Mental Health Act

Information about the Mental Health (Care & Treatment)(Scotland) Act 2003 and what it may mean for you

The Mental Health Act is the piece of law which ensures those suffering a mental disorder receive appropriate care, as well as help, manage their safety when vulnerable. Most people who have a mental disorder understand the need for help and treatment, but for some this ability is impaired. The Mental Health Act can be used by experienced medical professionals only when specific criteria are met. A key principle of the Act is reciprocity, that is as well as the expectation the individual will receive care, Mental Health professionals must attempt to ensure that the views and wishes, of the individual, are expressed and heard at the time.

There are many safeguards within the Act, including the right of appeal. All individuals under the Act will be informed of their rights and be entitled to free legal representation. Further safeguarding is provided by the Mental Welfare Commission in Scotland who monitors use of the Act, ensures individual care is lawful and respects individuals’ rights.

Named Persons

Adults over 16 can choose someone as a ‘Named Person’ to act on their behalf should they be under the powers of the Mental Health Act. This person has the same rights as the person being treated to be notified of, attend and be represented at a Mental Health Tribunal hearing.  

This is a very important and significant role and it is best to choose someone who knows you well and can be effective at these hearings in order to get the best out of this safeguard. 

Mental Welfare Commission information on Named Persons.

The Right to Make an Advance Statement

You have the right to make a written statement about your mental health treatment when you are mentally well and have capacity. This must be taken into account by the services treating you and is important at a mental health tribunal (see below). 

Many people have strong opinions about their mental health treatment and it is important to know that the people treating you when unwell often do not know you or do not know you as a well person. An advance statement is your opportunity to tell mental health services your views about your treatment so that they are better placed to help you.

Mental Welfare Commission information on Advanced Statements

The Mental Health Tribunal

The Mental Health Tribunal system is a third party arbiter that is involved in any disagreements relating to a person’s mental health treatment as well as decisions about Compulsory Treatment Orders. People receiving treatment, or their named person, have the right to challenge compulsory treatment orders and aspects of a person’s care. In addition, the Tribunal must listen to your views and make any decisions fairly and impartially.

Mental Welfare Commission information about Mental Health Tribunals.

Compulsory Treatment Orders

In some instances, there is a need to provide treatment when a person is unable to consent, or against the will of an individual. This can only happen with a Compulsory Treatment Order. These orders (often shortened to CTO) have to be granted by a Mental Health Tribunal. The patient, a named person and the patient’s primary carer are entitled to be heard by the Tribunal. The patient and the named person are entitled to free legal representation for the tribunal hearing.