Mental health and the law
The Mental Health (Care and Treatment) (Scotland) Act 2003 has been in force since April 2005. The Act defines ‘mental disorder’ as meaning any mental illness, personality disorder or learning disability however caused or manifested.
The Act provides a legal framework for detention in hospital as well as certain legal safeguards and remedies available to patients their ‘named persons’. A named person is entitled to be advised and consulted about compulsory measures and has the same rights as the patient to apply to and be heard by the Mental Health
Tribunal for Scotland (“the Tribunal”)
The Patient and the Named Person are entitled to legal representation by a Solicitor in proceedings before the Tribunal. In certain circumstances, a form of legal aid known as Advice by Way of Representation is available on a non-means tested basis from the Scottish Legal Aid Board.
The project’s solicitors offer advice and representation in relation to these legal orders, just some of which are noted below.
A short-term detention certificate authorises detention in hospital for a period of up to 28 days where the legal criteria are met. Under the Act, the patient or the named person may make an application to the Tribunal for revocation of the Certificate.
The patient’s Mental Health Officer may make an application to the Tribunal for a Compulsory Treatment Order. Such an order can authorise detention of the patient in hospital and treatment for mental disorder for an initial period of up to six months. The Tribunal also has the power to grant a community based CTO, authorising certain measures for compulsory treatment in the community. If a CTO is granted, the patient’s Responsible Medical Officer then has legal authority to suspend or revoke the order, to extend the order on review or to make an application to the Tribunal to vary the order from community based to hospital based, and vice versa.
The Courts also have certain powers to grant orders relating to mentally disordered persons subject to Criminal proceedings. The Court could, for example, grant a Compulsion Order or a Compulsion and Restriction Order which are then kept under review by the Tribunal. The Tribunal can also review the levels of security required for patients currently detained in the State Hospital, and could make a declaration that the patient is detained in conditions of excessive security. The Project’s solicitors can provide representation at the Tribunal in relation to these hearings before the Tribunal.
Under the Act, a person also has the right to make an advanced statement, a formal statement about the ways the person making it wishes, or does not wish to be treated for mental disorder. Whilst the advanced statement is not legally binding, regard must be had to the wishes contained in it. The project’s solicitors give advice and assist in the preparation and certification of an advanced statement, to ensure that it meets the legal requirements of the Act.
Adults with Incapacity
The Adults with Incapacity (Scotland) Act 2000 received Royal Assent on 9th May 2000 and most of the Act has now been in force since 1st July 2002. The Act makes provision regarding the management of the property, financial affairs and personal welfare of adults with incapacity.
An Adult with Incapacity is defined as a person over 16 years of age, who is incapable of acting, or making decisions, or communicating decisions or understanding decisions or retaining memory of decisions by reason of mental disorder or inability to communicate.
The Project’s solicitors offer advice and representation to adults with incapacity and to those with an interest in their affairs, in relation to a range of legal matters under the Act. For example, Power of Attorney is a legal document whereby one person, known as “the Grantor”, appoints another person, known as “the Attorney”, to make decisions and act for them either now or in the future. Generally these responsibilities relate to property and financial affairs. However, since the introduction of the Adults with Incapacity (Scotland) Act 2000, a Power of Attorney can also cover matters relating to the Grantor`s welfare. A Power of Attorney granted in terms of the said Act is known as a Continuing Power of Attorney when it deals with property and financial affairs, and is known as a Welfare Power of Attorney when it deals with welfare issues.
There are certain legal requirements which have to be fulfilled before the document can take effect and the project’s solicitors provide advice and assistance to those wishing to grant a power of attorney, and who meet the criteria for the project’s assistance.
Advice and Assistance funding from the Scottish Legal Aid Board is available in certain circumstances, subject to financial eligibility.
A Guardianship Order authorises a suitable person to make ongoing decisions regarding the management of the property, financial affairs and/ or welfare of an adult with incapacity.
Intervention Orders are similar to Guardianship orders and authorise the person appointed to carry out one off interventions in the affairs of an adult with incapacity.
