Mental Health Law Review

Adults Children and Families Workforce and Resources

Scottish Mental Health Law Review:  Consultation


Submission date:  27TH MAY 2022


Note:  Throughout this document, we shall use the current terms as used within legislation, “mental disorder” and “learning disability”

Social Work Scotland is the professional body for social work leaders, working closely with our partners to shape policy and practice, and improve the quality and experience of social services. We welcome this opportunity to comment on the changes to the Adults with Incapacity (Scotland) Act 2000, the Mental Health (Care and Treatment) (Scotland) Act 2003, and the Adult Support and Protection (Scotland) Act 2007 (where it applies to adults with a “mental disorder”) as proposed by the Scottish Mental Health Law Review. The reflections within this consultation response draw from the experience of our membership of Social Workers, the lead professionals taking forward duties under each of these Acts.

Social Workers are uniquely placed as a profession to offer insight and contribution to this consultation and to support the effective interaction and joint working of partner professionals in process of delivering services and interventions to adults and children under the auspices of the above noted legislation. Working within this multi-agency context, social work can offer perspective to ensure that a Human Rights enabling and strengths-based approach is central to the delivery of services.

We have previously submitted evidence to the Mental Health Law Review Team through our 2020 submission, where we noted the impact of welfare reform on individuals already disproportionately affected by socio-economic disadvantage, the impact of multiple and complex needs, including co-existing learning disability and mental disorder.  The current legislation does not work well for people with fluctuating capacity who fall between the various pieces of legislation. This is noted in particular where the person may be neglecting themselves, or displaying antisocial community behaviours, and could be using alcohol or substances. Obtaining medical evidence for lack of capacity through the existing legislative framework is a problem if the person has capacity on their ‘good days’. We also find that very few guardianship orders are tailored appropriately, tending toward a “shopping list” of actions.   These human rights-based concerns remain.

We also noted that Services require more training around approaches to working with the needs of people with different ethnic backgrounds, e.g. South Asian, Eastern European, and others. The system lacks cultural awareness, with lack of timely translation of information materials/documents. Frequently, family members are called on to translate at meetings, and may project their own meaning on what is being communicated. Where translation services are commissioned, in some cases, their quality is questionable. We consider there should be a national minimum standard set for such services.  These concerns remain.

We also previously noted comments about the national secure adolescent inpatient service in Ayrshire, Foxgrove, due to open in 2022. This resource will support a national network of clinicians providing more streamlined care pathways and management of some CAMHS referrals where the young person requires in-patient treatment in a secure setting. However, this development will not address the needs of people with neurodevelopment disorders, learning disability and autism. We would urge the Review Team to ensure that there is a link between its review recommendations and the ongoing development of services and approaches directed toward children and adolescents.

Our consultation response has been developed with our members. Social Work Scotland has representation from Social Work Leaders, and partners across Adult, Children & Families, and Justice Services as well as Higher Education; it is with this broad lens that we have approached the consultation response.  Key themes that have been identified by our members are:

  • Resources, including workforce, appropriate community services, and financial investment in community-based interventions.
  • The significant implementation gap that is apparent throughout the proposals.
  • Legislative and policy developments (Neurodiversity Bill, NCS).
  • Existing legislation (Equality Act 2010, SPSO Act 2002).
  • A need for a whole system approach to policy development.
  • Power imbalance both politically and resource-wise between Health, Social Work and Social Care.
  • Learning & workforce development.
  • A lack of reference to existing policy (Mental Health Strategy, Children’s Task force on Mental Health).

Social Work Scotland as an organisation is supportive of the Review’s aim to embed and extend Human Rights in Mental Health law, policy and practice, and welcomes the inclusion of the needs of children and families, and of Carers in the Review.  We sincerely appreciate the strong emphasis on Human Rights commitment throughout this document and the wider work of the Review team.

Our members, who are the Leadership in Social Work, have consistently expressed some concern however at the significant implementation gap that is apparent throughout the proposals and have highlighted issues specifically around Resources, and Workforce that will influence the likelihood of successful implementation of some of the Review’s proposals. Over the past decade, Social Work Scotland has taken every opportunity available to underline how pressing the need is for investment, paired with reform, across all aspects of social care and social work. The gap between Scotland’s ambitious rhetoric in these areas (often given weight in law) and our collective ability to deliver on it has steadily grown, fuelling disappointment, frustration and cynicism among those seeking publicly funded support and those employed to deliver it. Ten years on from the Christie Commission, the preventative model of public services that it described also remains, for most, some way off. Closing this ‘implementation gap’ is a shared priority for Ministers and Social Work Scotland’s members.  Whilst, as an organisation, we remain hopeful that the development and delivery of the National Care Service gives an opportunity for these concerns to be surfaced and addressed, it would be remiss of us as an organisation not to highlight this.

There has also been a consistent challenge from Members as to why an improvement approach has not been used, where the Review Team has identified gaps – for example in the context of Supported Decision Making.  The consultation document helpfully sets out the suite of options available currently that facilitate supported decision making, such as Advance Statements and Power of Attorney, and highlights the fact that these are not being used to their full effect.  It would be helpful to understand the barriers within the current system and to see some evidence of attempts to overcome these and make improvements before moving to new legislation.   This is one example of several where members of Social Work Scotland have noted their concern at moving whole-scale to new legislation without a solid evidence base.

Given the length of the consultation document, we have set our response aligned to the chapters noted within the consultation document.

Chapter 2:  What is the purpose of the law?

This chapter sets out our thinking on the purpose of the law and the principles that should be applied to the law. It covers how we propose the law should be developed to enable people to live fulfilling lives, and to ensure that the human rights of people with mental disabilities are respected, protected and fulfilled.

2.1       What are your views on the purpose and principles that we are proposing?

In Scotland, the foundations of public protection policies, guidance and legislation are rooted in the United Nations Convention on the Rights of the Child and the European Convention on Human Rights. The principles and the entitlements of these Conventions must underpin our core business.

Social Work Scotland supports the breadth of what the Review is hoping to achieve, and welcomes the lens of the social model of disability.  We agree with the widening of the scope of the application of the law beyond people who receive care and treatment in a hospital setting and are heartened to see equal consideration of medical and social models of mental health, particularly in relation to non-discrimination and equality, and inclusion.

Social Work Scotland agrees with the proposed purpose of the Law, and that people whose decision-making ability may be impaired require specific provision in law to protect and promote their Human Rights.  We note that within the body of the consultation document (P29), there is a perspective given that the Equality Act 2010, and Human Rights Act 1998[1], cannot achieve this; we would welcome some clarification as to how the Review Team came to this conclusion.

With regard to the proposed principles, whilst we are in support of the current aim of protecting people from undue interference in their lives, Social Work Scotland agrees that it is time for legislation to be modernised.  Taking a rights-based, and enabling perspective that has respect for rights, will and preferences, by making use of existing Human Rights Legislation (UNCRPD), is a sensible and evidence-based way to facilitate this.

However, we believe that to achieve the proposals as set out within the consultation document there will be a necessity to adequately resource the infrastructure and workforce required to deliver on them. We would recommend robust financial modelling is undertaken to understand the social work workforce requirement to realise the aims set out within the proposals and recommendations made in this consultation.   It is also imperative that any developments are cognisant of and aligned with the changing policy landscape.  The implementation of the National Care Service (NCS) will create a seismic shift in the current system, and it is, as yet, unknown, whether all of mental health services will be part of the NCS, or not, and whether children and justice services will be included alongside adults.   The impact of introducing system change at the same point as new legislation cannot be underestimated.

2.2       What do you think about the approach that we are proposing for Scottish Government to meet core minimum obligations for economic, social and cultural rights in this area?

We applaud the connection into the work of the Scottish Government’s Taskforce on Human Rights.  We also appreciate that a lens wider than health and social care is being used/suggested, particularly recognising the impact of housing and community planning on individual’s lives. We would agree that a whole system approach that supports social justice and an individual’s ability to give effect to their human rights will promotes a more accessible engagement in public life for individuals and communities.

2.3       What are your views on our suggestions for reforming sections 25 to 27 of the 2003 Act?

Social Work Scotland agrees that S25-27 should be expanded to reflect prevention of mental health problems, and to address the social determinants of good and poor mental health.  We also agree, in principle, that the duties should be expanded to NHS as well as Local Authorities, although query how this aligns and will be realised in practice adjacent to plans for developing a National Care Service, and the proposal for a separate Forensic Health Board[2].

In our 2020 evidence submission to the Review, Social Work Scotland noted “It is not always clear to which part of the integrated system is delegated the local authority duties under sections 25 – 27 of the Act. We are concerned that integration authorities are not sufficiently sighted on this aspect of the Act, instead focusing largely on the provision of clinical services.

Considerable variation exists across Scotland in how mental health and social care services are delivered to people and their carers. We are interested in understanding the degree to which this variation is warranted by local circumstances and need, and to determine how unacceptable variation can be diminished in a way that respects local democracy)”.  Social Work Scotland is hopeful that the creation of the National Care service is an opportunity to address this lack of clarity and to rebalance the landscape of acute, primary and community-based services, however note the previous concern regarding national approaches and local democracy.  We remain interested in understanding the degree to which this variation is warranted by local circumstances and need, and would welcome further information on any mapping/improvement activity that has taken place since the time of our original submission. As the membership body for the leadership in social work, we hold particular interest in the professional governance role that the Chief Social Work Officer (CSWO) holds in relation to providing advice and guidance to local authorities and HSCPs around the delivery of social work services.  We would wish to understand how this will be retained within proposals to widen the scope of duties to other public bodies where competing agendas and priorities may exist.

We would suggest that this widening of duties 25-26[3] of the Mental Health (Care & Treatment Act 2003) should also apply to Scottish Prison Service to take account of the needs of prisoners, and those leaving prison.  Whilst both NHS and Social Work can have in-reach to the Prison population, it is Prison Officers that have daily contact with Prisoners – these professionals are therefore best placed to highlight a change in an individual’s presentation and to seek supports to promote mental health, wellbeing and social development.  Extending the duty to include the Scottish Prison Service would create the foundation (including resourcing and workforce development requirements) for this to be embedded in practice.

Our members shared with us the complexity and capacity issues that some people in prison experience due to learning disability and/or neurodiversity, and age-related deterioration in mental health.  Evidence from a now dated thematic inspection of Scottish prisons showed that 4.5% of people in prison in Scotland suffered from ‘severe and enduring’ mental health problems and the number of people with less acute mental health problems is likely to be much higher (HM Chief Inspector of Prisons for Scotland, 2008).  Moreover, 14% of people in prison in Scotland have psychiatric records and 7.3% have records of self-harm incidents (Graham, D.L., Prison Health in Scotland-A Health Care Needs Assessment, 2007).  Tweed et al. (Tweed, E.J., Gounari, X., Graham, L., 2019. Mental wellbeing among people in prison in Scotland: an analysis of repeat cross-sectional surveys. Journal of Public Health fdz106) also show that the mental wellbeing of prison community, which the authors defined as ‘feeling good’ and ‘doing well’, is lower than the non-prison population, even when they are matched to non-prison population in the most deprived areas. Additionally, the same research shows that people on remand have lower scores of mental wellbeing compared to sentenced people.  Stigma associated with seeking help was also noted.   The particular needs of the Prison population require to be considered in any Review of mental health legislation.

