The Case for Change
The Scottish Government supports the broad aspirations of the SMHLR. Whilst our mental health and incapacity laws are built on human rights principles, we recognise that there is a need to update these if they are to keep pace with developments in international human rights standards. The Review also makes the case for improvements to bring wider policy and practice more closely in line with current human rights standards.
The Review shows that, without the right support at the right time, people can struggle to express or make an informed decision about how they want to live and manage their own affairs: whether that be where they live, how they manage their money or access any care or treatment they might need. We need to address these challenges for the future. We know that, across our population, many people are now living with more complex and enduring mental health needs. This is alongside rising rates of dementia and other conditions that impact on people’s ability to live independently and safely. We agree that more can be done to ensure that rights are respected, protected, and fulfilled in these circumstances.
The Review proposed a shift in the focus of the law towards greater support for individual autonomy and the realisation of rights as its primary purpose. It also recognised the tension between the interpretation of some aspects of human rights set out in the UNCRPD and the ECHR. Whilst the former emphasises the right to independent living and autonomy for the individual, the Review concludes that there will still be times when it will be necessary to act without a person’s consent, including: to prevent harm; to act for someone’s wellbeing or to give effect to a person’s will and preferences, as they have previously stated but can no longer independently express.
The Review was clear, however, that such measures should be a last resort and makes a case for greater focus on strategies to avoid circumstances where non-consensual care and treatment may be required. We agree that there are times where it may be necessary to intervene in a person’s life without their consent, but only as a last resort and with appropriate support and safeguards in place.
It is also recognised that greater priority should be given to people’s feelings and preferences in decisions about their life care and treatment. The Review makes a strong argument to further the development of supported decision-making in Scotland to try to achieve this and secure the best outcomes for people who lack capacity. We agree that the voice of those using services should be strengthened and will consider how that can be best achieved and embedded going forward.
The Review notes that further co-ordinated work is needed across government to bring about positive improvement, and particularly to reduce as far as possible the need for non-consensual care and treatment. We agree that we need to better understand the increases in the use of mental health and capacity legislation and support the use of alternatives as far as possible.
It also highlights weaknesses in how existing equalities and human rights commitments are being upheld, particularly in circumstances where people face multiple disadvantages. The report brought forward new evidence that a person’s individual and protected characteristics continue to have a significant effect on their mental health and wellbeing; how they might be treated as well as what services and support might be available within their home and communities. The report highlighted factors including a person’s race and ethnicity, their age, sex or gender identity, whether or not they have a disability as well as whether or they live in a rural, island or urban community as particular risks. We agree that there is a need for even greater focus and effort to reduce inequalities in how people experience our systems and access their rights.
Given the scope and scale of the final recommendations, the Review ultimately proposed an incremental approach to reform, suggesting changes over the short, medium, and long term. In terms of legislative reform, it recommended that, while fusion of mental health and capacity law could be considered as a long-term aim, there may be value in delivering greater alignment of the legislation as an initial step. It recommends achieving this through introducing shared human rights principles and through the adoption of a Human Rights Enablement (HRE), Supported Decision-Making (SDM) and Autonomous Decision-Making (ADM) framework, whilst also delivering more immediate, shorter term, improvements that do not require legal reform or more complex policy change to implement. We agree that a staged approach to reform is necessary given the scope, complexity, and inter-related nature of the recommendations with other significant ongoing policy developments.
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