Some are wrongly held because of flaws in Scotland’s mental health legislation – review
Wed 18 Dec 2019 01.01 EST
Last modified on Wed 18 Dec 2019 01.03 EST
Significant reforms are needed to stop people with learning disabilities being unnecessarily detained because of flaws in Scotland’s mental health legislation, according to an independent review.
The review said Scotland’s mental health act 2003 breached the human rights of people with learning disabilities and autism because it treated their disabilities as mental disorders.
Andrew Rome, who chaired the review, said there were cases of offenders with learning disabilities or autism being held as patients in secure accommodation for far longer than non-disabled offenders who committed identical offences. They could be locked up without a formal diagnosis of mental illness.
The most severe delays included 15 people whose discharge was delayed for more than 10 years, and another six people held for more than five years longer than necessary because the right support was not available in the community.
The review recommended that the Scottish parliament introduces new legislation to protect the rights of people with autism or learning difficulties, and establish a new commissioner to safeguard their rights.
After the new legislation came into force, those conditions had to be removed from the legal definition of mental disorder in the 2003 act, the report said.
Rome said the current law breached the UK’s legal undertakings under the UN convention on the rights of persons with disabilities, ratified by the UK in 2009, as well as linked duties under European human rights legislation.
The convention gives people the right to family life and to independent living, yet they were often held in facilities which were cramped, noisy, badly maintained or dirty, or have rules and environments which traumatised people with autism.
Previous studies cited by the review found 453 people with learning disabilities were placed in facilities far from home, including about 55 with autism, while almost a third of inpatients with learning disabilities experienced long waits to be discharged.
The review, set up by the Scottish government two years ago, said other public services failed to uphold the convention’s codes, which meant new duties were needed to ensure local councils and public bodies fully met the needs and views of people with autism or learning disabilities.
Those duties should include embedding the UN’s convention on the rights of the child in legislation, to ensure schools, the NHS and social services provided appropriate services.
“We, as a society, have been making decisions based on what we think is best rather than what the person wants,” Rome said. “Some of that has been done on the basis that the person can’t tell us. What the UN convention says is that people don’t lack the capacity to tell us: [instead] it’s up to us to find the best way to allow them to.”
The Scottish government said the report would feed into a wider government review of Scotland’s mental health legislation by John Scott QC, and another review into forensic, or crime-based, mental health policy.
A spokeswoman said ministers were clear that physical restraint should always be a last resort, and for the shortest time possible. “We will now carefully consider the recommendations within the report to ascertain how to better fulfil our obligation to promote and protect the human rights of autistic people and those with learning disabilities,” she said.
