Appendix 2 - Mental Health (Care and Treatment) (Scotland) Act 2003, Advanced Statements

FORTH VALLEY AREA

JOINT GUIDANCE

NAMED PERSONS

Final Version

(1 February 2006)

1. Aim and Objective of this guidance

1.1 Aim

1.2 Objective

2. Introduction

2.1 The Mental Health (Care and Treatment) (Scotland) Act 2003

2.2

Named person: key questions

Choosing a named person - guidance

3.1

Choosing a named person

3.2

Nominating a named person

Recording and identifying a named person

4.1

Recording a named person

4.2

Identifying a named person

Working with named persons

5.1

When a named person is enacted

5.2

Withdrawing a named person

General Issues

6.1

Other formats

6.2

Review date

6.3

Other policies/protocols/guidance

6.4

The Mental Health (Care and Treatment) (Scotland) Act 2003 formally introduces the concept of named persons. This gives people the right to choose a named person who will have the same rights of information as the person or “nominator”. The named person has to be consulted by any professional involved in the care of the nominator and also has the right to make applications to the Tribunal should the “nominator” have a mental disorder at some point in the future. The named person has a range of legal rights under the Act [see 5.1 below]. The named person can also act independently of the nominator, so choice of named person is crucial to ensure that they act in the nominator’s best interests.

Choosing the appropriate named person may help to ensure that the care a person receives is what they would want in the event that they lose capacity to give consent to medical treatment. Any professional involved in any way in giving advice on the nomination of a named person should therefore be aware of the named person’s legal status and of the appeal procedures should the named person’s actions be inappropriate.

2.2Named Person: Key Questions

1) How is a named person nominated

2) What happens if there is no named person

3)Who is the named person for a child

4)Can a nearest relative or anyone else be stopped in advance from being a named person

5)Meaning of "nearest relative"

6)What are the duties of a Mental Health Officer re: Named Persons

7)Can a person apply to the Tribunal for a named person

8)What are the powers of a Tribunal re: Named Person

How is a named person nominated?

The person nominating and the named person must be over 16 years old.
The nomination must be witnessed by a prescribed person who certifies the nominator has capacity to do this and is not under undue influence in making the nomination.
The named person can be changed only if a separate form is completed by the nominator and witnessed by a prescribed person.

The named person’s role starts if and when the nominator is detained under any orders in the Act.
If the named person wants to stop this role, they have to write to the local authority withdrawing their nomination.
Prescribed persons are listed as follows:

doctor/registered nurse/solicitor/social worker/ clinical

psychologist/occupational therapist/social service worker, e.g. supervisor or

manager of a care service. See Appendix for fuller details.

What happens if there is no named person?

If a person is legally detained under the Act, and they do not have a named person, then the named person would automatically be the person’s primary carer and then the nearest relative. The primary carer would normally be an unpaid carer and the nearest relative is in a hierarchical list [ see below for more details]

If either the primary carer or the nearest relative choose not to be the named person then they have to write to the local authority to withdraw from this role.

3. Who is the named person for a child?

If the person is under 16 years, then the parent or someone assuming parental rights and responsibilities will be the named person.

The Act states that if neither of these cases apply then the child’s primary carer will be the named person.

The Act gives choice about the nomination of named person where the child has two or more people with parental rights and parental responsibilities. Firstly they have to agree among themselves or if there is conflict, then the named person will be the one who “provides , on a regular basis, all, or most, of the care for, and support of, the child”

If the local authority has legal parental rights then they will automatically be the named person.

Can someone be stopped in advance from being a named person?

A person can write to the local authority “declaring” that they do not want a specific person to act as their named person.

This statement or “declaration” has to be witnessed by a prescribed witness who carries out the same assessment role as for a named person.

A copy of this declaration should then be sent to the Health Records Department, PCOD HQ, Old Denny Road, Larbert.

A person can stop or change this declaration using the same procedures for named person as described above.

There must be separate declarations for each individual e.g. if the person does not want ANY of his/her primary carers and/or family nominated as default named persons, then he/she must complete a separate declaration for each individual.

