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Chapter Two Policy and Legal Context
Policy Context
The concept of healthy public policy, introduced in the Ottawa Charter, ( WHO, 1986) maintains that to realise the twin goals of improving population health and reducing health inequality requires action across policy domains. This implies 'directing [policy makers] to be aware of the health consequences of their decisions and to accept their responsibilities for health (Ottawa Charter, p.2, WHO, 1986). Adapting this concept, to achieve mentally healthy public policy implies mainstreaming responsibility for mental health improvement and redressing mental health inequalities across health services (including physical health care) and into other non-health domains.
To understand this within the current policy climate in Scotland it is useful to think of a layering of interlinked and mutually reinforcing policies.
At a 'global' level overarching policies establish the broader anti-poverty, social justice and inequalities policy agenda. In Scotland this is articulated through the Social Justice strategy which aims to reduce the causes of poverty and sources of injustice, 'by improving public services for all, by tackling the social, educational and economic barriers that create inequality and by working to end poverty' (Scottish Executive, 2002b, p.5). As part of this agenda a Cabinet Delivery Group on Closing the Opportunity Gap has agreed a high level objective to reducing the health gap between the most affluent and the most deprived communities.
Equal opportunities legislation remains a power reserved to the UK Parliament. Under the Scotland Act 1998, however the Scottish parliament has the power to encourage equal opportunities, and to place duties on Scottish and cross-border public bodies to have due regard to equal opportunities legislation in their work in devolved areas. The equalities strategy, published in 2000 sets out the Executive's aims for encouraging equal opportunities (Scottish Executive, 2000a).
The next 'layer' of policies are those relating to specific areas which individually, jointly and cumulatively contribute to these overarching objectives for example, components of policies relating to community regeneration, housing, education, children/young people, employment, transport and health.
At the third level are activities within specific policy domains. In the area of health policy there are two potential routes for contributing to social justice goals: via health care and services and through programmes for health improvement. Policies for health improvement specifically include the aim of reducing health inequalities including mental health inequalities (Scottish Executive, 2003a). In 2004 A Joint Ministerial Steering Group on Health Improvement and Inequalities was established between Scottish Ministers and COSLA's political leaders, to provide political input engagement and strategic leadership to promote health improvement and tackle health inequalities.
As described in Chapter 1 above, the catalyst for mental health improvement in Scotland is the National Programme for Improving Mental Health and Well-Being.
Linking the different policy domains is a strategy such as Healthy Working Lives (Scottish Executive, 2004b). This seeks to improve health and reduce health inequalities through workplace policies on health and safety, and strategies for enhancing the employability of people who, for health reasons may be at risk of losing their work,
or find it difficult to return to employment.
Vehicles for achieving cross-cutting objectives, including health improvement and reducing health inequalities, include Community Planning and Community Health Partnerships ( CHPs).
Community Planning is intended to promote joined up working between organisations
in order to develop a shared strategic vision for a geographical community, providing enhanced opportunities for community participation and encouraging more integrated service delivery across organisational boundaries (Scottish Executive, 2004c).
Through community planning structures health boards, local authorities and their partners in the community and voluntary sector are expected to work jointly to develop proposals to improve the health and well-being of the local community.
Separate from, but linking in with Community Planning processes, the roles of CHPs include improving local population health and providing accessible and integrated services to local communities (Scottish Executive, 2004d). In relation to mental health services CHPs are seen as having a key role in achieving the objectives and outcomes of current national mental health policy programmes. CHPs will be required to promote the mental health and well-being of their local populations and the physical health of those with mental health problems and their carers (Scottish Executive, 2004e).
Legal Context
The legal frameworks supporting equalities and outlawing discrimination or abuses of human rights comprise:
- Legislation intended to protect civil and political rights, such as the Human Rights Act 1998. This enshrines the principles of the European Convention of Human Rights within UK law.
- Equalities and anti-discrimination legislation such as the Sex Discrimination Act 1978, Race Relations Act 1976 and Race Relations Amendment Act 2000 and Disability Discrimination Act 1995.
- Legislation intended to protect the rights of vulnerable people such as the Mental Health (Scotland) Act 1984, its successor, the Mental Health (Care and Treatment) (Scotland) Act 2003 and the Adults with Incapacity (Scotland) Act 2000.
- Legislation intended to promote the well being of citizens, for example the Local Government in Scotland Act 2003.
