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Millan Report on the Review of the Mental Health (Scotland) Act 1984

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Millan Report on the Review of the Mental Health (Scotland) Act 1984 New Directions New Directions Mental Health (Scotland) Act 1984 Report on the of Review the You can get further copies of the full report from: The Stationery Office Bookshop Mail, Telephone and Fax Orders Report on the Review of the 71 Lothian Road Edinburgh EH3 9AZ Phone: 0870 606 5566 Mental Health (Scotland) Act 1984 Fax: 0870 606 5588 Also available on computer disc from: Public Health Division 1.4 Room 3es St Andrews House Regent Road Edinburgh EH1 3DG Phone: 0131 244 2451 Fax: 0131 244 5076 £25.00 Web site: www.scotland.gov.uk/millan Related publications: An Evaluation of Section 18 of the Mental Health (Scotland) Act 1984. Review of Literature Relating to Mental Health Legislation. Copies available from The Stationery Office Bookshop at £5.00 each. Designed and produced by Tactica Solutions 1/2001 B17767 Chairman: Rt. Hon. Bruce Millan SCOTTISH EXECUTIVE REVIEW OF THE MENTAL HEALTH (SCOTLAND) ACT 1984 Laid before the Scottish Parliament by the Scottish Ministers January 2001 SE/2001/56 REVIEW OF THE MENTAL HEALTH (SCOTLAND) ACT 1984 CONTENTS Membership of the Committee ix-x Terms of Reference xi Summary of work xii-xiii Acknowledgements xiv Introduction to the Report xv-xviii SECTION 1 FRAMEWORK OF A NEW MENTAL HEALTH ACT Chapter 1 - The need for reform Introduction 3 Changes in mental health care 3 - 5 Changes in legislation 5 - 7 Problems with the 1984 Act 7 - 9 Chapter 2 - The scope of a new Mental Health Act Is a Mental Health Act necessary? 10 - 11 Views of consultees 11 What the new Act should contain 12 - 13 Interaction with the Adults with Incapacity (Scotland) Act 13 - 15 The name of the Act 15 Chapter 3 - Principles of the new Act Introduction 16 Benefits of a statement of principles 17 - 18 A framework for principles 18 Recommended principles 18 - 21 Applying the principles 21 - 22 Alternative suggestions 22 Chapter 4 - Who would be covered by the new Act Mental disorder in the 1984 Act 25 - 26 Retention of mental disorder 26 - 28 Alternative approaches 28 - 29 Mental Illness 29 - 30 i REVIEW OF THE MENTAL HEALTH (SCOTLAND) ACT 1984 Learning disability 30 - 38 Personality disorder 39 - 45 Exclusions 45 - 46 Changes in category 46 - 47 Use of the Mental Health Act definition in other legislation 47 - 48 SECTION 2 COMPULSORY TREATMENT Chapter 5 - Grounds for compulsion The current law regarding medical consent 51 - 52 Compulsory treatment for mental disorder: current legislation 52 - 53 The basis for new criteria 53 - 54 Impaired judgement 54 - 58 Benefit from treatment 58 - 59 Risk 59 - 61 Treatability 61 - 63 Conclusion 63 Chapter 6 - Compulsory interventions Current provisions regarding detention 64 - 65 Treatment and plans of care 66 - 67 Compulsory measures in the community 67 - 70 Our proposals for a community order 70 - 73 Role of the tribunal in compulsory intervention 73 - 75 Moving between hospital based orders and community orders 75 Failure to comply with community order 76 - 77 Leave of absence 78 - 79 Community care orders 79 Chapter 7 – Initiating and approving compulsion Role of relatives 80 - 81 Role of general practitioners 82 - 86 Role of psychiatrists 86 - 88 Role of mental health officers 88 - 92 Role of nurses 92 - 94 Chapter 8 - Duration, reviews and appeals Current legislative position 95 - 96 Detention under current provisions 96 - 97 Nurse’s holding power 97 - 98 Emergency detentions 98 - 99 Short term detentions 99 - 101 Long term compulsory measures 102 - 104 The Mental Welfare Commission’s power of discharge 104 Discharge by the responsible medical officer 104 - 105 The hospital managers’ powers of discharge 106 The nearest relative’s power of discharge 106 - 107 ii CONTENTS The relationship between emergency, short term and long term detention 107 - 111 Information and support for the patient 111 - 113 Chapter 9 - Forum for compulsory measures Current statutory provisions 114 - 115 Sheriff court hearings 115 - 119 The tribunal system in England and Wales 119 - 125 Consultation 125 - 127 Key features of an improved system 127 - 130 Proposals for a new tribunal 130 - 134 Chapter 10 - Treatments and interventions requiring particular safeguards The current position 135 - 136 What makes treatments ‘special’? 