Read our submission to the Review of Mental Health Law in Scotland

Submitted on 29th May 2020

This response has been drawn from the views and experiences of Independent Advocacy workers working with individuals who are subject to compulsory measures under the Act. We had hoped to consult with the individuals themselves but due to restrictions currently in place, timescales did not allow. We hope to have an opportunity to submit responses from individuals who have been subject to the Act at a later date in the process.

The Mental Health (Care and Treatment) (Scotland) Act 2003 (“the Act”) came into force in 2005 – how well does it work at the moment? Are there certain things that hinder the Act from working effectively? What would improve things?

The Act brought with it many improvements over what existed previously, its focus on the rights and inclusion of individuals, were very welcomed, as was the addition of a statutory right to independent advocacy, and a focus on participation at all stages. The principles and safeguards that were included were a massive step forward and aimed to provide support and care in the most informal way possible, putting the individuals wishes, and those of their carer’s, at the centre of the process. It has provided a robust system of response to people who may require care and support, often at very difficult, traumatic and distressing times in their lives. But, it allows for some of our most basic human rights to be limited, sometimes for years, and therefore carries a significant burden of responsibility to be proportionate, fair and accountable. Therefore, there is a need to update not just the Act itself but also how the principles of the Act are applied in practice.

In order for some of the rights that were included in the Act to be realised, and have true meaning, there should be more parity amongst all those involved in the decision making process. For example, true participation should include elements of influence and control over the decisions that are affecting someone, not simply just being able to be heard. Including these principles and rights in the day to day application of the Act, is one of the challenges that individuals and practitioners face. In more recent times the principles seem to have been overshadowed by the criteria, and often are only tested during tribunal proceedings.

Participation

We have seen large variations in practice over time, and rather than ensuring equal treatment, the Act depends on good practitioners, clinicians, and conveners to apply consistency. For example, it is often a tribunal convenor who sets the tone for proceedings, and can have a major role in how things progress and how much people participate.

Lack of funding has also had a detrimental impact on the functioning of the Act. Over time, we have seen the pressures on services continually increase resulting in a reduction in service. We see professionals being unable to attend tribunal hearings, which still go ahead, and at times this has affected patient appeals, more than applications. It is particularly felt around 2-year review tribunals where extension & variation of Community Treatment Orders is sought.

We have also experienced a reduced availability of clinicians over time, to include patients and their independent advocacy workers in the care planning processes. There is a danger of this barrier leading to people becoming apathetic towards involvement in the process and disengaging with the process. This is more likely when their will and preferences are overridden, sometimes including their Advance Statements, with little in the way of external accountability, other than notifying a third party.

These pressures have also impacted on independent advocacy services, and our availability over time has been affected. Like many other services we see an increase in referrals year on year, with no increase in funding. Referrals to independent advocacy under the act, can be very variable, and often rely on the practices of individual workers. In addition, many independent advocacy services are having to prioritise statutory work over informal work, which was never the intention of the Millan committee, who envisaged access to independent advocacy to include informal care.

The current arrangements include a duty to ‘secure the availability’, and ‘take appropriate steps to ensure…the opportunity of making use of’ independent advocacy services. We feel that this is open to wide interpretation and we would like to see a simpler duty to refer in any future act, along with provisions for independent advocacy to those receiving informal care.

Supported Decision Making

The Act allows for substituted decision makers to override someone’s will and preferences and is done from a best interest standpoint. At times, we see very valid personal preferences being substituted with little or no standards in place around the best interest decision. There is an impetus for wholescale systemic change away from substitute decision making systems. We would like to see the Act brought into alignment with the UNCRPD, specifically around support to exercise legal capacity.

Independent advocacy is ideally placed with regard to enhancing the supported decision making process. Independent advocacy workers will commonly spend time supporting people to understand their choices, gain information, and make independent decisions, to try and reduce barriers that may exist around them.

