Mental health law

The College welcomes and fully supports efforts to review the legislation around mental health law.

There are a number of initiatives underway to examine the current settlement enshrined primarily within the Mental Health (Care & Treatment) (Scotland) Act 2003, the Adults with Incapacity (Scotland) Act 2000 and the Adult Support & Protection (Scotland) Act 2007. We have sought to enable our members, with their day to day expertise, to contribute to the following pieces of ongoing work.

The College welcomes and fully supports efforts to review the legislation around mental health law. We share the Scott Review’s aim of improving the legislative framework for those with mental health conditions or incapacity, and believe the best means of achieving this would be through fusion legislation. We support an approach which builds on the already strong principles-based legislation in Scotland, with revisions directed towards further compliance with international human rights obligations while ensuring the legislation remains practical and incorporates a needs-based approach.

  • The College recognises and fully supports the focus of the Review on ensuring mental health legislation embraces a human rights focus. We encourage that all rights be considered. This includes recognising that, in most cases, the use of legal powers is in order to safeguard and guarantee rights such as the right to health and prevent degrading treatment.
  • Human rights and the need to safeguard them is at the core of the professional duty of psychiatrists as frontline professionals and medical experts. This extends to training, professional guidelines and standards of practice.
  • We would assert that the human rights of other groups, such as carers/supporters or victims of offences committed by individuals with mental health conditions, be recognised as part of the Review’s conclusions. A whole population approach would be worthwhile and ensure the legislation truly provides equal protection and balance in considering people’s rights.
  • The current legislative framework works well in covering those groups it was specifically designed for. In practice, however, there are those whose needs span the different acts or do not fit clearly into any of the existing legislation, such as people with delirium. They can end up in a ‘no man’s land’ without adequate support, oversight, or representation and where clinicians are forced to piece together different strands of each act in order to attempt to deliver care which best meets their needs.
  • Developing cohesive legislation which provides maximum coverage could be delivered as part of fusion legislation. We believe that the best approach would be to consider how to take the UNCRPD, ECHR and other relevant human rights conventions (including the ICESCR) and apply them through fusion legislation. Such an amalgamation could: establish clarity on what legislation applies in each situation; provide full coverage for all; provide equal protections across mental health conditions and incapacity, and; set common principles, tests and tribunal procedures.
  • Our members have highlighted there are situations patients face where limiting liberty ensures the right to life, particularly among those with suicidal thoughts or those in an acute confusional state. The process for managing this can best be achieved through legislation alongside built-in safeguards and scrutiny methods.
  • We also felt it worth stating from the outset that the pandemic we are currently living through is likely to change our society and our mental health services, and wider health and care support beyond recognition. Amidst the trauma and loss of life, health services have made sweeping adaptations, almost overnight, and many of these will have benefits for patients long after the pandemic ends. The ability for mental health services to adapt and change quickly for the better should be retained and built on where possible and appropriate.

Chaired by John Scott QC, the principal aim of the review is to improve the rights and protections of persons with a mental disorder and remove barriers to those caring for their health and welfare. It seeks to do so through:

  • Review - Reviewing the developments in mental health law and practice on compulsory detention and care and treatment since the Mental Health (Care and Treatment) (Scotland) Act 2003 came into force.
  • Recommend - Making recommendations that gives effect to the rights, will and preferences of the individual by ensuring that mental health, incapacity and adult support and protection legislation reflects people’s social, economic and cultural rights including United Nations Convention on the Rights of Persons with Disabilities and European Convention on Human Rights requirements.
  • Consider - Considering the need for the convergence of incapacity, mental health and adult support and protection legislation.

Our engagement

The RCPsych in Scotland established an initial focus group to discuss its implications. This included the prospects of a potential fusion legislation. From these discussions, an initial draft response was produced by the College. This was then put to the wider Legislative Oversight Group, who proposed amendments and further issues to consider.

The proposed changes were implemented, and the response has been submitted. Much of the content from this submission subsequently featured in the Review's interim report.

The RCPsych in Scotland followed up its response to the Scott Review with extensive engagement between the Executive Team and our Legislative Oversight Forum. This saw us boost the number of psychiatrists on the Review’s expert reference groups to 4 out of the 5.

Following several meetings with the Review’s executive team on how best to input into its work, we made a breakthrough with initial draft ‘Clinical Scenarios’ we developed to highlight the complexity of cases psychiatrists and other mental health professionals face.

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