Help for carers
The Commission aims to protect and promote the human rights of people with mental illness, learning disability, dementia and related conditions. We are also committed to providing support to friends and family who are involved in their care.
A carer may be providing support in many different ways.
This could include emotional or practical support, but it can also mean that a carer has certain legal rights and responsibilities.
These include becoming a named person, if the person you care for is detained in hospital or 'sectioned' and nominates you for this role.
Your relative or friend may wish to appoint you as their power of attorney, giving you powers to help them with certain decisions, if they lose the capacity to make these decisions themselves.
You may also be able to apply to become a welfare guardian, if the person you are caring for is unable to make their own decisions. Information on all of these situations is provided below.
It is important to acknowledge that having a caring role can be very difficult. It can place huge physical and emotional stress on people in these situations.
As a relative or friend in a caring role, it is important to have support for yourself, and local carer organisations can provide this. There are links to some of these groups below and they may help you find one in your area:
Our advice line is a free phone number (0800 389 6809) carers can call. We can give advice on rights to do with mental health and incapacity law, and care and treatment. We cannot, however, advise on specific legal advice, comment on whether a diagnosis or medication is correct, or take complaints about services.
Carers and confidentiality
This guide, for anyone who is a carer, is specifically about information sharing and confidentiality.
Being a named person
If someone you care about becomes unwell, they may need to be detained in hospital under the Mental Health Act, or 'sectioned'.
If this happens, they can nominate a 'named person', who will look out for their interests.
This nomination should be written, signed and witnessed.
Some changes to named persons provisions were made under the Mental Health (Scotland) Act 2015 and introduced on 30 June 2017. For a named person nomination made after 30 June 2017 to be valid, the nominated person has to consent in writing to be the named person. (The 2015 Act changes also required the nominated person's consent to be witnessed, but this is no longer required. This was repealed initially temporarily and then permanently by Coronavirus legislation.)
Nominations of named persons made before 30 June 2017 will continue to be valid, even if the named person has not agreed in writing.
The named person has the right:
- to be consulted when certain things happen - such as when a short-term detention, or an application for a compulsory treatment order (CTO) is being considered;
- to be notified of certain changes to circumstances, for example if a short-term detention is revoked;
- to receive copies of certain records or information, including the record made if treatment has been given which conflicts with an advance statement
- to make applications or appeals to the Mental Health Tribunal for Scotland (the Tribunal), to legal representation for this with non-means tested Legal Aid, and to speak and give, or lead evidence at a hearing;
- to consent to two medical examinations taking place at the same time, if the person who is ill is not capable of giving consent;
- to ask for an assessment of the ill person's needs from the local authority and/or health board.
When do these rights apply?
You can be nominated as a named person at any time, but your rights as a named person only apply if the person who is ill is being treated under the Mental Health Act, or if there is an application for this to happen. If the person who is unwell is being treated informally, named person rights do not apply.
What if I don't want to be a named person?
If someone nominates you as their named person, you should make sure you understand what that involves. If you do not want to be their named person, you can decide not to consent to this.
If you are already their named person, and decide you no longer want to be, you can refuse to continue to be the named person. If you gave your written consent, you can withdraw that.
What if the person I care for chooses someone else as their named person?
With a couple of exceptions, a person can choose whoever they like to be their named person. If you think that the choice of named person is inappropriate, you can apply to the Tribunal to have the nomination reviewed. The Tribunal will make whatever decision they think is in the ill person's interests.
What if the person I care for is under 16?
The named person will automatically be the parent or guardian, the local authority or carer.
What if the person I care for is not capable of appointing me as their named person?
The 2015 Act has made provisions for people other than a patient to make applications or appeals to the Tribunal about their Mental Health Act Order. These people are called 'listed initiators'. Listed initiators can only make applications or appeals under these provisions if the patient lacks capacity to do so themselves, and if they do not have a named person.
Listed initiators include:
- The patient's nearest relative
- The patient's primary carer (if they have one)
- The patient's welfare guardian (if they have one)
- The patient's welfare attorney (if they have appointed a welfare attorney, and this is operational)
If the patient does not want their primary carer, or nearest relative, to act as a listed initiator, they can make a written declaration to say they cannot do this.
Where can I find templates for named person and listed initiator documents?
The Scottish Government has provided suggested templates for named persons nominations, declarations and consent on the Mental Health Act forms page.
On this page this is also a template for a person to use to make a declaration that they do not wish their primary carer, or nearest relative, to act as a listed initiator for them.
Named person and listed initiation templates
Further guidance about named persons
This is a link to the Scottish Government's guidance on named persons.
Welfare guardianship
By law, if an adult is unable to make key decisions or take necessary actions to safeguard their own welfare, a court can appoint a 'welfare guardian' to do this for them.
Welfare guardians can make decisions about where a person lives, as well as about their personal and medical care.
The welfare guardian might be a relative, friend or a carer. The court can also appoint the chief social work officer of a local authority to be a person's welfare guardian. The law that sets out the role and responsibilities of guardians is the Adults with Incapacity Act (Scotland) 2000.
Local authorities have a duty under the Act to supervise all welfare guardians, and to visit the guardian and the adult at regular intervals.
Local authorities also have a duty to make an application for welfare guardianship where it is needed and nobody else is doing so.
The Commission's role
This law also gives the Mental Welfare Commission a role in making sure that welfare guardianship works in line with the principles of the Act.
These principles say that any decisions made by a guardian:
- must be of benefit to the person concerned
- will only be taken when it is really needed
- must take into account the wishes of the person
- should restrict that person's freedom as little as possible
- should only be taken when the person could not make a decision themselves
- should involve carers, relatives and people who work closely with the person
We write to every new private guardian to let them know about our role. We visit around 350 individuals a year on welfare guardianship to ensure the principles are being applied.
