Date lodged: 15 November 2016
To ask the Scottish Government what its position is on the reported concerns that the Mental Health (Care and Treatment) (Scotland) Act 2003 does not require psychiatrists to use the capacity test approved by the European Court of Human Rights and that subsequently (a) patients are being deprived of their legal capacity and (b) this legislation does not comply with the Convention on the Rights of Persons with Disabilities.
Answered by: Maureen Watt 23 November 2016
As noted in the response to S5W-03040 on 30 September 2016, a patient’s capacity to consent to treatment is assessed by experienced, specialist clinicians subject to the safeguards in Part 16 of the Mental Health (Care and Treatment) (Scotland) Act 2003, and having regard to guidance issued by the Mental Welfare Commission.
Our view is that the 2003 Act is fully compliant with the European Convention on Human Rights (ECHR). The 2003 Act has never been found, in part or in whole, by the European Court of Human Rights to be not compliant with ECHR.
There are several provisions in the 2003 Act which promote support for decision making and to help service users exercise their legal capacity. Anyone discharging a function under the 2003 Act must have regard to the present and past wishes and feelings of the patient, have regard to the importance of the patient participating as fully as possible in the discharge of the function and to the importance of providing the information and support necessary to the patient to participate.
In addition, all service users have the right to support from an independent advocate, to make an advance statement setting out what treatment they would and would not like to receive, to be represented by a solicitor at Tribunal hearings and the right to a named person (often a carer or relative) who can represent their interests. Provisions that promote support for decision making were strengthened by the Mental Health (Scotland) Act 2015, including by includes service users more control over who their named person is and strengthening the position of advance statements and advocacy which help service users express their will and preferences.
I also refer the member to the answer to question S4W-04703 on 23 November 2016 which sets out further information on the action the Scottish Government is taking to enhance rights-based practice under the Mental Health (Care and Treatment) (Scotland) Act 2003.
All answers to written Parliamentary Questions are available on the Parliament's website, the search facility for which can be found at http://www.parliament.scot/parliamentarybusiness/28877.aspx