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

Chapter 2

THE SCOPE OF A NEW MENTAL HEALTH ACT

Is a Mental Health Act necessary?

1. The various considerations that we have set out in the preceding chapter would seem to suggest that an enquiry as to the need for a Mental Health Act could have only one answer. Nevertheless, it has been suggested³ that there is in fact no need for separate mental health law, and that the provisions the current Act contains could either be done away with or distributed amongst other pieces of legislation dealing with health care, treatment of incapable adults and so forth.

2. Indeed, this could be seen as the completion of a process which was begun by the reforms of mental health law introduced in Scotland in 1960. The Percy Commission considered the question of the purpose of special legislation related to mental disorder⁴. It found that the legislation had historically served five main purposes:

• Authorising the regulation of conditions of care in private establishments
• Establishing the duties of public authorities to provide services for patients
• Laying down procedures to be applied to individual patients receiving compulsory care
• Authorising special measures for offenders who have mental disorders
• Dealing with arrangements for the administration of patients' property.

3. The Commission went on to recommend that the first two purposes should be dealt with by general health and welfare law, although this was only partially achieved, since Parts III and IV of the 1984 Act retain provisions concerning local authority services and the regulation of private hospitals.

4. Since then, the Adults with Incapacity (Scotland) Act has replaced the provisions of Part IX of the Act concerning the management of patients' property. It has been argued by some that the justification for compulsory measures under mental health law should also be incapacity and, on that basis, that these provisions could also be incorporated in an amended Adults with Incapacity Act.

5. Given that large parts of the special measures affecting offenders with mental disorder are already contained in the Criminal Procedure (Scotland) Act 1995, it is possible to envisage that much of Part VI of the 1984 Act could be transferred to the criminal law. Indeed, it is even possible to argue that there may be no need for special measures in relation to offenders with mental disorders. Those who are held to be criminally responsible could be subject to the same criminal sanctions as other offenders, with administrative arrangements to allow transfer to hospital for treatment where appropriate. Where there is felt to be a need to detain a person because of risk to others, the justification for the detention could be explicitly stated as risk, not a particular diagnosis.

Views of consultees

6. No-one who submitted evidence to us suggested that there was no need for a legal framework to allow treatment without consent in some circumstances. However, there was a range of views as to the scope and limits of mental health law.

7. As was pointed out by the National Schizophrenia Fellowship (Scotland) (NSF (Scotland)), such legislation is only appropriate if one accepts, as they do, a medical construct of mental illness. One response, from a philosopher, argued, however, that it was necessary to go beyond this and say in what way mental illness was different from physical illness, and in what circumstances the ethical duty of respect for autonomy could be overriden.

8. A number of responses to our first Consultation, including those of the Scottish Association for Mental Health and the British Psychological Society, did suggest that separate mental health law may not be necessary in the light of legislation for adults with incapacity, especially if incapacity were to be the basis for compulsion. Others such as NSF (Scotland) and the Glasgow Association for Mental Health felt that separate mental health law was appropriate. NSF (Scotland) suggested that it helped to give a focus to mental health in the organisation of services, even though it did not guarantee that sufficient resources would be forthcoming.

9. There was a considerable amount of support for a greater integration between mental health and incapacity legislation, with many respondents advocating that a single piece of legislation should deal with both issues. The British Association of Social Workers proposed a 'Care and Protection of Adults' law, based on the example of the Children (Scotland) Act 1995, which brought together areas of child law which had previously been separate.

10. Some respondents questioned the assumption that mental health law should mainly be a framework for compulsion. It was suggested by some that the law should contain safeguards for all mentally disordered patients. However, there was a tension between this desire for an inclusive approach, and the concern that, without boundaries, mental health law would encroach unnecessarily on areas better dealt with elsewhere.

11. Several respondents, including People First, argued that mental health legislation should not only contain rights, but processes to ensure that people had effective access to those rights.

What the new Act should contain

12. We were not persuaded by the argument that mental health law should be abolished, or, more accurately, assimilated into other legislative provisions. We believe that there is a continuing need for special mental health legislation. The primary focus of this legislation should remain, as now, compulsory measures of care and treatment for mental disorder. To remove such legislation would, in our view, risk causing neglect of this important area, without necessarily affording greater respect to the human rights of service users.

13. We accept that there is a need to harmonise provision relating to compulsory measures of care with the provisions of incapacity legislation, and we make proposals in that regard at paragraphs 24-30.

14. We also believe that a Mental Health Act should continue to make provision for offenders with mental disorders. We did not receive any evidence to suggest that eliminating separate mental health disposals for offenders would either improve the quality of care received by mentally disordered offenders, or enhance public safety. We do however give further consideration to the overlap between the 1984 Act and the Criminal Procedure (Scotland) Act 1995 in Chapter 24, and make a number of detailed recommendations concerning the legislation which deals with offenders with mental disorders in Chapters 24 - 30.

15. Another important function of the 1984 Act is to create a statutory basis for the Mental Welfare Commission for Scotland. We are of the view that the Commission should remain and, indeed, its powers should be strengthened in certain respects. We make recommendations regarding this in Chapter 23.

16. There remains the question of the other provisions which are currently part of the 1984 Act, but are not concerned with detention. These include:

• the local authority duties set out in Part III
• the registration of private hospitals in Part IV
• certain administrative arrangements concerning the State Hospital in Part IX
• the offences against mentally disordered people contained in Part XI.

17. In Chapter 22, we recommend that the provisions regarding private mental hospitals in Part IV be removed from mental health law, and consolidated with the proposals for regulation of other private health care. In Chapter 35 we propose that all the legislative provisions concerning the State Hospital be contained in the legislation regarding the organisation of the NHS.

