Scottish Mental Health Law Review consultation

3. The principle should be replaced by a wider principle of respecting all the rights of the child under the UNCRC in any intervention.

4. The principle in section 2(4) of the 2003 Act refers to the ‘welfare of the patient’. With the planned incorporation of the UNCRC, which makes reference to the ‘best interests of the child’ (Art 3), the current wording of the 2003 Act will become outdated. However, the rights of the child under the UNCRC are much wider than those captured in Article 3.

5. A general reference to functions under the 2003 Act having to be ‘discharged in a way which respects the rights of the child under the UNCRC’ or some such formula would be a way to ensure alignment between the 2003 Act and the UNCRC. The language of ‘best secures’ in section 2 of the 2003 Act is weaker, and could lead to a dilution of respect for the rights of the child.

6. The HEC supports the proposal for such a statutory duty.

7. On the subject of education of children and young people who have a mental disorder, we emphasise the impact that such a condition can have on the progression of school pupils. Pupils who fall within vulnerable groups are more likely to experience mental ill health when compared to other pupils. These include pupils who are ‘looked after’ or care experienced, pupils with neuro diverse conditions, such as autism and pupils with disabilities.

8. Any condition which has a negative impact on the education of school pupils has an inevitable impact on their right to obtain education that is ‘directed to the development of the personality, talents and mental and physical abilities of the child or young person to their fullest potential’ the 2000 Act. This means that the right of a child or young person to continue to receive a decent education and to benefit from that education should only be negatively impacted by a mental condition to the minimum possible extent (if at all).

9. The law, as presently framed, does not do enough to meet that aim.

10. The Review Report suggests that section 277 of the 2003 Act applies only (or mainly) to those detained under the 2003 Act. This is not the case. That provision (in amending the 1980 Act, section 14(1)) applies to any pupil who is the subject of compulsory measures, whether hospital or community based.

11. However, there are a number of limitations in this provision:

a. it applies only to pupils who are under compulsory measures under the 2003 Act, not all pupils who are unable to attend school due to a mental disorder. This suggests that there is no special duty on education authorities where the pupil has a mental disorder but does not meet the criteria for compulsory measures;

b. it applies only to pupils who are unable to attend school (or in relation to whom it would be unreasonable to expect them to attend school). This suggests that there is no duty on an education authority to make provision for pupils with a mental disorder, who can attend school, but who can only do so on a part-time basis, or who can attend school on a full time basis, but who still require special arrangements or additional supports. In all of these categories, pupils with a mental disorder will be highly likely to need support, yet they are not covered under the 2003 or 1980 Acts;

c. in section 14(1)(b) of the 2000 Act, there is a reference to ‘prolonged ill-health’, where there are no 2003 Act measures in place. There is no basis on which ill health should be prolonged in order to trigger the 1980 Act section14 duty, given the other pre-conditions for the application of that duty under section 14, namely that the pupil is unable/it is unreasonable to expect attendance;
d. the above issues arise from the way in which the provisions have been enacted: namely via amendment of education legislation, rather than the protection of education for pupils who are mentally disordered within the 2003 Act itself. Other services, which are covered in different legislation, are given protection within the 2003 Act itself (such as care and support and well-being and social development – ss. 25 and 26 of the 2003 Act).

12. It would have been better if the requirement to make provision for education could be included in the more generally worded duties of local authorities in ss.25 and 26 of the 2003 Act. Even then, a structural issue exists around how ss.25 and 26 are framed: the duties for patients who are in the community are compulsory (‘shall’) while for those in hospital, they are optional (‘may’). A duty should exist for the provision of education, applied equally to pupils in hospital and in the community.

13. An improvement to the existing provision would be a duty on all education authorities to comply with the duties in section 2 of the 2000 Act and section 1 of the 1980 Act, in light of the provisions of the UNCRC, in relation to all pupils (whether they have a mental disorder or not). This would remove any discrimination, since pupils with a mental disorder would be on a par with all other pupils.

