31 May 2017
A new report published today by the Mental
Welfare Commission and Edinburgh Napier University calls for a long
term reform programme for Scotland's mental health and incapacity
The report is the conclusion of a series of in-depth discussions
with specialists in the law, health care, social work and human
rights from across Scotland and around the UK.
The report compares Scottish law in this area - which dates from
2000 (Adults with Incapacity) and 2003 (Mental Health Act) - with
international human rights laws, and finds that what was once
world-leading, is now increasingly in need of reform.
Colin McKay, chief executive, Mental Welfare Commission,
"In the 15 years since our legislation was developed,
significant changes have taken place in the understanding of how
best the law can respect the rights of people with mental ill
health or incapacity.
"The numbers of people subject to detention and
guardianship has risen substantially, putting the safeguards in the
law under pressure.
"The Government has committed to reviewing aspects of incapacity
law. We welcome this, but believe it needs to be part of a
comprehensive reform programme, reflecting a principled and human
rights based approach."
Attendees at the sessions, which were chaired by Professor
Genevra Richardson from King's College, London, discussed current
thinking about non-consensual care and treatment, and the legal
basis for intervention.
They considered changes that have taken place in in the UK,
notably in Northern Ireland, and internationally, since Scotland's
legislation was introduced over 15 years ago.
They sought the views of people with personal experience of
being subject to these laws in Scotland, and of their families and
Three specific areas for change are:
- New forms of guardianship, which should provide a more
flexible, proportionate and rights-respecting way to make decisions
about money, care and welfare, for people who cannot take those
decisions themselves. This suggestion is being considered by the
- The possibility of unified legislation, replacing Scotland's
two, separate mental health and incapacity laws with completely
new, non-discriminatory legislation for making decisions about
welfare and treatment where an adult is unable to do so unaided;
- The issue of compulsion in care and treatment - particularly
how far decision making capacity should be central to decisions on
compulsory treatment, whether or not the person has mental
Professor Jill Stavert, Director of the Centre for Mental Health
and Capacity Law and Business School Director of Research,
Edinburgh Napier University, said:
"Creating this report involved a thorough comparison of
Scotland's mental health and incapacity legislation with current
international human rights laws.
"Contributors agreed that while there is much to be proud of in
our law and practice, it needs updating. The UN Convention in the
Rights of Persons with Disabilities requires us to do more to
support people to take decisions for themselves, even if they have
a mental illness, dementia or intellectual disability, and to give
effect to those decisions. Developing good quality legislation
takes time, so we are calling on the government to commit to
starting the process of replacing our mental health and incapacity
legal framework with new legislation, that will ensure our approach
to the care and treatment of people with mental health and capacity
issues remains appropriate for the 21st century and
current international human rights standards."
The full report is available here.
Note to editors
- The report calls for reform of Scotland's Mental Health Act,
which dates from 2003, and Scotland's Adults with Incapacity Act,
dating from 2000.
- Thirty-one people attended the sessions, which took place in
November and December 2016.
- The Scottish Government set out in their Mental Health Strategy
2017-2027 that they will reform aspects of Adults with Incapacity
legislation, taking account of the UN Convention on the Rights of
Persons with Disabilities.
Mary Mowat: 0131 313 8786