The Code of Practice states however.” declaration under this section does not prevent the Tribunal from appointing the person mentioned in it as the named person” This may arise in situations where the MHO applies to the Tribunal to have a named person changed [ Code volume 2 par. 37 p.64; see Q.6 below]

5. What is the meaning of “nearest relative”?

The Act lists ten relatives starting with spouse and then non-legal partner.
They are as follows: Act: section 254 p. 177

i)Spouse, if not permanently separated or deserted

ii)co-habitation, including same-sex, for more than 6 months

iii)child – eldest if there is a disagreement

iv)parent - eldest of the two if there is a disagreement

v)brother or sister – eldest if there is a disagreement

vi)grandparent – eldest if there is a disagreement

vii)grandchild – eldest if there is a disagreement

viii)uncle or aunt – eldest if there is a disagreement

ix)niece or nephew – eldest if there is a disagreement

x)friendship basis for more than 5 years

Any nearest relative can decline the nomination by writing to the person and the local authority where the person resides.

The nearest relative must be living in the United Kingdom, the Channel island or the Isle of Man. Any other world-wide address discounts them from acting as named person. This would discount, say, relatives abroad who might have a welfare power of attorney.

6. What are the duties of a Mental Health Officer re: Named Persons?

The MHO has to establish whether or not a patient i.e. someone already detained under the new Act, has a named person.

The Act states that an MHO “may” apply to the Tribunal if a patient does not have a named person or is unable to establish whether there is a named person. This places a discretionary duty on the MHO to have a named person established through the Tribunal system.

The patient would have no say in this nomination given they have lost capacity, assuming they have not made a declaration about not having specific people nominated [see Q.4 above ]

If the patient has a named person and the MHO thinks that person is inappropriate then the MHO has to apply to the Tribunal to have that person changed or replaced.

If the patient does not have a named person but there is what the Act calls “ an apparent named person”, say, the default primary carer or nearest relative [see Q.2 ], then the MHO has discretionary powers whether or not to apply to the Tribunal to have that named person changed.

The MHO could nominate a person authorised as a welfare guardian or a welfare attorney under the Adults with Incapacity (Scotland) Act 2000, as the named person. The guardian does not have an automatic right of being a named person. They can however apply to the Tribunal to have a named person appointed or a named person removed. [see Q.7 ]

Where the MHO applies to the Tribunal for a Compulsory Treatment Order [CTO] he/she has a duty to identify a named person and also notify them of the application and of their right to appeal the CTO. If there is a named person, the MHO has to record the named person’s views in the application form.

Can any person apply to the Tribunal directly in relation to a named person?

The Act allows a range of people to apply to the Tribunal [the Act terms them the “applicant”] if:

(a)the patient [remember the person must actually be detained under the Act] has no named person ;or

(b)the applicant considers the named person is inappropriate.

The application would be to have this person removed and replaced.

Those who can apply include:

i )the patient;

i)the patient’s Psychiatrist;

ii)the parent if the patient is a child;

iii)the hospital managers, if the patient is in the hospital;

iv)any welfare attorney;

v)any guardian;

vi)any relative of the patient; and

vii) “any other person having an interest in the welfare of the patient”

8. What are the powers of a Tribunal re: Named Person?

Where a patient does not have a named person and the Tribunal receive an application from an MHO or from persons listed above under the separate sections discussed above [see 7], the Tribunal may make an order appointing the person specified in the order to be the patient’s named person. This is a discretionary power and is not automatic.

Where a patient does have a name person and either the MHO or any of the persons listed above think that person is inappropriate, then the Tribunal may issue an order declaring that named person - legally termed “the apparent named person” - is no longer the named person.

The Tribunal has the discretion to appoint another named person to replace the one removed. This is where perhaps the Tribunal can override a patient’s declaration not to have a specific person named as the named person while they had capacity [see Q.5 ]

3. CHOOSING A NAMED PERSON – guidance.

3.1 Choosing a named person

Any person wishing to nominate a named person should be encouraged to discuss it with their care team/workers, MHO, nurse, doctor, and perhaps an independent advocate, although there is no obligation for them to do so.

This approach has the following benefits:

Ensuring the person is fully informed about their decision and about the independent responsibilities of a named person

Reducing the risk of future problems if an inappropriate named person is chosen e.g. some who could not cope with the responsibility or who may use the role against the person’s best interests.

