Scottish Mental Health Law Review consultation

What is the purpose of the law

2.1 What are your views on purpose and principles

MHNGG support the purpose and the principles of the proposed changes to mental health law in Scotland. We particularly welcome the broadening of the focus of mental health law “to enable people to live fulfilling lives, and to ensure that the human rights of people with mental disabilities are respected, protected and fulfilled.” We welcome the inclusion of broader economic, social, and cultural rights and agree that their inclusion in future mental health law is justified and necessary.
In addition to delivering a contract relating to engagement activity with mental health services across the Greater Glasgow and Clyde area, MHNGG has worked with partners such as Health and Social Care Alliance Scotland and the Scottish Recovery Network to promote a number of pro-active approaches that attempt to enable people to maintain their own wellness (such as the promotion of self-management tools, peer support groups, advance statement information and support and named person information and support). We agree that the broadening of the scope of the legislation to enable people to ‘live well and enjoy their lives without stigma or prejudice’ should fall within the scope of mental health law.


Regarding the four core principles we wish to express the following views:
• Respect for Dignity. In addition to focus group work looking directly at dignity and respect we know from over 12 years of formal engagement work within NHS Greater Glasgow & Clyde’s (hereafter NHS GG&C) mental health services and direct engagement that we have undertaken with our membership on this topic that being treated with ‘dignity and respect’ is critical to a positive experience of receiving mental health treatment and support and that this is central to more effective engagement in the care process which then better reflects the care needs of the person receiving care. We would advocate that a framework that explores this dimension of the care process should be a central part of how we evaluate our mental health services.
In addition a suggestion that our members feel would be helpful to destigmatise the term ‘mental health’ would be for our current ‘mental health’ treatment services to be renamed ‘mental ill-health treatment services’. This we feel would clarify their current role.

• Respect for Autonomy. MHNGG absolutely concur that this principle is fundamental to the correct operation of mental health law as it is intended to be within our law. We believe many of the current rights and safeguards that currently exist within mental health law (e.g. Tribunals, Advance Statements, Named Persons, Mental Health officers, etc) are good in theory but have suffered due to a lack of review relating to their uptake and/or effectiveness. To illustrate we know that there have been issues recruiting Mental Health Officers in some local authority areas for a number of years now, we know that there is a low uptake and poor awareness of advance statements as well as little support or training for those willing to take up the named person role, etc. We would propose that a future role for bodies such as the Mental Welfare Commission for Scotland (hereafter MWC) should be to be able to recommend that the Scottish Government initiate remedial action where there is evidence of a right or safeguard failing to be realised.

Regarding Supported Decision Making, we believe that we currently have a ‘reactive’ mental health system whereby a person becomes mentally unwell and then becomes entitled to advocacy and other decision making support whilst unwell. We have seen in our self-management and advance statement work that people have benefitted from a process of reflection upon their experiences of treatment and illness and welcome the opportunity to plan preventatively for the future. Where Scotland’s community based supports work well is when they embrace elements of this preventative pro-active approach to flag up and address issues preventatively prior to a person becoming unwell again and lacking the capacity to do so, this could be in the form of crisis planning, wellness planning or formal tools such as advance statements.

A further observation that we have made is that the treatment and support offered by our mental health services is often provided by staff who either do not know the person being treated or who don’t have any knowledge of them as a well person. Add to this that the people receiving treatment often have strong opinions about their experiences of mental health care and their treatment (e.g. side-effects of medication or treatments such as electro-convulsive therapy) and that (to our knowledge) there is no systematic recording of these opinions on a routine basis. Thus we have people who have no personal knowledge of a person, treating a person who lacks capacity and without any prior relationship or systematic support to assist the process. This happens every day and across the entirety of Scotland and we cannot help but wonder how many negative experiences within our mental health system could have been avoided by the recording a patient’s opinions about their care and enabling a dialogue with them. In addition the entirety of our engagement work consistently tells us that relational factors relating to mental health treatment and support are what people value most. These help a person feel ‘connected’ to their care and help them maintain an involvement in the treatment process.

• Non-Discrimination and Equality
We absolutely welcome the commitment to non-discrimination and equality and particularly welcome the aspiration that ‘requires us to remove the barriers that prevent disabled people from participating as equal citizens in society and having control over their own lives’.
We often during our work look at the historical context behind our mental health system. This helps us look at the broad direction of change and highlight how the social context has also changed and this supports discussions relating to how our mental health systems could further change. We know that the Greater Glasgow and Clyde (hereafter GG&C) area is one of the most populous and diverse areas in Scotland and that it has a number of areas of significant deprivation. We would argue that our current mental health system is still to some degree anachronistic and reflective of an ‘able-bodied, degree-educated, white western’ approach to the medical treatment of mental ill-health. This creates inequities within the take-up, engagement and provision of mental health treatment and support, particularly for black and minority ethic (hereafter B.M.E.) communities and those with access and support needs as well as those with poor educational attainment and literacy.

