Mental health law in Scotland needs to take more account of children and young persons, according to the Faculty of Advocates.

In its submission to the review of mental health law under John Scott QC, Faculty states that since the passing of the Mental Health (Care and Treatment) (Scotland) Act 2003, considerable increases had occurred in demand for child and adolescent mental health services.

Among other matters the review is seeking to establish whether there are groups of people whose needs are not well served by the Act.

Faculty observes: "The Scottish Government’s mental health strategy is seeking to address the issue by increasing the scope of resources and services, but the Faculty notes that in the 333 sections of the Act, only two expressly address children and young persons with a mental disorder, with the result that the Act itself is extensively process-driven and weighted towards adult patients.

"The Faculty considers it important that the Scottish Government, which is committed to implementing the UN Convention on the Rights of the Child in domestic law, pays close attention to incorporating provisions more closely tailored to the needs of children and young people, and allows care and treatment to be provided in a properly responsive manner."

Faculty believes the Act generally works well in practice, but has some concern over incompatibility with the United Nations Convention on the Rights of Persons with Disabilities – and though it recognises that the law is designed to reflect the different approach of the European Convention on Human Rights, "it ought to be possible to reduce the friction that might otherwise exist".

Its response also draws attention to a disparity in provision for men and women who require treatment in high security accommodation. There is a small group of women who have no option allowing them to be held in high security accommodation in Scotland, even though it is acknowledged to be unsatisfactory when patients are detained or treated at considerable distances from their families.

It references the case of Theresa Riggi, who was sentenced to 16 years’ imprisonment for the culpable homicide of her three children in Edinburgh, and who died in Rampton Secure Hospital in Nottinghamshire in 2014.

Faculty observes that the issue has been the subject of recent adverse comment by the UN Rapporteur on Prevention of Torture, but has yet to be addressed fully by any of the statutory bodies – including the Mental Welfare Commission for Scotland – despite the evident disparity in treatment provided for similar male offenders.

"The Faculty considers that such disparity on the grounds of sex is incompatible with a human rights culture", the response states.

Click here to view the full response.

Interim report

The review group's first interim report has been published today (click here to view). It notes these "themes emerging" from responses to date:

  • Issues with communication
  • Training issues
  • Poor transitions
  • Issues around independent advocacy – awareness and use
  • Lack of early intervention
  • The current mental health law – responses to the call for evidence tended to focus on people’s experiences rather than referencing the law itself, however a number of professionals who commented gave their views about the way the law is working at present
  • Lack of resources, practitioners and services – in general
  • Issues around resources for particular groups – for example,
    young people, the deaf community
  • Pathologising what may be simply understandable distress
  • Appropriateness of application of MH law to learning disability and
  • Discrimination due to location, for example, rural parts of Scotland
  • Issues around capacity (including assessment) and consent
  • Use of advance statements