The Mental Welfare Commission for Scotland has published a visit and monitoring report on people on people with learning disabilities in hospital in Scotland. It notes some improvements since its last report in 2011 such as, for example, fewer people with learning disabilities being in hospital units. It does, however, highlight with concern the fact that almost 32%20 of patients in hospital units for persons with learning disabilities who have been identified as being ready for discharge face delays of months, or even years, for such discharge. The reasons for this may be complex but the fact remains that it raises questions of compatibility with ECHR, notably Article 5 (the right to liberty) and 8 (the right to respect for private an family life), and UNCRPD rights as well as whether the principles of the Adults with Incapacity (Scotland) Act 2000 and/or Mental Health (Care and Treatment)(Scotland) Act 2003 are being implemented.
It should also be noted that during the passage of what became the Mental Health (Scotland) Act 2015 through the Scottish Parliament the Scottish Government confirmed that it will conduct a review – originally recommended in the Millan Report21 and reiterated in the McManus Review Report22 - of whether or not persons with learning disabilities should continue to be included within the definition of ‘mental disorder’ in the Mental Health (Care and Treatment)(Scotland) Act 2003.