- Consultation and proposals for a Mental Health (Scotland) Bill
In December 2013, the Scottish Government published a consultation paper inviting comment on proposed amendments to the Mental Health (Care and Treatment)(Scotland) Act 2003 and to the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”). It closed on 25th March 2014.
The consultation addresses some of the McManus Review recommendations12 as well as other matters raised by service users and practitioners in response to the Scottish Government’s own consultation on such recommendations.13 It also proposes the introduction of a notification scheme for victims of mentally disordered offenders following consultation on this particular issue.14
a. Mental Health (Care and Treatment)(Scotland) Act 2003 (“the 2003 Act”)
The 2003 Act governs the compulsory care and treatment of persons with mental disorder. It is designed to operate in an environment that supports the right to the highest attainable
standard of physical and mental health and the recovery and rehabilitation of individuals with mental disorder15. Various principles, therefore, that reflect European Convention on Human Rights (ECHR) and other international human rights standards underpin its provisions and implementation. Indeed, any legislation of the Scottish Parliament and its implementation must be compatible with ECHR rights and those identified in other international human rights treaties such as the UN Convention on the Rights of Persons with Disabilities (CRPD).16
The Act directs that anyone exercising functions under it must consider a number of factors. These include having regard to the range of available options, patient participation, the least restrictive option, whether the intervention will be of maximum benefit to the individual and non- discrimination17. Additionally, the patient’s wishes, background and circumstances and the views of named persons, carers, guardians and attorneys must be taken into account as well as encouraging patient participation.18 For children or young persons under 18 years of age any functions must also be discharged in a “manner that best secures the welfare of the patient.”19 Moreover, and importantly, the presence of mental disorder alone is insufficient justification for compulsory treatment to be ordered by the
Mental Health Tribunal under the Act. Issues of treatability, risk, the existence of significantly impaired decision making ability owing to mental disorder, and the necessity for such involuntary treatment, must also be considered.20
The Act also provides for the patient, their named person, primary carer and welfare attorney, amongst others, also have the right to make oral or written representations and to lead or produce evidence before the Mental Health Tribunal.21
Further, short-term and emergency detention is time-limited and it is possible to appeal short-term detention certificates and compulsory measures. Compulsory measures are also subject to periodic review.
The amendments proposed by the Draft Bill must therefore be assessed in light of their compatibility with the Act’s principles and with European and international human rights standards. Articles 3 (freedom from torture and inhuman or degrading treatment or punishment) 5 (liberty), 6 (fair trial), 8 (privacy and family life, or autonomy) and 14 (non-discrimination) ECHR and the corresponding rights identified in the CRPD.22
It should also noted that at present the outcome, and its implications, of the recent consultation by the UN Committee on the Rights of Persons with
Disabilities on its Draft General Comment on Article 12 CRPD (the right to equal treatment before the law)23 is unclear. However, it is probably safe to assume that, at the very least, it will result in a reinforcing of patient autonomy in treatment situations.
- Draft Bill proposals
Several proposals in the draft Bill are merely to remedy inconsistencies in the original legislation and are reasonable and logical. However, some other proposals are more worthy of comment from a mental capacity perspective. The following will briefly highlight these although it will not provide an in depth analysis of the law or human rights involved. A more detailed description of the draft Bill’s proposals can, of course, be found in the consultation paper and draft Bill.
- Advance Statements
Where a valid and subsisting advance statement relating to psychiatric care and treatment exists and the maker’s ability to make informed decisions about treatment for their mental disorder is “significantly impaired” because of that disorder, then both the Mental Health Tribunal for Scotland24 and persons giving medical treatment authorised under the 2003 Act or 1995 Act25 are obliged to “have regard to the wishes specified in
- UN Committee on the Rights of Persons with Disabilities Draft General Comment on Article 12 of the Convention – Equal Recognition before the Law (Adopted by the Committee at its tenth session (2-13 September 2013) (accessed 7 March 2014). In essence, the Draft General Comment interprets Article 12 CRPD in such a way that legal capacity cannot be denied on the basis of disability (as this would constitute discrimination), that decision-making be supported not substituted (and the removal, therefore, of guardianship) and the abolition of laws providing for the compulsory treatment of mental disorder. 24 s276. 25 s276(3). the statement.” Such regard must also be had in connection with treatments requiring second opinions.26 The 2003 Act requires that reasons for disregarding the wishes expressed in such statements are recorded.27
The draft Bill obliges Health Boards to place a copy of any advance statements received in the patient’s medical records and to send a copy to the Mental Welfare Commission. It also requires that the Mental Welfare Commission maintains a central register of advance statements, such register being accessible by the maker and anyone acting on their behalf. It is also accessible, in the course of treatment of the person, by their mental health officer, responsible medical officer and the relevant health board, and by the Mental Health Tribunal in connection with proceedings before it.