• Inclusion
We absolutely agree with the right ‘to be included regardless of a label’. We feel that it is absolutely necessary that people have the right “to participate not just in their care and treatment, but in wider society – to have meaningful access to independent living, to fulfilling work, to friendships and social connections, to culture and creativity.”
We know from national initiatives such as the development of early intervention in psychosis services that mental health treatment and support can support ways to enable inclusion into society such as family therapy approaches and having an emphasis to retain a person within employment or education. We also know that early intervention approaches often result in significantly improved outcomes for people, socially and medically. We would like to see the ‘mainstreaming’ of this kind of emphasis in the promotion of a full holistic ‘recovery’ from mental ill-health.

• Reciprocity
We feel that the retention and strengthening of this principle is hugely important. We would advocate for an explicit recognition that for every restriction there has to be a system to scrutinise, manage and minimise the restriction whilst it is in effect, promote engagement throughout the period but also ensure that the person subsequently becomes entitled to supported decision making support to manage and minimise any future restriction, i.e. learning from an episode of ill-health with support to plan preventatively against any future episode of mental ill-health and/or loss of capacity.

In addition we would highlight that for many the disempowering experience of being under a restriction and receiving compulsory treatment is in itself damaging and harmful regardless of the intention of the process (to ensure safety). These measures are often perceived as highlighting the imbalance of power that people feel between them and the mental health services treating them. This means that people often disengage as quickly as they can from service support and/or that they will seek to manage their engagement with them rather than become an active partner in their care. To illustrate this, on many occasions we have heard patients say statements such as ‘if I was honest about my (suicidal) ideation I wouldn’t get out of hospital’. The restrictions and have in effect created a disincentive to engage with treatment and support on an honest basis. This may seem like a minor point but if we look at the University of Manchester’s National Confidential Enquiry into Suicide and Safety in Mental Health then we see that the majority of suicides occur in the early post-discharge from hospital period. Maintaining engagement in care IS potentially a matter of life and death for some.

Another example would be to point to responses to the Scottish Government’s Patient Safety Climate Tool, used as part of the mental health arm of the Scottish Patient Safety programme. We have facilitated 500 of these questionnaires since 2014 and the lowest scoring question almost universally is Q.17 ‘I am involved in decisions about my medication’. Most answers to this question will be negative with people making a statement such as ‘No. It is the doctor that makes all the decisions’. The consistency of this negative response to us is very telling of a system that people within it perceive as disempowering.

Regarding the concern that “if the rights of people subject to compulsion are too different from those being treated with consent, there may be a perverse incentive to use or seek compulsion as a lever to ensure support” then we would concur that if everyone received equal access to support then this would be valid HOWEVER the reality is that there are many groups that have additional barriers to their full participation in the treatment and support processes and may be disproportionately represented within our hospital services. We have previously mentioned B.M.E. communities and those with access and support needs as well as those with poor educational attainment and literacy. We could add people with learning difficulties, acquired brain injury and many others. We would point to a dearth of specialist advocacy support in these areas and to illustrate this lack of specialist support we would point to the Scottish Independent Advocacy Alliance’s ‘map’ of advocacy providers across Scotland.

Regarding proposals for the Scottish Government to meet core minimum obligations for economic, social and cultural rights in this area we wish to express the following views:

• We agree with the stated view that “for Scottish society to become equal for people with mental disorder, universal design and reasonable adjustments would have to be widely used.”
Within the context of our current mental health provision we feel that creating support and services with the capability to coproduce and personalise care solutions is the first step forward. Our work on advance statements has shown that where there is empowerment and dialogue with treating professionals sensitive and contentious areas of treatment can be constructively approached, discussed and treatment plans can be developed that reflect and/or acknowledge both the views and wishes of the person receiving treatment and the concerns of practitioners.

2.2 What do you think about the approach that we are proposing for Scottish Government to meet core minimum obligations for economic, social and cultural rights in this area?

• Regarding the recognition of the importance of economic, social and cultural rights (ESC rights), we fully support this inclusion. In relation to social and cultural rights as well as involvement in the NHS GG&C NHS’s ‘Healthy Minds’ public health and anti-stigma work and the national ‘See Me’ campaign, we would cite Glasgow Centre for Population Health’s Glasgow Indicators Project and their neighbourhood Health and Wellbeing profiles as a good source of evidence regarding the levels of need across Glasgow City for the review to consider. This work highlights the diversity and economic inequalities across the region.
In addition it is the experiences of our members, many of who are in receipt of benefits and struggle to find work, face societal stigmas and experience social isolation that ultimately guide our work in this area. It is much harder to stay mentally well in the face of economic, social and cultural barriers.

• Regarding to inequities in the access of mental health care and treatment we welcome the core minimum obligations to be placed upon the Scottish Government and thereby local statutory agencies. As previously stated it is our view the G.G.&C. region is the most diverse in Scotland, containing historically areas of high deprivation and inequality. An explicit statement guaranteeing a core minimum set of rights would be a useful yard-stick against which to begin to address these inequalities.

• The reframing of health and social care provision in the terms of a human rights framework is very welcome. It is our experience that the people who plan and deliver our health and social care services tend to be familiar with the legal and rights frameworks of their specialist area of expertise but do not have a wider human rights based perspective. Whilst this is anecdotal we feel that the reframing of our service provision to incorporate a human rights element would have tangible benefits for the people who receive these services, particularly those who experience additional barriers to equitable service provision. We would cite work done by NHSGG&C public health practitioners to increase awareness of the Human Rights Act with both psychiatrists (as part of their ongoing professional development) and people with a lived experience as an example of how a human rights based approach could be embedded within services.

