Equality Impact Assessment - Results

Title of Policy

Mental Health (Scotland) Bill

Summary of aims and desired outcomes of Policy

To amend the Mental Health (Scotland) Act 2003 to make the system work more effectively in a way that benefits service users and to make minor amendments to the Criminal Justice (Scotland) Act 1995. To introduce a victim notification scheme for victims of mentally-disordered offenders.

Directorate: Division: team

Population Health Improvement: Mental Health and Protection of Rights Division: Mental Health Law Team

Executive summary

The public sector equality duty requires the Scottish Government to assess the impact of applying a proposed new or revised policy or practice. It is a legislative requirement. Equality legislation covers the protected characteristics of: age, disability, gender reassignment, sex, pregnancy and maternity, gender including pregnancy and maternity, race, religion and belief, and sexual orientation.

This Equality Impact Assessment (EQIA) has considered the potential impacts of the Bill on each of the protected characteristics. The Bill is intended to make the mental health system work more effectively in a way that benefits services users. This means that the foremost impact will be on those covered under the protected characteristic of disability - particularly those subject to compulsory mental health treatment and mentally disordered offenders.

Given the particular impact on those covered by the protected characteristic of disability, the Key Findings section is set out in two parts:

  • one which assesses the impact of the Bill's provisions on such service users; and
  • a second which contains analysis of where specific provisions are likely to impact particularly on other protected characteristics.

The analysis contained in the Key Impacts sections sets out how evidence, including in the consultation on the Bill and to the Committee (orally and in writing), has influenced decisions taken by the Government both before introduction and up to stage 2.


The Bill is part of the Scottish Government's programme to streamline, simplify and clarify the system for efficient and effective treatment for people with a mental disorder. It also extends the Victim Notification Scheme of the 2003 Criminal Justice Act ("the Criminal Justice Act") to some victims of Mentally Disordered Offenders. It does not seek to overhaul mental health law, simply to make those changes that need to be made to further improve the operation of the 2003 Act.

For equalities purposes, the main people that will be affected by the provisions of this bill are mental health service users, particularly those subject to compulsory treatment measures and mentally disordered offenders. Part 3 of the Bill will impact those who have been the victim of a serious crime committed by a mental disordered offender.

Part 1 of the Bill is designed to make minor technical amendments to the Mental Health (Care & Treatment) (Scotland) Act 2003 ("the 2003 Act") as the legislation is considered to be working well in practise. Provisions within part 1, on the Bill's introduction to Parliament, include:

  • The option to extend a Short Term Detention Certificate (STDC) by 10 days rather than the current 5 before a tribunal hearing when an application for a Compulsory Treatment Order (CTO) has been made.
  • Requirement in certain circumstances for a Mental Health Officer (MHO) to provide a report to the tribunal when it reviews a CTO.
  • Provides discretion to hospital managers about sharing information on emergency detention certificates with next of kin etc.
  • Requires hospital managers to notify and send a copy of an STDC to certain recipients.
  • Removes the requirement for Scottish Ministers to approve suspension of detention under certain orders for attendance at criminal hearings or medical appointments.
  • Amends the maximum limits for suspension of detention under a CTO and how periods will be calculated.
  • Provisions around appeals against conditions of excessive security.
  • Introducing a requirement for MHOs to inform the Mental Welfare Commission when a removal order is granted.
  • Amends time limit of nurses' holding power to up to three hours from up to two hours with a one hour extension in certain circumstances.
  • Reduces the time for lodging appeals on transfer to the state hospital
  • Amends timescales around periodic referral of cases to the Mental Health Tribunal for Scotland.
  • Requires the Tribunal to record when it fails to meet any prescribed timescales.
  • Allows service users to opt out of having a named person, in line with the Government's policy that a service user should only have a named person if they want one. It also allows for the named person to opt out of the role, removes the power of the Tribunal to appoint a named person and allows the Tribunal to remove a named person if it considers them inappropriate.
  • Requires advance statements to be included in medical records and introduces a register for advance statements at the Commission.
  • Places duties to make arrangements for supporting communication at medical examinations.
  • Extends duty to provide accommodation for mothers to care for their child in hospital to all mental disorders.
  • Extends provisions relating to cross-border transfers and absconding prisoners from the UK to all EU citizens.
  • Requires the agreement of an MHO to a Transfer for Treatment Direction (TTD) which transfers a prisoner for treatment.
  • Makes minor amendments around compulsory treatment of prisoners.