Although we would like to see a more formal approach to supported decision making in any future acts, we feel that it should not be limited to an independent advocacy relationship. Evidencing the support around decisions by all practitioners, should be included as part of the principles or criteria when considering interventions.

Diagnostic focus

Independent advocacy partners often feedback to us that the Act seems to be diagnostically led, and focussed on symptoms. At times, this can feel parallel to the reason why the compulsion, or intervention, is being sought, which is often focussed on someone’s functioning. It can add to some people’s distress and experience of trauma when subject to the Act. It may also lead to an over reliance on medical evidence, or opposing medical evidence, which can lead to increasing power imbalances, and does impact on therapeutic relationships. At times, when practitioners are having to give evidence around risks, we often see quite historic risks being discussed in the context of diagnosis, which could arguably be unrelated to the current circumstance and need for intervention.

In other countries care can be overseen by different types of clinicians, not solely medical practitioners, a move to using responsible clinicians may also support a more biopsychosocial approach to care.

At worst, we have seen people excluded from support because they do not fit any diagnostic criteria, despite having considerable mental distress, who have gone on to complete suicide. It is vital that the focus of a future Act is shifted away from diagnosis and moved towards assessing individual capacity to function safely, and the need for intervention around this.

Reciprocity

The Act provides for support and treatment, but at times this is heavily contingent on

resources. Pharmacological treatments are always available under the Act, but we would like to see options around non-pharmacological treatment choices included. We see considerable resource issues when it comes to care packages, support services, housing availability, and access to psychological services. The principle of reciprocity is seriously undermined at times, and there is currently no ability under the Act to enforce it.

Lack of funding in services often results in decisions being made based on what services are available rather than meeting individual need. This can result in compulsory admissions being prolonged due to problems finding suitable support services to discharge to or individuals being discharged without adequate support.

Recorded matters can only go so far in furthering these issues, and we repeatedly see recorded matters about resources return to tribunals unmet, sometimes over years. There is no provision for recorded matters for individuals subject to Compulsion orders, which further impacts on reciprocity for these individuals. The tribunal is unable to take further action on this, and often everyone is stuck with no resolution.

We would like to see any future acts include provisions to fulfil this principle, potentially to include a new appeal if resources are not available, akin to an excessive security appeal. This would allow individuals who are genuinely ‘stuck’ due to resources to have orders made, and to be enforced, or otherwise have further legal recourse.

MHO availability

We have seen increasing demands placed on MHO’s over time, with considerable pressure coming from the Adults with Incapacity Act, due to private Guardianships. This has understandably had an impact on their ability to fulfil their duties as they have done previously.

There is a trend for lower rates of MHO consent for Emergency Detention Certificates throughout the timeline of the Act, and a general overall trend over the past 10 years of decreased MHO availability. This can be particularly noticeable during the first few weeks of a STDC, and it is not uncommon for a newly allocated MHO to meet someone for the first time in relation to a STDC appeal.

Are there groups of people whose particular needs are not well served by the current legislation? What would improve things?

Some groups may benefit from further safeguards, and particularly those who are subject to detention for long periods of time. This can have significant impacts on someone’s normal social functioning and ability to participate in society. We see good practices, in well funded units, which are able to provide longer term occupational, and recreational therapies, focussed on the individual’s wishes, which includes vocational activity. Unfortunately, we see other areas, with less funding where this is not possible.

Commonly in this group the use of compulsion may only be reviewed by the tribunal every 2 years. It would be helpful to see additional safeguarding criteria included at these stages. One of the principles in the Adults with Incapacity Act s1(5), places an onus on those exercising functions, to encourage the adult to exercise whatever skills they may have, and to develop new ones. We feel that this could be further developed to include other groups, and to be strengthened to a level where it can be legally tested.

We were encouraged when appeals against conditions of Medium Security commenced, as a number of our independent advocacy partners had been frustrated at the lack of remedy for their circumstances. We continue to see similar frustrations currently in people who are subject to conditions of lower security, again with no remedy or recourse to appeal.

