the year, there have, of course, been changes in the composition of the

Commission and its staff.

Three part-time

Commissioners, Dr Pramod

Jauhar, Mr Tom Keenan and

Sheriff Gordon Shiach, retired, and I would like to record my thanks to them for their valuable contribution to the Commission over many years. We were pleased that

Ms Angela Forbes who has a background in advocacy, was appointed as a part-time

Commissioner, and we also welcome several new staff members.

Dr Madeline Osborn, who had edited the Annual

Report for many years, retired at the end of the year, and I would like to thank the Director,

Dr Donald Lyons and the

Communications Manager,

Ms Anita Wiseman for taking on the major task of co-ordinating and editing this report.


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The new Mental health Act has created the biggest change to

mental health law

in several decades.


5


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Section 1

Our Work

1.1 Investigations and inquiries

1.1.1 Report of the inquiry into the care and treatment of Mr L and Mr M

Background to the inquiry

This year the Commission published the report of an inquiry into the care and treatment of a restricted patient (Mr L) on conditional discharge from a Glasgow hospital. He had been found guilty of the culpable homicide of a former patient of the same service (Mr M).

We were invited to carry out the inquiry by the First

Minister. We examined the care and treatment received by Mr L to identify any lessons that could be learnt.

We also considered the care and treatment received by

Mr M.

People on restriction orders have a high level of supervision. Decisions about time out of hospital and discharge are made by

Scottish Ministers with the involvement of the Scottish

Executive’s Psychiatric

Advisor. There are around

300 people on restriction orders in Scotland, approximately 50 of whom are conditionally discharged.

Mr M was killed in a Glasgow country park on 21 October

2004. Mr M was found badly beaten and had died of his injuries. He had recently been released from remand in prison. Mr L knew him and had given him a lift home following a night socialising with other friends. Mr L was subsequently found guilty of the culpable homicide of Mr M. He was given a life sentence with a hospital direction and is now receiving treatment in the State Hospital.

Mr L had a previous history of violence. Following a serious assault on a man in 1997 it was recognised that he had a mental illness.

He was placed on a hospital order with restrictions. After a period of treatment in hospital and, latterly, trial periods on leave of absence, he was granted conditional discharge from a Glasgow hospital in April 2003. He lived in a flat, had contact with his family and helped out in a riding school stables.

The psychiatrist in charge of his care saw him regularly and he was also seen frequently by nursing staff and a social worker.

Mr L had a history of not taking his medication. He had left hospital on an antipsychotic drug and a mood stabiliser. He was allowed to stop his treatment of antipsychotic medication.

There were also concerns about his compliance with medication for his mood.

In July and August 2004 a locum psychiatrist temporarily took over as

Mr L’s responsible medical officer (RMO) from his usual consultant. He became more irritable, increasingly opposed to treatment and was argumentative with mental health staff. Following a joint visit to his flat with the locum RMO, Mr L’s community psychiatric nurse raised concerns about him.

His behaviour was causing concern and he made reference to thoughts and ideas that were similar to those he expressed at the time of the previous assault in 1997. The CPN was concerned that follow-up action after this visit was inadequate but was unsure what steps she could take.

Despite asking, she received inadequate support.


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Following the RMO’s return from leave, the team took a firmer line about medication.

It was reported that, although Mr L remained irritable, his mental state appeared to have improved.

However, he committed the offence shortly after this.

What we did

We scrutinised all of the relevant records and interviewed the medical, nursing and social work staff directly involved in Mr L and

Mr M’s care. We interviewed senior managers of the services involved and the

Scottish Executive staff with responsibilities in relation to restricted patients. We also interviewed Mr L.

What we found

We concluded that Mr M’s death was linked to a relapse of Mr L’s illness.

There was evidence that

Mr L had a bipolar affective disorder, and had suffered a relapse. The management of Mr L’s mental disorder was regarded as challenging and complex. He posed a high level of risk and was dangerous to others when he was unwell. Given the clear link between Mr L’s illness and his history of violent behaviour when unwell, we were particularly concerned to find that there had apparently been no systematic approach to assessment of risk in Mr L’s care. A satisfactory risk assessment would have set out the possible signs of Mr L’s illness relapsing.

This should have formed the basis of a care plan that made it clear to all involved in Mr L’s care what to do if he was becoming unwell. In the absence of such a plan it was very difficult for staff in the clinical team, his general practitioner or the Scottish

Executive to recognise the significance of the changes in Mr L’s behaviour and to take agreed appropriate action. The absence of a plan also hampered communication between

Mr L’s responsible medical officer and the locum who took over during the summer of 2004.

There had been a “muddled” approach to risk assessment and management of Mr L, that was shared between the clinical team and the Scottish

Executive. This was made worse by inadequate communication about Mr L’s supervision between the responsible medical officer and the Executive.

We concluded that although there were no firm aftercare arrangements for Mr M, this had not contributed in any way to his death.

Summary of what we recommended

We made a number of recommendations to NHS

Glasgow, Glasgow City

Council and the Scottish

Executive. In particular, we said that NHS Glasgow must ensure that there is a systematic approach to risk assessment and management within the forensic psychiatry service.

In addition, we said that NHS

Glasgow should:

• Improve the clinical governance and leadership of the forensic service

• Review the function, and improve the training, of community psychiatric nurses to ensure they have the necessary competencies to work with conditionally discharged patients.

• Ensure that there are clear readmission arrangements for people who have been conditionally discharged.


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We believe that good care and the reduction of risk go hand in hand.

Glasgow City Council Social

Work Department must:

• Review its operational policies for conditionally discharged patients in conjunction with the

Health Board and the

Scottish Executive.

• Ensure that social workers supervising conditionally discharged patients are mental health officers.

The Scottish Executive

Mental Health Division must:

• Identify the competencies that it expects from responsible medical officers who care for restricted patients.

• Insist that a formal written risk assessment and risk management plan is in place before submitting a recommendation for conditional discharge to the First Minister.

• Ensure that there is clear strategic leadership of the

Scottish Executive’s work with restricted patients.

• Review the current

Memorandum of Procedure on Restricted Patients in the light of the findings of the Inquiry.

What has happened since our recommendations

We believe that good care and the reduction of risk go hand in hand. The treatment and care of restricted patients must be carried out with the principle of least restriction in mind.

Everyone must have trust in the services that help and support the very small group of restricted patients in Scotland.

We recognise the challenges to services and staff in caring for restricted patients who, when unwell, can present a serious risk to themselves or to others.

Because of those challenges, the care and treatment provided to restricted patients must be of the highest standard.

We welcome the positive responses the inquiry has received from the Scottish

Executive, NHS Glasgow and Glasgow City Council

Social Work Department.

They each accepted our recommendations and produced a joint action plan.

We have already met to discuss the plan and will be meeting again in the near future to discuss progress towards implementation.

The action plan can be viewed at: http://www.scotland.gov.uk/ resource/doc/97978/0023785.

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1.1.2 Investigation into the use of “leave of absence”

Background to the investigation

Under the Mental Health

(Scotland) Act 1984, a person could be placed on leave of absence from hospital. The intention of this was to allow for continued compulsory treatment outside hospital for a period of time, but not indefinitely.

The UK Government, following legal advice, decided that long-term use of leave of absence could be unlawful. From 1995, the Mental Health (Patients in the Community) Act, restricted the use of leave of absence to one year. This

Act introduced community care orders that could be used to compel people to accept services. It was not possible to treat a person with medication using this order if that person did not agree to treatment. During the year, we discovered that some people were being


9 kept on extended leave of absence from hospital under the 1984 Mental Health Act.

We did not think the Act allowed for this and looked into this matter further.

From visiting people on leave of absence, we found that responsible medial officers in one Health Board area were routinely readmitting people to hospital by recalling them from leave of absence in this way. This was towards the end of the maximum continuous period of one year of leave of absence that the law allowed. The person was then discharged from hospital, again on leave of absence for a further year.

We thought there were two problems with this. Firstly, paperwork said that they were being ‘recalled’ to hospital. The Act requires the responsible medical officer to give the person notice of the recall in writing.

This did not happen with the people that we visited.

Secondly, the Act said that the person may only be recalled if necessary for their health or safety, or for the protection of others.

At the time these people were recalled, there was no evidence that this was the case. As a result, they were compelled to take treatment in the community for more than one year.

In some cases, this had been going on for a few years. We thought that this was not allowed by law and was against the spirit of what the 1995 Act intended.

In total, we had concerns about 14 people still detained but on Leave of Absence.

During our investigation, at their request, we carried out reviews of detention for two of the people involved. We thought that they no longer needed to be detained and we discharged them. Another four were discharged from detention by their responsible medical officers We had concerns about the legal arrangements for the care and treatment of the remaining eight.

What we did

We met with the people who were still on leave of absence to find out what they felt about their treatment and what information they were given about their recall to hospital.

We also talked with the staff caring for them and with relatives and informal carers.

What we found

The eight people we interviewed were very pleased about the service they had been receiving.

They said that they were well supported and most of them told us they were happy to continue to take treatment.

They thought that they had to come back into hospital to get their “sections” renewed.

Some said they had agreed to go back in, but most were told to or were under the impression they had to.

None of them remembered receiving a letter telling them to come back into hospital.

They all thought they were well at the time and did not need to be in hospital. Most of the people we saw did not know that, if they did not go back into hospital, their detention would lapse. Most people said that they would continue to take treatment and accept services even if it was not compulsory.

When we discussed these cases with staff, they seemed to think that they were acting within the law.

They thought that they had given people the information they needed about coming back into hospital. They genuinely thought they were


10 acting in the best interests of the individuals. Carers were particularly complimentary of the service and supportive of the staff.

Summary of recommendations

We sent reports to the

Health Board about the eight people whose treatment we thought was unlawful. We asked the Health Board and the doctors concerned to discharge them from detention and were very pleased that they acted quickly on this. Some people had already been discharged from detention. Within three weeks of our reports, they had all been discharged.

We made some recommendations to the

Health Board. While the law has now changed to allow continued compulsory treatment in the community beyond one year, we think there are important lessons to be learned from this investigation.

• Doctors should take legal advice if they are in any doubt that what they are doing is not within mental health law.

• Giving of information and participation of patients in decisions about care and treatment are key principles of the new Act. Hospital managers, doctors and mental health officers all have duties to give people information about their legal situation, rights, care and treatment.

• It is important that people know they are entitled to the care and treatment they need, whether they are subject to compulsion or not.

• We thought that some of these people could have been discharged from detention earlier. Doctors must keep checking whether compulsory treatment continues to be necessary.

We at the Commission also learned from this investigation. We had seen some of these people over previous years and there was some awareness within the organisation that leave of absence was being used in this way. We did not share this information across the

Commission for some time.

Had we done so earlier, we would have taken legal advice on whether the Act was being used correctly.

We now bring problems like this to a monthly meeting of all our practitioner staff and we ask for legal advice where necessary.

1.1.3 Report on the investigation into the care and treatment of Mr H

Background

Mr H is a man in his mid 70s with a long history of alcohol abuse. He had been drinking from around the age of 14.

He married and had 5 children but the marriage ended in divorce and he lost contact with all but one of his children. It is felt that his alcohol abuse played a large part in the family breakdown.

He worked as a lorry driver, intermittently, until his mid

40s, when his drinking became much heavier.

The one child with whom he remained in contact was reportedly suspected of abusing and exploiting him.

Mr H had repeated crises involving the police, courts,

A & E visits, his GP, social workers and Housing

Department officials. His health records as early as

1985 refer to his ‘long history of alcoholism’. They report suicidal wishes, multiple


11 physical health problems and various injuries, resulting from fights and falls, most often associated with alcohol abuse. He had two periods of hospitalisation in the ‘80s for detoxification. In the mid

‘90s he was removed from his GP’s list and was taken on by another who remained his GP thereafter.

Early social work contact dated from the mid ‘80s and appears to have been related to his offending. Subsequent contacts in the ‘90s were on a crisis basis and largely related to lack of money for food and utilities and problems with accommodation. There were quite frequent contacts with his GP, social work and housing prior to the point when he was placed on guardianship in March 2004.

It was in reviewing the guardianship of Mr H that we learned that he had been diagnosed as having dementia, likely to have been caused by his long-standing alcohol abuse and that he had been known to statutory services since the 1980s.

His guardianship followed from admission to hospital in August 2003 where he was reported as being ‘very unkempt and malnourished and suffering from lice and scabies infestation’. When he was admitted to hospital his house was found to be uninhabitable with the floor contaminated with urine and faeces. There was no food and no gas or electricity supply.

After he was placed on guardianship Mr H was admitted to a care home where his health and wellbeing improved considerably. He was malnourished when admitted to hospital in August 2003.

In December 2003 he weighed 55kg. A year later, his weight had increased to

67 kg. He has participated in an art class at a local college and enjoys regular outings.

He enjoys good relations with staff and reportedly is well settled and wishes to remain there. The family member who was reported to have abused and exploited him is no longer in contact.

It was evident that Mr H had been known to both health and social work services for some considerable time.

The poor mental and physical condition he was in must have taken an extended period of selfneglect. We examined whether statutory services could and should have taken action earlier to protect Mr H, because of his lack of capacity to look after his own interests.

What we did

We undertook a full review of the health and social work files. We also asked for reports from health and social work services on their management of Mr H.

What we found

We found that health and social care services did not pay enough attention to Mr H’s mental function and capacity. He had contacts with his GP and the Department of

Medicine for the Elderly and there was evidence of decline in his mental function. Services did not act on this to protect his health and welfare. Social work and housing services responded to crises but they did not give enough thought to his ability to make decisions. He was never given a comprehensive assessment of his community care needs until the point when guardianship was sought. Overall, we found poor co-ordination of responses to Mr H’s problems.


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There are strong reasons why statutory services should pay greater attention to people affected by alcohol related brain damage

(ARBD). The population of people with ARBD is thought to be growing in Scotland.

While the prevalence rates of ARBD cannot be easily established, research suggests that alcohol is a factor in approximately 10% of people with dementia.

Rates are likely to be higher in areas with greater socioeconomic deprivation. One factor distinguishes ARBD from most other forms of dementia, however.

A significant number of those who have developed it have the potential to recover substantially if they receive the proper health and social care and support. Abstinence from alcohol, good diet and vitamin supplements are most important.

ARBD is a mental disorder.

When people lack the capacity to safeguard their health, safety and welfare because of a mental disorder, local authorities may have a statutory duty to seek guardianship under the

Adults with Incapacity Act in order to implement the care and treatment necessary to protect them. We are concerned that attitudes to people who drink excessively can be a barrier to assessment of capacity and provision of care. The findings and recommendations of the report will be of relevance to services throughout

Scotland.

Summary of recommendations

We made recommendations to the Health Board and the local authority. We thought they should:

• Improve assessment of capacity of people with alcohol problems

• Improve assessment, care management and information sharing

• Make all their staff aware of our report and provide better training in ARBD

• Audit how they deal with people who repeatedly contact services as a consequence of alcohol dependence

• Revise their alcohol action plan to include the needs of people with alcohol related mental disorder

• Examine how housing and social work departments can work better together

• Improve procedures for assessing capacity and investigating impaired brain function in people with alcohol problems by the

Department of Medicine for the Elderly

We also thought that there were lessons for the Scottish

Executive:

• They should respond to the recommendations in the Report of the Expert

Group on Alcohol Related

Brain Damage, published in March 2004.

• They should audit local

Alcohol Action Plans to ensure they adequately address services for people affected by ARBD.

What we did after issuing our report

We met with senior officers of the relevant health and social work services to discuss how they will take forward action in response to the recommendations.

We published an anonymised report following the issue of the full report to those statutory services involved. This was sent to

Chief Social Work Officers,


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Chief Executives of NHS

Boards and relevant

Voluntary Organisations.

This was because services for people with ARBD are widely acknowledged to be deficient throughout

Scotland, not just in those specific services which were the focus of the investigation.

We also sent an anonymised report to the Scottish

Executive, drawing their attention to those recommendations directed at the Executive and asking for their response. We will report on this in next year’s annual report. We are pleased that, unrelated to this inquiry, the Executive has set up the Mental Health and Substance Abuse

Advisory Group. We are represented on this and we hope the group will help to improve services for people with ARBD.

1.1.4 Follow up to the inquiry into the care and treatment of Ms D

We reported on this inquiry in last year’s annual report.

Ms D is a young woman with a learning disability who had been exposed to sexual abuse and financial exploitation for several years.

Belatedly, the local authority acted to protect her health and welfare through a welfare guardianship order.

Since being placed on guardianship in December of 2002, Ms D has received the care and support she has needed to protect her and to help her personal development.

The findings of our inquiry highlighted poor assessment and handover arrangements. Staff had a poor understanding of Ms

D’s impaired capacity to protect herself and the help that guardianship might offer her. The local authority undertook its own investigation at our request and came to similar conclusions. They accepted the findings of our inquiry.

During the past year we have had two follow-up meetings with the local authority.

Before this, we met the authority concerned jointly with the Social Work

Inspection Agency (SWIA) to review the authority’s plans to implement the recommendations of this enquiry. The deficiencies uncovered were very similar to those found in the Social

Work Services Inspectorate’s

(SWSI) (now the Social Work

Inspection Agency) inspection of learning disability services in the Borders as well as other MWC enquiries. SWSI had asked each authority to audit their case records of people with learning disabilities, in light of the findings and recommendations in the

Borders Inquiry. We thought it would help to work together with SWIA to see how the authority was planning to implement key recommendations affecting services for people who may be vulnerable due to learning disability.

