Mental Health – the Legal Issues
Dealing with people suffering from a mental illness is a big challenge for any society. Mental illness brings with it great difficulties for the ill person with regard to relationships, employment, self sufficiency etc. along with the possibility in some cases of harm to others, anti social behaviour and other potentially adverse societal issues. Our law seeks to create a structure whereby protection of the ill person and of society in general is balanced by safeguards for the freedom of the individual and also protection against mistreatment. The main law is contained in the Mental Health (Care and Treatment) (Scotland) Act 2003. This is a pretty massive and comprehensive Act of Parliament and it is impossible to cover its contents here.
However this Act allows medical professionals to arrange for detention of people against their will where they are suffering from a mental disorder. It also allows medical professionals to administer treatment to such people – again against their will if necessary.
An individual subject to such actions has a number of protections built in to the legislation – but primarily involve their individual cases being considered by an independent tribunal – the Mental Health Tribunal for Scotland. Over and above that another body The Mental Welfare Commission for Scotland has a duty to ensure that the above Act is being put into practice properly and in accordance with the stated principles of the Act.
Powers of Compulsion
The legal framework allows for compulsory detention and treatment of individuals who have a mental disorder and whose ability to make decisions about their treatment is significantly impaired. In addition it must be deemed necessary to detain these individuals in hospital to help to decide on the treatment and then administer that treatment, and there should be risk to that person or another if detention was not imposed.
Detention can arise from three legal processes - the granting of an emergency detention certificate (EDC) , the granting of a short term detention certificate (STDC) or the imposition of a compulsory treatment order (CTO). The paths to granting these are different.
An emergency detention certificate rather means what it says. Such certificates allow for detention only, not compulsory treatment, and are limited to 72 hours detention. There is no legal process of appeal against them. A certificate may be granted by any registered medical practitioner – basically any doctor - who has examined the person.
Emergency detention certificates may be followed by short term detention certificates or short term certificates themselves may be the start point of the detention of a person suffering from a mental disorder. In fact short term detention certificates are considered to be the “preferred gateway” to detention under the Act.
A short term detention certificate can lead to up to 28 days compulsory detention (sometimes extendable by up to 5 days) and also can involve treatment being administered against the will of the detainee.
The purpose of a short term detention certificate is to allow time to assess the individual and also to administer treatment in a hospital. Whilst treatment can be given without consent doctors should take into account the wishes of the detainee plus any views expressed in a previous Advance Statement (AS) . Hospitals must appoint a Responsible Medical Officer (RMO) – generally a psychiatrist - to take responsibility for the treatment of the detainee.
Detainees can be released from hospital if the responsible medical officer feels detention is no longer necessary. Sometimes detainees agree to stay on in hospital on a voluntary basis.
Where detention and compulsory treatment is felt to be necessary beyond the 28 day period the Responsible Medical Officer may seek a Compulsory Treatment Order. This is an order giving longer term powers of detention and compulsory treatment – up to 6 months initially – with the possibility of increase to 12 months and further renewal.
Compulsory Treatment Orders are not granted by individual doctors – they are granted by the Mental Health Tribunal for Scotland. (MHTS) This is a body which hears applications for Compulsory Treatment Orders in venues throughout Scotland. Three members with legal or medical qualifications hear cases. The applications for those orders are put forward by Mental Health Officers (MHO) who are specially trained social workers. The MHO will prepare an application containing his or her report, two medical reports and a care plan – which will contain in it the treatment intended if the order is granted. At the tribunal various people may give their views, including the detained person and someone acting for him or her – often a solicitor. The tribunal may grant or refuse applications or adjourn till further information is obtained.
The tribunals are often held in hospitals, they are relatively informal and they are usually completed within about two hours.
What lawyers do
The role of the lawyer relates to representing parties at tribunals either in respect of STDC’s or CTO’s, or appealing against the decisions of the tribunal. The lawyer will often visit people in hospital, sometimes they will arrange medical reports from other doctors to arrange a challenge to the reports used by the MHO. They will attend the hearing assisting their client and ensuring that their client’s rights are respected. Each case is different. At the tribunal the lawyer may question and challenge the views of others to try to assist the person they represent. Sometimes the tribunal will refuse applications by the MHO for a CTO
Almost without exception legal aid is available to people who may have a mental disorder and who may be subject to a STDC or a CTO. It does not make sense for such people to try to get through a tribunal on their own when this type of legal help is available.