Mental health law in Scotland: guide to named persons

3. If you don't have a named person (people aged 16 and over only)

Where you have the ability (capacity) to choose a named person but do not want one then you will not have one. Nobody can appoint a named person for you.

However, the law says that if you do not have a named person then certain people are able to act on your behalf as a 'listed initiator'. This is only where you do not have the ability (capacity) to make decisions about making an application or appeal to the Tribunal.

A listed initiator may only act on your behalf in a limited way; they may only make an application or appeal to the Tribunal on your behalf.

The following people can act on your behalf as a listed initiator:

• your guardian;
• your welfare attorney;
• your primary carer; or
• your nearest relative.

A listed initiator will not automatically receive your personal information or medical records. This is different from a named person. However, a listed initiator can obtain any information or notice which they need to be able to make the application or appeal to the Tribunal.

If you do not want this to happen then you can make a written declaration to say that you do not want a particular person or persons to be able to act as a listed initiator on your behalf (see section 7).

A form for making a declaration stopping people acting as a listed initiator can be downloaded from the forms section at www.gov.scot/mentalhealthlaw but your hospital or local council may have their own version of the form which they could provide you with (also, see section 8 for sources of further information and advice).

If you don't have a named person, and do not have the capacity to make an application or appeal to the Tribunal, then certain people involved in your care and welfare can make an application or appeal to the Tribunal on your behalf. When they do this they are known as a listed initiator. You can prevent this from happening if you want to.

Additional protections for people with or without a named person

As a main protection, the law ensures that your wishes and feelings are taken into account when a decision or action is taken about your care and treatment by certain people. This happens whether or not you have a named person. The law also ensures that the views of your named person, carer, guardian or welfare attorney are taken into account, if you have any of these.

This means that your mental health officer (MHO) and responsible medical officer (RMO) need to take your views, as well as those of your named person, carer, guardian or welfare attorney (if you have one), into account when making decisions about your care and treatment.

Advance statements and independent advocacy provide other ways that can help people involved in your care to understand and take into account your past and present wishes and feelings. An advance statement is a written statement which sets out a person's preferences for their care and treatment for their mental disorder, in case they do not have the ability to make decisions about this in the future. Anyone who makes decisions about your care and treatment must take into account the preferences in your advance statement. This includes your mental health officer (MHO), responsible medical officer (RMO) and the Tribunal.

Independent advocacy can provide a way to support you to express your needs and thoughts to people who are making decisions about your care and treatment. An independent advocate cannot make decisions on your behalf, but will help you to get the information that you may need to make choices about your circumstances and will also support you to put your views across to others. An independent advocate may also speak on your behalf if you would like this. Anyone being treated for a mental disorder under the law has a right of access to independent advocacy.

For further information and advice about advance statements and independent advocacy please discuss this with your mental health officer (MHO) or responsible medical officer (RMO), or contact the Mental Welfare Commission for Scotland (see contact details at section 9).

If you can't arrange your own solicitor because you do not have capacity to make this decision, a legal representative (known as a curator ad litem) will be appointed for you by the Tribunal. The curator ad litem will represent your interests to the Tribunal, including at Tribunal hearings, and will be provided with information about you so that they can do this.

The Tribunal can also decide to take views from or share documents with people who have an interest in your care and treatment, for example a member of your family or a friend. The Tribunal can only do this if it is satisfied that it is the right thing to do and it will have regard to providing the maximum benefit to you as the patient.

The Tribunal can decide to involve people with an interest in your care or treatment and who wish to be further involved by making them a formal part of any proceedings where you are the patient. This means that they can receive important documents relating to your case (including documents that contain personal information about you) and offer any views.