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Autonomy, benefit and protection: how human rights can protect people with mental health conditions or learning disabilities from unlawful deprivation of liberty
- Author:
- PATRICK Hilary
- Publisher:
- Mental Welfare Commission for Scotland
- Publication year:
- 2008
- Pagination:
- 52p.
- Place of publication:
- Edinburgh
This paper considers how the law and practice in Scotland relating to the care and treatment of people with mental health issues or learning disabilities respects their right to liberty and security guaranteed by Article 5 of the European Convention of Human Rights (ECHR). In recent years the law has changed, with the Adult Support and Protection (Scotland) Act 2007 clarifying the rights of local authorities to make community care arrangements for adults who are incapable of making such arrangements themselves. Helpful guidance from the Scottish Government (the s13ZA guidance) highlights good practice issues. The s13ZA guidance is clear that it is not appropriate to use the new provisions of the Social Work (Scotland) Act where care arrangements may constitute a ‘deprivation of liberty’ within Article 5 ECHR. This paper aims to build on the guidance from the Scottish Government. It deals with areas that the Scottish Government does not cover, for example patients in hospital and people living in their own homes, and outlines areas where further good practice advice could be helpful. The paper is in 5 parts. Part 1 looks at what is meant by deprivation of liberty and the requirements of ECHR law. Parts 2 and 3 look at deprivation of liberty in context and discusses how the rules operate in specific situations. Part 4 considers how the principles of Adults with Incapacity Act law and ECHR law can help form a framework for decision making in these difficult situations and Part 5 draws some conclusions.
Consenting adults?: guidance for professionals and carers when considering rights and risks in sexual relationships involving people with a mental disorder
- Author:
- MENTAL WELFARE COMMISSION FOR SCOTLAND
- Publisher:
- Mental Welfare Commission for Scotland
- Publication year:
- 2010
- Pagination:
- 40p.
- Place of publication:
- Edinburgh
Sexual expression, sexual relationships, marriage and children are a natural and expected part of a person’s life experience. People with a mental illness, learning disability or other mental disorder, have the same personal and sexual needs and rights as anyone else. At the same time people with a mental disorder can be at particular risk of abuse or exploitation. Balancing those rights and risks raises a host of legal and moral dilemmas. This guidance has been produced in response to the legal, ethical and practical issues concerning sexual relationships involving adults with a mental disorder. It is intended to provide a framework for discussion of the general issues that need to be considered when assessing risk and considering the need for intervention in a person’s sexual life. In assessing and deciding on the need for intervention, this guidance looks at a number of significant questions for practitioners. These include: assessment of capacity; issues of consent; knowledge of the person’s background and past and present wishes; the nature of the mental disorder; different forms of sexual expression; potential risks as against benefits; staff attitudes, knowledge and training; assistance given by staff; family attitudes; cultural and religious beliefs; the person’s living situation; statutory duties and professional and organisational responsibilities to investigate, including issues of confidentiality and disclosure; and intervention that may be required.
Prisoners' voices: experiences of the criminal justice system by prisoners with learning disabilities
- Author:
- BEAIL Nigel
- Journal article citation:
- Tizard Learning Disability Review, 15(3), July 2010, pp.42-45.
- Publisher:
- Emerald
This paper comments on the article in this issue by Jenny Talbot which describes research on prisoners with learning difficulties and disorders. It discusses the very wide inclusion criteria used in Talbot’s article, which includes people who have a diagnosis of a learning disability and those who have other learning difficulties and disorders. Thus the paper includes people who have average intellectual functioning but with other conditions such as Asperger’s syndrome or learning disorders such as dyslexia. This paper describes how the prisoners with learning disabilities are struggling to cope, and concludes that the UK prisons are not recognising or meeting their needs. Of particular concern is that the participants went through the criminal justice system from being a suspect, through the Court and into prison without their disabilities being identified or supported. Thus the criminal justice agencies are failing in their legal duty to promote disability equality and to eliminate discrimination.
