INTRODUCTION
1. Our mental health legislation in Scotland creates a framework of rights for those who have a mental illness or learning disability to ensure that they receive appropriate care and treatment when they need it most. As the legislation has evolved over recent years additional protections and processes have been built into the system to ensure that treatment or inpatient care are only applicable on a compulsory basis in limited circumstances and subject to additional safeguards such as the processes of the Tribunal and the requirement of regular reviews. These processes are subject to time constraints and require the involvement of a range of professional and non-professional staff. Were there to be significant disruption to services as a consequence of pandemic flu or other civil emergency it would be difficult or impossible to comply with the requirements of the law, but people would still require care and treatment.
2. We need to consider in advance of such events what changes that we might want to make to the legislation in such circumstances so that we can ensure that any changes which are made are proportionate and necessary and continue to respect the spirit of the Act, while ensuring that those require care and treatment continue to receive it.
Proposed Approach
3. Our intention is to enable services to cope with significant staff shortages whilst maintaining, so far as possible, safeguards for patients. The proposals in this document are informed by four key considerations:
- Ensuring that the mental health legislation can continue to operate effectively to fulfil its primary purpose in times of severe staff shortages
- Keeping changes likely to be required to a minimum
- Adhering to the principles of the legislation; and
- Maintaining compatibility with the European Convention on Human Rights
4. We are proposing a tiered approach with different levels of action depending on the nature of the challenge faced. Scottish Ministers would make the decision on whether the circumstances warranted action, but they would only act following advice from an independent 'Oversight Group' established by the Mental Welfare Commission.
5. There would be no change to the tests which are to be applied in determining whether an order is appropriate or necessary, nor to the requirement to keep the need for orders under general review.
Level One Changes
6. This would involve amendments to the legislation in circumstances in which it is envisaged that the Tribunal, NHS Boards, local authorities and Courts are still generally able to carry out their statutory functions, but require these amendments in order to operate effectively. For example, these amendments would allow the Tribunal to determine cases without an oral hearing.
Level Two
7. This would involve amendments to the legislation in circumstances where, due to a significant increase in staff absence the Tribunal, NHS Boards, local authorities and Courts cannot carry out their statutory duties. Amendments proposed under this heading would allow professionals to make decisions directly without the Tribunal.