Guardianship Orders and Intervention Orders are authorised by the Sheriff and the project’s solicitors provide advice and representation to interested persons, including family members, who wish to be appointed as Guardians and Interveners and prepare and present the applications to the Sheriff Court. In addition, the project’s solicitors provide advice and representation to adults who are the subject of the application and who have a right to oppose the application.
Civil Legal Aid is often available to cover the Court process, and is non-means tested where the application includes welfare powers. Advice and Assistance is also available for initial advice, based on the resources of the Adult. More information about legal aid eligibility can be obtained from Legal Services Agency or from the Scottish Legal Aid Board.
Children’s Hearings and Referrals to the Sheriff Court
The Project’s solicitors also regularly advise and represent parents and relevant persons with mental ill health in relation to proceedings before the Children’s Hearing, in terms of the Children (Scotland) Act 1995.
Sometimes children and young people are referred to the Children’s Reporter because there is cause for concern. The role of the Reporter is then to investigate, and if appropriate, to arrange for a Children’s Hearing to consider the Referral with a view to potentially granting a Supervision Requirement. The Project’s solicitors provide advice and where appropriate, representation, in relation to Children’s Hearings.
The Referral process can be complex. Where the parent or relevant person does not agree with the grounds for referral, the matter may be referred to the Sheriff Court to establish the Grounds for Referral. A parent/ relevant person also has the right to appeal to the Sheriff Court against a decision of the Hearing, within 21 days. The Project’s solicitors can provide Representation at the Sheriff Court stage, and Children’s Legal Aid may be available.
NOTE: Significant changes to the law in this area are expected in the Spring/ Summer of 2013.
The Children (Scotland) Act 1995 also makes provision for the Court to make orders in relation to parental rights and responsibilities (known as a S. 11 order). These could include important decisions about with whom a child under sixteen should live (known as a residence order) or an order regulating contact arrangements (known as a contact order).
The project’s solicitors provide advice and where appropriate, representation in relation to these Court proceedings. Advice and Assistance and Civil Legal Aid may be available from the Scottish Legal Aid Board.
The Project’s solicitors regularly advise service users and their carers in relation to community care matters, for example, where it is felt that the service user is not accessing the care and support they need.
The Social Work (Scotland) Act 1968 and the Mental Health (Care and Treatment) (Scotland) Act 2003, both make provision for assessment and provision of care to persons in need of community care services. The law in this area is complex, and the final remedy may be to pursue a Judicial Review at the Court of Session. Advice and Assistance and Civil Legal Aid may be available from the Scottish Legal Aid Board.
Equality and discrimination
The Equality Act 2010 came into force in October 2010, bringing with it a raft of changes, harmonizing and strengthening existing discrimination law and supporting progress on equality.
The Act provides for eight ‘protected characteristics’ including disability, which can unfortunately be an issue of concern for mental health service users. Some of these protected characteristics apply in different contexts such as education, employment and access to goods and services.
Mental health problems can make it difficult to deal with money day to day but it is often not understood that where it can be established that a person lacked capacity to enter into a credit agreement, the agreement is void in Scots law.
The project’s solicitors can advise clients with mental ill health who are concerned about their debts, about any defences they may have on this basis, and can assist to gather medical evidence in support of such a defence. Advice and Assistance from the Scottish Legal Aid Board may be available.
The project acknowledges the complex needs of asylum seekers with mental ill health and it is recognised that there can be an unmet legal need in this area and that these individuals can be vulnerable in their engagement with mainstream legal processes.
The project therefore offers a small assistance to a small number of asylum seekers whose mental ill health impacts on their ability to access mainstream legal assistance in progressing their asylum case.
The Project acknowledges that housing problems can be compounded by a mental health diagnosis and offers specialist advice and representation to tenants and home owners at risk of losing their homes.Civil Legal Aid and Advice and Assistance may be available from the Scottish Legal Aid Board.
The Project acknowledges that Employment problems can be compounded by a mental health diagnosis and offers advice and representation in relation to proceedings before the Employment Tribunal including unfair dismissal and discrimination claims.
In certain circumstances, a form of legal aid known as Advice by Way of Representation is available from the Scottish Legal Aid Board.