Financial guardianship
The Adults with Incapacity (Scotland) Act 2000 provides arrangements for making decisions and taking actions to safeguard the personal welfare, property, and financial affairs of adults whose capacity to do so is impaired.
Part 6 of the Act allows for an application to be made to the court for:
- An intervention order authorising a person to take action, or make a decision, of which the adult is incapable.
- An order appointing a person or office holder as guardian in relation to the adult's property, financial affairs, and personal welfare.
- An order appointing a person or office holder in relation to a child who will become an adult (age 16) within three months, but such an order will not have effect until the person's 16th birthday.
Who can apply?
An application can be made to the court by any person, including the adult, claiming an interest in the property, financial affairs, or personal welfare of the adult. The applicant will, however, be required to satisfy the court as to their suitability to be appointed.
The local authority has a duty to apply where necessary and nobody else is doing so.
The Office of the Public Guardian provides information, advice, and guidance about powers of attorney, access to funds, guardianship, and intervention orders. It can investigate concerns where the property or financial affairs of an adult seem to be at risk. It also has supervisory duties in respect of financial guardianship and intervention orders.
The Mental Welfare Commission is only interested in financial powers where welfare powers have also been applied.
For more information on financial guardianship, please contact the Office of the Public Guardian on 01324 678300
Money Matters
Download our quick guide on how to effectively manage the funds of an individual who lacks capacity. Includes information on guardianship and powers of attorney.
Power of attorney
A power of attorney is authority given by an individual with capacity, known as the Granter, to another person(s), known as the Attorney(s), to deal with aspects of the Granter's affairs. This could relate to financial/property matters and/or personal welfare.
Welfare powers cannot be exercised until the Granter has lost the capacity to make these decisions. The Granter can decide how this decision on capacity is to be made.
The Granter decides which powers they wish to grant, however as these powers will be strictly interpreted the Granter should ensure that the powers granted are specific and cover all the relevant aspects of their affairs.
To make the agreement official, a power of attorney document is completed. This details the powers which the Granter wishes the Attorney to have and must be signed by the Granter. It must be certified by a solicitor or a medical practitioner, and then be registered by the Office of the Public Guardian.
Contact the Office of the Public Guardian on 01324 678300 for more information about power of attorney.
Money matters
Download our quick guide on how to effectively manage the funds of an individual who lacks capacity. Includes information on guardianship and powers of attorney.
Rights of carers
The Mental Health (Care and Treatment) (Scotland) Act 2003 says a carer is someone who gives a person care and support when they need it.
As a carer your main concern is usually the wellbeing of the person you care for. This can be a rewarding task but almost always places an enormous responsibility on your shoulders which can affect you physically and emotionally.
It can also affect your relationship with the person you care for and indeed on all the relationships within your family.
It is important that you are aware of what information and support you are entitled to for yourself and in relation to your relative or friend to help you with this role.
The Law
- The Mental Health (Care and Treatment) (Scotland) Act is the main piece of legislation covering the care of individuals with mental health problems.
- The Adults with Incapacity (Scotland) Act 2000 is relevant for those individuals who are felt not to have capacity to make their own decisions.
- The Carers (Scotland) Act 2016 has been introduced to improve the support available to adult and young carers.
Our document Carers and Confidentiality has a lot of information explaining issues around confidentiality and sharing of information. It also explains what can happen if your friend or relative does not want you involved or cannot make decisions for themselves.
An individual can have more than one person in a caring role and the Mental Health Act describes the 'primary carer' as being the person who provides the most support.
The law is clear that if the person you care for is in agreement with your involvement then anyone caring for your relative or friend should seek your views on any proposed treatment plan.
Even if the person you care for does not want you involved in their care the staff should also take into account your opinion on the situation and listen to your concerns about what has led to this consultation or admission.
This means staff should respect the role you play in caring for the individual and appreciate the vital information that you may have to give.
You should also be given any information that will help you care for your relative or friend. Under the Carers Act you have the right to be involved in any discharge plans and health boards now have to make sure that this happens.
The Adults with Incapacity Act has a set of principles that must be followed if your friend or relative is not able to make a decision for themselves. It states that as far as possible the past and present wishes of the individual should be adhered to as much as possible. Carers may be the best people to indicate this if the individual is unable to do so.
It also states that the views of others interested in the persons welfare should be taken into account and names the primary carer, nearest relative, named person, attorney or welfare guardian (if they have one).
Details of these roles can be found elsewhere in this section.
You also have the right in certain situations to appear at the Mental Health Tribunal Service to talk about the care and treatment your relative is receiving.
As a carer you should also be informed of certain specific situations, eg when your relative or friend is taken to a 'Place of Safety' by police, or when they are being transferred to another hospital. If your relative goes missing from hospital and you are informed of this you should also be given the information when they are safe.
If you are a young carer (under 18) or a young adult carer (18–25) you can have specific difficulties managing education employment and a social life alongside your caring responsibilities.
Carers Trust Scotland provides a lot of support and advice for young carers and can direct you to services in your area. They can be contacted by email at info@carers.org
Your own personal needs should be considered as well. Sometimes situations can deteriorate to where your own human rights are not being upheld.
Everyone is entitled to a private family life and to be free of humiliating and degrading treatment.
If you feel your rights are not being upheld as a carer then you can contact our advice line and we can advise on this.
There are many carer support organisations available and you can ask anyone in the mental health team about your local one.
Alternatively, the organisations below can help you also:
- Carers Trust Scotland
- Change Mental Health (formerly Support In Mind)