Public policy highlights: June 2022

The Society’s policy committees analyse and respond to proposed changes in the law. Key areas from the last few weeks are highlighted below. For more information see the Society’s research and policy web pages. 

Scottish Mental Health Law Review

The Society responded to the Scottish Mental Health Law Review’s consultation, which sought views on proposals for changes to mental health and incapacity legislation. The response highlighted the need for comprehensive reform, designed to meet all needs for support for the exercise of legal capacity and effective enjoyment of all rights “on the same basis as others”, in terms of the United Nations Convention on the Rights of Persons with Disabilities (“UNCRPD”).

It welcomed recommendations for a wideranging scheme of support for the exercise of legal capacity, human rights enablement as a new approach to assessment, and for the principle of an autonomous decision-making test, but called for the abolition of “mental disorder” or similar gateway terminology based on diagnostic criteria, in order to achieve compliance with UNCRPD and a human rights approach. It also called for reforms to protect the rights of carers and children and young people, and highlighted the crucial importance of ensuring accountability within relevant areas of law and practice.

A number of priorities were suggested, including a regime to govern deprivations of liberty and the establishment of a unified tribunal to facilitate a “one door” approach under mental health, adults with incapacity and adult support and protection legislation.

Find out more online.

Advance choices and medical decision-making

A Society working group of legal experts, medical practitioners and academics authored a report, with annexed preparatory papers by members of the group, on advance choices, and medical decision-making in intensive care situations. 

Advance choices, also known as advance directives, are instructions given, or wishes made, by capable adults concerning issues that may arise in the event of their incapacity. The paper identifies and addresses all the matters which, it suggests, would require to be covered in legislation to meet current deficiencies in Scots law.

Medical decision-making in intensive care situations includes decisions about refusing or withdrawing life-sustaining treatment, a matter that may be covered by advance choices. The paper calls for urgent reform to provide the clarity and certainty at present lacking in Scots law, offering a basic formulation of the doctor-patient relationship, and resulting obligations, responsibilities and potential liabilities in any situation where medical decision-making cannot proceed in accordance with the informed consent of the patient.

Find out more online, and on p 14 of this issue.

Proposed Fly-tipping (Scotland) Bill

The Society’s Environmental Law and Criminal Law committees responded to a consultation from Murdo Fraser MSP on a proposed Fly-tipping (Scotland) Bill.

The response highlighted the need for a multi-faceted approach to fly-tipping, including consideration of matters such as societal attitudes towards litter and fly-tipping, the challenges of disposing of waste particularly on a smaller scale from domestic use and business, and challenges with enforcement, including resourcing. Improved data collection, co-ordination and reporting would assist in understanding the nature and extent of the problem, and targeting actions and resources appropriately.

Regarding proposed duties on those generating waste, including householders, it was noted that careful consideration would be needed to ensure no unintended consequences. Certain duties of care in relation to waste already exist in the Environmental Protection Act 1990.

Concerns were highlighted regarding a proposal to review the requirement for corroboration in relation to fly-tipping, the response suggesting that the challenges around reporting and prosecution should be investigated before systemic change is considered.