Scottish Mental Health Law Review consultation

Executive Summary
 The Society acknowledges the challenges that the SMHL Review has identified.
 The Society endorses the emphasis on a Human Rights based approach.
 The term ‘medical treatment’ in the 2003 Act should be replaced with the term ‘treatment’.
 Such changes reflect the need for holistic clinical formulation to be provided in addition to
diagnosis when considering patient needs.
 The Society believes that the Millan Principle of Reciprocity should remain a feature of Mental
Health Law.
 Applied Psychologists have the most appropriate competences to lead and coordinate clinical
care in relation to a number of developmental and mental health conditions.
 Mental Health Tribunals should have a greater remit to consider the general quality of treatment
as opposed to the legal criteria for treatment.
 Attention should be paid to creating psychologically informed treatment environments with an
emphasis on trauma informed services in particular. Psychologists therefore have an important
role to play in staff training and support.
 Scotland should adopt a non-medical ‘approved clinician’ or ‘lead clinician’ type role as
recommended in previous reviews.
 In order for the proposals in the Review to be effectively incorporated in the law, workforce
planning would need to reflect this and increased staffing in psychological roles would need to
be delivered.
 The Society recommends the use of Advocacy Services for individuals in Deprivation of
Liberty situations.
 The Society welcomes the review of the use of the term mental disorder as it implies an over
emphasis on a medical model of mental ill health.


Purpose of the Law

The British Psychological Society (the Society) welcomes the SMHL Review’s overall principles and
overarching aims. There are a number of statements made in the Review that are philosophically
appropriate, however, the Psychologists involved with the response felt there was an issue with creating
concrete, practical responses to the consultation. The consultation document was felt to be primarily
principle-based, with questions arising on how the changes in the law can facilitate the proposals. The
Society has concerns around resourcing and the ability to deliver what patients need at the right time in
order to fully deliver on the Act. It is therefore to bring forward appropriate resources andstaff with the
right training and accommodation that is suitable for patients.

The Society welcomes the recognition in the consultation of the social determinants of mental distress
and mental illness and the implications for system wide changes needed in support and care structures.
We welcome the Review focusing more on social, cultural and economic determinants of mental health,
beyond mental illness and diagnosis, which we believe will lead to cultural change and reduce stigma.
Currently, psychiatric diagnosis has a focus on intrapersonal factors and illness, which reduces the
interdependency on environmental, social, cultural and other determinants of mental health.

As a feature of Mental Health Law, the engagement of Psychologists (and other professionals) as
Responsible Clinicians would support the principle of reciprocity by strengthening the expertise around
assessment of need and treatment, in its wider sense, beyond medical treatment. There is not a clear
medical evidence base for the treatment of eating disorders and personality disorders; the primary
treatments are psychological. This also applies to positive behaviour support which is a key feature of
the recent Scottish Government 'Coming Home Implementation Report'. There is also a clear evidence
base for the psychological treatment of psychosis spectrum disorders. Appointing experts in the
assessment and management of these disorders would mean that the treatment provided would be
tailored through a formulation based understanding of the patient’s mental state, social circumstances,
family context, emotional and cognitive state and as a result the most appropriate and effective treatment
would be sought accordingly.
The Society recommends that the review considers putting forward recommendations that ensure the
full range of mental health professionals (including psychologists) are resourced for in-patient settings
as this would ensure access to treatments directly targeting underlying issues and increasing
reciprocity under the Act. Clinical and some other psychologists have specialist skills and training in
trauma informed practice, where trauma-informed psychosocial approaches and inclusion of specialist
clinical psychology interventions in inpatient services has been demonstrated to reduce coercive
treatments such as restraint, Intra-Muscular (IM) medications and use of seclusion (Berry et al, 2016;
Gordon 2005; Stevenson et al 2002; Sweeny et al, 2016; Sweeny et al, 2018). Literature also indicates
that acute inpatient services with clinical psychology resource results in reductions in average length
of admission and significantly reduced rates of readmission (Araci & Clarke, 2016; Durrant et al,
2007; Paterson et al, 2018; Paterson et al, 2019), where it has been found that the average length of
stay in Intensive Psychiatric Care Units is reduced by 20% with higher psychology resource available
(BPS & ACP, 2021). The recommendations from the BPS and Association of Clinical Psychologists
(ACP) commissioning guidelines (BPS & ACP, 2021) indicate there should be one full time
consultant psychologist per 20 beds in an acute in-patient setting as a minimum.
The Mental Health (Care and Treatment) (Scotland) Act 2003, underpinned by sound principles of care
to protect patients’ rights, was a ground- breaking and world-leading piece of legislation. However,
there is a need to ensure that patients continue to benefit from the most recent advances in mental health
care. Amended legislation presents an opportunity to place further emphasis on psychosocial
interventions and create a catalyst for further modernisation.
The Society considers that at this time there is too great an emphasis placed on the ‘medical model’ in
mental health care. This is reflected within the 2003 Act where all treatment interventions are termed
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‘medical treatment’ as opposed to simply ‘treatment’ and therefore, it is our view that this should be
amended. Such issues often result in there being an undue focus on medication as the main intervention
as opposed to a more holistic and biopsychosocial approach being taken. The ‘biopsychosocial model’
has been central across mainstream mental health research and practice for many years. It states that
health and illness are determined by a dynamic interaction between biological, psychological, and social
factors. Therefore, the Society believes that a consideration of all these factors is important for
achieving the best treatment outcomes.
In order to facilitate the Review’s considerations of extending and broadening the duties in section 25
of the 2003 Act relating to adequate housing and independent living, the Society believes it is important
that psychologists are involved in the architectural process. Psychologists continue to be on the outside
of the architectural and diagnostic process despite having clear competencies and skills in the
assessment and management of patients. Those carrying out the building work refer to Government
specifications and finance models, which do not accurately reflect the psychological needs of patients.
Current practice, supported by best practice guidelines and national recommendations support that
inpatients should be getting access to psychological therapies. Wards therefore need dedicated space
for this, not a sitting room or side room that will be cleared out of other patients so that therapy can take
place. Facilities such as therapy kitchens and medication dispensing rooms are seen as essential spaces
on wards, and the Society believe that psychological therapy spaces should be categorised with the same
level of necessity. These spaces are crucial for individual therapy, cognitive assessment and group
therapy interventions.