Individuals subject to both the Act, and the Criminal Procedures (Scotland) Act, have at times questioned whether they are having a fair hearing. This is particularly relevant when an examination of facts is considered, due to an assessment of someone’s ability to participate in proceedings. This does not happen under the civil applications, where a curator is appointed, and the individual is still able to participate, and be heard during proceedings. We would like to see increased involvement of the individual and independent advocacy in these settings.

We continue to see individuals who are impacted by restrictions, but who are informal. In the worst cases it has been argued that deprivations on liberty have not been backed by a legal framework. This is not just reserved for people living in care settings, but can extend to people living at home subject to measures in their own homes

The Act has a set of legal tests to justify making someone subject to compulsion. Would you suggest any changes to these?

The difference in criteria between people on civil orders, and those on compulsion orders, needs to be reviewed. The lower level of proof is arguably discriminatory and it seems that unifying the criteria for both situations would resolve this. Where there is an option for a Sheriff to grant a Guardianship Order as part of their disposal, there is not one for a Compulsory Treatment Order, this could provide a more appropriate, less restrictive option, on disposal.

In relation to Restriction Orders, the issue of the unlimited timescale can seem overly restrictive in some cases. On the face of it, it seems as though the CORO is less restrictive than those subject to custodial sentences, who may go before a parole board and be released on licence. For some of those subject to COROs it can be difficult to understand how the restrictions remain as necessary, especially when people have lived in the community for many years without offending and where the passage of time since the index offence far exceeds any criminal justice disposal or tariff. We would like to see the tests around the continued   necessity strengthened.

We would like to see more importance given to the current principles of the act, potentially to become criteria or tests in their own right.

The Act requires a local authority to provide services for people with a mental disorder who are not in hospital, which should be designed to minimise the effect of mental disorder on people and enable them to live as full a life as possible (sections 25 and 26 of the Act). Do you think this requirement is currently met?

There is strong anecdotal evidence that, due to lack of funding, support services are overwhelmed by the number of referrals.

Independent advocacy workers report seeing increasing numbers of individuals discharged to poor social circumstances, unchanged from time of admission, or alarmingly, to worse circumstances than at admission.

It is often the case that those who are assessed as having a moderate level of need in the community, and are not subject to compulsion, are likely to have a severely reduced package of care and support that is not appropriate to their needs. This can often be no more than 2-6 hours of housing support each week   from voluntary sector providers. In addition, support is typically funded for a maximum of 6 months in the first instance and is often not extended, regardless of the unchanged support needs of the individual. This cycle of short-termism creates a system where the needs of the individual are far from central to decision making processes, as all decisions are made based around availability and cost of services.

The lack of funding in support services has led to an environment where support services are struggling to fulfil support packages and retain staff. Low wages are normal, with support services reporting that vacancies can be difficult to fill and long-term absence is common. This impacts on continuity of care and many have become fatigued by such a “revolving door” system and have disengaged completely from this undignified approach to support. There is the risk that this will result in many individuals going onto experience a deterioration in their mental health and becoming less likely to seek support and re-engage with services.

We are concerned at recent developments, where the Act is used as a ‘passport’ to services. We have worked with informal patients who have been placed on orders, in order to get them access to treatment, and with individuals subject to compulsion, asking to stay on orders, as they would otherwise lose their support. This goes against the principle of informal care, on a backdrop of an increasing use of compulsion. At times there can be issues around funding related to this, as compelled support is not means tested, but informal care can be.

Reliance upon self-financing for informal support packages in Edinburgh has created a two-tier support sector. Which unfairly discriminates against an individual whose needs are not assessed as being critical. This leads to a fear of recovery and has at times led to situations where individuals who have previously opposed CTOs, refuse to contest them, as they could not afford to pay for the care that they receive on an order. We would welcome free support to all, informal or otherwise.

