Independent mental health law review seeks early views on scope and engagement

Section: Policy into PracticeType: News Item Date Published: 12th July 2019
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John Scott QC has been appointed by the Scottish Government as the chair of an independent review into Scotland's mental health laws.

The Independent Review is now seeking early views on its scope and engagement work. They have circulated the information below, including four specific questions for feedback. Responses should be sent to (this link will take you away from our website) by 31 July 2019.

Review – Background

The Scottish Government has already begun work to reform incapacity law and practice, as well as a review of learning disability and autism under the mental health act and will shortly also be undertaking work on the adult support and protection act. By announcing this broader review of the mental health act there is now an overarching review of the legislative framework affecting people with mental health issues.

Huge advances have happened in Scotland in the last 70 years in relation to mental health. Science has advanced treatment, social attitudes have changed. Care and treatment has moved into the community and is more rights based and involving of patients and those in their lives.

However, what was once ground breaking original legislation is now increasingly under strain from continuing developments across the world. It is seen as bureaucratic and also by some as cumbersome. There has also been an increasing focus in all areas of public life on the importance of protecting and promoting human rights, and on recognising the rights of people with disabilities. The European Convention on Human Rights and the United Nations Convention on the Rights of Persons with Disabilities have provided the impetus for this increased focus. The Scottish Government is committed to fully implementing these conventions.

Also there is clear crossover between the Adults with Incapacity Act 2000 and the Mental Health (Care and Treatment) (Scotland) Act 2003 with regard to the use of mental disorder as the gateway for interventions under both Acts.

With that in mind then the following issues have been highlighted as areas which require consideration :

Scope and Draft Terms of Reference

  • The overlaps in legislation and practice between the mental health, incapacity and adult support and protection legislation
  • Why there has been an increase in compulsion and the reasons for variation across Scotland.
  • How ‘capacity’ and ‘significantly impaired decision making ability’ is assessed by clinicians and practitioners, across both mental health and incapacity legislation , including the application of the ‘SIDMA’ test.
  • The gateway to compulsion – how far capacity might be an appropriate and universal threshold for compulsory measures, whether or not combined with the presence of mental disorder in both mental health and incapacity legislation.
  • Maximising decision making autonomy whenever non-consensual interventions are being considered, including a focus on supported decision making and the roles of named persons, guardians, nearest relatives, listed initiators, mental health officers, independent advocates and others.

The Scottish Government is clear that the purpose of the review is to consider:

  • The need to improve the rights and protections for persons with mental health issues , including their social , economic and cultural rights and how this might be achieved.
  • Compliance with UNCRPD and the ECHR of mental health, incapacity and adult support and protection legislation.
  • The need for convergence of incapacity, mental health, and adult support and protection legislation.


Review – Scope

1. This current work will not focus on the existing individual provisions of the Mental Health Act but will consider key themes relating to human rights and protections – Does the purpose of the review as listed above fulfill your expectations?

2. What do you understand ‘rights and protections’ to mean?

Review – Engagement

3. What forms of engagement are required to ensure we gather the views of all those who wish to be heard, for example, a formal public consultation will not do this – how can we meet our obligations to engage widely ?

4. How do we encompass the key themes into dialogue so that its meaningful for all ?. For example, not everyone will be aware or be able to comment on developments in mental health law and practice but they are likely to have a view on how it effects people therefore how do we identify relatable workstreams?

Responses should be sent to (this link will take you away from our website) by 31 July 2019.

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