Part 2 of the bill is concerned with Criminal Cases through amendments to the Criminal Procedure (Scotland) Act 1995, including how timescales are calculated, improves the process for transferring offenders to a different hospital, and requires an MHO report on extension of compulsion orders (CO).

Part 3 of the bill amends the Criminal Justice Act to bring in a Victim Notification Scheme for victims of Mentally Disordered Offenders (MDO), including rights to information including if the offender is imprisoned or subject to a compulsion order with restriction order (CORO) and rights to the victim to make representations in certain cases.

This amending Bill will contribute directly to National Outcome 6 - "We live longer, healthier lives."

The Scope of the EQIA

Service users with a longer term mental disorder are included within the protected characteristic of disability under the 2010 Equality Act. It is therefore likely that any effects that the Bill provisions have on service users will particularly impact the protected characteristic of disability. As there were very few other provisions that had any specific reference to a protected characteristic, the EQIA also attempted to assess whether other protected characteristics were disproportionately represented within the groups most likely to be affected by the provisions of this Bill (service users, particularly those subject to compulsory treatment for a mental disorder; mentally disordered offenders; and victims of crimes by mentally disordered offenders). If any protected characteristic is disproportionately represented, it is considered that any positive or negative impact of this Bill will impact either positively or negatively on people with that characteristic.

To assess the likely impact on service users and mentally disordered offenders, the main source of evidence was the responses to the consultation on the draft bill and written submissions and oral evidence given to the Health and Sport committee during Stage 1 of parliamentary scrutiny. These contained detail of possible impacts, positive or negative, that the respondent considered the provisions of the bill may have on service users and were a strong source of evidence. They also provided some evidence on how the provisions may affect people with other protected characteristics, albeit not comprehensively and also on the impact of the provisions on victims of crimes by mentally disordered offenders. The consultation on the draft Bill also asked a specific question about equalities information although not all respondents provided an answer and many of those given were quite general or related to provisions that have since been removed from the Bill.

Various reports, including the Commission's most recent Equality Monitoring Report, were used to assess whether other protected characteristics were particularly represented within the most affected groups described above. This is detailed in the key findings section. There were however some limitations to this information and it was not identified or available for all protected characteristics or all affected groups. There were minimal statistics on protected characteristics of mentally disordered offenders. Specific statistics on victims of crimes by mentally disordered offenders were not identified but statistics, such as the Scottish Crime and Justice Survey 2012/3 gave information on victims of crimes more generally.

Key Findings

As noted in the Executive Summary, the foremost impact of the Bill will be on those subject to compulsory mental health treatment and mentally disordered offenders - who are covered by protected characteristic of disability. The Key Findings section is set out in two parts:

  • Part A which assesses the impact of the Bill's provisions on such service users; and
  • Part B which contains analysis of where specific provisions are likely to impact particularly on other protected characteristics.


Views during the Bill process have been mixed as to whether section 1 would have a positive impact on service users. The intention behind the provision is to benefit service users by ensuring that they and their representatives have enough to prepare for Tribunal hearings, in particular to benefit those who, because they have not had enough time to prepare, then become subject to an interim Compulsory Treatment Order (CTO).

Allowing service users more time to prepare could bring several potential benefits. It will give service users more scope to participate effectively in the process. There was potential that it could reduce the number of interim CTOs and some of the evidence saw this as benefitting service users as it would reduce people being detained for longer without a full hearing. Multiple hearings can be a source of distress for service users.

There was, however, not universal agreement that this would be a benefit and strong concerns were expressed about potentially increasing restrictions on service users' liberty before a first automatic hearing by a Tribunal. Many disagreed there was sufficient benefit to justify this change, particularly when the Tribunal had already improved the situation in relation to multiple hearings.

As there was not a way to mitigate these concerns (for example by finding a way so that it would not apply automatically) the Government supported amendments proposed at Stage 2 which removed the provision.

