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

Chapter 3

PRINCIPLES OF THE NEW ACT

Introduction

1. The Mental Health Act deals with fundamental questions of personal liberty, including the balance to be struck between the right not to be subjected to intervention against one's will, and the right to receive proper care and treatment. We feel that it is important that the principles by which the legislation should be operated should be clearly articulated, on the face of the Act itself.

2. Until recently, it was uncommon for legislation to include a formal declaration of underlying principles. No such statement appears in the 1984 Act.

3. In recent years, declarations of principles have become more common. The drafting of the Children (Scotland) Act 1995 was influenced by the principles of the UN Convention on the Rights of the Child, and included a key principle that the welfare of the child should be the paramount consideration in determinations concerning a child⁵. The Adults with Incapacity (Scotland) Act 2000 sets out in its first section a series of general principles, to be given effect in any intervention made under or in pursuance of the Act.

4. The Review of the Mental Health Act 1983, which is the English equivalent of our 1984 Act, by the Richardson Committee also recommended that underlying principles should be articulated in the statutory framework and should influence its eventual implementation⁶. The Green Paper issued by the Department of Health endorses this approach, although it does not accept that all the principles set out by the Richardson committee should appear on the face of the Act⁷.

5. In our discussions and consultation, we have found widespread acceptance that principles should underpin mental health law, and broad agreement as to the nature of these principles.

Benefits of a statement of principles

6. We believe that such a statement will be of benefit to all those who have to operate the Act or have an interest in its operation. The principles should influence the drafting of the Code of Practice - which should in turn show how the principles can be put into practical effect.

7. The statement of principles set out in the Adults with Incapacity (Scotland) Act is intended to guide judicial bodies making orders under that Act. We believe that the same purpose would be served by our proposed statement of principles in the new Mental Health Act. At the moment, sheriffs, for example, have little to guide them in making decisions about issues such as compulsory detention. Our proposals will involve more detailed consideration of a range of issues when making rulings regarding compulsory care and treatment, and a statement of principles will assist in giving these various factors due weight. Recommendation 3.2 Interventions under the Act, and the Code of Practice, should have regard to the stated Principles.

8. The principles would be of particular relevance to the Mental Welfare Commission. Currently the Commission has a general duty to 'exercise protective functions in respect of persons who may, by reason of mental disorder, be incapable of adequately protecting their persons or their interests'⁸. We believe that the principles set out in the Act should be the touchstone for the work of the Commission; indeed the Commission should see itself as the guardian of those principles. We deal with this point further in Chapter 23 (paragraph 47).

9. Finally, we have sought to apply the principles in developing our own recommendations, and reference to them is made at appropriate points throughout the report. Views of consultees

10. Our consultation process found strong support for a statement of principles within the Act. As would be expected, a wide range of principles were suggested, but there were some that received widespread support. These included:

• interventions should be the least restrictive consistent with achieving the desired aim
• promotion of user autonomy and empowerment
• reciprocity and the right to an acceptable standard of care
• any interventions should be in the best interests of the individual
• deprivation of liberty should be determined by the degree of assessed risk
• measures should enshrine the right of appeal and to regular review
• measures should protect individuals from abuse and neglect.

11. We include many of these within our recommendations. Many respondents specifically endorsed the principles contained in the Adults with Incapacity (Scotland) Act, although some commented that the principles would require some modification for mental health law. In light of our wish that incapacity and mental health legislation should be consistent, and ultimately consolidated, we have drawn on the principles of the Adults with Incapacity (Scotland) Act where appropriate.

A framework for principles

12. There is a danger that statements of principles become unwieldy, by incorporating large numbers of recommendations which are better described as statements of good practice. We have sought to avoid this by concentrating on core principles, which we believe will continue to be relevant over the lifetime of the Act.

13. Within medical ethics, there are often said to be four key underlying principles, namely justice, autonomy, beneficence (seeking to do good), and non-malificence (avoiding doing harm). Each of our recommended principles can be seen as reflecting one or more of these underlying principles.

Recommended principles

Justice

• Non discrimination

People with mental disorder should whenever possible retain the same rights and entitlements as those with other health needs. Although this concept of equality is something which has come to the fore in recent years, it is in some respects a development of the aim of the reforms introduced in 1960, that treatment for mental health needs should be consistent with other forms of health care.

• 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.

We address issues concerning groups with specific needs in chapter 18.

• 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.

This adds to the above principle of equality, by making a positive statement of the requirement to reflect individual needs, rather than merely treat all service users in the same way.

• Reciprocity

Where society imposes an obligation on an individual to comply with a programme of treatment and 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.

This principle received strong support, including that of key agencies such as the Law Society of Scotland, the Royal College of Psychiatrists and the Scottish Association for Mental Health. It is potentially the principle with the most significant consequences for services, since it implies that those subject to compulsion should have, unlike others, a legal right to receive appropriate treatment.

