Independent Advocacy and the Mental Health Act

The Mental Health act states that there is a statutory requirement for Independent Advocacy to be made available to anyone subject to detention, compulsory treatment or a Mental Health Tribunal. An Advocacy Worker can advise you about your rights under the Act, and can help you find a suitable lawyer or appoint a Named Person. Advocacy Workers can visit people detained in hospital, and can help them to prepare for meetings, Tribunals and other eventualities.

Mental Health Act

The Mental Health (Care and Treatment) (Scotland) Act 2003 applies to ‘mental disorders’, a broad category that includes mental illnesses, learning disabilities, dementia and personality disorders. Under the terms of the Act, people can be detained or treated against their will under certain circumstances. The Act also lays out safeguards and checks to protect the interests of people who are detained or given compulsory treatment.


There are several different provisions within the Act for detaining someone against their will. These are laid out in different sections of the Act, and as a result being detained is sometimes referred to as being ‘Sectioned’.

An Emergency Detention Certificate can be issued by a doctor who is concerned that a person may have a mental disorder, theircondition needs to be assessed in hospital to see if they require treatment, they may be a danger to their self or others, their ability to make decisions may have been compromised as a result of their condition, and that making arrangements for a Short-Term Detention would involve an undesirable delay. The doctor should, wherever possible, consult a Mental Health Officer (MHO) before issuing an Emergency Detention Certificate. An Emergency Detention Certificate allows the person to be detained for up to 72 hours, during which time they should be moved to a hospital for assessment. You cannot appeal against an Emergency Detention Certificate, because the short timescale would make an appeal impractical.

A Short-Term Detention Certificate can be issued by a Psychiatrist in consultation with a Mental Health Officer if the Psychiatrist has examined the person and believes it likely that they have a mental disorder, their ability to make decisions has been compromised as a result of their condition, that they need to be detained in hospital to assess them for treatment, that they may be a danger to their self or others, and that the cetrificate is necessary. The Psychiatrist and MHO should wherever possible consult with the person’s Named Person prior to issuing the certificate. The Named Person is someone that the person can appoint to look after their interests if they are detained or given treatment. Short-Term Detention Certificates allow the person to be detained for up to 28 days. Within the first 72 hours of the Short-Term Detention, the person should be transferred to hospital. You can appeal to a Mental Health Tribunal against a Short-Term Detention Certificate.

A Compulsory Treatment Order (CTO) can be issued by a Mental Health Tribunal. An application is raised by a Mental Health Officer (MHO) including two medical reports, a report from the MHO, and a proposed Care Plan. The Tribunal will consider the application, and can grant the order, change the content of the order, or refuse to grant the order. You and your Named Person have a right to know that there is an application for a CTO, you habe the right to attend the Tribunal and give your reasons why you would oppose the order, and you can seek legal counsel (Legal Aid is widely available for Mental Health Tribunals).

The Police Power to remove a person to a place of safety is a very short-term power, enabling a police officer to remove a person from a public place to a place of safety if they are concerned that they have a mental disorder and that they may need immediate treatment. The police can detain someone for up to 24 hours so that they can be examined by a doctor.

The Nurses’ Holding Power for voluntary inpatients allows a nurse to hold someone who has voluntarily admitted their self, but now wishes to leave against medical advice. A nurse can detain someone for two hours in order to be examined by a doctor, or for an additional hour if the doctor arrives in the second hour of the detention. The nurse must believe that the person has a mental disorder, that they need to be examined to determine if an Emergency- or Short-Term Detention Certificate is necessary, and that there might be a danger to the person or to others if they were discharged immediately.

Mental Health Tribunal

A Mental Health Tribunal is a meeting with a three-person panel made up of a psychiatrist, a lawyer and another member with relevant skills or experience to enable them to make an informed decision. The Tribunal will be attended by the patient, their Named Person, an Advocacy Worker for the patient, and the patient’s lawyer if they decide to retain one. The Tribunal will also be attended by the MHO, and usually the Psychiatrist who has examined the patient.

A Mental Health Tribunal can make decisions about Compulsory Treatment Orders, and can hear appeals against Detention Certificates and CTOs. The Mental Health Tribunal should be held in a location close to you, usually in a hospital administration block or other local venue. You and your representatives should be provided with copies of all the correspondence and documents relating to the Tribunal. If you are unhappy about the outcome of a Tribunal, you can appeal to the Sheriff Principal, and then to the Court of Session.