Does it matter? Decision-making by people with learning disabilities
- Authors:
- PEOPLE FIRST (SCOTLAND), ANIMATE
- Publisher:
- Animate
- Publication year:
- 2017
- Pagination:
- 84
- Place of publication:
- Glasgow
This research examines whether supported decision making for people with learning disabilities offers a practical and safe alternative to substitute decision following a guardianship order. It aims to present their views within the current debate about the need to revise Scotland’s incapacity legislation. Peer researchers conducted interviews with 128 people who had a learning disability about their experiences of decision making. Overall, participants felt making decisions for themselves was important, emphasising the need to have choice and the freedom to be independent. Good practice examples of supported decision making are included. However, participants reported that they commonly experienced decisions being made about them without people asking, which left many participants feeling powerless and angry. The report also discusses the barriers to people with learning disabilities taking greater control of their decision making; challenges within the current guardianship system in Scotland; and the challenges to delivering supported decision making. The findings suggest that supported decision-making for people with learning disabilities can offer a safe and realistic alternative to substitute decision-making, but requires a significant change in mindsets as to the rights, resources and risks involved. (Edited publisher abstract)
The Mental Welfare Commission for Scotland: a unique and influential voice
- Authors:
- McKAY Colin, WELSH Heather
- Journal article citation:
- Journal of Intellectual Disabilities and Offending Behaviour, 6(3/4), 2015, pp.137-147.
- Publisher:
- Emerald
This paper describes the role of the Mental Welfare Commission for Scotland. The paper takes the reader through the history of the Commission, its changing status, roles and responsibilities, its influence and impact, and current priorities. It is based on details of the Commission's development, narrative from current employees and published investigations and advice. The paper finds that the Mental Welfare Commission has advanced significantly since its original establishment. It plays a vital role in protecting the human rights of people in Scotland with learning disabilities and mental illness, by visiting those who are in receipt of care or treatment, investigating situations of concern, providing advice and guidance, monitoring the Mental Health (Care and Treatment) (Scotland) Act 2003 and Adults with Incapacity (Scotland) Act 2000 and shaping relevant policy and legislation. The paper illustrates importance of the Mental Welfare Commission in preserving the rights of individuals with learning disabilities and mental illness in line with the UN Convention on the Rights of Persons with Disabilities and other legislation. (Edited publisher abstract)
Neglecting justice? Exploring Scottish convictions for ill-treatment and wilful neglect
- Authors:
- GODWIN Christopher, MACKAY Kathryn
- Journal article citation:
- Journal of Adult Protection, 17(4), 2015, pp.234-244.
- Publisher:
- Emerald
Purpose: This paper explores the perceived low number of Scottish criminal convictions in cases of ill-treatment or wilful neglect of adults where the victims experienced mental disorder, and/or incapacity. Human rights and anti-discrimination legislation are drawn upon to consider whether victims are gaining equality of access to justice through the charging and conviction of those who commit these offences. Design/methodology/approach: The paper uses the concept of parity of participation to first set out the wider legal framework in which access of justice takes place and to try to determine how it may be working in practice. Second the paper explores Scottish guidance, research and case law in relation ill-treatment or wilful neglect to evaluate the seeming lack of progress towards criminal convictions. Findings: Whilst the legal framework appears to promote equality of access to justice, little is known about how it is working in practice; in particular whether cultural barriers to participation are being addressed. Evaluation of Scottish statistical data on cases of ill-treatment and wilful neglect revealed a small number of cases progressing to court though there were challenges in constructing a pathway from charges to convictions. There also appeared to be no Scottish legal opinions published in connection with these cases. In addition lack of research means that little is known about why cases progress, and how victims might be being supported through the process. Research limitations/implications: It is suggested that these gaps in information, in comparison to England and Wales, might be hindering practice. In particular the apparent lack of operational definitions for ill-treatment and wilful neglect in Scotland may reduce the use of this type of criminal offence. As such criminal offences embedded within civil mental health and mental capacity legislation may currently be hidden in plain sight. The human rights consequences of the issues raised in this paper are argued as significant. Research is needed to fill these gaps and inform future guidance and training. Practical implications: Improved Scottish guidance and publicity of this issue is required. Local inter-agency discussions and training could develop a better understanding of how these offences have been defined and how disabled people might be supported through the legal processes. The Scottish publication of statistical information for charging and convictions might usefully record these offences separately to give them a greater public profile in the future. (Edited publisher abstract)
Mental Welfare Commission for Scotland: summary of outcomes from focussed visits 2010-11
- Author:
- MENTAL WELFARE COMMISSION FOR SCOTLAND
- Publisher:
- Mental Welfare Commission for Scotland
- Publication year:
- 2011
- Pagination:
- 19p.
