Learning Disabilities, Autism and Neurodivergence Bill: consultation

Section 2: Mental Health and Capacity Law

What we heard

Current mental health, capacity and adult support and protection legislation in Scotland can, in certain circumstances, apply to autistic people and people with learning disabilities.

The law uses the term 'mental disorder', as defined within the Mental Health (Care and Treatment) (Scotland) Act 2003 (the "Mental Health Act")^[147]. We accept that this term is seen by many as stigmatising and offensive towards people with lived experience. However, it is used in this document to reflect the language of the legislation, where needed.

We have heard strong views from some individuals and organisations that people with learning disabilities and autistic people should not fall within the definition of 'mental disorder'. This is because life-long conditions cannot be 'treated' in the same way that mental illness can. The condition may be managed, and the person may be supported, but there is no treatment that can lead to the person no longer being autistic or having learning disabilities. Many learning disability groups have said that the inclusion of learning disability in the definition of mental disorder means they feel they are stuck in a system that is not designed to meet their needs.

We also note that, in England and Wales, the UK Government has proposed to change mental health legislation to limit the scope of detention to remove those with autism and learning disabilities from some, but not all, powers under their mental health legislation.^[148]

What did LEAP think?

• People should not be 'locked up' under mental health legislation in Scotland on the basis that they are autistic or have learning disabilities. The LEAP finds this wholly unacceptable.
• Learning disabilities and autism are lifelong conditions and are not curable, and they are not a mental health issue.
• Neurodivergence and learning disabilities are part of the natural diversity of human expression. We do not need curing, we just need acceptance.
• Autism and learning disabilities should not be considered a mental disorder, which is upsetting, degrading, and insulting and the LEAP believes this disrespects the human rights of people with learning disabilities and autistic people.
• LEAP believes that medication is used too quickly under the Mental Health Act and sometimes before a mental health issue is identified or properly diagnosed. LEAP also believes things escalate too quickly, just because a person has a learning disability.
• LEAP members don't accept the label 'challenging behaviour'. More often than not, disruptive episodes are a consequence of a communication failure and, sometimes, it's about exercising our right to be heard.
• LEAP believe that more importance should be placed on Supported Decision Making to actively involve the individual in the decision-making that impacts their freedom and their human rights.
• Autistic people often find inpatient mental health wards distressing and detrimental to their mental health instead of beneficial.
• One LEAP member referred to their experience of being detained under the Mental Health Act on a number of occasions over two decades and having experienced significant harm. Psychiatric medications they were prescribed caused pregnancy complications. This resulted in brain damage to their child causing significant physical and learning disabilities. They said that these potential harms should be considered where compulsory treatment and detention happen.

Where do we want to get to?

We want to update and modernise our mental health and capacity legislation to enhance the protection, respect and championing of people's rights.

What is the current position in law?

Mental health and capacity law in Scotland is comprised of the following legislation, together with relevant secondary legislation:

The Adults with Incapacity (Scotland) Act 2000 ("the AWI Act")

The AWI Act provides for interventions to be made in an individual's life where they are unable to make decisions for themselves because of incapacity due to a mental disorder or an inability to communicate. Interventions can include decisions made about a person's care, welfare, living arrangements, restrictions on those living arrangements and financial decisions providing the person responsible for effecting the intervention is satisfied that the intervention will benefit the adult, is the least restrictive option, and such benefit cannot reasonably be achieved without the intervention. Guardianship Orders and Power of Attorney Orders can be secured under the AWI Act.

The Mental Health (Care and Treatment) (Scotland) Act 2003 ("the Mental Health Act")

The Mental Health Act provides for the compulsory assessment, treatment, care, and support of people with mental illness or mental disorder. It is used when individuals are unable to make their own decisions about treatment or if they do not want, but still need, treatment, care and support. The Mental Health Act applies to children and young people as well as adults.

The Adult Support and Protection (Scotland) Act 2007 ("the ASP Act")

The 2007 Act^[149] provides for interventions to be made to protect adults at risk. For the purposes of the ASP Act, an adult at risk is a person who is unable to safeguard their own well-being, property, rights or other interests; who is at risk of harm; and because they are affected by disability, mental disorder, illness or physical infirmity is more vulnerable to being harmed than adults who are not so affected. Harm can include physical, financial, sexual or psychological abuse, and neglect and discrimination. Interventions can include protection orders: assessment orders, removal orders or banning orders.

Definition of 'mental disorder' and applicability to people with learning disabilities and autistic people

The criterion of 'mental disorder' is set out in the Mental Health Act^[150]. This definition is also used as criterion for possible intervention under the AWI Act and the ASP Act. 'Mental disorder' is currently defined under s.328(1) of the Mental Health Act as:

a. Mental illness

b. Personality disorder

c. Learning disability

Although not specifically listed, autism has historically been understood as being encompassed within the definition of mental disorder.

An individual cannot, however, be made subject to compulsory measures for care and treatment under the Mental Health Act only because they meet the criterion of mental disorder. For example, before a compulsory treatment order can be made, all of the following conditions must also be met:^[151]

• The patient has a mental disorder;
• That medical treatment is available which would likely (a) prevent the mental disorder worsening or (b) alleviate any of the symptoms of effects or the disorder;
• If the patient were not provided with such medical treatment, there would be a significant risk to (a) the health, safety or welfare of the patient; or (b) the safety of another person;
• That because of the mental disorder the patient's ability to make decisions about medical treatment is significantly impaired; and,
• The compulsory treatment order is necessary.

