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Welcome for proposed review of Scots mental health legislation

20 March 2019

Rights and protections under Scots law for people with mental health conditions are to be reviewed by an independent group, the Scottish Government has announced.

The review will also aim to remove barriers to those caring for their health and welfare, examining developments in mental health law and practice on compulsory detention and on care and treatment since the current legislation, the Mental Health (Care and Treatment) (Scotland) Act 2003, came into force in 2005.

It will be asked to make recommendations that reflect people’s social, economic and cultural rights as part of its consideration of the future shape of incapacity, mental health and adult support and protection legislation.

The review follows on from work already underway to review incapacity law and practice, and a review of learning disability and autism.

Minister for Mental Health Clare Haughey told the Parliament on announcing the review: "To date, work on a review of adults with incapacity legislation and practice has not yet considered in any detail matters relating to the crossover between adults with incapacity legislation and mental health legislation, how those laws converge, the definition of mental disorder or its use as the gateway to intervention under the two bodies of legislation. Those matters could not be considered in isolation from wider mental health legislation. The wider review that I am announcing today gives us the opportunity to consider all these matters together."

She added: "I want to be clear that the work will be stakeholder driven and evidence led. We want to gather views from as wide a range of people as possible. I am determined to ensure that, throughout the process, the views of patients, those with lived experience and those who care for them are front and centre of the work, so that they can help to shape the future direction of our legislation. We need to work together in partnership to address issues that affect the lives of those with incapacity and mental disorder."

The chair of the review will be announced shortly. 

News of the review was welcomed by the Scottish Human Rights Commission. Judith Robertson, chair of the Commission, commented: "People's rights are affected by mental health laws in many ways, including whether they can exercise choice and control over their own care and treatment, how their liberty is affected and their rights to health.

"The Commission has called for a comprehensive review of mental health legislation for some time. We have expressed concerns about whether current legislation is effective at protecting and promoting the rights of those who need support with their mental health.

"We therefore welcome this review as an important opportunity to ensure that any new mental health legislation contains the right safeguards and provisions to protect people's rights as fully as possible."

Ms Robertson emphasised: "We particularly welcome that the review will focus on improving compliance with the full range of people's rights, including the UN Disability Convention and the European Convention on Human Rights. Importantly, it will also consider the role of incapacity legislation which presents similar challenges in realising people's human rights."

Solicitor Adrian Ward, an expert on mental health and incapacity law, also welcomed the review, as there were "troublesome" differences between the respective legal regimes mental health and incapacity, and the question of which regime applied in a particular case could be difficult; and because Scots law, initially world leading in the field, had since fallen behind what was needed to comply woith modern human rights standards.

However he added: "The time to update practice so as to comply as far as possible with human rights requirements is now, regardless of the progress of law reform. Indeed, law reform when it does arrive will only be effective if supported by clear existing standards of best practice. It is my hope that Government will encourage and facilitate training and other efforts to drive the adoption of modern best practice by all relevant professions and service providers now, in advance of law reform. Delay in law reform provides a space in which to tackle the deficits in practice under current legislation"

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