Commissions and commissioners: final report

2. Context

Introduction

Discussions about the creation of a Learning Disability, Autism and Neurodiversity Commissioner or Commission are set within the wider context of work to protect, promote and uphold people's rights in Scotland. This chapter explores the context in relation to:

• the Independent Review of Learning Disability and Autism in the Mental Health Act
• wider support for a commission or commissioner
• development of a Learning Disability, Autism and Neurodiversity Bill
• the Mental Health Law Review.

Independent Review of Learning Disability and Autism in the Mental Health Act

The proposed Learning Disability, Autism and Neurodiversity Bill and Commissioner/ Commission is not a direct response to the recommendations of the Independent Review of Learning Disability and Autism in the Mental Health Act. However, it is worth noting that the review played a role in advancing the idea of creating a commissioner to uphold the rights of these groups.

In December 2019, the final report of this Independent Review^[2] confirmed that reform was required in Scotland's mental health law, for autistic people and people with learning disabilities. It recommended that a series of steps be taken to bring about positive change to promote the rights of people with learning disabilities and autistic people:

• learning disability and autism be removed from definition of mental disorder in Scotland's Mental Health Act
• a new law be created to support access to positive rights
• a new commission or commissioner be established to promote and protect the rights of autistic people and people with intellectual disability across all settings.

"We recommend that a new commission be established with authority to promote and protect the human rights of autistic people and people with intellectual disability across all settings."

The Independent Review was clear that further work would need to be undertaken to develop the role of a new commission or commissioner for people with autism and learning disabilities. Within the report, key roles mentioned for consideration for a commission or commissioner included:

• setting standards for accessible communication for autistic people and people with a learning disability – along with powers to enforce compliance with these standards
• setting standards for services and environments that Health and Social Care Partnerships must have in place for autistic people and people with learning disabilities – with Partnerships required to give their policies to the commission, services being inspected against these standards, and a commissioner, regulator or inspectorate having enforcement powers in relation to these standards
• setting standards for dignity, accessibility, equality and non-discrimination for autistic people and people with learning disabilities across public services and the justice system – based on the Convention of the Rights of Persons with Disabilities and the European Convention on Human Rights – with breaches of standards reported to a new commissioner or other relevant body
• monitoring deprivation of liberty for autistic people and people with learning disabilities, including detention, restraint and seclusion.

The Independent Review stated that in considering development of a new commission or commissioner, all relevant functions should be considered – including monitoring for compliance with human rights, intervening for individuals, intervening for groups of people, raising local and national issues about law, policy and practice, and regulation and inspection.

The Independent Review also made clear that the new commission or commissioner should:

• be set up in law
• have the authority and responsibility it needs to raise any issue of human rights
• have the ability to take complaints and support people to challenge professional decisions, through supporting individuals to raise those complaints with the relevant authorities, regulators and commissioners
• be sufficiently independent and have sufficient authority to be able to challenge any organisation on any issue.

Finally, the review highlighted that duties could fall with existing commissions, commissioners, regulators or inspectorates, or a new commission or commissioner.

"These functions might be supported as part of the implementation of the Convention on the Rights of Persons with Disabilities, within a broader disability commission, by existing human rights commissions and inspectorates in Scotland, or by another body."

Wider support for a commission or commissioner

More widely, there has been a campaign led by three charitable organisations – Enable Scotland, National Autistic Society Scotland and Scottish Autism – for the creation of a commissioner for learning disability, autism and neurodiversity^[3].

The concept of a dedicated commissioner was also highlighted by the Cross Party Group on Autism. It recommended in its report The Accountability Gap that "the accountability gap could be solved by establishing a new autism commissioner role, who would uphold autistic people's rights and ensure that effective policy and laws are implemented appropriately at a local level."

A broader proposal for a disability commissioner for Scotland has been proposed through a proposal for a Members Bill brought forward by Jeremy Balfour MSP^[4]. This commissioner would promote and safeguard the rights and interests of disabled people. The consultation on the topic found that most respondents (77%) supported the proposed bill and most (88%) supported the creation of a dedicated commissioner. Most felt that the commissioner should have a role in reviewing laws and policies, promoting best practice and learning, and investigating Scottish public bodies and service providers. The proposals received some support from MSPs and the right to introduce a Members Bill on the topic was secured in December 2022.

A number of disabled people's organisations - including organisations representing people with autism, learning disabilities and neurodiversity - have published responses on the consultation, which are available here.

A Learning Disability, Autism and Neurodiversity Bill

In this context, in March 2021, the Scottish Government's Towards Transformation Plan committed to explore further the proposals for a commission or commissioner to help protect people's rights. In September 2021, as part of the Programme for Government for 2021/22, the First Minister announced that Government would carry out scoping work on the remit and powers of a Learning Disability, Autism and Neurodiversity Bill.

During 2022, Scottish Government held a series of workshops and consultative events to explore initial views around the development of the Bill, and the potential role of a Learning Disability, Autism and Neurodiversity Commissioner. Overall, these discussions highlighted that there wasn't overall agreement about whether or not it was a good idea to have a commissioner.

The discussions highlighted that some felt a commissioner was essential to tackle systemic disadvantage of autistic people, people with a learning disability and neurodivergent people, and bridge the gap between good intention and policy and practice on the ground. Some felt a commissioner would be symbolic in showing issues were important, could champion when people's rights had been abused, and could have formal powers to investigate poor practice and act when appropriate.