The consideration of housing, adequate income and inclusion, are particularly welcome, and strengthen the already stated aim of considering the social determinants of good and poor mental health – evidencing an equal consideration of medical and social models of mental health, and disability.

2.4       Do you have suggestions on how law could be reformed to address stigma, discrimination, and issues with attitudes towards mental disability?

Beyond the “positive duty on Scottish Government to address stigma and discrimination against people with mental disorder” as proposed within the consultation document (P38), it is difficult to envisage a legislative reform on its own that would have significant impact on the experience of stigma and negative societal attitudes encountered by people with “mental disorder”.  It is our position that impact comes from sustained and cumulative change and action, involving legislation (such as the Equality Act 2010), education, and wider public engagement, and that a social justice and public health lens is the most effective way to support an understanding of the multi-faceted nature and spectrum of mental health.  This review and modernization of the current mental health legislation, and the emphasis on Human Rights will undoubtedly support this approach, but cannot be viewed as a solution in itself.  Addressing Stigma is a noted priority in in the current mental health strategy[4], as well as in the Fairer Scotland for Disabled people Delivery Plan[5] and the Scottish Strategy for Autism[6].

It is essential to note that stigma is a direct result of discrimination; therefore, a robust application of the rights outlined in the Equality Act 2010 [7] would be our recommendation as to the legislative approach to addressing discrimination related to disability and mental health. As noted above, the strategic and policy approaches to giving effect to this legislative right, mentioned above, would be the best mechanism to support existing legislation.   In particular, we would suggest that the Review should consider the intersection of proposed mental health legislation with the Protected Characteristics as set out in the Equality Act 2010 and against the backdrop of ongoing strategy development in relation to mental health to reduce any duplication of efforts.

2.5       Do you have suggestions on how the law could lead to prevention, and how the law could address the social determinants of mental health?

The prevention of mental health problems, which includes severe and enduring mental disorder, and addressing the social determinants of them (homelessness, poor or inadequate housing, financial hardship) requires a whole system approach to policy design and service delivery. Of significance in this whole system approach is an appreciation that legislation creates the legal framework that places the duty and expectation of public bodies working jointly and acknowledging the interconnectedness of societal issues, strategy and policy support the delivery on duty, through robust engagement with key stakeholders and those with lived experience.  This must include addressing together issues, which contribute to mental health problems such as poverty, discrimination, societal stress, and the economic context.

We would suggest that the Mental Health (Care and Treatment) (Scotland) Act 2003, under section 26, which places a duty upon local authorities to promote well-being and social development, is sufficient legal framework to support preventative approaches. The refresh of the Mental Health Strategy and work being undertaken through the Children’s Mental Health Taskforce will offer the opportunity to ensure delivery on this duty through engagement and targeted activities.

To deliver on preventative approaches across all areas of social work, there is a requirement to ensure that there is workforce capacity available to meet the expectations set out in legislation and policy. Working from a relationship-based approach, Social Workers can engage well with communities and individuals to take forward preventative approaches and affect meaningful change. We would support workforce planning that reflects the investment in the workforce that is necessary to undertake legislative duties and strategic and policy expectations.

2.6       What are your views on our proposals on adequate income, housing and independent living, inclusion in society, and accessible information?

Social Work Scotland fully agrees with the proposals as set out within the consultation document (P38-42).

2.7       Are there other economic, social or cultural rights which you feel are particularly relevant to mental health?

We are heartened to note the commitment of the Scottish Human Rights Taskforce to participatory design, specifically that this process will involve all groups in Scottish society, including people with mental disorder.  Taking this approach maximises the opportunity for people with lived experience of mental disorder to influence the implementation of the planned national Human Rights Framework[8].  Whilst undoubtedly, all social, economic and political rights are crucial to the wellbeing of people with mental disorder, we would propose that the following, as set out in the National Taskforce for Human Rights: leadership report[9][10] are particularly relevant for children and adults who experience challenges related to their mental health and/or who may be at risk of harm:

  • the right to health, including the right to access to health facilities, goods and services”;
  • to “healthy occupational and environmental conditions”;


  • “the right to education”.

2.8       Do you have views on the system-wide changes which we think are needed?

We would highlight the fact that any changes to mental health legislation will necessitate a change to other pieces of legislation – an example being the Appropriate Adults Scheme. At present, the definition of mental disorder as set out in Section 42 of Criminal Justice (Scotland) Act 2016 (support for vulnerable persons)[11] and, therefore, used in the context of Appropriate Adults[12], is lifted directly from the Mental Health (Care and Treatment) Scotland Act 2003.

We would also like to take this opportunity to highlight the fact that, at present, individuals assessed as lacking Capacity under the Adults with Incapacity Act 2000[13], are not entitled to be supported by an Appropriate Adult, with the advice from the Law Society of Scotland being that Police Scotland should, instead, “obtain assistance form a relevant specialist”[14]. We would see it as a missed opportunity if the Review were not to take into account the reach of the Appropriate Adult Service to include those requiring such a service where Police are involved.

2.9       What do you think law reform can do to achieve culture change in mental disability service?

Please refer to the answer provided in section 2.4 around reducing stigma and discrimination. Legislative reform will not in itself result in cultural change; it must be supported by resources for implementation including workforce development and education, and societal education.

Chapter 3. Supported decision making

This chapter looks at the ways we think people should be supported to make their own decisions about their lives, promoting respect for people’s will and preferences and enabling them to feel fully engaged in decisions about their lives.

3.1        What are your thoughts on our recommendations for a wide-ranging supported decision-making scheme?

Social Work Scotland fully endorses supported decision-making as a core area for development. And agrees that Anticipatory Care Planning is a good approach that is used to support a variety of people to ensure that their wishes are taken forward at points of transition throughout their life; this is core to a holistic social work assessment approach.  We would therefore suggest that Supported Decision Making should be universal which would protect the Rights of all individuals who receive health and social care services.  This approach would be similar to the promotion of Power of Attorney – encouraging individuals to plan for the future, and would address the risk of stigma that is inherent when seeking to create different processes for people depending on their presenting circumstances or diagnosis.  With this in mind, we support the recommendation of the Rome review to enact a “Statement of Rights, Will and Preferences” and the position of the MHLR that this would be extended beyond people with a learning disability or autism.  We note the need for careful consideration of how this would apply to children and young people given the specific additional legal context for children.

We are pleased to note the acknowledgement of Self-Directed Support alongside Advance Statements as mechanisms for individuals to retain choice and control over the support they receive.  We support the emphasis on Independent Advocacy, anticipatory care planning and Power of Attorney as safeguards of these essential components of Rights-based packages of support and intervention.

We note the reference to the flaws in the current system which “focuses in the main on protecting individuals with mental disorder with sometimes limited acknowledgment of the need to recognise a person’s rights, will and preferences” (p44).  We would, therefore, encourage consideration of any mental health law reform undertaken through a human rights lens. The principles and standards of self-directed support and service user choice within the Social Care (Self-Directed Support) (Scotland) Act 2013, and of Getting it Right for Every Child (GIRFEC)[15] may assist a part of this approach.

In conclusion, Social Work Scotland members support the concept of Supported Decision Making (SDM), and believe that many, if not all, of the options already in place facilitate effective SDM.  It would therefore seem timely, and sensible to review those options and to undertake some analysis as to any barriers to their use before moving on to develop something new.

3.2       What do you consider would be the barriers to this?

Overwhelmingly, concerns were raised regarding the significant implementation gap between legislative expectation and ability of the workforce to realistically deliver on these duties evidenced in these proposals and an assertion that there is not adequate resourcing in the current system; therefore, it is difficult to anticipate how any new system and additional expectations could be implemented.

3.3       How do you think the SDM scheme should be taken forward?

It is clear that a partnership approach to the delivery of SDM is necessary.  Scottish Government has a key role in promoting the existing SDM options.  Alongside this, the Social Work Leadership is clear that Social Workers are well placed to begin the process and support an individual to develop their own framework for supported decision-making.  We would highlight that Social Workers working in partnership with colleagues from the legal profession as well as colleagues in health and community-based support hold a key role to ensure that a Human Rights and Strengths based approach is in use at all times and that this role is essential to actions taken around SDM.  We would also emphasise the important role of independent advocacy in ensuring that the process is transparent and the person in the centre is enabled to have their voice heard.

We would take the opportunity to note the statement within the consultation document (P56) that “Assistance with communication as appropriate to the needs of the individual should be a guaranteed right”.  It is our position that duties placed on Public Bodies by the BSL Act 2015[16], and the Equality Act 2010[17] give this effect, therefore there is no need for additional legislation to be created.

3.4       How do we mitigate against undue influence or pressure in SDM generally?

The reflective skills and self-management expertise of Social Workers are hugely important in supporting and understanding individuals within their own context. Expectations exist within other legislation (the Adult Support and Protection (Scotland) Act 2007 and Social Care (Self-Directed Support) (Scotland) Act 2013 for example) that require Social Workers to assess for undue pressure on an individual.  In this regard, Social Workers are well placed to undertake such assessments. Social Work Scotland members shared that it is essential as part of these considerations, that the value base of the practitioner and of the individual and their family be reflected upon to understand that what is considered undue influence may in fact be a cultural difference.  The example of Family Group Decision Making was shared as a successful model where a family and friends network come together in a professionally facilitated meeting where they are helped to make a plan for an individual (child or adult).  Social Workers are keen to utilise their skills and experience in this area and to achieve this expectation there requires to be an investment in the social work workforce which is not currently evidenced. One worker commented:

“Use of self; we’ve moved away from that, because you don’t have time and space to do it – we’re so process driven”

The issue of undue influence coming from within systems and organisations was also highlighted.  Where multiple disciplines coexist and work jointly, there emerges varying priorities and approaches to risk enablement. Partnership approaches are a form of mitigation against silo working, offering opportunity for discussion around organisational priority and individual need.  The GIFREC framework operating in children’s services is an example.

3.5       Should there be legal duties on public bodies to secure SDM for people who need it? If so, given that advocacy is a form of SDM, what should be the relationship between that and the existing duties in respect of advocacy?

We agree there should be a legal duty on bodies to secure Supported Decision Making and that advocacy services should be developed to enhance the availability of SDM options. We would recommend that any increased expectation on advocacy services be considered through a robust financial modelling to ensure that the services are able to deliver on recommendations and expectations made within legislation and that appropriate qualification, training, scrutiny and oversight is built in to any mandatory advocacy provision.

