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Bringing Scottish Mental Health Law in line with international human rights standards

31 March 2023

The Scottish Mental Health Law Review, published September 22, is the first major review of mental health and capacity law in Scotland for 20 years.

The review also looks at the Adult Support and Protection (Scotland) Act 2007 in relation to how it affects people with mental health problems. 

VoiceAbility welcomes the review’s findings and recommendations. We believe it is vital that mental health legislation is framed around the experiences of people using mental health services, including informal carers, and that human rights are embedded within the legal frameworks that shape services in Scotland.

Key recommendations

Three aspects of mental health law have been identified as essential to bringing Scotland in line with international human rights standards:

  • Strengthening the voice of people who use services, including people with a learning disability or who have dementia
  • Reducing the need for restrictive or coercive practices such as the use of restraint and seclusion: this would apply to the treatment of care home residents, for example, whose rights during the COVID 19 pandemic were not always respected
  • Giving effect to all of people’s rights, including economic and social rights, so that people have what is needed to live a meaningful life

Contributors to the review included people with lived experience and unpaid carers, as well as practitioners, relevant groups and organisations.

The key long-term recommendation is a single law to cover the human rights of people with learning disabilities.

Supported decision making

One significant development relates to supported decision making, which is now promoted by the United Nations. Supported decision making is described by the Scottish Association for Mental Health (SAMH) as when people are supported to make decision for themselves, rather than decisions being made for them by someone else. Different methods of supported decision making include peer support, advocacy and technological support, all of which can help people to make their own decisions about their care and treatment.”

Read SAMH's response to the Mental Health Law Review

There are six recommendations from the chapter on Supported decision making’ about independent advocacy, all of which are described as short to medium term implementation’. These include:

  • aligning legislation and policy to ensure consistency regarding the definition of Independent Advocacy, the right to access it and how it is commissioned and funded for adults. This should include consideration of an opt-out service of independent advocacy, with an equivalent process for children and young people
  • ensuring independent individual and collective advocacy is sustainably funded, with culturally appropriate independent individual and collective advocacy provision
  • giving consideration to a national advocacy service
  • Scottish Government and the Scottish Independent Advocacy Alliance, working with other independent individual advocacy groups, developing a national register of independent individual advocates 
  • Scottish Government and the Scottish Independent Advocacy Alliance, working with other independent individual advocacy groups, developing a national training programme 
  • Scottish Government enabling an organisation to have responsibility for monitoring and continuing development of independent individual advocacy. 

The recommendations are far-reaching and many of them cut across several different areas of government. The Mental Health Law Reform team who are part of the Mental Health Directorate at Scottish Government are looking at the links which will need to be made across government departments. 

VoiceAbility particularly supports the recommendation to establish opt-out advocacy wherever people have an entitlement, for example in mental health, social care, and benefits provision, to strengthen the individual right to be heard when it matters most.