136 - 137 The safeguards for special treatments 137 Treatments which should require consent and a second opinion (present s97) 138 - 139 Treatments which should require consent or a second opinion (present s98) 139 - 143 Adding to the list of special treatments 143 The nature of the second opinion 143 - 144 The duration of the second opinion 144 - 145 Urgent treatment 145 Children and young people 145 - 147 Chapter 11 – Other provisions relating to patients subject to compulsion Introduction 148 Transfer of patients within Scotland 148 - 151 Communications with and by patients 151 - 156 Patients who are absent without leave 156 - 157 Searches 157 - 158 Sharing information regarding patients 158 - 160 SECTION 3 - RIGHTS OF USERS AND CARERS Chapter 12 - Rights of informal patients Background 163 - 164 Incapable patients 164 - 165 ‘Coercive’ voluntary admissions and treatment 165 - 166 Restraint 166 - 167 Exceptional treatments 167 - 168 Chapter 13 - Service users’ rights to assessment and services Rights to assessment 169 - 171 Assessment of patients subject to compulsion 171 - 172 Assessment with a view to compulsion and/or other services 172 - 174 iii REVIEW OF THE MENTAL HEALTH (SCOTLAND) ACT 1984 Right to services 174 Reciprocity and patients subject to compulsion 174 - 175 General rights to services 175 - 179 Inter-agency working 179 - 180 Charging for services 180 - 181 Chapter 14 - Individual and collective advocacy Rights to individual advocacy 182 - 189 Rights to collective advocacy 190 - 191 Chapter 15 - Advance statements What are advance statements? 192 - 194 Current legal effect of advance statements 194 - 195 Future legal force of advance statements 195 - 197 How the new system would work 197 - 201 Chapter 16 - Rights of informal carers Introduction 202 The nearest relative in the 1984 Act 202 - 204 Proposals for the ‘named person’ 204 - 209 Right to information and support 209 - 213 Carers’ needs 213 - 216 Chapter 17 - Civil and social rights Voting rights 217 Housing and benefits 217 - 220 Stigma 220 - 221 Visiting rights 221 - 222 Chapter 18 - Groups with specific needs Physical and sensory disability 223 - 224 Children and young people 224 - 228 Gender issues and the rights of parents with mental disorder 228 - 229 Ethnic minorities 229 - 232 SECTION 4 - SAFEGUARDS FOR VULNERABLE PEOPLE Chapter 19 - Protection of vulnerable adults Vulnerable adults 235 - 239 Ill treatment and neglect 239 - 241 Protection for staff and carers 242 Obstruction 242 - 243 Vulnerable witnesses 243 - 244 Chapter 20 - Police powers and responsibilities Place of safety 245 - 249 iv CONTENTS Chapter 21 - Protection from sexual exploitation and abuse The current position 250 - 251 The need for special legislation 251 - 253 A new framework 254 - 259 Problems with the general law 259 - 260 Sex Offenders Act 260 Chapter 22 - The regulation of private hospitals The regulation of private hospitals in the 1984 Act 261 The Scottish Commission for the Regulation of Care 261 - 265 The role of the Mental Welfare Commission 265 SECTION 5 - THE MENTAL WELFARE COMMISSION Chapter 23 - Mental Welfare Commission Background 269 Composition of the Commission 270 - 273 Organisational arrangements 273 - 275 Accountability of the Commission 275 - 276 Role and duties of the Commission 276 - 294 SECTION 6 - OFFENDERS WITH MENTAL DISORDER Chapter 24 - The legislative framework Introduction 297 The interaction of the Criminal Procedure (Scotland) Act and the 1984 Act 298 - 299 Chapter 25 - Unconvicted persons with mental disorder Introduction 300 Diversion from prosecution 300 Untried prisoners 300 - 305 Acquitted persons with recommendations for mental health disposals 305 - 306 Chapter 26 - Convicted offenders with mental disorder Assessment of disposals 307 - 308 Remand for inquiry into mental condition 309 Hospital orders 309 - 311 Interim hospital orders 311 - 312 Hospital directions 313 - 315 Guardianship 315 Probation with a condition of treatment 315 - 316 Community orders 317 Transfer from prison to hospital 318 - 319 Treatment in prison 320 v REVIEW OF THE MENTAL HEALTH (SCOTLAND) ACT 1984 Chapter 27 - High risk patients Introduction 322 The MacLean Committee 322 - 324 Restricted patients 324 - 325 Ministers’ role in relation to restricted patients 325 - 326 Issues raised in consultations 326 - 327 Our proposals 327 - 334 Criteria for admission to the State Hospital 334 - 336 Appeals against levels of security 336 - 339 Prisoners transferred to hospital with restriction directions 339 - 340 Chapter 28 - The Mental Health (Public Safety and Appeals) (Scotland) Act 1999 Introduction 341 The provisions of the 1999 Act 341 - 342 Our initial response to the legislation 342 - 343 Who does the Act affect? 343 The public safety test 343 - 345 Entry and exit criteria 345 - 346 The 1999 Act and prisoners 346 - 347 Other provisions of the 1999 Act 347 Those a new Act will not cover 347 - 348 Chapter 29 - Insanity and diminished responsibility Background 349 - 355 Conclusions as to insanity 355 - 357 Diminished responsibility 357 - 358 Chapter 30 - Appropriate adults The appropriate adult scheme 359 - 361 Training 362 SECTION 7 - INTERNATIONAL AND CROSS BORDER ISSUES Chapter 31- Cross border issues Transfer within the United Kingdom 365 - 371 Overseas patients 372 - 373 Chapter 32 - Hague Convention on the International
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