Mental Health and Incapacity Legislation (Review)

– in the Scottish Parliament on 19th March 2019.

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Photo of Christine Grahame Christine Grahame Scottish National Party

I call Clare Haughey to make a statement on the review of mental health and incapacity legislation.

Photo of Clare Haughey Clare Haughey Scottish National Party

I know that, across the chamber, there is commitment to creating a modern, inclusive Scotland that protects, respects and realises internationally recognised human rights.

To help to deliver that, I am pleased to set out today that we will undertake a review of the Mental Health (Care and Treatment) (Scotland) Act 2003. Along with on-going work on incapacity and adult support and protection legislation, this overarching review will examine the full legislative framework that supports and protects people with a mental disorder. People who are affected by profound mental health issues must have the same rights as everyone else, which includes respecting their rights to have a private and family life, to protection from discrimination and to participate in the decisions that involve them.

The overwhelming majority of people who access mental health care and treatment do so voluntarily. Very few people are ever treated for a mental disorder against their will. Where they are, it must be because that is necessary to protect them or to protect other people. We need to be mindful, as a Parliament and as a society, that such treatment comes at a time when they are very unwell and very vulnerable.

People with a mental disorder may also be subject to the provisions of the Adults with Incapacity (Scotland) Act 2000 or the Adult Support and Protection (Scotland) Act 2007 if they are at risk of harm or neglect. Depending on their needs, a person may be subject to one, two or all three of these acts, which may be confusing for the individual and their carers and create barriers for them and for those who care for their health and welfare. Although huge advances have taken place with regard to mental health, in treatment and in changing social attitudes, we have always been clear that we will continue to keep the changing context under review to ensure that our laws are fit for purpose and, importantly, that we put people at the heart of our legislation.

In recent years, there has been an increasing focus in all areas of public life on the importance of protecting and promoting human rights, and on recognising the rights of people with disabilities. The European convention on human rights and the United Nations Convention on the Rights of Persons with Disabilities have provided us with an opportunity to look again at our legislation to ensure that the rights and protections of those with a mental disorder are fully respected.

Our legislation is already firmly based on rights and contains principles that reflect that ethos, and it has never been found, in part or in whole, by the European Court of Human Rights to be incompatible with the European convention on human rights. However, that does not mean that we cannot go further.

At the time of its introduction, the Mental Health (Care and Treatment) (Scotland) Act 2003 was groundbreaking legislation. It provided safeguards for those who become unwell and require compulsory care and treatment for a mental disorder. It also addressed wider issues, such as the rights of service users and carers and protection from abuse and ill treatment.

The 2003 act focuses on what is most appropriate and least restrictive for the individual patient, enabling them, in some cases, to be cared for and treated in the community, rather than being admitted to hospital. It contains significant safeguards, such as the right to independent advocacy and an efficient and independent Mental Health Tribunal for Scotland, which grants and reviews orders for compulsory treatment. An independent body, the Mental Welfare Commission for Scotland, monitors the use of Scottish mental health law, including compulsory treatment, and has the power to intervene if there is evidence of improper care, treatment or practices.

I believe that, 14 years on from the act’s coming into force in 2005, the time is now right to look again at the law to ensure that it fully reflects our ambitions and the needs of those whom it is intended to support when they most need it.

The principal aim of the review of the Mental Health (Care and Treatment) (Scotland) Act 2003 is to improve the rights and protections of persons with a mental disorder and to remove barriers to those who care for their health and welfare. The review will do that by reviewing the developments that have taken place in mental health law and practice in compulsory detention and care and treatment since the act came into force. The review will also make recommendations that give effect to the rights, will and preferences of the individual, ensuring that mental health, incapacity and adult support and protection legislation reflects people’s social, economic and cultural rights, including the requirements of the UNCRPD and the ECHR. It will also consider the need for a convergence of incapacity, mental health and adult support and protection legislation.

We are not starting this work from scratch. We have already started to take action. Work has already begun on a review of incapacity law and practice and on a review of learning disability and autism in the 2003 act. We will also shortly be undertaking work on the Adult Support and Protection (Scotland) Act 2007, which provides a framework for decision making that balances human rights and risk.

To date, work on a review of adults with incapacity legislation and practice has not yet considered in any detail matters relating to the crossover between adults with incapacity legislation and mental health legislation, how those laws converge, the definition of mental disorder or its use as the gateway to intervention under the two bodies of legislation. Those matters could not be considered in isolation from wider mental health legislation. The wider review that I am announcing today gives us the opportunity to consider all these matters together.