18. As regards the provisions for local authority duties and those relating to offences, it is for the Scottish Parliament, rather than this committee, to consider exactly how these should fit into the overall statutory framework. We are satisfied that these provisions are important, and should be retained in legislation, subject to the proposals for reform which we make in Chapters 13-21.

19. We have also considered whether the new Act should be extended to cover matters not contained in the 1984 Act. We heard considerable evidence of ways in which mental health care could be improved. While we are anxious that the Mental Health Act should not be an obstacle to good quality care, we were not convinced that it should be seen as the cure for all of these problems. It is, and should continue to be, a piece of legislation dealing mainly with certain issues specific to mental disorder, notably compulsory treatment.

20. We have largely resisted imposing new legal duties in respect of voluntary patients, who will continue to be the great majority of those receiving mental health care. We believe however that recommendations we make in Chapters 12 to 18, such as those regarding the promotion of advocacy, will be of benefit both to voluntary patients and those subject to compulsory measures.

21. An area where we make new recommendations is in relation to the protection of vulnerable people from abuse and neglect (Chapters 19-21). Many of our proposals in this regard are drawn from the Scottish Law Commission's 1997 report on Vulnerable Adults.

22. Overall, we hope that our recommendations will allow a new mental health act to take its place in a comprehensive legal framework which will provide for the range of legislative needs, including:

• provision for people whose health and wellbeing is at risk
• protection of vulnerable people from exploitation and abuse
• protection of the public from those who may pose a risk to others
• provision for decision making on behalf of those who are not able to act on their own behalf
• a framework for the provision of appropriate services
• arrangements to monitor the quality of such services and promote good practice
• procedures for redress and appeal for those who are dissatisfied with their care.

23. Our aim is not only that the legislation should be clearer and more effective, but that it will serve to promote good relationships between service users and professionals, and the greater involvement of service users and their carers in decisions concerning their care.

Interaction with the Adults with Incapacity (Scotland) Act

24. The Adults with Incapacity (Scotland) Act 2000 received Royal Assent on 9 May 2000. The Act will be implemented progressively in stages from April 2001 to April 2002. Among the areas of overlap with mental health law are the following provisions:

• powers and responsibilities of the Mental Welfare Commission
• the definition of mental disorder
• provisions for non consensual medical treatment
• safeguards for exceptional treatments
• provisions to require adults to reside in specified places without their agreement.

25. The Adults with Incapacity Act also replaces parts of the 1984 Act by new provisions, particularly in relation to guardianship and the management of patients' funds.

26. The new Act has been extensively debated, within the Scottish Parliament and elsewhere. We gave comments to the Executive on aspects of the Act at various stages of its progress. We do not consider it necessary to propose substantial amendments to such a recent piece of legislation. However, we are aware that the Act was deliberately drafted in a way which did not encroach on core aspects of mental health law. If, as we recommend, mental health law is substantially revised, it is essential that the two Acts form part of the coherent framework which we wish to see.

27. Many of the recommendations which we make bear directly on the Adults with Incapacity Act. We note that Ministers gave undertakings to consider regulations made under the Act, such as those for exceptional treatments, in the light of the recommendations of our committee, and also to revisit, if necessary, provisions in the Act itself such as the definitions of mental disorder and nearest relative.

28. We have attempted, throughout our report, to ensure that, wherever appropriate, our recommendations are consistent with the framework of the Adults with Incapacity Act. For example, the principles we recommend for the new Mental Health Act, although not identical to those in section 1 of the Adults with Incapacity Act, are influenced by them.

29. We feel that it is vital that there should be no gaps between the two pieces of legislation, which might prevent appropriate steps being taken to protect the interests of vulnerable people. Where there may be overlaps, it is important that this does not lead to safeguards in one Act being negated by the inappropriate use of the other Act. For example, there are concerns that the procedures to authorise treatment under the Adults with Incapacity Act might contain fewer safeguards than those under mental health law, but could be used in respect of similar treatment decisions.

30. We consider specific areas of overlap in more detail at relevant parts of this report. It is our view that, in due course, the two pieces of legislation should be brought together into a single Act. It is a matter for the Executive and Parliament as to how this might be achieved. We suggest that, after the introduction of a new Mental Health Act, consideration should be given to the consolidation of the two pieces of legislation.

The name of the Act

31. We received a number of representations suggesting that the "Mental Health Act" was an inappropriate name for the legislation in question.

32. It was pointed out that the Act is not about promoting good mental health, which is a separate matter. Instead, it is an Act which is concerned with dealing with mental illness and mental disability, and particularly more severe forms of mental illness and disability.

33. The name was felt to be particularly inappropriate by organisations concerned with learning disability. People with learning disabilities are not mentally ill, and it was felt to be confusing to include them within an Act with a title which relates to mental health and mental illness. This may serve to perpetuate the notion that the Act is primarily concerned with mental illness, and that learning disability is included as an after-thought.

34. Against that, the name is one which has been used for 40 years, and the same term is used in England and Wales. It may be difficult to devise an alternative which is short enough to be easily remembered, yet encompasses the scope of the legislation.

35. If, as we recommend, mental health legislation is consolidated with incapacity legislation, the name will require to be changed.

36. We considered whether, in the meantime, there was any alternative name which we could recommend. Suggestions put to us included:

• The Mental Disorder Procedures Act
• The Mental Health Protection Act
• The Mental Welfare Act

37. However, no particular suggestion commended itself to the Committee as being preferable to the 'Mental Health Act'. We therefore make no recommendation, while recognising the difficulties with the current name. This is a matter that can be returned to if, as we recommend, a consolidation measure is introduced in the future.

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