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

Introduction to the Report

1.There has not been a fundamental review of mental health law in Scotland for more than 40 years. We believe that it is time for the law to respond to the new directions which have emerged in mental health care: of more community based services; greater involvement of users and carers in decisions concerning treatment; and greater awareness of the need to respect human rights.

Principles

2.Fundamental to our approach has been our view that a new Act should be based on principles stated on the face of the Act itself. We have set out the basic principles which we believe should underlie mental health law, and have sought to apply them in our detailed recommendations.

Compulsion only where absolutely necessary

3.Most patients (nearly 90% of those admitted to hospital at present) are treated on an informal basis. We wish to see compulsion kept to a minimum but the law must provide for the minority of patients where compulsion proves necessary.

4.One of the most significant of our principles is therefore that of the Least restrictive alternative. This principle reflects the fact that any use of compulsion under mental health law represents a significant curtailment of the human rights of the patient, and should only be permitted when, and to the extent that, it is absolutely necessary. Accordingly, our recommendations seek to ensure that any compulsory intervention is tailored to the particular needs and circumstances of the individual. This is a fundamental change from the current legislation where the powers granted on detention are always the same, regardless of the circumstances.

5.A principled approach also requires that the law should set out as precisely as possible the circumstances in which particular individuals should be made subject to compulsion. We have therefore recommended more specific criteria than are present in the current Act and we also make proposals to increase the extent to which compulsory interventions are subject to scrutiny and review.

6. We believe that the new arrangements require a new legal forum which is able to address in a more considered way the particular issues which arise in mental health cases, and we propose the creation of a system of mental health tribunals to replace the present role of the sheriff courts. We use the term 'tribunal' in this context throughout our report.

7.However, formal rights are not, in themselves enough. People must feel able to use these rights. It is a matter of concern that so few patients at the moment feel able to appeal against detention. Furthermore, formal rights to challenge decisions are not a substitute for involving the patient as fully as possible in decisions about his or her care. We therefore recommend greater access to advocacy, better information for patients, and new ways in which patients can identify their wishes, and have them taken into account.

The rights of service users

8.Questions of mental health do not relate only to compulsion. As we have said, the vast majority of patients are and should be treated on an informal basis. However, informal patients are also, in many cases, vulnerable. They may be subject to treatment to which they have not given their full consent, or may not get the care and support they need. We have therefore included this wider group in many of our recommendations, particularly in relation to advocacy. We have also considered the duties placed on local authorities to provide aftercare and other services, and made proposals designed to update and clarify these.

9.There is also a need to modernise those parts of the present Act which are intended to protect mentally disordered people from neglect or ill treatment, including arrangements for intervention when a vulnerable person appears to be at risk. We recommend considerably extending the powers of the Mental Welfare Commission in this and other areas, and a new legal framework for intervention to protect vulnerable adults.

10.The principles of Equality and Respect for diversity have guided our considerations of groups whose needs deserve particular attention, including women, children, members of minority ethnic communities and people with disabilities.

11.People with mental disorders who come into contact with the criminal justice system also have a right to have their needs met, in a way which also takes account of the interests of the public. Our recommendations in this area are intended to promote a more coherent framework for doing this.

Respect for carers

12.Throughout, we have had regard to the position of informal carers and family members. Too often, they are left without adequate support, and feel distressed and powerless, particularly when a relative is detained. There need to be stronger mechanisms to ensure carers can be appropriately involved and informed, especially when legal steps are taken. Carers also need greater rights to ensure that the needs of a service user who may be approaching a crisis are taken into account. We believe our proposals will considerably improve the position of carers.

Improving the system

13.At our consultative events, we were disturbed to hear many service users and carers speak of negative experiences of the mental health system. Undoubtedly, a lack of adequate services was the root cause in many instances. However, some of the problems may also reflect what might be described as the culture of some services, which can contribute to a lack of trust and of mutual respect between service users and professionals. We make no apology for seeking to improve the legal rights of service users but we would not wish to encourage distrust between service users, carers and professionals. Indeed we hope our proposals will help to improve relationships.

The role of professionals

14.There are many dedicated professionals working for and with people with mental disorders. We recognise that some of the reforms we recommend will mean extra work for them. At the same time, we are conscious of the great pressures which many of these are under and their own concern that these pressures often prevent them from doing as good a job as they would wish. Wherever possible, we have sought to integrate the procedures relating to the Act with more general best practice. We hope that, in implementing new procedures, the need for simplicity and practicality will be borne in mind, and the need also for greater support for front-line professionals. More time needed addressing Mental Health Act issues may necessitate additional medical and social work recruitment for busy service providers.

Resources

15.Our terms of reference do not cover questions of resources. However, we feel compelled to say something on this. We agree with the comment in the Annual Report of the Mental Welfare Commission for 1999-2000: 'While legislation is very important, it is services, or the lack of them, which make the most immediate impact on patients and their welfare.'

16. That Report highlights a persisting under-investment in maintaining the fabric of inpatient units, the poor quality of environment for patients in intensive psychiatric care units, and a dearth of therapeutic and recreational activities for many service users. The Commission also reports that too many patients remain in hospital when there is agreement that their needs would be better met elsewhere.

17.The Accounts Commission in their Report on Adult Mental Health Services, 'A Shared Approach'¹ found that no area in Scotland had a comprehensive range of social and healthcare services for adults with mental health problems. They also noted that expenditure on mental health services in recent years had been rising more slowly than expenditure on the NHS as a whole.

18.These reports reinforce the evidence received by the Committee, from professionals, service users and families, which was often of overstretched and inadequate services. Much of the burden of coping with the deficiencies in services rests on families. If there are inadequate services in the community, and great pressure on beds, it is difficult to see how the more flexible forms of care which have been the aim of Government for many years, and which we fully support, can operate successfully.

19.It is for others to say how the necessary improvement in services should be realised, but we have no doubt that the aspirations which underlie our recommendations for new mental health law will not be fully met unless services and facilities are adequate to meet the demands placed on them.

Conclusion

20.We have tried to put forward a comprehensive set of proposals. There are a few areas where we believe further work is needed, for example in relation to provision for people with learning disability. These, however, need not delay the introduction of a new Mental Health Act, which we hope will be given early consideration.

21.We would also hope that a new Act might help to reduce the stigma which, unfortunately, through ignorance and prejudice, still attaches to mental disorder. This is all the more unfortunate since most of us at some time in our lives will be affected, directly or indirectly, through mental illness in our family or among our friends. The law has only a small part to play in improving public understanding, but a new Act may reinforce the need for efforts by Government to deal with this issue.

22.Our committee was broadly based, and included members from medicine, nursing, social work, the law, psychology, local authorities and the voluntary sector, as well as carers and service users. In our discussions, there were differences of emphasis and perspective, but this report reflects a consensus view and our recommendations have been agreed by us all. When we issued our second Consultation, setting out our preliminary views, we were pleased to find widespread support for them. We believe that this report fairly reflects the evidence we received, and sets out a coherent and practical basis for a new Mental Health Act.

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