Comments on draft Proposals
These proposed amendments are to be welcomed. Psychiatric advance statements are an important expression of individual autonomy even in compulsory treatment situations where a patient’s autonomy must be respected insofar as it is possible.
Advance statements also arguably provide an indication of whether a patient would consent to a particular measure which is integral in assessing whether a deprivation of liberty engaging Article 5 ECHR has occurred or they have been subject to inhuman or degrading treatment (Article 3 ECHR).28 Moreover, they are an important element of supported decision making advocated the UN Committee on the Rights of Persons with Disabilities (see above).
The problem is, however, that few advance statements are actually made. This is due to several factors but often owing to a lack of awareness or patient belief that they are ineffective.29 General information and awareness- raising is obviously of use here but the placing of a statutory duty on specified medical staff to discuss the making of advance statements and explain their effectiveness as part of after-care plans would certainly be beneficial.
- Named Persons
Named persons tend to be relatives, carers or someone close to the patient and therefore possess valuable information about a patient that will assist in the tailoring of their care and treatment plans. As with advance statements, where a patient nominates a named person this is an expression of autonomy and fits well with the supported decision-making model.
At present, a patient may nominate or prevent someone from being their named person.30 Where there is no named person, the Mental Health Tribunal may appoint one and may also remove a person as named person if it is satisfied that is not appropriate that they act or replace them.31
The draft Bill provides that a person aged 16 years or older will be able to make a written and witnessed declaration that they do not wish to have a named person appointed. It also provides that anyone nominated as a named person must give written consent to acting as such.
Comments on draft proposals
The proposed amendments to the 2003 Act seem to be reasonable but certain issues warrant further consideration.
Firstly, the Act currently contains no definition of “named person”. There is a lack of understanding by many service users, named persons and even by professionals about the precise role of named persons.32 It would therefore be useful if a definition of “named person” were included in the draft Bill.
Secondly, the Bill does not remove the default provision permitting the Mental Health Tribunal to appoint a named person where one has not been appointed.33 This requires closer scrutiny. On the one hand, such a provision may in some circumstances provide a protective safeguard of the patient’s interests. On the other, in these particular circumstances the named person is not being appointed with the patient’s consent and this is a restriction of their right to autonomy (Article 8(1) ECHR) which would be difficult to justify under Article 8(2).
Finally, the draft Bill provides for the removal of the current automatic right of a named person to
be involved in Tribunal proceedings and a requirement that leave must be applied for to be involved. The consultation document is unclear about how the Tribunal’s discretion will be exercised in these circumstances (although this will subsequently be dealt with, it would appear, in secondary legislation). Refusal to permit a named person to automatically be included in proceedings to represent the patient’s interests, where that person has been nominated by the patient, is contrary to the exercise of the patient’s right to autonomy. It removes an important additional patient safeguard which, again, is difficult to justify under Article 8(2).
- Removal of requirement for a second medical report in Compulsory Treatment Order (CTO) applications
The proposed amendments provide for only one report, from the approved medical practitioner, to accompany the application. However, the patient or the Mental Health Tribunal may request that a second independent report is obtained.
Comment on draft proposals
The consultation paper justifies this amendment on the basis of concern about the involvement of GPs, a perceived lack of independence between the two reports and of conflicts of interest34. This is at odds with the McManus Report35 which indicated widespread support for the involvement of primary care in long term compulsory treatment36 and little support for CTOs being accompanied by a single medical report. The
consultation paper does not mention resourcing issues as justification for this amendment but the McManus Report did state that a lack of availability of GPs should not be justification for preventing them from providing such report.37
Given the implications for a person who is subject to a CTO application, particularly in terms of restriction of an individual’s autonomy and liberty, this clearly of concern. It is therefore hoped that the Scottish Government will not pursue this amendment when the Bill is introduced into the Scottish Parliament.
- Nurse’s holding power under s299, 2003 Act The draft Bill contains a proposal to extend the
maximum period for a nurse’s holding power38
from two to three hours although the consultation document gives no reason for this. Given the implications this has for a patient in terms of their liberty and autonomy, and the inability of a patient to challenge this, it is essential that any proposal of this nature is specifically explained and justified before its acceptability is properly determined.
- Mental Health Tribunal: timescales for referrals and disposals
The draft Bill proposes an amendment that the Tribunal “must do its utmost” to comply with timescales within which it must deal with various disposal. Where such timescales are not met, the Tribunal must record the failure and the reason why.39
Comment on draft proposal
The Tribunal will be well aware of its obligations under Articles 5(4) and 6 ECHR. However, given
the significance of the matters to be considered, the requirement on the Tribunal should be imperative.
- Victim Notification Scheme
As mentioned at the outset, the draft Bill provides for the introduction of a notification scheme for victims of mentally disordered offenders.
