Scottish mental health law review: our response

A response to the independent review of mental health, capacity and adult support and protection legislation, chaired by Lord John Scott KC.

Our high-level priorities for inclusion in a Reform Programme are as follows:

1. Adults with Incapacity Law Reform

We will work towards addressing long-standing gaps in the law to ensure stronger rights protections and safeguards. We will look at updating powers of attorney and the section 47 Certificate for medical treatment scheme. We will also aim to introduce wider technical changes to the legislation and consider opportunities to revise the principles, particularly so that they more clearly reflect the requirements of the UNCRPD.

Additionally, we will consider making smaller but significant amendments to the process of Guardianship to improve its efficiency. This will be a precursor to more wide-ranging changes that may be developed in the future. Within the AWI reforms we will develop a suite of options to address the Deprivation of Liberty in circumstances where people require non-consensual care and support but are unable to make decisions for themselves. Further consultation will be taken forward in the short term.

2. Supporting Decision-Making

Supported Decision-Making is an important part of shifting the way in which the system fulfils people’s rights. Early work will review and build on existing practices, working with partners to support the development and roll-out of effective supported decision-making approaches. Based on learning and evaluation from this work we will consider whether a national framework or approach is needed.

We will also work with the Scottish Independent Advocacy Alliance, its members and organisations providing advocacy services as well people with lived experience of accessing services to help identify and address gaps and improvements in provision. This will identify how best to strengthen rights and access to provision. In addition, we will look to develop a consistent definition of ‘Independent Advocacy’. Cross-government work in advocacy will be taken forward driven by the development of the National Care Service and consideration of the proposed Human Rights Bill.

3. Mental Health Law Reform

We will consider how best to reform the Mental Health Act to better align with developments in international human rights standards. Initial cross-government work will seek to ensure that our developing domestic human rights laws in Scotland effectively protect the specific rights of people with disabilities including those with mental illness and people who lack capacity. We will also consider whether specific changes are required to mental health law.

As an early priority we will work with partners to consider the definition of ‘mental disorder’ and reach a position on who should be within the scope of any future reformed Mental Health Act. This work will be undertaken alongside the development of proposed legislation to enhance and protect the specific rights of people with a learning disability, autistic people and people with other neurodivergent conditions, to ensure that our legislative framework provides effective rights protections for these communities. We will also consider whether there are changes that can be made over the shorter term to improve the current operation of the Mental Health Act and to strengthen safeguards when it is considered necessary to provide non-consensual care or treatment. This could, for example, include the consideration of improvements to provisions around named persons and advance statements.

In the medium to longer term, we will consider the implications of the developing Human Rights Bill. As part of this work, we will reach a position on whether or not to expand the purpose of the Mental Health Act to also provide a broader gateway to human rights, including social, economic, and cultural rights, as recommended by the SMHLR. In addition, we will consider the impact and practical implications of moving towards an autonomous decision-making (ADM) test in place of the current SIDMA test whenever a non-consensual measure is being considered.

4. Human Rights Enablement

We will commence early work to support improvements to the implementation of rights, including through supporting our health and social care workforces to understand and apply rights-based approaches in practice.

This will initially explore how the concept of ‘Human Rights Enablement’ could be practically implemented across the mental health system. This work will consider how this might be included as part of our broader approach to human rights implementation, for example, through the development of the Human Rights Bill and the National Care Service.

We will also explore how a HRE approach might support wider practice reforms within health and social care, such as the development of Getting it Right for Everyone (GIRFE) as well as be better embedded within pre-existing practice models.

5. Enhancing carers’ rights and role

We will work with partners to strengthen the role of unpaid carers in supporting people to maintain independence and access their rights. An early priority will be to include a focus on carers in our work on Human Rights Enablement as well as within Supported Decision Making. We will also work to advance the rights of carers in practice.

We are providing funding for NHS Education for Scotland to enhance the existing EPiC learning resource and to explore what further development of this training might be needed to meet the recommendations in the SMHLR to develop Carer Awareness Training in order to raise awareness of carers’ rights among all staff working with people with mental or intellectual disability across health and social care settings. This will be considered as an option for early delivery.

6. Reducing Coercion across the system

As an initial step we will scope a programme of work with the aim of reducing the use of coercion and restrictive practices, such as seclusion and restraint, over time. This will be broad and cross-cutting work bringing people together across the system and including consideration of the role of legislative reform, the development of regulation and scrutiny as well as opportunities for improved data collection and monitoring.

The scoping exercise will also look at the role of community-based services and strategies to enhance early intervention, prevention and crisis and distress interventions along with changes in practice to support recovery. We will consider what is required to inform our decision-making in the first instance and to collate insights and analysis that can inform our policy development in the medium term.

7. Strengthening Accountability, and Scrutiny in the mental health system

We will consider the SMHLR recommendations in relation to strengthening accountability alongside the findings and recommendations from the Mental Health Scrutiny and Assurance Review (due to publish in Summer 2023), and the Independent Review of Inspection, Scrutiny and Regulation led by Dame Sue Bruce (due to publish in September 2023).

We will develop a strategic action plan to strengthen the collective scrutiny of mental health services, in response to the findings of these reviews. The development of the proposed Human Rights Bill may further help to ensure that that there are routes to remedy available in situations where human rights have potentially been breached. Work is already under way exploring the potential role of complaints handling bodies and wider scrutiny bodies in this changing landscape.



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