Mental Health (Care and Treatment) (Scotland) Act 2003: A Care Staff Guide

Scotland has its own mental health law. The Mental Health (Care and Treatment) (Scotland) Act 2003 sets out when someone can be detained and treated without their consent, and the rights and safeguards they have. It is different from the Mental Health Act 1983 that applies in England and Wales, with its own terms, roles and timescales. This guide explains the essentials for care and healthcare staff working in Scotland or alongside Scottish services.

It is general information, not legal advice. Check the Mental Welfare Commission for Scotland's guidance and your own organisation's policy. For the English equivalent, see our section 2 vs section 3 guide.

The ten guiding principles

The Mental Welfare Commission describes ten guiding principles in the Act. They include taking account of a person's past and present wishes, enabling their informed participation, using the minimum necessary restriction, and non-discrimination. Anyone exercising a function under the Act must take them into account, and staff should be able to explain how they have in daily practice.

Detention routes

Emergency detention

An emergency detention allows a person to be held in hospital for up to 72 hours while their condition is assessed. A doctor must recommend it, and a mental health officer should agree to it unless that is impracticable.

Short-term detention

A short-term detention needs recommendations from both a psychiatrist (an approved medical practitioner) and a mental health officer. The Commission describes it as the preferred route because it includes more safeguards for the individual. It is a longer period of detention than an emergency detention, to allow assessment and treatment.

Compulsory treatment orders

A compulsory treatment order is made by the Mental Health Tribunal for Scotland, not by a doctor or social worker. An order lasts up to six months initially. It can be renewed for a further six months, and then for periods of twelve months. Orders may require treatment in hospital or in the community.

Key roles

• Mental health officers (MHOs). Specially trained social workers who assess need, write reports and make applications.
• Approved medical practitioners. Doctors who examine people as soon as possible after detention and make recommendations.
• Designated medical practitioners. Independent psychiatrists who give second opinions on certain treatments.
• Mental Health Tribunal for Scotland. A panel made up of a lawyer, a psychiatrist and a person with relevant experience, which decides on orders and hears appeals.
• Mental Welfare Commission. Provides advice, visits people who are subject to compulsion and monitors how the Act is used.

The English system has similar roles under different names. See our guides to mental health tribunal rights and the Independent Mental Health Advocate for comparison.

The named person

Under the Scottish Act a person aged 16 or over can choose a named person to help protect their interests and be consulted about their care. This is different from the nearest relative system in England, where the role is set by law. If a person does not choose one, a default arrangement may apply. Staff should ask patients early whether they have a named person, and record the details.

Independent advocacy

The Act gives everyone with a mental disorder the right to access independent advocacy. Advocates work separately from services and help people to express their views and to understand and use their rights. Staff should make sure that people know about advocacy, and help them to contact an advocate. Do not make access depend on whether the service thinks the person needs it.

What care staff should do

• Know the person's legal status. Check the type of order, its end date and any conditions.
• Explain rights clearly. Make sure the person understands their rights to appeal, to advocacy and to a named person.
• Involve the person. Give people a say in their care and record their views.
• Keep restrictions proportionate. Follow the principle of the minimum necessary restriction.
• Know who to call. Keep contact details for the MHO, responsible medical officer and Mental Welfare Commission advice line to hand.

Working across nations

If a person moves between Scotland and England or Wales, the legal basis for compulsion does not simply carry over. Check with the responsible clinician and mental health officer before any transfer. Staff in each nation should be trained in their own local law.

Frequently asked questions

How long can emergency detention last in Scotland?

Up to 72 hours, while the person's condition is assessed.

Who makes a compulsory treatment order?

The Mental Health Tribunal for Scotland, after an application supported by reports from an MHO and doctors.

Can a person choose who represents them?

Yes. People aged 16 or over can choose a named person, and everyone with a mental disorder can ask for independent advocacy.

Where can teams find training?

See the CPD hub for professional development options for care and healthcare teams.

Learnsignal will update this guide as Scottish mental health law reform progresses.