The additional provision of section 1 of removing the additional 5 days from the CTO was in principle seen by some as a reasonable way of balancing the liberty of patients and ensuring an effective tribunal services, though others expressed concern that it made the CTO seem like a sentence rather than a clinically needed timespan. The aim behind this was the principle of least restriction and the Government expressed its support for amendments which further clarified these and made them more equitable at Stage 2.

Evidence suggests that section 2 will have a positive impact on service users, strengthening and safeguarding their individual rights by involving Mental Health Officers (MHOs) more in CTO reviews. It will extend what is currently seen as best practice for service users.

Most of the evidence reviewed suggests that section 3 will benefit service users by helping protect their confidentiality and right to privacy. As an example, it was noted that this discretion will better protect patients from harm, for example if family members learn of the reasons for the service user's detention when they would not want them to, it is likely to cause deterioration of the patient's mental health. The provision should therefore have significant benefit. Potential negative impacts suggested in the evidence were ones that could arise from how discretion is applied by hospital managers. Those undertaking duties under the Act must have regard to the statutory Code of Practice and in developing this guidance we will reflect on the best way to exercise this discretion and mitigate the possible negative impacts suggested.

Similar considerations are raised for section 4. Although it was felt beneficial to the service user for them to receive a copy of their Short Term Detention Certificate (STDC), for example as it can help deciding whether to appeal, there were concerns about the STDC being sent automatically to the patient's named person and any guardian and whether this could have a negative impact on the service user, as the STDC could contain sensitive information. These concerns seem to particularly apply where the named person holds that role by default rather than being chosen by a service user with the knowledge that they will receive this information. If this is the first time that the service user has been subject to compulsory treatment, then they are less likely to have nominated a named person. The Committee accepted Government amendments at Stage 2 which removed the default named person provisions of the 2003 Act which should mitigate these concerns.

Sections 6-7 will have a positive effect on service users as these provisions remove some unequal treatment for people subject to certain measures. The evidence suggested these changes are more supportive of continuity in the care and support offered to patients. Section 8 will also have a positive effect on service users, including removing any worry or concern about needing permission for the appointment and should help service users get appointments more quickly. In the evidence, it was seen as a more flexible and responsive approach to meeting patients' needs.

The benefits to service users from Section 9 noted in the evidence considered include that it should reduce unnecessary recall from rehabilitation in the community by providing more flexibility and should help suspension of detention be calculated more clearly and with a greater reflection of how it operates in practice. The proposals are in line with the Millan principle of the least restrictive alternative for service users.

Some of the evidence suggested the ability to apply for an additional 100 days of suspension of detention as after 200 days of suspension, the patient would normally be expected to be on a community based order, and concerns were expressed that the extension could be used to retain the detention element. There were particular concerns expressed in the evidence in relation to people with learning disabilities, as they can spend long periods of time in hospital and therefore this patient group could be disadvantaged. The intention is that this provides flexibility for the small number of cases where it might be beneficial for the service user and our policy is that the Tribunal should only approve extension if revoking or varying the order to a community CTO is not appropriate.

Sections 10, 11 and 12 relate to appeals against conditions of excessive security for hospitals other than the State Hospital, a right which already exists in the 2003 Act. The Bill makes changes that are necessary to enable an effective right of appeal to be implemented. This includes, allowing patients to be moved within a hospital, which should benefit service users by ensuring if they successfully appeal against conditions of excessive security, that they will not necessarily have to move to another hospital. An amendment at Stage 2 introduced a new requirement for a supportive medical report to accompany an application to the Mental Health Tribunal - patient without a supportive report provided by a medical practitioner will not be able to make an application. This change will not prevent any appeals which could have succeeded without the new requirement for a supportive report by a medical practitioner.

Section 13 should have a beneficial impact on service users as it provides an additional safeguard for the individual when their rights to autonomy and liberty are likely to be restricted by fulfilling the policy intention to all the Commission to apply for an order recalling a removal order.

