Chamber and committees

Scottish Mental Health Law Review submission of 19 October 2021

PE1878/C - Investigate prosecutions under the Mental Health (Care and Treatment) (Scotland) Act 2003

Thank you for your e-mail dated 24th September in which you seek an update on the Scottish Mental Health Law Review, specifically in relation to compulsory detention and care and treatment under the Mental Health (Care and Treatment) (Scotland) Act 2003. Our current position is outlined below:

The principal aim of the Scottish Mental Health Law Review is to improve the rights and protections of persons who may be subject to the existing provisions of mental health, incapacity or adult support and protection legislation as a consequence of having a mental disorder, and remove barriers to those caring for their health and welfare. In doing so the Review is considering patients’ experiences of care and treatment whilst subject to compulsion, why there has been an increase in compulsory detention and treatment and the reasons for variation in compulsory orders across Scotland. The Review has a dedicated group who have been gathering feedback and analysing evidence in order to form recommendations which aims to make improvements in these areas.

Areas that the group have focussed on so far include; the study of the ethical and human rights basis for compulsory measures of care and treatment and the powers that can be authorised under such orders; the reasons behind an increase in the use of compulsory measure, including an analysis of data provided by the Mental Welfare Commission around short term detention certificates and compulsory treatment orders; how well compulsory measures of care and treatment are working at present, making recommendations for improvements in care with consideration of individuals’ experiences of compulsion and detention central to this; involvement in decisions about care and treatment, length of stay, support offered in hospitals, reciprocity, involvement of family members and carers, awareness of rights, research around efficacy of community care and of compulsory treatment orders and consideration of alternatives to compulsory measures of care and treatment.

Cutting across the work of this group are issues of concern raised around issues of accountability. These include the need for an open and accessible complaints system that has the confidence of complainants, consideration of strengthening existing rights to individual and collective advocacy and ensuring regulatory and monitoring bodies have sufficient powers and capacity to ensure that Human Rights are protected, promoted and fulfilled.

The Review is also working within the context of the recommendations made by the National Taskforce for Human Rights Leadership for a new statutory human rights framework for Scotland. These underline the need to ensure that rights holders know and can exercise their rights. They also highlight strengthening access to justice including ensuring adequate, accessible and effective remedies. This includes looking at ways to reduce the burden on the individual to take legal action, especially when the issue facing them is systemic or affects a number of people.