14 things that can improve Mental Health Legislation in Scotland

The Scottish Government is going review the place of learning disability and autism within the Mental Health  Act.

They want the review must be open for everyone to take part in and they are open to any ideas that people have.

The review can look at lots of different things. The only definite thing is that it will look at views about removing learning disability and autism from the definition of ‘mental disorder’ under the Act.

This is important because:

• The Mental Health Act  lets people who may require treatment, but who do not accept the need for it, may be detained in hospital, under the care of a psychiatrist, to receive such treatment.

• However, learning disability and Autism are lifelong conditions, which cannot be cured or treated by medication. This could mean people being detained for lengthy periods because the right services are not available.

• People with learning disabilities or autism who have  challenging behaviour may receive poor services. It would be the correct response to provide good services, rather than place the individual in hospital.

The continued inclusion of learning disability and autism in mental health legislation contributes to the marginalisation of people with these conditions.

Between 2006 and 2012, there was a 39% increase in the number of people with learning disabilities subject to compulsory measures       In comparison, in the same period, there was just a 7% increase in the use of compulsory measures for people without learning disabilities.

The average time people with learning disabilities were detained in hospital was 4 years.  For people without learning disabilities it was less than 2 years.

A consultant has been going around speaking to people to find out what they think should be included in the review.  This is called a Scoping Exercise.  LDAS said there were 14 things that they should look at.

1. That whatever is the outcome of the Review there should be no undue interference in people lives.  People with learning disabilities are entitled to the same rights and responsibilities are everyone else and that includes the right to make both “good” and “bad” decisions.

2. The review should explore the existing “right to advocacy”, its limitations and how resources could be made available to meet the current duties and how this could be expanded in the future.

3. Develop and incorporate “Supported Decision Making” into the new proposals including

i. How to assess an individual’s ability to “decide”.

ii. How to help people gain skills in decision making

iii. How to embed an understanding of the “capacity to make decisions” as a process that can both change over time and be different in different contexts and not simply as a static concept.

4. The reviews should look at a “whole systems approach” that considers questions of capacity, guardianship, CTOs and wider life issues.

5. The review must include considerations about the use of Section 13ZA in decision making for adults who may lack capacity and adequacy of the existing levels of protection and possible conflicts of interest that may be involved.

6. Consider the role of psychiatrists and what checks and balances there are on their behaviour and decision making.

7. Consider whether current legislation allows “indefinite detention” of people with learning disabilities in the hospital system and how this can be prevented in the future.

8. Whether there are implications from the “Named Person” legislation for how we manage capacity in vulnerable clients.

9. The review should look at a “graduated level” of decision making and how this can be supported

10. The Review should be clear that the “Power of Attorney” can not be used for people with learning disabilities who have never had capacity.

11. The Review should look at what would be a clear and simple process for appeals and challenges for adults who disagree with decisions over their right to make decisions.

12. The Review should consider a scheme of Graduated Welfare Guardianship.  This would include examining a scheme suggested by the Mental Welfare Commission but there may be others.  The proposal had 4 levels

i. Registered Supporter

ii. Formal Care Planning Process

iii. Non-court appointed guardian

iv. Full court appointed guardian

13. The review should consider the issue of “Deprivation of Liberty” more generally but should also touch on Deprivation Of Liberty safeguards related to

a. Seclusion

b. Restraint

c. Sedation

14. The review should also include examination of the use of psychotropic medication.

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