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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 parliament.

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 treatment.

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 failed.

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 opinion."

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 decision

A duty to provide "age appropriate" settings for patients under 18