Review calls for major overhaul of Scotland's mental health laws
- Published
Scotland's mental health laws should be overhauled to strengthen the voice of patients and place a greater focus on their human rights, a new report said.
The independent review, led by John Scott KC,, external examined current legislation that is almost 20 years old and made more than 200 recommendations.
The Mental Welfare Commission described the review as a "major opportunity" for change.
The Scottish government said it would take time to consider the report.
The review was announced in March 2019 as mental health care in Scotland is currently underpinned by laws which date back to 2003.
It followed a petition at Holyrood highlighting developments both in care and treatment and international human rights law.
Prof Colin McKay, who was an executive member of the review, said the law needed to be strengthened in three main areas.
He told BBC Scotland the first of those was giving a "stronger voice" to patients or people who use mental health services.
This includes those with a learning disability or who have conditions such as dementia.
Prof Colin McKay was an executive member of the review,
Prof McKay, of Edinburgh Napier University, said: "They need more say in their care and treatment and in what happens to them."
He said the second main area was reducing what are known as restrictive or coercive practices, such as the use of restraint and seclusion.
The expert said this would also apply to the treatment of care home residents whose rights, especially during the Covid pandemic, "weren't fully respected".
Prof McKay said: "The third big change we are hoping to bring about is the idea of positive rights.
"So it's not just the idea not to be harmed by your mental health care, but your actual rights to the maximum attainable health, the right to independent living.
"Give those rights some reality and the ability to actually take action to realise your rights, so that services actually give you what you need to live a meaningful life."
'Distressing stories'
He added that while there were some good services, the review heard "distressing stories" from people who experienced a mental health crisis but were unable to access the support they needed.
Prof McKay said: "When the laws changed in 2003 we were probably in the forefront of rights respecting mental health law.
"If we want to maintain that position, if we want to be seen as a beacon, as an exemplar of human rights, we need to change again."
The review also found there was an urgent need to reform services for children and young people experiencing acute mental distress.
And it heard unpaid carers are often not appropriately involved in the care and treatment of their loved ones.
It features a range of short and medium-term recommendations but its key long-term recommendation is a single law to cover the human rights of people with mental or intellectual disabilities.
'Changing culture, language and communication'
Analysis by Claire McAllister, BBC Scotland health producer
This review of mental health law has been three years in the making. At more than 900 pages long, it is certainly thorough and it will take years before much of it can become new legislation.
It's not a straightforward piece of work because when looking at the best way to treat someone, it comes down to that individual. There are no one-size-fits-all policies that can be applied.
Some of this review is more about changing the culture, language and communication. There are aspirations to concentrate less on how to limit the patient's autonomy and focus more on their rights.
The review team wanted some things to change sooner rather than later. So there are recommendations for the Scottish government to take action where a change of law isn't needed. It includes reducing the use of restraints and bolstering the patient's voice by improving advocacy.
It's going to take more funding and staff to make this reality.
Review chair John Scott KC said the report would bring Scotland into line with thinking and practice internationally
But while he acknowledged it would take some time to fully implement the recommendations Mr Scott said addressing stigma and culture change could "begin at once".
He added: "Some recommendations will depend on greater resources and an increase in the number of mental health practitioners.
"Co-ordination will be required within government to address some areas that cut across different departments.
"This will not be easy but is consistent with the developing picture in Scotland of human rights for everyone which should be clarified in the Scottish government's forthcoming Human Rights Bill.'
'Major opportunity'
The review team's 954-page report includes proposals to give the Mental Welfare Commission more powers and responsibilities.
Chief executive Julie Paterson, said: "We welcome today's report and agree that Scotland's mental health and capacity laws need to be updated to focus much more on the individual and their rights."
She added that the commission was increasingly concerned about the capacity and ability of health and social care services to provide the care and treatment that is needed.
Ms Paterson said: "If we can assist this work by doing more to support and challenge services, and in so doing improve the legal and delivery landscape for people with mental ill health, we will do it.
"This review report is a major opportunity to get it right for the future."
Mental Wellbeing Minister Kevin Stewart said: "The Scottish Mental Health Law Review was tasked with reviewing our mental health and incapacity legislation in light of developments in international human rights, including the UN Convention on the Rights of Persons with Disabilities, and to consider where improvements could be made.
"Given the range and complexity of the review we will take time to carefully consider the recommendations and also look to progress those areas which are able to be incorporated into our existing improvement and reform work.
"In addition there will be a need to consider the sequence of those requiring legislative change."
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- Published19 March 2019