• We have undertaken two reviews of supported housing projects (Glasgow City & Inverclyde) as well as regular ward based engagement in which the importance of housing has been directly relevant to both the proposed discharge from hospital and the ongoing mental health ‘recovery’ of the person. From this work it is clear to us that the broadening of the proposed human rights approach to incorporate “other relevant government policies and strategies, including housing, poverty, employment and community support” is both necessary and welcome to address long-term issues such as a historical lack of good quality social housing.

• As previously stated we have been involved in NHSGG&C’s ‘Healthy Mind’s’ work as well as the ‘See Me;’ campaign for over twelve years and despite a greater public awareness of, and perceived acceptance of some mental health conditions, some of our members still experience stigmas sometimes on a daily basis. Therefor we would welcome a positive duty on the Scottish Government to address stigma and discrimination against people who experience mental ill-health. We also feel that against a backdrop of rising disability hate crime that a campaign to challenge and raise awareness of disability hate crime and hate crime generally would have a practical benefits and refresh such initiatives such as third party reporting sites.

• We would point to work supported by Glasgow Council for Voluntary Services and led by Glasgow Disability Alliance as illustrations of the third sector’s desire to enter into meaningful partnership work with statutory partners to address the issues that local disabled people face.

Right to Health
• We agree “that sections 25-27 of the 2003 Act should be extended and reframed to set out clear and attributable duties on NHS Boards and local authorities to provide mental health support to individuals with significant levels of need, reflecting the core minimum obligations.” Whilst sympathetic to the financial pressures local authority and other local partners have found themselves under during the last decade we feel that a large amount of the impact of cuts to local services has disproportionately fallen upon disabled people with benefit changes, care charging and other cuts to local amenities negatively impacting upon our members.

• As previously stated it is our view that we have a ‘reactive’ mental health treatment system that responds once a person becomes unwell and there is a level of risk presenting. It is our experience that current provision enables a person to reach a certain level of mental wellness (usually with pharmacological support) but beyond that there is far less support to support a person to achieve a longer term ‘recovery’. There are a number of reasons for this, some of which will take a long time to address, e.g. an ageing workforce and a shortage of qualified staff such as psychologists. We would like to see the next mental health strategy seek to address the systemic, long-term issues that may prevent the aspirations of this review from being realised.

• With reference to our previous point about having a reactive mental health system, we would like to see a national exploration of the value of preventative planning within mental health services. This is obviously outside the scope of this review but we feel that the learning from such a piece of work could inform the practical strategy and planning that would follow on from this review as well as improve mental health services by highlighting good practice and alternative models of service provision to our traditional ones. To illustrate throughout our work with the review we have heard approaches such as the ‘Open Dialogue’ approaches pioneered in Finland.

• In relation the topic of risk management, it is our view that the process benefits from the incorporation of the patient’s views relating to their condition, the risks it exposes them to and their views relating to treatment. We would therefore like to see the routine systematic recording of the patient’s opinions and views relating to their treatment, restrictions and risk especially where the patient disagrees with the views of the doctor or team treating them. We feel that with a good therapeutic relationship or advocacy support this would not be onerous to obtain (people are expected to prepare for, attend and participate in reviews for example), it would acknowledge and strengthen the patient voice and provide greater transparency to risk related treatment decisions and restrictions. These could then strategically provide organisations such as the M.W.C. to scrutinise the workings of our mental health services and laws in greater detail.

Regarding addressing the social determinants of poor mental health
Whilst we acknowledge that this is a hugely complex issue in addition to previous comments made we are of the view that there are a number of initiatives currently underway that would improve these inequalities.
We feel that work to promote ‘trauma informed’ approaches to address adverse childhood experiences and poor mental health have a number of benefits.
1. They are less stigmatising, people ask ‘What happened to me?’ rather than ‘What is wrong with me?’ This has the benefit of promoting better engagement with a person’s mental health treatment and support.
2. Many of our members directly attribute their mental health issues to trauma as a young person. This synergy in terms of approach means that the treatment and support should be more closely aligned in terms of goals with the person receiving the treatment.
3. This kind of support contextualises the issues the adult faces and thus can acknowledge issues such as childhood poverty, social deprivation, historical occurrences, etc. The mainstreaming of approaches like these within mental health services (and an associated right to access these) would we feel provide us with better acknowledgement and a better evidence base to identify the social context and determinants of mental health issues.

We also view positively work being undertaken to promote mental health awareness, dialogue and skills development within schools and services that work with young people. We have observed a positive openness, acceptance and awareness of mental health issues that we hope would lead to better mental health outcomes for all over time. We have observed young people discussing in an informed and insightful manner issues such as suicide awareness, bullying, self-harm and how to support peers. We welcome this and would like to see similar community based capacity building, anti-stigma and awareness raising work done to address geographical and cultural groups that are disadvantaged in terms of accessing current treatment and support.