14. A further issue remains in the current legislation (and this is mentioned in the Review Report): enforcement. If a pupil has a mental disorder, and wishes to enforce the right currently in section 14 of the 1980 Act, there is no mechanism (apart from judicial review) to do so. The pupil would require to enforce that right indirectly, for example as part of a claim under the 2010 Act (to this Tribunal), or as part of a CSP reference under the 2004 Act. However, there are pre-conditions for doing so - the pupil needs a discrimination argument, or needs to be eligible for a CSP. There is no mechanism for a pupil with a mental disorder to hold an education authority to account for not providing an education, which takes full account of their mental disorder. Judicial review is hardly an adequate mechanism for this recourse; especially where there are two specialist tribunals, (MHTS and this Tribunal) to provide remedies for someone in this position. The fact that neither Tribunal can assist, demonstrates the gap.

15. The same applies to pupils with additional support needs under the 2004 Act, who have a mental disorder, so there is no alternative way to force adequate educational provision. Without a discrimination argument or a CSP, vulnerable pupils have no way to enforce their right to an adequate education that is tailored to meet those needs. This means that the current law may not be UNCRC or UNCRPD compliant (see for example, Articles 23 and 29 of the former and Articles 7 and 24 of the latter).

16. Of particular relevance more generally are the UNCRPD Article 13: Access to Justice and the UNCRC Article 4: A State’s General Obligation of Implementation.

17. It could be argued that the 2010 Act plugs the gap adequately, but the 2010 Act depends on the demonstration of unfavourable/disadvantageous treatment rather than offering the enforcement of positive rights.

18. The same issue arises with the rights created in ss. 25 and 26 of the 2003 Act – rights with no enforcement mechanism. It is therefore not surprising that lawyers generally neglect these rights.

19. We support the creation of the duty outlined in the question, as long as there is a direct and effective enforcement mechanism for it.

20. Rights without an effective enforcement mechanism are rights that are destined to be ignored. The importance to society of the effective education of vulnerable school pupils is too high to be left to limited, unenforceable provisions.

21. We see no reason to treat children and young people differently from adults on this question. While we agree with the Review Report’s comment that identifying the source of a lack of capacity can be problematic, in our view the source of lack of capacity may not be important, only that it is identified and properly addressed.

22. Further, in the HEC we take the view that there are many ways to obtain the views of children and young persons, whatever their mental or physical condition. The Chamber has an extensive Guidance Note on The Child, the Young Person and the Tribunal, No 01/2021, setting out how a child’s view/evidence should be taken. Some of the material there may be of wider use, such as where a child has a mental disorder and their views need to be sought. The approaches encouraged in that Guidance Note would fit with the autonomous decision making (ADM) test proposed in the Review Report at pages 81-82. We support the use of the ADM test as outlined there. It is measured and proportionate and it is framed in positive terms (unlike the SIDMA test, which is framed negatively).

23. In HEC cases, we have often found that children and young people who have been parties or whose views/evidence have been taken have a clear understanding of what they want and why they want it. In almost all cases, they are able to communicate this to the tribunal. Often that communication needs to be assisted, but this should not be an issue or a barrier, especially where a decision making body (such as the HEC) is proactive in its process management.

24. On patients with communication difficulties (whatever the cause), there is a statutory duty on the relevant hospital managers to take reasonable steps to ensure that appropriate arrangements are made (section 261 of the 2003 Act), but this obligation is in very wide terms and it is not clear that in practice it is implemented fully. Again, we refer to the Guidance Note mentioned above and the level of detail it provides on this subject. It may be that children and young people who have a mental disorder may also, due to having a disability such as autism, need intensive communication support. The rather bland and general obligation in section 261 may not be fit for that purpose.

25. In the HEC, we use advocacy services regularly to collect the views of children and young persons. Often, children and young people have a lot to say. Trained, professional advocacy workers can usually build a rapport over more than one visit, enabling detailed, authentic and unguarded views to be collected in a way that might not be possible even in an accessible tribunal hearing setting. Some children and young people like to be supported in hearings by independent advocates, especially where a previous rapport has been built. Others still prefer to speak for themselves, and do a very good job of this.

26. The importance of the option of advocacy is crucial for all vulnerable children and young people, especially where major decisions are being taken that could affect their future liberty, education, life prospects and (above all) happiness.