3.6       What are your thoughts on the creation of a Centre of Excellence for Supported decision making?

There is broad agreement across the membership of Social Work Scotland that the establishment of a Centre of Excellence would be helpful as a means of creating a centralised and more consistent service and maintenance of standards across Local Authority areas and Health Boards.  We are aware that the recommendation for a Centre of Excellence for social work is being considered, as part of the National Care Service scope and that the Office of the Chief Social Work Advisor (OCSWA) are central to these considerations. We would suggest that recommendations being considered through this Review are linked with the wider national work of the OCSWA team to avoid duplication of efforts.

Discussion regarding the proposal of a Centre of Excellence has led some of our members to highlight deficits within the current system where such a Centre could support. Recommendations being considered by the OCSWA team seek to reduce inconsistencies in practice, promote innovation in support of improvement of quality and standards of services and available resources, to support workforce development and research. There are several organisations whose remit includes social work practice improvement and research namely, CELCIS the centre for excellence in children’s services and IRISS who are funded by Scottish Government, Health Improvement Scotland (HIS) – ihub and Children and Young People Improvement Collaborative (CYPIC), which should be considered in relation to this proposed recommendation.

Joint working arrangements pose opportunities for joint training and learning, where shared value bases and experiences can be taken forward in line with legislative expectation. We would support shared opportunities to learn amongst all professions working with individuals requiring support with their mental health.  It is anticipated that this approach would support a shift in value base and would support the necessary culture change

Chapter 4. The role and rights of carers

This chapter looks at some of the issues carers face when supporting someone with mental illness or disability, and how carers can be better supported, and their rights respected, protected and fulfilled.

4.1       What are your views on mandatory Carer Awareness training for all mental health staff?

We completely support this proposal, but would note that there is a need to define and potentially expand, the definition of “mental health staff” to ensure that the scope and reach of a mandatory training proposal is meaningful. The requirement should apply at least to all those working in social work and social care and health and ideally, across disciplines and services, in a similar manner to child and adult protection awareness training – different levels of knowledge and appropriate to different roles. We would further note that defining a mental health practitioner is not limited to care in acute settings, but also reflects the significant majority of work undertaken in community settings.

We will take the opportunity, however, to highlight the workforce and resource implications of broad approaches to workforce development as additional training and development requires additional staffing and investment.  We would also encourage a range of approaches to workforce development in order to meet the varying learning style of the workforce.  Members additionally took the opportunity to highlight that distinct training would be required of young carers and adult carers.  Social Work Scotland agrees that the legislative basis of carers’ rights should be emphasised in any training and that a framework of best practice would be helpful for practitioners, and for carers.

4.2       What are your views on information sharing with unpaid carers of all ages?

There is a link here with Anticipatory Care Planning/Statement of Rights, Will and Preferences as described in Chapter 3 of the MHLR consultation.  In addition to the proposals set within this Review, the Data Protection Act 2018 provides the legislative basis under which information can be shared and recommendations should be made in line with legal duties within this document. Further to this, the Mental Welfare Commission, Good Practice guide, Carers and Confidentiality[18] sets out useful guidance around considerations that should be made when sharing information with a carer. We would suggest that these two documents offer a legislative framework and practice guidance specific to carers that covers the relevant points with regard to information sharing.

Information sharing is sensitive and can be difficult to navigate in balancing the right to a personal life and respect for confidentiality, with protection, and respect for family and friends’ relationships and impact on an individual. Having, and documenting, open and honest conversations that set out clear expectations and wishes are key to ensuring that decisions around when and what information is shared, and with whom are empowering, informed respectful and inclusive.

Consultation with members has raised concerns about unpaid carers of all ages having a right of access to detailed information about the cared for person. These concerns range from issues about privacy and confidentiality, to the health and wellbeing of the carer themselves and the impact of aspects of the knowledge, which may be shared. This is supported by real life situations where individuals were, for example, unaware of issues in a cared for person’s history, which once shared, caused distress and impacted on the relationship. Additional concerns were raised about young carers receiving inappropriate information about a parent and the consequences of this for the young person. The situations reflected by members are covered within the Carers and Confidentiality guidance prepared by the MWC and illustrate the importance of that publication to the workforce taking forward work involving carers for people with mental health diagnoses.

The above examples illustrate the importance for the carer and the cared for person, of appropriate information sharing to ensure that carers can undertake the caring role. This is vital, but does not necessarily include the sharing of all information in an assessment or care plan, or anything, which is particularly sensitive. Consideration of the rights of the individual cared for person, and of their views being sought in advance of a period of particular illness, should be considered

Proportionate information sharing in line with the Data Protection Act 2018 and the Carers and Confidentiality guidance will ensure respectful information sharing that enhances carers understanding of their role and informs their approach to it appropriately.  For children, any changes as a result of the Review must take account of the refreshed GIRFEC Guidance Information Sharing Section.

4.3       If an unpaid carer, what are your views on sharing information with mental health practitioners?

Please see response to section 4.2.

4.4       What is needed to ensure mental health services identify and engage with young carers?

As noted within the consultation, training and awareness raising is essential. This must be thought of in the broadest sense, and encompass education and support staff as well as Social Workers and health staff. The situation of young carers is complex, and many remain hidden and do not wish to be identified as carers, making awareness raising and support even more critical.

Additionally, the work already underway in the Children’s Mental Health Taskforce should be considered. This extensive work is considering the specific needs of young people, which would include young carers, crisis care and the criticality of the role played by informal supports and early intervention. Funding has already been provided for roles such as counsellors in every school and community groups.

We would note that there is existing legislation, which requires engagement with young carers. While practice remains inconsistent, we do not believe that provision of additional legislation is required. Engagement with carers is an important and established principle; resource issues have affected ability to embed this. Resource for local authorities, where the assessment duty lies, is critical.  We would refer to the legal framework in place, the Data Protection Act 2018, and the guidance referred to in the previous answer, Carers and Confidentiality, as being sound bases from which to develop targeted approaches to supporting young carers engagement in their role.

4.5       What are your views on including unpaid carers in discharge planning and processes, as stated in the Carers (Scotland) Act 2016?

As per 4.2, PLUS, Section 28 of the Carers (Scotland) Act 2016 states that a Health Board must make efforts to involve a Carer in any decision/discussion regarding a Cared for person being discharged from hospital[19].  A point of note though, is that the duty to identify a Carer sits with the Local Authority[20], therefore, robust arrangements must be in place that supports joint arrangements to identify, assess, support and review Carers and Cared for people.  There is a potential disconnect here, one that must be considered in the creation of the National Care Service and how it interfaces with other groups, such as Education Services and Housing Services.

As noted previously, given legislation already exists, we would caution against further legislation in this area, and suggest instead a focus on guidance and practice to implement existing legislative duties, based on clarifying why proper discharge planning is not happening and aimed a dealing with those blocks – including what resource is required to make it happen. Health and Social Care Scotland are one of several organisations who have produced guidance on Involving Carers in Discharge Planning[21] and while this is not specific to supporting those with mental health diagnoses, it is a basis from which targeted guidance could be developed to support discharge for those caring for people with mental health diagnoses.

Reflections from our members suggest that effective discharge planning that includes a human-rights based approach and involves the views and wishes of the patient and their carer, does not always take place currently. Hospital discharge tends to focus on freeing beds and is driven by the needs of acute wards, with approaches to achieving this aim heavily weighted towards health priority, where discharge can be a ‘ward focused’ process with little inclusion of patients or carers, or other professionals.  Establishment of an ‘planned discharge date’ at point of admission, and a process for this beginning at that point, with the involvement of appropriate individuals including community support services carer, patient and family may assist. However, the expectation for this is in place currently, and an exploration of the reasons why this is not being taken forward consistently should be taken forward.

4.6       What needs to happen to ensure unpaid carers of all ages are respected and valued?

The legislative basis of Carers Rights should be emphasised in any training and that a Framework of Best Practice would be helpful for practitioners, and for Carers.  Carers should be respected as essential components to any care plan, and partnership approaches that treat Cared for People, Carers, and service providers as equals should be embedded into practice.  Approaches to widening the understanding of the important role of unpaid carers in delivering community based approaches should be led by carer support organisations and involve public bodies as key partners toward increasing awareness of the duties and expectations set out within the Carers (Scotland) Act 2016.

For young carers, we ask the Review to note that there is an existing framework for children in need with young carers specifically noted as being included in the definition, Getting it Right for every Child. This is based on the UNCRC and is currently being refreshed and updated. GIRFEC provides a framework for assessment and care planning for all children.

Chapter 5. Human rights enablement – a new approach to assessment

This chapter sets out a new approach to the way people are provided with help and support, the aim of which is to ensure people receive appropriate care and support at the time that they need it, by assessing a person’s whole situation rather than a focus on acute care and symptomatic relief.

5.1       What are your thoughts on the proposed HRE framework?

The approach presented is broad with the thresholds for accessing a Human Rights Enablement process vague. A universal approach to Human Rights Enablement, written into legislation as a duty, would bring complexity into practice where our members do not feel it is required. Progressing with the framework as suggested, and without thresholds for guiding who it should apply to, would be ineffective without a requirement for a shared understanding of human rights across professional groups. Members have shared experiences that suggests the wider understanding of human rights is not shared between some partners, with organisational agendas and priorities sometimes overshadowing considerations for individual human rights; hospital discharge was raised as a particular area of conflict between professionals at times. Further to this, a shared responsibility for assessment and review of the Human Rights Enablement process is also considered problematic, “when everyone is responsible, no one does it”, was a common sentiment raised by members. A clear and identifiable professional to carry forward the Human Rights Enablement process along with an approach to support professional discussion where disagreements arose, would be required in cases where an HRE were taken forward.

Members agree that clear thresholds should be in place to identify when Human Rights Enablement is required. There was an agreement that it should be completed when undertaking Autonomous Decision Making assessments and that they would be useful for work in transitions from hospital and also between children and adult services where there is complexity and need. Members did not feel that it should be a requirement across all areas of engagement, however there was discussion around those in prison which reflected a potential challenge if HRE were to apply to this population. There was discussion around the access to social workers by those in prison, and how this work would be carried forward given the limited access of prison-based social workers to those in prison. Currently, prison-based social work is primarily funded by Scottish Prison Service to work with long-term prisoners subject to statutory supervision under the current Memorandum of Understanding underpinning contractual arrangements; as a result, there is very limited involvement with the short-term prisoner population and very limited capacity to provide this. It is recommended that this be explored further to ensure that any legislation developed takes into account the reality of experience of this population and their ability to access their rights through these legislative proposals.

The requirement to record any refusal and to ask the individual on other occasions whether they have changed their mind regarding refusal was not seen as proportionate, felt to be intrusive, and could be deemed to be coercive.