• Adequate Income
We agree that “the Government’s approach to financial inclusion in its mental health strategy and more broadly should address particular issues, such as disruption to benefits when admitted to hospital, failure of benefits assessors to recognise mental health conditions as disabling, and the over-use of the sanctions regime when people struggle to keep appointments.” Whilst we would welcome the emphasis on advocacy support in this area we would also welcome the opportunity for the development of greater inclusivity and ‘good practice’ for these organisations when employing and working with people who have variable conditions, to support this we would cite the evaluation of a financial inclusion project based at Stobhill Hospital in north-east Glasgow. We also feel that a greater disability awareness and representation at a senior level, say through public appointments, would guide the development of more inclusive public policy and services.

• The rights to adequate housing
A consequence we have seen repeatedly through our hospital based work has been the delay in a person’s discharge because of issues relating to their housing and community based support. We are conscious of a shortage of suitable social housing nationally and feel that the remedy for this requires a national priority be the development of a large amount of good quality accessible social housing. We feel that whilst this is beyond the scope of the review it is not beyond the scope of the review to make this point to the Scottish Government or even to make a recommendation to this effect.

• The right to independent living
As previously stated we feel that there is a lack of suitable social housing and appropriate housing based support. This has many implications for the review but we would cite poor social outcomes, delays to discharge and social isolation as examples of the kind of issues that we have encountered within our engagement work on a number of occasions. We feel that any future housing and social care strategies should have close synergy with the aspirations of mental health policy and law.

Supporting the crisis as a learning opportunity
A large population of the mental health lived experience community will have experienced more than one episode of mental illness or crisis. Approaches such as Wellness Recovery Action Planning take learning from these previous episodes, encourage the person with a lived experience to reflect upon them and to plan preventatively. These approaches align closely with our own advance statement work and also crisis planning work undertaken by some statutory services. In addition to this work we have previously enabled regular peer-support ‘wrap groups’ which provide people with the opportunity to discuss, reflect upon, update and improve their wrap plans in a supportive environment. An ideal for us would be for people to have the support and right to develop wellness plans, for them to be discussed, acknowledged and recognised by supporters and services, systemically available in a time of crisis and after a crisis for the support for a person to reflect upon and update these plans to be available.


People have strong views regarding their psychiatric treatment and care. These must be acknowledged
A simple yet powerful exercise we undertake when promoting advance statements and wellness planning is to ask about a person’s views relating to their treatment options within their psychiatric care. People will often state medications that they do or do not wish to receive, they may voice anxieties (or positive views) relating to treatments such as electro-convulsive therapy, they may have preferences relating to talking, art or other rehabilitative therapies, etc. We then point out that the people treating them when they are most unwell are highly unlikely to know them, or know them as a well person. Furthermore there is no systematic recording of these views within the patient information systems our services use (although these can be incorporated). We then ask the person, ‘What do people need to know to work with you when you are most unwell?’ This usually solicits a very positive response regarding the making of preventative plans. In short people want to contribute to documents that will help them receive better support and services when unwell (especially if there have been serious issues in the past).

Advance Statements
We acknowledge and recognise the issues stated in the review that are facing people who wish to make an advance statement. Our solution was to utilise a mixture of peer and advocacy support to enable a person to engage with the process in a highly individualised way. We adapted the topic to their own circumstances, needs, support and capacity to engage. This was highly specialist and occasionally time intensive but this enabled us to gain a lot of experience and insight into the supported decision making process.

Capacity – where people have a highly variable capacity the frequency and/or flexibility of support is critical to maximise the opportunities to enable people develop formal or informal statements relating to their psychiatric care (and other areas such as carer engagement).

Independence – where a person is under mental health legislation, independence is essential in order to enable the person to feel that they are supported, able to consider their position and articulate their views free from the undue influence of their current situation or other external factors.

Where a person is not currently under mental health legislation then they may prefer to engage with a trusted mental health professional to discuss and or develop their advance or personal statements. Likewise a current mental health professional is often in a position to offer important suggestions and/or improvements where a person has a long treatment history and is unclear about their prior or current treatments.

Regarding mitigating against undue influence and pressure being placed upon a person under supported decision making activities we stress two things that may help mitigate undue influence. The first is to try and create a partnership with both professional and informal supporters being involved in the cooperative development of the statement where possible. The other thing we stress during our advance statement work is that of ensuring the credibility of the advance statement.

We discuss the articulation of views which may be appropriate and those which are not within an advance statement (e.g. the request to smoke within a hospital setting). Because there is a need to have the advance statement witnessed we recommend the involvement of a supporting mental health professional in the development if one is available. Where there is prior discussion regarding the views that may involve other partners (e.g. a mental health professional) there is often greater transparency to, and possibly an actual a record of, the decision making process. We will stress that the final views and wishes articulated in an advance statement are ultimately those decided by the person making the statement and that we are merely highlighting what we consider good practice to ensure there is greater awareness of the statement and greater rigor in its development.

Legal right to access supported decision making
We feel that where there is a foreseeable future loss of decision making capacity then there should be a legal right to access supported decision making to mitigate against potential future restrictions. We would point to the right to access support to make pro-active and preventative decisions given to those with a dementia diagnosis. We would ask why there is no parallel within adult mental health services where there is a formal psychiatric diagnosis. We would cite the high number of people who go on to have a subsequent admission after their first as evidence of the high level of potential need in this regard.

