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

Section 1 FRAMEWORK OF A NEW MENTAL HEALTH ACT

Chapter 1

THE NEED FOR REFORM

Introduction

1. In Annex 1 we provide a brief description of the 1984 Act, its origins and subsequent developments. As we indicate there, many of the provisions in the 1984 Act can be traced back to proposals made in the late 1950s which were amended in the 1980s.

2. The 1983 amending Bill and 1984 consolidation Act were not extensively debated in Parliament. It is therefore reasonable to say that this committee has the opportunity to undertake the first fundamental review of the legislation for 40 years.

3. That in itself does not mean that the Act is fundamentally out of date. Although many of the respondents we consulted argued for a new Act, it was striking that many of the proposals suggested to us were for essentially incremental improvements to the current position, rather than a wholesale recasting of the law. It is also the case that some of the proposals were not intended to alter current practice in a major way, but to ensure that the legislation reflected and supported current best practice: for example in promoting the involvement of service users in decisions about their own care.

4. Nevertheless, we were persuaded that the 1984 Act should be replaced with a wholly new Act, for three reasons: major changes in mental health care over the last two decades have meant that some of the fundamental assumptions of the Act no longer hold; changes to the 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 the interpretation and operation of the Act. In our view, the combined effect of these is such that it would not be right to proceed again with the approach previously adopted of amending the existing law. A fresh start is required, through a new Act.

Changes in mental health care

5. The current Act has been criticised as being more concerned with buildings than people¹. In particular, Part V of the Act is concerned with when patients can be compulsorily admitted to hospital. This reflects an assumption that people with severe mental disorders will require care in a hospital setting. This does not reflect modern practice.

6. In learning disability services, there has been a policy under successive governments to move people from hospital settings to the community. The numbers of people with learning disability in hospital have reduced from nearly 6,500 in 1980 to fewer than 2,450 in 1998. The recently published Scottish Executive review of learning disability services suggests that health boards should have plans to close all remaining long stay hospitals for people with learning disabilities by 2005. It proposes that even those who require continuing care should live, so far as possible, in their own homes or in small domestic settings. The total number of estimated in patient places required is 300-400, including those currently subject to detention. The report suggests that changes to mental health legislation 'may lead to other care options'². The Scottish Executive has endorsed the report's recommendations in principle and is currently analysing responses to the recently completed consultation on how to implement the recommendations.

7. In respect of mental illness, there has been a marked reduction in Scotland in the number of hospital beds available in recent years. The average number of staffed general psychiatry beds available in the year ending 31 March 1986 was 12,191. By March 2000, this had reduced to an average of 3835 staffed beds.

8. It has been the stated aim of Government that the reduction in hospital places would be accompanied by a transfer of resources to community based mental health services, although we received evidence from many quarters that neither service was adequately resourced. Together with changes in medication, these developments mean that it is now possible for many more people, even with severe mental illnesses, to live with support in the community.

9. This does not mean that the need for people to be admitted to hospital under mental health legislation has lessened. Indeed, statistics from the Mental Welfare Commission show that the number of admissions under the Act has increased over recent years. The number of episodes of long term detention increased from 661 in the period covered by the 1991 Annual Report, to 1011 in the period April 1999- March 2000.

10. Taken together, these trends suggest that fewer people are being detained in hospital for lengthy periods, but there are, and may well continue to be, a rising number of people who live in the community most of the time, but may require compulsory measures of care in crisis situations. This pattern has a number of implications for mental health law.

11. The possibility of treating people, even when acutely unwell, in the community, raises the issue of whether the link between compulsory care and detention in hospital is still appropriate.

12. The fact that people are more likely to be living in the community also highlights the need to clarify the rights of carers and relatives- both to participate in decisions, and to have support for their own needs.

13. This relates to another significant development: the growth in recognition of the rights of service users to greater involvement in decisions concerning them. One aspect of this has been the increasing strength of the advocacy movement. In 1984, formal advocacy services for patients did not exist. Such services are now being developed throughout health and social work services in Scotland.

14. There is also increasing interest in other mechanisms to support the involvement of service users in their own care, such as 'contracts for care' or advance statements, which allow people to set out, when well, the care that they would wish to receive should they become unwell.

15. One aspect of this recognition of user rights has been the development of the concept of 'reciprocity': that society owes some duty to provide appropriate services and support to those who have been required to accept treatment against their will. Such a right was strongly supported by many of the submissions we received, but is not formally recognised in the current Act.

