UN convention against torture: our position statement

Mental health

“ We firmly believe that respect for human rights can and should inform decision-making, develop better participation for patients, foster strong working relationships, and ensure that care is personalised.”

Mental Welfare Commission for Scotland, Human Rights in Mental Health Services (2017)

Access to mental health care and placement of children

25. Please also provide information on the concrete measures taken by the State party to address concerns about deficiencies in access to appropriate mental health-care and about the inappropriate placement of children.

Mental health services

The Scottish Government has implemented the bulk of the provisions of the Mental Health (Scotland) Act 2015 and will promote independent advocacy and advance statements, alongside a rights-based approach in the statutory guidance on the use of mental health legislation.

The Scottish Government has a Ministerial post dedicated to mental health and has set aside £150 million to invest in improving mental health. The Mental Health Strategy 2017-2027^[105] sets out a vision for the next 10 years and how to transform services, with a focus on themes including prevention and early intervention; responses in primary care settings; improving the physical health of those with mental health problems; and improving access to mental health services. The strategy contains an initial 40 actions. Progress will be reported on through stakeholder forums and through an annual report that the Minister for Mental Health will present to Parliament.

As part of the additional £150 million funding, in January 2016 the First Minister announced a £54.1 million package of support to improve access to mental health services for adults and children. This investment includes £24.7 million to improve capacity in health boards to see more people more quickly; £4.8 million through HIS to help redesign local services to be more efficient, effective and sustainable; and £24.6 million to improve workforce supply and train existing staff to deliver mental health services. This funding acknowledges the continued and substantial increase in demand for psychological therapies and Child and Adolescent Mental Health Services (CAMHS). As the capacity and provision of services have increased there has been a sustained increase in the numbers accessing treatment each quarter, and this should be welcomed.

In comparison to the general population, the prevalence of mental health problems among those in contact with the justice system is high. Mental health issues commonly co-exist with problem substance use (alcohol and drugs), chronic physical health conditions, learning difficulties, and homelessness. Relationships with families and other supports may be limited or absent. The Scottish Government has identified potential benefits of closer collaboration between health and justice on a range of issues and has established a Health and Justice Collaboration Improvement Board.

Action 15 of the Mental Health Strategy commits the Scottish Government to give access to dedicated mental health professionals to all A&Es, all GP practices, every police station custody suite, and to prisons. Over the next five years, additional investment will increase to £35 million for 800 additional mental health workers in those key settings.

NHS/SPS multi-disciplinary Mental Health Teams provide mental healthcare within prisons equivalent to the care provided for people in the community but designed to meet the recognised increased mental health needs of prisoners.

Following the transfer of responsibility for healthcare from SPS to NHS Health Boards in November 2011, clinical treatment for prisoners with mental health problems sits with NHS. The SPS has a role to play in providing support and activities for prisoners with mental illness and mental health issues, and an environment that encourages prisoners with mental health issues to engage with staff and services. The SPS has funded training for Residential Officers in managing prisoners with challenging behaviours and personality disorders, and NHS Psychiatry operates an in-reach service across establishments in Scotland with a mixture of forensic psychiatrists and general adult psychiatrists in attendance. Several third sector agencies also provide additional services and support for prisoners with mental health issues.

Child and Adolescent Mental Health Services

The Mental Health Strategy is all-inclusive and applies to all individuals and groups. The Scottish Government remains committed to meeting its target of 90% of those referred for specialist CAMHS starting treatment within 18 weeks, and is continuing to work with NHS Boards to help them to make the necessary improvements.

Work on access to CAMHS and on reducing waiting times should ensure that CAMHS is available, accessible, acceptable, of a good quality, and pays particular attention to vulnerable children – such as those living in poverty, children in care, children in contact with the criminal justice system and children with a learning disability and/or autism. Improvement work on access should also consider variations in levels of demand that cannot be explained by factors such as different socio-economic circumstances.