Access to treatment
The Society shares concerns about the challenges facing the current mental health system, which
include: increasing length of detentions; increasing guardianship applications; difficulties in providing
well-funded, fit for purpose, less restrictive, tailored community packages in a timely manner. In
addition, there are workforce challenges in terms of the recruitment to specific positions and a lack of
relevant skills to support people with complex needs across health and social care systems. Such
challenges unfortunately contribute to delayed discharge times, treatment and community placement
breakdowns, and frequent re-admission to hospital under mental health legislation.
The Society proposes that the SMHL Review should endorse a non-discriminatory competency-based
model for effective patient care, which ensures the right professional provides the right care to a patient
at the right time. In terms of the Mental Health (Care and Treatment) (Scotland) Act 2003, a failure to
implement this approach conflicts with the Millan principle of Reciprocity which states that where an
individual is compelled to comply with treatment, there is a parallel obligation on the health and social
care authorities to provide safe, appropriate services and effective therapeutic services.
A particular area where delays or a lack of treatment provision is often reported lies in the area of
psychological interventions because it is often accepted that mental health and behavioural difficulties
experienced by patients require specific psychological interventions in order to make progress, this
issue will contribute to the problems identified by the SMHL Review. Therefore, the Society would
advocate for more robust direction within the mental health legislation to ensure timely and adequate
access to clinicians who are skilled in the delivery of evidence-based psychological interventions.
In addition, it seems clear to the Society that a far greater emphasis needs to be placed on creating a
more psychologically informed workforce overall that is able to understand, empathise with, and
addresses the wide range of needs that patients have. Without being engaged in positive and supportive
general relationships, patients are less likely to access formal therapies and are more likely to drop out
when they attempt them. This results in inefficient and ineffective service delivery.
Such issues are particularly relevant to multidisciplinary teams working with inpatients or those who
are subject to compulsory measures, but can be seen to apply across every area of service delivery.
Training in psychological approaches and trauma informed systems of care with access to reflective
practice for staff teams have often been found to result in more effective treatment. In contrast a failure
to pay attention to such issues has been associated with institutional neglect or malpractice in various
formal enquiries.
Clearly, having a sufficient number of staff with the necessary skills to provide psychological
interventions and to create a more psychologically informed workforce needs to be mirrored in
workforce planning. However, it is noted that workforce planning is in turn driven by central policy
making and legislative decision making.
Approved Clinician and Responsible Clinician
The Society believes that in order to facilitate the proposals in the Review, It is our recommendation
that the titles of the Approved Medical Practitioner (AMP) and Responsible Medical Officer (RMO)
should change to ‘Approved Clinician’(AC) and ‘Responsible Clinician’(RC) respectively to reflect the
proposal that non-medical professionals, in this case, Practitioner Psychologists are competent to deliver
these roles. We believe that extending approved and responsible clinicians roles to non-medical
professions such as psychologists and social workers will enhance safe practice and will ensure patient
centred care. A similar move was made in England from 2007 and the scheme is currently being
expanded to help with psychiatrist shortages and enabling mental health professionals other than
psychiatrists to carry out duties previously performed by psychiatrists (Ebrahim 2018 and Oates et al.
2018). This is in line with the recommendation of the Independent Review of Learning Disability and
Autism in the Mental Health Act (IRMHA), commonly referred to as the Rome Review, to create the
‘lead clinicians’ role that would include appropriately trained consultant clinical psychologists.
Psychologists possess key competencies to act as AC/RCs including the following abilities: objective
assessment skills utilising a supportive evidence base; advanced communication skills in relation to
highly emotive difficulties; formulation and reformulation skills as a central component of
psychological interventions; scientific practitioner skills to hypothesis test interventions; advanced
interpersonal skills required for negotiating approaches within systemic contexts; person centred
models as part of daily clinical practice; and expertise in case managing complex cases and advising on
risk management.
Fundamentally, the Society believes that the role of the Responsible Clinician needs to be competency
based and not limited to one professional group. To be recognised to have the competencies of a
Responsible Clinician, where there may be a need to consider compulsory detention and treatment of
patients, a process of assessed training would be required, to ensure appropriate attainment of the skills
and knowledge required.

