There's a new Mental Health Act being formulated for England and Wales. Scotland has its own legislation. North of the border, law and practice around relative advocacy and advance statements on care preferences are more progressive.
Can you think of a challenging experience you, or someone you know, has had as a mental health care professional, patient or carer? At the Mental Welfare Commission for Scotland, we protect and promote the human rights of people with mental illness, learning disabilities, dementia and related conditions.
"Advance statements are made by people when they are well. They detail individuals' wishes for care and treatment, should they become ill again in the future."
Our duties are set out in mental health and incapacity laws in Scotland. They include monitoring the use of mental health and incapacity legislation and visiting people in hospitals, wards and homes. We also publish best practice guidance, such as Consent to Treatment, which examines issues of consent related to Scottish legislation. There is no equivalent organisation in England or Wales with our range of functions.
There are similarities between Scottish mental health legislation - the Mental Health (Care and Treatment) (Scotland) Act 2003, and the (currently under review) Adults with Incapacity (Scotland) Act 2000 - and that in England and Wales. However, there are some differences.
For example, in Scotland, a ‘named person’, who helps protect a detained patient’s interests, can be chosen by the patient, whereas in England and Wales, the named person is assigned.
- See also: In Our Right Mind
In Scotland, advance statements are handled differently too. Made by people when they are well, they detail their wishes for care and treatment, should they become ill again in the future. In Scotland, they must be respected by clinicians, other than in exceptional circumstances. If they are overridden, this must be reported to us at the Commission. Scotland’s approach to advance statements has also been strengthened by new laws implemented in June 2017 which mean that we hold a register which lists all advance statements received by health boards since that date. This register is the first of its kind in the UK.
Human rights legislation is complex and can be difficult to understand in a real world context. While concrete rights under mental health law are usually clear, staff have told us that understanding how to apply wider human rights in their practice can be less obvious.
Last year, we published ‘Rights in Mind’ - a series of resources including films and written guidance, specifically focusing on human rights in mental health care and treatment. We worked on this with the Scottish Human Rights Commission, the Royal College of Psychiatrists in Scotland, and with ward staff and ex-patients. It brings together Scottish, UK and EU legislation.
We developed this project because we had found challenges around patients’ rights. For example, we have sometimes heard from patients who believed they were detained when they were not. Informal patients, who have not been detained under mental health legislation, have the right to leave the hospital at any time. This overarching right to liberty is set out in the European Convention on Human Rights (ECHR). But how do ward staff handle a situation where informal patients wish to leave against medical advice? Our accompanying good practice guide helps staff to address these issues.
The need to improve information for patients is highlighted in our films with Holly and Gareth, who have lived experience of mental ill health, and Jake, a charge nurse. This is where our ‘Rights in Mind’ infographic can help. It was created working with hospital staff and patients with experience of adult acute mental health wards. It follows a patient’s journey in care from admission to discharge, and care in the community, setting key human rights in context. It also captures patients’ concerns by including questions patients told us are most important to them in relation to their rights such as, ‘can I go out for walks?’, ‘what about my education?’
Since producing ‘Rights in Mind’, we have already seen innovation and improvements in practice, and are excited to see what positive changes this year brings, north and south of the border.
Watch the films here
See the Rights in Mind Pathway infographic here
Read our Good Practice Guide: Human Rights in Mental Health Services here