Added Value: Using Human Rights to Support Psychiatric Advance Statements
| Pages | 210-223 |
| Date | 01 May 2013 |
| Author | Jill Stavert |
| Published date | 01 May 2013 |
| DOI | 10.3366/elr.2013.0155 |
The 2003 Act applies to compulsory treatment situations in civil and criminal cases and very much embodies, amongst other things, the principle of service user participation in treatment decisions.
This reflects recommendations in the Millan Report, which preceded the Act (B Millan, Report of the Millan Committee,
Section 275(1). The Act 2003 also contains specific requirements relating to the making of valid advance statements and those who may witness the maker's signature: see s 275(2) andthe Mental Health (Advance Statements) (Prescribed Class of Persons) (Scotland) (No 2) Regulations 2004, SSI 2004/429 r 2, as amended by the Health Care and Associated Professions (Miscellaneous Amendments and Practitioner Psychologists) Order 2009, SI 2009/1182 Sch 4 Part 1 para 12.
Where a valid and subsisting advance statement exists,
An advance statement, or withdrawal of the same, is assumed to be valid unless proven otherwise (s 276(5) of the 2003 Act).
and the maker's ability to make treatment decisions for their mental disorder is ‘significantly impaired’The focus of this article will be on situations where psychiatric advance statements become relevant to treatment decisions. It will not therefore consider assessment of incapacity or significantly impaired decision-making ability. The latter, though not defined by the 2003 Act, potentially extends beyond incapacity as described in the Adults with Incapacity (Scotland) Act 2000 s 1(6). For discussions of incapacity assessment see e.g. World Health Organisation,
Section 276(1).
Section 276(3) of the 2003 Act. Medical treatment may be authorised under the 1995 Act where a person with mental disorder comes into contact with the criminal justice system and is convicted or acquitted of a criminal offence or where the prosecution is abandoned.
It is highly unlikely, however, that such surgery will be conducted where the patient is unable to consent. See K Matthews et al,
Before determining whether or not such treatment is in the patient's best interests because it is likely to alleviate, or prevent deterioration in, their condition (s 276(4)).
See, however, Scottish Executive,
Section 276(4) of the 2003 Act. Such treatment cannot be administered by force where the patient is not in hospital (s 241(4)).
Section 276(7) and (8)(a).
The direction to have regard to the wishes expressed in such statements creates no absolute legal requirement to follow them. However, the Act does not give specific direction as to when it is acceptable to override an advance statement, nor does its Code of Practice provide much additional detail either. The Code does contain several references to the need to make enquiries to ascertain whether a patient has made a valid statement
Scottish Executive,
Para 58.
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