Children and young people referred to CAMHS will generally be treated in the community, however, there may be times when it is necessary to admit them to hospital for specialist treatment. Should this be the case they would be admitted to one of the three regional CAMHS inpatient units. For adolescent inpatient beds, the boards collaborate in three regions:

Unit	No. of beds	Area served
Royal Edinburgh Hospital	12	South East of Scotland Lothian, Fife and Borders
Skye House, Stobhill, Glasgow	24	West of Scotland Greater Glasgow and Clyde, Forth Valley, Lanarkshire, Dumfries and Galloway Ayrshire and Arran
Dudhope House, Dundee	12 (increased from six in May 2015)	North of Scotland Tayside, Grampian, Highland, Shetland, Orkney and Western Isles

The clear expectation is that children and young people requiring psychiatric admission would be admitted to a Child and Adolescent Mental Health (CAMH) specialist unit. However, it may be clinically judged to be more appropriate to admit young people to adult wards, or the young person and their family may have a preference for admission to a local adult ward. There would always be a specific individual reason for this, for example the immediate unavailability of a specialist CAMH bed, or a clinical decision made with the patient and appropriate family members that a local adult bed might be better in rural situations to facilitate ongoing family contact. All admissions would be discussed with patients and appropriate family members prior to admission, ensuring the child and their carer’s views form part of a broader consideration of the child or young person’s best interests. Consideration would also be given to whether the child or young person is old and mature enough to manage in an adult ward. Most such admissions will be young people aged 16 or 17. The use of adult beds for CAMHS admissions has fallen.

Psychiatric hospitals and persons with psychosocial disabilities

26. Please provide information on the number of persons deprived of their liberty in psychiatric hospitals and other institutions for persons with psychosocial disabilities, including care homes.

The MWCS publishes statistics on the number of people detained under mental health legislation and monitors and reports on the use of incapacity legislation.^[106]

In general, detention in hospital and treatment on an involuntary basis would not be lawful in Scotland, but is authorised in restricted circumstances under the Mental Health (Care and Treatment) (Scotland) Act 2003,^[107] which provides the framework for detention in hospital and compulsory medical treatment for those with a medical disorder; and the Adults with Incapacity (Scotland) Act 2000,^[108] which provides for medical treatment to safeguard or promote the physical or mental health of an adult who is unable to consent.

The 2003 Act is underpinned by a set of principles and also contains various measures to protect the rights of those detained. The bulk of the provisions of the Mental Health (Scotland) Act 2015^[109] came into force on 30 June 2017.

A person can only be detained if strict criteria are met (including that they have a mental disorder; that the person’s decision-making ability is significantly impaired by the mental disorder; that without treatment there is a significant risk to the person or others; and that the order or certificate is necessary). Any civil order longer than 28 days must be granted by the independent Mental Health Tribunal for Scotland or the courts and must be regularly reviewed.

Rights contained in the 2003 Act include making an advance statement, access to independent advocacy, and appointing a “named person” (often a family member or carer) to represent the person’s interests. Implementation of the 2015 Act included promotion of independent advocacy and advance statements alongside a rights-based approach in the statutory guidance on the use of mental health legislation.

Anyone carrying out functions under the 2003 Act must have regard to certain principles, including having regard to the present and past views and feelings of the patient, the importance of the patient participating as fully as possible, and carrying out functions that involve the minimum restriction on the freedom of the patient as is necessary. There are additional safeguards with regard to certain treatments and additional provisions relating to children. Treatment can only be given without consent under certain strict circumstances, with certain treatments subject to additional safeguards.

The Adults with Incapacity (Scotland) Act 2000 contains provisions covering the personal welfare and financial affairs of adults who lack capacity to make some or all decisions on their own behalf, and provides safeguards through the roles and functions of the statutory bodies involved.

The 2000 Act sets out arrangements for guardianship orders and intervention orders made by the Sheriff Court, which provide legal authority for someone to act on behalf of the person with impaired capacity, to safeguard and promote their interests. Authority to make welfare decisions can include placement in care settings if specified.

The 2000 Act allows for a person with capacity to grant a power of attorney to someone they trust in the event of loss of capacity and, if they are given healthcare decision-making powers, they can give consent for medical treatment. Where there is no proxy, a doctor is authorised to provide medical treatment in that specific instance, subject to certain safeguards.

Following the Scottish Law Commission’s review of the 2000 Act on compliance with Article 5 of ECHR, specifically in relation to deprivation of liberty in hospital and care home settings, the Scottish Government consulted on the Commission’s recommendations and published an analysis of the responses.^[110] Work in the longer term is being undertaken with stakeholders on these and wider issues around guardianship, and consideration of circumstances in which supported decision-making can be promoted. A public consultation was completed on 30 April 2018 and analysis published in August 2018.^[111] Working groups have been convened to consider next steps.

Mental health and incapacity legislation confers statutory duties on the independent MWCS to fulfil its safeguarding role. Its work, which includes investigation, monitoring and visiting, is intended to ensure that care, treatment and support are lawful, respect rights and promote the welfare of individuals with mental illness, learning disability and related conditions. Service users and carers are represented on the MWCS Board and also act as visitors.