Date lodged: 23 January 2018
To ask the Scottish Government, in light of the comment by the First Minister in its news release of 17 January 2018, Ambition on Human Rights, that "it is vital we are not complacent and continue to push ourselves to do more to ensure human rights are embedded in everything we do", whether it considers that its mental health legislation takes full account of the Convention on the Rights of Persons with Disabilities and, if not, what action it is taking to amend this.
Answered by: Maureen Watt 2 February 2018
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.
Our legislation is compliant with the European Convention on Human Rights and Fundamental Freedoms (“the Convention”) and has never been found, in part or in whole, by the European Court of Human Rights to be incompatible with the Convention. In addition, the Human Rights Act 1998 ensures that every public authority in Scotland is obliged to act compatibly with the Convention and enables human rights cases to be taken in domestic courts.
We have recently implemented the Mental Health (Scotland) Act 2015 and are undertaking a range of work through the Mental Health Strategy to move forward Scottish mental health and incapacity legislation.
During the passage of the 2015 Act, the United Nations Convention on the Rights of Persons with Disabilities was influential. For example, measures were taken to strengthen the provisions in the existing 2003 Act. These promote supported decision making so that users are able to exercise their capacity. This includes:
• more autonomy for patients in the right to have a named person (often a relative or friend);
• promoting the right to make an advance statement setting out what treatments they would or would not like to be given; and
• promoting the right to support from an independent advocate.
The Scottish Government is working with partners including the Mental Welfare Commission, the Office of the Public Guardian and professional and human rights bodies to develop changes to the Adults with Incapacity Act (2000) in relation to deprivation of liberty, and to assess compliance with UN Convention on the Rights of Persons with Disabilities. A full public consultation on reform of the Adults with Incapacity legislation has just been launched.