Response from Nicola Sturgeon

Health and Social Care Integration Directorate
Strategy & Delivery for Dementia, Autism and Learning Disabilitie

15/02/2019

Dear Ms Newcombe,

Thank you for your email dated 24th January 2019 addressed to Nicola Sturgeon MSP, First Minister, regarding the experiences of people with learning disability and autism detained in hospital in Scotland. As you can imagine, the First Minister receives a large number of correspondence and is unable to personally respond to each letter, therefore she has asked me to respond on her behalf as I have policy responsibility for Autism and Learning Disabilities.

The Scottish Government has set out its commitment to autistic people, people with learning disabilities and their families through the Scottish Strategy for Autism and the Keys to Life. Both strategies focus very much on outcomes intended to ensure people with learning disabilities and autistic people live healthier lives, enjoy choice and control over the services they use, and are supported to be independent and active citizens.

In respect of the case of the individual that you mention in your letter, due to patient confidentiality it would not be appropriate for the Scottish Government to comment on individual patients’ cases.

Legislation

Scottish mental health and incapacity legislation is based on rights and principles. Our mental health legislation promotes patients’ rights and provides safeguards which include that any function should be carried out for the maximum benefit of the patient, with the minimum necessary restriction on the freedom of the patient and having regard to the views of the patient. We are absolutely clear that everyone should be able to feel safe whilst receiving treatment or working in our mental health services, and the use of physical restraint should only ever be a last resort. As we work to further improve our mental health services the experience of patients, their families and staff are key to reshaping treatment and support.

Any service user has the right to support from an independent advocate, the right to appoint a named person to represent their interests and the right to make an advance statement setting out how what treatment they would and would not like to receive when unwell. We have made changes to ensure that people with a mental disorder can access effective treatment quickly and improved legislation through the Mental Health (Scotland) Act 2015 to strengthen support for decision making and promote rights. We will also continue to work with the Mental Welfare Commission (MWC) and stakeholders both to ensure that compulsion orders are used correctly, and to promote patients’ rights more generally.

Most people who use mental health services receive treatment without being subject to an order or certificate under the Mental Health (Scotland) (Care and Treatment) Act 2003. For some individuals however, compulsory treatment is used to provide the person with medical treatment to alleviate suffering and for the protection of both the person and others. Compulsory treatment is only allowed under mental health legislation in Scotland in very strict circumstances.

Diagnosis of a behavioural disorder itself is certainly not cause for detention and there are significant safeguards where compulsory treatment is necessary which include a right to independent advocacy and an efficient and independent Mental Health Tribunal which grants and reviews orders for compulsory treatment. Also, the independent body, the MWC monitors the use of Scottish mental health law, including compulsory treatment. The MWC also has the power to intervene in particular cases if there is evidence of improper care, treatment or practices.

Current legislation provides the right for patients to appeal against detention in conditions of excessive security and requires NHS Boards to ensure that patients with a mental illness are able to be treated in facilities which meet their needs and are not subject to higher levels of security than they require.

Mental Health Strategy

Our commitment through the Mental Health strategy 2017-2027 recognises as a theme the importance of human rights and as part of this we are currently reviewing various aspects of mental health and incapacity legislation use in Scotland. One such review is the independent review of Learning Disability and Autism in the Mental Health Act, which began in January 2018 and is investigating the wider issue of whether the current legislation needs to change for people with learning disability and autism. It is not an investigation into individual patient cases.

It is for the independent review to determine what issues or cases it will consider in order to inform its work. The review will consist of 3 public engagement phases, the 1st stage finished in November 2018 and focussed on understanding current experience of the legislation and how that affects people’s human rights. The responses are currently being analysed and preparation is underway for stage 2 which will run between March and May 2019. The focus for stage 2 will be developing ideas on how to improve legislation, if needed.

I expect the independent review to report to Scottish Ministers by the end of the year.

Moving Forward

This Government is making significant investment in the range of mental health supports available, which will see issues tackled earlier and where possible in the community, while ensuring speedier access to specialist care for those who need it. Over the life of this Parliament investment will exceed £5 billion and this underpins the improvement agenda set out in our mental health and suicide prevention strategies.

Although huge advances have taken place in relation to mental health, for example treatment has advanced and social attitudes have changed, the Scottish Government will continue to keep the changing context under review to ensure legislation is fit for purpose.

I appreciate this is a lengthy response but I wanted to take to the time to address all the points you raised in your correspondence. I hope this goes some way to reassuring you and that you will find this letter helpful.

Yours Sincerely,

Arron Ashton Policy Officer