Work on reforming incapacity legislation will be carried out around improvements to practice that can be made without any legislative change, namely the development of a supported decision-making strategy, improvements in training, support and supervision for guardians and attorneys, and training for professionals across health, social care and the law. Partners and stakeholders are vital to the success of that work, and we will ensure that their contributions are at the centre of it.

We are already conducting an independent review of learning disability and autism in mental health legislation. That independent review, which started last year, is considering the wider issue of whether the current legislation needs to change for people with learning disability and autism. The review is not examining individual cases but is reviewing the law, and it will be developing ideas on how to improve the legislation, if necessary, so that it can better support people’s human rights. It will report to me by the end of this year.

That on-going work, taken together with the broader review of the 2003 act announced today, means that we now have a comprehensive programme of activity amounting to an overarching review of the legislative framework affecting people with mental disorder and those who care for them.

I want to be clear that the work will be stakeholder driven and evidence led. We want to gather views from as wide a range of people as possible. I am determined to ensure that, throughout the process, the views of patients, those with lived experience and those who care for them are front and centre of the work, so that they can help to shape the future direction of our legislation. We need to work together in partnership to address issues that affect the lives of those with incapacity and mental disorder.

The third sector in particular will be key to making that happen. It has a wealth of knowledge about and understanding of the impact that our legislation has on people’s lives. We must all recognise the role that we have to play and the importance of getting it right together.

The findings from each of the reviews that I have outlined will help to set the future direction of travel for our laws in the area. However, it is important that we wait for the findings from all the individual pieces of work before we draw any conclusions. The review of learning disability and autism is likely to recommend legislative change, and that has the potential to affect the overall legislative landscape.

I hope that the review of mental health legislation that I have set out will be a further significant step towards ensuring that Scotland’s legislative framework continues to lead the world. It demonstrates the Government’s on-going commitments to considering the challenging issues of human rights within mental health care settings and to ensuring that rights and protections for those who need them most are upheld.

The Deputy Presiding Officer:

The minister will now take questions on the issues raised in her statement. I intend to allow around 20 minutes for questions. After that, we will move on to the next item of business.

Photo of Annie Wells Annie Wells Conservative

I thank the minister for the advance sight of her statement and welcome her announcement of an overarching review of mental health and incapacity legislation. It is imperative that individuals are not disempowered when it comes to their treatment. As far as possible, patients should be able to make decisions about their own lives.

Last year, someone came to me to discuss their experiences of compulsory detention and treatment many years ago. The lasting impact of that on their life and the considerable distress that it was still causing were clear. What consideration will the review give to a patient’s aftercare should compulsory detention and treatment take place? What consideration will be given to guidance around guardianship, for which, as we know, the figures are on the increase. When will the review conclude, and when will we know the timetable for taking forward recommendations thereafter?

Photo of Clare Haughey Clare Haughey Scottish National Party

I am pleased to hear that Annie Wells welcomes the review of the legislation, which is really important.

As I said at the start of my statement, the issue unites the chamber, and we should all work together on it.

Annie Wells asked several questions; she should forgive me if I miss any. I will deal with the last question first. It would be naive of me to put a timescale on the review at the outset, but we expect that it will take around a year.

Annie Wells made very important points about aftercare. It is important to remember that the vast majority of people who access mental health care do so voluntarily. We need to ensure that the rights of all people who access mental health care are respected. That theme certainly runs through our mental health legislation, and I expect that it will continue to do so.

On guardianship, it is really important that we ensure that, under our adults with incapacity legislation, we encourage people to think early about how to settle their affairs and how to ensure that what they want is respected when they are not in a position to be able to enact their wishes themselves. The review of adults with incapacity legislation and the comprehensive programme of non-legislative changes that will be taken forward will look at additional training programmes and at reviewing the guidance and codes of practice on the power of attorney.

Photo of David Stewart David Stewart Labour

I thank the minister for the early sight of her statement.

The Adults with Incapacity (Scotland) Act 2000 and the Mental Health (Care and Treatment) (Scotland) Act 2003 were groundbreaking at the time but, in light of current international human rights laws, they look increasingly dated. Does the minister share my view that the United Nations Convention on the Rights of Persons with Disabilities is a crucial touchstone?