We believe the authority concerned has taken a number of strong, positive measures which should help guard against similar occurrences. The authority has been changing its structure. This has allowed them to address many of the areas of concern in a more co-ordinated and systematic way. The measures they have taken include:

• An audit of procedures following the Borders inquiry. They also undertook a further review of individuals dealt with under the multi-agency vulnerable adult procedures;


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• The establishment of a risk management group. This should help frontline staff and managers to assist people with complex needs. There will be extended case discussions where specific concerns have been identified. This will include consideration of how and when to use legislation to provide the care and treatment necessary to protect vulnerable individuals;

• The establishment of local

‘practice review and development groups’.

These should inform, direct and govern practice development within local areas. These are seen as an important forum for staff who have to protect vulnerable adults;

• Production of risk management guidelines.

These highlight and emphasise the need to consider and use legislation;

• Along with health partners, they developed a two-day training package. This focuses on protection of vulnerable adult procedures, the Adults with

Incapacity (Scotland) Act

2000 and the Mental

Health (Care and

Treatment) (Scotland) Act

2003. It is intended to increase the confidence of team leaders and managers in the use of the procedures and the protective legislation. This training will be repeated and cascaded to staff at local levels;

• There is now a managed transfer of responsibility from children’s services to adult learning disability teams where a child is assessed as needing ongoing support and care management;

• An audit tool for adult protection has been developed and there are plans for auditing practice in this area.

The first six of the above points relate solely to people/services to people with learning disability.

The last relates to all adult client groups.

The authority has given our report close and comprehensive attention.

Ms D herself appears to be doing well with the care and support she has now been receiving for nearly 4 years while subject to welfare guardianship. We continue to liaise with the Social Work

Inspection Agency over the areas of deficiency highlighted in our report and the authority’s response.

1.1.5 Follow up to the inquiry into the care and treatment of Mr A

The Commission’s Inquiry into the care and treatment of Mr A was reported in the

Annual Report of 2003-2004.

He was a young man who developed an acute psychotic illness and was admitted to hospital. He was allowed out of hospital in the company of his parents, contrary to instructions that were recorded in his case notes. He ran away from his parents and died as the result of a fall from a height.

We made a number of criticisms of his care and, in last year’s report, we described progress in addressing these. Two matters of concern remained and we have met again with representatives of the Health

Board. We are trying to resolve concerns about the responsibility of consultants who are covering for absent colleagues and the involvement of consultants in decisions to change observation levels.


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As we reported last year,

Mr A’s parents complained to the Public Services

Ombudsman. At the time of writing, we do not know the outcome of this.

1.1.6 Compensation for Mr B

We reported on the findings and recommendations of our inquiry into the care and treatment of Mr B in our

2001 annual report. Mr B was a man with a learning disability who suffered financial losses as he lacked the capacity to manage his own finances and available protections under the law were not sought by those responsible for his health and social care.

Our inquiry found that despite an awareness of

Mr B’s situation and their legal duty to safeguard his best interests, social work services had failed to protect Mr B’s financial interests adequately. We recommended that the local authority involved in his care should compensate Mr B for his losses and referred Mr B to Enable for support in taking a case forward with his solicitors, should he wish to do so. As a result, this year Mr B has settled for a compensation sum of

£18,500 plus expenses to reflect the loss and damage through the fault and negligence, and breach of statutory duty, of the Council responsible for his care and protection. We are very pleased to see such a positive outcome for Mr B.

1.2 Visiting work

1.2.1 General

Introduction

Visits to individuals are very important to us. Through these visits, we obtain most of our information about how people are being treated.

This helps us build up a picture of services locally and nationally. We do this by meeting individual service users, their carers staff providing care and independent advocates. We listen to their views about care and treatment, examine people’s records and discuss their care with staff.

Sometimes, we make recommendations about the care of the people we see.

We may investigate in more detail if there is evidence of, for example, abuse, neglect or deficiency of care.

We also use people’s experiences to make recommendations to managers about the service in general.

Because of the implementation of the new

Mental Health Act, we visited fewer people this year than usual. We needed more of our staff to be available for providing guidance and information. We suspended our programme of service visits for two months and stopped routinely visiting people who were on leave of absence from hospital.

We also changed the way we visited people who have welfare guardians.

Previously we visited everyone on welfare guardianship but we changed our policy because the use of guardianship is rising (see section 2.4).

We now read all welfare guardianship orders and visit where we have concerns about the powers or if there has been disagreement about the order. We also visit all people on welfare guardianship in certain care groups, e.g. younger people with dementia and people with alcohol-related brain damage.

After the new Act had been implemented for a few


16 months, we started seeing people on ‘deemed’ compulsory treatment orders

(CTOs). These were people who had been detained under the old Mental Health

Act and had been transferred to the new Act. At first, we decided only to see people where we thought there was a problem with the way the new Act was being used.

However, we thought we needed to know more about the use of the Act and we made a decision to try to see everybody who had transferred from long-term treatment under the old Act.

Table 1 shows the individual visits to people in their own homes or in care homes.

Although we made fewer of

Table 1: Visits to people at home or in care homes, 2005-06

Type of visit

Leave of Absence from hospital

Guardianship Order – initial visit

Guardianship Order – return visit

Intervention Orders

Community Care Orders

Deemed CTO visit

Total these visits than usual, we have started to see people who are receiving compulsory treatment in the community.

Table 2 shows the people we met during our service visits.

Despite the two months when we did not visit, we still made sure we visited hospitals, including the State

No

35

196

119

4

2

46

402

Table 2: People met on the service visits, 2005-06 (including annual State Hospital visit)

Reason for meeting

Statutory visit under MH(S)A*

Service-user seen by request

Other MWC-initiated visit

Relative seen by request

Discussion with advocacy worker

Group meeting with service or carers

Total contacts

* Mental Health (Scotland) Act 1984

No

51

561

99

62

62

15

850


Health Boards and local authorities act when we raise serious concerns with them.

17

Hospital, community services and other places providing care. Although we saw about

20% fewer people compared with last year, most of this was because we had fewer

‘statutory’ visits under the

1984 Act. We increased our contact with advocacy services and made sure we were available to see people by request.

Outcome from visits

Last year, we reported on the recommendations we made from our visit programme.

We have looked at this again.

This is shown in Table 3.

As with last year, concerns about treatment and care of individuals remained our top priority. Not surprisingly, recommendations about legal issues came higher as a result of the new Act.

We still have concerns about environments, especially in older hospitals that are scheduled to close.

Despite our concerns, we were very pleased to see that there have been some major improvements to areas where we reported concerns last year. We saw improvements to facilities and amenities following our recommendations. This shows the importance of our independent views on services and demonstrates that Health Boards and local authorities act when we raise serious concerns with them.

Table 3: Recommendations made during visit programme

Type of recommendation

Amenities/activities/treatments

Use of legislation

Buildings/fabric

Risk/security issues

Other service issues

Staffing and teamwork

Community/discharge issues

Strategy

Miscellaneous individual issues

Bed usage

Advocacy and representation

Patient funds management

Services for children

10

10

Carer issues 4

Total 404

20

20

19

15

34

27

24

21

2005-06

77

72

51

9

7

6

402

28

21

30

18

2004-05

68

38

47

26

31

37

36


18

Examples of improvements are:

• Major improvements to accommodation in two hospitals in the west of

Scotland. In previous years, we criticised poor long stay wards in those hospitals and we are very pleased with the improvements to give people more dignity and personal space;

• In a hospital in the east of

Scotland we had concerns over environment and patient mix in one ward.

It was a locked intensive psychiatric care unit (IPCU) but also had people being treated informally. We had concerns about men being treated in the female wing.

After we raised this with the chief executive, the ward has been upgraded and all our concerns have been met;

• Another IPCU had a garden area but no access from the ward. We raised this with hospital managers and access is now being provided;

• In one particular hospital, we made recommendations about staffing. Following our recommendations, they made significant increases to nurse staffing. They also appointed a liaison nurse for people with learning disabilities who are admitted to general psychiatric wards. The local authority also increased the social work input to the hospital.

Recurring themes

We picked up some general issues from our visits to individuals and to services.

These included:

Lack of information on the new Mental Health Act

• We found that users and carers were not being given enough information about the Act and some of the new provisions. People seemed to know little about named persons and advance statements. We supplied information and encouraged managers to make this more available.

Often, staff were unsure of some aspects of the new Act, especially relating to named persons.

Access to independent advocacy

• We routinely asked about access to advocacy services. Usually, we found that advocacy services were available although we often recommended that staff should do more to make people aware of advocacy. Some care groups were less likely to have access, for example children, people with learning disability and older people.

Smoking

• Under new smoking legislation, mental health wards are exempt from the ban. However, any person who smokes must do so in a designated room. This has caused problems in some services. In some cases there are no smoking facilities in in-patient wards.

People may go outside to smoke, but this can cause problems if there is a need for close nursing supervision. However, we are now seeing far fewer wards that smell of cigarette smoke. This will improve the health of all patients and staff. We are also pleased to see people getting help to stop smoking.

Management of individuals’ money

• While we no longer have direct responsibility for


19 inspecting how people’s money is used, we are still very interested in this area.

It is important that people who lack capacity have their money managed for their benefit. Also, new changes to benefits rules mean that people in hospital will have more money than in the past.

We have been raising this with service managers and will be keeping a close eye on the issue. We also encourage services to use hospital endowment funds to improve the care that people get. We look forward to new guidance from the Scottish Executive on the management of residents’ funds.

Safety and security

• We remain concerned about some safety practices. In particular, we still see a few services that use interval observations

(e.g. checking a person’s whereabouts every 15 minutes). This is against national guidelines and we think it is unsafe practice.

We highlighted this issue in last year’s report. Also, we still find services that use the word ‘parole’ when allowing people time out of the ward either with or without an escort. Mental health services should not use this term. ‘Ground access’ or ‘time off ward’ are acceptable terms and less likely to encourage stigma. We are starting to look at how services use new procedures for searching people and restricting the use of the telephone.

Care package funding shortfalls

• Throughout the year, a number of situations have been brought to our attention where local authorities have been unable to fund care packages for some individuals. The people we hear about are most likely to be awaiting discharge from hospital on guardianship or CTOs.

We are concerned that this may lead to vulnerable people not receiving the care they are assessed as needing. We are aware of the need to establish greater clarity in costing and funding free personal care. We hope that this will be achieved following the completion of an independent review of free personal care and the Executive’s subsequent response. In the meantime, we would expect health and local authority partners to allocate resources for the benefit of people most in need and at greatest risk.

We have seen some significant improvements to services this year. If our recommendations are not met and if the issue is serious, we take the matter to the chief executive of the Health Board. If this fails, we may ask the Scottish

Executive to look into the matter. We raised serious concerns about people entrapped in the State

Hospital, services for people with eating disorders and facilities for children and younger people with the

Scottish Executive. We were pleased with the

Executive’s response to our unannounced visits to admission wards last year and we hope that the Mental

Health Delivery Plan will take our findings into account.

We hope that this will lead to significant improvements in acute care across Scotland.


20

Single en-suite rooms were greatly appreciated and are a great improvement in terms of personal dignity.

1.2.2 Unannounced visits

This year we carried out four unannounced visits to wards across Scotland.

Unannounced visits provide a valuable way of gaining a picture of what it is like to be receiving care and treatment in a particular facility. We find these visits very effective and it is our intention to increase the proportion of our visits that are unannounced.

What we found

We visited a ward that provides assessment and care for people over 65.

Many of the people had dementia with a wide range of care needs. We were aware of a number of issues about the ward through involvement with a complaint made by a relative of a patient who had died in the ward some time ago. We wanted to follow up on some of the problems that had been identified through the complaint and at previous visits. We were particularly interested in how the layout of the ward affected the care and supervision of patients.

We found that there was a practice of caring for frail people in a locked dormitory area of the ward with only intermittent contact with staff. There was no means by which a patient in the dormitory could summon help. We were very concerned that a man had been cared for in the dormitory with bedrails on his bed. We believe this is particularly dangerous without close supervision by staff. Managers acknowledged our concerns and this practice has now ceased.

We visited three acute admission wards in a large psychiatric hospital. The decision to visit these wards followed contact with the

Commission by a former patient who raised concerns about poor care and the attitudes of staff. 12 patients spoke to us, most of whom had something positive to say about their care.

However, there were reports that a minority of staff were

“stern and unapproachable”.

Peer support from other patients was greatly appreciated. A minority of patients felt unsafe at times in the wards, particularly at night, because of the behaviour of other patients and said sometimes they did not feel supported by staff.

The single en-suite rooms were greatly appreciated and are a great improvement in terms of personal dignity over the previous dormitory accommodation. However, they cannot be locked from the inside leading to a few patients blocking the doors with chairs. This is potentially very dangerous. We believe that it is acceptable to have locks that can be operated by the patient using the room with an override for staff to ensure rapid access if necessary.

Written information about the hospital, the wards, advocacy and advance statements was not reaching patients. This is a recurring theme in many services.

Staff on these visits were very welcoming and helpful.

We are following up on the findings of these visits with the managers of the service.

1.3 Suicides, accidents and incidents

We continue to receive reports on suicides and serious accidents and incidents. We are particularly interested to see the critical incident reviews that take place following any serious


21 event. As well as questioning whether recommendations made in these reviews have been carried out, we are keen to gather learning points and good practice examples from the reports that we receive. Some of the important learning points we have identified this year are listed below.

• A patient had been admitted to a general adult service out of area because she did not want admitted to her local hospital. Following discharge she took an overdose and subsequently died. The critical incident review recognised that communication between the in-patient team and the services in her home area had not been good. A recommendation was made that in such cases clinical teams should be vigilant about communication and a representative from the receiving team should attend discharge meetings.

• The critical incident review of a man with severe and enduring mental health problems who had committed suicide identified that he had very little contact with anyone apart from his community psychiatric nurse. The review concluded that at least an annual contact with a GP would be desirable. We recommended that the

GP practice concerned annually review the notes of patients with severe and enduring mental health problems. This is in line with Scottish Programme

For Improving Clinical

Effectiveness in Primary

Care (SPICE) guidelines.

These guidelines are available at; http://www.bma.org.uk/ap.n

sf/Content/QualityOutcome s~clinical~mh

• A man who presented with several high-risk suicide factors refused to stay as an informal patient on a ward. The man was assessed by the senior house officer(SHO) and allowed to leave against medical advice. He later took an overdose and died.

We recommended that

SHOs should involve senior colleagues in discussion about the unplanned discharge of patients with high risk factors. We also recommend that all

Health Boards should have an agreed policy on assessment by SHOs and that assessment of risk training should be included in SHO induction programmes.

• A man with an eight month history of anxiety, agitation and depression with panic attacks and suicidal ideation was urgently referred to psychiatric services by his GP. The man was seen two weeks later. The junior doctor who saw him assessed that there had been some improvement, concluded that he did not have a depressive illness and that his distress was linked to other factors. The man killed himself three weeks later. The critical incident review noted that the junior doctor had not discussed his conclusions with the referring GP, nor with a senior colleague. We recommended GPs should know what the local timescales are for an urgent referral. Also, that it would be good practice, particularly in urgent referral cases, that the assessment letter be countersigned by a consultant as well as the junior doctor.


22

• An insulin dependent person with diabetes in a mental health unit was given a potentially fatal dose of insulin by nursing staff. There had been no appropriate syringes available on the ward to administer the insulin and this had led to a mistake being made when the dose was drawn up.

We recommend that all services should ensure that the proper equipment is available for the treatment of diabetes and that staff are appropriately trained. They should seek advice from local diabetic liaison nurses.

1.4 Consent to treatment

This section covers treatment given under the

1984 Mental Health Act prior to 5.10.05, treatment under the Mental Health

(Care and Treatment) Act

(Scotland) 2003 since

5.10.05 and treatment under the Adults with

Incapacity Act 2000.

The figures for 2003 mental health Act work are difficult to interpret at this stage.

Doctors were not familiar with new forms and did not always complete them accurately. The new Act has different reporting requirements and we are collecting data differently with a new information system. There are some discrepancies in our figures but we are resolving these.

We will be more confident in our data in future and will be able to give more detailed information. We have not changed the way we collect and present information on the Adults with Incapacity Act.

Treatment under Part X of the Mental Health (Scotland)

Act 1984

Neurosurgery for mental disorder (NMD)

Neurosurgery is a treatment that is used when other options have failed. It can be very helpful for people with intractable depression or obsessive-compulsive disorder. There are strict safeguards for this treatment that include assessments by a doctor and two other people appointed by the

Commission. Under the

1984 Act there was no requirement for the independent assessment of informal patients who were being considered for neurosurgery. However, the

Dundee Centre for NMD, the only UK centre offering this treatment, had an agreement with the

Commission that the assessment procedures for informal patients should be the same as those for detained patients.

Last year’s Annual Report referred to a person with

‘protracted depression’, who made a significant recovery after surgery but the benefit was lost after one year and a second operation is now being considered.

Experience of NMD in the

USA suggests that early benefit from surgery may be lost as a result of healing and a second operation may restore the benefit. We assessed a second person under the 1984 Act procedure who had undergone surgery on two previous occasions, with no significant benefit.

Although the person consented to the treatment, the Medical Commissioner’s assessment was that a third operation was unlikely to be beneficial and treatment has not been carried out.

Treatments under Section 98 of the 1984 Act

The table on page 23 shows a substantial (14%) increase


23 in the number of treatments given with consent under

Form 9 during the six months to 5.10.05 compared with previous years. The number of treatments under Form 9

(people giving informed consent) was fairly constant during recent years and there was no change in the number of Form 10 (people not consenting or incapable of consenting) treatments over the six month period, so the change probably reflects an increase in the number of detentions continuing beyond three months (see section

2.2 of this report). There was a reduction in the frequency of use of electro-convulsive therapy (ECT), continuing a trend commented on in previous annual reports.

In total, 80 people were treated with ECT under the

Act, compared with 90 in six months of the previous year.