Supported Decision Making
The Society supports the Review’s recommendation to strengthen the use of advanced statements. If
there is requirement to override an advanced statement we recommend this should be subject to some
form of formal tribunal process.
In addition, the Society feels there are two important aspects to be considered. The first is facilitating
expression of opinion. People are often confronted with significant life decisions e.g. where to live,
whether or not to have care, whether or not to sell a house, where their cognitive deficits mean that their
decision making in these areas is impaired. Through rehabilitation, cognitive abilities may improve,
however incapacity to make a decision may remain. It is important in these cases to facilitate people to
be able to express their opinion on a decision. This might include explanation of the decision and the
likely options, adjusting the presentation of information to account for cognitive deficits, enabling
communication. The second is facilitating capacity to make a decision. For some people however,
providing support for decision making might enable them to make capable decisions when previously
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they were not able to. For example, someone with significant memory problems might need information
recorded on paper, someone with executive functioning (planning and organising) problems might have
capacity improved by assistance to organise information. Cognitive rehabilitation is evidence based
(Cicerone et al 2011) and can be delivered by a number of professions (occupational therapy, speech
and language therapy, practitioner psychology, and clinical neuropsychology) although where the
presentation is complex, advice and formulation from an HCPC registered psychologist with the
relevant competencies is advisable.
The Society recommends every effort is made to support the adult to understand the proposal and to
express their view. This may involve consultation with a professional who is able to assess how
cognitive deficits are affecting the person’s understanding and ability to express their view and advise
on support to facilitate their understanding and communication.
In situations involving a person who lacks capacity to make decisions about an intervention that may
place significant restrictions on their liberty, there needs to be a clear process ensuring representation
and support for decision making and ensuring adherence to the principles of the Adults with Incapacity
Act (AWIA). The inclusion of specific criteria in guidance should be considered. This process should
be undertaken whether or not the person shows objection with the proposed restrictions. Assigning
responsibility for ensuring this process is followed should be given to a named clinician e.g. mental
health officer, psychiatrist, medical consultant, practitioner psychologist, and clinical
neuropsychologist

Human Rights based approach
The Society welcomes the SMHL Review’s focus on human rights and making this a central
consideration within the legislative framework for mental health. We note that this is consistent with
the approach recommended in the Scottish Government National Taskforce for Human Rights
Leadership Report (March, 2021). Recommendation 1 (b) of that report states that there should be -
The right to the highest attainable standard of physical and mental health – which is in line with existing
declarations (International Covenant on Economic, Social and Cultural Rights (ICESCR) Article 12
and United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) Article 25).
In believing that rights should be enjoyed by, and applied to all, on a non-discriminatory basis, the
Society supports a stronger statutory human rights framework. This approach promotes equal access
to high quality mental health care and will assist clinicians and other decision makers to make the proper
determinations where ethical dilemmas and conflicting human rights exist.
Consistent with these observations, the human rights focus will be seen to be reflected in all of the
following comments and suggestions made by the British Psychological Society.

