Mental health - distress framework for collaboration: multi-agency partnership approach

Annex E

Legislative Landscape

The European Convention on Human Rights and the Human Rights Act 1998

The European Convention on Human Rights (ECHR; though formally known as the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. It was incorporated into British law as the Human Rights Act 1998 and came into force into the UK in October 2000. The Act sets out people’s human rights in a series of ‘Articles’ which were all taken from the ECHR.

Article 2: Right to Life

This means that nobody, including the Government, can try to end a person’s life. It also means the Government should take appropriate measures to safeguard life by making laws to protect people and, in some circumstances, taking steps to protect them if their life is at risk. Public authorities should also consider a person’s right to life when making decisions that might put them in danger or effect their life expectancy.

Article 2 is often referred to as an ‘absolute right,’ meaning that these can never be interfered with by the Government or public authorities. However, there are situations when this does not apply, for example when the police use necessary force to stop an individual from carrying out unlawful violence or to make a lawful arrest.

A right to life does not include a right to die.

Article 3: Freedom from Torture and Inhuman or Degrading Treatment

This article protects people from mental and/or physical torture and inhuman or degrading treatment or punishment. This means that public authorities must not inflict this type of treatment on an individual. Public authorities must also protect a person in circumstances where this is being inflicted on them by another person and/or group of people, meaning that, if they are aware that this right is being breached, they should intervene to stop it. They must also investigate credible allegations of such treatment.

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

The Mental Health (Care and Treatment) (Scotland) Act came into force in 2005. It increases the rights and protection of people with mental health conditions. This includes:

• mental illness
• learning disability
• personality disorder

The Act places role and duties on health boards, the state hospitals, and councils to provide care and support services for people with mental health conditions. It also provides Place of Safety and other emergency related powers to Police Scotland. However, these can only be used when particular criteria have been met and not when a person agrees to voluntarily attend a Place of Safety.

The provisions of this Act are intended to ensure that care and compulsory measures of detention can be used only when there is a significant risk to the safety or welfare of the patient or other people.

In 2019, the Scottish Mental Health Law Review was commissioned and tasked with considered ways to better realise and protect human rights through the mental health, incapacity and adult support and protection legislation. The Review also looked at ways to remove barriers to care and support for people currently covered by the legislation. In 2023, the Scottish Government published a response to the Scottish Mental Health Review and now intends to establish a new Mental Health and Capacity Reform programme to deliver on the ambitions of the Review.

Psychiatric Emergency Plans

Although not mandated by the Act, it is best practice for all relevant local agencies and service providers who might potentially be involved in psychiatric emergencies to work together to develop and agree on a ‘Psychiatric Emergency Plan’ (PEPs) as a means of comprehensively addressing the roles, responsibilities, and process in a manner which best reflects local circumstances.

The aim of a PEP is to agree on procedures which manage the transfer and detention process in a manner which minimises distress, disturbance, and risk for the individual and others while ensuring a person-centred and human rights approach.

The professionals involved in the drawing up of a PEP should include, but should not necessarily be limited to, general practitioners, approved medical practitioners, Mental Health Officers, other social workers, social care workers, Community Psychiatric Nurses, ward nursing staff, independent service providers, police officers, and ambulance personnel. It is also important to have input from mental health service users and carers.

A review of the PEPs is currently underway with the aim of improving consistency of the PEPs across all 14 Health Boards and ensuring that the roles and responsibilities of all local agencies and service providers are clearly articulated and as consistent as possible while still allowing for local flexibility. The review will also look at safe transfer of care between agencies, safety and crisis planning, and information sharing guidance, among others, and is expected to be complete by November 2024 with guidance and a national template to be developed in 2025.

Adults with Incapacity (Scotland) Act 2000

The Adults with Incapacity (Scotland) Act 2000 introduced a system for safeguarding the welfare and managing the finances and property of adults who lack capacity to make some or all decisions for themselves. It is underpinned by the Scottish Government’s 2019 principles publication, which anyone taking action under the Act must apply when deciding which measure will be the most suitable for meeting the needs of the individual. The principles must also be used whenever decisions need to be made on behalf of the adult.

The Scottish Government wants to ensure that those with responsibilities under the Act are fully supported to carry out their duties effectively. We are doing this by ensuring that adults with incapacity legislation, policy and practice is reviewed and current practice is improved and effective.

Adult Support and Protection (Scotland) Act 2007

The Adult Support and Protection (Scotland) Act 2007 (ASP) is designed to protect people (aged 16 years or over) who are at risk of harm; are unable to safeguard their own well-being, property, rights or other interests; and they are affected by disability, mental disorder, illness, physical or mental infirmity that makes them more vulnerable to being harmed than adults who are not so affected. A diagnosis is not required.

The Act provides ways of protecting adults at risk of harm. Behaviours that constitute ‘harm’ to a person can be physical, sexual, psychological, financial, or a combination of these. ‘Harm’ also includes self-harm, neglect, and self-neglect. The harm can be accidental, intentional, or as a result of self-neglect or neglect by a carer. Harm can happen anywhere, including within a private home, in hospital or a care home, at work, or in a public place.

The ASP Act places a duty on local authorities to make inquiries about a person's well-being and property or financial affairs if it knows, or believes, that the person is an adult at risk and that it might need to intervene in order to protect the person's well-being, property or financial affairs.

The adult at risk may not be able to identify or report safeguarding concerns themselves. It is crucial that those who identify adults at risk report these concerns to the local authority/Health and Social Care Partnership social work services as soon as possible. Statutory responsibility for undertaking Adult Support and Protection inquiries rests with the local authority where the adult who may be at risk of harm is. Aligned with the principles of this Framework, inquiries should involve all key agencies to support and protect the adult and any service or professional can make a referral. In the context of ASP, it is everyone’s business to help identify and safeguard adults at risk of harm.

The policy and practice landscape has changed significantly over the past 16 years since the introduction of the ASP Act^[5]. Stewart (2012) describes the ASP Act as aiming to fill a perceived gap between general welfare law and mental health and mental capacity law; of trying to find the right balance between personal autonomy and protective intervention^[6]&[7]. Revision of the ASP Code or Practice in 2022 and a raft of other updated guidance published in 2022 recognises the potential impact of trauma on one’s safeguarding ability, with a greater appreciation of the breadth of work that can fall within the provisions of ASP.

Section 32 of the Police and Fire Reform (Scotland) Act 2012

Section 32 of the Police and Fire Reform (Scotland) Act 2012 outlines the policing principles, which are:

• that the main purpose of policing is to improve the safety and well-being of persons, localities and communities in Scotland, and
• that the Police Service, working in collaboration with others where appropriate, should seek to achieve that main purpose by policing in a way which —

(i) is accessible to, and engaged with, local communities, and

(ii) promotes measures to prevent crime, harm and disorder.