Scottish Mental health Legislation Review: my involvement and key messages from the final report.
Abertay University – session with student nurses –
30 01 2023
Well nearing the end of my session and time for me to tell you a bit about the Scottish Review into Mental Health Legislation or the Scott review as some people call it, after our chair; Lord Scott.
I had the privilege although sometimes I find it hard to call it a privilege as it was incredibly complicated, emotional and hard work, to work on the Scott Review for getting on for three years before it reported to the government in October of last year.
We delivered a 950 page report which I think very, very, few people are going to read in its entirety! I doubt they will even read the very, very, very long easy read version of our report but despite that it is, in my opinion, an important thing we have achieved.
We were asked to review the mental health act, the adults with incapacity act and the adult support and protection act and also to take into account peoples economic cultural and social rights. Which basically means reviewing more or less everything!!
Before I tell you some snippets of what we came up with I will tell you a bit about who we were and what we did.
Our chair was Lord Scott who was formerly a QC with an expertise in human rights but has now been promoted to a judge. He initially asked Professor Jill Stavert and Professor Colin Mckay both from the Centre For Mental Health and Capacity Law at Napier University to join the executive team and then Karen a carer from the National Carers Centre and myself to join as people with lived experience and later on, Alison from the Royal Edinburgh Patients Council.
As an executive team we met frequently and were supported by a hugely capable but slightly understaffed secretariat. We discussed, debated and read lots and lots of papers.
Initially we worked with a series of advisory groups, we had the communications one, the compulsory treatment one, a carers group, a young people’s group, a capacity and supported decision making group and a social economic and cultural rights group.
We tried to follow the panel principles for all our work which are a human rights framework, this was because it is a good thing to do but also because we were taking a human rights approach to our review.
As part of this approach we endeavoured to have fifty percent people with lived experience or carer experience on all these groupings and though we did not quite manage this, got quite far forward.
Just as we were about to go out and consult people and groups face to face, especially carers groups and people with lived experience, lockdown happened. This had a great impact on our resourcing and ability to meet people as everything had to be done on line. However we did meet many lived experience and carer groups virtually.
We also sent out an initial consultation document to which practitioners, organisations and people with lived and carer experience responded widely.
Karen and myself were made joint vice chairs of the review which felt nice though we all tried to work as non hierarchically as possible.
I chaired the compulsory treatment group and was a vice chair of the Social economic and cultural rights group.
I can sense you might be getting bored and confused by now so I will hurry this.
From the consultation and the secretariats research work we refined our thinking and carried out evidence gathering sessions with experts and people with lived and carer experience from throughout the world.
We also established two reference groups to check our thinking with – one a lived experience and carer reference group and the other a practitioner group.
More refining of thinking, another consultation on the refined thinking and then beginning to reach some conclusions, then more thinking, odds and ends of consultations and work that I haven’t mentioned around forensic services and the Barron Review and the Rome reviews that preceded our review and finally and very frantically, it seemed at times. our huge report was done.
What did we conclude? – a lot of the reasoning for our review is that the United Nations Committee of the Rights of People with Disabilities has been saying that compulsory treatments and interventions on the basis of disability should stop completely and across the world countries have been trying to work out how and if this is possible.
And now I am stretching my memory as I have paid no attention to our conclusions in the months since they were reached.
We decided that compulsory treatment does need to continue although there should be active steps taken to reduce its use and that we should seek to find alternatives to it. We have said that the route to compulsion should be based on an autonomous decision making test. So we look at the decisions people are making. We are in effect asking is this the persons genuine decision or is it being unduly influenced in some way? It may be influenced by someone’s disability causing their judgement to be impaired but equally a person’s judgement may be compromised by something else, maybe someone is being unduly influenced in another way, maybe they are being exploited to such an extent that they are not making the judgements that they would normally make and in this way although people may still be treated against their will under the mental health act if this will ensure their rights and needs are met the gateway to some interventions might not always be purely on the basis of disability but will hopefully still mean that people have their health and lives protected if they do get extremely ill. This may ultimately indicate that some people might need protected under other future legislation if they cannot make autonomous decisions but do not have a mental disability.
Central to much of our thinking is that all practitioners, well everyone actually, need to respect the will and preference of people like me and only if we cannot make autonomous decisions possibly intervene against our will.
However there is another layer which is key to all this which will fundamentally alter our legislation or might do if the government agrees with us. This is the human rights enablement approach that would apply to anyone with a mental disability who is a part of or entering the system.
Our current law is almost exclusively about interventions against our will but we are hopefully going to have many more rights in domestic law in this country. Earlier I said cultural economic and social rights by which I meant things like our right to health, to housing, to employment and welfare benefits and to independent living and citizenship, things like that.
We see these as fundamental to how we live our lives and to the quality of our lives. We may need medication but without adequate housing, or the possibility of employment or being able to play a part in society many of us remain living a twilight life.
A human rights enablement approach means that as part of our care and lives, our rights to these sorts of things are also integral to the services provided to us. So in the end our care may not be about just medical interventions it may be saying to a Council “This persons rights are not being met because their home has mouldy walls and that is making them depressed”, or “This persons rights are not being met because there is no way they can socialise with other people”, or get employment or for that matter if they are not given talking treatments, or a support worker, their rights are being breached.
It should widen our opportunities and possibilities and mean that when basic needs are not met we or our representatives can challenge it in court. Alongside that would be the whole process of saying that as far as is possible we will also have support to make the sorts of decisions that mean that we get the services and support we want and people know what we want. It can be hard to come to clear conclusions if we are distressed or for that matter if we struggle with basic concepts. Sometimes we need support and time and help to work out what we want and then a corresponding effort to try to get what we want provided.
There is masses and masses more about what we want to happen. I haven’t touched on what carers would get or how we will hold services to account or the place of lived experience in shaping future services or on how we can reduce coercive treatment and work towards the elimination of elements of the restraint and seclusion that we currently accept has to happen.
But I hope that gives a tiny inkling.
Put bluntly we have said that people with mental disabilities need to have the same rights as everyone else but that we need to enable that to happen safely and without causing death and homelessness due to the impact of our impairments on how we make decisions. It is more complicated than just saying go ahead and do anything you want to do and needs a society that recognises many of us have few rights or opportunities and that it has to act to make sure those rights are realised so that we stop dying twenty years earlier than everyone else, being mainly unemployed, and to a large extend alone isolated and living in poverty.
So in summary here is a short piece Colin wrote recently:
- Sometimes it may be necessary to take decisions which the person cannot agree to or does not agree to, in order to protect their wider human rights and needs and sometimes those of others. That means that some compulsory treatment will continue
- We need stronger safeguards to make sure that this is done in a way which respects the person’s human rights – including their ESC rights
- More generally, we want to reduce the use of coercion in the system, because coercion is harmful, even if it may sometimes be necessary
- Doing that requires better protections at the time coercion happens not just when compulsion is authorised
- We also need to change how we support people to reduce the need for coercion arising
There are bound to be many seminars and webinars taking place that explain all this in more detail than I have just done and in a more accessible way – but I hope that has given you a glimpse into some of our thinking.
(Photo - trees at Ardmore January 2023)
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