News analysis on the Scottish mental health bill

Scotland has seen the most radical shake-up of its mental health
legislation in almost half a century with the passing at the end of
March of the Mental Health (Care and Treatment) (Scotland)
Bill, says Craig Kenny.

But some believe the measures will prove more popular with
professionals than service users. There is also a feeling that the
bill was rushed through before the spring elections, with only half
of some 1,400 amendments being properly debated in the Scottish

On the face of it, the bill makes some significant advances, such
as the move towards a new advocacy service and using English-style
tribunals instead of Sheriff Courts to decide on compulsory

But many of the new rights come with qualifications. For instance,
advance statements made by patients setting out their wishes about
future treatment now carry some weight, but can be over-ruled by
the responsible medical officer if he or she has a second medical
opinion. And there is no right of appeal.

Most controversial of the bill’s provisions are the community-based
compulsory treatment orders (CTOs), which compel patients in the
community to take their medication.

Given that the use of long-term detention has increased by 284 per
cent over the past 15 years in Scotland, there are fears that
community CTOs will be overused and seen as a cheaper alternative
to hospital.

The Millan Committee, which proposed the introduction of community
CTOs, suggested that they be restricted to patients with a history
of non-compliance or who were a danger to themselves or others, and
that they be used as a last resort. But the bill places no such
restrictions, and campaigners’ attempts to include them

Instead, there was a commitment by the Scottish executive to
monitor the use of CTOs. “We will ensure that any overuse of CTOs
will be quickly noticed,” says Richard Norris, policy director of
the Scottish Association for Mental Health. “If they are, the
government can restrict their use without new legislation. We need
to ensure that CTOs are used as the least restrictive alternative
for people who would otherwise be in hospital. The true test of
this bill will be the use of compulsory powers falling, and better
community services in place.”

Peter Clarke, a mental health officer who represented the British
Association of Social Workers on the bill’s consultation group,
believes the idea of CTOs is sound. “It’s a way of dealing with
those hospital patients who are at home on leave of absence, which
historically has been mismanaged.” The new CTOs replace long-term
detention-in-hospital orders and it will be down to the new
tribunals to decide whether treatment under a CTO takes place in a
hospital or community setting.

“We are moving away from treatment in hospital now, and it enables
an element of flexibility,” Clarke says. “The orders are not
draconian. They are not there to make the mental health service
more oppressive. They are there to do the opposite, for people who
have been detained in hospital for longer than necessary. If the
legislation works it will reduce readmissions to hospital.”

The bill also puts responsibilities on local authorities to
investigate cases if there are concerns for the well-being or
welfare of someone with a history of mental health problems, and to
provide social work while a patient is in hospital.

This particular change has strengthened the role of the mental
health officer (equivalent to the approved social worker role in
England). Clarke says: “There are more safeguards and a requirement
to consult with the mental health officer right the way through a
patient’s stay in hospital. There was some concern earlier that the
role might be taken away from the social work service, but it has
been substantially increased, to act as a counterbalance to medical

Clarke says the move will also end the postcode lottery. “There are
some authorities where mental health officers see things all the
way through detention while, in others, social circumstances
reports are not routinely completed and there are four or five
officers involved in each case.”

To pay for the new measures, the Scottish executive is investing an
extra £17.1m a year in mental health, with a further £6m
expected from the NHS. There will also be an audit of existing
provision to identify existing gaps.

But the key question is whether the funds will get through to where
they are needed. The Adults with Incapacity (Scotland) Act 2000 has
suffered because extra people have not been recruited to take up
the workload, says Clarke. “Lots of professionals on the front line
have very heavy caseloads and feel they can’t take any more,” he
says. “I was recently the senior on a community care team and one
case under the incapacity legislation created a full week’s worth
of work – that’s 35 hours on top of all the other duties.”

Some provision will definitely improve, such as facilities for
children and adolescents. The Royal College of Psychiatrists told
MSPs that admitting under-18s to adult psychiatric wards could be a
“frightening and distressing experience”, and called for an
additional 60 child and adolescent beds.

Under the newly passed bill, there is now a duty on health boards
to provide age-appropriate facilities for people under 18 admitted
to hospital under section, including the provision of mother and
baby units. This move has been warmly welcomed by the charity
Children in Scotland.

The bill also gives service users new rights, including the right
to appeal against “unnecessary levels of security”. According to
the Scottish Association for Mental Health, there are 20 patients
awaiting discharge from the maximum security hospital Carstairs,
but only one medium secure unit for them to move to. Health boards
will now be expected to increase provision.

Another sign of greater sensitivity to patients is that the “named
person” required to give consent to compulsory treatment no longer
has to be a family member. “That puts so many families in an
invidious position,” says Clarke.

But elsewhere the bill seems to have been fudged. Sectioned
patients will be able to refuse electro-convulsive therapy, but
only if their “decision-making ability” is not impaired. This veers
into the territory of the Adults with Incapacity Act, which governs
the right to consent to treatment. Questioned by MSPs, Scotland’s
health minister, Malcolm Chisholm, said the act would now need
re-examining as “we are extending the rights of incapable people in
relation to ECT beyond what is stated in that act”.

It is hardly surprising then that the Let’s Get It Right
campaigners, while pleased with many aspects of the bill, feel that
some complex issues have been rushed, and that six months in the
Scottish parliament did not allow adequate time.

The UK parliament may take note, although some observers contrast
the more sensationalist debate on psychiatric patients in England
with the milder way the Scottish bill has been presented.

“We are not too disappointed with this bill,” says Andy Chetty,
spokesperson for the Community Psychiatric Nurses Association.
“It’s a fine balance between satisfying the public’s concerns and
not infringing on people’s rights.” CC

Key provisions

Mental health tribunals to replace Sheriff Courts

A right to independent advocacy

A strengthened Mental Welfare Commission

Compulsory treatment orders which will allow care and treatment to
be tailored to the needs of each patient whether in hospital or in
the community.

Duties on local authorities to promote the well-being and social
development of all persons in their area who have, or have had, a
mental disorder

A new mechanism for nominating a “named person”

A new right of appeal against excessive security

Stronger safeguards on electro-convulsive therapy and a tightening
of procedures for patients who are too unwell to make a

A duty to provide “age appropriate” settings for patients under

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