- 9 Feb 2021
Date received: 17 Dec 2020
Date responded: 22 Dec 2020
1. The direct definition of how and where autism is covered in the Act under the definition of learning disability; and
2. The specific part of the Mental Health Act/Codes/Guidance that states autism is covered within the act, and where it states that autism is a mental disorder/mental illness.
Whilst the Scottish Government does not provide legal advice to third parties, the answer to your question is as follows:
s.328(1) of the 2003 Act defines mental disorder as mental illness, personality disorder or learning disability, however caused or manifested whereas s.328(2) specifies exclusions. Only those in s328(2) are excluded from the definition of mental disorder.
In our opinion, autism is indeed included under s.328(1). We have considered whether the absence of a definition of the term “learning disability” which expressly includes autism necessarily leads to the interpretation that autism is not covered - we do not think this is the case. There is no statutory definition of “learning disability” for the purposes of the Act, nor is there a statutory definition of either “mental illness” or “personality disorder”. Our understanding from the report of the Millan Committee is that this was because it was considered that these terms should be capable of being understood flexibly, in light of pertaining clinical norms and understanding rather than being unduly constrained by a statutory definition.
The Millan report recommended that learning disabilities should include autism spectrum disorder.
Also from a clinical perspective, autism is a neurodevelopmental mental disorder. It is included in the International classification of diseases 10 edition (ICD 10) chapter on the classification of mental and behavioural disorders under F84 pervasive developmental disorders. Therefore using this classification, autism is a mental disorder and given that every mental disorder type and diagnosis is not explicitly, individually contained in the definition of mental disorder does not mean they are excluded from the 2003 Act.
The contents of ICD 10 contain the mental disorders which will all be subject to the Act (with the exclusion of those listed in s328(2)). It follows that since autism is not excluded by s328(2) it should be included under s328(1) - definition of mental disorder.
Mental disorder under s328(1) does not automatically mean that a person with it can be made subject to compulsion under the Act. There is other criteria which must be met following the principles of the Act.
The definitions of mental disorder are widely drawn in the 2003 Act , so as to ensure services are available for as wide a group as possible.
The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at http://www.gov.scot/foi-responses.
Please quote the FOI reference
Central Enquiry Unit
Phone: 0300 244 4000
The Scottish Government
St Andrews House