Again, in relation to children, it should be noted that GIRFEC is already based on UNCRC, and that the GIRFEC and child protection frameworks include existing means for multi-agency assessment and decision making and include protocols for escalation where there is dispute.

Concern for the social work workforce’s ability to deliver on this duty in legislation without commensurate investment in staff was also raised. The legislative duties taken forward by social workers extend beyond those duties identified in the three Acts being considered in this review. If put in place as a universal requirement there would be workforce implications across social work in carrying this task forward. While the assumption is made that this would not be an additional assessment, but a part of wider work, there is also proposed requirement to evidence this has been completed. The proposal does not reflect a sound understanding of the systems in which social work operate, where assessment forms and recording vary across all 32 local authority areas, nor learning from implementation of GIRFEC, where despite years of work, aspects of the practicalities of multi-agency assessment and decision making remain problematic. Learning from the Self Directed Support project in Social Work Scotland has found a significant variety across local authority areas, and complexity within the structures delivering social work, to be barriers to implementing the SDS legislation and policy. We would anticipate a legislative requirement to evidence the assessment and review of a Human Rights Enablement would result in a similar challenge and reduce its anticipated benefit to the individual.

5.2       How do you see the framework as proposed working in practice?

As outlined in the previous answers, the impact on the current workforce in social work of completing HREs under all of the circumstances presented in this review would be a challenge. The risk of imposing a duty to complete and review an HRE on any profession is that it could become a tick box exercise and lose its effectiveness and meaning for the individual.

Shared responsibility for initiating the HRE assessment, recording and storing it, and reviewing it in a timely manner and through the recommended circumstances outlined in the proposal, with the creation of a specific complaints/appeal process, all create additional demand on a reduced (and reducing) workforce.  There is a risk that operational and organisation priority will distort the outcome of an HRE, with different views guided by impact and availability on resources. Members considered how professional disagreement would be resolved if multiple professionals were involved in an HRE, what structure would be in place to support differing views, and whose view would take precedence in disagreements? This was considered specifically in relation to hospital discharge and the differing views of health and social work professionals at times, where assessments for autonomous decision making can cause tension at points when hospitals are under pressure to discharge patients. In these circumstances, members have advised that system need can often come into conflict with human rights.

Accessibility of previously completed HREs would be a challenge as there is no universally shared IT system. If there were a shared responsibility for completion of HREs, then systems across health, social work, education, police, and other key and relevant professionals involved in a person’s life would need to coordinate. Experience to date is that the systems currently in place do not support that ease of transfer of information. While our members do agree in principle that the sharing of an HRE is important to support an individual who requires one, we do not see this as a realistic possibility given the multiple systems professionals work across.

5.3       What barriers do you see to its operation in practice?

The responses provided to previous questions outline the barriers we would consider to implementing an HRE in the framework proposed. Themes from our member responses focus on the following:

  • Proportionality. The expectation that they should be universal is not a proportionate response to some of the circumstances people will experience in their lives, and the requirement to record and evidence where people decline HREs and to revisit the subject at a future date feels intrusive and lacking in respect for someone’s ability to self-determine.
  • Meaningful. The enablement process would require to be meaningful, its language clear and supporting a shared understanding across partners. To ensure it remains a meaningful document, a clear threshold for its use should be set. Universal application of HRE will lead to increase workload for professionals and result in a risk that HRE will become prioritised differently across the 32 local areas tasked with taking this forward. The risk that an HRE could become diluted in its impact, with a potential for a tick box, tokenistic approach, would be high.
  • Storage and accessibility would be a significant barrier, as multiple systems for storing information currently exist across those key partners who would take forward an HRE. The lack of a shared IT system across all partners who would potentially require to complete an HRE, health (acute and GP), social work, local authority services, Police, Fire and Rescue, to name a few, all hold different information systems and the sharing of information between agencies of detail on an HRE, even under a legislative basis such as proposed. There is risk that multiple HREs would be completed and that services may be working from outdated detail and on that basis, it would be difficult to ascribe any significant meaning to a document on any one services files.
  • Responsibility. Where everyone is required to complete a Human Rights Enablement assessment there is a risk that it will not be completed. Members raised that in their experience, Advanced Statements are not regularly completed, and they attribute this to the shared responsibility for completion. There is additional risk of the completion of HRE will become service led and resource driven, thus reducing the intention of the framework proposal. Equally problematic, and related to the point above on proportionality, would be the identification of a coordinator with responsibility for completing an HRE, which may lead to a professional being involved in someone’s life for longer than required (given the expectation for review and refresh of the document and the circumstances outlined for when this would be required).

5.4       What are your thoughts on who should initiate an HRE?

Social workers are trained to consider the wider social structures and systems that are barriers to meaningful engagement for people. There is a risk that carrying forward individual HREs would lose the wider systemic issues that affect people, such as poverty, discrimination, and disadvantage. HREs taken forward by social workers should reflect the wider systems and their impact on a person, which widens the lens on understanding and taking action toward rectifying the disadvantage identified directing community based and preventative solutions appropriately.

5.5       What are your views on the triggers for an HRE? Is there anything not included which should form a trigger?

Social Work Scotland would strongly recommend that clear thresholds be identified to guide practitioners as to when an HRE should be initiated. We would support the initiation of HREs when Autonomous Decision Making is assessed and at points of transition in complex circumstances for children moving into adult services.

The list of circumstances that should trigger and HRE are extensive and support a broad application of HRE responsibilities, which Social Work Scotland would not see as helpful. We would support an approach to HRE that is proportionate and linked to the areas identified above. The risk of the proposal for what suggests a universal assessment for HRE is the chance that the HRE will become a tick box exercise and lose their significance and meaning in those areas where we would deem it most critical to support the expression of human rights.

5.6       What are your views on the right to request a review and the right of remedy and appeal as proposed?

Our members would oppose the addition of a separate process under which reviews and appeals were carried forward relating to HREs. The suggestion that tribunal and/or judicial review would have a role in upholding an HRE outcome seems disproportionate.

The proposed framework and consultation appear to suggest that an individual’s will and preference should be upheld in relation to their wishes around “care and treatment”. It is not made clear in the consultation whether the HRE is intended to extend into the manner in which services are delivered to support an individual and whether the economic wellbeing of the state and the interests of the other care users would be equally considered. Given the lack of clear threshold criteria for accessing an HRE, there is a likelihood that people who do not require treatment would be eligible for HRE with regard to care and services, and consideration should be given to the economic feasibility of delivering on expectation.

Clarification around the HRE and how it will be balanced with other legislation to support a local authority’s ability to deliver on the wider economic wellbeing of the state and the interests of other care users would be required. The absence of this clarity would raise an expectation through an HRE that local areas may not be able to meet and the implication of that on the organisation should be carefully considered.

5.7       Would the body for remedy and appeal differ if the request for a review was in respect of a group of persons rather than an individual?

Please see response above.

Please offer any relevant views. You do not need to limit yourself to addressing these questions

Social Work Scotland members believe that the existing legislation holds the tools that social workers and others require to carry forward a holistic assessment of circumstances, one in which human rights and the ability to give these effect and meaning are capable. The resources made available to social workers, through the workforce and the services people are able to access, are a barrier to effectively realising these aspirations and duties. Social Work Scotland support relationship-based engagement, rooted in social justice and human rights. We believe that there is requirement for investment in the social work workforce to ensure it has the capacity to deliver on any proposed duties made resultant to this review. The ability to carry forward recommendations made around HRE will require an informed and well-trained workforce, of which social workers should play an integral role.

Members have reflected that the current Mental Health Act has been shaped to support tribunal activity and not to allow the social worker to engage in the time needed to support a person to avoid crisis. Social workers seek opportunities to work in a preventative way with individuals, and to respect the human rights of those we support. Members feel that this is best done when the legislation in place clearly defines thresholds, and supports autonomous and supported decision-making.

Chapter 6. Autonomous decision-making test

This chapter looks at those situations where non-consensual intervention in a person’s life may be necessary, and proposes a new, decision specific framework for such interventions.

6.1       We seek your views on the current capacity and SIDMA tests. You may wish to use the numbered options in that section above to indicate your preferred position but feel free to offer other suggestions and to expand on your preference.

Social Work Scotland could not provide a view on the “current capacity test” as there is no single test for assessing someone’s capacity. Members have reflected that assessing capacity is a multifaceted and multidisciplinary task. When done properly it would include the knowledge and experience gained through MHO training; analysis of key factors that may contribute to risk; and the informed, yet subjective, view of the MHO and others, as to whether past actions and behavioural patterns indicate an inability to make and understand the consequences of decisions made. This approach is undertaken through a human-rights based lens and is reliant upon well-trained and experienced social workers applying their professional judgement. Multiple professionals can have views of whether or not an individual retains capacity and could suggest the tools in which they consider to determine this. In working with people who have a dementia diagnosis it is common to use the Mini Mental State exam. Members have advised they have had different experiences as to the completeness of its use in supporting the wider assessment of decision-making capacity of a person. The consistent reflection from our members is that assessment of capacity benefits from the professionally informed judgement of those with extensive experience able to balance the many factors influencing someone’s capacity.

The Significantly Impaired Decision Making Ability assessment also holds an element within it that relies on the professional judgement and skill of the Mental Health Officer and the Responsible Medical Officer. Our members feel that the unique role of the Mental Health Officer is of benefit in these assessments, where determination as to a person’s ability to make decisions about the treatment required for their mental disorder is required. The human-rights based social work training, experience of working across the welfare and protective legislation spectrum, and the knowledge and skill set of MHOs lend to the requirement of practical analysis of multiple factors, all of which support the assessment of whether the individual’s decision making is significantly impaired.

SIDMA benefits from the wide-ranging knowledge and experience of intersectionality of factors brought by MHOs with training supporting practical analysis of trends and impact of past behaviours, wishes and actions on current issues. The current capacity tests and SIDMA occupy a relevant space in the assessment of capacity and decision making and allow for professional experience and application of skills across disciplines (health and social work), to make informed determinations about current situations that a rigid test or framework may not allow. However, if the Review Team were to offer suggestion on approaches to capacity and decision-making assessment, then the MHO social workers in Social Work Scotland would be keen to engage with discussions around practical application of such models in their practice.

With regard to selection of an option as proposed, Social Work Scotland members have suggested that Option 2 provides the clearest approach that would allow MHOs to exercise their training, experience and professional role as intended through current models of operation. We would recommend that the capacity and decision making tests should not be merged, with each offering an opportunity to assess differing factors, and a merge of the two would not be something that we could support in practice.

6.2       We seek your views on the concept of the test of autonomous decision making, distinct from a capacity or SIDMA test. We have deliberately not asked specific questions; we wish to leave this open for you to offer any comments on its workability for different categories of persons and to make any suggestions for improvement.           