European Convention on Human Rights ( ECHR) the Human Rights Act 1998 and the Scotland Act 1998
The ECHR is a series of civil and political rights intended to protect the individual against abuse of power by the state. The Human Rights Act 1998 incorporates into UK law many of the provisions, or 'convention rights' of the ECHR. All public authorities must comply with the rights and standards set out in the Human Rights Act. Under the Scotland Act 1998 the Scottish Parliament and the Scottish Executive are under a legal duty to comply with the convention rights.
There are 16 convention rights in the Human Rights Act. The convention rights with particular implications for the care and treatment of people with mental disorder include:
- Article 2 - The right to life
- Article 3 - Freedom from torture, inhuman and degrading treatment
- Article 5 - The right to liberty and security of the person
- Article 8 - The right to respect for private and family life, home and correspondence
- Article 14 - Prohibition of discrimination in the enjoyment of convention rights
- Protocol 1, Article 1 - The right to peaceful enjoyment of possessions and protection of property
A guide to human rights for the voluntary sector is currently in preparation by the Scottish Human Rights Trust. Commissioned by the Scottish Executive and due for publication in the next few months this summarises the implications of human rights legislation for people with a mental disorder, people with disabilities, children and young people and in relation to sexual orientation and gender identity.
Equalities and anti-discrimination legislation
Equalities and anti-discrimination legislation encompasses sex, race, disability, sexual orientation, religion and belief. Some pieces of legislation relate specifically to employment and training, others extend to access to goods and services.
The Race Relations Amendment Act 2000 also places a duty on public authorities to promote race equality. A draft Disability Discrimination Bill, published by the UK government in December 2003 includes proposals for a similar duty to be placed on public bodies to promote equality of opportunity for disabled people.
In July 2003 the UK Government consulted on proposals for the implementation of proposals outlawing age discrimination in employment and vocational training ( DTI, 2003). Responses to the consultation are currently being considered with a view to developing new legislation to come into force on 1 October 2006.
Table 2.1 summarises some of the key pieces of UK anti-discrimination legislation.
This draws on a factsheet produced by the Women and Equality Unit ( http://www.womenandequalityunit.gov.uk). Although not included here the information sheet also includes relevant European Treaties and Conventions and International obligations.
Table 2.1 Key pieces of UK anti-discrimination legislation
Legislation/year | Area covered |
|---|
Equal Pay Act 1970 (as amended) | Gives an individual a right to the same contractual pay and benefits as a person of the opposite sex in the same employment where the man and the woman are doing like work; work rated as equivalent; work that is proved to be of equal value. |
Sex Discrimination Act 1975 (as amended) | Prohibits sex discrimination against individuals in the areas of employment, education and the provision of goods, facilities and services and in the disposal or management of premises. |
Sex Discrimination Act (Gender Reassignment) Regulations 1999 | Prevents discrimination against transsexual people on the grounds of sex in pay and treatment in employment and vocational training. |
Race Relations Act 1976 | Makes it unlawful to treat another person less favourably than another on racial grounds. This includes race, colour, nationality (including citizenship) and national or ethnic origin. |
Race Relations (Amendment) Act 2000 | Outlaws direct and indirect discrimination and victimisation in all public authority functions not previously covered by the Race Relations Act. Places a general duty on specified public authorities to promote race equality. |
Race Relations Act 1976 | Implements European Community Article 13 |
(Amendment) Regulations 2003 | Race Directive. The Regulations enhance the Race Relations Act by, for example, amending the definition of indirect discrimination and changing the way in which the burden of proof applies. The Regulations extend protection from discrimination on the grounds of race and ethnic or national origins. These apply in the fields of employment and training, social protection and social advantage, education, the provision of goods, facilities and services and housing. |
Disability Discrimination Act 1995 | Prohibits discrimination against disabled people in the areas of employment, the provision of goods, facilities, services and premises, education; and provides for regulations to be made to improve access to public transport. |
Employment Equality (Sexual Orientation) Regulations 2003 | These regulations outlaw discrimination (direct, indirect, harassment and victimisation) in employment and vocational training on the grounds of sexual orientation. Apply to discrimination of the grounds of sexual orientation to persons of the same sex, the opposite sex, and the same and opposite sex. |
Employment Equality (Religion or Belief) Regulations 2003 | These regulations outlaw discrimination (direct, indirect, harassment and victimisation) in employment and vocational training on the grounds of religion or belief. Apply to discrimination of the grounds of religion, religious belief or similar philosophical belief. |
Source: Women and Equality Unit, Key Anti-Discrimination Legislation and International Obligations, ( http://www.womenandequalityunit.gov.uk)
Protecting and promoting the rights of vulnerable people
The Mental Health (Care and Treatment) Act 2003
The Mental Health (Care and Treatment) Act 2003 specifies the grounds under which someone with a mental disorder can be detained in hospital or given treatment compulsorily. It also builds in safeguards to protect people's rights, including people who are not formally detained. These include the right to independent advocacy, the right to nominate a named person who would be informed, or act on behalf of a patient, the right to make an advance statement and the right of appeal against detention in conditions of excessive security. The system of tribunals and the additional safeguards required before some treatments can be administered provide important structures for protecting rights. 1
The Act also places a duty on local authorities to provide for people with a mental disorder who are not in hospital services to promote their well-being and social development.
