29th May 2020
SAMH is committed to protecting the rights of people experiencing mental health problems. In our latest blog, our Senior Public Affairs Officer Suzi Martin, explains how SAMH is putting the voices of our service users at the heart of our efforts to encourage change in legislation through our response to the recent Scottish Mental Health Law Review.
Sometimes people’s mental health deteriorates to a point where they are given care and treatment on a compulsory basis: potentially against their will. The Mental Health (Care and Treatment) (Scotland) Act 2003 allows for this to happen and also includes important safeguards and principles to make sure that people aren’t taken to hospital or given care and treatment when this isn’t necessary.
The 2003 Act was considered a significant step forward in improving mental health law, both in Scotland and internationally. It provided safeguards and principles that had not been seen before, which sought to protect the rights of people who would need compulsory care and treatment for their mental health. SAMH campaigned for many of the safeguards in the Mental Health Act and for improvements to the Act in 2015, and we continue to defend the rights of people with mental health problems today.
Since the introduction of the Act in 2003 and the revisions in 2015, there have been further developments in international human rights law and in mental health case law, both of which pose challenges for the legislation in Scotland. Other countries have also sought to develop their laws, presenting potentially better alternatives to the way in which people receive care and treatment in Scotland.
One of the most significant developments is that of supported decision making, which is now promoted by the United Nations. Supported decision making is when people are supported to make decision for themselves, rather than decisions being made for them by someone else. There are different methods of supported decision making like peer support, advocacy and technological support, all of which can help people to make their own decisions about their care and treatment.
As a result of these developments, the Scottish Government commissioned an independent review into mental health law in Scotland. The review is now called the Scottish Mental Health Law Review and is led by John Scott QC. The review explores not only the Mental Health Act, but also the Adults with Incapacity Act and Adult Support and Protection Act, in relation to how they affect people with mental health problems.
SAMH welcomes this review and has submitted a response to the call for evidence, which closed on Friday 29th May. In our submission we reflect on the experiences of our service users, and call for the review to explore how the legislation could be changed to improve people’s experiences of receiving care and treatment for their mental health. Specifically we call for the review to consider:
- How the principles of the Mental Health Act can be met in practice – in particular the principle of reciprocity, which means that people have to be given safe and appropriate care and treatment throughout the whole of the recovery process.
- Alternative assessment processes, specifically assessment processes that focus on the support required to make decisions rather than a person’s inability to make decisions.
- How supported decision making can be embedded, to avoid the possibility of low uptake of supported decision making methods.
- The use of a single judicial forum for all cases of non-consensual interventions, taking learning from the Scottish Mental Health Tribunal.
- Additional safeguarding measures for the use of involuntary treatment.
People who receive support from SAMH told us that they do not trust that their personal preferences and their views will be taken into account when they are given care and treatment. Moreover, service users who had previously been in hospital told us that they had felt like they had no rights while they were there, and that they had very little freedom to make even small day-to-day decisions.
SAMH wants to see mental health law reform result in a system that not only helps people to get the care and treatment they need, but also feels positive for people who are recovering from mental ill-health. We want people to be more involved in decisions about their care and treatment, and for recovery to be viewed in as wide a context as possible and not just associated with medical treatment.
Everyone with a mental health problem should be treated fairly. It’s important to be aware of your rights when it comes to things like employment, welfare benefits, and accessing your medical records. Find out more on the SAMH website.