Dr Richard Simpson, Scottish Labour’s shadow Minister for Public and Mental Health, who was a psychiatrist, welcomed the public stance of the Mental Welfare Commission.
Colin McKay of the MWC warned that the progress which had been achieved in Scotland through the Mental Health (Care and Treatment) [Scotland] Act 2003 could be lost if Parliament did not ensure a rights based approach.
Dr Simpson had already called for a wider review at the Stage One debate on the Bill in the Scottish Parliament:
Dr Richard Simpson MSP said:
“I have concerns that this narrow amending bill does little to enhance the rights of those who may be detained. It appears to be largely addressing what are seen as service administrative issues.”
“I am concerned at the extension to a number of lengths of time where detention can be applied. I will be tabling amendments to block some, and to ensure that other occur only where it is clearly in the best interests of the person affected.”
“If the government does not announce a wider review to examine the judgments which have been made by the courts and the compatibility of the Adults with Incapacity [Scotland] Act 2000 with the 2003 Act in respect of capacity I will also seek to table amendments to the bill, ensuring the right to appeal against emergency and short term detention on the issue of capacity.”
Dr Simpson went on to say:
“There are other issues which give me great concern including the overuse of psychotropic medicine in both Acute Hospital and Care home settings. But this is exactly why a fuller review is required.”
Notes to editors:
The Mental Health (Scotland) Bill has passed stage one. Stage 2 will commence after the Easter recess.
The Mental Health (Care and Treatment) [Scotland] Act 2003 was based on the Milan report 1999 and incorporated important principles.
The Adults with Incapacity [Scotland] Act 2000 includes a right of appeal to a court if the person whose capacity is being judged to be impaired does not agree.
The 2003 Act was the first Mental Health Act in modern times which was not simply an adopted UK Act. It was largely followed by Westminster in the subsequent UK Act.
The judgment of the European Court of Human Rights in the case of Salontaji-Drobnjak v Serbia established that it is a violation of Article 6.1 ECHR to be denied, access to a court concerning the restoration full legal capacity, if an adult has been assessed as lacking legal capacity in some respect. There is currently no such appeal in the 2003 Mental Health Act, yet there is a right in the Adults with Incapacity Act 2000.
The GMC consent guidance makes clear, and case law has established that a patient with the capacity to make a decision about some proposed medical treatment has a right to refuse it, even though the patient has a mental illness and even though death might be the likely consequence of the refusal.