Mental Health and Incapacity Legislation (Review)

Part of the debate – in the Scottish Parliament on 19th March 2019.

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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.