Treatment under Part 16 of the Mental Health (Care and Treatment) (Scotland)

Act 2003

Neurosurgery for mental disorder (Section 235, 236)

The 2003 Act extends the need for independent assessment to informal patients. The Act also introduces the possibility of NMD for persons who are unable to consent.

This requires Court of

Session approval but there have been no applications for this to date. The Act requires a Designated

Medical Practitioner (DMP) and two persons, appointed by the Commission, to make the assessments.

The Commission intends to continue its previous practice of appointing Medical

Commissioners and parttime Commissioners to do this work. This arrangement allows the Commission’s

NMD working group to accumulate experience and develop expertise in this area.

Two referrals have been made and independent assessments carried out under the new Act. One person was suffering from prolonged depression and assessment confirmed that treatment was likely to be of benefit. A second person was receiving treatment in a hospital in England.

A previous operation had brought about significant but temporary benefit. A second operation was proposed for the reason described above.

The assessment was that there was a good prospect of benefit.

Other treatments

(Section 237, 240)

Section 237 covers treatment that may only be given to a

Table 1: Treatment plans under the Mental Health (Scotland) Act 1984,

1 April-4 October 2005

Type of treatment

Medication

ECT

Total

Form 9

687 (22)

15 (2)

702 (24)

Form 10

358 (20)

65 (1)

423 (21)

Figures in brackets indicate coexisting Form 9 and 10 (part of the treatment is covered by

Form 9 and part by Form 10).


24 person who consents or is unable to do so. Where the person consents, the

Responsible Medical Officer

(RMO) authorises treatment by completing form T2.

Persons unable to consent may be given treatment if a

DMP approves the treatment and completes form T3. If the person resists or objects, these treatments may only be given to save life, prevent serious deterioration or alleviate serious suffering.

Treatments specified are

ECT, transcranial magnetic stimulation (TMS) and vagus nerve stimulation (VNS).

At the time of writing, neither

TMS nor VNS have been given under the Act.

Section 240 covers treatment with medication to reduce sex drive, medication given for more than 2 months

(compared with 3 months under the 1984 Act) and artificial feeding. These treatments can be authorised by the RMO, if the person consents, using form T2 or by a DMP, using form T3, if the person does not consent.

The increased number of specified treatments, together with additional requirements in the new Act, has caused difficulties for

RMOs and DMPs in the completion of forms.

Treatment with consent

(Section 238)

Where the person is able to consent to treatment and does so, the RMO authorises treatment by completing form

T2. The RMO should send a copy of the form to the

Commission at the time of extension or variation of the

Order. Some RMOs continue to send copies to the

Commission when the form is first completed, as was required under the 1984 Act, but the change in reporting requirements, together with a reduction in the number of Orders, have resulted in a substantial reduction in the number of forms received by the Commission. 388 forms were received in the first six months of operation of the new Act, compared with 702 in the last six months of the

1984 Act. 11 specified treatment by ECT.

Treatment requiring a second opinion (Section 239, 241)

Table 2 (page 25) gives the breakdown of treatments authorised by DMPs during the first six months of the new Act. The total number of certificates we received

(475) represents a 12% increase on the number of equivalent 1984 Act forms issued in the previous six months. This is likely to be an underestimate, as the number of second opinion visits arranged by the

Commission in the last six months of the 1984 Act was

433 and, in the subsequent six months, 530; an increase of 22%. Last year’s Annual

Report noted a gradual rise in the number of second opinions under the 1984 Act and attributed these to greater awareness of people’s wishes, perhaps stimulated by individual advocacy, changes in the assessment of capacity and increased complexity of treatments. These factors, together with the increased number of specified treatments and the requirement for a treatment form at two months, rather than three, account for the increased demand for second opinions. This has resulted in increased difficulty and delays in arranging DMP visits. The number of DMPs approved by the Commission has increased but their availability has been reduced by other demands on their


25 time, such as changes to their contracts and changes introduced in the new Act, including the introduction of the Tribunal. Medical

Commissioners have carried out over 60 assessments since the new Act was implemented because no other DMP was available, compared with two or three each year under the 1984 Act.

Ten children (under 18) have received treatment authorised by a DMP. The new Act requires that either the RMO or the DMP is a

Child Specialist. Our policy is that the DMP should be a

Child Specialist in all cases.

In eight of the ten cases the

RMO was a Child Specialist and the DMP was a Child

Specialist in nine cases. In one case, where the patient was 17 years and 9 months, we arranged for a DMP who was not a Child

Specialist to visit a patient whose RMO was also not a Child Specialist. We have taken steps to prevent a recurrence of this and have written to the individual to explain the circumstances.

Table 2: Certificate of the Designated Medical Practitioner (T3),

5 October 2005-31 March 2006

Treatment under Part 5 of the Adults with Incapacity

(Scotland) Act 2000

Table 3 shows a reduction in treatment by medication under the Act. Sterilization approved under Section 48 of the Act is where this is the incidental result of treatment given for another purpose.

Designated Medical

Practitioners (DMPs)

73 doctors gave second opinions under the three

Acts during the year, compared with 59 in the

Type of treatment

ECT

Medication to reduce sex drive

Artificial feeding

Medication over 2 months

Form completed incorrectly

Total T3 certificates

No

58

3

18

383

13

475

Table 3: Adults with Incapacity (Scotland) Act 2000, 1 April 2005-31 March 2006

Type of treatment

Medication to reduce sex drive

ECT

Sterilization

Total

Section 48

17

22

1

40

Section 50

0

0

0

0


26 previous year. Despite this, there were difficulties and delays at times because of the increased number of requests. During the year we held two seminars to provide training on the new Act and all DMPs have now received training. The second seminar, in February

2006, allowed discussion of recent changes to Part 5 of the Adults with Incapacity

Act, correct completion of the new Mental Health Act forms, advance statements, care plans for artificial feeding and initial problems with the operation of the new Act.

We are grateful to the following doctors, who have provided second opinions during the past year.

Dr Ali, Dr Al-Mousawi,

Dr Aryiku, Dr Anderson,

Dr B Martin, Dr Backett,

Dr Bell, Dr Berry,

Dr Chiswick, Dr Clark,

Dr Clunie, Dr Collins,

Dr Connaughton, Dr Cooper,

Dr Craig, Dr Crawford,

Dr Creaney, Dr D Brown,

Dr D Taylor, Dr Dalkin,

Dr Dewar, Dr Dickson,

Dr Dingwall, Dr Drayson,

Dr Duncan, Dr Dyer,

Dr Flanigan, Dr Flowerdew,

Dr Gibb, Dr Gotz, Dr Groves,

Dr Haut, Dr J Martin,

Dr J Taylor, Dr Johnstone,

Dr K Brown, Dr Kerr,

Dr Leighton, Dr Lock,

Dr Lodge, Dr Logie,

Dr Lyons, Dr M Taylor,

Dr MacFlynn, Dr MacLeod,

Dr Mani, Dr Matson,

Dr McClure, Dr McDonald,

Dr McKnight, Dr Morrison,

Dr Mountain, Dr Murphy,

Dr Murray, Dr Myatt,

Dr Neilson, Dr Nuttall,

Dr Olley, Dr Osborn,

Dr Patience, Dr Reid,

Dr Riddle, Dr Ritson,

Dr Robertson, Dr Robinson,

Dr Rodriguez, Dr Rogers,

Dr Roll, Dr Stewart,

Dr Sykes, Dr Thomson,

Dr Walker, Dr White.

Table 1: Reviews of detention and guardianship, 2003-2006

Type of order

2003-04

No (%)

2004-05

No (%)

Section 18 MH(S)A*

Section 26 MH(S)A

Section 71/72 MH(S)A

Section 74 MH(S)A

223 (42)

219 (42)

4 (1)

3 (1)

191 (42)

176 (38)

5 (1)

5 (1)

CP(S)A**

Community care orders

Conditional discharge CP(S)A

Guardianship powers AWIA***

Total

63 (12)

1 (–)

2 (–)

12 (2)

527 (100)

63 (14)

1 (–)

1 (1)

16 (3)

458 (100)

* Mental Health (Scotland) Act 1984, **Criminal Procedure (Scotland) Act 1995,

*** Adults with Incapacity Act 2000.

April-Oct 2005

No (%)

85 (38)

92 (41)

2 (1)

0 (–)

32 (14)

0 (–)

0 (–)

16 (5)

227 (100)


27

1.5 Requests for discharge from detention

Mental Health Act 1984

The Commission continued to carry out reviews of detention until the implementation of the new

Mental Health Act in October

2005. The Mental Health

Tribunal for Scotland is now responsible for considering appeals against detention.

We will assist people to make appeals in cases where this seems appropriate but, as stated in last year’s

Annual Report, we no longer consider appeals.

Table 1 shows that, for the six months to October 2005, the number of reviews carried out was comparable to previous years. We discharged two people from

Section 18 orders and one from a Section 26 order.

The procedure for the reviews was as described in last year’s Annual Report.

In all three cases, we were satisfied that the powers were not necessary for the provision of care and treatment. In one case the person was subject to welfare guardianship and we were satisfied that this provided adequate and more appropriate powers.

In recent years we visited about 500 people annually to carry out reviews of detention. These visits have provided invaluable information that has assisted us in carrying out our duty to monitor the care of those detained under the Mental

Health Act. We will visit at least as many people subject to orders under the new

Mental Health Act to monitor how the Act is working and to promote best practice.

Adults with Incapacity Act

As will be seen from Table 1

(page 26), we received 16 requests for discharge from guardianship during the past year. We agreed to recall the welfare powers in 12 cases and 12 were discharged.

These figures are almost identical with those of the previous year. In almost all cases the request was made by the local authority that acted as guardian.

1.6 Communications, information and advice

1.6.1 Information and advice

This section reports on use of the Commission’s telephone advice line and email enquiry service, and responses to applications under new Freedom of

Information legislation.

Telephone advice service

We provide a telephone advice service, aimed at helping users, carers, professionals and others by giving them advice and providing information that is not available from other sources. Our administrative and practitioner staff offer this service during normal office hours. We introduced a new freephone* number

(0800 389 6809) to help service users and carers contact us for information about their rights and to discuss concerns.

*mobile users should check whether any charges may be applied.

We recorded 4641 calls requesting advice during the entire year 2005-06, an increase of 30% on the previous year. We analysed calls recorded over a threemonth period, October to

December 2005, and compared this with the same period in 2004 (Table 1 – page 28).

For the first time, we received more calls from psychiatrists


28 and social workers (728) than we did from service users and carers (302).

When compared with the same period in 2004, the proportion of service users calling has decreased by

23%. This drop is in direct proportion to the numbers of requests we received for reviews of detention under the 1984 Act. Service users can now apply directly to the Tribunal for revocation of orders. However, they still contact us for advice on their rights and to discuss their concerns about their care and treatment.

The nature of calls is shown in Table 2 (page 30-31).

Not surprisingly, we saw a huge increase in the category of calls concerned with the Mental Health (Care and Treatment) (Scotland)

Act 2003. Our recent survey of practitioners’ perceptions of the Mental Welfare

Commission highlighted how much they value our information and advice.

Table 1: Identity of callers, between October and December in 2005, compared with the same period in 2004

Callers

Patient/service user

Relative/carer/friend

Psychiatrist/RMO

Mental Health Officer/Social worker

Nurse

Allied health professional

Advocate

Medical records staff

Solicitor

GP

Care home manager/staff

Mental Health Tribunal

Scottish Executive

Named person

Welfare guardian – private

Other

Total

2004 No(%)

298 (35)

105 (12)

112 (13)

136 (16)

44 (5)

–

54 (6)

35 (4)

8 (1)

9 (1)

–

–

–

–

–

56 (6)

857 (100)

2005 No(%)

196 (12)

116 (7)

364 (22)

364 (22)

66 (4)

2 (0)

99 (6)

223 (14)

10 (1)

13 (1)

11 (1)

2 (0)

1 (0)

1 (0)

1 (0)

154 (9)

1623 (100)


Our recent practitioner survey highlighted how much they value our information and advice.

29

We added a ‘Question and

Answer’ section to the

‘Rights and the Law’ area of our web site at www.mwcscot.org.uk, which helps explain the use of mental health law in particular situations.

We will continue to add new advice to this section.

E-mail enquiries

We received 158 e-mails to our enquiries address

(enquiries@mwcscot.org.uk) in the last quarter of 2005.

The majority of these e-mails were requesting help and training in interpreting use of measures and forms under the new act, requests for our new information leaflets and Mental Health

Act Topic Guides, complaints in relation to mental health services, and for advice on complex individual situations.

We are sorry that we cannot enter into long exchanges with individuals by email because of security risks.

We follow up by phone or letter or through our visit programme.

Freedom of Information

(Scotland) Act 2002

Our publication scheme is available on request and on our web site at www.mwcscot.org.uk.

If you have any comments or complaints to make about our Publication Scheme, if you would like help identifying the information you require, or if you would like help in preparing your request, please contact

Alison McRae, Head of

Corporate Services.

We considered 20 requests under Freedom of Information legislation in 2005-06.

Requests related to the following;

• Budgets, resources and expenditure of the Commission;

• Reports on Commission visits to services;

• Information relating to complaints about services received by the

Commission, and actions taken as a result;

• Commission hospitality arrangements and dealings with politicians;

• Reports of investigations and inquiries carried out into accidents, incidents and suicides;

• Statistics on use of mental health legislation;

• Relocation of the

Commission;

• Suppliers.

We fully disclosed information in four cases.

In seven cases, we served

‘information not held’ notices.

In remaining cases, we disclosed part of the information. We sometimes withheld information if, for example, we thought it would breach the Data Protection

Act or if it was given to us in confidence.

1.6.2 Our communication programme

Publications and website

The introduction of the new

Mental Health Act in October

2005 provided the focus of the communications work programme in 2005-06.

Preparation of information leaflets for service users, website development and the implementation of our new corporate identity continued to dominate the work programme. October 5th saw the launch of our new website and publications range. Since that date we have distributed around


30

Table 2: Call classification – October to December 2005 compared with the same period in 2004

Nature of call 2004

No(%)

Mental Health (Care & Treatment)

(Scotland) Act 2003

Compulsory procedures (including Tribunal)

CTO query/issue

Detention query/issue

Suspensions of detention

3 (1)

*

*

*

2 (1) Named person provisions

Local Authority/Mental Health Officer

Duties/Services

Health Board duties/services

Advance statements

Part 16 query/issue

Other

0 (0)

1 (1)

1 (1)

*

4 (1)

Sub-total 11 (1)

Anomalies in total % due to rounding up of individual figures.

2005

No(%)

225 (14)

153 (9)

122 (8)

67 (4)

47 (3)

26 (2)

11 (1)

9 (1)

48 (3)

347 (22)

1055 (65)


Table 2 continued

Nature of call

Mental Health (Scotland) Act 1984

Detention

Request for review of detention

Part X [Consent to Treatment]

Other

Sub-total

Adults With Incapacity [Scotland] Act, 2000

General capacity issues

Intervention & guardianship (Part 6)

Resident finances (Part 4)

Treatment and research (Part 5)

Other

Sub-total

Other legal issues

Practice issues

Concerns and complaints

Misc. information & advice

Missing data

Grand Total

*Data not broken down into categories for 2004

2004

No (%)

115 (13)

85 (10)

26 (3)

102 (12)

328 (38)

24 (3)

33 (4)

7 (1)

13 (2)

30 (4)

107 (12)

26 (3)

17 (2)

205 (24)

133 (16)

30 (4)

857 (100)

2005

No (%)

9 (1)

4 (0)

3 (0)

4 (0)

20 (1)

16 (1)

51 (3)

8 (1)

18 (1)

29 (2)

122 (8)

65 (4)

24 (1)

151 (9)

158 (9)

26 (2)

1623 (100)

31


32

15,000 user and care information leaflets and around 5,000 ‘Are you being treated with respect?’ wallet cards promoting the principles of the Act. We have also welcomed over

9,500 visitors to our website and distributed over 300

DVDs for people with a learning disability. All

Commission information leaflets are now available to download via our website in English and easy read formats. The leaflet ‘Who we are and what we do’ is also available in a range of languages.

In December 2005 we conducted a website consultation with the

Highland User Group

Members Forum. We had consulted them in Jan 2005 to help us develop the new site. We followed up on this and asked for their views on whether our new site was an improvement on our previous web presence and how this could be further developed.

The consultation focused around evaluation of appearance, navigation and content. We had asked about these before and wanted to see if their views had changed. The overall response of the group was positive, ‘eight out of ten’ being the overall ‘score’ given. Group discussion generated a number of points and suggestions.

We acted on some of these immediately and included others in our web development plan for 2006-07.

Events

Commission staff contributed to a range of learning and information sharing events for practitioners, service users and carers throughout the year. Again we were sponsors of the Mental

Health Today and Learning

Disability Today exhibitions held at the SECC Glasgow.

These events attracted more than 1,500 delegates and we were key contributors to the seminar programme that focussed on the rights of service users under the new Act.

‘Principles into Practice

Network’

The Commission carried out several consultation meetings last year regarding our new duties under the

Act, including our role in promoting the principles of the new mental health Act.

One of the suggestions that came from consultation with user and carer organisations was the creation of a

‘Principles Network’. This suggestion was supported in our consultation with practitioners and professional groups.

The Commission held an event, which brought together the various organisations and individuals who had expressed support for a ‘Principles Network’.

This event aimed to discuss how this initiative could be taken forward practically and to assess levels of support that might be drawn from its members.

What the network will do

The intention of the network is to provide a forum for service users, carers, service providers and professional groups that will promote good practice in the operation of the Act, by sharing information about what the principles mean in practice.