The intention behind Section 14 is make the use of the nurse's holding power clearer to both service users and practitioners. It seeks to balance the flexibility need to arrange a medical exam of benefit to the patient while maintaining the need for minimum restriction on the liberty of a patient.

The provision increases the initial maximum duration of the holding power by an hour to allow detention of up to three hours (it is currently two hours with the option to extend for a further hour) but the overall maximum is not increased and the provision does not automatically deprive the service user of liberty for three hours. Concerns were raised in the evidence that this was an increase in the detention period and could impact on service users' autonomy but as noted above, there is no increase in the overall maximum permitted period and the period is a maximum period of three hours, not a standard period of three hours.

Statutory guidance will make clear that the power should still be used in line with the principle of least restriction, using similar timescales as at present, but with the additional benefit that the provision can clearly be used for the medical examination to take place and that it will be three hours from the outset. It is hoped this will mitigate concerns.

Section 15 is intended to ensure patients who need treatment at the State Hospital can access it promptly and allow needed treatment to begin without disruption. However much of the evidence expressed concern that this was a restriction of right of appeal without enough justification. A four week time scale for appeal against transfer was felt to be too short a time for those patients who were very ill and potentially lacking in capacity at the time of transfer. This was of particular concern because transfer to the State Hospital has a significant impact on a patients' autonomy and can impact on their family life because of the nature of the security of the State Hospital. The Government reflected on this evidence that the possible detriment to patients' rights might not be outweighed by any possible benefit and indicated in its Stage 1 response that we would propose an amendment to remove this provision. This amendment was accepted by the Committee at Stage 2.

Section 16 will have a positive impact on service users as it will remove certain situations where the two year review is delayed by an appeal by the service user under the Act which has been initiated but not yet determined by the Tribunal. There was not much comment on Section 17 which appeared to have a limited impact but some evidence considered suggested it could have a positive impact on service users if it ensured that Tribunal hearings were held promptly.

The right to have a named person was one of the key protections for the individual introduced by the 2003 Act. Sections 18-20 were designed to benefit service users further by allowing them to opt out of having a named person where they do not want one and the policy intention is that a service user should only have a named person if they want one. Having this right was recognised in the evidence as giving the service user more control, expanding the principle of patient choice and representing a patient-centred approach. It should make for more proactive engagement of the service user in choosing the named person. The named person is a key role and therefore it is important for the treatment of the service user that the right person with the right relationship with the service user is in the role, and the provisions should help with this.

Concerns were expressed that an opt-out system as opposed to an opt-in system, which could lead to default named persons being appointed could restrict right to autonomy. This could particularly affect people without capacity or with learning difficulties or cognitive impairment who may not have the same understanding that they need to formally opt out of the system.

At the Stage 1 debate, the Minister indicated that he was minded to remove the default named person provisions and we also noted in our Stage 1 report response that we were conscious of ensuring that vulnerable service users were not disadvantaged. The Government considered what provisions should be proposed to provide protections, such as rights of appeal for the most vulnerable service users if the default role is removed. Changes to mitigate the concerns described above were proposed at Stage 2, along with the removal of the default named person provisions, and were accepted by the Committee.

The provision in section 20 also retains and gives greater powers to the Tribunal to remove unsuitable named persons to those under 16. This will address concerns that under the current provisions of the Act, the default named person is usually in the first instance is the person with parental rights. It was noted in the evidence that if this person is abusive or otherwise unsuitable, this could have a negative effect on the service user. These enhanced powers will therefore improve the situation for young people and have a positive impact in relation to the protected characteristic of age.

Overall, greater information about the existence of advance statements and the requirement to include them in medical records, as per section 21, will benefit service users. The evidence noted that advance statements help ensure a patient centred approach and empower service users to be more involved in their care. The policy aim is that these provisions will ensure that advance statements are used appropriately supporting the principle of maximum involvement by service users and to strengthen their position in order to increase uptake.

The provisions will promote knowledge of the existence of a service user's advance statement. This should help promote supported decision making. The evidence noted that the specific provisions will benefit service users who are unsure if they made a statement and will reassure service users that advance statements will be located if they have been created. The State Hospital welcomed the changes as it will help medical staff be aware of their patients' wishes, particularly when they are transferring from another health board. Adding them to medical records should make them more likely to be consulted and benefit service users who then see their wishes taken into account.