The discussions also demonstrated some concerns about having a commissioner. Concerns raised included:

• There are lots of commissioners already which should hold up the rights of people with learning disabilities, autism and neurodiversity. There was some concern about avoiding duplication with existing commissioners.
• One commissioner for autistic people, people with learning disabilities and neurodiverse people may not work. There was some concern about whether this was a grouping that would work, and whether all would be listened to within a single commissioner.
• Some people think a commissioner's job is to punish organisations, and some don't want people to be punished.
• Some people think a more 'bottom up' approach could help to make change happen, through empowering people to have a voice locally, and enabling organisations to involve people with lived experience and deliver best practice.
• A commissioner would cost money. Some feel it would be better to spend money on support for people with learning disabilities, autism and neurodiversity.

During 2022 and early 2023, a number of disabled people's organisations also gathered views and published position statements in relation to the Learning Disability, Autism and Neurodiversity Bill. These organisations had varied views on the need for a commissioner:

• The Scottish Commission for People with Learning Disabilities^[5] felt that a commissioner was critically important and urgently required, in order to hold duty bearers to account and ensure people with learning disabilities can realise their human rights. It also highlighted that the commissioner (and wider Bill) must link directly with the Scottish Human Rights Bill.
• Autism Understanding Scotland and Scottish Ethnic Minority Autistics had conversations with autistic people about the Bill, and produced a position statement^[6]. This states that more work needs to be done asking autistic people what they want, as there is not evidence that a commissioner would address the issues that autistic people are facing. It argues that neither a Bill nor a commissioner is necessary, as existing mechanisms could be used to uphold people's rights, with more resources and greater involvement of autistic people. A further open letter in February 2023, jointly with Diversified Scotland, Autistic Mutual Aid Society Edinburgh and Autism Rights Group Highland further commented on the proposed creation of a commissioner. It raised considerable concern about the potential creation of a commissioner and stated further that the campaign for a commissioner had been done to their communities, not with them. It highlighted existing commissioners and routes to formal investigations, and raised concerns that a new commissioner would not be able to take on all of the individual cases concerning rights breaches^[7].
• Scottish Autism and National Autistic Society Scotland gathered the views of autistic people, families and professionals during 2022. It found that there was clear support across all groups for the establishment of a commissioner, with 96% of all respondents supporting creation of a commissioner to promote and protect the rights of autistic people and people with learning disabilities^[8].
• Enable Scotland ran a survey and series of events during late 2022, to support people to say what they think the priorities of the Bill should be. It is also running workshops on key issues around the Bill, in partnership with members of the Cross Party Group on Learning Disability, which aims to ensure that human rights and aspirations of people with learning disabilities are considered by the Scottish Parliament and public policy makers.

On 27 February 2023, Scottish Government published a scoping report on the establishment of a Learning Disability, Autism and Neurodiversity Bill. The report is an analysis of 30 workshops carried out with people with learning disabilities and autistic people, by Scottish Government and its partners. The report is available online here. This report highlighted that while some of the disabled people's organisations involved in initial discussions and scoping events around the proposed Bill were supportive of, or open to exploring the idea of, a commissioner, the majority of disabled people's organisations were more sceptical.

Mental Health Law Review

In September 2022, the final report of the Scottish Mental Health Law Review was published. While this report generally endorsed the recommendations of the Independent Review of Learning Disability and Autism in the Mental Health Act, and recommended a shift to a needs and rights based framework, it signalled an important change of direction for mental health law. It concluded that the term 'mental disorder' should no longer be used, and indicated that a new definition of who mental health law is for should be developed.

As part of this, the review involved detailed discussion and listening to people about the inclusion of learning disability and autism within mental health legislation. Different opinions were listened to, and ultimately, the review concluded that mental health law should apply to people with learning disabilities and autism, to provide the widest possible gateway to accessing rights, and to ensure rights can be respected, protected and fulfilled. This was based on an understanding that the legislation is about enabling people's rights, and should be as inclusive as possible in its scope.

The review indicated that it was reluctant to focus rights on a particular diagnosis or label, and recommended the law covering "a person with a mental or intellectual disability whether short or long term". The review highlighted that this was an inclusive definition which could include people with learning disabilities, people with autism, people with personality disorders and a wider group of people.

The review sought to avoid a large number of groups requiring individual pieces of legislation to obtain their rights, but recognised that dedicated legislation, such as a Learning Disability, Autism and Neurodiversity Bill, may also be useful.

At the time of this brief literature review (late 2022) the implications of this review on the wider legal and policy context was not yet evident.

New Human Rights Bill for Scotland

More broadly, work to enhance the rights of people with learning disability, autism and neurodiversity has the potential to connect, align and overlap with plans to develop a new Human Rights Bill for Scotland. This would include specific rights from:

• the International Covenant on Economic, Social and Cultural Rights
• the Convention on the Elimination of All forms of Discrimination against Women
• the Convention on the Elimination of All Forms of Racial Discrimination
• the Convention on the Rights of Persons with Disabilities.

The Mental Health Law Review will be a key consideration in relation to the incorporation of the Convention on the Rights of Persons with Disabilities within this Bill.

There have been some suggestions that a commissioner for promoting and protecting women's rights should be established, based on recommendations from the First Minister's National Advisory Council on Women and Girls.

The report informing the development of the new Bill also recommended that the Scottish Human Rights Commission should be given additional powers including taking test cases, conducting investigations and potential further extended powers^[9].