The concept of a test for autonomous decision-making, separate from capacity and SIDMA tests that this question seeks opinion on would have benefitted from examples or approach. Members would have found that clarity helpful in considering how the application of a concept would impact upon practice. MHOs would like to see a clear test identifying thresholds and including safeguards where there is requirement to intervene in people’s lives as a result of potentially diminished capacity.

General comments received were that a proposed framework to comment on was required; the development of a framework or model should include clarity in definitions and thresholds, set out where responsibility and governance for decisions made, and include the involvement of key partners likely to require further training and learning in relation to its application. Concern was raised in relation to how the test of autonomous decision-making would be applied in crisis and urgent situations to ensure that human rights and person centred approaches were retained. As with a wider and shared responsibility for Human Rights Enablement, there is a risk of professional silo approaches to the test for autonomous decision-making, and the potential that organisational and service priority could influence the outcome of such assessments. Where multiple people hold responsibility to take forward this test there is the potential for it not to be taken forward by anyone when it is urgently needed. The broad application of this approach with people and the lack of clear definition and thresholds would risk its ability to be effective in practice.

6.3       What are your views on the skills and experience required for someone to competently undertake a test of a person’s ability to make an autonomous decision?

We believe that the skill set of experienced social workers, trained as Mental Health Officers, with the ability to apply an extensive knowledge base of legislative duties and powers, using analysis of key factors and supporting considerations of intersectionality, alongside human-rights and person-centred approaches, are key skills and experience required to undertake assessments in relation to decision making and capacity.

Given the training and professional skill set of a social worker is centred on a human-rights based approach, we would suggest that social workers, with advanced practice experience and post qualifying training in the MHO role, are the ideal candidates to take forward such assessments. Social workers hold a wide understanding of legislation in practice across welfare and protection, to ensure least restrictive options are considered and wider duties are met. We would also support the skill set of appropriately trained medical officers as complimentary to the assessment process.

A shared understanding across professional groups responsible for taking forward these duties would also be required, with acknowledgement of professional governance and oversight as an integral part of any framework designed to ensure legislative responsibilities remain connected.

6.4       What are your views on the ADM appeal process?  Please read the chapters on enablement of human rights, supported decision making and this chapter on the autonomous decision making test as part of a suite of key information

We would support an appeals process that aligns with the existing processes in place. Where judicial consideration already apply, such as through Tribunals for Mental Health (Care and Treatment)(Scotland) Act 2003 and the Sheriff court for Adult with Incapacity Act 2000 applications, then the appeal route for autonomous decision making should follow these processes.

In the course of discussion, the access to appeal of section 47 certificates issued through AWI legislation was raised, with the conclusion that recommendation should be made to review the use of section 47 certificates and their impact on an individual’s human rights. Several factors of concern were noted: the practice of issuing section 47 certificates to people without their, or their family/next of kin’s knowledge; the method of recording and storing section 47 certificates is not centralised, and therefore access to decisions made and transparency are potentially compromised; and the experience of practitioners that those living in care homes or in hospital have a disproportionately higher number of section 47 certificates in place speaks to generalisation and potential discrimination of those with vulnerabilities.

Concern has been raised of the human rights impact of section 47 certificates and the route to appeal such decisions that warrant further consideration.

Chapter 7. Reduction of coercion

This chapter looks at the ways in which coercive treatment can be reduced, setting Scotland on a path towards a different culture within mental health and incapacity law and practice, in which all the rights of people with mental health conditions are respected, protected and fulfilled.

We welcome any comments, suggestion or thoughts you have on what we have said in this chapter. We would be particularly interested to know:

7.1       Your views on how the Review understands coercion

We would agree with the Review’s understanding of coercion in its many forms and feel the consideration given to where coercion may be experienced is reflective of the context our members are working across.

We would also agree that Scotland would benefit from looking to other countries as an evidence base for developing terms and definitions, which apply to mental health and learning disability services (p99). We would support the promotion of a shared understanding of definitions and of thresholds to effectively enable Social Workers to carry forward any proposed duties through a human rights and relationship-based approach.

7.2        What you think about the Review’s proposed approach to reducing coercion, including reducing the use of involuntary treatment

The proposals around reducing coercion within the consultation recognise that in some cases, coercion is required and undertaken within the best interests of an individual. We would accept that and lean further into an approach that offers a reduction in coercion through availability of appropriate and varied resources to enable community based approaches. Community based approaches that are focused around a social model of support will enable stronger community and service response and would be in line with duties sitting under the Social Care (Self Directed Support)(Scotland) Act 2013, which places a duty upon local authorities to offer choice and control when directing support. We would view approaches in line with the duties under the 2013 Act as necessary considerations in taking forward practices to reduce coercion.

The expectation that resources and available support in the community could be used to reduce the requirement for coercive interventions is accepted; however, the current care crisis has highlighted the challenges experienced by local areas to delivering choice and control through community-based services, which should be understood with regard to any anticipated impact expected from such an approach. Workforce capacity has not been sufficient to meet demand of the pressure placed on social work and social care professionals, and offering variety and targeted support through specialist services has proven difficult. Considering social work’s role in working with someone to identify their desired outcomes also allows opportunity to highlight unmet need, this is something that we would agree that a multi-agency approaches to reducing the requirement for acute and institutional based supports would assist. In particular, a shift in funding from acute and toward community-based approaches would potentially support the fiscal requirement of delivering specialist support to people in the community and away from restrictive options such as acute wards.

We would support an approach led by Scottish Government to consider how coercive practices within systems could be reduced, with a focus on learning from implementation science to support improvement activity. If a National Social Work Agency (NSWA) is taken forward as part of the National Care Service design, we would see it having a significant role in supporting and informing these considerations social work research/practice.

Monitoring and recording the use of coercive measures is proposed within the consultation and something further that we think should be explored through a national approach. Similar to concerns raised in Chapter 5 regarding Human Rights Enablement and recording practices, we would support information sharing and data collection to improve services for individuals. However, the current systems in place are not linked and with regard specifically to data collection, we understand that the best learning is taken forward from data collections when clear definitions and indicators are developed and understood, allowing a wider application of findings. Taking forward such an approach in relation to coercion would be useful if clearly defined and aligned to a strategy or work plan with clear goals set to monitor progress, without this, it will not maximise the potential impact of taking forward such activity. We would agree that a new system to support such collection should not be bureaucratic or time consuming.

7.3        Whether you think that “coercion” or some other word(s) should be used to describe the use of force, the possible use of force, and the experience of coercion

            We would support the use of the term coercion. However, we recognise that the adoption of the term would require clarification and context to be understood across multiple professionals involved in the assessment of its practice and use, and as such, if this definition were taken forward it should be accompanied by multidisciplinary training to ensure it is uniformly understood.

7.4       Your views on whether law reform could drive changes which could reduce the use of coercion. Changes might include: changes to physical environments; changes to resourcing and better valuing of staff; addressing attitudes and culture; and acceptance, participation and activities on wards, for example.

Social Work Scotland shares the Review’s concern “about situations where compulsion and institutional care are continued for extended periods – not because the person cannot be supported in the community, but because the support the person needs and deserves has not been put in place” (p91).  All of the potential solutions noted within the body of this question are relevant and important to addressing this issue nationally.  Chiefly, we would highlight resourcing, both in terms of the workforce and of community assets, including housing as being priorities needing addressed. Without well-designed buildings, and well-trained people, no substantive change can be expected in the delivery of community-based support that can prevent individuals, including children and young people, from being unnecessarily detained in acute settings.

The introduction of the National Care Service may, depending on how the structures, scope and support are progressed, provide an opportunity to redress the imbalance between Health, Social Care and Social Work that is evident in many Local Authority and Health Board areas.  We would highlight that this is another area where taking a Human Rights based approach that has its roots in Social Justice is crucial in policy design and implementation and that the social work profession is key to this approach.

We are particularly interested in the points raised in relation to medication use in Care Home settings provided within the consultation as an example of coercive control used via the Adults with Incapacity Act.  Once again, we would note the importance of a Human Rights lens being used to inform assessment and proposed interventions.  We would consider this important when reviewing the application of section 47 certificates under the AWI Act.

There are specific issues around the use of coercion and medication with children, which require careful consideration to ensure that their rights are protected in line with the UNCRC. Scotland is progressing to a position of no restraint in residential childcare[23][24] and such an approach should be mirrored in any mental health setting for children.

7.5       Whether you think that safeguards for medical treatment in Part 16 of the Mental Health Act should be strengthened, including the current responsibilities of the Mental Welfare Commission and ‘Designated Medical Practitioner’, and ways in which the patient or their supporters might challenge particular interventions.

See comments above in Q 7.5 relation to children

7.6       Your views on whether the Mental Welfare Commission should have stronger powers to oversee the use of coercive interventions and to identify areas for action.

No, we would not see a requirement for increased powers to the MWC around coercion. Local areas through social work and health regulators would be best placed to review whether their respective workforce is taking duties, policy and strategy forward and to understand the detail behind uses of coercive approaches. Regulation for improvement purposes works best when undertaken with those responsible for delivering social work services. The current work on Mental Health Quality Standards would provide a basis from which regulators can work to ensure social workers (through the SSSC) and services delivered (through the Care Inspectorate) meet the requirements of duties and powers within legislation.

Retaining current regulation requirements will support the considerations of wider legislative requirements on local authorities and HSCPs, taking into account the ability of the system as a whole to carry forward duties. Without the regular engagement around wider social work service business, there is risk that recommendations made from a single regulator with expertise in mental health legislation will not reflect the wider pressures and responsibilities on local authorities and HSCPs, thus leading to challenges in being able to create services that meet the wider requirements of communities. The MWC play a vital role in the interface with individuals through investigations and providing advice and information, while also having a significant role in monitoring the Acts, this role should be preserved, with the reach and expectation to local areas, responsible for service delivery, and professional regulators to support the implementation and oversight of recommendations. Ensuring the role of Chief Social Work Officers, as professional oversight for services delivered by local authorities, would respect the current legislative duties in place. The National Care Service may create an opportunity for a National Social Work Agency; if this occurs then quality and improvement for social work practice should sit here, with direct links into regulators responsible for overseeing other aspects of social work practice

7.7       Any suggestions that you have for the Review’s ongoing work on understanding rising rates of detention and on community-based Compulsory Treatment Orders

Social Work Scotland unequivocally supports a re-emphasis towards recovery orientated, community based services.  We are confident that the Review Team will remain cognisant of the voice of lived experience regarding community based Compulsory Treatment Orders, and would urge a trauma informed lens being used when analysing this.  Of equal importance is that the Review Team is explicitly anti-racist in its approach to understanding rising rates of detention and on community-based Compulsory Treatment Orders; we would be happy to support the Review Team in this.

