Reform must ensure that law does not discriminate against people who do not have a diagnosed mental illness

The Law Society of Scotland has called for legal reforms to ensure that the law does not discriminate against people who do not have a diagnosed mental illness.

The professional body for Scottish solicitors has said it is essential that support is available to everyone who might need it, particularly people with impairments of their capabilities, or who are vulnerable, or at risk from any cause.

In its response to the Scottish Government’s Mental Health Law Review Consultation, the Law Society commends the Review’s proposed recommendations but says that they must go further to protect the rights of individuals in line with the principles of human rights, justice and the rule of law.

The Society also recommends that reform should improve access to Child and Adolescent Mental Health services for people up to the age of 18 who are suffering mental distress, and suggests that the principles of the Mental Health Act should be extended to include the wider principle of respecting the rights of the child.

Adrian Ward, Convener of the Law Society’s Mental Health and Disability Sub-Committee, said: “Most mental health services are designed with adults in mind, so it is important that the law is reformed to ensure that children in mental distress receive appropriate respect, care and protection.

“It would not for example, be appropriate under any circumstances, for children to be admitted into adult psychiatric wards and there must be a provision for safe and child-centred alternatives.

The Society calls for comprehensive reform to ensure that people who may be subject to any of the main relevant areas of legislation can access the full benefit of their rights and - in line with the United Nations Convention on the Rights of Persons with Disabilities (UN CRPD) - are treated ‘on the same basis as others’.

Adrian Ward, said: “It is clear that human rights and respect for people who might be affected by mental health, adults with incapacity, and adult support and protection legislation, including carers, families and those who work in related professions, must be at the centre of reform.

“Resources must be allocated to recruitment, training and retention of adequate numbers of mental health officers and steps must be taken to ensure that people have clear access to methods of challenge where their rights are violated, including legal redress where appropriate. All rights enshrined in law should be made effective by attributable duties and available remedies.

“We strongly support the basic concepts of human rights enablement and of an autonomous decision-making test as suggested by the Review. These should be at the core of further legal reform. However, to meet the needs of all people in a human-rights compliant manner, these proposals need to be broadened and the term ‘mental disorder’, or any other potentially exclusive gateway terminology based on diagnostic criteria must be abolished in favour of a fully inclusive approach.

“The Review team has done some excellent work in analysing the issues with current mental health legislation and identifying principles for reform, but if the intended outcomes are to be achieved, then equal attention must be paid to practical issues, and planning and resourcing of implementation.

The Society also reiterates its calls for a wide-ranging scheme for support for the exercise of legal capacity, and clear and effective legislative provision for advance choices as set out in its recent Advance Choices and Medical Decision-Making report.

Read our full response.