- Place of publication:
- Edinburgh
Between April 2010 and March 2011, the Commission undertook 87 focussed visits to people receiving care for mental health problems or learning disability in various settings. A total of 301 recommendations for improvement were made following these visits. When followed up, it was found that services had taken satisfactory action in 76% of cases. This paper reports on the main issues emerging from 74 of those visits, and specific examples of improvements made by these services after the visits. These 74 visits were to people receiving treatment in the following types of care settings: intensive psychiatric care and secure units; care facilities for people with learning disability; older people in hospital; older people in care homes; people with mental disorders in prison; young people's care facilities; mental health continuing care and rehabilitation facilities; and adult acute admission wards. Many of the recommendations addressed principles of Scottish mental health and incapacity legislation, the articles of human rights legislation and other international conventions. The most common issues raised were: care environments that did not appear to meet people's right to privacy and dignity; care plans that did not appear to comply with the principles of maximum benefit, participation and the range of options available; and lack of attention to physical health.
Accessing and maintaining legal representation for persons with mental disorder
- Author:
- STAVERT Jill
- Journal article citation:
- SCOLAG Journal, 393, July 2010, pp.143-147.
- Publisher:
- ScoLAG(Scottish Legal Action Group)
It is vital that a person with mental disorder has equal access to the law without discrimination, whether or not they have capacity. This article examines issues relating to mental disordered persons and legal service provision. In particular it considers the extent to which legal service provision should be provided, overseen and enforced by the state, and the extent to which the legal professional regulates itself nationally in terms of provision and quality of services. As well, as access to legal representation, the adequacy of the representation is also considered. The article describes international law standards from the UN Convention on the Rights of Persons with Disabilities (CRPD) and the European Convention on Human Rights (ECHR). In terms of national professional standards in Scotland, it describes the guidance on non-discrimination from the Law Society of Scotland. The article concludes that international professional and human rights standards and guidance go some way to protect the interests of persons with mental illness and learning disabilities with relation to legal representation. However, these rights tend to focus on criminal cases and psychiatric detention where a person’s liberty is an issue, and are less clear when it comes to civil matters.
The independent review of learning disability and autism in the Mental Health Act: final report
- Authors:
- ROME Andrew, EVANS Catherine, WEBSTER Simon
- Publisher:
- Independent Review of the Mental Health Act Scotland
- Publication year:
- 2019
- Pagination:
- 176
- Place of publication:
- Edinburgh
The final report of an independent review into the Mental Health (Care and Treatment) (Scotland) Act 2003, which was commissioned by the Scottish Government. The review covered: the operation of the 2003 Act and whether it was serving people with autism and intellectual disability well; the increasing the role of psychologists in relation to the Act; the definition of mental disorder under the 2003 Act in relation to learning disabilities and autism; how the Act interacted with the criminal justice system, and the use of psychotropic medication. The review heard from a wide range of people and aimed to give equal value to the views and evidence of people with lived experience and professionals. The report recommends legal and practical changes which can reduce or remove the discrimination that autistic people and people with intellectual disability have experienced under the current Mental Health Act. These included for the Scottish parliament to introduce new legislation and to establish a new commissioner to safeguard the rights of people with autism or learning difficulties. (Edited publisher abstract)