Chapter 8. Accountability

This chapter considers the need for a strong accountability framework, with clear and accessible routes for people to use if they feel their human rights are being violated, and oversight of systems so we can identify if people are being deprived of their rights, and address this if needs be – consultation mentions AWI and MH but not ASP (or child protection)

We welcome any comments, suggestion or thoughts you have on what we have said in this chapter and on any other aspect of accountability you wish to let us know about.

We would also particularly be interested in the following:

8.1        What do you think about our proposals to give the Mental Health Tribunal increased powers to order that specific care and/or support be provided for a person?

We believe there are multiple considerations to be taken into account with the proposal to give the Mental Health Tribunal increased powers to order that specific care and/or support be provided for a person. Increased powers of the Mental Health Tribunal in this way has the potential to further clutter an already cluttered policy, practice and associated governance landscape as described on p107 of the consultation document. The Social Care (Self Directed Support) (Scotland) Act 2013 sets out in statute an individual’s right to direct their care and support. Legislating additional powers to a Tribunal could run the counter to the governance of duties and powers set out in the 2013 Act. In addition to this, consideration should be given to the economic responsibilities placed upon local authorities to promote welfare in their local areas.  The delivery of services underpin Section 12 of the Social Work (Scotland) Act 1968 duty, and granting powers to direct the provision of services for one vulnerable group over others creates competition, prioritisation of resources toward one group, and may result in increased unmet need in other areas where local authorities should be promoting welfare. We would suggest that there is little point in legislating for increased powers to order specific care provision without also providing additional finance and other resource to improve community based support. Appropriately funded services would reduce the need for any Public Body to have additional powers for enforcement.

8.2       What do you think about the ways we want to extend current excessive security appeals to anyone who feels they are being subjected to unjustified levels of restriction?

We support this; it is a basic Human Right that individuals should have the right to appeal decisions that directly impact on their wellbeing and personal life. Consideration of how this might also apply to children is suggested.

8.3       What do you think about our ideas for reforming the ways a person can raise a concern or complain about their care and treatment?

We would support the promotion of the Equality and Human Rights Commission’s Human Rights Framework for Adults in Detention [25] as a basis for both good practice, and to outline quality standards that individuals who are detained can expect.  The SPSO Act 2002 provides a legislative basis from which public services should take forward complaints, and we suggest this process would apply in relation to raising concerns or complaint about- care and treatment.  Rather than concrete ideas, the points that are noted are suggestions of where things could be improved – rather than how to improve them.  Once again, we would highlight the fact that in order to improve accessibility to complaints processes and to have complaints dealt with in a more timely fashion, investment in the workforce is necessary – this is particularly relevant with regard to administrative support staff, which has seen a reduction in workforce over the past several years.  This is another example, we would suggest, of a situation where the use of existing legislation should be considered rather than creating new legislation.  There is an existing route for complaints regarding Public Services, the Scottish Public Services Ombudsman Act 2002[26].  To create different routes for people in receipt of services via mental health legislation could also be viewed as stigmatising.  There is also significant risk that this would be in opposition to the recommendation of the Independent Review of Adult Social care that complaints procedures be simplified and transparent[27].

Any standards set in relation to how concern and complaints should be progressed should equally apply to children giving cognisance to their specific situation and the impact of deprivation of liberty for their long-term health and development in a UNCRC context.

8.4       Do you have any other ideas to make this process more effective and equitable?

Utilising the existing legislation such as SPSO Act 2002 and taking steps to ensure a widespread understanding of human rights and how to support someone in giving effect to them, along with support and access through advocacy for those who made need it, would be useful steps to take.

8.5       What are your thoughts on collective advocacy groups raising court actions? What about our idea of creating a way for them to escalate unresolved human rights issues to an identified scrutiny body?

We would support the National Taskforce on Human Rights recommendation that people should be able to bring systemic cases of public interest to courts. We would agree that this right should extend to collective advocacy as a means of supporting groups of people to access justice, with the legal rights afforded to individuals as represented in the proposals.

8.6       Is there an existing organisation you feel should take on that role?

We would suggest that the court system would be best placed to take on this role and would be more in line with embedding human rights based approaches within the judicial system. Access to the judicial system should be accessible to all groups, and separate systems to address collective concerns raised by those with mental disorders would be counterproductive to destigmatising approach.

8.7       Should these proposals also cover individual advocacy organisations?


8.8       What are your views on why and how we think collective advocacy should be strengthened?


8.9       Do you have any suggestions to make the scrutiny landscape for mental health services more effective?

No. We would suggest that the existing powers for current scrutiny and regulatory bodies are sufficient. We would recommend that joint working across the regulatory bodies would be preferable, reducing the tendency toward silo approaches and strengthening a human rights-based approach to advocacy through clear and meaningful engagement with local authorities and HSCPs, where changes and improvements may be required. Care Inspectorate, MWC, SSSC, and HIS, working closely together would be preferable rather than increasing the powers on any one group.

8.10 What do you think about the ways in which we think the role of the Mental Welfare Commission should be extended? Do you have other ideas?

We do not consider an expansion of the role of the Mental Welfare Commission is necessary. In the above response, we recommend a joint approach to regulation and scrutiny across regulatory bodies is preferable to increasing the scope and powers of anyone. A joint working approach across regulators would reduce silo working and extending this to engagement with local authority and HSCP frontline workers and to those who use services, would be an inclusive approach. The LA/HSCPs will have the wider view of the multiple duties and powers placed upon the workforce and the competing demands for finite fiscal resource to support effective community-based models that engage wider groups of citizens.

Chapter 9. Children and young people 

This chapter looks at the particular issues faced by children and young people under mental health practice and considers the implications of the UN Convention on the Rights of the Child (UNCRC) for mental health law along with the UNCRPD, both of which require States to bring about real equality for children with mental disabilities.

9.1       Do you think the current 2003 Act principle for children is still needed? Should it be replaced by a wider principle of respecting all the rights of the child under the UNCRC in any intervention – or something else?

Getting it Right for every Child is the universal framework for children. GIRFEC is embedded in practice across children’s services and includes all children in need. As noted earlier, the current statutory and non-statutory guidance on GIRFEC is in process of being refreshed and updated to better reflect recent UNCRC consideration and information sharing.  This should be able to encompass children with mental health issues, as the approach itself is applicable to all children in need, and we would suggest specific consideration of this and that clear links about children’s mental health are made across both areas and sets of guidance.

9.2       What do you think about having a statutory duty on Scottish Ministers and health and care agencies to provide for children the minimum standards needed to secure the human rights set out in international treaties such as the UNCRC?

The duty of care and protection for children is already in place via legislation such as Children and Young People (Scotland) Act 2014. Provision for those suffering from mental health issues however, is poor, and the challenge and level of need is increasing.

  • 10% of children will have mental health issues but 70% of adolescents have not had interventions at an early enough stage;
  • 50% of mental health issue are established by the age of 15 years.(
  • Statistics for ~England show that between 2017 and 2021 the proportion of 6 – 16-year-olds with a probably mental health conditions increased form in in nine (11.6%) to one in six (17.4%).
  • Between 2017 and 2021, the proportion of 6 to 16-year-olds with a probable mental health condition increased from one in nine (11.6%) to one in six (17.4%). This is a 60% increase, despite the population increase being only 7%.
  • 45% of Child-line counselling sessions in 2018/19 related to mental health issues (Child mental health: recognising and responding to issues | NSPCC Learning)

Additionally, the covid pandemic has added increased pressure on children with early evidence suggesting that it has particularly affected children’s mental health. (Children and young people’s mental health – Mental health and wellbeing – Health topics – Public Health Scotland). We would also reference the work of the Health, Social Care and Sports Committee who undertook an enquiry in early 2022 into the impact of covid on the mental health of children and young people[28]. There are consistent issues related to the lack of Child and Mental Health Services (CAMHS), particularly for those who are most vulnerable i.e. those struggling with other underlying challenges such as poverty, disability, abuse or trauma, or with care experience.  As such further provision to ensure that those who need help are able to access this would be helpful – but would only impact if resources, both financial and practice resources – was provided to both health boards and local authorities.

Children’s mental health is a complex area, and not all mental health support is, or should be, health focused. Evidence[29] suggests that support in childhood can prevent more entrenched difficulties in later years, with the impact of this on both the individual and their family/children. That support must be flexible, multi-agency, and cover crisis situations and diagnosis, but equally demonstrate investment in parenting support, early intervention and community support.

In considering whether a duty on Ministers would be of assistance, reference should be made to existing work on the Children’s Mental Health Task Force[30], and the related task and finish working groups, with cognisance taken of the differences in children’s mental health needs and provision. Education provision and community supports, which may not neatly fit with a ‘mental health support’ label, are important aspects of the mental health framework for children, and in keeping with the GIRFEC framework.

For some children, there are specific issues, and provision of treatment centres and in patient services for children are particularly poor and not accessible to many children and young people. National standards and consideration of the rights of the child in this situation would be welcome. Note, however, that this is an existing part of the existing work of the Mental Health Task Force. As such, the Review should consider this with their work, and specifically the interface between existing children’s mental health and community supports, and the adult framework, to ensure that children’s needs are met, and that there is seamless fusion between the two areas.

We would agree that it is helpful to have a specific principle, which applies to children, in addition to those which apply to all individuals, and that the current child welfare principle contained within the 2003 Act is in line with the principles of the UNCRC.  We would however note that the GIRFEC legislation and guidance speaks about children’s wellbeing rather than welfare, and that the principle could be strengthened by:

  • Replacing ‘best interests’ with ‘wellbeing’ to ensure alignment across legislation.
  • Expanded the principle be more inclusive of the UNCRC, by specifically noting UNCRC and referencing the importance of respecting all the rights outlined there. This would also meet the commitment of the Scottish Government to reviewing all legislating to integrate UNCRC, and would provide additional weight and emphasis to considering rights currently less prevalent in assessing children’s mental health such as the right to family life.

9.3       What are your views on reforming crisis services for children and young people experiencing acute mental distress, and about safeguards for emergency detention?

Please note comments on in patient provision in Q9.2.  There is a general sense that crisis provision should sit with health, but working in partnership with local authorities, in keeping with GIRFEC. Local authorities will always be involved with a child.

Additionally better and more equitable access to inpatient treatment for children and young people is required. Some basic interim issues would assist such as accommodation for parents – as is provided for children with physical difficulties. It is additionally critical that the current ‘divide’ between health and local authority in this area is considered, with a view to enabling a holistic and child centred approach to this serious and critical area.  This should include both secure mental health provision for children and the wider secure estate where a number of children with mental health issues (often girls) are place for their own safety sometimes due to a lack of alternative appropriate crisis support

A CAMHS that operates when needed rather than 9am-5pm, would enable a more appropriate response to crises. Such scenarios are currently primarily picked up by local authority and health out of hour’s services, which can result in children being admitted to adult wards with related rights and safety issues, or placed in secure accommodation for their own protection with equal safety and treatment concerns.