Network members will work to support and be supported by activities that

• Raise awareness of the principles of the Act


• Gather and disseminate information about the principles and how they are being applied in practice

• Identify and share examples of best practice that demonstrate the principles being used

We will take a lead on the development of the network and will undertake the coordinating tasks that will be required to make it work.

We will support network members by encouraging them to draw on each others skills and knowledge and influence the network’s overall direction. Support will include:

• ‘Principles into Practice’ publications. These will provide guidance to support principles based practice and examples of best practice. We will consult network members on the focus and content of publications and will involve them in their dissemination.

• Virtual networking. We will develop an extension of our website to host a virtual network.

Resources will include e-mail distribution groups that will be accessible to other network members, discussion forums, case studies, service users’ stories, edited resource pages and links to network member sites and resources.

• Principles into Practice event. We will organise a conference to share examples of principles based practice.

Membership of the network

Membership of the network is open to any organisation or individual with an interest in the promotion of principles based practice in mental health and learning disability services. Membership will be recorded through registration with the website or by postal/telephone requests to be added to the network mailing list.

33


34

The Commission has a duty to monitor the new mental health Act and to

promote best practice

in its use.


35


36

We have developed a new system to monitor the Act.

Section 2

Our Views on Mental

Welfare in Scotland

2.1 Introduction

Most of the provisions of the Mental Health (Care and Treatment) (Scotland)

Act 2003 came into force on 5th October 2005. The

Commission now has the duty to monitor the operation of the act and to promote best practice in its use. We also have the duty to promote the principles of the Act.

We developed a new system to monitor the Act. We receive copies of most forms used to authorise or record detention, care and treatment. Our electronic system scans the forms and automatically checks them for errors.

Our staff check any errors the system detects and take action if there is a possible problem with the legality of an order. The system allows us to collate the information and publish quarterly reports on the use of the Act on our website. In our annual report this year, we present data on the old Act in the first half of the year, as well as new Act figures. Because of the transition between the Acts during the year, it is too early to make major comparisons between the Acts or to identify trends in the use of new legislation. We have analysed early data on how new emergency and shortterm orders are used. As yet, we are working to improve the flow of information between the Tribunal and us. Because some data is incomplete, we cannot provide detailed information on long-term orders.

We also present some of our early work on our five priority areas. We are still collecting data on compulsory treatment in the community and care plans. We are taking action on advance statement overrides, but many notifications turn out to be errors in completing forms. In this report, we have published detailed information on the use of emergency detention and the care of children and young people.

Table 1: Episodes of detentions by age and gender 1/4/05-4/10/05

Age range

0-15

16-17

18-24

25-44

45-64

65-84

Emergency detentions* (S24/25)

Male Female

5

19

143

505

309

178

2

13

111

487

308

245

85+

Totals (%)

33

1192 (49)

52

1218 (51)

*Includes emergency detentions extended to short-term detentions

Totals (%)

7 (0)

32 (1)

254 (11)

992 (41)

617 (26)

423 (18)

85 (4)

2410 (100)


37

2.2 Detention under mental health and criminal procedures legislation

Detention statistics

2005-2006

This year’s statistical report is different from previous years because of the change from the 1984 Act to the

2003 Act midway through the year. We have kept the data separate, except where it is combined data to show the total use of some of the major powers throughout the year.


Age range

0-15

16-17

18-24

25-44

45-64

65-84

85+

Totals (%)

Age range

0-15

16-17

18-24

25-44

45-64

65-84

85+

Totals (%)

Short-term detentions (S26)

3

12

96

Male

296

185

127

21

740 (49)

2

Female

11

58

289

204

175

32

771 (51)

Long-term detentions (S18)

4

1

59

Male

166

107

70

14

421 (54)

2

Female

2

21

132

85

91

19

352 (46)

Totals (%)

5 (0)

23 (2)

154 (10)

585 (39)

389 (26)

302 (20)

53 (4)

1511 (100)

Totals (%)

6 (1)

3 (0)

80 (10)

298 (39)

192 (25)

161 (21)

33 (4)

773 (100)


38

Part 1 – First half of the year

1/4/05-4/10/05

The Mental Health

(Scotland) Act 1984 was in force until October 4th 2005, the new Act coming into force on the following day.

Our first batch of data concerns the 1984 Act.

Table 1 (page 36-37) shows the use of emergency, shortterm and long-term civil detention powers. As in previous years, younger males make up a larger proportion of those subject to both short and long-term detentions. We are seeing a slight increase in detentions for older people compared with previous years. In the six months from April to

October 2006, 194 people over the age of 65 were detained under section 18 compared with 254 in the whole of 2004-5. The over

65s accounted for 25% of all long term detentions compared with 21% in the previous year. This, combined with a higher use of welfare guardianship for people with dementia, might reflect the European Court judgement in the

“Bournewood” case.

Practitioners may be more likely to use statutory powers to treat a person with dementia in hospital if the person is being deprived of his/her liberty.

In Figure 1, we compare figures across Health

Boards. Greater Glasgow and Lothian had the highest rates of emergency (S24/25) and short-term (S26) orders.

Dumfries and Galloway and

Fife had the highest rates of long-term orders (S18) per

100,000 population. Rates in

60

50

40

30

20

Figure 1: Detentions under Sections 24/25, 26 and 18 of MHSA 1984, per 100,000 of Health Board population,

1 April – 4 October 2005

S24-25 S26 S18

10

0

1 2 3 4 5 6 7 8 9 10 11 12 13 14

*Figures for Orkney omitted because of very low numbers.

Key for figure 1

1: Argyll and Clyde

2: Ayrshire and Arran

3: Borders

4: Dumfries and Galloway

5: Fife

6: Forth Valley

7: Grampian

8: Greater Glasgow

9: Highland

10: Lanarkshire

11: Lothian

12: Shetland

13: Tayside

14: Western Isles


Tayside, the highest in most categories last year, have reduced. We speculated on the reasons for these variations in previous years

(see our Annual Report

2004-5).

We were notified of episodes of leave of absence lasting for more than 28 days (Table

2). There was significant variation in these notifications with Tayside, the highest, using this procedure more than two and a half times more often than Borders and

Lanarkshire. While these figures may be influenced by the overall use of long-term compulsory treatment and different reporting practices, we think there is variation in the practice of continued compulsion after a person leaves hospital. It will be interesting to see if there is this degree of variation in the use of compulsory treatment orders in the community under the new Act.

Use of nurses’ holding power

In previous years, we reported an unexplained variation in the use of nurses’ holding power among hospitals. This year is no different. Nursing practices and availability of medical staff will affect these figures. Table 3 (page

40) shows a slightly higher use for women than men, a finding we have reported consistently over the last few years. Nurses are perhaps more likely to restrain women. If a man insists on leaving, staff may be less likely to intervene. They may

Table 2: Leave of absence episodes notified to the

Commission per 100,000 of Health Board population,

1 April-4 October 2005

Health Board

Argyll and Clyde

Ayrshire and Arran

Borders

Dumfries and Galloway

Fife

Forth Valley be more likely to call for police assistance if the man needs to be returned.

During the first half of the year, we were informed of six community care orders.

These orders were used sparingly since their introduction in 1995. Unlike community compulsory treatment orders under the

Grampian

Greater Glasgow

Highland

Lanarkshire

14.6

23.5

24.3

10.2

Lothian 20.2

Tayside 26.9

Orkney

Shetland Isles

0

0

Eilean Siar

Total

0

18.6

Rate per

100k pop

19.6

17.7

10.0

24.9

19.3

10.9

39


40 new Act, they did not include the authority to give treatment without the person’s consent.

Part 2 – Second half of the year 05.10.05-31.03.06

We have agreed with the

Tribunal that they will publish detailed figures on the use of compulsory treatment orders. We have reported on the total number of orders and on compulsory treatment in the community.

We have looked in more detail at emergency and short term orders for the first six months of the Act.

Table 4 shows an overview of compulsory civil powers granted under the 2003 Act.

As expected, there is a significant reduction in the use of emergency detention with a rise in the use of short term detention. Under the new Act, short term

Table 3: Episodes of nurses’ holding power by hospital and gender, 1 April-4 October 2005

Hospital

Argyll and Bute

Borders NHS

Carseview Centre

Crichton Royal

Crosshouse

Dykebar

Gartnavel Royal

Monklands

New Craigs

Queen Margaret

Rosslynlee

Royal Cornhill

Royal Edinburgh

Royal Victoria Dundee

Southern General

Sunnyside Royal

Western Isle Hospital

Whytemans Brae

Total

Male

2

7

1

4

1

2

9

0

0

0

1

1

8

1

1

1

1

4

44

0

0

2

11

1

1

1

1

Female

0

4

0

16

0

4

11

0

1

0

53

1

1

3

19

1

2

1

1

Total

2

11

1

20

1

6

20

1

2

4

97

Table 4: Compulsory powers granted under the Mental Health (Care and Treatment)

(Scotland) Act 2003, 5 October 2005 to 31 March 2006

No of orders

Emergency detention 920

Short-Term detention

Hospital-based compulsory treatment orders (CTOs)

Community-based CTOs**

Interim CTOs

*Information provided by the Mental Health Tribunal

**Does not include variations to existing orders

1666

469*

59*

266*


41

Table 5: Compulsory powers granted under the new MH Act, by age and gender,

5 October 2005 to 31 March 2006

Emergency detentions

0-15

16-17

18-24

25-44

45-64

65-84

85+

Totals (%)

2

10

55

37

6

Male

211

118

439 (48)

2

Female

15

54

200

126

62

22

481 (52)

Total (%)

4 (0)

25 (3)

109 (12)

411 (45)

244 (27)

99 (11)

28 (3)

920 (100)

Short-term detentions

0-15

16-17

18-24

25-44

45-64

65-84

85+

Totals (%)

6

20

Male

107

353

210

115

18

829 (50)

Female

6

10

74

272

223

207

45

837 (50)

Total (%)

12 (1)

30 (2)

181 (11)

625 (38)

433 (26)

322 (19)

63 (4)

1666 (100) detention should be the usual route into compulsory treatment. Figures provided by the Tribunal show that there were 528 compulsory treatment orders (CTOs) granted during this period.

This is what we would have expected for this time period.

There is no evidence yet of an increase in the use of long term orders due to the provisions of the new Act.

The age and gender breakdown in Table 5 is similar to the first six months

(see part 1 of this report).

Because data from the

Tribunal is incomplete, we cannot report on age and gender of people on CTOs.

We usually report on progression through emergency, short-term and long-term civil orders.

Because information from the tribunal is not complete, we cannot yet report on this in full. We have calculated the total number of new episodes of detention under emergency and short-term


42

Table 6: Emergency and short-term episodes initiated 5th October 2005 to

31st March 2006

Detention pattern Total

Emergency detention to informal status

Emergency detention to short-term detention

Informal direct to short-term detention

Total number of episodes initiated

449

471

1179

2099*

*There are 16 STD orders fewer than quoted in table 5. Our system was unable to identify the sequence in these cases

Table 7: Reviews of detention and guardianship, 2002-2005

Ethnic group (self assigned)

White Scottish

Other British

Irish

Other White

Mixed

Asian, Asian Scottish or Asian British Indian

Pakistani

Bangladeshi

Chinese 3

Other

Asian background 1

2

1

3

7

1

0


497

15

10

1

4

Black, Black Scottish or Black British Caribbean

African

Other Black

Other Ethnic background

Information not provided

0

4

1

3

33

1

1

9

1

2

53

Not known 349 596

Ethnic group not identified by patient/Ethnic group not recorded by person completing form

1

3

7

11


923

43


43 orders in Table 6 (page 42).

Under new Act procedures, there were about 200 fewer people detained under these powers then were detained during six months under the old Act.

A new feature is data on ethnicity. For the first time, mental health Act forms attempt to capture data on the ethnicity of individuals.

However, it is not compulsory to complete this part of the form. The doctor completing the form is asked to record how the person describes his or her ethnicity. It may not be possible to get this information from the person at a time when he or she is particularly mentally unwell, distressed and facing being taken into hospital against his or her wishes. From the data available, there was no evidence that more people from black and minority ethnic backgrounds than would be expected are being detained under emergency and short-term orders. The percentage of people from black and minority ethnic communities detained was no higher than the

Table 8: Compulsory powers granted under the new MH Act, by order type and Health

Board: number and rate per 100,000 population, 5 October 2005 to 31 March 2006

Health Board No


Rate per 100k pop No


Rate per 100k pop

Argyll and Clyde

Ayrshire and Arran

93

70

Borders 5

Dumfries and Galloway 18

22

19

5

12

138

68

26

42

33

19

24

28

Fife

Forth Valley

Grampian

Greater Glasgow

Highland

Lanarkshire

Lothian

Orkney

Shetland

Tayside

Eilean Siar

SCOTLAND

57

55

58

228

51

55

176

0

1

51

2

920

16

19

11

26

24

10

22

0

5

13

8

18

125

80

146

369

68

151

319

0

0

127

7

1666

35

28

28

43

32

27

40

0

0

33

27

33


44

Table 9: Compulsory powers granted under the new MH Act, by order type and

Local Authority of MHO: number and rate per 100,000 population, 5 October 2005 to 31 March 2006

Local authority

Aberdeen City

Aberdeenshire

Angus

Argyll and Bute

No


Rate per 100k pop

21 10

19

10

13

8

9

14

No

64

41

24

25


Rate per 100k pop

32

17

22

28

Clackmannanshire 8

Dumfries and Galloway 18

Dundee City

East Ayrshire

26

30

East Dunbartonshire 0

East Lothian 17

East Renfrewshire

Edinburgh City

6

112

16

12

18

25

0

19

7

24

12

42

57

22

23

30

14

196

25

28

40

18

22

33

16

43

Eilean Siar

Falkirk

Fife

Glasgow City

Highland

Inverclyde

Midlothian

Moray

North Ayrshire

North Lanarkshire

Orkney

Perth and Kinross

Renfrewshire

1

27

54

198

47

21

6

9

13

20

4

13

44

4

18

15

34

22

26

8

10

10

6

20

9

26

2

41

123

339

70

31

28

40

18

63

–

52

41

33

38

35

45

8

27

34

59

13

19

–

38

24


45


Local authority

Scottish Borders

Shetland

South Ayrshire

South Lanarkshire

Stirling 21

West Dunbartonshire 5

30 West Lothian

Local authority not specified

Scotland

68

920

5

No


Rate per 100k pop

5

2

23

29

9

21

9

24

5

18 n/a

18

–

22

No


Rate per 100k pop

28

96

24

26

59

13

1666

26

–

20

31

28

28

36 n/a

33

NB We are notified of the MHO’s local authority employer. This may be different from the local authority where the patient resides. These figures must be interpreted with caution.

percentage of people from

BME communities as a proportion of the general population. We will be examining ways to make data on ethnicity more complete in future.

Table 8 (page 43) compares emergency and short-term detentions across Health

Boards. As with the first six months of the year, Greater

Glasgow and Lothian had the highest rates of orders.

We were interested to see which Health Board and local authority areas had particularly low rates of emergency orders compared with short-term orders, as this indicated the appropriate use of STDCs as the route into compulsory treatment.

Borders and Lanarkshire

Health Boards appears to have made exceptionally low use of emergency powers. Highland’s use is comparatively high.

In Ayrshire and Arran, emergency orders slightly outnumber short-term orders. Table 9 shows this by local authority. South and

East Ayrshire appear to use emergency orders more than short-term orders.

However, this data is often based on the local authority where the MHO works, rather than where the detained person lives. Outof-hours detentions, where there is a shared MHO rota, make these figures hard to interpret. For more discussion on this, see section 2.2.4 of this report.

Short-term detention is the preferred route into compulsory treatment.

Because it requires an approved medical practitioner and a mental health officer, geography


46

Table 10: Short-term orders granted under the new MH Act, by type of mental disorder specified, 5 October 2005 to 31 March 2006

Type of mental disorder*

Mental illness

Learning disability

Personality disorder

Total

*Only one type has been specified in nearly all cases.

No

1634

11

23

1668

Percent

98%

<1%

1%

100%

Table 11: Emergency detentions granted, by pre-detention status, 5 October 2005 to 31 March 2006

Informal patient prior to detention

Not in hospital prior to detention

No (%)

479 (52)

441 (48)

Table 12: Emergency detentions granted, by pre-detention status, 5 October 2005 to 31 March 2006

Status

Detained patient

Informal patient

Not in hospital

Not recorded

Total

No (%)

547 (33)

681 (41)

420 (25)

18 (1)

1666 (100)

Table 13: Short-term detentions granted and named person involvement,

5 October 2005 to 31 March 2006

Named person recorded

Named person consulted

No

1005

723

% of all detentions

60

43


Short-term detention is the preferred route into compulsory treatment.

47 and staff availability are very important. Emergency detention can be carried out by one medical practitioner who does not have to be approved. There should be consent from a mental health officer unless this is impracticable. If there is no consent, the medical practitioner must give an explanation for this.

It is not surprising that

Highland, for example, has a high use of emergency orders. The geography would make it difficult for approved medical practitioners and mental health officers to attend. In general, Health

Boards and local authorities should examine these figures and do all they can to reduce the numbers of emergency orders in their area.

Tables 10, 11 and 12 (page

46) show other information about emergency and shortterm orders.

We looked at whether people were detained from the community, or if they were already in hospital. For emergency orders, just over half were already hospital inpatients before detention.

Most people detained under short-term orders were already in hospital, either detained or on an informal basis. Only 25% of people subject to short-term orders were admitted from the community under that order.

We were particularly keen to see the involvement of the named person (Table 13

– page 46). There was consultation with the named person in only 43% of all short-term detentions.

Failure to consult was usually because the named person had not been identified. We would wish to see more involvement of named persons in the future and we would look to see this percentage increasing.