Does the minister also share my view that the key question that needs to be asked about future policy and legislation is whether they will do more to support people to take decisions for themselves, even if they have a mental illness, dementia or an intellectual disability, and to give effect to their decisions?

The minister outlined that improvements in practice in relation to incapacity could be made without the need for legislative change. Will she give more detail on the proposed strategy and on the improvements in training and support for guardians?

Photo of Clare Haughey Clare Haughey Scottish National Party

Mr Stewart asked me several questions, so I ask him to forgive me if I do not answer them all. I will be happy to write to him if I miss out anything that he asked about.

A significant feature of the work on adults with incapacity practice is the development of a supported decision-making strategy. Supported decision making aims to give people more support to make their own decisions about their lives and care, as is in keeping with the UNCRPD, which Mr Stewart mentioned. That review’s findings will enhance the work that is going forward.

As I mentioned in response to Annie Wells, our first priority will be revising the codes of practice on the power of attorney. That work will highlight the need for every adult in Scotland to consider appointing an attorney while they have the capacity to do so. Information will be provided on the rights and responsibilities of attorneys, on safeguards that are in place to protect individuals and on the sanctions that can be imposed for misusing the power of attorney. Those changes should substantively improve the delivery of services and the wellbeing of people who are impacted by AWI legislation.

I absolutely agree with Mr Stewart that the UNCRPD should be the touchstone for all that we do in legislation.

I apologise—I think that I have missed out one of Mr Stewart’s questions, but I will check the

Official Report and write to him on that point.

The Deputy Presiding Officer:

Mr Stewart can mention the question that the minister missed out—but if he does not know what it was, he need not bother.

Photo of David Stewart David Stewart Labour

I know which question was missed and, as always, I am happy to have two bites at the cherry.

The minister made it clear that we do not need legislation to make changes in, for example—

The Deputy Presiding Officer:

That is fine—we know now.

Photo of Clare Haughey Clare Haughey Scottish National Party

I said that we believe that we can improve adults with incapacity practice without enacting further legislation. We can progress those improvements from now.

The Deputy Presiding Officer:

That was flexibility.

Photo of Alison Johnstone Alison Johnstone Green

The minister was right to say that p eople who are affected by profound mental health issues have the right to participate in decisions that affect them. I welcome her commitment to ensuring that partners and stakeholders are at the centre of the review. How will she engage with those who will be most directly affected by any legislative change, such as people who are classed as adults with incapacity?

Photo of Clare Haughey Clare Haughey Scottish National Party

I welcome Alison Johnstone’s support for the review. We must have the voice of lived experience at the heart of the review. We need to involve partners and stakeholders, but we need to hear the voices of people who have been through mental health difficulties and accessed mental health services and the voices of their carers.

We will shortly appoint a chair of the review. I do not want to pre-empt how they will carry out the review within the parameters that I have set out, but a key aspect will be ensuring that stakeholders sit round the table and that we tap into the wealth of knowledge of, and hear the voices of, third sector organisations, healthcare professionals and other organisations that support people with mental health difficulties.

Photo of Alex Cole-Hamilton Alex Cole-Hamilton Liberal Democrat

I thank the minister for early sight of her statement and for the moves to improve supported decision making, although that will not necessarily improve our ability to hear the voices of people whom the legislation affects.

The United Nations Committee on the Rights of Persons with Disabilities has raised several concerns about the overuse of curators in mental health tribunals.

Will the minister confirm that she will ask the review to look at that area, so that we improve the ability of people who come before the tribunals—

The Deputy Presiding Officer:

I am going to have to—

The Deputy Presiding Officer:

The question has been asked. I want to get everybody in, so we need to have shorter questions and, if possible, short answers, please, minister.

Photo of Clare Haughey Clare Haughey Scottish National Party

It is important to say, at the outset, that there already are a number of safeguards under mental health legislation—the right to appeal detention, independent advocacy and, of course, the review of compulsory treatment by a mental health review tribunal. The Mental Welfare Commission for Scotland also safeguards rights.

I do not disagree with Alex Cole-Hamilton that the area should be looked at. We are looking at mental health legislation across the piece—and not just at those who access services informally, but at those who are subject to detention. I expect the area to be looked at by the review.

