Report on the Review of the Mental Health (Scotland) Act 1984

Executive Summary

FRAMEWORK OF A NEW MENTAL HEALTH ACT

The need for reform

12. There have been major changes in mental health care over the last two decades, which mean that some of the fundamental assumptions of the 1984 Act no longer hold. In addition, changes to the 1984 Act and to other related legislation have meant that the legislation is often confusing in its effect and sometimes anomalous, and there are significant practical problems with its operation. These have led us to conclude that the 1984 Act should be repealed and replaced with a new Act of the Scottish Parliament.

13. The new Mental Health Act, based on clear principles, should clarify and improve the rights of service users and carers, and make it easier for these rights to be used effectively. In particular, it should ensure that care and treatment are provided, wherever possible, without resort to compulsion.

The scope of a new Mental Health Act

14. Mental health legislation needs to provide principally for those circumstances where compulsory measures of care and treatment for mental disorder are necessary, including provisions for offenders with mental disorders. Provision should however continue to be made for other matters dealt with in the 1984 Act, particularly rights to aftercare and other local authority services, and protection from abuse.

15. The Adults with Incapacity (Scotland) Act 2000 replaces parts of the 1984 Act
with new provisions, particularly in relation to guardianship and the
management of patients' funds. The new Mental Health Act and the Adults with Incapacity (Scotland) Act 2000 should, in due course, be consolidated into a single Act.

Principles of the new Act

16. The Mental Health Act should contain a Statement of Principles. Interventions under the Act and the guidance in the Code of Practice should have regard to these Principles. The Principles should be:

(i) Non discrimination - People with mental disorder should whenever possible retain the same rights and entitlements as those with other health needs.

(ii) Equality - All powers under the Act should be exercised without any direct or indirect discrimination on the grounds of physical disability, age, gender, sexual orientation, language, religion or national or ethnic or social origin.

(iii) Respect for Diversity - Service users should receive care, treatment and support in a manner that accords respect for their individual qualities, abilities and diverse backgrounds and properly takes into account their age, gender, sexual orientation, ethnic group and social, cultural and religious background.

(iv) Reciprocity - Where society imposes an obligation on an individual to comply with a programme of treatment of care, it should impose a parallel obligation on the health and social care authorities to provide safe and appropriate services, including ongoing care following discharge from compulsion.

(v) Informal Care - Wherever possible, care, treatment and support should be provided to people with mental disorder without recourse to compulsion.

(vi) Participation - Service users should be fully involved, to the extent permitted by their individual capacity, in all aspects of their assessment, care, treatment and support. Account should be taken of their past and present wishes, so far as they can be ascertained. Service users should be provided with all the information and support necessary to enable them to participate fully. All such information should be provided in a way which renders it most likely to be understood.

(vii) Respect for carers - Those who provide care to service users on an informal basis should receive respect for their role and experience, receive appropriate information and advice, and have their views and needs taken into account.

(viii) Least restrictive alternative - Service users should be provided with any necessary care, treatment and support both in the least invasive manner and in the least restrictive manner and environment compatible with the delivery of safe and effective care, taking account where appropriate of the safety of others.

(ix) Benefit - Any intervention under the Act should be likely to produce for the service user a benefit that cannot reasonably be achieved other than by the intervention.

(x) Child welfare - The welfare of a child with mental disorder should be paramount in any interventions imposed on the child under the Act.

Who would be covered by the new Act

17. It is desirable to have a broad term which would specify when the Act might apply. The basis for the application of the Act should be the presence of 'mental disorder'. The responsibilities of the Mental Welfare Commission, and the duties of local authorities and the NHS under the Act, should apply to people with mental disorders and, where appropriate, their carers and families.

18. It should only be possible for a person to be subject to compulsory measures of care under the Act where that person has a mental disorder.

19. The general term, 'mental disorder', should be divided into three categories: mental illness, learning disability and personality disorder. The legislation should not seek to define 'mental disorder' or these categories, but guidance should be given as to their application in the Code of Practice. For the avoidance of doubt, some conditions whose inclusion within these categories may be questioned are discussed further.

Mental illness

20. The term 'mental illness' is intended to cover psychotic disorders such as schizophrenia, but also non-psychotic conditions such as disorders of mood, severe obsessive compulsive disorder and anorexia nervosa. It would also cover dementia and acquired brain injury with associated mental symptoms.

Learning disability

21. The term 'learning disability' is intended to include people with autistic spectrum disorders and would replace the terms 'mental handicap', 'mental impairment', and 'severe mental impairment', currently in the 1984 Act.

22. There are strong arguments for making separate legislative provision for people with learning disabilities. People with learning disabilities have different needs from people with mental illnesses, and many people feel that the 1984 Act does not reflect these differences adequately.

23. However, it would be premature to remove the category of learning disability from mental health legislation at this stage. To do so might result in some people with learning disabilities being denied necessary and appropriate care and support. A comprehensive and expert review should take place at an early date to review the position of learning disability within mental health legislation.

Personality disorder

24. There are different views about the inclusion of personality disorder within the Mental Health Act. However, it is accepted that many people with personality disorders require mental health services, and so the duties and responsibilities provided for in the Act should extend to this group.

25. The question of whether it should be possible to be subject to compulsory measures of care on the basis of a diagnosis of personality disorder is more difficult. In recent years, very few people have been detained under the category in the 1984 Act most relevant to personality disorder. The view of psychiatrists is generally that, insofar as personality disorders can be treated successfully, this can only be done with the co-operation of the patient.

26. However, the distinction between personality disorder and mental illness is not always clear-cut in an individual case. Where mental disorder is present, the question of possible compulsion should be determined on the basis of the grounds for compulsion set out below, rather than the particular form of the disorder. It should therefore be possible for a person with a primary diagnosis of personality disorder to be subject to compulsory measures, but it is anticipated that such situations will arise infrequently.

Exclusions

27. The definition of mental disorder should specifically prevent people being included within the definition by reason only of sexual orientation or behaviour, alcohol or substance misuse, anti-social behaviour, or 'acting as no prudent person would act'.

Change of category of disorder

28. Where, on renewal of long term compulsion, the diagnosis of a person changes from one of the categories of mental disorder to another, there should be a review of the case by a mental health tribunal.

The information contained on this WWW site is Crown Copyright but may be reproduced without formal permission or charge for personal or in-house use. © 1997-2001. For general enquiries about this section email mentalhealthlawmailbox@scotland.gsi.gov.uk