We also wanted to see how emergency and short-term powers were used during the early days of a person’s

Table 14: Duration of emergency detention orders granted, 5 October 2005 to

31 March 2006

Action taken to revoke or supersede

Within

24 hours of admission

24-72 hours after admission

> 72 hours after admission

EDC revoked, patient informal 116

EDC superseded by STDC 237

Order expired at 72 hours n/a

117

222 n/a

9*

9* n/a

Total

242

468

210

Total number of emergency detentions 920

* We are following up on these notifications. They may be errors in recording information on forms. We are concerned that some people may have been detained for longer periods than the law allows.


48

About 22% of emergency orders expire at 72 hours.

We would like to see a much lower percentage.

detention. We analysed data on the duration of emergency detention certificates (EDCs).

According to the Act, hospital managers should arrange an examination by an approved medical practitioner “as soon as practicable” after admission under an emergency order. In our view, this should usually result in the EDC being revoked or a short-term detention certificate (STDC) granted.

Occasionally, it might be appropriate to defer the decision, especially during weekends, until the person is reviewed by the clinical team that knows him or her best.

From the figures we have, we can observe that:

• 38% of emergency orders are either revoked or superseded within the first 24 hours. This is encouraging and we will keep this under review;

• About 22% of emergency orders expire at 72 hours.

This should be an extremely unusual situation. We would like to see a much lower percentage than this in future. The order should either be revoked or superseded, and not allowed to run its course;

• In about half of cases, the person is detained further under a short-term order. This is similar to data we collected under the

1984 Act;

• In nine cases, a short term order was applied after the emergency order had expired. We will look into these cases in more detail.

We were interested to see the total number of new episodes of detention and the number of episodes of detention that lasted longer than 72 hours. We compared these figures with the old

Act (table 15). There was a concern that the use of short-term detention to initiate compulsory treatment would result in people being detained for longer.

It appears that, since the new Act was implemented, there have been fewer episodes of detention. The number of very short periods of emergency detention has fallen significantly. There appears to be a small rise in the number of episodes of detention lasting more than 72 hours. We know of only nine people admitted directly under a short-term order whose order was revoked within 72 hours.

However, our data is

Table 15: Number and duration of episodes of detention initiated by emergency or short-term orders

Detention episodes

6 months old Act

6 months new Act

% change under new Act

All new episodes of detention

Episodes of detention lasting less than 72 hours

2,410

899

Episodes of detention lasting more than 72 hours 1,511

2,099

458

1,641

13% fall

51% fall

8.6% rise


49 incomplete because hospitals do not always let us know when an order is revoked. We are planning to improve our data on duration of short-term orders and to report in more detail in future.

It is difficult to compare old

Act to new Act given the transition half way through the year. However, there are some important early messages.

• There has been a trend away from emergency orders and towards shortterm orders. This trend varies greatly among

Health Boards and local authorities;

• Some emergency orders are reviewed early but many are running the full

72 hours;

• Short-term orders are the commonest route into compulsion but very few appear to be revoked early;

• There appears to be a slight drop in the number of people subject to compulsion, but many more people appear to be detained for longer than

72 hours;

• For both emergency and short-term orders, we think that doctors should make efforts to review the need for compulsory treatment within the first few days of admission.

Table 16: Community-based compulsion orders, 5 October 2005 to 31 March 2006

Orders granted

Variations

Recalls to hospital

Revocations

No of people involved

4 ( all interim orders)

12

1

0

Table 17: Community-based compulsory treatment orders, 5 October 2005 to

31 March 2006

Status

Full orders granted

Interim orders granted

Variations to community during period

46*

14

70

No

Recalls to hospital during period

(S113/S114/Short-term detention)

Revocations during period

12 people on 18 occasions

4

*The Tribunal report that 58 full orders were granted with community powers in this period.

We only have information on 46.


50

Compulsory community treatment orders

We take a close interest in compulsory treatment in the community. We shall be reporting on our visits to the first batch of people who are on these orders. Early figures are shown in Tables

16 and 17 (page 49).

Nurses’ holding power

(Table 18) shows the same variations that we have been seeing over the last few years. See part one of this section for more discussion on this.

Suspension of detention is a problem under the new Act.

We should be notified of any suspension for a continuous period of more than 28 days.

Because of uncertainty over the new suspension provisions, we have received many forms that we did not need to receive. We cannot report on the use of this part of the Act at present. Many practitioners feel that the use of suspension forms to record short periods of leave from hospital is unnecessarily bureaucratic and timeconsuming. At the time of writing, all the forms are being reviewed. There may be simpler ways of operating the suspension procedure required by the Act.

Table 18: Nurses’ power to detain pending medical examination, by gender and hospital, 5 October 2005 to 31 March 2006

Hospital

Ailsa

Argyll And Bute

Borders NHS

Cameron

Carseview Centre

Crichton Royal

Dykebar

Gartnavel Royal

Hairmyres

Herdmanflat

Monklands

Murray Royal

New Craigs

Queen Margaret

Royal Alexandra

Royal Cornhill

Royal Dundee Liff

Royal Edinburgh

Stobhill

Stratheden

Whytemans Brae

Wishaw General

Total

Male

0

0

2

1

1

1

0

9

0

1

0

1

1

0

1

1

1

1

0

3

2

0

26

Female

2

1

1

0

0

1

1

14

3

1

3

0

3

1

62

1

1

3

2

4

8

1

11

1

2

1

23

3

2

3

1

5

1

88

2

1

4

3

5

9

1

14

Total

2

1

3

1


51

Table 19: Detentions under civil and criminal procedures, 1985 to 2005-06

1985

1986

1987

1988

1989

1990

1991

1992

1992-93

1993-94

1994-95

1995-96

1996-97

1997-98

1998-99

1999-00

2000-01

2001-02

2002-03

2003-04

2004-05

Civil procedures*

Emergency Short-term Long-term Criminal detentions (S4&S5) detentions (S2) detentions (S3) procedures**

3186 1395 349 360

3224

3375

3443

3061

3271

3614

3632

3733

3696

3670

4149

4116

4333

4356

4284

4288

4749

4697

4682

4621

1531

1613

1757

1601

1611

1927

1972

2080

2134

2197

2398

2416

2527

2566

2500

2597

2872

2795

2763

2834

359

422

569

510

494

664

727

745

823

877

886

887

970

1054

1011

1080

1135

1161

1192

1188

409

403

420

423

350

455

†

412

488

466

492

506

478

468

348

369

378

347

447

391

2005-06 3330 3177 1301 440

*Mental Health (Scotland) Act 1984 and Mental Health (Care and Treatment)(Scotland) Act 2003

**Criminal Procedure (Scotland) Act, 1975 and 1995; Part VI Mental Health (Scotland) Act 1984;

Part 8 Mental Health (Care and Treatment)(Scotland) Act 2003

† No figure available


52

Figure 2: Detentions under civil and criminal procedures in

Scotland, 1996-97 to 2005-06

Part 3 – Trends in the use of detention

5000

4000

3000

2000

1000

0

Figure 3: Detentions under civil and criminal procedures in Scotland, 1996-97 to 2005-06

10000

8000

6000

4000

2000

Emergency Short-term

1996-97 1997-98 1998-99 1999-00 2000-01 2001-02 2002-03 2003-04 2004-05 2005-06

Civil proce du res

Long-term Criminal procedures

Criminal proce du res

0

1996-97 1997-98 1998-99 1999-00 2000-01 2001-02 2002-03 2003-04 2004-05 2005-06

This section shows combined data from the two halves of the year. Because of the change in the law, it is not surprising that the use of emergency detention is lower and short-term detention higher. See the next section for more discussion on this.

The use of long-term detention appears to have risen sharply to over 1,300 new orders in the year. This does not appear to be due to the new Act. There were 773 orders under the old Act compared with 528 under the new Act. There are some possible reasons for this.

Practitioners were encouraged to apply early for detention under Section

18 before the new Act was implemented. This was to let the Tribunal system become established without having to hear too many cases early in its existence.

Many applications were initiated under the old Act and they continued under old procedures beyond

October 5th. At this stage, we do not think that compulsory treatment in the community has made a major difference to these figures. We will be watching


53 the situation carefully in coming years.

The use of criminal procedures powers has varied from year to year.

Although it is slightly higher this year than last, there has been no overall trend upwards or downwards since 1985.

We have shown detention figures in England and

Wales in Table 20. The

Mental Health Act 1983 is very different from the

Scottish Acts of 1984 and

2003. It is not possible to

Figure 4: Detentions under civil & criminal procedures in England & Wales, 1995-96 to 2004-05

70000 Civil proce du res Criminal proce du res

60000

50000

40000

30000

20000

10000

0

1995-96 1996-97 1997-98 1998-99 1999-00 2000-01 2001-02 2002-03 * 2003-04 * 2004-05 *

*The last three years include independent hospitals

Table 20: Episodes of detention in England and Wales, 1994-95 to 2004-05

1994-95

1995-96

1996-97

1997-98

1998-99

1999-00

2000-01

2001-02

Civil procedures*

Emergency Short-term Long-term Criminal detentions (S4&S5) detentions (S2) detentions (S3) procedures**

10572

11374

11846

12516

19829

19779

18015

19483

15200

16328

19637

21179

13246

13299

13307

13695

21176

21048

21330

21399

23122

23050

23039

23399

2002-03†

2003-04†

15106

13922

21940

21639

22808

22340

2004-05† 12937 22515 22988

* Mental Health Act 1983; **Mental Health Act 1983, Sections 35-38; 44-49

†includes figures for independent hospitals

2111

1947

1873

1855

1860

1641

1478

1493

1516

1601

1664


54 make a direct comparison but the use of a potentially long-term order in England and Wales is much higher per head of population than in Scotland.

2.2.1 Compulsory treatment under criminal procedures 2005-2006

At first glance the number of criminal procedure episodes throughout 2005/2006 is not significantly divergent from the pattern over the past 20 years. The median number of CPSA episodes since

1985 is 420 compared to this year’s total figure of 433.

However, comparing the first six months of the year with the second half following implementation reveals some noticeable differences.

There were 42 hospital orders in the first six months compared with 16 compulsion orders (the comparable order under the

2003 Act) in the latter half of the year. This is at least partly because court cases that started before October

5th 2005 continued under previous legislation. There were nine hospital orders with restrictions in the first half compared with one compulsion order and restriction order (CORO) in the second half of the year.

In the first half of the year there were 82 episodes of remand to hospital before trial (S52) and 52 remand orders (S200). In addition there were 16 transfer orders, before trial or sentence, from prison (S70

MHSA), giving a total of 150

Table 1: Compulsory treatment under criminal procedures 2005-6

Apr 05-Sep05 Criminal Procedure (Scotland) Act 1995 and Part VI Mental Health

(Scotland) Act 1984

Remand to hospital before trial (CPSA* 52)

Transfer order from prison before trial or sentence (MHSA (1984)** 70)

Remand order (CPSA 200)

Interim hospital order (CPSA 53)

Temporary hospital order (CPSA 54(1)(c))

Hospital order (CPSA 58)

Hospital order with restriction order (CPSA 58 + 59)

Not fit to stand trial or acquitted (CPSA 57(2)(a))

Not fit to stand trial or acquitted with Restriction Order (CPSA 57(2)(b))

Supervision and treatment order (CPSA 57(2)(d))

Transfer from prison without restriction order (MHSA (1984) 71)

Transfer from prison with restriction order (MHSA (1984) 72)

Total

1

7

7

5

16

276

32

7

42

9

82

16

52



Oct 05-Mar 06 Criminal Procedure (Scotland) Act 1995 and Part 8 Mental Health

(Care & Treatment)(Scotland) Act 2003

Commital to hospital on remand (CPSA 200)

Assessment order (CPSA 52D)

Treatment order (CPSA 52M)

Interim compulsion order (CPSA 53)

Temporary compulsion order (CPSA 54(1)(c))

Compulsion order (CPSA 57A)

Compulsion order (CPSA 57(2)(a))

CORO*** (CPSA 57A + 59)

CORO (CPSA 57(2)(b))

Hospital direction (CPSA 59A)

Transfer for treatment direction (MHSA (2003)**** 136)

Total

* Criminal Procedure (Scotland) Act 1995

** Part VI Mental Health (Scotland) Act 1984

*** Compulsion Order with Restriction Order

**** Part 8 Mental Health (Care & Treatment) (Scotland) Act 2003

16

3

18

5

13

70

25

2

9

1

2

164

55


56 episodes of people being transferred from the criminal justice system to hospital for assessment and/or treatment. In the second half of the year there were 13

S200 remand orders, 68 assessment orders (S52D) and 25 treatment orders, giving a total of 106 episodes of transfers from the criminal justice system.

On the face of it there are significant differences in the use of comparable provisions of the Criminal

Procedures (Scotland) Act

1995 (CPSA) since the implementation of the 2003

Act in October. We think it is too early to make any comment on these changes and believe that it will be necessary to interpret emerging patterns in the light of further experience over the forthcoming year.

Section 200 of the CPSA

(remand for inquiry into physical or mental condition) was not amended in the

2003 Act. We believe that the new arrangements for the assessment and treatment of mentally disordered offenders set out in the various provisions of S52 render the provision to remand a person with mental disorder under S200 unnecessary. However S200 can be used for remanding a person with a mental disorder on bail, or for someone requiring treatment for a physical illness.

Table 2 (page 57) shows age and gender information for people subject to criminal procedures. The trend towards younger males in even more prominent this year.

According to its rules, any person who has an interest in a case can apply to the

Mental Health Tribunal to enter the Proceedings. If the Tribunal considers that person to have an interest, they may grant the request and that person is considered a ‘relevant person’ and becomes part of the proceedings. We are aware that, in some cases, the relatives of victims of the index offences of mentally disordered offenders have been considered to be

‘relevant persons’ and have thereby become directly involved in the Tribunal hearing. We do not think this is appropriate. The Tribunal hearing is concerned with the provision of appropriate care and treatment to the patient concerned, which is a private matter. Victims and their relatives must be given support and help following serious offences. This is a matter for the criminal justice system and not for a Mental

Health Tribunal. Also, clinical teams must give careful consideration to victim issues when a patient is returning to the community.

However, we think it is inappropriate that victims’ relatives should be directly involved in Tribunal hearings that relate to that patient’s care, treatment and support.

The Commission has raised this concern with the Tribunal and plans to discuss the matter further in the course of the year.


We think it is inappropriate that victims’ relatives should be directly involved in Tribunal hearings.

Table 2: Episodes of compulsion under criminal procedures, by age and gender,

2005-06

Apr 05-Sep 05 Criminal Procedure (Scotland) Act 1995 and Part VI Mental Health


Age range

01-15 0

Male

0

Female Totals

0 (0%)

16-17

18-24

25-44

45-64

2

51

135

35

0

5

29

15

2 (1%)

56 (20%)

164 (59%)

50 (18%)

65-84

85+

Totals

3

0

226 (82%)

1

0

50 (18%)

4 (1%)

0 (0%)

276 (100%)

Oct 05-Mar 06 Criminal Procedure (Scotland) Act 1995 and Part 8 Mental Health

(Care & Treatment) (Scotland) Act 2003

Age range

01-15 0

Male

0

Female Totals

0 (0%)

16-17

18-24

25-44

45-64

2

25

99

19

0

5

8

4

2 (1%)

30 (11%)

107 (39%)

23 (8%)

65-84

85+

Totals

Total Year

2

0

147 (90%)

0

0

17 (10%)

2 (1%)

0 (0%)

164 (100%)

440

57


2.2.2 Mental health services for children and young people

The Commission remains particularly interested in the experience of young people with mental health problems who are admitted to adult mental health wards or paediatric wards. Following the implementation of the new Act, we are keen to see whether Health Boards have been able to fulfil their duty to provide sufficient services and accommodation for young people requiring admission. To this end, we have been monitoring all admissions of young people under the age of 18 that are outwith a specialist children’s or young person’s service.

We wrote to records departments in October

2005 to request that they report all such admissions to us as they occur and also to report on the numbers of admissions retrospectively on a quarterly basis. This was reinforced by a letter from the Health Department to all NHS Chief Executives in November 2005

(HDL2005-55). On receiving a report of the admission of a young person we send a letter requesting further information to the responsible medical officer (RMO).

We began this monitoring with the introduction of the new Act in October 2005.

Information given in the tables 1 to 7 below represents total figures from

October 2005 to 31 March

2006. We have been notified of 68 admissions of young people under the age of 18 to adult wards, of whom 16 were under 16. We have been notified of only one admission to a paediatric ward. We requested information from general hospital records departments as well as mental health services. However, it may be that there has been some under-reporting from general hospital departments. We received a reply to our request for further information for 59 of these admissions (Table 1).

Tables 2 to 5 present the information provided for us.

All percentages are based on the 59 cases where information was provided on the monitoring form

Table 6 shows figures for age and gender of young people who were admitted.

This shows, as expected, that there were more admissions of young people age 16 and 17 than those under 16. We believe services should give careful thought to arrangements for the 16 and 17 year old group. In preparing these figures, we have separated

Monitoring of young people admitted to non-specialist facilities

Table 1

No. of cases of young people admitted to non-specialist inpatient settings 05.10.05 – 31.03.06

No. of young people involved

No. of above cases where further information provided to MWC

No. of young people involved

69

60

59

52

28917 Mental Welfare AR Txt 19/10/06 2:11 pm Page 59 data for under 16 year olds from those age 16 and 17.

The mental health Act is clear that the specific duty on Health Boards to provide sufficient service for young people continues to the

18th birthday. Consent to treatment provisions for children in the Act also apply to all those under 18.

However, named person provisions and mental health officer responsibilities in the Act make a distinction between those under 16 and those over 16. This reflects wider social and legal notions of the transition from childhood to adulthood.