Autonomous Decision Making
The Society supports the fusion of the Acts mentioned in this chapter and the recommendation
suggesting a single autonomous decision making test.
The Society recommends every effort to support the adult to understand the proposal and to express
their view should be made. This should involve consultation with a professional who is able to assess
how cognitive deficits are affecting the person’s understanding and ability to express their view and
advice on support to facilitate their understanding and communication. This is likely to be a
Practitioner Psychologist or a Speech and Language Therapist.
The Society wishes to highlight the considerable expertise and experience of practitioner
psychologists and clinical neuropsychologists in planning and providing such help and support to
those whose cognitive functioning and decision-making ability and capacity has been affected by
learning disability, dementia or neurological illness or injury. For example, clinical psychologists and
clinical neuropsychologists can provide expert assessment and formulation of cognitive barriers to
decision-making, and on some occasions can provide interventions (including jointly with other
professionals) to overcome those barriers. The cognitive skills of attention, processing speed,
memory, planning and organising and flexible thinking all impact on decision making. In order to
make a decision, we need to attend to information (so that it can be processed, evaluated or
remembered), remember that information, organise the information (so that we can prioritise and
evaluate the information), think flexibly about different options and outcomes and internally manage
this information to come to a decision. These skills can be supported by both internal strategies (e.g.
learning to make sure attention systems are ‘switched on’) and external strategies (e.g. presenting in
writing externally organisation of information pertinent to a decision). Additionally, psychological
intervention can also be specifically targeted at decision making e.g. increasing an individual’s
awareness of the impact of thinking biases on their decision making, for example if they are highly
anxious or depressed.
The Society is aware that some people can have cognitive deficits that affect their decision making
capacity yet retain capacity. In these situations, an official supporter for decision making or advocate
would facilitate decision making. There would need to be safeguards in place for this process.
Impairment of cognitive functioning can make people vulnerable and the position of official supporter
will be a position of trust and influence. We believe that the decision for someone to be appointed as
official supporter or advocate should primarily be that of the person requiring support, however
opinion on this should be sought from others that know the person well including family members,
carers and professionals working with the person, to ensure that the person assigned is suitable.

Reduction of Coercion
The Society would agree that having a mechanism to do this is important and further agree that the
Mental Welfare Commission (MWC) should play a stronger role in overseeing the use of coercive
interventions and to identify the intention underlying the use of coercive interventions. It is the view
that the use of coercive interventions could be minimised with the more consistent application of trauma
informed systems of care and support, for staff and patients. Trauma informed systems of care aim to
understand the impact of chronic trauma and to alter the organisation of care to take account of this, to
avoid triggers that lead to higher levels of distress and consideration of coercive interventions.
Psychologists (and other professionals) who are expert in trauma informed interventions may need to
have recognised statutory responsibility in order to support systems of care and treatment to be more
trauma informed and patient centred.
The Society understands it may not be possible to reduce all forms of coercion, for example when
having to restrain patients particularly in crisis situations. However, in order to increase the likelihood
of coercion being used then an understanding of a patient’s behaviour and triggers and antecedents to
the behaviour are critical to the understanding. These would be incorporated into a psychological
formulation – again indicating the critical role of psychology in this process – inpatients need
sufficient psychological expertise to support this work. In order for this to be effectively incorporated
in the law similar to that of a medical role, the workforce planning would need to reflect this and
increased staffing in psychological roles would need to be fulfilled.
In particular instances when decreased use of coercion is required, it is crucial patients and staff have
the space on wards for patients to be managed post incident of crisis and environments need to be
supportive of these changes. A psychological input into the architecture of creating new NHS
buildings or upgrading existing ones will ensure spaces are recovery focused. Staff need to be valued,
and space should be created for reflective practice and supervision as well as spaces to have a break.
Wards need to be more than bedrooms and one shared living room space.
Our members tell us that at point of admission, forensic patients present with a high risk to both
themselves and the public, meaning there is often a need to detain such patients. A risk assessment is
completed and a formulation is created to present a plan of what and how restrictions can be used. It is important that teams can complete this assessment and the resources are there to ensure the correct formulation and plan can be followed without the risk of having an insufficient number of beds at the right security level and insufficient staff in forensic community teams to manage the risk to self and others proportionately and adequately.
Overall, the Society agree with the Review’s position that restrictive practices may be warranted on
occasion, but access to Practitioner Psychologists allows an individualised formulation of distress and
associated risk to be constructed that examines underlying factors, considers alternatives and identifies strategies that have potential to reduce restrictive practices and associated re-traumatisation.
Furthermore, it is welcomed that the Review recommends increases to the powers of the MWC to
scrutinise, investigate and make recommendations regarding coercive treatments under new legislation.

