Scottish Mental Health Law Review Final Report

Over the last two and a half years the Scottish Mental Health Law Review (SMHLR), under the chairmanship of John Scott QC, has undertaken a wide-ranging review of mental health, incapacity, and safeguarding law in Scotland.

At the end of September 2022, the Review produced its final report. This report is now with Scottish Ministers, and we await their response as to how Scott’s recommendations will be taken forward.

The College in Scotland worked closely with the SMHLR via our representation across the working groups, via our development of a portfolio of clinical scenarios to test the proposals, and most significantly via our detailed response to their final consultation in Spring 2022. We will continue to engage with the Government regarding the SMHLR recommendations

It is possible that there will be a complete overhaul of the relevant laws, such as occurred in the early 2000s following the Millan review. It is perhaps more likely that the Scottish Government will aim to realise Scott’s recommendations via amendments to the main acts and via changes to the codes of practice, and the functioning of statutory and other bodies.

Request for comments from the membership

The Final Report runs to 955 pages, with the Executive and Recommendations document running to 117 pages. The Report makes 202 specific recommendations for change to the law and the functioning of mental health services.

Notable recommendations are:

• There is no proposal for a ‘fusion act’, combining mental health and incapacity law but there is a proposal for gradual alignment of the two main acts.
• Children and Young People and those with Intellectual Disability and Autism will remain within the purview of mental health law.
• The main purpose of mental health and incapacity law will be to ensure that ‘the human rights of people with a mental or intellectual disability are respected, protected and fulfilled’. The Report endorses the ‘Human Rights Enablement’ (HRE) approach to decision-making in mental healthcare.
• The replacement of the current capacity and SIDMA tests with a test of Autonomous Decision Making (ADM).
• Amendments to the 2000 Act to allow for Decision Making Representatives, Deprivation of Liberty Orders, Advance Choices, and central monitoring of s.47 certificates.
• A single judicial forum for mental health and capacity legislation based on an extended version of the current Mental Health Tribunal for Scotland.
• An enhanced role for the Mental Welfare Commission for Scotland in multiple areas.

The Legislative Oversight Forum is currently reviewing and discussing the Final Report and considering the College response. We would be very grateful if colleagues across the sub-specialities could review the recommendations, and in particular those recommendations that apply to your field of practice, and to give us your views. In particular, which of the recommendations are the most important or should be a priority for the Scottish government, and any recommendations which have aroused particular concerns.

Dr Roger Smyth, Chair of the RCPsych in Scotland Legislative Oversight Forum

The legislative forum will next meet on 10 November and the RCPsych in Scotland would welcome any views ahead of this and extend an open invitation for members to join this discussion. Please contact a member of the Scotland team for more information.