Consultation on proposals for a Mental Health (Scotland) Bill - An analysis of responses

Consultation on proposals for a Mental Health (Scotland) Bill - An analysis of responses

About this report

1. This report provides an analysis of responses to the Scottish Government's recent Consultation on proposals for a Mental Health (Scotland) Bill^[1]. This consultation dealt with the issues described in the background section below.

Background to the consultation

2. The Mental Health (Care and Treatment) (Scotland) Act 2003 (the "2003 Act") came into force in October 2005. In the two years following commencement of the 2003 Act, there were many bodies monitoring the situation, from user and carer groups, service providers, the Tribunal Service and the Mental Welfare Commission ("the Commission"). Each had kept the Scottish Government informed of areas which did not appear to be functioning as well as had been anticipated. Although there was no strong feeling that there was anything fundamentally wrong with the 2003 Act, the Scottish Government decided that a "light touch" review should be undertaken.

3. In 2008, the Scottish Government instituted a limited review of the civil provisions of the 2003 Act under the chairmanship of Professor Jim McManus and the Review Group reported back on March 2009^[2]. The Scottish Government response^[3] to the McManus Review noted some recommendations would require primary legislation to amend the 2003 Act before they could be implemented.

4. Additionally, a number of matters relating to how the mental health legislation is working in practice have been brought to the Scottish Government's attention by service users and practitioners. Primary legislation is required to give effect to these changes. Following a public consultation in 2010^[4] the Scottish Government indicated that it intended to introduce a statutory scheme for victims of mentally disordered offenders but that primary legislation would be necessary to implement such a scheme.

Overview of Responses

5. A total of 110 written responses^[5] were received. Annex B contains a list of respondents. Table 1 below shows the distribution of responses. A number of respondents were happy for their responses to published on the Scottish Government website but not their names. 1 respondent requested that neither their name nor their response be published on the Scottish Government website. The content of all these responses have been taken into account in this analysis. Circa 23% of responses were submitted by individuals and circa 77% by organisations.

7. A number of respondents endorsed comments made by other respondents (e.g. ACUMEN endorsed the Scottish Independent Advocacy Alliance response). A number of respondents appear to have discussed their responses with other respondents within their sector as in a number of instances identical comments have been made to some of the questions.

8. The majority of respondents did not answer every question in the consultation paper but rather responded to questions relating to their own life experiences or areas of expertise. The proposals outlined in Chapter 2 Mental Health (Care and Treatment) (Scotland) Act 2003 received the most comments and in particular the proposals around advance statements, named persons, medical matters, and suspension of detention although far fewer respondents commented on the rest of the proposals in this chapter. These proposals were of a more minor and technical nature. The proposals outlined in Chapter 3 Criminal cases were commented on by the fewest number of respondents.

Table 1: Distribution of responses

Summary

9. An analysis of responses can be found at Annex A. Broadly speaking, respondents welcomed the majority of the proposals set out in the consultation paper. The one exception relates to the Scottish Government's proposals with regard to medical matters in Chapter 2. The majority of respondents were strongly opposed to these proposals. Whilst a majority of respondents supported the proposals in Chapter 4 in relation to victims' rights, many commented that this would require sensitive and careful handling to ensure the correct balance between the needs of mentally disordered offenders and the rights of victims. Some respondents also commented that mentally disordered offenders subject to compulsion orders should not be included within this scheme.

Next Steps

10. The Scottish Ministers have carefully reflected on the written consultation responses. Feedback provided to the Bill Team at various stakeholder meetings and events subsequent to the issue of the consultation paper has also been fed into the Ministerial decision making process. The policy memorandum accompanying the Mental Health (Scotland) Bill - introduced to the Scottish Parliament on 19 June - sets out the Scottish Government's policy in regard to the Bill's provisions.