16. Another significant change has been in the roles and responsibilities of different professionals. Nurses, including community psychiatric nurses, play a more significant part in the delivery of mental health care than before. The greater degree of movement between hospitals and the community suggests a need to increase the involvement of mental health officers in decisions concerning compulsory care. The nature of General Practice in medicine has changed greatly. Innovations such as separate out of hours services mean that assumptions in the Act about the personal knowledge of a patient by his or her GP may no longer hold.

17. Mental health and learning disability services have also been affected by wider societal changes, such as the greater recognition of the needs of different communities. While the Act mentions the need to have regard to the religious persuasion of patients, it is silent about other issues of culture and ethnic background.

Changes in legislation

18. The complex interaction between the 1984 Act and other legislation has meant that our task - to review the 1984 Act - has not been a straightforward one. We have had to consider the Act's provisions alongside other related legislation.

19. The changes which have been made to the 1984 Act, described in Annex 1, have been felt by the UK Parliament and, latterly, the Scottish Parliament, to be necessary to deal with problems perceived as arising from the Act. However, they have in some cases created their own anomalies.

20. An example is the Mental Health (Public Safety and Appeals) (Scotland) Act 1999. This has amended the definition of mental illness to include personality disorder. Whatever view one takes of whether personality disorder should be included within mental health law, the almost universal consensus in psychiatry is that it cannot be characterised as a mental illness.

21. New disposals, particularly the community care order, have increased the complexity of the law, but appear to be rarely used.

22. Similarly, amendments to the Criminal Procedure Acts have introduced new disposals such as the supervision and treatment order and the hospital direction, although until recently, we understand there had only been two hospital directions.

23. The passing of the Adults with Incapacity (Scotland) Act 2000 has had a very significant impact on mental health law. It has replaced several sections of the 1984 Act, and has fundamentally reformed the law concerning medical, personal and financial decision making for people who are unable to make decisions on their own behalf.

24. The Adults with Incapacity (Scotland) Act was not intended to reform the procedures concerning detention under mental health law, but there are clearly significant areas of overlap. Both Acts allow certain kinds of medical treatment to be administered without the consent of the patient, and both Acts allow third parties to determine that the patient will reside in a particular place, again without his or her consent. Both Acts contain special provisions for exceptional treatments. It is clearly desirable that the two legal frameworks are complementary.

25. The incorporation of the European Convention of Human Rights (ECHR) into domestic law, as a result of the Scotland Act 1998 and the Human Rights Act 1998 is also highly significant. There have in the past been changes to the Mental Health Act to accommodate European Human Rights case law, such as the introduction of a right of appeal by restricted patients to a sheriff. However, the evidence of the first few months of the domestic application of the Convention suggests that legislation such as the Mental Health Act, which is intimately concerned with the civil rights of individuals, is likely to come under sustained scrutiny.

26. If a new Act is to survive for any length of time, it will be important that it reflects the developing norms of human rights law. This supports the introduction of a new Act based around clear principles and positive rights.

27. There are other legislative developments which do not affect the terms of the 1984 Act, but place mental health law and practice in a different context. One example is the Disability Discrimination Act 1995. This seeks to outlaw discrimination against disabled people, including people with a mental illness or learning disability.

28. The key principle of non-discrimination in the 1995 Act is twofold in its application. A person with a disability should not be treated in a worse way than a non-disabled person, but also reasonable adjustments should be made to accommodate the needs of disabled people. Such a perspective may help to clarify when it may be appropriate for a person with a mental health problem to be subject to measures which would not be applied to someone with no mental disorder.

29. The notion of reasonable adjustment may also act as a guide to ways in which the protections of mental health law can be made meaningful to people with various kinds of mental disability, for example, in making access to an appeal procedure meaningful for a person with learning disability.

30. Other legislative developments which may influence the way in which mental health law should be drafted include the statutory recognition of assessment and care planning in the NHS and Community Care Act 1990, and the development of statements of principle in legislation such as that in the Adults with Incapacity (Scotland) Act 2000.

Problems with the 1984 Act

31. In addition to the changes in practice and legislation which have led to a need to review the 1984 Act, there are significant criticisms which can be made of the legislation itself. Some of these reflect fundamental issues of principle, but there are also a large number of more technical difficulties which need to be addressed. These would not necessarily be repeated in a new Act, but we highlight a number of them below, in order to ensure that this is the case.

32. Among the fundamental issues of principle is that of the basis of detention. As we discuss in Chapter 5, the grounds for detention, as set out in section 17 of the Act, are in many respects circular. They are largely based on the criteria of 'necessity' and 'appropriateness', rather than any more clearly articulated justification for detention.

