Mental Health Act
The Mental Health (Care and Treatment) (Scotland) Act 2003 applies to people who have a "mental disorder" - this is defined under the Act and includes any mental illness, personality disorder or learning disability (as per s328).
Changes to the Act
On 30 June 2017, the majority of parts 1 and 2 of the Mental Health (Scotland) Act 2015 came into force, which make changes to the existing 2003 Act.
For more information, please see our guidance on the changes to the Mental Health Act.
Please note: This guide is primarily for mental health professionals and does not cover all of the changes made. A complete guide can be found here on the Scottish Government website.
Advice notes
Find advice about the operation of mental health and incapacity legislation in Scotland.
Emergency detention
An emergency detention certificate allows a person to be held in hospital for up to 72 hours while their condition is assessed.
It can only take place when recommended by a doctor. A mental health officer should agree to this, unless impracticable.
You should not be given any treatment unless you agree to it, except for urgent treatment. The hospital must ensure an approved medical practitioner examines you as soon as possible.
The hospital should give you information about your stay in hospital and explain your rights. They should also let you know how to get help from an independent advocate. There is no appeal against an emergency detention certificate.
The Scottish Government has produced guides on the Mental Health Act which, although under review, may be helpful to people receiving care and treatment and their carers.
Click here to view the Scottish Government's guides
Short-term detention
Short-term detention should be the usual route into hospital under the law, as there are more safeguards for the individual.
It can only take place if recommended by a psychiatrist and a mental health officer. Your named person should also be consulted.
The hospital must appoint a psychiatrist as your responsible medical officer (RMO). Your RMO should examine you, talk to you to find out your wishes, read your advance statement if you have one, and decide if you need treatment.
If your doctor feels that treatment is in your best interests, this can be given without your consent. Your RMO must follow the safeguards outlined in part 16 of the Mental Health Act when giving you treatment.
The hospital should give you information about your stay in hospital and explain your rights. They should help you to get an independent advocate.
You, or your named person, can appeal against your short-term detention to the Mental Health Tribunal.
The Scottish Government has produced guides on the Mental Health Act which, although under review, may be helpful to people receiving care and treatment and their carers.
Click here to view the Scottish Government's guide to short-term detention certificates
Compulsory treatment orders
A compulsory treatment order (CTO) allows for a person to be treated for their mental illness.
The CTO will set out a number of conditions that you will need to comply with. These conditions will depend on whether you have to stay in hospital or are in the community.
Your mental health officer (MHO) will make an application for a CTO to the Mental Health Tribunal. The application must include two medical reports, an MHO report and a proposed care plan.
You and your named person should be informed if an application for a CTO is to be made.
The Tribunal decides whether a CTO is to be granted. The Tribunal is made up of three people - a lawyer, a psychiatrist, and another person with relevant skills and experience, e.g. a nurse, social worker, or someone with personal experience of mental disorder.
You have the right to make your views heard by the Tribunal.
The CTO can last up to six months. It can be extended for a further six months and then for periods of 12 months at a time.
You can be given medical treatment while on a CTO if the Tribunal agree to it, or in an emergency. Your responsible medical officer (RMO) must follow the safeguards outlined in part 16 of the Mental Health Act when giving you treatment.
You have the right to an independent advocate. This is someone who helps you say what you think about your treatment. Your MHO should let you know how to get help from an independent advocate.
If a compulsory treatment order is made you, or your named person, can apply to the Tribunal for it to be removed once the order has been in force for three months. Your RMO should keep the need for the order under constant review, and can revoke it if you no longer need to be subject to the order.
The Scottish Government has produced guides on the Mental Health Act which, although under review, may be helpful to people receiving care and treatment and their carers.
See the guide to CTOs here.
Principles of the Act
The Mental Health Act principles were created to help people understand how the law should work in practice.
The principles were developed through consultation about what people felt was important to them, when they were being treated for a mental disorder. People who have received care and treatment and carers, as well as professionals, were involved in this consultation.
The principles are a set of guidelines for how professionals should work when providing treatment and care under the Act.
The ten principles of the Act
Professionals must:
1. Take your past and present wishes into account.
2. Make sure you get the information and support you need to take part in decisions.
3. Take the views of your carer, named person, guardian, or welfare attorney into account.
4. Look at the full range of options for your care.
5. Give you treatment that provides maximum benefit.
6. Take account of your background, beliefs, and abilities.
7. Make sure that any restrictions on your freedom should be the 'minimum necessary in the circumstances'.
8. Make sure that you are not being treated less favourably than other patients.
9. Make sure your carers' needs are taken into account and they get the information and support they need to help them care for you.