Similarly, a number of CAMHS do not work with young people who are in crisis or not in a stable position, due to resource challenges, which means that those young people do not have access to the mental health provision they require. Eligibility for a service is also dependent on the area where the young person resides and is not consistent across the country.

Available mental health advice would assist significantly in ensuring a rights-based and appropriate response. Simple approaches such as the co-location of children and adult services would assist.

We would also note that young people on the autistic spectrum suffer particularly in terms of access to mental health support, that covid has caused extra stress and that the Mental Health Task Force for children is considering in one work stream, crisis provision for children.

9.4        What you think about law reform to ensure access to CAMH services up to at least the person’s 18th birthday, and to ensure age-appropriate services more generally?

We would note that CAMHS’ remit already goes up to 21, and 26 where a young person is care experienced. In practice, however, services rarely work with young people beyond the age of 18. Law reform will not therefore change this – resources and practice change is required, along with smooth transitions planning. Reference to the Principles of Good Transitions may assist consideration in this area.

9.5       What are your views on our ideas about relatives and families?

Children have rights and those must be at the centre of any decision made about them, and it is incumbent on professionals, alongside the child or young person, and the person with parental responsibilities to ensure that those rights are upheld. This should be the primary consideration when considering who chooses a named person – and in decisions to allow relatives and families access to records and involvement in decision making should be considered in that framework.  While those with parental rights have specific rights in terms of their children once a young person reaches the age of capacity, their wishes in relation to areas such as treatment, supersede that of the individual with parental rights.

As some children’s trauma and related mental health issues may be related to experiences in childhood involving immediate family, particular care is required in how information is shared. However, the person with parental rights choosing that individual where the young person is unable to do so due to capacity or age, would be in line with the legislative basis of parental rights, with this transferring to the MHO if this is not in the best interests of the child. However, we would suggest that this only happens where the Team Around the Child meeting has taken place to consider all the circumstances, knowledge and existing care plan in full, with this including the GIRFEC named person and lead professional if in place.

9.6        What are your thoughts on how supported decision making, human rights enablement and the autonomous decision-making test in chapters 3, 5 and 6 might apply to children and young people?

The independent care review which worked over 3 years and resulted in the Promise, highlighted mental health as a key area for change. Any changes in mental health legislation must refer to this work to ensure changes are compatible with the review recommendations and actions, which have all been endorsed by Scottish Government.

Our consultation process indicates support for universal access to supported decision making.  For children, communication is critical with their voice, whether verbally or expressed in other ways such as behaviour or alternative means, ensuring their ongoing involvement.  This approach takes time and patience and requires opens to appropriate approaches and to use of advocacy – again if appropriate.

We would also underline the importance and criticality of training around working with children with mental health issues. The legal context is different to adults, and their specific knowledge needed about communicating with children – who are still developing and where trauma will manifest in different ways. Autonomy varies across children and adults and with young people, it is recognised that development continues in to adulthood and they have not reached full maturity. The role of parent is also important with their voice and that of the young person being authentically heard and respected People may need more support to strike that balance to understand the implications of their decisions and how it will look.

Social Work Scotland members strongly held the view that there is no question that supported decision making should apply to children – otherwise their rights are being considered as lesser to those of adults and the legislation would not be UNCRC compliant.

There were some caveats, noting that the right to autonomy is not an absolute right, and that context, age, and capacity need to be considered. The work of the Promise provides a positive approach to moving away from age and considering needs and ability.  

9.7        What do you think about our proposals on advocacy, and on accountability?

Advocacy for children and young people is critical, and even more so in situations where they are experiencing difficulties with their mental wellbeing is. However, care must be taken in considering the nature of that advocacy and who is best placed to undertaken the role. Independent advocacy groups for children are not currently regulated. The important issue for children and young people is that there is someone they trust to support and advocate for them. This could be a parent, or trusted adult or an independently appointed person.  Flexibility and sensitivity to individual circumstances is therefore required, rather than a blanket provision

9.8       What are your views on autism, learning disability and neurodiversity, and the possible law reforms for children and young people?

Young people in this category often experience the most difficult situations and lack support from adult services as they transition from children’s services. We would caution against specific provision for specific groups and rather support a wider consideration of particular disadvantaged or over represented groups to inform whether legislative reform is required, or whether such matters can be resolved by guidance and practice change within existing structures and legislation – with GIRFEC being the appropriate framework.

In terms of support and coordinated support plans there is existing legislation in place to ensure that those young people with additional needs including those with autism, leaning disabilities and neurodiversity, have the support they require to access education. For some this will mean a coordinated support plan, but other needs may be met with different options for support from the ASL legislation. Differences in approach to support in education across the country, including provision for certain groups to automatically have a coordinated support plan is not considered helpful, and could lead to confusion. We suggest as an alternative work with local authorities on a more standard approach to additional support for learning, within the education rather than the mental health umbrella.

9.9       What do you think about our proposals on safeguards for treatment, and on services and safeguards to protect the relationships between children and parents?

We support treatment safeguards and would point to work already underway in relation to restraint in childcare. Seclusion and isolation are forms of torture and specifically mentioned relative to UNCRC. Our view is that such approaches should not be considered for children and young people due to the damage this causes to their development. The impact of ‘inhuman and degrading treatment’ is immense for children

Social Work Scotland are therefore supportive of progressing specific and consistent standards and safeguards across residential mental health and care settings, and would welcome the opportunity to work with the Scottish Government in this area.

9.10     At this time, Scotland’s mental health law applies to compulsory mental health treatment at all ages. Do you have views on the idea of moving mental health law for children to connect it with other law for children, to apply across health, education and social care?

Mental health law should be aligned to existing legislation for children – particularly GIRFEC, but no child or young person should be disadvantaged – especially at transition stage. Provisions of input form MHOs in children’s work is limited and this could significantly enhance and inform practice with children and young people

Chapter 10. Adults with Incapacity proposals

This chapter suggests changes for incapacity law, building on work already carried out in this area, seeking to address the requirements of the UNCRPD in particular.

We seek your views on the new model. For example, what do you see as its advantages? What do you see as its drawbacks? What adjustments, if any, would you suggest?

10.1     Specifically, what are your views on the role of co-decision maker –and its omission from this model?

Social Work Scotland concurs with the Review team’s conclusion that to pursue a “Co-decision maker” model is fraught with difficulty and agree with those referenced within the consultation document (p155).  We would also highlight the significant risk that the model would dilute the voice of the person on whom the decision will impact, this does not align with the promotion and enacting of a Human Rights based approach.

10.2     Will the proposed change address the issues currently experienced with guardianship? Please explain your answer.

We have previously submitted evidence to the Mental Health Law review via our 2020 evidence submission in which we noted that “there requires to be robust quality assurance in place for private guardianships.  We see poor quality guardianships, consisting of copy and paste paragraphs, which are not personalised. Consideration could be given as to how support other agencies (third sector) to facilitate process.”  We would also suggest that the good work done in 2018 at the time of the significant review/consultation on AWI resulted in several excellent ideas and options which should be seriously considered prior to the move toward recommending any further potentially complex arrangements as currently proposed in this consultation.

10.3     What are you views about the proposed streamlined application process?

We agree with streamlining financial and welfare guardianship.  AWI timescales currently allow for extensive periods of delay for private applicants to get powers in place, with no limit to how long private solicitors take. Timely access to Legal Aid is an added issue. Although it is an entitlement benefit, members have reflected that in their experience, it can impact on the priority given to progressing applications by private solicitors.

10.4     Does the proposed emergency provision in the model address the concerns about the current system?

We would welcome more detailed proposals around how to approach circumstances where emergency measures are required. We understand this was fed back during the review carried out in 2018 and hoped to see more evidence of this as progressing options to support this aspect of AWI work. Social Work Scotland would be happy to contribute to future discussions involving such proposals.

10.5     Should the reframed model allow for the grant of a specific or one-off order (currently called an intervention order)? If so, will the reframed model allow for this?

There is no indication that the new model will not allow for this.

10.6     Should the current access to funds process be subsumed within the new model? If so, will the model allow for this?

There is no indication that the new model will not allow for this.

10.7     Should the current management of residents’ finances process be subsumed within the new model? If so, will the model allow for this?

There is no indication that the new model will not allow for this.

10.8     What are your views on a system of supervision?

We do not feel that it is necessary for the Mental Welfare Commission to be given additional scrutiny responsibility in respect of monitoring Local Authorities where they are appointed as decision-making representatives.  The Review of the law gives an opportunity to ensure transparency within the framework for AWI.  There is also an opportunity in the creation of the NCS and the potential National Social Work Agency to consider potential roles and responsibilities within these structures.

With regard to clarity of complaints process, this is another example of a situation where the use of existing legislation should be considered rather than creating new legislation.  There is an existing route for complaints regarding Public Services; the Scottish Public Services Ombudsman Act 2002[31].  To create different routes for people in receipt of services via mental health legislation is stigmatising.  There is also significant risk that this would be in opposition to the recommendation of the Independent Review of Adult Social Care regarding complaints processes.

Please offer any relevant views, you do not need to limit yourself to addressing these questions

10A     Power of Attorney

What are your views generally on PoA and the recommendations we are proposing? Particularly we welcome your thoughts on:

10A.1   What measures should be taken to increase the awareness of a PoA?

We understand that there is currently a National POA campaign with a dedicated website available that is being taken forward via Health and Social Care Scotland and through local partnerships. The funding of which has been shared across Health and Social Care Partnerships for the past 5 years. We would suggest that to expand upon this important work, that the Office of the Public Guardian and Scottish Government could collaborate, and possibly lead, a wider national campaign to carry forward the good work currently being undertaken. This would allow expansion of the work through dedicated funding, into wider areas, including key partners with vested interest in supporting people to take this forward.

10A.2  Key points of guidance that need to be given to attorneys.

We would suggest that the current guidance available from the Office of the Public Guardian and on the My Power of Attorney website to be sufficient, and could act as reasonable starting points for identifying key points relevant to attorneys. We would also recommend seeking wider engagement with the public and with attorneys to identify priorities from both perspectives to ensure the points of guidance relayed to attorneys is meaningful to those who will access an attorney’s support.

10A.3  What support should be given to attorneys – by whom, when?

We would see this as a role for the Office of the Public Guardian and not something that should be a statutory responsibility of local authorities or Health and Social Care Partnerships.

10A.4  The reporting structure for someone with concerns

We would recommend that the current legislative pathways for reporting concern via Office of the Public Guardian and Adult Support and Protection are sufficient. Robust adherence to the information-sharing requirement and a commitment to taking forward investigations and using powers in existence within each of these areas are sufficient when carried forward consistently.

