Unjustified Detention Under the Mental Health Act - Repercussions
Dear Scottish Public Services Ombudsman,
I have recently made a request of the Mental Welfare Commission. I hereby provide their kind reply:
Mental Welfare Commission for Scotland
4 August 2011
We acknowledge receipt of your request made under the Freedom of Information (Scotland) Act 2002. We received this via e-mail on the 3rd of August
Please see below your questions and our answers, in bold type, below each one.
In relation to people who have been detained under s24 of the Mental Health (Scotland) Act 1984, prior to the 2003 Act coming into force please could you state:
1. Where a MHO and GP recommend/authorise the detention and therefore sign the A1 papers, please state:
a. How long need the relationship between the patient and the GP before they are able to recommend detention under s24.
Answer - there was no requirement for there to be any previous relationship between the doctor and the patient
b. How long need the relationship be between the MHO and the patient before they are able to recommend detention under s24.
Answer - there was no requirement for there to be any previous relationship between the MHO and the patient
c. Which law is relied upon to allow an MHO, who has never previously met the patient to recommend detention under s24.
Answer - This was allowed by the Mental Health (Scotland) Act 1984
d. Where a patient is believed to have a disorder, what are the requirements for assessment so that the 'belief' is considered a valid belief rather than a fanciful belief?
Answer - We recommend that you consult psychiatric text books for the definitions of delusions, delusion-like ideas and over-valued ideas.
e. What restrictions and procedures are in place to prevent s24 emergency detention being used by a MHO and GP in circumstance where the patient is simply disliked by the MHO and GP rather than genuinely suffering from any disorder?
Answer - There was no right of appeal against emergency detention under the 1984 Act. If the patient believed this to be the case, we would recommend obtaining legal advice
f. What evidence does there need to be to show that the patient was at risk of harming themselves or others if they were not detained?
Answer - there was no requirement under the 1984 Act to document this evidence. This changed with the introduction of the Mental Health (care and Treatment) (Scotland) Act 2003. The doctor merely had to state that, in his/her opinion, there was a risk to the patient's health or safety or
the safety of other persons.
g. What procedures and timescales must be followed in order to challenge a s24 detention and clear this from the medical records
Answer - There was no right of appeal to emergency detention under the 1984 Act. We would recommend obtaining legal advice as to whether a judicial review was likely to rule the detention unlawful so that it is not unfairly used against a patient at a later date.
h. What attempts should be made to contact the nearest relative before a s24 detention.
Answer - The Act required consent from either a relative or the mental health officer. The Act did not require contact with the nearest relative.
Right to Request a Review
If you believe that we have not handled your FOISA request correctly, you do have the right to request us to review it. Your request should be made within 40 working days of receipt of this letter/e-mail, and we will reply within 20 working days of receipt.
If you require a review of our decision to be carried out, please write to our Chair, The Very Revd Dr Graham Forbes CBE, at the following address.
The Mental Welfare Commission for Scotland
91 Haymarket Terrace
The review will be undertaken by staff not involved in the original decision making process.
If our decision is unchanged following a review, and you remain unsatisfied with this, you then have the right to make a formal complaint to the Scottish Information Commissioner at Kinburn Castle, Doubledykes Road, St Andrews, Fife KY16 9DS
Thanks you for your request.
Are you able to assist me in providing any recorded information you hold that will assist someone who believes they have unjustifiably been detained as was allowed by the Mental Health (Scotland) Act 1984, preventing suffering a further injustice due to the serious repercussions which might result from relying upon the unjustified detention such as:
1. Further unjustified detention.
2. Loss of employment opportunities.
3. Having their witness evidence discredited.
4. Having their children removed from them.
5. Having their adult disabled offspring, to whom they are guardians removed from them.
6. Having their right to a private family life breached.
Mrs C Mason
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