Legislation and guidance
1 October 2022: Named Person - witnessing of signatures by prescribed persons. We have published guidance to take account of the fact that the temporary provision contained within the Coronavirus (Scotland) (No.2) Act was made permanent through the COVID (Recovery & Reform)(Scotland) Act 2022. This includes a form (updated in December 2022) for the nominee to complete.
Mental health legislation
The main mental health legislation in Scotland is the Mental Health (Care and Treatment) (Scotland) Act 2003, as amended by the Mental Health (Scotland) Act 2015.
Mental health legislation reviews
The Mental Health strategy 2017-2027 recognises the importance of human rights and as part of this we are currently reviewing various aspects of mental health and incapacity legislation use in Scotland.
We are considering whether new legislative measures are necessary to meet the distinct needs of people with learning disabilities or autism. We produced a report of our scoping exercise findings on learning disability and autism provision in the Mental Health (Scotland) Act 2003. An independent review of learning disability and autism in the Mental Health Act in Scotland reported to Ministers on 18 December 2019. Read the final report and recommendations.
The Scottish Mental Health Law Review was an independent review of mental health and incapacity law, chaired by Lord Scott KC. The main aim of the Review was to improve the rights and protections of persons subject to mental health, incapacity or adult support and protection legislation, in line with developments in international human rights standards.
The Review’s final report was published on 30 September 2022. It set out 227 proposals for changes to the mental health system as well as broader areas including health and social care, justice and public sector scrutiny.
We published a response to the Scottish Mental Health Law Review on 28 June 2023. This is a high level response to the main conclusions of the Review and sets out the intention to establish a new Mental Health and Capacity Reform programme to deliver on the ambitions of the Review. See an easy read version of our response to the Scottish Mental Health Law Review (July 2023).
As part of the Mental Health (Scotland) Act 2015, we carried out a review of the arrangements for investigating the deaths of patients being treated for mental disorder. We published the final review report in December 2018.
We published an update on the mental health law review in December 2019.
Mental health guidance
Mental Health Act Forms
The Mental Welfare Commission for Scotland have produced mental health forms which are recommended for use under the Mental Health (Care and Treatment) (Scotland) Act 2003.
Mental health code of practice
Scottish Ministers have a duty to prepare, publish and revise a Code of Practice under the Mental Health (Care and Treatment) (Scotland) Act 2003.
The Code of Practice provides statutory guidance to professionals on their duties under the 2003 Act. Doctors, mental health officers and others exercising statutory functions under the Act, are under a duty to have regard to the Code.
The Code of Practice is published in 3 volumes:
- Mental Health (care and treatment)(Scotland) Act 2003: Code of Practice Volume 1
- Mental Health (care and treatment)(Scotland) Act 2003: Code of Practice Volume 2
- Mental Health (care and treatment)(Scotland) Act 2003: Code of Practice Volume 3
Mental health guidance for patients and others
We have produced separate guidance and information for service users (patients), their carers, families, advocates and others. Some of this guidance is still to be updated following changes made to the legislation by the Mental Health (Scotland) Act 2015.
Mental Health (Scotland) Act 2015 guidance
We have produced a summary of key provisions contained in the Mental Health (Scotland) Act 2015 as well as information on the 2015 Act for practitioner groups.
We have also produced the following interim guidance pending the statutory Code of Practice being updated:
- mental health law: guide to named persons
- mental health law: patient representation (named persons, advance statements and advocacy)
- mental health law: nurse's holding power
- mental health law: removal orders
- mental health law: suspension of detention
- mental health law: cross-border transfers
- mental health law: appeals against conditions of excessive security