Wednesday, November 23, 2022

Scottish Mental Health Law Review

The Scottish Mental Health Law Review (SMHLR) final report (see summaries and recommendations; also see previous post about interim report) is intended to shift mental health and capacity law from being too focussed on authorising and regulating actions which may limit a person’s autonomy, to one where a person’s rights are respected, protected, enabled and fulfilled. It recognises that the United Nations Convention on the Rights of People with Disabilities (UNCRPD) (see eg. previous post) has provided an impetus for a shift in how states respond to disability rights. UNCRPD was signed by the UK in 2007, came into force in 2008 and was formally ratified by the UK in 2009. The Scottish Review did not take an absolutist approach to UNCRPD, by which it meant "tearing down the whole house - pulling all our existing systems down and starting from scratch", which it did not see as yet possible or even necessarily desirable. 

UNCRPD and SMHLR both promote a supported decision making (SDM) approach rather than substitute decision making. This is included within what SMHLR calls its Human Rights Enablement (HRE) framework. The framework also includes an Autonomous Decision Making (ADM) test to allow for non–consensual intervention in situations when this is necessary to protect the person’s or others’ rights. 

Any authority for a deprivation of liberty should be granted only to the extent it is needed and only for as long as needed to achieve the protection required. The advantages against harms to human rights need to be assessed. Significant harms to certain human rights would be justifiable only exceptionally, on the basis of very significant advantages in the respect, protection and fulfilment of the person’s human rights overall. A court/tribunal may grant a Standard Order for Deprivation of Liberty in order to preserve the person’s overall human rights or an Urgent Order for Deprivation of Liberty in order to preserve life or health.

The view of the Review was that law reform can help reduce coercion, although it is only part not the whole answer. Reduction of coercion does need to be a priority of services in general. The problem with the reforms in England and Wales is that, although motivated to reduce detention and inequalities, there was no wholesale reform as in Scotland to a Human Rights Enablement framework. It will be interesting to see how mental health law develops in Scotland compared to England and Wales. The Scrutiny Committee is taking its final oral evidence today (see event and previous post).

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