Advocacy Provision
Across GG&C independent advocacy organisations do a hugely important job, often at short notice, supporting people experiencing severe mental illness against tight deadlines. We feel that the difficulties this hugely important work takes place against are because the nature of the funding of such advocacy organisations, often directly related to the contracts to provide advocacy support for those under mental health legislation. Whilst welcome this does not leave much capacity to do work out with such times for people who may request it. In addition not all groups, e.g. mental health carers, can access appropriate advocacy support.

We feel that long-term advocacy engagement should be available for those with impaired communication and/or who foresee experiencing some future loss of capacity (as well as carers of said persons). This is to enable them to engage with the support effectively and to make considered opinions where possible. We would cite work in the field of dementia whereby a dementia diagnosis enables a person to receive support in relation to future decision-making from a dementia advisor.

To our knowledge there are two principle ways individual advocacy could be delivered over a longer-term, by a paid advocate or by appropriately supported volunteer 'citizen' advocacy models. On the subject of cost, we think that a paid advocacy service would be more expensive per-head and would have less capacity that a citizen advocacy model but it would have more 'capability' to deal with complex issues, formal agencies and specialist areas. The citizen advocacy model could be supported by a smaller number of professional advocacy workers who have greater technical knowledge and skills.

Organisations that provide this individual advocacy may also wish to support group advocacy and/or peer support groups that could promote awareness of and the uptake of rights.

In addition to the qualitative service improvements offered by independent advocacy we are aware of a range of research exploring the cost savings of effective advocacy and the Scottish Independent Advocacy Alliance’s Standards for Advocacy provision. We feel that the funding and infrastructure of independent advocacy provision in Scotland needs to be discussed with a view to meeting the aspirations of the review and to identify and articulate both the benefits and the cost savings/social capital value of advocacy provision.

Centre for Excellence for Supported Decision Making

MHNGG are strongly in favour of the development of a national Centre of Excellence for supported decision making that has the lived experience representation at a senior level. In our advance statement work we have developed our own resources (e.g. sample advance statements) that greatly facilitate understanding of the POTENTIAL that supported decision making gives. A lived experience and professional partnership led centre of excellence that progressed thinking, identified good practice and developed resources to enable supported decision making become ‘mainstream’ within our mental health and other services would be a very welcome development.
An example of one such centre of excellence for one aspect of rights provision could be found in the National Resource Centre for Psychiatric Advance Directives in the United States.

Carer Rights

MHNGG are an organisation with carer members as well as those with a direct lived experience of mental ill-health. Regarding our views on mandatory carer awareness training for mental health staff, we are generally in favour of this but with some caveats.

1. It is our view that mental health professionals will feel far more confident in the sharing of information if there are clear professional and organisational guidance and boundaries for them to follow. Thus whilst mandatory carer awareness training is welcome, there need to be organisational and professional guidance and policies developed to back this up. This necessitates the adoption of an approach such as the Triangle of Care across of Scotland so that public sector organisations and professional groups can work consistently and to the same standards.

2. In a similar manner to our view that engagement in care can be improved with pro-active planning so is this especially the case for carer involvement and engagement. It is a regular occurrence that people who mentally unwell will be hostile or ambivalent to those closest to them when unwell. Then when they are well again they will regret their decisions, actions and words whilst unwell. We advocate that at the very least there is work done with a person whilst well and retaining capacity to clarify the level of involvement that they would like their carers to have should they become unwell. This is a discussion that would obviously involve the carer and require acknowledgement of their views also.
We feel the benefit of this approach would be much greater clarity regarding permission to share information, support engagement in care (e.g. discharge planning) and a more formal acknowledgement of the carers role in supporting the person that would be harder to be ignored or countermanded.

3. As previously stated in an ideal world we would ideally like to see the development and support of a ‘therapeutic alliance’ approach to professional and non-professional supporters of a person who are able to plan collectively to enable a person’s wellness together. Approaches such as family therapy and mediation could be considered in order to maintain critical support relationships where this relationship has been damaged whilst a person was unwell (particularly if this person is undertaking a substitute decision making role such as being a nominated named person).

4. As an organisation we engage primarily with adult services however we do believe that carers of all ages should have their own support needs assessed, recognised and met to enable them to enjoy an appropriate balance between their duties as carers and their own individual lives.

5. Within our current mental health safeguards is the right to nominate a ‘Named Person’ to act as a substitute decision maker. Our view of this role (and why it is a difficult one to undertake) is that the role requires:
a. a good knowledge of mental health systems, rights, law and treatment in order to be fully effective; and
b. a robust relationship with the person who may be receiving mental health treatment (as they may be supporting actions that are unpopular with the person receiving the treatment).
For someone to possess both of these qualities is not a common occurrence. It is made more difficult by a lack of support and training for people to undertake the role. Where there dedicated training and advocacy support for carers, peer support groups for carers and perhaps mediation support for people to address relationship issues following undertaking the role, then it may be more common that people undertake the role. We feel that the trialling of such specific support for substitute decision makers should be looked at.