Photo of James Dornan James Dornan Scottish National Party

As someone who has seen at first hand how people used to be treated when they were involuntarily treated, I am delighted to see that so much has changed for the better and that the Scottish Government is holding a review. Clearly, much more needs to be done to protect vulnerable individuals. Will the review consider the use of seclusion and restraint?

Photo of Clare Haughey Clare Haughey Scottish National Party

The review’s terms of reference include considering the role of physical restraint, isolation and segregation. We are clear that everyone should feel safe while receiving treatment or working in our mental health services and that the use of physical restraint should only ever be a last resort.

As we work to improve our mental health services further, the experiences of patients, their families and staff are key to shaping treatment and support. The mental health strategy commits to funding 800 additional mental health workers in key settings. Importantly, over the past six years, the Scottish patient safety programme for mental health has led to reductions in self-harm, seclusion, violence and aggression and restraint across a number of areas, through collaboration and innovation among staff, service users and carers and from the use of quality improvement and improvement science.

Photo of Miles Briggs Miles Briggs Conservative

Two years ago, the Health and Sport Committee suggested to Scottish National Party ministers that a review could take place, which would give Parliament appropriate time to progress any legislative change. Given that ministers are only today announcing the review, any legislation will potentially be included only in the final programme for government ahead of 2021, which will lead to rushed legislation. Will the minister, at the earliest opportunity, set out to Parliament a timetable progressing the legislation through Parliament?

Photo of Clare Haughey Clare Haughey Scottish National Party

When the Mental Health (Care and Treatment) (Scotland) Act 2003 came into force, in 2005, it increased the rights and protections for people with mental disorders. Since then, huge advances have been made in mental health treatment and through the change in social attitudes.

As I said in my statement, 14 years after the introduction of that legislation, now is the time to review where we are. I answered a question about timescales and when I expect the review to report. I anticipate that that will be in 12 months’ time, but I do not want to put a firm timeline on that—it would be very naive of me to do that. It is a very complex piece of legislation, and the review will possibly encompass several other pieces of legislation. It is important that we do the work correctly, as rushing it would not do the matter justice.

Photo of Emma Harper Emma Harper Scottish National Party

Will the minister confirm how the review will adopt a human rights-based approach to its engagement?

Photo of Clare Haughey Clare Haughey Scottish National Party

When the Mental Health (Care and Treatment) (Scotland) Act 2003 came into force, in 2005, it increased the rights and protections for people with mental disorders. Since then, huge advances have been made in treatment and through changes in social attitudes. In addition, there has been an increasing focus in all areas of public life on the importance of protecting and promoting human rights.

Depending on their needs, a person could be subject to the Mental Health (Care and Treatment) (Scotland) Act 2003, the Adults with Incapacity (Scotland) Act 2000 or the Adult Support and Protection (Scotland) Act 2007. We have already begun work to reform incapacity law and practice, and we will begin work on the Adult Support and Protection (Scotland) Act 2007.

A human rights-based approach is about empowering people to know about and to claim their rights as well as increasing the ability and accountability of individuals and institutions that are responsible for respecting, protecting and fulfilling rights. Our approach to progressing the review will ensure that service users are involved in ways that make sure that their voices are heard on decisions that impact on them.

Photo of Mary Fee Mary Fee Labour

The scale of the review means that it crosses many portfolios. It is a massive task, given the importance of the existing legislation. I welcome the minister’s response to Alison Johnstone, but can she give further details of which stakeholders and other agencies will be involved in the review process? Who will oversee the work that they do?

Photo of Clare Haughey Clare Haughey Scottish National Party

A chair for the review will be appointed shortly. Given the interest in the legislation and, as Mary Fee says, the number of portfolios in the Parliament that the review crosses, a wide range of stakeholders will be involved in the work. I anticipate that the review will be quite a large piece of work, so, as I said to Miles Briggs, we need to get it right. I am unable to give firm timescales, because that would do an injustice to the work that the review body will do.

Photo of Angela Constance Angela Constance Scottish National Party

I declare an interest as a former mental health officer. I very much welcome the overarching review. Given the role of mental health officers in ensuring that people’s rights are protected and respected, particularly when compulsory care or treatment is being considered, will the minister take on board the fact that, despite the increase in the number of mental health officers, 22 local authorities still report a shortage of MHOs? Will the minister commit to specific engagement with mental health officers as a group of professionals?

Photo of Clare Haughey Clare Haughey Scottish National Party

As a former mental health nurse, I concur with Angela Constance’s view that mental health officers are invaluable in helping the national health service to provide the care and treatment that people with mental distress and mental illness need.