We are aware that children and young people’s services are configured differently in different Health Board areas.

For example, some services will cater for young people up to the age of 18 and beyond, particularly on an outpatient basis. Elsewhere, services may be confined to those under 16, or to under

16s and 16 and 17 year olds still at school. Social work services have different responsibilities to those under 16. This may to some extent explain the young people we came across for whom it was reported there was no social work input.

Our view is that, when a young person needs inpatient treatment for a mental health problem, his or her own particular needs should be paramount.

Our guidance on the admission of young people to adult mental health wards reflects this and has been modified since last year’s report, drawing on our experience of contact with young people and with services. We continue to encourage services to

All percentages are based on the 59 cases where information was provided on monitoring form

Table 2: Specialist clinical input

Age group 0-15 16-17 All

RMO at admission was a child and adolescent specialist

Nursing staff with experience of working with young people were available to work directly with the young person

Nursing staff with experience of working with young people were available to provide advice to ward staff

The young person had access to other age appropriate therapeutic input

None of the above

All admissions with info provided

†includes figures for independent hospitals

10

11

13

6

0

14

10

9

25

19

14

45

20

20

38

25

14

59

%

34

34

64

42

24

100


60

Table 3: Social work input

The young person

Had an allocated social worker

0-15

6

If no allocated worker, had access to a social worker 7

Neither of the above 1

Table 4: Supervision arrangements

The young person

Transferred to an IPCU or locked ward during the admission

Accommodated in a single room throughout the admission

Nursed under constant observation

0-15

1

14

9

16-17

22

15

8

16-17

8

All

9

30

23

Table 5: Other provision

The young person

Access to age-appropriate recreational activities

Access to education was discussed

Access to an advocacy service

Young person had a learning disability

0-15

5

6

5

2

16-17

30

11

33

5

Table 6: Age of young person by gender (relates to 59 admissions)

Years last birthday Female Male

13

14

1

1

0

2

15

16

17

Total

7

10

8

27

3

13

14

32

44

32

All

35

17

38

7

All

28

22

9

Total

1

3

10

23

22

59

%

47%

37%

15%

%

15%

75%

54%

%

59%

29%

64%

12%


61 develop clear protocols for the management of such admissions. It remains a source of great concern that this has still not happened in some parts of the country.

We know from experience what this can mean to an already potentially detrimental experience for a young person. There appears to be a lack of clarity about responsibilities and a failure of services to use what resources they have to their full capacity for the benefit of the individual.

We also have a particular concern about the position of young people where there is simply no appropriate service in Scotland that can meet their needs. This is true for young people with a significant learning disability who require inpatient admission for the treatment or assessment of mental health problems, particularly where there are problems

Table 7: Health Board where admissions took place

Argyll and Clyde

Ayrshire and Arran

Borders

Dumfries & Galloway

Fife

Forth Valley

Grampian

Greater Glasgow

Highland

Lanarkshire

Lothian

Orkney

Shetland

Tayside

Western Isles

Total

Number

5

5

2

1

3

1

8

7

6

11

7

0

0

3

0

59

Population aged 0-17

86,845

77,036

22,898

29,772

75,586

62,139

108,848

176,589

44,906

122,654

157,859

4,178

5,151

79,104

5,462

1,059,027

Number of admissions per 100k pop aged 0-17

5.8

6.5

8.7

3.3

4.0

0

0

9.0

4.4

1.6

7.3

4.0

13.4

3.8

0

5.6

28917 Mental Welfare AR Txt 19/10/06 2:11 pm Page 62 with challenging behaviour or offending. Four of the seven young people with learning disability identified in our monitoring had particularly complex needs that could not be met by existing services.

At present, there is no intensive psychiatric care

(IPCU) facility or forensic provision for young people in Scotland. We are aware of the recommendations from the Child Health

Support Group’s Inpatient

Working Group. These include the recommendation for the development of inpatient units with a sub-unit where the needs of those who may have more disturbed behaviours can be catered for. In the meantime, however, the admission of those under 18 to adult IPCU wards raises particular anxieties and we are aware of occasions when it has proved impossible to provide an acceptable environment for vulnerable adolescents.

The alternative of admission to a unit very far from home is hardly more acceptable.

Therefore, there is a continuing pressing need for the development of services as soon as possible. We warmly welcome the recognition that substantial investment is needed in both workforce development and infrastructure as described in

‘Getting the Right Workforce

Getting the Workforce Right; a strategic review of the

Child and Adolescent Mental

Health Workforce’. We also recognise that it will take time to implement recommendations that have been made. However, we remain concerned about the position of young people in the intervening period.

The information we have obtained through our monitoring so far indicates that, at present, Health

Boards are too often failing to provide fully for the needs of young people who require admission.

2.2.3 The role of mental health officers and consent to detention

The Commission greatly welcomes the renewed emphasis in the 2003 Act on the value of the contribution of mental health officers

(MHOs) – both in terms of decisions relating to the use of compulsion, as well as more broadly as key participants in the multidisciplinary team. It is important that there is independent, non-medical professional input into the decision making processes at every key stage in the care, treatment and future planning of those subject to compulsory powers under the Act.

Section 229 of the Act ensures that local authorities appoint a designated MHO after every ‘relevant’ event’ – essentially any episode of compulsion beyond an emergency detention. The

Code of Practice states that the role of the MHO ‘is to be responsible for ensuring that the patient’s social circumstances are fully considered by (the multidisciplinary team) when the patient’s care and treatment is being planned and delivered.’ The Code further states that ‘the MHO should liaise closely with local authority colleagues to put in place the social care components of the patient’s care plan as well as liaising closely with the patient’s named person, carers, relatives and independent advocates as a matter of course.’

As MHOs have been given expanded duties and greater responsibilities under the


Act, the Scottish Executive produced standards for the development and provision of local authority mental health officer services across the country. Many authorities have responded positively to developing services in line with these standards.

We have generally been very impressed both by the responses of many individual

MHOs and local authorities to these new professional and organisational challenges. Perhaps not surprisingly, however, the quality of MHO service provision varies quite markedly from one authority to the next, and even within individual authority services.

The Commission will be interested to see how the

Scottish Executive plans to monitor the extent to which local authority mental health officer services are meeting these standards as a way of driving forward improvements in this area.

Consent to detention

1984 Act

The 1984 Act required, wherever practicable, the consent of a relative or mental health officer to an emergency detention (under

Sections 24 and 25 of the

Act). In addition, the doctor was also required to get the consent to any short-term detention, wherever practicable, from a nearest relative or MHO (under

Section 26 of the Act).

Between 1 April-4 October

2005, the rates of MHO consent to emergency detentions increased marginally over the previous year, while the percentage of those proceeding without any consent remained largely the same at around 17%, as shown in Tables 1 and

2 (page 64).

The rate of MHO consent to short-term detention during this time period rose to 99% of all short-term detentions as shown in Table 3 (page

64). This was from an already high base of 95% the previous year, and had been at or around that level for a number of years now.

It may be that the very high rate of MHO consent in the six months before implementation was in preparation for the new Act, where MHO consent was to be required for all shortterm detentions and nearest relatives would no longer be able to give consent.

Many areas reorganised

MHO services in advance of the new Act.

Table 1: Section 24 – Detention with and without consent, 1 April - 4 October 2005 and previous year

MHO consent

Relative consent

No consent

Total

2004-2005

No (%)

1435 (65)

385 (18)

376 (17)

2196 (100)

April-Oct 2005

No (%)

809 (71)

129 (11)

207 (18)

1145 (100)


2003 Act

Under the 2003 Act, the usual entry point for detention is generally seen as via a short-term detention certificate. Approved medical practitioners (AMPs) and

MHOs are involved in shortterm orders. They have the most knowledge, training and skills relating to mental disorder and the use of the legislation. Relatives are no longer involved in giving consent to detentions, either on an emergency or shortterm basis. The consent of an MHO is still required, wherever practicable, to emergency detention certificates (EDCs). MHO consent is necessary to authorise short-term detention. We deal elsewhere in the Annual

Report with the Commission’s monitoring of emergency detention certificates (See section 2.3.2 of this report)

Table 4 (page 65 and 66) shows that MHOs consented to about two thirds of all

EDCs between 5 October

2005 and 31 March 2006.

While this is lower than MHO consent to emergency detentions under the 1984

Act, we are not comparing like with like because shortterm certificates are now seen as the primary entry point for people subject to compulsory care and treatment. As we state in the discussion of our monitoring of EDCs, this level of MHO consent is seen as generally encouraging.


MHO consent

Relative consent

No consent

Total

2004-2005

No (%)

1899 (78)

93 (4)

433 (18)

2425 (100)

April-Oct 2005

No (%)

1022 (81)

42 (3)

201 (16)

1265 (100)


MHO consent

Nearest Relative consent

No consent

Total

2004-2005

No (%)

2691 (95)

43 (2)

100 (3)

2834 (100)

April-Oct 2005

No (%)

1473 (99)

11 (1)

9 (–)

1493 (100)


Table 4: Emergency orders granted, by MHO consent obtained and local authority

Local authority

Aberdeen City

Aberdeenshire

Angus

Argyll and Bute

No. of emergency detentions

21

19

10

13

No. of non-consents

4

2

3

4

Rate of non-consent per 100k pop

2

1

3

4

Clackmannanshire


Dundee City

East Ayrshire

East Dunbartonshire

East Lothian

East Renfrewshire

Edinburgh City

8

18

26

30

0

17

6

112

1

4

6

12

0

4

2

11

2

2 n/a

4

2

3

4

10

Eilean Siar

Falkirk

Fife

Glasgow City

Highland

Inverclyde

Midlothian

Moray

North Ayrshire

North Lanarkshire

Orkney

Perth and Kinross

Renfrewshire

1

27

54

198

47

21

6

9

13

20

4

13

44

0

5

18

73

7

13

1

3

6

10

0

4

18

1

3

3

16

0

3

5

13

0

3

4

3

11

Continued overleaf



Local authority

Scottish Borders

Shetland

South Ayrshire

South Lanarkshire

Stirling

West Dunbartonshire

West Lothian

Local Authority not specified

Scotland

Local authorities and

Health Boards with high rates of non-consent need to examine the reasons for this.

No. of emergency detentions

5

2

23

29

21

5

30

68

920

No. of non-consents

0

1

2

4

14

19

1

313

Rate of non-consent per 100k pop

0

5

2

2

13

6

1

6

There is evidence to suggest, however, that there is room for improvement in this area of practice. There were 313 emergency orders with no MHO consent.

Because relatives can no longer consent, there is a greater onus on MHO services. Some services may have had difficulty in meeting this increased demand.

Local authorities as well as Health Boards with high rates of non-consent need to examine the reasons for this. There are many factors which could come into play here. Some of the reasons for non-consent will be understandable and some may be for reasons outwith the control of local authorities. In areas which have a high use of shortterm detention certificates relative to emergency detention certificates, those admissions that proceed on an emergency basis are more likely to be genuine emergencies. It will be more likely, in many of these cases, that it is not practicable to secure the consent of an MHO in the circumstances.

The Scottish Executive’s

National Standards for

Mental Health Officer

Services state that local authorities and health service partners should monitor jointly the effectiveness of their response to psychiatric crises. It is best that services are reviewed holistically and this can only be done on a joint basis. Such an approach is more likely to help increase consent rates and reduce the use of emergency detentions relative to short-term detentions.


It is best that services are reviewed holistically.

Table 1: SCRs received from local authorities, 1 April-4 October 2005

Local authority

Eilean Siar

Argyll and Bute

Orkney

Shetland Islands

West Lothian

Moray

Renfrewshire

West Dunbartonshire

East Renfrewshire

Aberdeen City

East Dunbartonshire

Dundee City

Highland

South Ayrshire

Angus

East Lothian

Perth and Kinross

Falkirk

Midlothian

North Ayrshire

Inverclyde

Clackmannanshire


East Ayrshire

Scottish Borders

Stirling

14

15

16

16

11

12

14

14

19

17

19

9

9

9

11

4

4

2

4

2

2

1

1

0

0

No

0


68

Table 1 continued: SCRs received from local authorities, 1 April-4 October 2005

Local authority

Glasgow City

Aberdeenshire

North Lanarkshire

Fife

South Lanarkshire

Edinburgh, City Of

Scotland Total

39

54

79

484

No

21

31

35

Table 2: Episodes involving civil proceedings which contain relevant event(s), in relation to reporting of patient social circumstances to the Commission, 5 October

2005 to 31 March 2006

Health Board

Argyll and Clyde

Ayrshire and Arran

Borders


Fife

Forth Valley

Grampian

Greater Glasgow

Highland

Lanarkshire

Lothian

Tayside

Western Isles

SCR not received

74

13

2

13

21

20

75

170

47

79

121

34

1

SCR would serve little/no purpose

10

7

2

2

6

3

5

29

4

7

12

13

0

SCR provided*

63

52

25

27

102

65

72

217

21

72

207

89

5

Total

147

72

29

42

129

88

152

416

72

158

340

136

6

Total 670 100 1017 1787

*The social circumstances notifications included in this report were prepared within the duration of the episode, or 28 days before the start of the episode that contained the relevant event.


There has been a dramatic rise in the number of SCRs and we think the quality of reports has improved.

69

2.2.4 Social Circumstances

Reports

The provision of a Social

Circumstances Report (SCR) is central to the role of the designated mental health officer. The SCR draws together information on a person’s mental disorder and their personal and social circumstances. It provides valuable information for assessment, care, treatment and future planning where the person is subject to compulsion under the Act.

We have monitored and reported on the provision of

SCRs in each year’s Annual

Report. We have been concerned that the number of reports had been gradually but significantly falling over the last several years – from 1325 in

2002/03, to 930 in 2004-05.

We have been encouraged by the impact of the renewed emphasis on the important role of SCRs under the new Act. There has been a dramatic rise in the number of SCRs and we think the quality of reports has improved, perhaps as a result of regulations on their content.

The legislation should help local authorities target the

Table 3: Episodes involving criminal proceedings which contain relevant event(s), and reporting of patient social circumstances to the Commission, 5 October 2005 to 31

March 2006

Health Board

Argyll and Clyde

Ayrshire and Arran

Fife

Forth Valley

Grampian

Greater Glasgow

Highland

Lanarkshire

Lothian

State

Tayside

SCR not received

3

0

2

3

0

9

1

4

6

9

16


0

0

1

0

0

0

0

0

0

1

0

SCR provided*

1

4

2

1

1

9

1

6

7

8

4

Total

4

4

5

4

1

18

2

10

13

18

20

Total 53 2 44 99

*The social circumstances notifications included in this report were prepared within the duration of the episode, or 28 days before the start of the episode that contained the relevant event.


70

Table 4: Social circumstance notifications received by the Commission, by local authority, 5 October 2005 to 31 March 2006

Number Rate per

100k pop

Local authority

SCR1 provided


SCR1 provided

Aberdeen City

Aberdeenshire

Angus

Argyll and Bute

71

53

22

15

3

5

2

5

35

23

20

17

City of Edinburgh

Clackmannanshire


Dundee City

East Ayrshire

East Dunbartonshire

East Lothian

East Renfrewshire

123

10

33

29

18

23

23

19

12

1

3

7

2

1

1

0

15

22

25

21

27

21

22

20

Eilean Siar

Falkirk

Fife

Glasgow City

Highland

Inverclyde

Midlothian

Moray

North Ayrshire

North Lanarkshire

27

35

31

13

2

32

131

156

40

22

9

5

5

7

5

7

0

4

8

30

13

43

39

15

8

21

37

27

29

7


71


Local authority

Perth and Kinross

Renfrewshire

Scottish Borders

South Ayrshire

South Lanarkshire

Stirling

West Dunbartonshire

West Lothian

Shetland Isles

Orkney

Scotland

SCR1 provided

51

32

31

15

99

16

14

42

0

0

1228

Number


10

4

3

10

11

0

4

3

0

0

167

Rate per

100k pop provision of SCRs to those who would benefit most.

SCRs are required after each ‘relevant event’. MHOs, however, can indicate on the appropriate form the reasons for not providing a report where he/she feels it would serve ‘little or no, practical purpose’. This allows an opportunity for managers to audit the provision of reports to see that it is in line with both the Code of Practice and organisational priorities.

SCRs under the 1984 Act

SCR provision from 1 April-

4 October 2005 totalled 484.

This rate was considerably higher than that of the previous year, and would have been on course for the provision of over 1150 reports, compared to 930 the previous year. Again, this may reflect local authorities gearing up to meet the demands of the new Act.

SCRs under the 2003 Act

Table 2 (page 68) shows the increase in the number of

SCRs under the new Act.

Between 5 October 2005 and 31 March 2006, the

Commission received 1228

SCRs. This high number may be a result of transitional provisions and may not be an accurate indication of the number of reports likely to be provided in future. We should, however, expect a marked

SCR1 provided

37

19

28

13

32

18

15

26

0

0

24


72 increase in the provision of

SCRs compared with the

1984 Act.

Tables 2 (page 68), 3 (page

69) and 4 (page 70 and 71) gives a breakdown of SCRs by Health Boards and local authorities. Tables 2 and 3 also compare civil and criminal procedures orders.

We looked at episodes of detention comprising a series of relevant events.

Those episodes related to detention/compulsion under the civil law provisions had SCRs completed in approximately 57% of the episodes. When the episodes were generated by relevant events under the

Criminal Procedure Scotland

Act, the rate of provision of SCRs fell to 45%. This appears to reflect a less responsive MHO service in respect of people subject to compulsion via the courts.

Local managers should examine SCR provision for people subject to criminal procedures.

