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

I have had no legal training and had no prior interest in mental health law or guidance. My knowledge comes from research on the internet, and from making subject access requests to the Grampian Health Board, the Shetland Health Board and the Mental Welfare Commission for Scotland. So this is my current understanding of the law and guidance that should have applied to my detention and treatment with ECT and psychiatric drugs. If anyone can provide further advice on the law in Scotland I would welcome it.

I was being held in hospital under a Short Term Detention Certificate under Section 44 of the Mental Health (Care and Treatment)(Scotland) Act 2003. It was granted at the Gilbert Bain Hospital in Lerwick on 29th November 2021 and expired on 26th December 2021. As the Tribunal hearing was on 6th January my understanding of Section 47 of the Act is that an extension certificate would have been needed following an examination by an Approved Medical Practitioner if the powers under the Act were to continue beyond 26th December 2021. I have written confirmation that after 26th December 2021 I became an informal patient, but no one told me about it until after 11th January 2022. They were required to inform me as soon as reasonably practical but delayed for over two weeks before doing so, which I consider to be negligent and unforgivable. Three of the ECT treatments were carried out after the Short Term Detention Certificate had expired and when no extension certificate had been issued. The hospital therefore exceeded their legal powers in giving me ECT when I repeatedly voiced my objection to it.

How could they give me such a violent and controversial treatment when I had no previous history of mental illness, when the trigger for the depression was a terminal cancer diagnosis, when I had only been in the hospital for just over three weeks, and when my condition was improving?

Treatment must have been given under Part 16 of the 2003 Act. This gives two options:

  1. The patient is capable of giving consent and consents in writing. This obviously didn’t apply in my case, as no one told me that they would be giving me ECT.

  2. The DMP (Designated Medical Practitioner), which in this case I now know was Dr David Rooke of Stracathro Hospital, certifies on Form T3A that “The patient is incapable of understanding the nature, purpose and likely effects of the treatment.” How is that decided? I was on a ward, my condition was improving, I was socialising with other patients and making choices about whether to have tapioca or ice cream for pudding. Shortly afterwards I instructed a solicitor to represent me at the Tribunal. I now know that Dr Rooke never met me and completed the form after a video conference with Dr Hannah Badial and an unknown nurse. He certified that treatment was necessary to alleviate serious suffering. He also stated that treatment for up to 3 months was authorised by virtue of the 2003 Act when that authorisation was due to expire 5 days later (3 days later if Christmas and Boxing day are excluded) and when in fact the authorisation was not renewed.

The form also has a section titled ‘Consultation’ where the DMP has to indicate which people he has consulted prior to issuing the certificate. Dr Rooke wrongly certified that he had consulted with the patient, when in fact I never spoke to him and knew nothing about what was going to be done to me until the morning of the first 'treatment'. This seems to me to be serious negligence.

In the Appendix to the form Dr Rooke records his virtual 'visit'. Despite not meeting me he found evidence of Significantly Impaired Decision Making and said that ECT was highly appropriate to minimise distress [!!] and improve wellness.