Legal provisions The Mental Health (Care and Treatment) (Scotland) Act 2003 (The 2003 Act) The 2003 Act authorises the use of compulsory measures, including situations where a person’s mental illness, learning disability or related condition poses a risk to others and the person’s ability to take treatment decisions is significantly impaired. The 2003 Act has a set of principles that anyone providing treatment must “have regard to”. We believe that these principles provide an ideal foundation to underpin decisions about procedures and safeguards in the use of seclusion and other environmental restrictions. We use the following principles throughout this guidance: • • • • • • • • • • • Maximum benefit; Minimum necessary restriction of freedom; Past and present wishes and feelings; Views of relevant others; Participation; Provision of information and support; Range of options available; Non-discrimination; Respect for diversity; Needs of carers; Provision of appropriate services. There is very little in the 2003 Act and the Code of Practice that deals with the use of force, but it is accepted that the powers of detention and compulsory treatment may involve a degree of force. Our view is that seclusion without a person’s consent amounts to detention and a deprivation of liberty in terms of ECHR Article 5. Anyone subject to seclusion in hospital must be detained under the 2003 Act, or the relevant provisions of the Criminal Procedure (Scotland) Act 1995. Due regard must be given to the Principles of the 2003 Act, in particular those of least restriction, benefit and participation. Medical examination must be carried out as soon as possible in order to determine whether the person meets the criteria for detention. If there is any unavoidable delay in the attendance of a medical practitioner, it may be appropriate to use the nurse’s power to detain pending medical examination (2003 Act, Section 299). In emergencies, it may be necessary for staff to take immediate steps to contain a dangerous situation and that intervention may involve use of seclusion. If the person is not in hospital and subject to compulsory treatment under the 2003 Act at that point, an immediate assessment must be made to consider whether an Emergency or Short-Term Detention Certificate is necessary and appropriate. Some people may decide to make an advance statement about the use of seclusion. This might involve anticipating situations where they would or would not find seclusion acceptable. If seclusion is considered, the advance statement should be taken into account. If the period of seclusion is in conflict with the advance statement, the actions set out in section 276(7) of 21