When it comes to mental health law, England and Scotland are truly
different countries. While the furore continues around the draft
Mental Health Bill for England and Wales, the implementation of the
Scottish act, while delayed for six months, is at least within
Right from the outset the Scottish Mental Health (Care and
Treatment) (Scotland) Act 2003 has had an easier ride than its
Westminster counterpart. While both the first and second drafts for
England and Wales were criticised heavily, the Scottish bill
enjoyed a warmer reception. For the most part, this has been
attributed to the Scottish legislation simply being
Campaigners south of the border have been open about their
preference for the Scottish act and are keen for elements of it to
be adopted in England and Wales. Why is this the case and where
exactly have the civil servants in Whitehall gone wrong?
DEFINITION OF MENTAL DISORDER
“Mental disorder” means any mental illness, personality
disorder or learning difficulty. But the act makes it clear that a
person is not mentally disordered solely on the grounds of:
Their sexual orientation or deviance.
Dependence on or use of
drugs or alcohol.
Behaviour that causes or
is likely to cause harassment, alarm or distress to another
The fact that they are
“Acting as no prudent person would act”.
England and Wales:
Much of the controversy surrounding the bill is down to the broad
definition of mental disorder. It is defined in the bill as
“an impairment of or a disturbance in the functioning of the
mind or brain resulting from any disability or disorder of the mind
or brain”. The fear is that such a wide definition will
result in many more people being made subject to compulsory
Unlike Scotland, the draft bill does not list the circumstances in
which an individual would be excluded from this definition.
According to the Royal College of Psychiatrists, there is no other
mental health act without exclusions in any other common law
jurisdiction. Indeed, the Mental Health Act 1983 states that people
cannot come under the act solely as a result of “promiscuity
or other immoral conduct, sexual deviancy or dependence on alcohol
The government has been urged to reconsider its stance on
exclusions and to add certain clauses preventing the inclusion of
people on the basis of their cultural, political or religious
beliefs, promiscuity, or misuse of alcohol or drugs.
PRINCIPLES IN THE LEGISLATION
Part one of the Scottish act lists a set of principles that those
involved in implementing the act must take into account. These make
it clear that the patient’s present and past wishes and
feelings must be considered as well as the views of the
patient’s carer, guardian or person they have chosen to
support them and to protect their interests.
Other principles cover the importance of patient participation, the
provision of appropriate services, and the needs of the
patient’s carer. The principles also set out how the
functions of the act should be carried out, stipulating that any
restriction on a patient’s freedom should be kept to a
England and Wales:
In the draft bill there are principles referring to the least
restrictive environment, patient involvement in decision-making,
and fair and open decision processes. But it is felt that these
principles do not go far enough.
The Mental Health Alliance, a coalition of more than 60
organisations, which includes service users, health and social care
practitioners, and lawyers, would like a set of general principles
on the face of the bill. It believes that, as with the Scottish
act, these principles “would give confidence to service users
and act as guidance to practitioners and tribunals in applying and
interpreting the act”.
The alliance has developed 10 principles that it feels should be in
place. These cover respect for a patient’s autonomy, the use
of compulsory powers as a last resort and a holistic approach to
treatment that includes social care needs as well as medical
CONDITIONS REQUIRED FOR COMPULSORY
Under the Scottish act, compulsion is only permitted if a
person’s ability to make a decision about medical treatment
has been impaired by their mental disorder. Consequently, people
who retain full decision-making capacity cannot be made subject to
England and Wales:
Impaired decision-making is not a required condition for treatment
to be enforced. Consequently, for example, someone who has capacity
and chooses not to take their medication could be compelled under
In order for a patient to be made subject to compulsory powers,
medical treatment has to be likely to be beneficial. The act states
that practitioners must be satisfied that medical treatment would
either be likely to prevent the mental disorder from worsening or
that it would alleviate any of the symptoms or effects of the
England and Wales:
There is no such treatability clause in the draft bill stating that
treatment must be beneficial to the patient. Instead, it states
that medical treatment can be provided to protect a patient from
suicide, serious self-harm, serious neglect of their health or
safety, or for other people’s safety.