Does the law need to have more of a focus on promoting people’s social, economic and cultural rights, such as rights relating to housing, education, work and standards of living and health? If so, how?

We would welcome any changes that would bring about increased access to these rights. The removal of mental health services from The Patients Rights (Treatment Time Guarantee)(Scotland) regulations, which would have allowed a maximum wait of 18 weeks from referral to treatment, can only be discriminatory when it comes to a right to health, and a right to mental integrity. Access to priority housing, supported accommodation and residential care has to become more enforceable through legislation. We have seen good use of legislation in the forensic system, through excessive security appeals, which has led to increased resources becoming available over time.

Do you think the law could do more to raise awareness of, and encourage respect for the rights and dignity of people with mental health needs

We were pleased to see the Scottish Government campaign and commitment to training 5000 non mental health front line staff in recognising psychological trauma, with the additional aim to promote a wider awareness to include trauma informed workplaces. Training on this level with a wider scope around mental wellbeing, support and public awareness of mental health legislation would be  very helpful

Based on your experience, are there any difficulties with the way the 3 pieces of legislation work separately or the way they work together? What improvements might be made to overcome those difficulties?

There are times when the 3 acts can work well together, and in particular there is a mechanism to enquire and support people who may need it in a variety of difficult circumstances, under different timescales. It can often be very helpful to have different decision makers using different legislation, as the potential for conflicts of interests is high under these situations.

Independent advocacy has been explicitly included in all 3 acts, but in practice we see very different referral rates and patterns across the acts. We would prefer to see the same duty to refer in all the acts, to simplify, and improve access to independent advocacy.

When individuals are subject to various acts at the same time, the legislative burden is too great. This proves to exclude people from engaging and participating, and it is not uncommon for individuals to ‘give up’ during long legal processes.

Sadly, we find that there is considerably less uptake by individuals to involve themselves with Court processes under AWIA, despite major efforts by the Courts to develop practice and improve access. It is very hard for some people to read and digest MHTS applications and reports, but almost impossible for individuals to fully understand what might be included in a set of papers for a Guardianship application. The MHTS tribunals are, by their very nature, setup to be more inclusive but they are also limited. We would prefer to see an overarching tribunal service with more ability to enforce orders such as directions, recorded matters, and issues that relate to resource availability.

The inclusion of non means tested legal advice, assistance and representation for Mental Health Tribunals was a major step forward in accessing a fair hearing, but the fact this is not mirrored with all of the AWIA cases has led to people not opposing applications, when they wanted to. In the most extreme cases we have worked with individuals subject to a financial guardianship, who wished to oppose it, and would have needed to get financial agreement from their guardian, in order to pay for legal representation to challenge the guardians current role. This conflict is not seen under the MHA, where an individual can contact the tribunal directly, on their own, with no other support, and a hearing can be convened at no cost to them.

Overall, Unification of the 3 acts would be another major step forward, and we have seen examples where the 3 acts can work ‘against’ someone. For example if a court is waiting on a tribunal decision, or vice versa, to make a decision themselves. It would also mitigate the use of the MHA as an emergency intervention, when AWI guardianships are what is required. It could also allow for a common care coordinating role to be developed, which is often needed with very complex care which currently utilises 2 or 3 acts together but can be managed by a number of different professionals.

Is there anything else you wish to tell the Review?

We have found that the use of DWP appointeeships to manage funds is very commonplace, but it is not possible to appeal them, or have any external oversight. We have also never had a response from DWP in relation to concerned individuals wanting a review of these arrangements.

Given this falls out of the scope of the current 3 acts, but plays a significant role in restricting or managing someone who is deemed incapable, we would like to see some way of providing oversight of these arrangements included in any future acts that involve management of funds. We often see people who are worried that no longer being subject to the Act will affect their eligibility for welfare benefits at the same rates, as they believe their needs will be assessed as being lower.