The evidence noted that there could be some concerns for service users depending on how the provisions are implemented. These include concerns over privacy, particularly with a central register, and who will have access to the statement which might contain very private information, with concern that a relatively wide group of people could have access to potentially very sensitive medical information leading to a reduction in service user control. In the response to the Stage 1 report, the Government undertook to consider stakeholder comments about the impact of introducing a full register. The Government proposed amendments at Stage 2 to this effect, removing the requrement to send a copy to the Commission, and these were accepted by the Committee.

Section 22 will be very beneficial to relevant service users by providing for communication assistance in a wider range of scenarios and not just for those subject to compulsory measures. It was noted in evidence that it gives greater equality to all service users subject to a medical examination and reduces discrimination. This section should provide particular benefits for those with specific communication difficulties by widening the circumstances when assistance with communication is to be provided, beyond when the person is subject to compulsory measures. One of the main groups to benefit from these provisions are those who do not speak English as a first language and this could have a positive impact in relation to the protected characteristic of race.

Section 23 will benefit service users who are mothers of babies by increasing the number who are entitled to accommodation that allows them to care for their child. According to the evidence examined, this could particularly support rights for women with a disability because of a mental illness and their rights to family life. One concern before introduction had been about possible longer term impact and stigma of including post-natal depression within the wider term of mental disorder and the Bill was amended before introduction to reflect this. The provision will allow more young children to stay with their mothers while they are being treated for a mental disorder. Evidence noted that this will help towards positive outcomes for the child later in life by aiding bonding between mothers and children. Fathers who are the primary carer for their child will not be included within this provision, although there was a handful of suggestions in the evidence that this should be considered. However, this provision is aimed to promote the well-being of the child who would particularly benefit from bonding with their mother, and other benefits such as breastfeeding, in their first few months. As this is strongly linked to childbirth and maternity, we do not judge this to be an equalities issue.

Section 24 aims to improve parity of treatment and will improve the right to treatment for non-UK residents and evidence suggested that it could help Scottish residents subject to detention in other countries particularly those where the human rights framework is not as robust as in Scotland. Section 25 should also help with treatment for those who need it by allowing the provision of routine and urgent treatment to absconding patients, although concerns have been raised that by extending powers beyond emergency treatment could mean a patient from outside Scotland could be given treatment, including invasive, non-consensual treatments. The Government noted in its Stage 1 report response that it was not our policy for the more invasive treatments to be given to patients who have absconded to Scotland and the provision allows regulations for treatment to be made subject to appropriate controls.

Section 26 will give extra protection to those offenders made subject to a Transfer for Treatment Direction (TTD) by ensuring there is an independent view and additional level of scrutiny of hospitalisation and the welfare of the patient is fully taken into account. It replicates the important contribution of MHOs in other aspects of mental health law such as the making of a CTO. Concerns were expressed that if an MHO is not available, appropriate or necessary treatment could be delayed, disadvantaging those requiring treatment for mental illness in comparison to those needing treatment for physical illness. The Government considered if a better balance between urgent treatment and the safeguard of MHO involvement can be struck so that this provision benefits service users as much as possible and proposed amendments at Stage 2, which were accepted by the Committee.

Part 2 will provide for greater clarity of meaning and operational efficiency by removing confusion over timescales by making them consistent with others used in criminal proceedings - this has resulted in errors in the past which impacted on the rights of prisoners and patients - clarifying these will be of benefit. The ability to transfer mentally disordered offenders to more appropriate hospital more easily will benefit the patient by meeting their treatment needs as soon as possible. The change to allow an assessment order to be extended by an additional 14 days will benefit service users if it can help facilitate more complete and accurate assessment and is for circumstances where the court considers that further time is required to complete the assessment. It was felt in evidence to be more reasonable than the 21 day extension proposed in the draft consultation bill. However there was some concerns that this longer extension could result in delays to hearings. The Royal College of Psychiatrists gave strong evidence to the Committee about how this additional time would be of benefit in ensuring the right course of action for the service user in the most complex cases and this benefit should outweigh any potential negative impacts.

