Learning disability and autism provision in the Mental Health (Scotland) Act 2003: findings from a scoping exercise

1. Introduction

1.1 This report presents findings from a scoping study carried out by the Mental Welfare Commission for Scotland ( MWC) and the Scottish Commission for Learning Disability ( SCLD) on behalf of the Scottish Government. The purpose of the scoping exercise is to help lay the foundations for a review which will consider whether the provisions in the Mental Health (Care and Treatment) (Scotland) Act 2003 fulfil the needs of people with learning disability and autism

Background - the Millan Review

1.2 The 2003 Act provides the legal framework in Scotland for dealing with people with mental disorders who require compulsory detention and treatment. The Act applies only to people who have a mental disorder, and 'mental disorder' is defined as including mental illness, learning disability and personality disorder. The Act sets out the conditions under which detention in hospital and / or compulsory treatment may be carried out, the legal protections for individuals in these circumstances, and a set of governing principles (the 'Millan principles'). The Act also imposes a range of duties on public bodies to provide support including through independent advocacy and local authority services.

1.3 The 2003 Act resulted from the work of the Millan Committee, which was set up in 1999 with a remit to review mental health law in Scotland, and which reported in 2001. ^[1] During the consultations carried out by the Millan Committee there was considerable debate - and no clear consensus - about whether learning disability and autism should be included in the new mental health law.

1.4 The arguments against inclusion were that:

• The Act is based on the idea that people who may require treatment, but who do not accept the need for it, may be detained in hospital, under the care of a psychiatrist, to receive such treatment. However, learning disability and autism, which may be comorbid, are (usually) lifelong conditions, which cannot be cured or treated by medication. If a person with a learning disability or autism also has a mental illness, then that person may be detained, if necessary, under mental health law - without any reference to their learning disability or autism.
• People with learning disabilities and autism are more likely to receive support from a psychologist, rather than a psychiatrist, to address any issues related to these conditions such as aggressive or distressed behaviour (sometimes referred to as 'challenging behaviour'). However, the 2003 Act contains no specific safeguards in relation to such interventions.
• Stressed and distressed behaviour may reflect inappropriate or inadequate services. In this case, the correct response is to provide the appropriate services, rather than place the individual under greater constraints. Concerns were voiced that the Act could result in people being detained in hospital for lengthy periods because the right community-based services are not available.
• The inclusion of learning disability and autism in mental health legislation was seen to contribute to the marginalisation of people with these conditions.

1.5 However, the counter-arguments in favour of including learning disability and autism in the 2003 Act were that:

• It is not uncommon for people with learning disabilities and autism to also have some form of mental illness. Diagnosis in such cases can be difficult and may require close observation in a controlled setting over an extended period of time.
• Even if a mental illness is not present, it may be appropriate to give somebody with a learning disability or autism medication to manage stressed and distressed behaviour, or it may be necessary to provide restrictive care. These interventions require safeguards beyond those available in common law or under incapacity law.
• If learning disability and autism were removed from the Act, it may mean that people with these conditions who behave inappropriately or commit a crime might otherwise end up in prison. This was seen to be inhumane, as well as unhelpful, since it would make it harder to address the causes of the offending behaviour.

1.6 The Millan Committee ultimately recommended that (a) learning disability should be included in the new Act, and (b) learning disability should be considered to include autistic spectrum disorders. However, it also called for this arrangement to be reviewed at an early opportunity. The Millan Committee suggested that a future review should consider the following:

• The experiences of people with learning disabilities and autism who have been subject to compulsory interventions under the 2003 Act
• The arrangements that are needed for people with learning disabilities and autism who offend, or who are at risk of offending
• The experiences of other countries that have different arrangements in respect of compulsory care for people with learning disabilities or autism
• The implications for mental health law of changes in learning disability services (which have taken place since 2000).

1.7 Since the 2003 Act came into force, concerns about the inclusion of people with learning disabilities and autism have continued to be voiced and there have been repeated calls from some organisations in the learning disability and autism communities for the law to be reviewed and amended as it relates to people with these conditions. (See, for example, the 'Citizens' Grand Jury Report' by People First (Scotland), pages 40-41. ^[2] )

Scottish Government commitment to a review

1.8 During the parliamentary debate on the Mental Health Bill (now the Mental Health (Scotland) Act 2015), the (then) Minister for Sport, Health Improvement and Mental Health, Jamie Hepburn committed the Scottish Government to undertake a review of the inclusion of learning disability and autism within the 2003 Act. ^[3]

1.9 It was noted that the review would not start with a pre-determined outcome or process, that stakeholders would be consulted before the remit and scope of the review were determined, and that the timescale for the review would not be constrained.

1.10 As a first stage in the review process, the Scottish Government asked the Mental Welfare Commission for Scotland ( MWC) and the Scottish Commission for Learning Disability ( SCLD) to undertake a small-scale scoping study to gather views from a range of stakeholders on three main issues:

• What should the scope of the review be? (In addition to the specific issue of the inclusion of learning disability and autism within the Act, the Government has already said that the review will consider the following issues: (i) the role of psychologists under the 2003 Act and (ii) the use of psychotropic medication. ^[4] )
• Who should be involved?
• How (and with what timescales) should the review be conducted?

1.11 The scoping study was intended to ensure that the full review addresses the things that are important to people, and that it is a meaningful and successful process for all involved.

Remainder of this report

1.12 The next chapter of this report describes the methods used to carry out the scoping study. Chapters 3 to 5 present the main findings of the scoping study and provide an analysis of the views expressed by those who took part.

• Chapter 3 discusses people's views in relation to the scope of the review
• Chapter 4 focuses on who should be involved in the review
• Chapter 5 discusses how the review should be conducted.

1.13 The final chapter ( Chapter 6) draws some conclusions from the study and makes recommendations to the Scottish Government in proceeding with the review.