Underpinning the Act are 10 principles developed by the Millan Committee set up to review the operation of the Mental Health (Scotland) Act 1984. These include principles of non-discrimination, equality, respect for diversity and reciprocity (Scottish Executive, 2001a).
The Adults with Incapacity (Scotland) Act 2000
The Adults with Incapacity (Scotland) Act 2000 is intended to safeguard the interests of adults who are not able to take some or all decisions for themselves. The Act covers people with dementia, adults with a learning disability, head injury or severe mental illness, and people with severe communication difficulties caused by physical disability. The Act introduces a range of different provisions to enable decision-making in relation to the financial affairs of an adult with incapacity and/or their health and welfare. 2
Local Government in Scotland Act 2003
Under Part 3 of the Local Government in Scotland Act 2003 local authorities have the power to promote or improve the well being of their area and/or the people within their area. Guidance issued in 2004 includes as examples of the possible ways in which this power can be used: improving mental, social and physical health; tackling poverty and deprivation; reducing inequalities and promoting equalities; encouraging participation and community capacity building (Scottish Executive (2004f).
Antisocial Behaviour etc (Scotland) Act 2004
For many of the groups of people described in the following chapters, including people with mental health problems, one source of disadvantage is fear of harm or abuse ( DRC/Capability Scotland, 2004; Mind, 2004). Although not specific to these groups of people one indirect source of protection may come from the Antisocial Behaviour etc. (Scotland) Act 2004. Under this piece of legislation local authorities, together with the relevant Chief Constable, are required to prepare a strategy for dealing with anti-social behaviour in the Council area. The strategy will set out the nature of anti-social behaviour in the area, the services available for preventing and tackling this behaviour, including for victims, and new services required to fill gaps in provision (Scottish Executive, 2004g). For the purposes of the Act, someone who acts or pursues a course of conduct that causes or is likely to cause alarm or distress is engaging in antisocial behaviour (section 143).
Hate Crime Working Group
In England recent amendments to the Criminal Justice Act 2003 introduced tougher sentences for offences aggravated by hostility towards the victim because of his or her sexual orientation or disability, including mental health ( SEU, 2004). In Scotland an amendment to the Criminal Justice (Scotland) Bill 2003, proposed creating an offence in which crimes aggravated by prejudice against social groups on the basis of age, disability, gender or sexual orientation received a higher sentence or punishment. The amendment was not adopted, but the Scottish Executive set up a Hate Crime Working Group to look at the matter more closely. The Group, which reported in September 2004, included among its recommendations that 'the Scottish Executive should introduce a statutory aggravation as soon as possible for crimes motivated by malice or ill-will towards an individual based on their sexual orientation, transgender identity or disability' (Scottish Executive, 2004q).
A Commission for Equalities and Human Rights
Following separate exercises in Scotland on proposals for a Scottish Human Rights Commission (Scottish Executive, 2003c) and across Great Britain on a new Commission for Equality and Human Rights ( CEHR) ( DTI, 2001; DTI, 2002), in May 2004, the Department of Trade and Industry published the white paper Fairness for All: A New Commission for Equality and Human Rights (Cm 6185). This set out proposals for a single Commission bringing together the work of the three existing equality commissions: the Commission for Racial Equality, the Equal Opportunities Commission and the Disability Rights Commission, and taking responsibility for promoting human rights. It is envisaged that the core functions of the CEHR would comprise:
- Encouraging awareness and good practice in equalities and diversity.
- Promoting equality of opportunity.
- Working towards eliminating unlawful discrimination and harassment.
- Promoting awareness and understanding of human rights.
- Promoting good relations among different communities and between these communities and wider society.
The Commission would have a GB-wide remit but it is anticipated that a Scottish Commissioner and Committee will be established to plan and oversee the CEHR's work in Scotland. The Scottish Human Rights Commission would also have responsibility for human rights in relation to devolved matters (Scottish Executive news release, Sec444c/ 12 May 2004).
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