It should be noted that it would be discriminatory for mentally disordered offenders to be treated differently to other offenders in this respect under Article 14 ECHR in conjunction with Article 8 ECHR and taking into account of Articles 3(b), 4(1)(b) and 5 CRPD. The provisions must not, therefore, go beyond that which would apply to other offenders.
It is also proposed that the right to receive information will be extended to receive information about offenders subject to compulsion orders. Offenders subject to compulsion order have often committed only minor offences. To allow the proposed notification in such cases may therefore be an unnecessary and disproportionate limitation of their right to private and family life which may be difficult to justify (under Articles 8 and 14 ECHR).
- Increased responsibilities for Mental Health Officers (MHOs)
The draft Bill contains several provisions what will increase the workload for MHOs, for example, in connection with extending a CTO and being consulted in connection with a proposed Treatment Transfer Directions to name but two. Local authorities will need to ensure that adequate resourcing is made available if this is to work effectively. MHPs are already stretched in terms of their duties under the 2003 Act. However, human rights recognition and protection must not be compromised by inadequate resourcing. This is reinforced by state duties in the ECHR and other international treaties identifying civil and political rights and by the human rights observance duties imposed on the Scottish Parliament and Scottish Government in the Scotland Act. It was also fully recognised in the Millan Report.40
- Additional Matters
The introduction of the Bill into the Scottish Parliament also provides a useful opportunity to attend to other matters that have come to light since the enactment of the 2003 Act.
- s268, 2003 Act – detention in conditions of excessive security in non-state hospitals
Following the 2012 Supreme Court ruling in RM v The Scottish Ministers,41 the Scottish Government, via consultation, sought views on appeals against excessive security for psychiatric patients in non- state hospitals.42 An analysis of the responses was published in December 2013.43 The necessary regulations or legislative changes now need to be effected to ensure that this right can be effectively exercised given that individuals detained in conditions of excessive security engages Article 8 ECHR and, potentially, even Article 3 (with corresponding Articles 17, 22 and 15 CRPD).
- The use of covert medication and restraint
At present, there is little reference to the use of force, restraint or covert medication in the 2003 Act’s Code of Practice. Given the potential for Articles 2, 3, 5 and 8 ECHR to be engaged in such situations, and taking in account the aforementioned comments on Article 12 CRPD, clearer direction and guidance is required in the legislation itself and its supporting Code of Practice. For further discussion of this issue see Covert medication: Scottish legislation, human rights and the Mental Welfare Commission for S co tland ’s upd at ed guid anc e in the February 2014 issue of this newsletter.
- Deaths of psychiatric patients
It is questionable whether the investigative framework relating to deaths of psychiatric patients in Scotland is fully compliant with Article
2.44 This was partially explored in the 2009 Report
of Findings of Review of Fatal Accident Inquiry Legislation45 and subsequently brought into sharper relief by the Savage and Rabonne rulings46 and the Mental Welfare Commission for Scotland’s recent monitoring report Death in detention monitoring that reinforces this need.47 The necessary legislative changes and any
outstanding procedural measures must be made in order to give full effect to the requirements of Article 2.
- Incompatibility between s242 of the 2003 Act and the Adults with Incapacity (Scotland) Act 2000: Ability of substituted decision-makers to consent to treatment under the 2003 Act
Essentially, s.50 of the 2000 Act permits substituted decision-makers (welfare attorneys and guardians) to consent to medical treatment on behalf of an adult with incapacity. However, where such an adult falls to be treated for mental disorder under the 2003 Acts, s242 (relating to treatment for mental disorder other than that requiring special safeguards) it is unclear as to whether such consent is permitted. For a more detailed discussion of the issues involved see Substituted decision makers and the interaction between the Adults with Incapacity (Scotland) Act 2000 and Mental Health (Care and Treatment) (Scotland) Act 2003 in the February 2014 issue of this newsletter.
A full consideration of any areas of incompatibility between the two Acts may be more productive following the forthcoming Scottish Law Commission report on adults with incapacity and deprivation of liberty. However, clarification on this particular issue, in the 2003 Act, would be useful now.
- Independent advocacy
The McManus Review Report reaffirmed the importance of independent advocacy for persons with mental health issues and noted the inadequacy of its provision across Scotland48 making several recommendations to reinforce the right to independent advocacy.49 It is therefore disappointing that no provision is made in the draft Bill to strengthen the duty to provide for such advocacy so that the right to independent advocacy can be fully realised by those who are entitled to it under the 2003 Act.
The 2003 Act has been internationally regarded as an example of good practice in terms of patient- centred and human rights compatible legislation. However, this is not an excuse for complacency and it must be kept under review in light of developments in European and international human rights law and practice. It is therefore hoped that the Bill that will be eventually introduced into the Scottish Parliament will take these and the Act’s principles fully into account.