33. There has been relatively little case law to guide interpretation of the Act. The main area in which there has been a significant degree of judicial interpretation is in relation to patients, often with personality disorder, subject to hospital orders with restrictions. This has particularly concerned the interpretation of the 'treatability' test in section 17(1) of the Act, but cannot be said to have made the Act easier to understand or apply.

34. We also received evidence, both from the research that we commissioned, and from our consultations, that the protections afforded by the Act may not always work effectively. For example, very few patients use their right to appeal to the sheriff against renewals of detention. Accounts we received suggested that many patients do not perceive the appeal procedure as offering them a real opportunity to challenge formal interventions in their lives.

35. The Act is of course not solely concerned with detention. In relation to the social work duties set out in Part III, there have been criticisms that terms such as 'after-care' are wholly lacking in definition, and are hard to apply in the much more fluid model of mental health care that now operates. In relation to the protective provisions of Part XI, the offences intended to protect women with learning disabilities from abuse have been said to restrict freedoms inappropriately, and the Scottish Law Commission has recommended the replacement of the powers set out in s117 to protect people at risk of abuse and neglect by a new legal code for vulnerable adults.

36. The concerns about the grounds for detention, and the review procedure, do not lead us to believe that there are significant numbers of people being detained under mental health law who should not be detained. Both the professional practice of doctors and social workers, and the sheer pressure on resources such as hospital beds, mean that most people who are currently detained are undoubtedly in need of measures of care. What may be necessary is to improve the procedures, both to ensure that alternatives to compulsion are available and considered whenever possible, and that any procedures for compulsion respect both the rights and needs of patients and carers.

37. There is also the problem of people who need care and may not receive it timeously. Many of the submissions we received from carers highlighted situations where a person with a mental illness has deteriorated over a long period, with intervention only taking place when the deterioration becomes a crisis. Some of these experiences may reflect problems with the level and availability of services, but we feel it is important to ensure that mental health law helps to avoid such situations occurring.

38. We also have great concern for the situation of people who are not formally detained, but who are not freely consenting to the decisions being made about their care. A number of people commented to us about the situation of patients who accept treatment reluctantly, because they are threatened, or feel threatened, with detention if they do not co-operate. It has also been suggested that the Adults with Incapacity Act is not, in itself, adequate to safeguard people who are not able to protect their own interests.

39. The 1960 Act took a considerable step forward in removing the stigma of mental illness and learning disability by ending the routine requirement for 'certification' for those receiving treatment for a mental disorder. We fully support this, and we would wish the new Mental Health Act to reflect the principle, which is currently enshrined in section 17(2) of the 1984 Act, that nothing in the legislation should prevent a person from receiving treatment on a voluntary basis. Nevertheless, we are concerned that more may need to be done to protect the interests of 'informal' patients.

40. Turning to more specific difficulties, we received helpful submissions from the Mental Welfare Commission and the Law Society detailing a number of these. We highlight below some of the most significant comments.

41. The definition of 'nearest relative' in section 53 contains no adequate provisions to remove a nearest relative who is unsuitable for the role - even in those cases where they have been implicated in abuse of the patient. We note further that the definition of the term in the Adults with Incapacity Act, which was originally based on the 1984 Act, has been amended to give greater recognition to unmarried and same sex partners; and the definition in the Mental Health Act applying to England and Wales has been found to be inconsistent with the European Convention on Human Rights.

42. There is an apparent gap in the 'nurse's holding power' in section 25 of the Act. This power allows a nurse to detain a patient, already in hospital as a voluntary patient, who appears to require detention for up to 2 hours, pending the arrival of a doctor. The problem is that it is not clear what power there is to continue to detain the patient between the time the doctor arrives (and the holding power appears to end), and the time the doctor completes an assessment and decides whether emergency detention is warranted. It is also not clear whether it is possible to hold the patient pending the arrival of a mental health officer to consent to an emergency 72 hour detention.

43. The Act contains no provision for a patient's detention to be reviewed when the category of mental disorder from which they are deemed to suffer is changed.

44. There are uncertainties about the powers to transfer remanded prisoners to hospital for assessment of their mental state. We understand that this has led, on a small number of occasions to petitions to the nobile officium: the power of the Court of Session to correct gaps in the law. This is clearly undesirable when the Act should set out a comprehensive statutory code.

45. There are other difficulties with the current Act which we address in the following chapters. These support our view that a new legislative framework is required.

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