The Society recommends that the SMHL Review consider changes to legislation to ensure psychology
has a central role in incapacity assessments and guardianship determinations. It is noteworthy that the
Royal College of Psychiatry and the Royal College of General Practitioners stated their support to the
Society for such changes to capacity law. It is also significant that the Scottish Government (prior to
the Adults with Incapacity Act consultation in 2018) voiced their commitment to include psychology
within the professions that assess capacity and sign off Section 47 certificates for treatment within
their own specialism. The Scottish Government had intended to do this before the end of the previous
Government term in 2021 but have needed to delay. The Society recommends that the SMHL Review
endorse this plan in their recommendations.
The reason for this proposal with regard to capacity assessments and guardianship determinations is
based on the conclusion that psychologists possess relevant knowledge and skills in relation to the
assessment processes. It may therefore be helpful to provide some additional clarification.
Firstly, it is important to note that those engaged in this work are very much aware of issues in
relation to validity, reliability and standardisation of methodology.
When working with specific patient groups psychologists have experience of using adapted
communication to adjust an interview style to the situational demands, such as breaking-up
information into smaller ‘chunks’, using simpler language, pictorial aids and using non-verbal
measures. It is worth noting that:
 Psychologists are also trained and experienced in assessing mental health difficulties, which
may be relevant. They are experienced in the impact of difficulties such as low mood or
anxiety on information processing, memory abilities and decision making. They are
experienced in the impact emotion can have on decision making processes and the effects of
substance misuse.
 Psychologists are aware of how decisions are made (the individual steps that lead to effective
decision making) and are aware if any steps have been missed, or have not been executed
correctly, when a decision is made. They have experience of interviewing people about
internal processes. They assess attentional and attributional biases in patients’ perceptions of
situations. They are aware of potential acquiescence, suggestibility and the fear of negative
evaluation affecting decision making abilities. They are aware of impulsivity issues and
assess motivational issues, levels of insight and readiness to change.
 Psychologists are practiced in the assessment of a person’s beliefs and attitudes and how they
may be impacting on decision making ability. They are also aware of how lack of assertiveness or poor social skills may impact on a person’s ability to communicate decision making.
In relation to supporting patient decision making, the Society recommends every effort be made to
help the individual to understand proposals and to express their views. However, some safeguards
need to be in place. Impairment of cognitive functioning can make people vulnerable and those
holding a position of supporting decision making will be in a position of trust and influence.
In conclusion, the Society believes psychology has a key role in facilitating safe, informed supported
decision-making. Psychologists are often formally asked to assess or to assist others to make capacity
judgements and therefore the Society proposes that their skills are formally incorporated into the
relevant processes.

Deprivation of Liberty (DoL):
Due to the Bournewood case, amendments were made to the Mental Capacity Act to ensure where there is a Deprivation of Liberty and someone is not capable of consenting to an intervention, that there is a Deprivation of Liberty assessment carried out (Department of Health, 2006). This ensures that the procedures and intervention are in a person’s best interests. Where significant restrictions on liberty are being considered for a person there needs to be a clear procedure for clinicians to follow. The Society recommends that an individual’s understanding of the process must be established, with other means also used to facilitate explanations and promote understanding. Additionally, the Society recommends the use of Advocacy Services for individuals in such situations. The Society recommends guidance within the Act address issues of consent and capacity, not just consent. There needs to be very clear distinction between a person expressing a wish (which must be taken into account) and a person giving ‘valid consent’. Where a person lacks capacity, action must be taken to ensure no arbitrary deprivation of liberty occurs whether a person does or does not give consent.
The Society believes that the deprivation of liberty is crucial when it comes to understanding the checks and balances of the proposal and what should be included in the community and what is available to patients. More often than not, people who are detained under the Mental Health Act for offensive behaviour often spend longer in hospital than they would if they went to prison. Procedures, checks and balances are crucial and extremely important to people’s human rights and if this is not done correctly it could cause significant issues.
It is our view that there is a lack of operational detail on the DoL proposals in the consultation document.
To put the DoL under the Adults with Incapacity Act rather than the Mental Health Act raises concerns
with the Society as the principles of the Mental Health Act mean a patient can have protections around
who can represent them and they can ask for a review or go to a tribunal, and people such as relatives
who have concerns about individuals going into hospital can make a request. Currently, there is concern that the DoL proposals in the document suggest one person has the authority to decide this for a patient and there is no review point. In order to comment more effectively on the DoL proposals, the Society would request more detailed proposals be published.

The future
The Society supports a non-discriminatory competency-based model for effective patient care, which
ensures the right professional provides ‘the right care to a patient at the right time’. We believe that
the creation of a non-medical approved clinician role would assist in providing patients with this care.
We believe in the creation of a multidisciplinary and psychologically informed workforce that is able
to work through their relationships with patients and collaborate to produce a safe and supportive
clinical environment.