10. Take special care of your welfare if you are under 18 years of age.
If you feel the principles are not being applied to your care and treatment, you should speak to your doctor (responsible medical officer). You may want to get some help from an independent advocacy service who can provide support, and help you get your views across.
You can also phone us on 0800 389 6809. We can help by discussing what the principles mean for your care and treatment.
Independent advocacy
Under the Mental Health (Care and Treatment) (Scotland) Act, people with learning disabilities and people with a mental illness have a right to independent advocacy.
You do not have to be in hospital or under any mental health act in order to get this right to independent advocacy.
This means that you should be able to have an independent advocate and/or join an advocacy group if you want to.
What is independent advocacy?
Independent advocacy helps you to make your voice stronger and to have as much control as possible over your life.
It is called independent because advocates and advocacy workers are separate from services. They do not work for hospitals, social work, or other services.
Why might I need independent advocacy?
Some people need support to speak up, to understand what is being said, and to make decisions. Many people find that when they feel ill or upset they are not as good at saying what they want and they need support to speak up.
When might I need independent advocacy?
There are some times when it is especially important for you to get advocacy support. These times may be when you are:
- In hospital
- Going to a Tribunal meeting
On an order which says that:
- you must stay in hospital
- you can only stay out of hospital on certain conditions
- you can be given treatment even if you do not want it
Your doctors, nurses, social workers, and mental health officers should make sure you know about independent advocacy, and help you get it.
Named persons
If you need treatment under the Mental Health (Care and Treatment) (Scotland) Act 2003 you can choose someone to help protect your interests.
This person is called a named person. Anyone aged 16 or over can choose a named person.
A child under the age of 16 cannot nominate a named person. The person with parental responsibilities for them is automatically their named person.
Who can I choose to be my named person?
- Your named person can make important decisions about your care if you are not able to decide yourself, so you should choose someone who knows you well and who you can trust.
- If you can choose your own named person it can be a relative or friend, but not somebody with a professional role in your care.
- You can say you don't want to have a named person.
You can have an independent advocate and a named person. Your advocate cannot be your named person because they have different jobs to do. Your independent advocate is someone who helps you say what you think about your treatment.
Your named person has a right to be consulted about some aspects of your care and treatment and can also make applications to the Mental Health Tribunal.
For more information see the Scottish Government's guidance on named persons.
Changes to named persons provisions made by the Mental Health (Scotland) Act 2015
From 30 June 2017, changes are being phased in so that a person will not have a named person unless they nominate somebody to be their named person.
For a new named person nomination to be valid the nominated person has to consent, in writing, to be the named person.
Nominations of named persons made before 30 June 2017 will continue to be valid, even if the named person has not agreed in writing.
If you become subject to compulsion under the Mental Health Act now and you have not nominated a named person, you will not have a named person unless you do nominate somebody.
Some people were already subject an order under the Mental Health Act on 30 June 2017, and had a default named person. This would be their primary carer or nearest relative. If this applies to you, your default named person will continue to be your named person until any of the following happen:
- You nominate that person or someone else to be your named person
- You become informal (i.e. you are no longer subject to compulsion under the Mental Health Act)
- Your responsible medical officer reviews your Order for the first time after 30 September 2017
- If your default named person is still in place on 30 June 2018, their role stops then
The Scottish Government has suggested templates for named person nominations, declarations and consent on the Mental Health Act forms page.
Listed Initiators
The 2015 Act made provisions for other people to make applications or appeals to the Tribunal about your Mental Health Act Order if you do not have capacity to do so yourself, and you do not have a named person. These people are called 'listed initiators'.
Listed initiators include:
- Your nearest relative
- Your primary carer (if you have one)
- Your welfare guardian (if you have one)
- Your welfare attorney (if you have appointed a welfare attorney, and it is operational)
If you do not want your primary carer or nearest relative to act as a listed initiator for you, you can make a written declaration to say they cannot do this.
To write this declaration you need to be capable of doing so, and it needs to be witnessed. The Scottish Government has provided a suggested template for this on the Mental Health Act forms page.