Part 3 of the Bill is concerned with bringing in a Victim Notification Scheme (VNS) for victims of mentally disordered offenders (MDOs) in a way that both recognises the right of victims to information about offenders being released or having their detention suspended and the need to protect the rights of MDOs, many of whom are vulnerable individuals. The aim is to not disadvantage MDOs or put them in the a worse position that offenders who do not have a mental disorder particularly as for many, their offending is directly related to presence of metal disorder. For a scheme to not have a particular negative impact on people with a disability, it must balance the rights of victims and vulnerable MDOs.

It was generally recognised in consultation submissions and committee evidence that a scheme was needed, and that victims had rights regardless of the status of the offender. Having a separate scheme with discretion to not release information was seen in evidence as benefitting offenders by giving some protection to rights to privacy. The length of a Compulsion Order (CO) cannot be used in the same way as a sentence for determining the severity of the offence. It was therefore largely welcomed that the system initially will only apply to those subject to a CORO - the most serious offenders and this represented a change between consultation and the introduction of the Bill to Parliament. This makes it unlikely that an MDO will see their information released under the scheme when an offender committing the same offence would not be subject to the criminal justice VNS.

There were some concerns in the evidence about discrimination related to information about the scheme affecting the MDOs right to privacy or affecting their treatment, for example if information about the MDOs medical condition was given as part of information about their release or suspension of detention or if the information's release could affect on-going treatment. There were also concerns about how victims may use or disseminate any information they are given if not properly bound by confidentiality. There were concerns that treatment could also be affected if Tribunals were duty bound to take into account victims' testimony. This could be emotive and take focus away from recovery, impacting on rehabilitation and the idea that positive change is possible. Scottish Ministers do have discretion about releasing information which should mitigate these concerns, although some felt that exceptional circumstances was not wide enough and discretion should be able to be exercised where there was a significant risk of harm to mental and physical health of person subject to mental health disposal. These provisions do however give a higher level of protection to vulnerable MDOs than offenders subject to the criminal justice VNS.

Other concerns in the evidence about discriminatory treatment of MDOs lay with the powers reserved within the Bill to extend the scheme to those on a CO only through secondary legislation. There were concerns that if such a scheme were extended so that it included MDOs subject to a CO who had committed relatively minor offenders, this would discriminate against MDOs and could be an unnecessary and disproportionate limitation to their right to family life.

There were also concerns that the proposal may result in those with a learning disability or lacking in capacity being treated less favourably. This may be linked to concerns about stigma for MDOs relating to the scheme.

In the response to the Stage 1 report, the Government made clear that if the scheme is extended beyond those subject to a CORO, it would be done so in a way that does not put mentally disordered offenders in a disadvantaged position in relation to other offenders and it is hoped this will mitigate some of the conerns suggested about possible negative impacts.

A working group with a wide range of relevant stakeholders is taking forward the best way to implement the scheme, including considerations as to how the scheme should work so as not to disadvantage mentally disordered offenders in relation to other offenders.


This section looks at some particular impacts of the overall Bill, including how certain protected characteristics may be particularly represented in relation to certain parts of the legislation. It also considers impact on victims of crime in relation to equalities, where no impact has been found in relation to inequalities and changes to the Bill as a result of our consideration as to how the Bill has impacted on service users.

Some stakeholders expressed ongoing concerns related to the continued inclusion of persons with learning disabilities and autism spectrum disorders within the definition of mental disorder under the 2003 Act. This is outwith the intended range of policy issues addressed by this Bill but in the response to the Stage 1 report, the Scottish Government committed to review their inclusion within the Act, after passage of the Act. Many of the provisions of the Bill should positively impact people with learning disabilities and ASD by improving the overall system.

Certain protected characteristics are represented disproprotionately to the population as a whole in certain circumstances under mental health legislation. Where an individual section amends a certain aspect of mental health law, it could therefore particularly benefit this group.

Men are more likely to be recorded as a formal admission (e.g. detained under mental health legislation) than women, and women are more likely to recorded as an informal patient. Women are more likely to be subject to brief orders (including the nurse's power to detain and emergency detention certificates), whilst men are more likely to be subject to longer term civil orders and criminal procedure orders.

