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Faculty of Advocates welcomes U-turn on mental health issue

26 August 2014

The Faculty of Advocates has welcomed a U-turn on plans that would have allowed mental health patients to be detained on the basis of only one medical report.

Against a background of concern about the “proliferation” of reports in some cases, a draft Mental Health (Scotland) Bill had proposed that a compulsory treatment order (CTO) could be sanctioned on the advice of a single doctor.

The Faculty, as well as many other respondents to a Scottish Government consultation on the draft bill, expressed strong reservations about the change. It stated: “The requirement that there be two medical reports has, in one form or another, been part of the landscape in this area of law for a long time, and, we suggest, for good reason. If it is to be dispensed with…this should be done only in truly exceptional cases.”

The proposal has been dropped in the Mental Health (Scotland) Bill, which is now being considered by the Scottish Parliament’s Health and Sport Committee.

In written evidence to the committee, the Faculty said: “We welcome the decision not to proceed with the proposal in the consultation draft which might have resulted in patients being detained on the basis of only one medical report…we considered that would have been an undesirable change.”

Provision is made in the Bill for the transfer of prisoners to be treated for mental disorders, but the Faculty said it had “some concerns” about the form of the relevant section.

“…it seems to us that a requirement that the mental health officer (MHO) consent to a transfer for treatment direction goes a good deal further than the stated policy aim of ‘involving’ the MHO in the process,” the Faculty stated.

“More than that, however, our concern, based on the experience of members practising in this area, is that MHOs may not readily be available in the prison estate: they are skilled professionals with a large caseload. There is a risk that in some cases treatment for acutely unwell prisoners will be delayed.”

A major aim of the Bill is to introduce a Victim Notification Scheme for victims of mentally disordered offenders. The current Criminal Justice Victim Notification Scheme does not extend to such offenders, but under the Bill, information about offenders could be disclosed to victims or relatives in certain circumstances.

Victims would also, if practicable, be able to make representations prior to any decision about the patient’s discharge into the community or the conditions of the discharge.

The Faculty said it was of the view that, in general, the new scheme “appears to strike a careful balance between the rights and interests of the various individuals involved.”

The full document can be seen here