Mental Health Tribunal
The Tribunal is an independent organisation set up to make decisions on the compulsory care and treatment of people with mental disorders in Scotland.
The Tribunal has a President and 300 members around Scotland.
If you have a Tribunal meeting there will be a group of three people - a doctor (psychiatrist), a lawyer, and another person with relevant skills and experience, e.g. a nurse, social worker, or someone with personal experience of mental illness, learning disability, dementia or related conditions.
A Tribunal meeting is often called a 'hearing'. The Tribunal must hear and read all the information about you and your case. They then decide what to do about your care and treatment.
What does the Tribunal do?
The main role of the Tribunal is to consider and determine applications for compulsory treatment orders (CTOs) under the 2003 Act. It also considers appeals against compulsory measures such as short-term detention certificates and CTOs. The Tribunal also reviews every CTO once it has been in place for two years and every two years after that.
How do I contact the Tribunal?
You can write or phone the Tribunal office. You can ask your named person, independent advocate, or solicitor to help you to do this.
Mental Health Tribunal for Scotland
1st Floor Bothwell House
Hamilton Business Park, Caird Park
HAMILTON ML3 0QA
Mental Health Professionals: 01698 390 000
Enquiries from patients, carers, general public: 0800 345 70 60 (Freephone)
website: www.mhtscot.gov.uk
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)
Mental health officers
A mental health officer is a social worker who has special training and experience in working with people who have a mental illness, learning disability, dementia or related condition.
When might I have a mental health officer?
If you become ill and lose the ability to make your own decisions, you can be given compulsory care and treatment. This only happens if it is necessary and if there is a risk to you or others.
What does my mental health officer do?
Your mental health officer:
- tells you about your rights.
- writes reports and care plans.
- agrees that you need to be examined by a doctor.
- asks for you to have a compulsory treatment order if you need this. This means you have treatment even if you do not want it.
Can I change my mental health officer?
Yes. If you cannot work with your mental health officer, your social work department helps to sort out the problem or chooses a new mental health officer for you.
You may want to change your mental health officer because you do not agree with their decisions. A new mental health officer may make the same decisions about your care and treatment.
Safeguarded treatments
Sometimes, when people are very unwell, they are unwilling or unable to agree to have treatment. In some cases, you may be forced to have treatment, in hospital or in the community.
If you are being treated under the Act, you can be given medications without your consent in the first two months of your treatment.
There are strict rules about when this can happen, which are in the Mental Health Act. The rules are different for different types of treatment and situations.
After two months, you can only continue to have medication if:
- you are capable of consenting and agree to take it, or
- your doctor contacts the Mental Welfare Commission to arrange a visit from a specially trained psychiatrist, or designated medical practitioner (DMP), and the DMP decides that you should have the treatment.
Some treatments require extra, special permissions, or safeguards
If you do not give your consent to them, these treatments cannot be given without a second opinion from a DMP. That applies right from the start of your treatment under the Mental Health Act.
Treatments with special safeguards from the start include:
- Artificial feeding
- Electroconvulsive therapy (ECT)
- Other treatments that act directly on your brain
- Medication where the purpose is to reduce sex drive.
If your doctor wants to use any of these treatments, they will contact the Mental Welfare Commission to arrange a visit from a DMP.
What is a designated medical practitioner (DMP)?
Designated medical practitioners (DMPs) are experienced psychiatrists. When you need the safeguard of a DMP, your doctor will contact us and we'll ask a DMP to see you.
The DMP who comes to see you will work in a different hospital to the one you are in.
We try to make sure that the DMP has experience of working with your condition, or specialist knowledge of the treatment that is being proposed. A DMP's duties are set out in the Act. They have experience as NHS consultants and are asked to undertake independent opinions for the Commission.
What does the DMP do?
Your own doctor will put forward a plan for treating you. The DMP's job is to decide whether the treatment the doctor has put in this plan is in line with the law and is in your best interests. The DMP can only give an opinion on the specific medical treatment. The DMP cannot give a second opinion on your diagnosis or general treatment. Before making a decision, the DMP will:
- talk to you and listen to your views about your treatment;
- assess your mental state;
- look at your case notes;
- pay particular attention to an advance statement if you've made one;
- consult others (including your named person) about your care, if practical.
Can I be forced to have treatment?
Sometimes, when people are unwell, they may need to have treatment, even if they don't want it. There are strict rules about when this can happen.