2020-04-14 13:13:49
The current Covid-19 Pandemic has
brought about numerous concerns for all of us who work in the legal profession
but none more so than how this will impact upon the rights of us as
individuals. At Legal Services Agency we
provide specialist advice to those with mental ill health, their family and
carers. Many of those we work with are
or have been subject to Orders under the Mental Health (Care and Treatment)
(Scotland) Act 2003 either within hospital or in the community.
On 19th March 2020 the
British Government introduced emergency legislation in the form of the
Coronavirus Bill - now the Coronavirus Act 2020 - to assist in dealing with the
ongoing pandemic. The Act brings into
force unprecedented powers for Ministers in today’s society. Initially the Bill proposed granting such
powers for a period of 2 years but thankfully, after cross party pressure, the
powers will be subject to review every six months however, the Act itself will
remain in place for the initially planned two year period. A small concession on what is a great
infringement on the rights and liberties of some of the most vulnerable within
our society, not just those with mental ill health.
Schedule 9 of the Act proposes a number of changes to the 2003 Act including:
It is clear from the provisions
of the Act that the intentions behind it lie in trying to accommodate times
where there might be a reduction in the available staff - which from our
experience is already challenging - both from the medical profession and from Mental
Health Officers. However can this Act be
considered as an erosion of the few safeguards in place for those facing
considerable restrictions on their choices and liberties? I would suggest so.
Emergency Detention
Certificates
Unlike other forms of detention
an Emergency Detention Certificate does not require to be granted by an
approved medical practitioner and is granted for the purpose of detaining a
person for medical assessment. This
means that the certificate can be granted by a doctor who does not need to be a
psychiatrist or have particular expertise in the diagnosis of mental
disorder. There is no right of Appeal to
the Mental Health Tribunal for Scotland against an Emergency Detention Certificate. The 2003 Act specifies that such a
certificate does not require to be agreed to by a Mental Health Officer where
it is impracticable to do so. The Mental
Welfare Commission’s most recent Monitoring Report notes that on average 50% of
all Emergency Detention Certificates have Mental Health Officer approval. Will this be the situation we now face with Short
Term Detention Certificates? In practical
terms a person could now be detained in hospital for assessment for up to 4
days with no recourse to the Mental Health Tribunal and their detention not
having been considered by another professional.
Short Term Detention
Certificates
The purpose of a Short Term
Detention Certificate is to allow the detention of a person in hospital for the
purposes of determining what medical treatment should be given, or for the
giving of medical treatment. Under the
2003 Act a Short Term Detention Certificate is to be approved by a Mental Health
Officer. Where a Mental Health Officer
does not approve, the option to shop around is not available and a certificate
cannot be granted. The consent of a Mental
Health Officer is there to safeguard patients from arbitrary detention. This lack of approval removes an important
layer of protection. Should a person be
unable to instruct a solicitor to pursue an Appeal the situation may arise
where they are detained for up to 8 weeks, with the consent of only one person,
before any independent consideration of their circumstances takes place.
Compulsory Treatment Orders
Removal of the requirement for
two medical reports again removes a protection against arbitrary
detention. It can be the case where
medical professionals do not agree on the need for either Detention under a CTO
or in community circumstances measures that are required within one. At a time where even the instruction of a
solicitor may not afford you the second opinion medical report it is important
that all internal safeguards within the legislation remain.
A mandatory review ensures that
an order is reviewed by the Tribunal every 2 years where there have been no
other Hearings within that period. The
suspension of these may mean that Orders would automatically continue, where
the patient does not lodge an Appeal,
for potentially 4 years in total without an independent review. Where a patient is able to instruct a
solicitor this may not be the case however we should be looking to protect the
rights of those who are most vulnerable and not always in a position to do so
themselves.
On 24th March 2020 the
Mental Welfare Commission for Scotland provided an Advice Note for
professionals working in the areas of Mental Health and Adults with Incapacity
in anticipation of the Bill receiving Royal Assent. It can be found on their website at https://www.mwcscot.org.uk/news/covid-19-mental-welfare-commission-advice-note-version-1-24-march-2020. The note sets out some practical
considerations which alleviate the above concerns to a certain extent however
the suggestions are not binding upon those practising in the area. The reality of the changes becomes more stark
when looked at through the number of days, as opposed to hours, the Orders may
be granted for. At a time of confusion
and uncertainty we are reliant upon the recognition of mental health
professionals that any steps which can be taken to ensure the rights of people
with mental ill health are safeguarded, in the same way we would expect in the
normal functioning of society. At the
time of writing the provisions mentioned in this article have not been brought
into force by the Scottish Government and it still remains to be seen whether
this will be deemed necessary.
Rachel Walker
Solicitor/Associate
LSA