There was a wide variation in the rate of provision of SCRs among local authorities, ranging from 7 to 43 per

100,000 population with the

Scottish average being 24 per 100,000. The rate of notifications where it was felt reports would serve ‘little, or no, practical purpose’, varied considerably as well. While the number of reports increased, the total number of notifications which should follow a ‘relevant event’ fell far short of the actual number of ‘relevant events’ reported to us (as seen in

Table 2 and Table 3). This shortfall in notification makes it difficult to more accurately analyse local authorities’ response to this part of the

Act. We expect services to monitor both the level and the quality of SCR provision.

This is essential if there is to be proper implementation of the National Standards for

MHO Services.

2.3 Best practice under the new Act

2.3.1 Principles and new safeguards

The Commission has the duty to promote best practice under the Act. We describe our general work to promote the principles of the Act in section 1.6. In this section, we outline what we are looking for when we visit people under the Act.

We are trying to visit all people on “deemed” orders i.e. people who were treated under the old Act and have transferred to new Act orders. We want to find out what difference the new Act has made to their care and treatment. We also visit people on long-term orders under the new Act. We visit all people detained in hospital towards the end of the first year and people on community orders within the first six months.

Table 1: Availability of AMP by out-of-hours emergency detention certificate

AMP available

AMP not available

All cases

Out of hours Normal working hours

17

179

196

9%

91%

65%

19

85

104

18%

82%

35%

36

264

300

All cases

12%

88%

100%


73

What are we looking for?

We want to find out how the

Act is being used in practice.

We listen to the views of people about their care and treatment, examine their case records and ask care staff about the individual’s care. We report on the person’s view of their care and treatment and our view on examples of good practice. We make sure that people are informed about their care and treatment under the Act and about their rights and we make recommendations to care staff and managers.

There are some specific question we want to answer in every case:

• Is there justification for continued compulsion?

If we think the grounds for compulsion are not met, we will either encourage the person to apply to the Tribunal or make a reference to the Tribunal ourselves;

• Is there a care plan? Does it meet the person’s needs and is it being carried out?

• Is there evidence that the person is participating in decisions about his/her care? We think the person should be involved in designing the care plan and should have a copy of it;

• Does the person know about advocacy, named persons and advance statements and have they used these new provisions?

• Is treatment in line with the safeguards of the Act?

Our work on the 1984 Act showed concerns in around

20% of the people whose detentions we reviewed.

The new Act has even stricter safeguards;

• Is the Mental Health

Officer involved and does the person know who the designated MHO is?

• Are the person’s carers involved?

If the person is a child, or an adult with dependent children, we want to know what is being done to maintain contact between parents and children. If the person is being treated in the community, we want to make sure that the service meets all the person’s needs and that the order is being used merely to enforce medication.

We will produce special reports on our findings, especially for community orders and care plans.

While it is too early to draw conclusions, early experience suggests:

Table 2: Information about admission

Yes No

Health Board

Adequate reasons for urgency (n=297)

Adequate measures taken to obtain STD (n=296)

Adequate details of considered alternatives to EDC

(n=294)

287

211

259

No.

10

85

35

%

3

29

12 number requiring follow up

1

11

5


• There are some very good care plans, but not enough evidence of participation by the individual;

• Not enough people have information about new safeguards and few have made advance statements;

• MHOs are not involved as much as we would like;

We will report further on this when we have carried out more visits.

2.3.2 Use of emergency powers

In section 2.2, we report statistics on the use of emergency powers under the new Act. In this section, we report on a sample of emergency orders. We examined, in more detail, why the orders were used.

The preferred route of entry into formal care should be through a short-term detention. If emergency detention is used, the medical practitioner should record that there are good reasons for this course of action and that he/she has considered alternatives.

The detaining doctor, if not an approved medical practitioner (AMP), should also demonstrate attempts to contact an AMP. If there is no consent from a mental health officer (MHO), the medical practitioner must explain why it was not practicable to obtain consent. Monitoring of emergency detentions has been a priority for the

Commission in 2005-06 as these provide some indication of whether the Act is being applied as intended.

Our practitioners examined

300 emergency detention certificate (EDC) notifications issued in the period from mid November 2005 to the end of January 2006. We examined details about each admission, including the availability of AMPs and MHOs.

Results of monitoring

About two thirds of cases

(65%) were granted outwith normal working hours. An

AMP was available in 12% of all cases monitored. AMPs were slightly less likely to be available in out of hours cases than in other cases.

(See Table 1 – page 72)

Commission practitioners made a judgment on each notification on the basis of the following three questions:

1. Were adequate reasons given for believing that detention was necessary as a matter of urgency?

Table 3: Reason for MHO consent not being obtained

MHO could not attend in time

Did not attempt to contact MHO (with explanation)

Tried but unable to contact MHO service

No MHO available

Patient absconded before MHO could attend

Total cases with reason given

No.

33

27

19

7

9

95

%

35

28

20

7

10

100


The fact that MHO consent was obtained in two thirds of emergency admissions is fairly encouraging.

2. Were adequate measures taken by the detaining doctor with respect to granting of a short-term detention certificate

(STDC)? Practitioners were advised to answer

‘yes’ to this question if reference was made in the form to contacting an AMP for advice.

3. Were adequate details given of considered alternatives to an EDC?

The monitoring guidance stated that ‘alternatives’ refers to alternatives to compulsory admission.

Table 2 (page 73) shows that in almost all cases, adequate reasons for urgency were given. However, in 29% of cases there was inadequate information about efforts to obtain a short-term order by contacting an AMP.

In 12% of cases there was no or insufficient information about the alternatives to emergency detention considered. MWC practitioners flagged 16 cases for further action.

In 192 (64%) of cases overall the admission details given on the form were judged to be adequate on these three counts.

MHO non-consent

MHO consent was recorded in 197 cases – two thirds

(66%) of the sample. There were four cases where information about MHO consent was not provided anywhere in the form and four where non-consent was indicated but no reason given. Cases such as these are routinely followed up by the MWC to obtain missing information.

In 95 cases (32%), reasons for non-consent were found in the EDC notification and these are set out in Table 3

(page 74).

In 68 cases of non-consent

(72%), unsuccessful efforts to obtain consent had been made. In the remaining 27 cases (28%), the MHO service had not been contacted for a variety of reasons:

• no reply to phone calls to the MHO service/ answering machine only (12 comments)

• discussed with MHO by

‘phone but MHO not able to attend (eight comments)

• delay before MHO could attend was judged to be too long (four comments)

• MHO was not available because of illness or none on duty. In one of these cases ‘mistakes in the rota’ were mentioned

(five comments).

Conclusions on use of

Emergency Detention

Certificates

Overall, the fact that MHO consent was obtained in two thirds of emergency admissions is fairly encouraging. Adequate reasons for non-consent are provided in almost all cases.

AMP availability is less encouraging, particularly in cases that arise in normal working hours – an AMP attended in only 18% of such cases.

The findings of this initial monitoring exercise point to aspects of service that NHS

Boards, hospitals and MHO services will want to follow up in their own areas. We intend to repeat this exercise annually at least for the next two years. This will allow us to track changes in practice in so far as they are reflected in the notifications received.


2.3.3 Mental Health

Tribunal for Scotland

The 2003 Act established the

Mental Health Tribunal for

Scotland. We believe that a tribunal system is preferable to proceedings in the Sheriff

Court. In advance of the Act, we had regular discussions with numerous stakeholders over the predicted work of the Tribunal. Under the 1984

Act, people asked us to consider discharging them from detention. We provided figures on this to the Scottish

Executive to help predict the likely number of applications to the Tribunal for revocation of orders. We also discussed how best to exchange information. This was a particular problem because the Act does not require the

Tribunal to send information to the Commission on, for example, the granting of compulsory treatment orders. Under its rules of practice and procedure, the

Tribunal is only required to send the Commission a copy of its decision. This is not sufficient for our monitoring function. While the staff of the Tribunal have been very helpful, we think that either the Act or the Tribunal Rules need to be changed to effectively resolve this problem.

During the first six months of the 2003 Act, we kept in close contact with the Tribunal. We held regular conference calls and meetings with the

Tribunal administration. We also held meetings with the

President. We were very aware of the immense task facing the Tribunal and the challenges of starting up such a large and complex system.

The Tribunal system is less than one year old at the time of writing and there have inevitably been some initial problems with the operation of a new system. There have been occasions when we have been contacted by doctors, social workers and independent advocates with concerns regarding the operation of the Tribunal system. We are aware that in the course of the year there has been some case law generated in the sheriff court and the court of session on

Tribunal decisions. These decisions of the court provide guidance on how the Tribunal should deal with certain matters. We consider this to be helpful to all concerned.

We have tried to help the

Tribunal by drawing matters to their attention and giving advice. One problem we continue to encounter is the clear division between the administration and the judicial function. As the Tribunal has developed throughout the year, we have at times found it difficult to identify to which function of the Tribunal we should be addressing our concerns regarding individual cases. It would help us, and others, if there was a single point of contact with which to raise concerns and issues.

We raised some specific issues with the Tribunal.

These included

• Legal representation and the complexity of the appointment of a Curator ad Litem

• Timescales for applications and rejections of late applications

• Errors in Tribunal orders, especially regarding expiry dates, and how to rectify these

• The legal problems of deemed orders (see section 2.3.4 of this report)

• Access to Tribunals in criminal procedure cases by relatives of victims

(see our views on this in section 2.2).

We have particular concerns about Tribunal orders that have incorrect expiry dates.


We have found a number of errors, sometimes because of wrong information supplied to the Tribunal and sometimes because Tribunal Convenors have made errors. The Act does not allow for corrections to be made. We are especially concerned if the order compels someone to receive treatment for longer than the

Act seems to allow. When we pick this up, we will inform the Tribunal, the responsible medical officer and the individual, who would be able to seek legal advice.

2.3.4 Transitional provisions

One of the biggest problems with the implementation of the

2003 Act was the transition for people detained under the

1984 Act. These people were transferred automatically onto

‘deemed’ orders under the

2003 Act. Problems arose when deemed long-term orders were due to expire and needed to be extended.

The transition and savings regulations stated that, when a deemed order is extended for the first time, the responsible medical officer shall send a copy of the care plan and a report from the mental health officer to the

Tribunal. The RMO should also send these to the patient, the named person and the Commission. By

December 2005, we had become aware that we had not been receiving these documents in many cases.

We compared our information with the Tribunal, who found that they too had not received them. This raised questions over whether these extensions were valid.

The legal situation remains unclear. The Tribunal took the view that the orders were not valid. The Scottish

Executive disagreed, their interpretation being that the additional reports were not necessary to extend the order but that they should be provided at some point. They reminded Health Boards of the importance of these reports, as we had done at an early stage.

We thought that the additional reports were an important bridge between the old and new Acts. Without these, it was difficult to see that the person’s overall care was in line with the principles and provisions of the new

Act. Our legal advice was that the individual could challenge such an order.

We decided that people in this situation should know that there might be a problem with their continued compulsory treatment. We alerted their responsible medical officers to this problem and wrote to the individuals concerned. We felt that, given the legal uncertainty, they should be able to take their own legal advice. When we visit these people, we check that they got our letter and understood their situation.

This problem arose because many psychiatrists and mental health officers were unaware of the transitional provisions. The Scottish

Parliament approved the

Transitional and Savings

Order shortly before implementation. This was too late to be included in training for AMPs and MHOs. There was no reminder on forms to extend orders as these were developed before the transitional regulations were passed. While the regulations and associated guidance were widely circulated, most people did not appreciate their implications when the order was extended.

With the wisdom of hindsight, this problem could have been prevented. At such a time of major change, clarity of the law and clear


78 guidance are essential. We should all take note of this for any future amendments or new legislation.

2.4 Adults with Incapacity


2.4.1 Guardianship and intervention orders

Use of welfare guardianship under the Adults with

Incapacity Act has increased again in its fourth year, by a little over 20%. When taking into account the number of guardianships that came up for renewal, however, this increase is smaller than might have been predicted.

Most of the guardianships granted for three years in

2002 ended without renewal.

Many local authorities seem to decide that further authority under the Act is not necessary once an adult is settled in a care environment.

The renewal procedure is the same as for new guardianships. In most cases, it would be good practice to hold multi-disciplinary meetings to consider whether a guardianship order should be continued, recalled, or allowed to lapse. The adult, as much as possible, his/her advocate, carers and family should be involved in the discussion. The principles

Table 1: Approved guardianship orders by local authority area, 2004-06* and the latest guidance on when to invoke the Act will help to make this decision and reasons for it should be recorded. If guardianship is to be allowed to lapse, the

Office of the Public Guardian and the Mental Welfare

Commission should be notified. If renewal is contemplated, this process should begin early enough for the application to be lodged before the end of the current guardianship to avoid the risk that it will lapse.

Some local authorities have encountered problems with renewals. Some courts consider that the hearing must be in the court where

Fife

Glasgow City

Edinburgh (City of)

South Lanarkshire

Highland

West Lothian

Aberdeenshire

North Lanarkshire

Argyll and Bute

Orders 2004-05 Orders 2005-06

Approved No. at

Approved

2005-06 were

2004-05 31.03.05 of which( ) private

Recalled or lapsed** No at

2005-06 31.03.06

50

34

39

47

76

66

85

59

82

86

36

43

(27)

(9)

(19)

(23)

9

18

14

12

149

134

107

90

26

25

32

25

23

71

70

50

44

50

42

30

37

32

22

(10)

(13)

(26)

(5)

(14)

6

9

23

15

10

90

85

81

67

62


79


Perth and Kinross


Angus

Aberdeen City

North Ayrshire

East Ayrshire

Orders 2004-05 Orders 2005-06

Approved No. at

Approved

2005-06 were

2004-05 31.03.05 of which( ) private

16 40 32 (5)

Recalled or lapsed**

11

No at

2005-06 31.03.06

61

30

25

29

20

4

12

11

44

48

55

37

17

25

25

19

16

17

17

22

10

7

(3)

(8)

(8)

(2)

(4)

(3)

(6)

6

9

18

8

6

7

5

Scottish Borders

Renfrewshire

East Dunbartonshire

Falkirk

East Lothian

Dundee City

Moray

South Ayrshire

7

9

6

7

6

5

10

2

19

15

18

15

22

13

11

11

6

11

9

9

5

15

8

7

(4)

(2)

(4)

(4)

(4)

(2)

(5)

(4)

0

3

5

3

6

9

1

2

46

33

28

27

57

55

54

East Renfrewshire

Stirling

West Dunbartonshire

Midlothian

Clackmannanshire

Inverclyde

Shetland Islands

Eilean Siar

2

5

9

3

8

4

10

10

9

9

9

9

7

3

3

4

1

1

(1)

(2)

(1)

(2)

(0)

(0)

1

0

1

3

1

2

21

19

18

16

25

23

22

21

16

13

11

10

9

8

Orkney

All Scotland

0

531

0

1042

1

640

(1)

(224)

0

223

1

1459

*Excludes Tutors Dative and includes private applications ** Includes cases where adult died


80

Table 2: Guardianship applications by local authorities, per 100,000 population over

16, 2003-06 (excludes all private applications)

Local authority

Aberdeen City

Aberdeenshire

Angus

Argyll and Bute

Clackmannanshire


Dundee City

East Ayrshire

East Dunbartonshire

East Lothian

East Renfrewshire

Edinburgh, City Of

Eilean Siar

Falkirk

Fife

Glasgow City

Highland

Inverclyde

Midlothian

Moray

North Ayrshire

North Lanarkshire

Orkney

Perth and Kinross

Renfrewshire

2003-04

9.8

6.1

10.2

19.1

0.0

8.4

4.3

9.4

3.4

6.9

2.8

7.5

9.0

4.3

6.1

2.0

18.7

5.9

4.6

7.4

9.9

5.4

0.0

9.3

2.8

2004-05

13.3

3.9

9.1

20.4

15.6

22.8

0.9

4.2

0.0

1.4

0.0

6.4

4.5

6.0

9.3

4.4

10.3

3.0

6.2

8.8

15.3

6.2

0.0

6.5

1.4

20.6

2.3

17.7

4.2

4.6

13.9

8.3

27.2

2005-06

8.8

7.9

10.1

10.7

10.2

18.0

5.9

22.7

21.3

4.5

1.6

2.8

15.4

13.1

0.0

30.0

0.7


81


Local authority

Scottish Borders

Shetland Islands

South Ayrshire

South Lanarkshire

Stirling

West Dunbartonshire

West Lothian

All Scotland

2003-04

12.8

5.7

1.1

4.9

1.5

8.1

22.3

6.8

2004-05

9.3

11.3

2.2

15.1

0.0

2.7

14.9

7.8

2005-06

10.1

11.5

14.0

9.3

10.0

6.7

17.0

13.1

the original hearing was held.

If the adult has moved to another part of Scotland, the hearing may have to be held very distant from the local authority area where the adult now resides.

Differing legal interpretations on when to invoke the Act continue to affect the different rates of use by local authorities. In the last year, a handful of local authorities have considerably increased the number of guardianships they sought. They have either changed their legal interpretation, or become more aware of when it is appropriate to use the Act.

Health service changes, such as hospital closures, may also partly account for variations across the country.

The increase from last year to this in just four local authorities accounts for the increase overall in usage since last year. The use of guardianship in over half of all local authorities stayed the same, or reduced relative to the previous year.

Table 1 (page 78 to 79) shows that the rate of usage for private guardianships continues to vary considerably around the country. The total number of private guardianships remained very similar to last year, up from 199 to 217, and actually fell as a percentage of the total from 38% to 33% of all welfare applications.