Statistics indicate that men comprise 80% of those subject to a TTD, but someone who is in prison who is female is more likely to then be subject to a TTD than their male equivalent (as women only account for 5% of the prison population). This means, for example, changes to increase involvement of MHOs in the making of TTDs should particularly benefit women.

The Mental Welfare Commission's Equality Report for 2012-13 notes a substantially greater use of compulsory powers under mental health legislation for those who describe their ethnicity as Black African than for other groups, although this data is not uniformly gathered. In relation to compulsory treatment, although the data has some gaps, a significantly higher proportion of individuals from some other ethnic groups (including those whose ethnic identity was recorded as Asian (other) and Pakistan) than from the population as a whole, based on the figures in the Equality Report and the 2011 Census.

Part A of the Key Findings section above highlights the benefits for the protected characteristic of race in relation to section 22, and the benefits to mothers of babies in relation to section 23.

Impact on victims of crimes by mentally disordered offenders:

Victims of crimes by mentally disordered offenders will benefit from Part 3 of the Bill by giving similar rights to those who were victims of other offenders and those where the offender subsequently needed treatment for a mental disorder (and would currently no longer come within the provisions of the criminal justice scheme). Although victims currently have some ability to make representations to the Tribunal, the new scheme should be clearer and more straightforward for victims rather than seeing two different approaches as currently.

Some protected characteristics are disproportionately represented as victims of crimes, according to the Scottish Crime and Justice Survey, so these groups may particularly benefit from these measures. These include young people, men, and people who identify as gay, lesbian or bisexual.

No impact found

With certain exceptions described above, none of the provisions in the Bill specifically relate to the protected characteristics, with the notable major exception of where service users and mentally-disordered offenders are included within the disability protected characteristic. For characteristics relating to gender, age and race, there is some evidence that certain groups are represented in relation to certain aspect of mental health legislation disproportionately to their representation in the population as a whole. No statistics were found on this in relation to religion or belief, sexual orientation or gender identity. The Mental Welfare Commission monitors impacts on religion and belief as part of its monitoring of the 2003 Act and is satisfied that services pay attention to specific requirements; none of the provisions of the Bill specifically refer or impact on religion and belief.

Changes made because of possible negative impact:

The potential impact on service users and the protection of their rights and interests led to changes between consultation and introduction of the Bill into Parliament. This included removing provisions related to medical reports for a CTO and related to removing the limit for cumulative suspension of detention. There were also changes to the proposed VNS.

Since introduction, the Government has reflected on the potential impact of the provisions of the Bill on service users to ensure that they will benefit from these changes. We recognise that service users subject to compulsory treatment must have their rights protected and interests safeguarded and we have looked to build on the 2003 Act in doing so. The Government indicated in both its response to the Stage 1 Report and at the Stage 1 debate that it intends to propose some amendments to the Bill where we are not sure if the possible negative impacts on service users are outweighed by any positive benefits. This includes the changes at section 15 which would have reduced the timescales for appeal on transfer to the State Hospital and the default named persons provisions.

Recommendations and Conclusion

Changes have been made to the Bill as appropriate where a potential negative impact on service users has been found and these have been described in the section above. These considerations remain at the forefront of our views and were reflected in the amendments to the Bill that the Government proposed at Stage 2.

Overall, the aim of the Bill is to improve the mental health system for people with a mental disorder, many of whom will come under the protected characteristic of disability, and bring in a Victim Notification Scheme for mentally disordered offenders, with the aim that the scheme will be fair and equitable in relation to that for other offenders.

The Mental Welfare Commission produces regular equality monitoring reports of the 2003 Act and changes brought in to the Act by this Bill will be monitored as part of that work.

Anyone with a duty under the 2003 Act must have regard to the statutory Code of Practice that will be revised as part of the implementation of the Bill which sets out best practice in relation to carrying out functions under the Act. The Code should therefore promote the protection of rights and interests of service users under the Act. The same principle should apply to any other associated guidance which derives from the 2003 Act, this Bill or related secondary legislation.


Email: Caroline Martin

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