Some concern was expressed that the principle could have undesirable consequences. There could be incentives for professionals not to take compulsory measures when appropriate, for fear that they could not provide the necessary resources. Conversely, some professionals could pursue compulsion, or service users refuse voluntary care, in the hope that this will make it more likely that resources will be forthcoming. It was argued by some that such a principle was in itself discriminatory, in that it gives those subject to compulsion priority over voluntary patients.

Because of these concerns, we specifically asked in our second Consultation whether the advantages of a principle of reciprocity outweighed the disadvantages. A large proportion of those who responded said that they did, although, unsurprisingly, responses from bodies representing statutory service providers were more ambivalent. After careful consideration, we feel that the inclusion of such a principle is justified. It seems to us wrong that the state should be entitled to restrict the liberty of people in order to provide care, without undertaking some responsibility for providing such care.

Autonomy

• Informal care

Wherever possible care, treatment and support should be provided to people with mental disorder without recourse to compulsion.

This important principle is currently recognised in the statement in section 17(2) of the 1984 Act that nothing in the Act should prevent a patient from receiving treatment without being detained under the Act. However, as we discuss in Chapter 12, there are concerns that this can in certain circumstances leave people effectively subject to a restriction of their rights, without being formally detained. It is helpful, in that context, to make it clear that the justification of this principle is not to minimise the use of the Act, but to maximise the autonomy of patients, by ensuring that they are not subject to restrictions which are unnecessary.

• 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 both 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.

At the moment, the Act contains provisions intended to ensure that information is given to detained patients (e.g. s110), but not necessarily to ensure that the patient has a strong voice in relation to decisions affecting him or her. The Adults with Incapacity (Scotland) Act recognises the important point that, even where a person is not able to make a decision for himself or herself, the person still may have views which should be ascertained and to which others should have regard. The same principle should apply in relation to mental health law, and underlies many of the recommendations we make, including those concerning advocacy (Chapter 14), tribunal procedures (Chapter 9) and advance statements (Chapter 15).

• 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.

This principle reflects the fact that carers have an important role to play, and their right to participation in decisions affecting them should be respected. Respecting the role of carers also reflects the principle of beneficence, in that it is likely that doing so will improve the quality of life of the service user.

The principle is similar to the principle within the Adults with Incapacity (Scotland) Act that account should be taken of the views of those involved with the adult, including primary carers and nearest relatives.

Beneficence and non-malificence

• 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.

This principle is reflected in the Adults with Incapacity (Scotland) Act, which requires that interventions be the 'least restrictive option in relation to the freedom of the adult, consistent with the purpose of the intervention'^'9. It reflects the principle of non-malificence, sometimes expressed in the Hippocratic injunction to doctors: 'first, do no harm.' It also seeks to respect autonomy, by limiting any breach of autonomy to the minimum necessary.

That said, it is important that the principle is not understood to mean that one should do as little as possible for the patient. Those who are subject to compulsory measures are as entitled as other patients to the highest quality of care.

• Benefit

Any intervention under the Act should be likely to produce for the service user a benefit which cannot reasonably be achieved other than by the intervention.

This also reflects an important principle of the Adults with Incapacity (Scotland) Act¹⁰. The principle should help to focus the minds of those who implement the Act or adjudicate upon it towards the question of what will be achieved by an intervention from the point of view of the mentally disordered person. The Children (Scotland) Act 1995 also provides that a court order relating to parental responsibilities should not be made unless it is considered that it would be better for the child that such an order be made than that none should be made at all.

• Child welfare

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

This principle is intended to ensure that the same regard for the welfare of the child pertains in relation to an intervention under the Mental Health Act, as would be required for an intervention under the Children (Scotland) Act.

Of course, in all cases concerning use of the Act, the welfare of the patient should be a fundamental consideration, but we feel it is important to stress this principle in relation to children; both to clarify that the child's welfare takes precedence over the rights of others, including parents, and to ensure consistency with child care law.

Applying the Principles

14. Our purpose, in recommending such principles, is not to set out rules which can simply be followed to find a correct course of action. They must be applied reflectively. In some circumstances, the principles may even appear to be in conflict with each other. Considering the underlying purposes of the individual principles (respect for autonomy, justice and so forth) may help to resolve some of these conflicts. Sometimes, conflict will remain. Even in such cases, we believe the principles will help to draw out what are the important issues to which people operating the Act should have regard.

Alternative suggestions

15. Our recommendations are not an exhaustive list of the principles which were suggested to us. However, many of the suggestions are, in our view, incorporated to some degree in the above principles, albeit in different language.

16. Other suggested principles, such as that the Act should protect people from abuse and neglect, and should enshrine the right of appeal and regular review, are given effect by our recommendations, notwithstanding that they are not contained in the stated principles.

17. There is a third group of suggested principles which have some merit, but which we have not addressed directly. These include a suggested principle of equity across Scotland, and that the Act should reflect evidence based practice. In our view, these are more appropriately considered as desirable aims of health care in general, rather than specific principles of mental health law.

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