27. We support Review Report’s proposal (at page 141) to streamline advocacy. Where a child or young person has to face more than one decision-making body (sometimes several), advocacy from the same person should be available across all contexts and forums. This would enhance consistency and comfort for the child and young person, and would lead to a better chance of high quality views being shared.

28. The statutory duty to provide advocacy services in the 2003 Act (ss.259 and 259A) lies on health boards. This is in contrast to the statutory duty to provide advocacy services to children and young people with additional support needs in the education context, where the duty lies with the education authority and with the Scottish Ministers (the latter in connection with HEC proceedings): ss.14 and 14A of the 2004 Act. This makes the provision for advocacy in judicial proceedings stronger.

29. We support the Review Report’s endorsement (at pages 143-144) of the Rome Review recommendations in relation to children and young people with autism and children with learning disabilities.
30. One key way to strengthen the position of children and young people with these conditions is to widen and deepen the prevalence and role of the CSP under the 2004 Act. Unless commitments to support are contained in a CSP, they do not have statutory force, meaning that there is no direct mechanism to ensure that the required support for vulnerable pupils is provided. For this reason, we support the Review Report’s endorsement of the Rome Review’s recommendations on CSPs.
31. There is evidence of success in the use of a statutory education plan to include health and social care. The Rome Review considered the use of Education, Health and Care (EHC) Plans then being trialed in the First-tier Tribunal Special Education Needs and Disability (SEND), in England. The SEND Tribunal is the equivalent of the HEC Additional Support Needs jurisdiction.
32. From April 2018 to August 2021, the SEND Tribunal National Trial tested the extended powers of the SEND Tribunal to hear appeals and make non-binding recommendations about health and social care aspects of EHC plans, provided those appeals also include education elements. An independent evaluation of the national trial found positive findings and on 20 July 2021, the Department for Education confirmed the extended powers given to the SEND would continue.

34. On the safeguards for treatment, the HEC has dealt with a number of cases where the issue of restraint within an educational setting has been in issue. This is a complex area, and Scottish Government guidance on this is about to go out to consultation. There is case law from across the UK and internationally on the subject. The principles and tests for restraint and seclusion ought to be applied (as the Review Report suggests at p.145), across all relevant settings. Consistency of approach is crucial and is required by law. We welcome the close attention to this subject suggested in the Review Report.

33. On the relationships between parents and children, as covered under section 278 of the 2003 Act, these are crucial and this provision could have a higher status (for example as part of the section 1 principles, or as part of section 2 of the 2003 Act). The maintenance of a good parent-child relationship (or at least as good a relationship as is possible) is crucial to the development of children and young people, including their educational development. In the HEC, we often see first-hand how the parent-child bond can be very strong, and how that can be a key support for those who are vulnerable at a crucial stage in their lives.

35. We agree with the Review Report statement that:
‘there is an opportunity to develop a unified legal and judicial framework with responsibility for overseeing decisions on all aspects of the health, education and welfare needs for children and young people, particularly where there is some element of compulsory provision.’ (page 148)

36. The Review Report captures, in summary, the benefits of such a system very well (pp 147-148). We agree that such an undertaking would be a ‘hugely complex undertaking’. However, many worthwhile undertakings fall into this category.

37. The Review Report identifies a number of specific concerns; however, we do not feel that these concerns represent significant barriers to reform.

38. There would be no need for an all-purpose children’s tribunal to ‘dilute the expertise’ which the MHTS can bring. Tribunal members suitably trained and experienced in mental health law can replicate that expertise within an all-purpose tribunal.

39. There are a number of Single Chambers in the First-tier Tribunal for Scotland where multiple jurisdictions are transferred (likewise in the UK First-tier Tribunal). The HEC is designed for a similar purpose.

40. Tribunal members are assigned to Chambers and trained in the range of jurisdictions which sit within the Chamber. Some members are trained and equipped to sit in more than one jurisdiction. A similar approach could be taken to a children’s tribunal, with members trained across the relevant likely jurisdictions (for example, mental health, child welfare and protection, juvenile offending, education, additional support needs, adult capacity). It is not uncommon for these and other non-jurisdictional issues to arise in the course of HEC proceedings.

