Involving the named person

More than 4,000 people in Scotland are subject to compulsory treatment orders every year detaining them in mental health care (BBC News Scotland, 11 August 2011). The Mental Health (Care and Treatment) (Scotland) Act 2003 provides the legislative framework for such deprivations of liberty. The Act marked the first major overhaul of mental health law for 40 years.

This article deals with the role of named persons in terms of the Act, which enables medical professionals to detain and treat people against their will on grounds of mental disorder. The Act introduced freedom of choice for patients in this respect. It provides for the nomination of a named person by the patient and sought to address the risk of challenge under the European Convention on Human Rights.

In a case brought under the Convention, JT v United Kingdom, Application no 26494/95 (1998), the fact that the applicant was not in a position where she could change her nearest relative, despite having good grounds to do so under the (English) Mental Health Act 1983, was ruled in breach of article 8 of the Convention. The Act in Scotland provides for the nomination and revocation of a named person.

Core rights

The named person has the right:

• to receive copies of certain records or information which are given to the patient, including the record made if treatment has been given which conflicts with the patient’s advance statement, if one has been made;
• to ask for an assessment of the patient’s needs from the local authority and/or health board; 
• to be consulted when certain things happen – such as when a short-term detention order or an application for a compulsory treatment order is being considered; 
• to consent to two medical examinations taking place at the same time, if the patient is not capable of giving their consent to this; 
• to be notified when certain changes to the patient’s circumstances happen – for example if a short-term detention is revoked; 
• to make applications to the Mental Health Tribunal for Scotland to have orders revoked, and to appeal to the sheriff principal and thereafter to the Court of Session.

It should be noted that if a patient is being treated as a voluntary patient and there is no application pending for the patient to be treated under the Act, the named person has no rights or powers. Where there is an application for a compulsory treatment order in terms of s 60(1)(b) of the Act, the named person is entitled to receive intimation of the tribunal hearing. Under rule 6 of the Mental Health Tribunal for Scotland (Practice and Procedure) Rules 2005 notice requires to be given by the clerk of the tribunal, and in particular parties must be informed of the date, time and place of the tribunal hearing.

The named person is a full party to the proceedings. They have a right under s 64(2) of the Act to be afforded an opportunity to make representations orally or in writing. They are permitted to take part in leading or producing evidence at the tribunal. The level of involvement of a named person differs from case to case. Some choose to instruct a solicitor and obtain an independent psychiatrist’s report. Others attend without representation and offer vital information in support of the patient’s background and care arrangements.

Effective representations

In an appeal heard by Sheriff Principal R A Dunlop QC on 5 October 2011, an unusual situation had arisen where the named person had not received notice of a tribunal. This was brought to the tribunal’s attention by the patient’s curator ad litem. He had obtained her contact details from the compulsory treatment order application form and telephoned her to obtain her views on the order sought, as part of his remit. Members of the tribunal quite rightly attempted to remedy the situation by calling the named person during the tribunal proceedings. It is competent for members to take evidence by telephone. 

Subsequent to the tribunal, the named person lodged an appeal to the sheriff principal under s 320(2) of the Act. The basis of the appeal was that the named person had been unable to attend the tribunal hearing in person, due to only being telephoned when same was already underway. She had not had sight of any of the relevant papers and not heard herself any of the discussion that had taken place during the tribunal. She had the right open to her to attend, instruct a solicitor and obtain an independent psychiatrist’s report. ABWOR is available from the Scottish Legal Aid Board and is not means tested.

The appeal proceeded on the basis that there had been a procedural impropriety under s 324(2)(b) of the Act. The audio recording of the tribunal was obtained and a transcript prepared for the sheriff principal’s consideration. The question for the court was whether the telephone call could be said to be “oral representations” when the named person had been unable to consider the evidence given at the tribunal and the relevant papers.

The case of Paterson v Kent 2007 SLT (Sh Ct) 8 was considered. In that case, also before Sheriff Principal Dunlop, the details of the patient’s medical report and care plans were not provided to him until less than 24 hours before a tribunal which was considering compulsory treatment. The sheriff principal stated at para 55: “In my view that afforded the appellant insufficient time to allow proper preparation for and meaningful participation in the hearing that then took place.” The appeal in that case was successful and the matter remitted to a differently constituted tribunal. 

An appeal was also upheld in the unreported case of Elizabeth Byrne v Mental Health Tribunal for Scotland, 13 February 2006, where Sheriff Principal J A Taylor found that “Only in the most extreme circumstances could it be thought that less than 48 hours’ notice of a hearing was adequate.”

In the most recent appeal the tribunal’s decision was set aside, an interim compulsory treatment order made for a period of 28 days, and the matter remitted to a differently constituted tribunal to sit within 28 days.

It was felt a fortiori that if there had been no intimation at all before the hearing, it was difficult to secure or make effective representation if the named person had not even had sight of the papers. The first duty of tribunal members in such circumstances was to be satisfied that the named person was able to make effective representations. It is understood that the case will be used in training for tribunal members, so that they are aware of the steps to be taken should that unusual circumstance arise again.

Essential role?

The Mental Welfare Commission for Scotland has recommended to the Scottish Government that the named person provisions should be made clearer, and named persons should have to be by nomination and not by default. In terms of the Act, if the patient does not nominate a named person then it will automatically be the patient’s main adult carer. If the patient has no adult carer who is willing to be their named person, it is their nearest relative. Scottish Government research carried out into the operation of the Act has confirmed the majority of named persons are currently acting through default.

A review group was appointed in 2008 with the task of advising on changes to improve the efficiency of the operation of the Act and the experience of patients. It made the recommendation that a patient should have a named person only if they have appointed one. The Scottish Government’s response in October 2010 stated that it did not agree. It proposed instead to adjust the Act to provide a more straightforward “total opt out” for patients from having a named person. It considered that the default position for appointment of named persons should be maintained, as a protection for those who are most vulnerable and who have not appointed a named person.

There are existing mechanisms open to an individual’s primary carer, and others with an interest in the case, to become involved with a tribunal hearing even where they are not the named person. Under the Tribunal Rules, any person who has an interest in the case may send to the tribunal a written request for leave to enter the proceedings. A fundamental change to the current system proposed by the Scottish Government is that in the future, named persons should no longer automatically have the status of a party to proceedings before the tribunal.

An advantage to this change is that it would address the concerns surrounding the automatic flow of highly sensitive and personal information about the patient to the named person, whether or not that role is wanted by the patient or the named person. In the future it is suggested that an amendment is made to the legislation so that the form appointing the named person should require the written consent of the named person.

Many carers have experienced upset through receiving detailed medical records and papers concerning the patient without prior warning. The papers may contain things the named person has to relive, or that they may previously have been unaware of, such as details of serious criminal offences or abuse suffered. The current practice has raised questions about confidentiality and data protection.

However, with any restriction on participation in tribunals there may be concerns as to the erosion of that aspect of patient representation. The named person is a distinct and separate voice to the patient who acts in the best interests of the patient at key points. They can have a supportive and ongoing role in the patient’s care and treatment. It has been found, though, that they have had to work on some occasions to be heard or consulted after the activity around key points such as tribunals.

The Scottish Government’s Mental Health Legislation and Adult Protection Policy Team is open to suggestions about other amendments which users feel would improve the operation of the Act. The Mental Health Amendment Bill is currently awaiting a parliamentary slot.