The report is the conclusion of a series of in-depth discussions with specialists in the law, health care, social work and human rights from across Scotland and around the UK.
The report compares Scottish law in this area – which dates from 2000 (Adults with Incapacity) and 2003 (Mental Health Act) - with international human rights laws, and finds that what was once world-leading, is now increasingly in need of reform.
Colin McKay, chief executive, Mental Welfare Commission, said: “In the 15 years since our legislation was developed, significant changes have taken place in the understanding of how best the law can respect the rights of people with mental ill health or incapacity.
“The numbers of people subject to detention and guardianship has risen substantially, putting the safeguards in the law under pressure.
“The Government has committed to reviewing aspects of incapacity law. We welcome this, but believe it needs to be part of a comprehensive reform programme, reflecting a principled and human rights based approach.”
Attendees at the sessions, which were chaired by Professor Genevra Richardson from King’s College, London, discussed current thinking about non-consensual care and treatment, and the legal basis for intervention.
They considered changes that have taken place in in the UK, notably in Northern Ireland, and internationally, since Scotland’s legislation was introduced over 15 years ago.
They sought the views of people with personal experience of being subject to these laws in Scotland, and of their families and carers.
Three specific areas for change are:
- New forms of guardianship, which should provide a more flexible, proportionate and rights-respecting way to make decisions about money, care and welfare, for people who cannot take those decisions themselves. This suggestion is being considered by the Scottish Government.
- The possibility of unified legislation, replacing Scotland’s two, separate mental health and incapacity laws with completely new, non-discriminatory legislation for making decisions about welfare and treatment where an adult is unable to do so unaided; and
- The issue of compulsion in care and treatment – particularly how far decision making capacity should be central to decisions on compulsory treatment, whether or not the person has mental illness.
Professor Jill Stavert, Director of the Centre for Mental Health and Capacity Law and Business School Director of Research, Edinburgh Napier University, said:
“Creating this report involved a thorough comparison of Scotland’s mental health and incapacity legislation with current international human rights laws.
“Contributors agreed that while there is much to be proud of in our law and practice, it needs updating. The UN Convention in the Rights of Persons with Disabilities requires us to do more to support people to take decisions for themselves, even if they have a mental illness, dementia or intellectual disability, and to give effect to those decisions.
“Developing good quality legislation takes time, so we are calling on the government to commit to starting the process of replacing our mental health and incapacity legal framework with new legislation, that will ensure our approach to the care and treatment of people with mental health and capacity issues remains appropriate for the 21st century and current international human rights standards.”
The full report is available here.