Mental health and wellbeing strategy

11. Legislative framework

A range of legislation covers the rights of people with mental health problems and the provision of mental health services to aid them.

In Scotland, the key legislation at publication includes the National Health Service (Scotland) Act 1978^[15] and the Mental Health (Care and Treatment) (Scotland) Act 2003^[16] (referred to as the 2003 Act) as amended by Mental Health (Scotland) Act 2015.^[17]

Mental health and incapacity law

Mental health law is based on rights and principles which promote and respect people's human rights. It provides support for people with a mental disorder to be fully involved in decisions that affect them as they move towards recovery. It covers everyone, from children and young people to older adults.

The overarching approach of the 2003 Act is one of safeguarding to ensure that the law and practice for those who require compulsory care and treatment are driven by core principles, particularly minimum restriction in individual liberty with the maximum benefit for the patient.

The 2003 Act allows for detention in hospital and compulsory medical treatment on grounds of mental disorder^[18] and is only allowed under very strict circumstances. The provisions of this Act are intended to ensure that compulsory care and treatment is used to provide medical treatment to alleviate suffering and protect both the person and / or others. Rigorous safeguards apply, which include the right to independent advocacy, an independent Mental Health Tribunal for Scotland and the independent Mental Welfare Commission.

Adults with incapacity

The Adults with Incapacity (Scotland) Act 2000 provides a framework for safeguarding the welfare and managing the finances of adults (for the purposes of this Act, people aged 16 or over) who lack capacity due to mental illness, learning disability, dementia or a related condition or an inability to communicate. The Act aims to protect people who lack capacity to make particular decisions, but also to support their involvement in making decisions about their own lives as far as they are able to do so. The Act also provides for medical interventions. In addition, the Adult Support and Protection (Scotland) Act 2007 gives greater protections to adults at risk of harm, either through the actions of a third party or through self-harm and neglect.

Adult support and protection

The Adult Support and Protection (Scotland) Act 2007^[19] and Code of Practice introduced provisions intended to protect those adults who are unable to safeguard their own interests, who are at risk of harm and, because they are affected by disability, mental disorder^[20] (footnote ref B), illness or physical or mental infirmity, are more vulnerable to harm than those who are not so affected.

Scottish Mental Health Law Review

In 2019, Scottish Government commissioned an overarching independent review, the 'Scottish Mental Health Law Review'. This looked at how our mental health, incapacity and adult support and protection laws can be further strengthened from a human rights perspective and how we can remove any barriers to care and support that people might face. The Review published its final report in September 2022 and provided over 200 proposals for reform. These were based on extensive engagement with a wide range of organisations and people with lived experience on the issues that matter to them. This wider review followed two earlier independent reviews: one into the delivery of forensic mental health services and one which considered how mental health law works for those with learning disability and autism.

Human rights law

Where appropriate, this Strategy takes into consideration what the 'Scottish Mental Health Law Review' recommended, and it is shaped by our commitments to embed human rights across the mental health system in Scotland. A separate programme of work will set out the approach to transformation and delivery over the coming years, including work to strengthen the legal framework and accountability and support human rights in practice.

In the longer term, work will be undertaken to modernise our mental health system to better protect and reinforce fundamental human rights within and across mental health and incapacity law and services. This includes work to undertake any necessary reforms to legislation, policy and practice to better fulfil obligations under developing human rights law. Underpinning this work is a focus on driving improvements so that, as far as possible, people receive any treatment, care or support they might need. This will be in line with their rights, will and preferences. It also seeks to support those who lead and deliver services to effectively uphold and balance human rights.

This follows the broader commitment to incorporate additional international human rights treaties into Scots Law as far as possible within the limits of devolved competence. This will give effect to the International Covenant on Economic, Social and Cultural Rights, which includes the right to the highest attainable standard of physical and mental health, and the Convention of the Rights of Persons with Disabilities, which provides further interpretation of human rights for people with disabilities. Incorporation of these UN treaties, including the UN Convention on the Rights of the Child (UNCRC), will provide rights and protection that are relevant to mental health.