At the same time, it is important that the person is able to nominate a named person of his or her own free will, without undue influence.

3.2 Nominating a named person

There is no template for the nomination of a named person under the Act so it can be written in any way the person chooses. However the following are the essential elements which need to be included to make it a valid document:

Full name, date of birth and address of the person
Details of the named person’s full name, address and date of birth.
Signature of the person in the presence of a prescribed witness.
Witness declaration confirming the person understands the effect of nominating a person to be their named person, and that he/she has not been subject to undue influence.
Signature of witness
The date of co-signing with the person/ witness
Full name and address of witness
Designation of witness.

3.3 Witnessing the Named Person’s Nomination

The nomination of a named person has to be witnessed by a prescribed person.

The witness can be anyone from the following list:

(a)clinical psychologists entered on the British Psychological Society's register of chartered psychologists;
(b) medical practitioners;
(c) occupational therapists registered with the Health Professions Council;
(d) persons employed in the provision of , or in managing the provision of, a care service; [see Appendix for clarification]
(e) registered nurses;
(f) social workers; [see Appendix for clarification]

(g) solicitors.

The witness does not need to have been involved in the nomination of a named person. The draft Code of Practice states: “Their role is only to certify that the person can make a valid statement, not to scrutinise, veto or endorse the nomination” [draft Code of Practice vol.1. par.22 p.22] It may be better to preserve impartiality for the witness not to have any part in the nomination.

The witness is required to:

i)Witness the signature of the person making the nomination

ii)Confirm, in their opinion, that the person making the nomination has the capacity to fully understand the contents of the statement

The witness should also make sure that the person is making the nomination of their own free will and without coercion.

The following form of words is suggested for witnesses to named person nominations :-

I hereby certify that I am of the opinion that at the time of making this nomination [the person making the nomination] understands the effect of nominating a person to be their named person, and that [he/she] has not been subject to any undue influence. I hereby witness his/her signature. [see sample form in Appendix]

4. RECORDING AND IDENTIFYING NAMED PERSONS

4.1 Recording a Named Person

When presented with a completed nomination, professionals should review the document and check it is valid and in line with the guidance above. If there are areas of concern these should be raised with the person who made the nomination to avoid future conflict and this should be documented. However a valid nomination must be accepted even if the professional disagrees with the nomination.

When accepting a nomination of a named person, a professional must record this in their notes.

There is a suggested pro-forma for the nomination/revocation and declaration of named persons in the Scottish Executive Guide to Named Persons. [See appendix.]

A copy of the nomination should then be forwarded on to

Head of Health Record Services

Health Records Department

Clinical Services Centre

Old Denny Road

Larbert

FK5 4SD

This system will allow flagging the existence of a named person to the GP, and general and psychiatric case-notes across the service as relevant, although the nomination itself will remain confidential in the patient’s health records.

Service users can directly submit forms themselves to this address if preferred

4.2 Identifying the existence of a named person.

During the admission process it would be advisable to:

i)Check with the service user for the existence of a named person

ii)If the service user is unable to say they have a named person it would be good

practice to check for the existence of a named person with health records, the

patient’s GP, and any significant others.

The code of practice also places responsibility on any professional working under the Act to ensure that a record of a named person is filed in service users’ medical notes by their Responsible Medical Officer (RMO) and/or their GP.

The service user and named person will be sent a notification of receipt of the nomination by Forth Valley NHS health records.

The code of practice recommends that the person nominating the named person give a copy of their nomination to relevant others such as medical or social work professionals or make them aware of who does have a copy. This might include the following

named person
carer
family
solicitor
nurse
independent advocate
welfare guardian
welfare attorney
responsible medical officer
mental health officer
general practitioner
Other people close to the person nominating the named person.

Professionals should offer to assist in the distribution process.

The MHO has sole legal responsibility to identify a named person if the nominator is ever detained. It would be expected those professionals listed above would pass this information onto the MHO.

4.3 Communication & Confidentiality

Appendix 2 - Mental Health (Care and Treatment) (Scotland) Act 2003, Advanced Statements

Contents

1.

Aim and Objective of this guidance

1.1

Aim

1.2

Objective

2.

Introduction

2.1

The Mental Health (Care and Treatment) (Scotland) Act 2003