Scottish mental health law review: our response

Summary of what we heard

Some of the areas where there is a high level of consensus on the need for change include:

• The need to embed human rights within domestic law to better fulfil human rights.
• The need to strengthen practice and the importance of human rights-based approaches to care and support.
• The need to reform legislation to better protect the rights of adults who lack capacity including their financial and welfare rights and to support legal capacity.
• The desire to see more investment in community-based supports and services that enable people to live independent lives and to exercise autonomy and control.
• The need to strengthen access to independent advocacy.
• The need for better recognition and support for the role of families, unpaid carers, and wider networks
• The need for stronger systems of scrutiny and accountability

Some of the areas where our engagement suggests further work is needed include:

• To consider the need for a revised definition of ‘mental disorder’ and replacement of the Significantly Impaired Decision Making (SIDMA) and capacity tests in current law with an autonomous decision-making (ADM) test
• Work to better fulfil the rights of people with a learning disability, autistic people, and people with other neurodivergent conditions within our developing legal frameworks.
• Consideration of the benefit of fusion versus alignment of legislation
• Work to better regulate and scrutinise the use of non-consensual care and treatment.
• Consideration of how far someone can be supported to have legal capacity and express their will and preference when they are unable to make or express an autonomous decision.

In response to the ambition set out in the Review, we propose to establish a new Mental Health and Capacity Reform Programme to drive further change and improvement in the system.

The Programme will aim to transform the way in which our laws, policies and practices improve people’s lives and help to better realise human rights. Its aims are based on our analysis of the SMHLR recommendations and feedback from stakeholders. The Programme will particularly seek to provide more effective human rights safeguards where non-consensual care and treatment and other restrictive practices are in use and work with others to improve the legislative framework to realise these aims.