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Mental Health Act Review – Mental Welfare Commission response

Publication date: 29 May, 2020

‘A great opportunity; a chance to re-frame Scotland’s legislation in such a way that the human rights of people with serious mental illness are clearly at the centre.’

The Mental Health Act in Scotland is currently under review, and the Commission has just published its response to the Independent Review of Scottish Mental Health Law consultation.

The Commission has a statutory duty to monitor the use of the Act, and a duty to provide advice on the use of the Act. 

This response is informed by the Commission’s own experience of meeting those duties and responsibilities. It is also informed by people with mental illness and relatives/carers who have shared their experiences with the Commission.

Key points

Key points from the Commission’s response to the consultation include:

  • Scotland’s health and social care systems are substantially different from those that were in place in 2003 when the current Mental Health Act was passed by parliament. The new Act needs to take account of these changes.
  • People are more likely to be treated in the community, rather than in hospital, and the resources, support and care available in the community should be reviewed. We raise specific points in our response for those who are detained under the Act and also for those who are not detained but may need specific care such as children and young people, people with a diagnosis of personality disorder and perinatal mental health services.
  • The number of people being detained under the current Act rises every year. In order to make the right decisions for the future, the review needs to analyse, at an early stage, why this is happening.
  • The lengths of time people are detained, and the safeguards in place when they are detained, should be examined. We find that many detentions run for the maximum length of time allowed by the law, and those lengths of time have not changed for decades. We believe they could be shortened. 
  • The review should take account of developments in international law to ensure we can learn from other nations and should incorporate the UN Convention on the Rights of People with Disabilities.
  • While reviewing the Act is vital, it will only be effective if mental health services are adequately resourced. We ask that resources are considered at all key stages of the review.

From a lived experience and relative/carer’s perspective, issues include:

  • The current Act is clear about professionals’ roles, and detained patients’ rights; it provides safeguards and guidelines. However it does not work for everyone who has mental health issues but who is not subject to the law; those people do not have the protections the Act offers.
  • Resources are scarce, the lack of community support often leaves families trying to support the individual with limited knowledge and resources of their own.
  • Children and Adolescent Mental Health services (CAMHS) are stretched to the limit. While much work is being done in education services related to mental health and well-being, the systems for supporting a young person with a serious mental illness are unwieldy and inefficient, if present at all.
  • GPs sometimes struggle to get help for individuals with mental health issues often because of the lack of resource available to community mental health teams. Better communication between primary and secondary care and more seamless access to assessment would greatly improve the management of these individuals in the community.
  • This legislation is complex, and our response addresses many more issues. We encourage audiences to read it in full and ask us for further clarity or information.

Dr Arun Chopra, medical director, Mental Welfare Commission, said:

“We had been calling for a substantive review of this legislation for some time, and we very much welcome the Review’s aim to improve the rights and protections of people who may be subject to the law when receiving care and treatment.  

“Mental health legislation can restrict and deprive a person of their liberty and can impose treatment that they do not want or cannot consent to. Traditionally one purpose of legislation was to ensure that people who are unwell are treated to restore them to health and reduce any risks that their altered state of health might pose to their safety and that of others. A further purpose was to ensure that when someone is made subject to detention or treatment that they cannot or do not consent to, that there is a mechanism for this detention to be reviewed, and safeguards are in place to ensure that people are treated in accordance with their human rights. 
“Developments in International law would suggest that a Mental Health Act ought to go further and focus on the restoration of other rights that are impinged on by the presence of disability (such as serious mental illness). 

“The Review of Scotland’s Mental Health Act gives us a great opportunity to fully consider those developments, alongside the UN Convention on the Rights of Persons with Disabilities which came into force after our current Act. 

“Scotland’s legislation can be re-framed in such a way that the human rights of people with serious mental illness are clearly are the centre.’

‘While reviewing the Act is vital, it will only be effective if it is adequately resourced. We ask that resources are considered at all key stages of the Review.”

The Commission will be seeking opportunities to discuss and share this response with others over the coming months.

Dr Chopra added: ‘The Commission would like the review to consider how a new Act might give emphasis so that any action taken under Act must be proportionate and that there is a duty of reciprocity to ensure that people who are subject to the Act or who have been, are able to receive the support and services they need for their recovery.'

Listen to Dr Chopra's summary here (4 mins, audio):