Scottish mental health law review: our response

Introduction

The Scottish Mental Health Law Review (SMHLR) was commissioned in 2019. It was tasked with considering ways to better realise and protect human rights through our 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. The Review’s final report was published in September 2022 and recommends a series of changes to legislation. It also proposes a range of changes to policy and practice in the short, medium, and longer term. The Review’s final report can be accessed here: Scottish Mental Health Law Review.

The Scottish Government has considered the report and listened to stakeholder views on its recommendations. We now intend to establish a long-term programme of improvement and reform. This initial response describes our vision for change and outlines our priorities for reform. It provides a high-level response to the main conclusions of the Review and sets out our intended approach to delivery, as well as an indication of our intended timescales for implementation.

This response is the start of a process of broader engagement to develop the programme, which will commence over the coming months. This will help us to progress and refine the detail of our plans and to support progress in putting these into action.

A note on terminology

We refer to the term ‘mental disorder’ throughout this response, as it is the current legal definition used within the Mental Health Act. However, we recognise that this language is regarded by many as stigmatising and offensive. It is likely that the use of this term in legislation will change as part of our future plans for reform.

Background – the Review and its recommendations

The SMHLR was an overarching review of the mental health and capacity legislative framework. The principal aim was to enhance rights and protections for people who may be subject to the existing provisions of the Mental Health (Care and Treatment) (Scotland) Act 2003; Adults with Incapacity (Scotland) Act 2000 and Adult Support and Protection (Scotland) Act 2007, as well as to remove barriers to support for those caring for their health and welfare.

It is right that these laws should be kept under periodic review, and the Review noted that in the years since the legislation was passed there have been a number of developments in culture, thinking and the classification of mental health and human rights law. The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) has been a catalyst in promoting the rights of people with disabilities, both mental and physical, alongside the European Convention on Human Rights (ECHR). The Review considered what is required to achieve the highest standards of mental health and to ensure the legislative framework reflects people’s social, economic, and cultural rights, as well as UNCRPD and ECHR requirements.

The Review follows from, and builds on, previous work in this area, including the Scottish Law Commission Report on Adults with Incapacity (2014); the 2018 Scottish Government consultation on the Adults with Incapacity (Scotland) Act 2000; the independent review of learning disability and autism in the Mental Health Act (Rome Review); and the independent review into the Delivery of Forensic Mental Health Services (Barron Review).

In its widest sense, the Review sets out an agenda for enabling the greater realisation of human rights across mental health services. In doing that, the recommendations centre around three main themes:

• Strengthening the voice of people who use services and those who care for them.
• Reducing the need for coercion in the system
• Securing rights to the help and support needed to live a good life.

The Scottish Government supports these broad aspirations. However, the final recommendations range in scope from aspirational proposals for whole-system change to calls for specific technical or operational changes to existing legislation. Many of the proposals will require further detailed consideration and policy development to clarify a way forward.

The final report set out over 200 recommendations for the law, policy, and practice. This includes:

A new purpose for the law:

• A new purpose for mental health and capacity law to ensure that the human rights of those covered by the legislation are respected, protected, and fulfilled.
• Replacing the definition of mental disorder within mental health and capacity law
• A long-term aim is to fuse mental health and incapacity legislation, with a short-term focus on aligning human rights principles.

Progressive realisation of human rights:

• New legal duties and minimum core obligations on public bodies providing mental health and associated services.
• Accessible, affordable, timely and effective remedies and routes to redress where rights are not upheld.
• A new framework for human rights (Human Rights Enablement); supported decision-making (SDM) and tests of autonomous decision-making (ADM)
• A new legislative framework for when people are deprived of their liberty.
• Specific rights protections and improvements for children and young people; people within the forensic mental health system and adults with incapacity.
• Training for our workforce(s) and development and promotion of best practice engagement frameworks

Provision of trauma-informed and recovery-focused community based and peer support, and wider reform to reduce non-consensual treatment and practices.

Improved Accountability and Scrutiny:

• A systematic improvement programme to reduce coercive treatment.
• Strengthened regulation and scrutiny of mental health services.
• Improved data collection