MHNGG absolutely welcomes the proposed Human Rights Enablement Framework. Our advance statement, wellness planning and mental health engagement work has given us the view that our mental health services more often than not treat people with no real knowledge or recognition of the person’s views regarding their treatment. Therefore we feel that all patients potentially being subject to restriction or treatment under mental health legislation should trigger a HRE framework.

We would also point to the fact that psychiatric treatment often is not without some degree of associated harm or consequence to the person receiving the treatment (e.g. the loss of liberty, the side effects of long-term medication, etc.) and so we feel that as a minimum the person’s views relating to their treatment should be acknowledged and respected by mental health services where possible. The proposed HRE framework appears to aspire to achieve this also.

Regarding how the framework might work in practice, we would like to see professional guidance that can allow practitioners to achieve a greater degree of consistency relating to working within a HRE framework as one of our concerns is that there is an element of subjectivity within mental health assessment, risk management, treatment and care and that different practitioners can react to the same presenting issue in differing ways.

We feel that given the ‘pyramid’ of responsibility within professional groups working within our mental health services, that any such work to embed a HRE framework should start with the most senior professional groups (who usually have the highest levels of responsibility and are the clinical ‘leaders’) and then be cascaded down to cover all levels of staff. We say this conscious that it is often the lowest tiers of staff who spend the most time engaging with patients within our mental health services but also that key decisions are often made by the senior staff.

An additional a concern we have is that not all treatment is viewed equally. To illustrate, in hospitals activity provision by nurses and allied health professionals will be part of the rehabilitative care-planning for patients. We have seen wards respond to emergency staff shortages by taking staff allocated for such activities ‘into the numbers’ leading to the cancellation of the activity. We do not think that wards would ever consider not giving a patient their medication, for example, so there are clearly treatments which are imperative and those which staff teams can sacrifice should the necessity arise. Our concern arises when this becomes a regular event and therefore impacts, for example, on the rehabilitative treatment people can expect.

Whilst an often necessary response to an emergency, such disruption to staffing can also happen in wards with high levels of observations or with a high number of new admissions. We know from our engagement work that patients (particularly patients who have experienced multiple admissions) are aware of these pressures and will cite issues such as the staff being less available to respond to their needs, ‘being run ragged’, there being a high number of bank staff on duty and generally less continuity of care. To summarise, we feel that any disruption to care will be a strong indicator of a disruption to a HRE framework.

We are conscious that there will be an element of ‘culture change’ required within our current mental health services to adopt a HRE framework and that community based services (that often do not treat people under the act) may very well be the best place to work with people whilst they have capacity to prepare them for when they do not have capacity. This means that a ‘systems wide’ approach across both hospital and community based services may well be required with the HRE framework being intimately linked and continuous part of the care planning process. We believe that those with clinical responsibility should be trained and supported to be able to work within a HRE framework.

Another concern is that there is a perception that systemic pressures upon services (e.g. bed availability or a lack of social housing) can impact upon treatment decisions and this will in turn impact on the potential functioning of rights based elements of care such as admission to and discharge from a hospital. We have seen these exact examples at times within our engagement work and would cite the shortage of mental health officers in certain parts of Scotland as an example of how systemic issues can impact upon the functioning of a safeguard. Therefor we feel that any HRE framework MUST be monitored in order to ensure that our aspirations for the changes that it can bring are not diluted or undermined by pressures elsewhere.

This brings us to the rights of review and monitoring of a HRE framework. Mental Health Services engagement in routine clinical governance monitoring and report upon this, elements of the HRE framework could be incorporated into this. In addition there is definitely a role for local advocacy services who will report to their funders upon the issues and activity that they support people with. This additional role would require a source of independent funding but could help build a picture of the prevalent issues facing people who are in receipt of care and treatment. Finally there is definitely a role for an organisation such as the Mental Welfare Commission for Scotland although this may involve some changes to their powers and functions to enable them to enforce recommendations and remedial actions.


On an individual level local advocacy provision and the tribunal service would appear to be the avenues whereby a HRE appeal could be lodged should local capacity allow. We would suggest that this is explored later in the review process.

Finally there on the role for local independent collective-advocacy organisations, based upon our own experience we have some views on this. Our contract to facilitate engagement across NHS mental health services gives us an overview of both hospital and community based services. We also engage with mainstream adult and more specialist services, e.g. perinatal services, early intervention in psychosis services, etc. This affords us an independent ‘systemic’ view of the service provision that also looks at a number of different local authority areas. This awareness and overview is a definite advantage that few organisations have. However in a similar manner to individual advocacy organisations the funding of organisations undertaking this role needs to be independent of local service providers. This is because they may be placed into a position where they are raising issues and challenging local systems and services.

Therefor to implement the aspiration that local collective advocacy organisations are able to hold local service providers to account the following things need to be in place.
1. Access to people currently receiving local health and social care services to engage with.
2. Core funding independent of local health and social care providers.
3. Access to legal and policy expertise.
4. Access to funding to pursue legal avenues to hold organisations to account.

In discussions that we have had with members and reflecting upon our advance statement work we can see the merits of both viewpoints (the benefits of the capacity tests and also their shortcomings). Having said that we feel that every person’s loss of capacity is different and that those individuals who are better able to articulate their viewpoint and rights position effectively tend to receive a more suitable and appropriate response from mental health services so it is clear to us that there is some subjectivity in the application of these tests and that some groups are disadvantaged by the tests.