"Treatment" under the Mental Health Act for "mental disorder" includes:

• Nursing
• Care
• psychological intervention
• habilitation (including education, and training in work, social and independent living skills)
• rehabilitation.

Similarly, under the AWI Act an intervention can only be made if the intervention will benefit the adult and the benefit cannot reasonably be achieved without the intervention. The intervention should be the least restrictive option in relation to the freedom of the adult and the past and present wishes of the adult, so far as they can be ascertained, must be taken into account in determining if an intervention is to be made.

What has happened so far on this issue?

Mental Health and capacity law in Scotland has been subject to two major reviews in recent years: the Rome report^[152] and the Scottish Mental Health Law Review (SMHLR)^[153].

The Rome report, on learning disability and autism within the Mental Health Act, was published in December 2019. It recommended removing learning disability and autism from the definition of 'mental disorder' and creating a separate law to provide support and equity in law for these groups. The report recognised that, nevertheless, if someone had a mental illness over and above their lifelong condition which brought them within the remit of mental health law then the law would apply to them in the same way as to any other person.

The SMHLR reviewed mental health, capacity and adult support and protection legislation in Scotland and reported in September 2022. It observed that the diagnostic criterion of mental disorder has been criticised as being a violation of the CRPD anti-discrimination requirements in relation to the right to exercise legal capacity (Article 12) and the right to liberty (Article 14). However, it was observed that for detention to be lawful under Article 5 of ECHR, it must fall within one of the specified categories where detention is allowable. This means that, in the language of the ECHR, an individual must be of 'unsound mind', and it was noted that the Winterwerp^[154] ruling has determined that lawful psychiatric detention requires objective medical evidence of a 'true mental disorder'.

The SMHLR recommended a different approach to the Rome report. Early on in its work, the SMHLR made the decision that a reformed mental health and capacity legal framework should have a new, positivist purpose, which has at its heart the aim of enabling people's rights rather than removing them. Accordingly, it was recommended that the law should be as inclusive as possible in its scope and include autism and learning disabilities.

It was recommended that the gateway to access the rights anticipated by new legislation should be wide enough to ensure those in need of help and support can access it appropriately, and such access must not be conditional on an 'incapacity test' or other similar threshold being met.

Consequently, the two reports have left us with two different recommendations on the way people with learning disabilities and autistic people should be included within mental health and capacity legislation in Scotland.

In terms of supported decision-making, the SMHLR recommended a new framework for human rights, supported decision-making and autonomous decision-making. It made 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. In our response,^[155] we noted our agreement that the voice of those using services should be strengthened.

We recognise that supported decision-making is an important part of shifting the way in which the system fulfils people's rights. That is why we have committed to take forward as part of our first priorities under the Mental Health and Capacity Law Reform Programme work to review and build on existing practices, working with partners to support the development and roll-out of effective supported decision-making practices and approaches. Based on learning and evaluation from this work we will consider whether a national framework approach is needed.

We know that independent advocacy can be instrumental in supported decision making. This is why we have also committed to working with the Scottish Independence Advocacy Alliance, its members and organisations providing advocacy services, as well as people with lived experience of accessing services, to help identify and address gaps and improvements in provision.

What can the LDAN Bill do?

The proposed purpose of the LDAN Bill is to better protect, respect and champion the rights of neurodivergent people and people with learning disabilities. The LDAN Bill could, therefore, propose to make changes to mental health and capacity legislation in Scotland as it relates to autistic people and people with learning disabilities. Those changes could be to:

(1) specifically remove learning disability and autism from the scope of mental health and incapacity legislation; or,

(2) change "mental disorder" to a term that is not stigmatising or offensive.

However, we are not at this time consulting on any proposals for legislative change in this area. This is not because we do not think it is important but because more work needs to be carried out to consider how we balance the different recommendations of the Rome report and the SMHLR.

We know that people with learning disabilities and autistic people have been asking for change in this area for a long time. We therefore need to consider what we can do to address these concerns and what this would mean in practice, including any consequences to the rights and protections the Mental Health Act provides to people with learning disabilities and autistic people who are currently treated under this legislation.

We know that people took time to make their views clear to both the Rome review and the SMHLR. We are not asking for those to be reiterated. We now want to develop options and consider whether there is an evidence-base for potentially making changes, ahead of wider reform. We need to more fully understand the consequences and implications of any changes, including any unintended consequences, to ensure that people with learning disabilities and autistic people still have appropriate rights, protections and support where needed.

For example, if we were to remove learning disability and autism from the current definition of mental disorder, we need to understand what this means for some of the people who are currently receiving care and treatment under the Mental Health Act.

A short-term piece of work is being prioritised as one of the first actions under the Mental Health and Capacity Reform Programme. That work will consider the current definition of mental disorder within the Mental Health Act and the approach to compulsory care and treatment and safeguards. This will include, amongst other aspects, consideration of whether learning disabilities and autism should continue to fall within the definition, along with updating the language of the definition.

The outcome of this work may lead to a change in the law. The LDAN Bill may be an appropriate place to make those changes, however, that will be determined once the work has concluded.

Initial work on this has begun with a scoping workshop held in November this year to help inform the design of the workstream. This included people with lived experience, the organisations and people that represent them, and practitioners. We will continue to fully involve people with lived experience in the process as we develop any proposals for future consultation.