Mental health and adults with incapacity law in Scotland – what next?

Reading Time: 5 minutes

This blog provides a summary of the key mental health and adults with incapacity law in Scotland, information on current reviews and looks forward to potential legislation being introduced to the Scottish Parliament in Session 6.

Current legislation 

The Mental Health (Care and Treatment) (Scotland) Act 2003 (as amended by the Mental Health (Scotland) Act 2015) is the main mental health legislation in Scotland.

The 2003 Act followed the 2001 report of the Millan Committee which reviewed earlier legislation. It recommended that law and practice relating to mental health should be driven by ten principles, focused on minimising interference in peoples’ liberty and maximising the involvement of service users in treatment. 

The 2003 Act applies to people who have a “mental disorder” such as a mental illness or learning disability. It is rights-based legislation which allows people to express their views about their care and treatment. It provides the right to:

The 2003 Act redefined the role and functions of the Mental Welfare Commission for Scotland. It also established the Mental Health Tribunal as the principal forum for approving and reviewing compulsory measures for the detention, care and treatment of people with mental disorders.

The 2015 Act aimed to improve the efficiency and effectiveness of the mental health system by amending the 2003 Act.

The Adults with Incapacity (Scotland) Act 2000 aimed to provide the framework for safeguarding the welfare and managing the finances of adults who lack capacity due to mental illness, learning disability, dementia or a related condition or an inability to communicate.

Scottish Government reviews

The Scottish Government is currently reviewing aspects of mental health legislation to strengthen rights and protections of people who are impacted by the legislation and to ensure it reflects people’s rights under the United Nations Convention on the Rights of Persons with Disabilities and the European Convention on Human Rights.

Independent review of Learning Disability and Autism in the Mental Health Act

The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) was adopted by the UK in December 2006. In 2017 the UN Committee on the Rights of Persons with Disabilities concluded a review of the United Kingdom’s compliance with the convention which identified a number of areas of concern. Including that legislation, regulations and practices discriminate against people with disabilities. It recommended that all forms of substituted decision-making (when someone makes decisions on behalf of someone who is deemed not to have capacity) are abolished.

Following this the Scottish Government commissioned an Independent review of Learning Disability and Autism in the Mental Health Act. This made a number of recommendations focused on reducing or removing the discrimination of autistic people and people with intellectual disability in existing legislation.

The report made 107 recommendations, including that:

  • Learning disability and autism should be removed from the definition of mental disorder in the 2003 Act. But new legislation and service improvements, should be in place before this happens.
  • The law should be changed so that people are not detained and/or compulsory treated based on their disability.
  • A new law should be created that supports access to positive rights (such as the right to independent living, family and private life, education employment, and freedom of expression). 

The Scottish Government is considering the recommendations of the report. Its response, originally due by April 2020, has been delayed by the pandemic.

The SNP manifesto committed to bringing

“forward a Learning Disability, Autism and Neurodiversity Bill to delineate support and services from existing mental health legislation and ensure that human rights are protected”.

Scottish Mental Health Law Review (the Scott Review)

The Scottish Government has also commissioned the Scottish Mental Health Law Review. This independent review aims to:

“Improve the rights and protections of persons who may be subject to the existing provisions of mental health, incapacity or adult support and protection legislation as a consequence of having a mental disorder, and remove barriers to those caring for their health and welfare.”

The interim report was published in December 2020. Final recommendations are due in 2022.

Adults with Incapacity (Scotland) Act 2000

In 2018, the Scottish Government issued a consultation on the AWI Act. This consulted on proposed reforms:

  • Enhanced principles within the legislation to reflect the need for an adult to have support for the exercise of legal capacity.
  • The use of powers of attorney.
  • Creation of graded guardianship.
  • Judicial forum for cases under AWI legislation.
  • Creation of a short term placement order.
  • Creation of a right of appeal against a residential placement, or restrictions within a placement.
  • Changes to authorisation for medical treatment.
  • Changes to authority for research.

However, these have not been brought forward, and the AWI Act now falls within the terms of reference of the Scottish Mental Health Law Review. The Capacity and Support for Decision-Making Advisory Group are looking at comprehensive changes to this legislation.

Minutes from the Scottish Government’s AWI Emergency Legislation Commencement Consideration Group in March 2021 suggested there was the possibility of legislation being introduced in the Scottish Parliament in January 2022 prior to the Scott review reporting its recommendations in October 2022.

COVID-19 legislation

Amendments to the 2003 Act have been in place in response to the COVID-19 pandemic, through Schedule 9 of the UK Government’s Coronavirus Act 2020, the Scottish Government’s Legislative Consent Memorandum and in the Coronavirus (Scotland) (No.2) Act 2020.

The Scottish Human Rights Commission has raised concerns regarding the mental health measures. These include:

  • longer periods of emergency detention, and
  • making it simpler to secure short-term detention certificates and compulsory treatment orders.

The provisions in Schedule 9 of the UK Act were considered by the Scottish Parliament’s Equality and Human Rights Committee as part of its inquiry into the impact of COVID-19 pandemic on Equalities and Human Rights. The Committee wrote to the Scottish Government asking that it works with the UK Government to repeal Schedule 9. In response the Scottish Government said that the time-limited powers of Schedule 9 provide an important safeguard and would only be used in the event of “severe need”. In its report the Committee said it would:

“continue to keep a watchful eye on these emergency powers, but is satisfied currently there are sufficient checks and balances in place”.

The Coronavirus (Scotland) (No.2) Act 2020 removed the requirement for a named person’s signature to be witnessed by a prescribed person (such as a regulated health professional, social care worker, social worker or solicitor). The Scottish Government is seeking to extend these provisions through the Coronavirus (Extension and Expiry) (Scotland) Bill.

The Coronavirus (Scotland) Act 2020 amended the Social Work (Scotland) Act 1968, the Criminal Procedure (Scotland) Act 1995 and the Adults with Incapacity (Scotland) Act 2000. The policy memorandum states that the purpose of this is to allow for the continuation of guardianship orders and treatments in the context of courts not functioning fully and because of greater demands on medical practitioners, mental health officers and hospital beds. The use of emergency legislation in relation to hospital discharges and the adults with incapacity legislation will be discussed in more detail in a blog due to be published later this month.

Oversight of the implementation of COVID-19 legislation.

The Scottish Government has established a Short Life Mental Health Legislation Commencement Consideration Group. This considers the operation of the 2003 Act during the COVID-19 pandemic and whether there is a need for measures in the Coronavirus Act 2020 to be commenced.

It has also established an Adults with Incapacity Emergency Legislation Commencement Consideration Group.  To date these provisions have not been commenced.

Whatever the influence of the COVID-19 pandemic, it is unlikely that at the end of Session 6, mental health and AWI legislation will look the same as it does now, at the start of that session.

Lizzy Burgess Senior Researcher, Health and Social Care

Feature image adapted from the Mental Welfare Commission for Scotland