Local authorities are responsible for ensuring that they have a sufficient number of mental health officers to meet their statutory responsibilities and to make plans for their mental health workforce. The Scottish Government has engaged with key stakeholders to consider possible approaches to increasing MHO training and capacity, which links to action 35 of the mental health strategy. Work is being taken forward under the national health and social care workforce plan.

Photo of Brian Whittle Brian Whittle Conservative

Following on from Angela Constance’s question, I think that it is important that there is the capacity to implement the review findings and subsequent legislation. With that in mind, will the review look at the considerable time pressures that our general practitioners and other healthcare professionals are under during their patient consultations, which might prohibit their exploring all potential treatment options and implementing any review findings?

Photo of Clare Haughey Clare Haughey Scottish National Party

I was not quite sure where Mr Whittle was going with his question. I am not sure whether he is implying that people are detained under the 2003 act because of a lack of other treatment options. I am unclear about what he is asking.

The Cabinet Secretary for Health and Sport has assured the chamber that mental health is a priority, and the Government has shown that that is the case. We have invested heavily in growing the workforce across all the different professions in mental health. We have also made substantial investment in primary care services and in expanding the primary care team. I expect that, when the review comes back to us with its findings, it will have taken account of the changing landscape of staffing across the health service and social care.

Photo of Fulton MacGregor Fulton MacGregor Scottish National Party

Will the minister outline what will happen to the adults with incapacity reform work that is being taken forward?

Photo of Clare Haughey Clare Haughey Scottish National Party

We are proceeding with a comprehensive programme of non-legislative changes to practice and guidance. We are developing a strategy for supported decision making to enable people with impaired capacity to have the support that they need to make their own decisions about their life and care. We will provide a comprehensive training programme for professionals in health, social care and the law. We are improving the provision of support for guardians and attorneys, and we are revising the current codes of practice and guidance to provide clarity on the existing law.

As I have said, our first priority will be the revision of the codes of practice on powers of attorney.

That work will highlight the need for every adult in Scotland to consider appointing an attorney while they have the capacity to do so. It will provide information on the rights and responsibilities of attorneys, the safeguards that are in place to protect individuals and the sanctions that can be imposed for the misuse of power of attorney. I take the opportunity to encourage all MSPs in the chamber to consider conferring power of attorney while they have the capacity to do so.

The Deputy Presiding Officer:

I do not know whether the minister is looking at me. I certainly hope not. I have no intention of doing that at the moment, if that is the inquiry.

Photo of Daniel Johnson Daniel Johnson Labour

I remind the chamber that I am currently an out-patient with adult mental health services and have a diagnosed neurodevelopmental disorder.

There may be some concern among the autistic community today, given that the review work on autism is being linked with incapacity, especially when many within that community are seeking a move away from the deficit model. Can the minister explain how the scope of the review will be managed between acute and chronic conditions and, importantly, on the point about the stakeholder-led nature of the review, confirm whether the review group for the review into learning disability and autism will include people with autism?

Photo of Clare Haughey Clare Haughey Scottish National Party

I assure Daniel Johnson that I want the voice of people with lived experiences to be at the heart of the review. I understand his concern, as there is often a crossover between mental health legislation and adults with incapacity legislation. Although it does not affect everyone who comes into contact with mental health services, there is sometimes a crossover in the legislation and sometimes also a crossover with adult support and protection legislation. We are trying to make the system easier to navigate both for people who are subject to the legislation and for the health and social care professionals who look after them. I take on board what Mr Johnson has said and hope that he will take my reassurance that I want the voice of lived experience to be at the heart of the review.

Photo of Rona Mackay Rona Mackay Scottish National Party

Does the minister agree that this overarching review will give both patients and their families more support and protection with regard to their human rights?

Photo of Clare Haughey Clare Haughey Scottish National Party

The review will be stakeholder driven and evidence led. It is crucial that people have an opportunity to make their views known; therefore, there will be a full public consultation. Each stage of the process will have to create an engagement strategy that not only is transparent but affords the opportunity to gather as wide-ranging views as possible. The aim will be to engage people with real experiences—service users, carers and professionals—as well as those with a more academic interest. The third sector, in particular, will be key to making this happen, as it has a wealth of knowledge and understanding concerning the impact of the legislation on people’s lives.