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

Executive Summary

RIGHTS OF USERS AND CARERS

Rights of informal patients

92. Some service users feel under pressure to accept admission to hospital, or treatment, for fear of detention if they do not comply. This can lead to patients effectively being compelled to accept treatment, without the protections afforded by the Act. The Mental Welfare Commission should issue guidance on best practice in relation to the use of compulsory measures of care and treatment when patients are reluctant to accept treatment on a voluntary basis.

93. The Adults with Incapacity (Scotland) Act 2000 will improve the safeguards for service users who are not able to make a fully autonomous decision about their treatment, and overlaps in some respects with mental health law. The Codes of Practice for the new Mental Health Act and the Adults with Incapacity (Scotland) Act 2000 should provide guidance on the circumstances when it is appropriate to admit, detain or treat a patient compulsorily under mental health legislation, rather than under the Adults with Incapacity Act.

94. Protection for incapable patients in relation to 'exceptional treatments' under the Adults with Incapacity Act should be consistent with that in relation to special treatments for patients subject to compulsion under the Mental Health Act.

95. The only exception to this should be in relation to incapable patients in the community, in receipt of medication for mental disorder for over 2 months. To provide a second opinion by a specialist approved by the Mental Welfare Commission in all such cases is likely to be impracticable. However, any person with an interest in the welfare of such a patient should be entitled to require that such an opinion be obtained.

Service users' rights to assessment and services

96. The rights of service users, their carers and families to have the service user's needs for mental health services assessed should be strengthened. In particular, any application for long term compulsion should be after a multi-agency assessment, which would form the basis of a plan of care.

97. Where a person has previously had contact with mental health services, the service user or any carer should have a right to request that an assessment of the person's needs be undertaken by mental health services. Mental health services would not be bound to comply with such a request, but would be required to give reasons for any refusal to do so.

98. In line with the principle of reciprocity, there should be a duty on health boards and local authorities to provide appropriate services to patients subject to compulsion, as detailed in their plan of care.

99. The current duties of local authorities to provide 'after-care' and, in respect of persons with learning disabilities, 'training and occupation', should be updated and broadened.

100. There should be a duty on local authorities to provide or arrange care and support services and day activities to persons who are, or have been, suffering from a mental disorder. These day activities should include employment, training and education and social activities.

Individual and collective advocacy

101. Enabling service users to have access to independent advocacy is an integral aspect of ensuring that the Principles of the Act are upheld. All mental health service users should have a right to obtain access to an advocate.

102. It should be the joint duty of health services and local authorities to ensure those advocacy services are available and that service users are informed of the services, and to ensure that advocacy is of a satisfactory standard.

103. Local authorities and health services should support and recognise collective advocacy.

Advance statements

104. An advance statement is a statement by a person of the types of treatment and care he or she wishes to receive, should they lose decision making capacity in the future. Greater use should be made of advance statements, as a means by which service users may make their views and wishes known, and have greater involvement in decisions concerning their care and treatment.

105. No change is proposed to the legal status of advance statements for voluntary patients. Where a patient is subject to compulsion under the Mental Health Act, an advance statement should not be legally binding, but should be given due weight by the professionals involved in his or her care, and by the tribunal.

Rights of informal carers

106. The provisions for the 'nearest relative' in the 1984 Act contain a number of deficiencies and anomalies, and should be replaced by a more flexible system, based around the concept of a 'named person'.

107. The service user would be entitled to nominate a named person. Should this not be done, the named person would be the primary carer. In the absence of a nominated person or primary carer, the nearest relative would take the role. The tribunal should be entitled to replace a named person.

108. The named person should, where practicable, be consulted when compulsion is considered, and should have rights to be represented at tribunal hearings and to appeal against decisions of the tribunal. In addition, the named person should be entitled to be notified of;

• the service user's legal status under the Mental Health Act,
• any application for compulsory measures,
• any hearing by the tribunal,
• any decision to discharge the service user from compulsory measures.

109. The rights of carers should be strengthened. The Code of Practice should set out the rights of the primary carer to information. Tribunals should be required to consider the implications for carers of any orders they might make.

110. The Scottish Executive should formulate an information strategy for carers of mentally disordered persons, and local authorities should take steps to ensure carers are aware of their rights to have their own needs assessed.

Civil and social rights

111. People with mental disorders can face specific disadvantages in areas such as housing, social work, health and welfare benefit legislation.

112. The UK government should review the extent to which social security rules may adversely affect people with mental disorders.

113. The Scottish Executive should develop guidance on positive action in relation to the housing needs of people with mental disorders.

114. There should be a campaign of public education designed to improve public understanding of mental disorder, and attitudes towards people with mental disorders, and to reduce the stigma of mental disorder.

Groups with specific needs

115. There are a number of groups whose needs are not adequately addressed at present by existing legislation and services, including people with disabilities, children and young people, women and members of ethnic minorities.

116. There should be a statutory obligation on health boards to provide or secure age appropriate mental health services, including secure services, for children and young people. Any child or young person subject to compulsion should have a named social worker and an advocate.

117. The Code of Practice should contain guidance on the interaction between the Children (Scotland) Act 1995 and the Mental Health Act.

118. Single sex accommodation should be available to those who wish it.

119. People with disabilities who require assistance with communication, and people whose first language is not English who require interpretation and translation facilities, in relation to compulsory measures should receive these, as of right.

120. Local authorities and health boards should be required to obtain information regarding the mental health service needs of people from minority ethnic communities in their area, and to develop policies for meeting these needs.

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