10A.5  The investigations structure

We would suggest that sufficient powers exist for the Office of the Public Guardian to take forward investigations, however these are not consistently applied. The Office of the Public Guardian have the opportunity to respond quickly to reports of concern and to work jointly with local authorities through the Adult Support and Protection framework and we would be in support of their taking forward this role.

10A.6  Authorities being able to supervise an attorney, on cause shown, following a statutory inquiry.

The current AWI Act allows for this on balance with professional discretion around appropriateness of doing so. We would suggest this remains as standard, with the Mental Health Officer/social worker working flexibly to the need presented in each situation. We would not support a single approach to supervising attorneys.

10A.7  Attorneys having power to authorise a deprivation of liberty (assuming this power has been granted in the PoA).

We will be taking into account comments submitted to the 2018 AWI consultation so you do not need to repeat earlier opinion, unless you wish to.

To maintain the integrity of a human rights based approach we would support an approach that any such power should be subject to judicial oversight / confirmation of appropriate use by proxy. We would see the role of the social worker/Mental Health Officer as central to supporting such considerations.

10B      Part 5 of the AWI Act: Medical Treatment and Research

We seek your views on what we are proposing.

10B.1   What are your thoughts on the provisions within s47(7) on the use within the AWI Act of force and detention, and the relationship with the 2003 Act?

We would support a review of use and practice around issuing section 47 certificates and believe it is integral to ensuring practices around use of these certificates reflect considerations of a human-rights based approach. Practice experience suggests that the use of section 47 certificates is not well understood across the professionals who issue them, or with the individuals and family/next of kin who may be subject to them. A certified medic, from our members’ experiences, does not always undertake the measures and requirement for issuing a section 47 certificate and this should be considered as part of the integrity of its use. There have been experiences of blanket approaches to use of section 47 certificates based on the age of the individual, and this is frequently reported for those living in care homes to support practices and systems in the home, over the individual need of the person.  There is a significant lack of understanding of section 47 certificates, and what they authorise with regard to treatment, across all sectors and the current context under which they are being used requires careful consideration to ensure human-rights are central to decisions made when issuing them.  To add the power of detention to this current process would result in a significant risk to a human-rights based approach through AWI.

At present, there is not a central register for issuing and holding section 47 certificates, making it difficult to analyse and understand the areas of risk identified through local experiences. The recording and holding of section 47 certificates should be addressed, along with an analysis of the current use in line with human rights considerations, before increasing any powers aligned to them.

10B.2 Is any change needed to the list of special treatments requiring additional safeguards (section 48) or the procedures by which they are authorised?

We do not hold a view on this question.

10B.3  It has been suggested that Transcranial Magnetic Stimulation (TMS) should be added to the list of special treatments requiring additional safeguards in section 48. What are your views?

            We would agree with this suggestion.

10B.4  Is any change needed to the dispute resolution procedure in section 50?

            We do not hold a view on this; our members have not reported having any experience with this procedure.

Chapter 11. Deprivation of Liberty

This chapter seeks views on how the challenges around the ECHR requirements concerning deprivation of liberty may be addressed

We welcome your views on any aspect of this chapter but in particular we would like you to consider the following questions:

11.1     What are your views on the deprivation of liberty proposals?

We would recommend that proposals which simplify the system, support the human-rights of the individual, and are easy to adapt across practice areas, as being the most successful when there is a requirement to implement them. We would suggest that the proposals put forward could be amended to reflect as above.

11.2     Who do you think should be able to apply for a deprivation of liberty order?

We would support well-trained and experienced professionals working within Local Authorities, Health Boards, Managers of Care Homes / Residential Care Facilities (of whatever nature)/Guardians/Proxies, as being able to apply for deprivation of liberty orders. The practical experience of work around balancing the need for a deprivation of liberty order with the promotion of someone’s human rights sits well within the training and role of the social worker. An understanding of the use of deprivation of liberty orders across the lifespan is crucial.  Children and young people, as well as adults, may be subject to deprivation of liberty and the unique personal circumstances of each group should be considered against a sound understanding of the alternative methods that may be considered to support an individual to give effect to their human rights

For children this consideration of human rights and specifically UNCRC before progressing any deprivation of liberty is critical. Depriving a child or young person of liberty is serious action, with implications for their longer-term health and development.  As such it should rightly be considered extremely carefully, and only progressed only as a last resort and following appropriate scrutiny and consideration of alternatives by all those involved in the Team around the Child and in line with the GIRFEC principles.

11.3     What are your views on the safeguards in the process?

We consider the current safeguards in place as sufficient to the process required when working with adults. The consideration of children and the need and use of deprivation of liberty orders in relation to mental health should, as noted in our response to 11.2, be carefully considered by a multi-agency team, including those with specific knowledge of children’s development, impact of trauma and relevant legislation before being progressed.  Consideration and rigour of application of children’s rights and UNCRC in the context of GIRFEC as the core policy context for children is a critical safeguard.

11.4      How can we ensure that there is a real, effective and accessible ability for the adult and/or their representative to challenge the lawfulness of a deprivation of liberty order?

            We would support the role of Advocacy in this space and would reference the role of the professional advocate in the English system, to support effective and accessible routes to challenges decisions made.

11.5     What do you see as potential barriers to its operation?

As with responses in previous sections, the requirement for robust financial modelling has a place within the recommendations made in this consultation. The current context through which social workers and others take forward duties under the three Acts is one of increasing demand and pressure, with limited capacity within the workforce to address the most critical need. We would support significant financial investment into the social work workforce, from recruitment into the profession, across the development of the worker into advanced practice positions, and through the joint and ongoing learning across the multi-agency workforce working together to deliver on the duties and powers within legislation. A strong, shared understanding of professional roles and functions would help in successfully implementing recommendations. A requirement for increased funding to support development of preventative and community approaches to addressing mental health at earlier points would also support. The current system through which work is taken has not seen the appropriate investment to undertake social work functions as intended, and therefore the barriers to the implementation of recommendations would be overcome through the outlined action above.

11.6     What else may you wish to see included?

            We have no further suggestions.

Chapter 12. Mental disorder

This chapter seeks views on the how we might remove the use of the term ‘mental disorder’ and associated issues

We welcome any comments, suggestion or thoughts you have on what we have said in this chapter. We would also particularly be interested to know your views on:

12.1     Should there be a gateway to mental health and capacity law which reflects a diagnostic criterion?

            Yes, we would agree that a threshold should apply to mental health and capacity law and mental health. We would support the continued use of the current definition of mental disorder as a gateway to application of mental health legislation. We would find this definition also applicable to Adult Support and Protection with regarding to applying the three-point test. The context for children however may warrant further consideration, given the understandable reluctance to provide diagnostic labels in the children context.

12.2     If so, what should that gateway be and what terminology should we use?

Please see response above. We view the current terminology as satisfactory. Delineation of terminology will reduce confusion and avoid subjective application of legislation. Non-specific terminology can introduce confusion and potentially weaken definitions, making them more open to wrong interpretation and challenge.

Chapter 13. Fusion or aligned legislation

This chapter seeks views on whether, in light of the proposals suggested by the Review, fusing legislation is the way ahead or a more gradual alignment of legislation may be preferred.

We welcome any comments, suggestions or thoughts you have on what we have said in this chapter. We would be particularly interested to know:

13.1     Given the changes being proposed by the Review, do you think a single piece of legislation for mental health, incapacity and adult protection law is the best way forward? Please provide explanation for your answer.

No.  In particular, we do not agree that the Adult Support & Protection (Scotland) Act 2007[32] has a neat fit with the other two pieces of legislation. The use of the term “mental disorder” and consideration of its impact on an individual represents only one aspect of the legislation, at the point of determining the three-point test for intervention under ASP law.  The wider scope of the ASP Act is precisely the reason it should sit outside of the duties within the AWI or MHCTA. ASP, and the determination of whether someone meets the test for acting under the legislation, can be a contentious issue in practice between disciplines and it is often the considerations of balance between human rights and the right to self-determine, brought into the conversation by social workers, that supported the rights based approach and support this Act represents. Combining the three pieces of legislation poses a significant risk of losing focus of the potential scope and reach of this legislation in helping people self-determine and take forward safeguarding with support. It is for this reason that we welcome the tone of Human Rights Enablement as considered in this consultation; this is a good fit with the core principle of ASP and the actions taken in relation to concerns as being both of benefit to an adult and representing the “least restrictive option”.

The wider scope it offers with regard to supporting people who do not meet the criteria under MHCT and AWI Acts has been a positive gain from its entry into the spectrum of protective legislation. Its wide use across key partners and the joint approach it encourages has been recognised through the most recent inspections of partnerships carrying forward its duties. There would be a loss in the tools partners can use to support vulnerable adults if the ASP Act were to fuse with the other two protective legislations. We would not be in support of such fusion.

Any fusion of legislation – as with any amendment – must also be able to interface appropriately with the different legislative landscape for children.

13.2     You may consider that two or three pieces of law would be preferred, each dealing with specific issues across mental health, incapacity and adult protection law. If so, please tell us, giving an explanation for your answer.

See answer to 13.3 regarding discrete but aligned legislation

13.3     What do you think about our suggestion of aligned legislation? Which aspects of the law should be aligned and which should be left within standalone law?

We have previously submitted evidence to the Mental Health Law Review Team through our 2020 submission, where we noted that “whilst we look with interest to the implementation of the Northern Irish approach to fused legislation, Social Work Scotland would support the development of pieces of discrete but well-aligned legislation.”

13.4      Finally, please tell us if you consider a single judicial forum should deal with all mental health, incapacity and adult protection cases, and if that forum should be the Sheriff court or a tribunal

  • Generally speaking, Social Work Scotland Members shared their experience that Tribunals are much better for service use engagement. They are much more person-centred and reduce stigma. There was a strongly held view that motions regarding Adults with Incapacity should be considered out with a court setting (and within a Tribunal setting) the belief being that this would make the process more accessible for the individuals and carers at the centre of discussions.
  • Members told us that their current experience (Adult Support & Protection) is the resistance of legal services to applying for Court Orders via ASPA routes. The feeling of members is that Assessment Orders/Removal Orders could go through Tribunals, but that Banning Orders may need to continue in court due to their nature and potential inclusion of power of arrest. On balance, there have been very few protection orders taken forward since the inception of the Act, and this could be viewed as a strength in approaches where self-determination and protection are well balanced, enabling risk and supporting people to take decisions that are right for them.
  • If there should be a single forum only in the event of fused legislation, or if a single forum is your preferred way forward regardless of wider changes to the legislation

We would not support fused legislation for the reasons presented above and views regarding how a single forum could be carried forward are raised in the previous question.

  • If you consider aligned legislation is preferred, should a single judicial forum be part of that alignment?

See responses provided above.

Laura Kerr
Adult Policy & Practice Lead 






















[22] Principles of Good Transitions – Scottish Transitions Forum