We feel that for services to have a high level of actual knowledge of the person and how their illness affects them is the best way to enable good decisions regarding capacity and decision-making to be made. This would contextualise the situation to the person and the decision more fully, acknowledging such factors as an imbalance of power. Therefor again we would suggest systems that acknowledge patient viewpoints and personalise their care are adopted nationally and that capacity and decision making are central to these.

Autonomous Decision Making Test

Again MHNGG welcomes the proposals for an autonomous decision making test. It will be seen from our previous comments that we are strongly in favour of any restrictions or substitute decision making being made against the context of much more information about the person and a systematic record being kept of that person’s wishes which is then reflected upon and reviewed.

We particularly welcome the individualisation and contextualisation of diagnoses and the assumption that the presence of a diagnosis does not mean that a person cannot make decisions. To illustrate one person we helped develop an advance statement discussed in quite nuanced and insightful terms how differing stages of their mental state impacted upon their motivations and how they dealt with mental health services. When manic they felt ‘like James Bond, Batman and Superman all rolled into one’ and would be treatment non-compliant and non-cooperative if they could be, but when they became psychotic they accepted that they needed treatment. They made an advance statement to this effect and highlighted the decision making challenges they faced at different stages of their illness, how they felt that services should respond and their treatment preferences.

We welcome, where consented to, the involvement of carers, proxy-decision makers and some professionals who may have a good working knowledge of the person in the decision making test. We also acknowledge that a person’s illness can lead them to deny consent for individuals to be involved that they would welcome involvement from when well. Therefore we would advocate that any involvement of an external party ideally should be discussed in advance and communicated in writing to all parties.

We welcome the statement that diagnosis was important ‘in determining the nature of support and interventions that are required, to enable effective enjoyment of the person’s rights.’ If fully realised this could create not just treatment based ‘milestones’ but also decision making ‘milestones’ to more clearly evidence capacity and patient wishes.

We particularly welcome the presumption ‘in favour of respecting their will and preferences unless this will result in a ‘harm’ being caused unless harm.’ We feel that this acknowledges any prior statement of wishes and protects the decisions that the person CAN make even while unwell. We feel that is places an emphasis for treatment decisions to be proven to provide a benefit for the person.

Finally we welcome the aspiration for ‘any departure from a person’s will and preferences must be for as short a period as possible’ and that any restrictions to be for ‘as short a period as possible, lawful, proportionate and non-discriminatory’ but would add the caveat that we will need to monitor these in order to provide the guidance and learning to enable services to adapt to these changes.

Urgent Situations

Our advance statement work has shown us the importance of i.t. infrastructure to enable access to advance planning documents across a range of services. The systems at NHS GG&C mental health services are not necessarily shared or accessible to other health services, Social Work or other statutory organisations, 3rd sector colleagues or G.P.s etc. We advocate sending a copy of each document (in our case advance and personal statements) to all relevant partners and requesting confirmation of receipt. We are aware that some systems can generate alerts highlighting advance statements and enable the downloading of the documents. We view this as an ideal but necessary situation to ensure the statements are available at all times.

We agree with the aim that ‘a decision to intervene without the person’s express consent is permitted only if this will demonstrably lead to more respect, protection and fulfilment of the person’s rights overall, or to prevent harm to another person or other persons.’

We acknowledge that a person can countermand a prior decision while unwell and agree that this alters the context of the decision making and their assessed capacity should be looked at with regard to this and the best resolution to this conflict sought.

Regarding the appeals process, when making an advance statement with a person we stress that ALL of the people looking at the statement will likely be assessing your capacity and wishes in some way, be it a mental health practitioner or a tribunal member. We therefor stress the importance of the statement having credibility. In order to be successful any appeal must be well enough evidenced and argued regarding the benefits of overturning the prior ADM test. If this is not understood then time may be wasted on appeals with little or no chance of success and patients may become cynical about the appeals process viewing it as ‘rubber stamping’ the original document or decision. We have heard such views stated regarding the mental health tribunals and therefor would advocate for the development of very clear guidance for all parties regarding the conditions that would constitute good grounds for a successful appeal.

In the mental health lived experience community there are a number of people who are very passionate and angry about their treatment under the mental health system. We are also conscious that practices such as ‘de-facto detention’ and ‘locked wards/doors’ exist because patients have on occasion described these practices (often without knowing). In addition patients within a psychiatric ward setting (particularly those under compulsory treatment) will be conscious of a power imbalance between them and the staff treating them (irrespective of the empathy and interpersonal skills of the staff in question) and the fact that they are under observation. We would certainly say that all these practices have ‘coercive elements’ to them, either explicit or implicit. We have a number of views upon the topic of reducing coercion.

Firstly, the physical environment of each setting is different, not all facilities are modern and each setting will have implications for the observation and risk management of patients.
We have been involved in the commissioning and design of new facilities across all of the NHS GG&C psychiatric hospital sites and so are aware of the developments in hospital design in terms of things like reducing ligature risks, creating therapeutic spaces, providing privacy and enabling observation, etc. We are also aware of areas of physical environment that impact upon agendas such as suicide prevention which in turn impact upon the risk management of patients. In short if we provide a good environment for psychiatric care then we would hope to see a reduction of coercive practice due to better physical safety, easier staff/patient interactions and the ability to offer alternatives to coercion.

