Have you thought about your future, should you lose capacity to make your own decisions?

Jennifer Paton, Law Society Policy Executive and Secretary to our Mental Health Committee and the Health and Medical Law Committee, reflects on the three main pieces of mental health and capacity legislation, their short comings and our comments and contributions in the context of the Mental Health Law Review.

Have you thought about what would happen if you needed medical treatment, but were too ill to give your consent? What about if you needed to stay in hospital, for your own safety or for the safety of others? Or if your capabilities gradually became impaired through aging? Have you considered who might make decisions about your welfare and finances if you couldn’t make them yourself? Who would pay your electricity bill, or arrange for you to move to a care home? Have you wondered what would happen if you were concerned a friend or neighbour was at risk of harm or neglect? Or if a son or daughter with a learning disability or other condition reached adulthood still needing significant support to make decisions or avoid risk? Who’s responsible for supporting and protecting them?

At the moment, the answers to these questions (and more) are provided by what we might generally call Scottish mental health and incapacity law: three main pieces of legislation - the Adults with Incapacity Act, the Mental Health Care and Treatment Act, and the Adult Support and Protection (Act - and some provisions located in other legislation including social care and social security laws.

Legislative review

In 2019, the Scottish Government announced an independent review of mental health and incapacity legislation. That review- now chaired by John Scott QC and called the Scottish Mental Health Law Review- is due to report by the end of September 2022.

The review is expected to make recommendations which could lead to fundamental changes in mental health and incapacity law in Scotland- the law which determines the answers to questions such as those above. For many, at some point in our lives, these questions will no-longer be hypothetical- we will need to deal with our own need for support, or that of a parent, partner, child, other relative, friend or neighbour. So we all have an interest in Scotland moving towards mental health and capacity law that is robust and fit for the future. Together with our expert volunteers, we at the Law Society have been engaging fully and extensively with the review process.

A consultative approach

As part of the final phase of their work, the Scottish Mental Health Law Review has recently issued two public consultations seeking views on their proposed recommendations for changes to the law.

The first consultation, which closed in May, sought views on a very wide range of proposals. It covered the purpose of the law and some of the fundamental concepts and structures proposed to bring Scots law more into line with human rights requirements, as well as the role and rights of carers and the law relating to children and young people.

Our response to the Review’s proposed recommendations

We responded to the consultation, commending the Review’s proposed recommendations but saying 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. We also called for the use of ‘mental disorder’, or any similar term based on a medical diagnosis, as a gateway for treatment to be abolished.
We argued that treating people with a ‘mental disorder’ differently from others was inconsistent with an approach based on human rights - which apply to everyone, regardless of any disability they might have. We supported the Review’s proposals relating to human rights enablement and an autonomous decision-making test as a significant step towards law which is human rights complaint and supports everyone, at all stages of their life.

Our response to the Review’s additional proposals

The second consultation, which closed in July, had a narrower focus on independent advocacy, advance statements and how mental health law interacts with the criminal law, for example where someone is unfit to stand trial due to a mental illness.

In our response to the consultation, we again highlighted that treating someone differently solely because of their ‘mental disorder’ is inconsistent with an approach based on human rights, and called for the relevant criminal law to be reviewed and reformed alongside and consistently with wider mental health and capacity law.

The Review’s proposals for reforming the law relating to advance statements were of particular interest, as we’ve recently published our own paper on advance choices and medical decision-making in intensive care situations.

Advance choices

Advance choices (sometimes called advance directives, or ‘living wills’) allow people to give instructions or express their wishes about what they would like to happen if they are no-longer able to act for themselves or make their own decisions at some point in the future. They are often used as a way for people to record what medical treatment they would or would not wish to receive if they were to become seriously ill. However, our report sets out how advance choices could have much wider application to all health, welfare and personal matters, and to economic and financial matters.

At the moment, mental health law makes provision for mental health ‘advance statements’ but there are no other statutory provisions for advance choices in existing Scots law. The law is different in England and Wales, and the consequence is uncertainty and a lack of clarity for people who want to give instructions or make their views known in advance to their families, the professionals treating or supporting them, providers of services to them, and others. The Review proposes a ‘statement of will and preference’ as a way for people to make provision about their futures involving mental health and capacity legislation. We call for a broader approach to advance choices, in line with the detailed recommendations set out in our paper.

Deprivation of liberty, a Scottish concern?

In response to both consultations, we highlighted our major concern that Scotland- unlikely England and Wales- still has no legal regime to govern deprivations of liberty, despite important court decisions on the law in this area. A deprivation of liberty can occur where someone who is not able to give consent to their care or treatment is cared for in a setting where they are subject to continuous supervision and control, and they are not free to leave. This can be the case in a great number of care settings, and it is essential that Scotland has a legal process to authorise these situations in a way that respects and safeguards the human rights of the people involved.

Next steps

We expect the Review to issue a final report in September. Taking forward the recommendations will then be a matter for the Scottish Government, and we can’t say at this stage how they might choose to do that, or the likely timescales for any changes to the law. There are also a number of other relevant policy reforms already underway which may affect the final legal landscape relating to mental health and incapacity.

Firstly, the Scottish Government has committed to legislating to incorporate a number of human rights instruments, including the UN Convention on the Rights of Persons with Disabilities, into Scots law. It’s not clear at the moment what this legislation might look like, or how it might convert the aspirations in international instruments into effective law, but it’s likely that any new mental health and capacity law will need to sit alongside and work with this wider rights framework to protect and promote the rights of people who need support.

Secondly, the Scottish Government has introduced a Bill to establish a National Care Service. This could lead to major changes in how social care is delivered to people with mental illness and other support needs. Again, any new mental health and capacity law will need to work alongside a National Care Service to ensure that people are able to receive the support they need. Finally, any new legislation will need to be accompanied by training for professionals, information for the public and proper resourcing to ensure that it’s fully implemented and embedded in practice.

The Review’s final report will be a significant milestone on the road to reform of mental health and incapacity law in Scotland. This is an opportunity for Scotland to introduce new laws which protect the human rights of everyone who might come in to contact with mental health and incapacity law . The law in this area has a huge impact on the day to day lives of so many people in our families and our communities.

So when we need to ask the questions posed above, we all have an interest in the answers being contained in laws which are fair, clear, accessible, fit for the 21st century, and robust enough to serve Scotland for the coming decades.