Human Rights and the Mental Health Law Review

Cathy Asante, Legal Officer at the Commission, writes about her work promoting a human rights based approach with the Scottish Mental Health Law Review.

The final report of the Scottish Mental Health Law Review has been published recommending new laws in relation to mental health and capacity law. The recommendations set out a bold new direction aimed at delivering greater respect, protection and fulfilment of the human rights of people who fall within its ambit.

If enacted, the proposals would not only move Scotland much closer to complying with international human rights standards but also have the potential to deliver a much improved experience for people experiencing mental ill health. 

Properly delivered, they can change hospital environments, help people to exercise their autonomy about   deeply personal decisions, ensure timely and effective access to treatment, and put in place the right support to live independently and carry on with activities like parenting, employment and recreation.

Broader view of human rights

These recommendations follow many years of discussion and sometimes contentious debate about what these laws should look like and what, even, is their purpose.  The Review proposes a fundamental shift, away from laws that seek primarily to regulate restrictions on people’s human rights, and rather towards laws that seek to deliver on human rights. 

They take a much broader view of human rights than that in our current legislation, which focuses on rights found in the European Convention on Human Rights (e.g. liberty, autonomy, protection from inhuman and degrading treatment). 

Instead the Review recommends a new purpose for mental health and capacity law, namely “to ensure that all the human rights of people with mental and intellectual disability (and otherwise included under the Adults With Incapacity (Scotland) Act) are respected, protected and fulfilled”. 

This means taking into account economic, social and cultural rights, like the right to the highest attainable standard of health and the right to live independently in the community. These rights are often left by the wayside in a system focused on a medical view of illness and recovery. 

It is well known that a much broader range of factors affect a person’s mental health, such as housing, physical health, isolation.  The Review proposes a broader view of the impact of mental health care and treatment that takes into account the whole picture of a person’s life and the impact on all their human rights.

Central to the review is detailed consideration of the challenges posed by the Convention on the Rights of Persons with Disabilities (CRPD).  The statement of the UN Committee on CRPD in 2014 kicked off a renewed energy in the development of mental health and capacity laws.  The Committee was clear that using discriminatory criteria, such as mental disorder, to remove someone’s capacity to make decisions about their own life, was no longer acceptable. 

Best practice in supported decision-making

Instead, people should be supported to exercise their capacity, even in situations of crisis.  This threw our current criteria for declaring a person incapable of making decisions, whether in healthcare or any other area of their life, into serious question.  The questions are not only legal but also ethical, practical and deeply personal, and therefore difficult.  The Review has tackled these challenges head-on.  Their recommendations suggest ways to reframe the law so that interventions in a person’s life are, first and foremost, based around understanding and focusing on a person’s own wishes. 

Any intervention which overrides a person’s own views has to take into account a careful balance of the impact on the whole range of their human rights, and must not be based on discriminatory criteria.  In addition, they propose much more focus on positive action.  For example, they propose giving Tribunals the power to require the provision of care and support to avoid the need for compulsion, and consequences if that does not happen. This could mean that situations where a person is kept in hospital because of a lack of appropriate community services would not be tolerated.  The proposals also recommend wider programmes of action, such as initiatives to reduce the use of coercion and improve the experience of those subject to it, and to develop a comprehensive scheme of supported decision-making. 

A robust human rights based approach

The Commission has, for many years, advocated the reform of mental health and capacity law towards supportive and enabling legislation, focused on delivering access to human rights, as opposed to governing restrictions on them.  In this, and all policy areas, we have advocated for reviews of the law to be carried out in a rights-based way.  This requires the participation of people who experience mental ill health, and, crucially, an explicit engagement with what international human rights standards say, and what they mean in practice in Scotland. 

The work of the Review picks up the mantle of the Rome Review, on the situation of people with learning disability and autism in mental health legislation.  Both Reviews set out a clear and careful analysis of human rights standards, informed by the views of people with lived experience.  The recommendations that result carry great potential to improve the everyday lives of people in Scotland. 

The Review has now delivered its final recommendations.  We  hope to see this progress to a programme of law reform as soon as possible. This exercise also demonstrates the challenge that must be addressed across the work of public authorities as the Scottish Government moves to incorporate a suite of international human rights in a new Act of Parliament. Those rights will extend to food, housing, social care, education, to name a few.  Law, policy and practice will have to be looked at anew through the lens of delivering those rights and we hope to see the thoughtful engagement of the Review with human rights standards replicated across Scotland.