Civil detentions of older adults under successive Scottish mental health legislation: a comparative analysis

Background: Many countries have adopted new mental health legislation, with the detention of adults for treatment of mental disorders remaining an integral part of such policies. However, there are relatively few publications on the use of mental health legislation in the detention of older adults. This paper examines the civil detention of older adults in one Scottish region under successive mental health legislation. Method: This prospective study collected data primarily by clinician-based interviews on all emergency detentions under the Mental Health (Scotland) Act 1984 of older adults in 1994 and compared these with all emergency and initial short-term detentions under the Mental Health (Care and Treatment) (Scotland) Act 2003 of older adults during 2008 in the same Scottish region. Results: There were a total of 124 detentions, with an initial rate of 68 increasing to 141 detentions per 100,000 of the respective over-65 year age populations, a two-fold increase. Compared to the 1994 patient cohort, the 2008 cohort had higher rates of over 85-year-olds (18.4% v 5.4%) and organic mental disorders (74.7% v 56.8%) and were significantly more likely to be detained by consultant psychiatrists (73.6% v 18.9%) during working hours (87.4% v 48.6%) and proceed to six-month detention orders (31% v 10.8%). Conclusion: The observed higher rates and longer periods of detention in the 2008 cohort may reflect changes in clinical attitudes and legal requirements from a previous reliance on the common law doctrine of necessity to the requirements of a more legalistic framework, and may signal future clinical requirements, given the aging population, pointing towards the need for earlier recognition and management of clinical issues in an attempt to minimize the “necessity” of clinico-legal intervention.