There is widespread concern
about the absence of a treatability clause in the draft bill. Many
people feel that patients should not be forced to accept treatment
if they cannot benefit from it. Currently, under the Mental Health
Act 1983, treatment must be likely to “alleviate or prevent a
deterioration” of an individual’s condition.
Psychiatrists are of the view that compulsory treatment should be
of “therapeutic benefit” to a patient. The Royal
College of Psychiatrists says that this means that medical
treatment is likely to bring about an improvement in symptoms or
prevent deterioration in a person’s mental or physical
The absence of a treatability clause has a particular impact on
people with personality disorders. Under the 1983 act individuals
with an untreatable personality disorder could not be detained in
hospital, and this remains the case in Scotland. But under the
proposals in the draft bill, there is a danger that people with
personality disorders could find themselves on a treatment order –
and so possibly detained in hospital – for the rest of their lives,
without any improvement in their condition.
An individual with a mental disorder can be subject to compulsory
treatment if they pose “a significant risk” to the
safety of another person.
England and Wales:
The proposed threshold is lower. The bill states that an individual
with a mental disorder could be compelled “for the protection
of other persons” – there does not need to be a significant
risk to others. “For the protection of others” is a
broad category, and certain categories of people such as those with
learning difficulties who show aggression could find themselves
included, even if they represent a minimal risk to
4) Right to assessment
There is a duty on local authorities and health boards to respond
to written requests for an assessment of an individual’s
needs. The local authority or health board must respond to the
request within 14 days saying whether or not they intend to carry
out the assessment. If they decide not to they must give reasons
for this. Written requests can come from the person with the mental
disorder, their primary carer or their named person.
England and Wales:
There is no duty on local authorities to provide assessments of
needs. Many people feel that this should be included in legislation
as about a third of people who seek help for a mental health
problem are turned away.
AREAS TO INCORPORATE
There are other elements of the Scottish act that campaigners would
like to see incorporated into the bill for England and
In Scotland all people with a mental disorder have the right to
access independent advocacy services. There is a duty on local
authorities and health boards to ensure availability.
Patients in Scotland have the right to make a written statement
setting out how they would like to be treated and how they would
not like to be treated should they become unwell in the future.
Those involved in implementing the act must take advance statements
Continuation of care:
The Scottish act places a duty on councils to provide care and
support services to people who have had a mental disorder once they
have been discharged.
In Scotland, health boards must provide appropriate services and
accommodation to meet the needs of children and young people. The
Scottish Mental Welfare Commission must ensure that child
specialists are included on its list of suitably qualified
AREA OF CONTENTION
The proposed use of community-based treatment orders – or
non-resident orders as they are also known – is unpopular in
Scotland, just as it is in England and Wales. Under these orders,
rather than being detained in hospital, patients could be forced to
adhere to certain conditions in the community such as living in a
specified place or attending appointments for treatment. There is
concern that community-based treatment orders will result in more
people being subject to compulsion.
Despite the opposition, community-based compulsory treatment orders
are on the Scottish statute books. Chances are that they will also
become law in England and Wales.
PROTECTION OF LIBERTY
The Mental Health (Care and Treatment) (Scotland) Act 2003 was one
of the most complex pieces of legislation to go before the Scottish
parliament. About 2,000 amendments were made before the bill was
passed in March 2003, and, all going well, the act is due to come into effect
later this year.
Meanwhile, the debate continues over the content of the draft
Mental Health Bill for England and Wales. The parliamentary
scrutiny committee continues to hear evidence from mental health
groups, and is expected to give its report in the
Rumour has it that Whitehall civil servants have refused
suggestions that they copy parts of the Scottish act.
Friction between Scotland and England may be inevitable in certain
aspects of life, but when it comes to individuals’ liberty,
surely it’s time to admit that – just sometimes – things can
be better north of the border?