The Scottish Government has today (28 June 2023) published its response to the independent review of mental health, capacity and adult support and protection legislation, chaired by Lord John Scott KC. In headline terms, the Scottish Government is committing itself to a reform programme based on the following principles:
- A staged approach to law reform
- Whole system change approach.
- As far as possible, early action to address urgent issues.
- Co-ordinated across government and strong partnership working to address complex areas of change and reform.
- Lived experience voice and participation.
- Focusing resources on delivery and service transformation
- Enabling the workforce to embed and drive change.
- Focused on implementation and sustainable delivery.
- Monitoring our impact and capturing learning
Scottish Government continues:
Our approach will be to take forward a staged programme of legislative reform. Following the structure of the Review, the timescales for workstreams will be separated into short-, medium- and longer-term activity to support implementation over the next decade. We will work closely across adult support and protection, mental health, and adults with incapacity policy to ensure coherent reform across the legislative framework in response to the SMHLR.
At present there is insufficient information to fully assess the resource implications required to deliver on the ambitions set out in the SMHLR and to fully progress our early priorities. Our approach will therefore be managed, coherent and incremental and will support our developing understanding of how to deliver improvements over time. We will do this through establishing associated workstreams to improve policy, guidance, and best practice across the programme. Assessing the resource implications will be central to this.
We will work to meaningfully bring together those with lived experience of the system with those who lead, deliver, and oversee services along with legal experts, academics, and wider community organisations in pursuit of the transformations rights-holders want to see. To support effective progress and delivery we will focus on a number of core building blocks for change and reform that will underpin our work and support successful implementation.
Importantly, the response contains a section entitled ‘how we will know if we have been successful,’ which reads as follows:
The programme objectives will be developed with stakeholders over the coming months. This will include work to look at how we can understand and measure the impacts of reform. Any reforms we introduce must demonstrate tangible improvements over time. They must ensure better outcomes for people, and show that our mental health and capacity laws, policies and practices are increasingly based on, and further advancing, recognised human rights standards. At the same time, we must ensure that people who require support receive this at the right time and in the right way.
A goal for this programme will be to ensure that we know when non-consensual treatment and other restrictive practices are being used and progress is being made in reducing these approaches. We will also be working to demonstrate that our regulation and scrutiny bodies are identifying human rights issues and that services at national and local level are demonstrating effective action to address concerns quickly.
Success will mean that individuals will have a greater knowledge and understanding of their rights and what to do if they feel their rights are not being upheld; they will be supported to make or express their choices about any treatment, care or support they might need.
An ultimate aspiration will be that there is greater trust in our mental health system and a broader understanding of the system, extending beyond clinical services and encompassing broader supports in the community.
The response will no doubt be examined carefully by those in Scotland with operational interests (however defined) in the issues covered. Of broader interest, perhaps, is the summary of the ‘listening exercises’ conducted by the Scottish Government, as they provide an interesting snapshot of areas of consensus / disagreement in this area.
To shape this high-level response to the SMHLR, we met with a range of stakeholders, including those representing lived and learned experience of the system. These meetings were designed to hear views on the final report, its recommendations and identify priorities for change. We also attended wider stakeholder meetings and network events to hear people’s views about the SMHLR final report.
In general, we heard strong support for the ambition and overall direction of travel set out by the SMHLR and a desire to see progress towards this, together with meaningful lived experience involvement. Stakeholders noted a particular need for AWI and guardianship reform. This was almost universally identified as the priority for legislative reform, and for embedding of human rights-based approaches. There was also recognition of the need to strengthen accountability across the system with concerns about the perceived fragmentation of the current approach to regulation and scrutiny of services. There was also agreement on the importance of supporting carers’ role and rights, including the potential for families, friends and wider support networks to enhance our approach to early intervention and prevention and to whilst balancing with the rights of the individual and their autonomy. In addition to these points, a broader range of views were also expressed on some of the more specific technical and policy reforms proposed in the final report.
A number of people with experience of caring for or supporting people with dementia and other similar conditions and human rights organisations, highlighted concerns about the way that the Adults with Incapacity Act currently operates. The absence of a Deprivation of Liberty framework within Scots law was highlighted as a particular concern, with many stakeholders wanting action to progress recommendations in these areas as a priority.
People with a learning disability, autistic people and many organisations who advocate for or on behalf of them, raised concerns that the SMHLR recommendations would mean that people with a learning disability or autistic people could still be subject to detention and non-consensual care and treatment under reformed mental health law. This is because the Review recommends their continued inclusion within the group of people who the Mental Health Act would apply to. There was strong support amongst these groups for the removal of learning disability and autism from any definition that replaces ‘mental disorder’ as part of any future reform to ensure that they are no longer within the scope of the Mental Health Act.
We recognise these concerns and note that the SMHLR has taken a different approach on this issue from that of the Rome Review which preceded it. As a result, there was a strong desire for the recommendations of the Rome Review to be considered alongside the SMHLR recommendations and for Scottish Government to work with people with lived as well as learned experience of the system.
In contrast, others supported the SMHLR recommendations to change the purpose and scope of the law and they supported the proposed new approach to human rights. They felt this would create a more effective human rights basis for our legislation, in line with the UNCRPD. It was also unclear what the implications of alternative options would be or what legislative framework people with a learning disability or autistic people who require care and support would prefer or find most effective for upholding their rights in the future.
Some of those with lived experience felt that the SMHLR did not go far enough in recommending the end to all forms of non-consensual or compulsory care and treatment. They felt that this was not in line with human rights standards. In contrast, others with lived experience felt that there are times where non-consensual care and treatment can be necessary and that the recommendations would help to strengthen safeguards, whilst retaining provisions to provide non-consensual care and treatment where this was deemed to be necessary or beneficial for the safety of themselves or others.
There were also questions about the level of investment required to fully deliver on the ambition set out in the Review, at a time when resources are constrained.
Concerns were additionally raised about the implications of the recommendations for the diverse workforces who deliver our mental health and social care support and services. It was recognised that many of the proposed changes would place additional pressure or demands on their capacity or require further training, support, and skills development to deliver effectively. People were particularly concerned about how this would be achieved in practice and what the resource implications would be.
We also heard concerns about introducing significant further change at a time when there is already wider transformation underway across our health and social care systems. It was felt that some of the proposals and a focus on further reform at this time could increase pressure on service delivery. Stakeholders were also keen to understand how the Review recommendations would fit within developments across the wider health and social care landscape, some of which have been noted earlier, and sought assurance that appropriate links will be made across government to ensure coherent and well-managed change.
Equally, stakeholders recognised that a long-term programme of reform will be needed, and that legislative reform will necessarily take time. There was support for a staged approach, working in partnership. There were also concerns about the potential for unnecessary delay in some areas and calls to make progress in the shorter term on areas of reform that have broad stakeholder support and do not require substantial change to the law.
We will build on this early engagement and continue to work with stakeholders to scope and agree a way forward. What is clear is that there are areas where change and reform is more pressing, coupled with a strong consensus to see early progress made. While other areas need further work and detailed consideration before reaching a decision about whether, or how, to proceed.