We reported last year that some family members felt that the local authority had put pressure on them to apply for guardianship. The

Act indicates that a local authority shall apply for an order if it is necessary for the protection of the personal welfare of the adult, unless an application has been, or is likely to be, made by another party. The latest guidance on when to invoke the Act states that in no circumstances should local authorities put undue pressure on family members to make an application. If there is no family member, or friend, willing to make an application, then the local authority has a clear duty to apply. If it is appropriate, the local authority can propose that a family member, or friend, become the guardian.

As of August 2006, free

Legal Aid will be available for welfare guardianship


Table 3: Applicants for guardianship, 2004-06

Applicant

Local Authority

Relative(s)

Joint

Solicitor

Total

2004-05

No (%)

321 (60)

199 (38)

5 (1)

6 (1)

531 (100)

2005-06

No %

418 (65)

215 (34)

2 (–)

5 (1)

640 (100)

Table 4: Causes of incapacity in guardianship orders, 2004-06

Type of incapacity

Acquired brain injury

Alcohol related brain disorder

Dementia/Alzheimer’s Disease

Learning disability

Mental illness

Personality disorder

Multiple diagnosis

Other

Total

2004-05

No (%)

22 (4)

21(4)

270 (51)

169 (32)

27 (5)

2 (–)

12 (2)

8 (2)

531 (100)

2005-06

No %

17 (3)

21 (3)

394 (61)

135 (21)

41 (6)

2 (–)

9 (1)

21 (3)

640 (100) applications. This may lead to a rise in the number of private applications. The precise arrangements for applying for legal aid and any regulations are not available at the time of writing. Local authorities may need to plan their resources and priorities in order to respond to this expected increase.

Table 4 shows an analysis of the causes of incapacity. For people with a learning disability, this last year has seen a small decrease in the total number of applications, and a distinct drop in the proportion of guardianships

(from 32% to 21%). This contrasts with previous years where the number increased.

There is a rise in the proportion of guardianships being sought for people with dementia. More local authorities may be using guardianship to move people with dementia to care homes because of legal advice. We often hear of people waiting in hospital for up to a year, and sometimes 18 months, for a guardianship to be approved to authorise a move. This may impair the adult’s ability to manage many aspects of their care for themselves and does


83

Table 5: Duration of guardianship orders granted, 2004-06

2004-05

Period granted No (%)

1 year

2 years

2 (–)

1 (–)

3 years

5 years

Not stated

232 (44)

14 (3)

3 (1)

Indefinite

Other

Total Approved

247 (47)

32 (6)

531 (100)

2005-06

No %

4 (1)

3 (–)

212 (33)

35 (5)

4 (1)

372 (58)

10 (2)

640 (100) not give the adult any more liberty. In many cases the delay in moving to a care home does not seem to serve any benefit to the adult.

Requesting interim powers may reduce the wait. Private guardians tend not to request interim powers and only tend to have them granted in about a third of cases when they do. Interim orders have many of the effects of full orders but without the benefit of a full hearing. They should be used with caution but, in some circumstances, they may be the most appropriate way forward.

Table 5 shows that there has been a continuation in the trend to apply for indefinite guardianships, especially at the renewal stage, and in private applications. These were used relatively little to begin with but now represent well over half of all applications. The code of practice points out that, under section 60 of the Act, the standard renewal period is five years rather than three years and the onus is on the applicant to give the reasons for seeking a longer appointment. A range of factors might influence this decision. The principle of encouraging the adult to develop skills to make decisions, and the likelihood of the adult regaining capacity, will need to be assessed. Whether the indefinite continuation of an order would serve any benefit in regard to protecting the welfare of the adult, and whether it is the least restrictive alternative, should form part of the consideration before the decision is made.

Intervention Orders

Intervention Orders continue to be used chiefly for financial interventions. We are not informed unless they are part of a welfare guardianship application.

The majority that we have been told about are to allow a tenancy agreement to be signed or terminated, to dispose of moveable property, or to make an application for housing benefit. We are concerned about intervention orders that are used for ongoing contracts. If a contract has long-term welfare implications, welfare guardianship may be appropriate. We encourage the use of contracts that people with a learning disability can understand.


84

From 1 August 2006

free Legal Aid

will be available for welfare guardianship applications.


85


86

Section 3

The Future: Key Mental

Welfare Developments

3.1 The future of the

Adults with Incapacity


When to invoke the Act

In last year’s Annual Report we reported on Hilary

Patrick’s paper Adults with

Incapacity Act: When to invoke the Act.

This updated a previous paper by Ms

Patrick and followed the

Bournewood judgement in the European Court of

Human Rights and a subsequent sheriff court decision in Scotland. The

Scottish Executive issued guidance in August 2004.

Ms Patrick suggested that the Executive should issue further guidance for professionals on determining when an intervention or care arrangements for a person who lacks capacity might be a deprivation of liberty and require use of the AWI Act.

The Scottish Executive had already been considering this matter. In September

2005 they issued a letter to

Chief Social Work Officers, informing them that the advice they received from solicitors following the

Bournewood decision did not vary substantially from previous advice which had been outlined in Angus

Skinner’s letter to Chief

Social Work Officers in July

2004. The September letter stated that ‘the situation remains that each case must be considered individually to determine whether placing an individual (with incapacity) in a care home would constitute a deprivation of his or her liberty’. The letter also referred to reconvening a task group to develop guidance for professionals on the use of the Act. This task group would develop guidance on whether moving an adult with incapacity into a care home, or keeping them there, might constitute a deprivation of liberty.

We participated in the work of the task group which resulted in draft guidance being issued for consultation.

The consultation period ended on 30 June 2006, and the Scottish Executive was reviewing comments at the time this Annual Report was being prepared. We feel the draft guidance formed the basis of a very useful tool for professionals. We hope that the final guidance will assist professionals in complex judgements. However, we suspect that guidance alone will not be enough. Changes to the law might be necessary to make clear what “deprivation of liberty” means and when an order is needed.

Changes to AWI Act

Two changes to the legislation via changes in

Regulations came into effect on 1 February 2006.

The

Adults with Incapacity

(Supervision of Welfare

Guardians etc. by Local

Authorities) (Scotland)

Amendment Regulations

2005 extended the intervals within which a local authority must arrange for visits. After the initial visit, they must visit an adult on welfare guardianship and the adult’s welfare guardian every six months. Until now, they had to visit every three months.

The Association of Directors of Social Work asked for this change and we supported it during consultation. The use of welfare guardianship is growing and we believe that local authorities need the flexibility to target their resources. They should pay more visits to people with greatest need. This is an issue that will need further review as the high number of indefinite guardianship orders will increase the


87 workload of local authorities for many years.

The Adults with Incapacity

(Countersignatories of

Applications for Authority to Intromit) (Scotland)

Amendment Regulations

2005 extend the classes of persons who may countersign applications.

These are extended to include social workers, dentists, pharmacists, opticians/optometrists and allied health professionals.

We hope these changes and others being proposed within the Adult Support and

Protection (Scotland) Bill will increase take-up of this provision in the Act. People lacking capacity should have their funds managed in the least intrusive and most efficient way.

We are interested in how the

Executive will seek to change existing arrangements for the recall of welfare guardianship. At present we receive applications where the local authority is seeking to recall welfare guardianship and the chief social work officer is the guardian. We feel that local authorities should have the right to recall guardianship orders in such circumstances themselves, just as they have when the guardian is a private person. We appreciate that any such change would have to include safeguards.

We also feel that the

Commission should be able to refer applications it receives for recall of welfare guardianship directly to the

Sheriff. At present, if we receive an application for recall, we are obliged to send out the various notifications and intimations at various stages in the process of considering the application.

When everyone is in agreement with the application this presents little difficulty. When significant individuals contest the application for recall, the

Code of Practice suggests the application is best directed to the Sheriff Court.

We wish to be able to refer such a case to the Sheriff at any time. At present, we must go through all our procedures first. This delay helps nobody.

Changes to Legal Aid entitlement

We were pleased to see that, from 1 August 2006, free legal aid relating to applications for guardianship concerning personal welfare or joint financial affairs and personal welfare of the adult with incapacity will be available without means testing. We have been calling for free legal aid for welfare guardianship for a number of years. This was available for guardianship applications under the Mental Health

(Scotland) Act 1984 and we welcome the change.

We hope that this does not result in any unintended consequences. There could be unnecessary applications for welfare powers when applying for financial guardianship in order to gain access to this entitlement.

There are a number of protective factors which we hope will guard against this.

The main one should be reference to the principles in any consideration of potential use of the Act. New guidance on when to invoke the Act will help. When giving reports, practitioners should satisfy themselves that the powers are necessary.

The Courts should also be careful when examining the application.


88

3.2 Adult support and protection

We were pleased to see the development of The

Adult Support and Protection

(Scotland) Bill which was introduced in the Scottish

Parliament on 30 March

2006. The policy intention behind the Bill has been developed over a number of years, particularly since the Scottish Law

Commission published its position paper and draft

Vulnerable Adults Bill in

1997. This was followed by a Scottish Executive consultation in 2001. Since that point, the Adults with

Incapacity (Scotland) Act

2000 and the Mental Health

(Care and Treatment)

(Scotland) Act 2003 have come into force. The third round of consultation, on a vulnerable adults Bill, concluded in 2005.

There has been an increasing focus over recent years on the protection of vulnerable adults throughout

Scotland. While there are examples of good practice, progress is variable. Over the years, we have carried out several inquiries into deficiencies of care including the high profile Borders case.

These highlighted the need for legislation to protect vulnerable adults. We think there is a need for protective measures for adults who are not covered by mental health or incapacity legislation, or for whom it may not be initially apparent that they would fall within existing protective legislation.

We believe that the protection of vulnerable adults must be a shared responsibility. We are working closely with the

Scottish Executive and others to share experiences and develop good practice.

Discussions are underway in relation to the need for a vulnerable adults framework, similar to child protection and criminal justice, and a national training programme.

Section 4

Financial Statement

(see page 89 and 90)

The financial information presented in this document does not comprise the statutory financial statements of the Mental

Welfare Commission for

Scotland for the financial year ended 31 March 2006 which were approved on

25 June 2006, but represents extracts from them. These extracts do not provide as full an understanding of the financial performance, or financial and investing activities of the Commission as the complete

Commissioners’ report and financial statements.

The statutory financial statements have been reported on by the

Commission’s auditors,

KPMG LLP, and delivered to the Commission, the Scottish

Parliament and the Auditor

General for Scotland.

The report of the auditors was unqualified.


Operating cost statement for the year ended 31 March 2006

2005

As restated

£

0

0

Clinical services costs

Hospital and community

Family health

2006

£

0

0

0

3,087,658

47,132

3,040,526

Total clinical services costs

Administration costs

Less: Administration income

0

3,526,074

0

3,526,074

3,526,074 3,040,526 Net operating costs

Summary of revenue resource outturn

2005

As restated

£

3,040,526 Net operating costs (per above)

3,040,526

4,298,000

Net resource outturn

Revenue resource limit

2006

£

3,526,074

3,526,074

3,586,000

1,257,474 Saving/(excess) against revenue resource limit 59,926

Memorandum for in year outturn

0

1,257,474

Brought forward deficit (surplus) from previous financial year

Saving/(excess) against in year revenue resource limit

0

59,926

Statement of recognised gains and losses for the year ended 31 March 2006

7,000 Actuarial (loss)/gain recognised in the Lothian Pension Fund (124,000)

7,000 Total recognised gains and (losses) for the year (124,000)

89


35,585

286

35,871

(219,021)

(183,150)

181,327

0

181,327

0

0

90

Balance sheet as at 31 March 2006

2005

As restated

£

364,477

364,477

Fixed assets

Tangible fixed assets

Total fixed assets

0

£

2006

£

712,093

712,093

Debtors falling due after more than one year

Current assets

Debtors

Cash at bank and in hand

Current liabilities

Creditors due within one year

Net current assets/(liabilities)

Total assets less current liabilities

73,114

295

73,409

(200,291)

0

(126,882)

585,211

(219,000)

(37,673)

(175,327)

213,000

37,673

Creditors due after more than 1 year

Provisions for liabilities and charges

Net Assets before pension liability

Pension liability

Net assets /(liability) after pension liability

FINANCED BY:

General fund

Pension reserve

0

0

0

585,211

(350,000)

235,211

(572,211)

337,000

(235,211)


The full Commissioner’s report and financial statements, including the auditors’ report can be obtained on request to the Commission at

K Floor,

Argyle House,

3 Lady Lawson Street,

Edinburgh,

EH3 9SH.

91


92

Section 5

Bibliography

Legislation

Adults with Incapacity

(Scotland) Act, 2000.

The Stationery Office,

Edinburgh, 2000.

Community Care and Health

(Scotland) Act 2002.


Edinburgh, 2002.

Criminal Procedure


HMSO, 1995.

Data Protection Act 1998.

HMSO. 1998.

Freedom of Information



Edinburgh., 2002.

Human Rights Act 1998.

HMSO, 1998.

Mental Health Act, 1983.

HMSO, 1983.

Mental Health (Care and


2003. The Stationery Office,

Edinburgh, 2003.

Mental Health (Care and


2003 Draft Code of Practice,

Volumes 1-3 available at http://www.scotland.gov.uk/To pics/Health/care/15216/1441

Mental Health (Scotland)

Act, 1984. HMSO, 1984.

Mental Health (Scotland)

Act, 1984 Code of Practice.

Scottish Office Home and

Health Department.


Edinburgh, 1990.

Mental Capacity Act 2005.

HMSO, 2005.

Draft Mental Health Bill.

Department of Health, 2004.

See http://www.dh.gov.uk/

PolicyAndGuidance/

Associated publications



Code of practice for persons authorised to carry out medical treatment or research under Part 5 of the Act. The Stationery

Office, Edinburgh, 2002.



Supplement to code of practice for persons authorised to carry out medical treatment or research under Part 5 of the Act. The Stationery




Code of practice for manager of authorised establishments under Part 4 of the Act. The Stationery



(Scotland) Act 2000. Code of practice for supervisory bodies under Part 4 of the Act. The Stationery



(Scotland) Act 2000. Code of practice for persons authorised under intervention orders and guardians.


Edinburgh, 2002.



Code of practice for local authorities exercising functions under the Act.


Edinburgh, 2001.


Section 6

Who We Are

Our Commissioners are public appointees. Most

Commissioners have been appointed because of their professional background.

Some Commissioners have been appointed because of their experience either of using mental health and learning disability services or in caring for a service user.

Chair

Ian Miller

Director

Donald Lyons

(ex officio Commissioner)

Commissioners 2005/06

John Bain

Shelagh Creegan

Carol Dobson

Lynne Edwards

Angela Forbes (from Nov

2005)

Linda Graham

Pramod Jauhar

George Kappler

Tom Keenan

Myra Maguire

Jamie Malcolm

Joe Morrow

Malcolm Murray

Gina Netto

Madeline Osborn

Corinna Penrose

Gordon Schiach (until July

2005)

Colin Welsh

Douglas White

Vice Chair

Margaret Ross

Head of Corporate Services

Alison McRae

Practitioners

Ian Cairns

Elizabeth Calder

Jan Calder

Helen Cash

Margo Fyfe

Margaret Ann Gilbert

Angela Goodwin

Moira Healey

Tony Jevon

Flora Sinclair

Ann Smith

Marion Shawcross

Susan Tait

Alison Thomson

Mike Warwick

93


K Floor

Argyle House

3 Lady Lawson Street

Edinburgh

EH3 9SH

Tel: 0131-222 6111

Fax: 0131-222 6112

Service user and carer freephone

0800 389 6809 enquiries@mwcscot.org.uk

www.mwcscot.org.uk

SE/2006/137

28917 Mental Welfare AR Txt - Mental Welfare Commission for

A new year, a new law

The new Mental health Act has created the biggest change to

mental health law

in several decades.

We believe that good care and the reduction of risk go hand in hand.

Health Boards and local authorities act when we raise serious concerns with them.

Single en-suite rooms were greatly appreciated and are a great improvement in terms of personal dignity.

Our recent practitioner survey highlighted how much they value our information and advice.

The Commission has a duty to monitor the new mental health Act and to

promote best practice

in its use.

We have developed a new system to monitor the Act.

Short-term detention is the preferred route into compulsory treatment.

About 22% of emergency orders expire at 72 hours.

We would like to see a much lower percentage.

We think it is inappropriate that victims’ relatives should be directly involved in Tribunal hearings.

Local authorities and

Health Boards with high rates of non-consent need to examine the reasons for this.

It is best that services are reviewed holistically.

There has been a dramatic rise in the number of SCRs and we think the quality of reports has improved.

The fact that MHO consent was obtained in two thirds of emergency admissions is fairly encouraging.

From 1 August 2006

free Legal Aid

will be available for welfare guardianship applications.

Related documents

Products

Support

28917 Mental Welfare AR Txt - Mental Welfare Commission for

A new year, a new law

The new Mental health Act has created the biggest change to

mental health law

in several decades.

We believe that good care and the reduction of risk go hand in hand.

Health Boards and local authorities act when we raise serious concerns with them.

Single en-suite rooms were greatly appreciated and are a great improvement in terms of personal dignity.

Our recent practitioner survey highlighted how much they value our information and advice.

The Commission has a duty to monitor the new mental health Act and to

promote best practice

in its use.

We have developed a new system to monitor the Act.

Short-term detention is the preferred route into compulsory treatment.

About 22% of emergency orders expire at 72 hours.

We would like to see a much lower percentage.

We think it is inappropriate that victims’ relatives should be directly involved in Tribunal hearings.

Local authorities and

Health Boards with high rates of non-consent need to examine the reasons for this.

It is best that services are reviewed holistically.

There has been a dramatic rise in the number of SCRs and we think the quality of reports has improved.

The fact that MHO consent was obtained in two thirds of emergency admissions is fairly encouraging.

From 1 August 2006

free Legal Aid

will be available for welfare guardianship applications.

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