Secondly, we believe that continuity of care is critical here. Our work with patients shows that they are seeking to build relationships with staff that are respectful and supportive. A settled staff team enables this.
Patients are acutely aware of the presence of bank staff who are often given observation and other duties because of their lack of relationship with the patients. Staff who have an established relationship with a patient may be in a better place to spot crisis triggers or to deescalate a situation and thus avoid an incident requiring restraint or some similar intervention. We feel that a high staff turnover or high usage of bank staff is an indicator of issues here.

We also agree that culture is a key element of the reduction of coercive practice. Ward/service level leadership is absolutely crucial in setting the tone regarding any reduction of restrictive practices. We have seen some excellent examples where the senior nurse leading a ward or shift has led to patients acknowledging the good work that their team is doing. The patients will state that they feel safer and that they can initiate actions to feel safer and more secure, we would cite the patient feedback from the Scottish Patient Safety Programme Climate Tool to evidence this.

Finally we agree that stronger monitoring and scrutiny is necessary, we feel that work to improve safety should acknowledge ‘near misses’ such as the need to deescalate a situation to avoid a coercive practice like restraint or isolation as well as actual incidents of coercive practice. We feel that areas such as de-escalation and harm-minimisation need more explicit recognition in order to identify good practice and to acknowledge excellence in this area that can be shared more widely.

Sense of belonging, connection and trust in society
We would welcome developments that enabled peer support to flourish and to access other wider forms of support. An ideal that our members have frequently desired is for services that operate on a self-referral model. They feel that this would enable them to flexibly respond to their own variable wellness and to initiate a service level response. Despite recent welcome developments such as assessment centres in the GG&C we would very much welcome the coproduction of community based support and services that reflect the varying needs of people across the NHSGG&C area and would welcome this being part of a Scottish Government led review of such services.

We agree that there may be a need for stronger powers for the Mental Welfare Commission to oversee the use of coercive interventions and to identify areas for action. We also would advocate that the Commission is able to report on developments to the Scottish Government within services set against a benchmark of the aspirations that we have for the functioning of our mental health systems and rights provision. Regarding enforcement the Scottish Government should then be bound to initiate remedial activity in order to respond to any shortcoming s raised against their own aspirations.

Community-based Compulsory Treatment Orders

We would welcome a more in-depth look at the functioning of C.T.O.s in Scotland and will discuss this with our members who are under such an order to ascertain their views.

We would welcome a review of the recommendation of the inquiry into mental health services in NHS Tayside which called for a national review of the assurance and scrutiny framework for mental health services across Scotland.

We also agree that the UN Convention on the Rights of Persons with Disabilities statement regarding the development of any potential accountability framework. It stresses ‘the need for disabled people to be able to take part fully in public life. People with disabilities need to be actively involved in all decision-making processes on issues which affect their rights. They need to have equal access to justice. There needs to be independent monitoring of services for disabled people. And, the right information must be collected to make sure we develop policies that support the realisation of people’s rights’.

We also agree that the lived experience perspective and representation should be a core party of any future scrutiny framework.

Tribunals & Recorded Matters

We would like to see the Mental Health Tribunal have increased powers to order that specific care and/or support be provided for a person. However this is set against the need to provide an appropriate level of additional support such as advocacy and carer support to help a person to submit evidence and make the best possible argument for their case. Regarding limits relating to the services that may be required we think that the harm relating to not receiving the service should be an important determinant here.

Complaints
We agree that people fear recriminations and repercussions following a complaint. We agree that there is little alternative to enable a person to make comment or suggestion on their treatment other than a formal complaint also but ultimately we would like to see the complaints systems reformed in order to enable better access to the complaints system. We would agree that the suggested areas within the document would be a good starting point for these discussions.

Whilst only working with adults, we do agree that ‘there should continue to be a specific principle reflecting the needs and rights of children in the principles of future mental health law’ and that children and young people enjoy an enforceable right to support from specialist age-appropriate services. We have not engaged with young people and would defer to the views of those who have in relation to the suggestions in the review.

Our members universally found this term offensive. In discussions we felt that it stigmatised mental ill-health and members suggested an alternative term that explicitly focussed on the lack of capacity such as ‘Person experiencing a loss of capacity’.

Fusion or aligned legislation

13.1 Given the changes being proposed by the Review do you think a single piece of legislation for mental health, incapacity and adult protection law is the best way forward? Please explain

13.2 You may consider that 2 or 3 pieces of legislation would be preferred each dealing with specific issues across mental health, AWI and ASP. If so tell us and explanation

13.3 What do you think about our suggestion of aligned legislation which aspects of the law should be aligned and which should be left as standalone?

13.4 Do you think a single judicial forum should deal with all mental health incapacity and adult protection cases and

• If that forum should be the sheriff court or tribunal
• If there should be a single forum only in the vent of fused legislation or if single forum is your preferred way forward regardless of wider changes to the legislation
• If you consider aligned legislation is preferred should a single judicial forum be part of that legislation?