41. Each tribunal in the HEC is comprised of three members, drawn from the bank of expertise within the Chamber. The President allocates members according to case type, expertise and relevance. Allocation to a children’s tribunal could be comprised of members with the relevant range of skills, experience and expertise.

42. We do not accept that separation of mental health law for adults and children is a necessary consequence of a separate tribunal – the law applicable to children can be exactly the same as that applicable to adults; it is the forum and context in which it would be applied which would be different.
43. In any event, the law applicable to children and adults is currently different (see section 2 of the 2003 Act). Indeed, the Review Report deals with children and young people in a dedicated chapter, suggesting that different considerations exist for this group, compared to adults. In recognition of this, the Mental Health Tribunal developed a ‘specialism within a specialism’ when it introduced a new approach to child and adolescent tribunal hearings in 2013.

44. Further, the law in many places recognises a need to treat children and young people differently from adults. It is difficult to see why mental health law should be an exception to this.

45. The point about the stage of transition (Review Report, page 148) seems to us to be a weak one as a reason not to reform a system, which would bring a more holistic approach to the needs of this vulnerable group. The benefits of such a system would be likely to far outweigh the need for a transition to an adult system. Children need to transition into being adults, that is just a fact of life, and treating them the same as adults in an attempt to avoid the transition is not, in our view, a sensible (or even logical) option.

46. We support a recommendation for consideration to be given to the possible creation of a unified judicial framework, as described at page 148.

1. Are there certain things that hinder the Act from working effectively? What would improve things?
Learning disability and autism
56. In the HEC, our decisions routinely affect children with what is currently termed ‘learning disabilities’ or autism, which itself may be a mental illness or a learning disability. The school of thought on which category applies is frequently the subject of debate. The Rome Review suggests that the term ‘learning disability’ should be replaced by ‘intellectual disability’. In addition, that ‘learning disability’ should be removed as part of the definition of ‘mental disorder’ under the 2003 Act.

57. In considering what an ‘intellectual disability’ is, the Rome Review recommends that reliance is placed on the definition of disability in the UNCRPD:
‘Disability results from the interactions between persons with impairments, and attitudinal and environmental barriers that hinder their full and effective participation in society on an equal basis with others.’
58. We support this suggestion. The term ‘intellectual disability’ is a better description of the disability which is currently termed a ‘learning disability’. Further, the UNCRPD definition is a progressive one and focusses on the interaction between those with such an impairment and environmental barriers, whereas the current definition focusses only on the individual.

59. In addition, the interaction between the 2003 Act and the 2010 Act should be considered. Often, when the 2003 Act applies, it is assumed that the 2010 Act does not. That is not the case. This is especially so where many (if not most) of the patients who are affected by the 2003 Act have a disability within the meaning of the 2010 Act.

60. A re-focus in definitions of mental disorder towards disability (when considering those patients who may have autism or an ‘intellectual disability’) would draw attention to the rights of patients under the 2010 Act, which might in turn influence the operation of the criteria for compulsory measures. This connects back to one of the current principles in the 2003 Act – section 1(3)(g) – the non-discrimination principle. This is rarely relied upon in practice, but might be strengthened if seen in the context of a possible argument of unlawful discrimination under the 2010 Act.
Capacity test
61. One issue which can be problematic in the operation of the 2003 Act is the test to be applied in deciding whether or not a particular patient has capacity to instruct a solicitor (if not, a curator ad litem is usually appointed under rule 55 of the MHTS rules of procedure).

62. The whole area of capacity to instruct a lawyer is unclear.

63. In the HEC, children who are aged between 12 and 15 years (inclusive), and who have additional support needs, may bring a reference relating to the making, review, content or discontinuation of a CSP. They may also challenge decisions on their capacity or wellbeing in relation to certain actions taken in connection with their education. Their capacity to do any of these things (as well as their capacity to take part in other decisions around their education) is defined in section 3 of the 2004 Act. This test might be useful in future in considering the question of capacity to instruct a solicitor under the 2003 Act.

64. That test might also assist in considering the question of capacity to bring a claim under the Equality Act 2010.

65. The Rome Review recommend (section 2.3) that a test of capacity which applies to everyone is adopted. The test suggested there would have as its reference point the question of whether it is necessary and proportionate for the state to limit the person’s authority to exercise that right.

66. This highlights a wider question: the right of the child to be represented in MHTS proceedings. That is not clear from the 2003 Act. Clarity would assist in the same question for child parties in other judicial processes, including those in the HEC. Such clarity would be compliant with Article 12 of the United Nations Convention on the Rights of the Child (‘UN CRC’), especially Article 12(2). This is particularly important given the plans to incorporate the UNCRC into Scots law.
Co-ordinated support plans
67. These represent one of the key areas of operation within the HEC. The following is recommended at section 4.5 of the Rome Review:
“All autistic children and children with intellectual disability who need services for their mental health should have a right to be offered a Coordinated Support Plan. Statutory duties towards children who have a Co-ordinated Support Plan should extend to all agencies including NHS Boards, and Health and Social Care Partnerships.”
68. This would be a progressive and positive step in capturing and identifying the full range of supports and services the child or young person can expect, as well as how and when these will be delivered. Care and support, particularly where this is provided by a range of agencies, can be confusing and overwhelming for children and young people with autism or a learning disability. Precision and consistency are important and the benefit of setting this out in a statutory plan cannot be overstated. As well as the statutory rights attached to this, it provides a reference tool for the child or young person and their parents/carers. Accordingly, the HEC agrees with this recommendation (see also our comments at paragraphs 30 to 32).

69. At the moment, it is unlikely that a child’s CSP, or any aspect of this, would be made known to the MHTS, despite the need to consider the impact of compulsory measures on the child’s education. If the Rome Review recommendation is adopted, the CSP would become a factor in any decision by an MHTS tribunal when considering an application for compulsory measures for a child or young person. Such a plan would allow the tribunal to understand the extent of support required to meet the educational needs of children or young persons who are under hospital based compulsory measures. In addition, this might assist with the framing of recorded matters under section 64(4)(a)(ii) of the 2003 Act.

Human rights assessments
70. In section 6.1 of the Rome Review, it is recommended that all professionals adopt the approach of making a ‘human rights assessment’ when taking a decision which may impact on any person.

71. This suggestion requires that consideration of ‘rights, will and preferences’ would not be enough; special regard should be had to them in decision making. This would involve a proportionality assessment, which would pit the limitations of a decision against its benefits.

72. This suggestion involves a re-focus towards UN Convention principles (in particular those in the UNCRPD), and would, if incorporated into the 2003 Act involve a more progressive approach to the balance between acting in someone’s (perceived) interests and acting in accordance with their preferences.

73. In the HEC, we strongly support the approach to rights provided for in the UNCRC and UNCRPD. These rights (in the way suggested in the Rome Review as well as in other ways) should influence the development of principles in the future.

2. 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?
74. Yes. On educational rights, while these exist in broad terms, for example in ss. 1-2 of the 2000 Act and (in connection with children and young people with additional support needs) under ss. 4-6 of the 2004 Act, they are so broadly stated that they are difficult to promote or enforce.

75. Where individuals have mental health needs, they are some of the most vulnerable citizens and often these needs can hinder opportunities to access services and, when needed, to fight for what they are entitled to. Even where such a citizen has access to legal representation, often the rights are so broadly stated as to be unknown or difficult to interpret.

76. The HEC welcomes any changes to the law which would highlight to vulnerable members of society (and those who assist and represent them) their right to a decent standard of life. That must include education.
73. Promoting this should include:
- clear and specific statements of the rights of all citizens who have mental health needs
- better coordination between the relevant legislation, for example, the 2003 Act, 2004 Act, 2010 Act and the Adults with Incapacity (Scotland) Act 2000
- better information in accessible form on rights, including coordination between different agencies on the dissemination of information about rights in different areas.

3. Do you think the law could do more to raise awareness of an encourage respect for the rights and dignity of people with mental health needs?
77. See the answer to Q2 above. These steps will help to raise awareness in this area.