Written Question · S5W-11985 · Session 5
In light of the requirement under the Human Rights Act 1998 that public authorities must take account of the case-law of the European Court…
The question
To ask the Scottish Government, in light of the requirement under the Human Rights Act 1998 that public authorities must take account of the case-law of the European Court of Human Rights (ECHR), what action it has taken to ensure that the NHS is aware of the ECHR case law suggesting that courts should take account of a person raising an action concerning being given non-consensual treatment before having an opportunity to appeal and, in light of this, what its response is to concerns that its mental health legislation permits such treatment to be made in these circumstances.
The answer
Scottish mental health and incapacity legislation is based on rights and principles. Our legislation is compliant with the European Convention on Human Rights and has never been found, in part or in whole, by the European Court of Human Rights to be incompatible with the Convention.
Most people who use mental health services receive treatment without being subject to an order or certificate under mental health legislation For some individuals however, compulsory treatment is used to provide the person with medical treatment to alleviate suffering and for the protection of both the person and others. Compulsory treatment is only allowed under mental health legislation in Scotland in very strict circumstances.
Certain criteria must be met before an order or certificate can be granted. For a 28 day short-term detention certificate (STDC), this includes that an approved medical practitioner considers it likely that the patient has a mental disorder (as defined by the Mental Health (Care and Treatment) (Scotland) Act 2003) and that the patient’s decision making ability is significantly impaired by their disorder and without treatment the patient could be of significant risk to their own health, safety and welfare, or to the safety of others, and that detention in hospital is necessary. Note that a patient can apply to the independent Mental Health Tribunal for the measure which authorises his or her detention in hospital to be revoked or varied.
While detained in hospital, patients may have capacity to consent to treatment and the 2003 Act sets out safeguards around obtaining consent and the strict procedures around giving treatment where consent is not given or is refused. Treatment authorised by the 2003 Act, or the Criminal Procedure (Scotland) Act 1995 may only be given in accordance with the range of safeguards set out in part 16 of the 2003 Act.
Public authorities, including NHS boards, are required by the Human Rights Act 1998 to act in a way that is compatible with the European Convention on Human Rights and will need to satisfy themselves that they do so, taking into account any relevant judgements of the ECHR.
Most people who use mental health services receive treatment without being subject to an order or certificate under mental health legislation For some individuals however, compulsory treatment is used to provide the person with medical treatment to alleviate suffering and for the protection of both the person and others. Compulsory treatment is only allowed under mental health legislation in Scotland in very strict circumstances.
Certain criteria must be met before an order or certificate can be granted. For a 28 day short-term detention certificate (STDC), this includes that an approved medical practitioner considers it likely that the patient has a mental disorder (as defined by the Mental Health (Care and Treatment) (Scotland) Act 2003) and that the patient’s decision making ability is significantly impaired by their disorder and without treatment the patient could be of significant risk to their own health, safety and welfare, or to the safety of others, and that detention in hospital is necessary. Note that a patient can apply to the independent Mental Health Tribunal for the measure which authorises his or her detention in hospital to be revoked or varied.
While detained in hospital, patients may have capacity to consent to treatment and the 2003 Act sets out safeguards around obtaining consent and the strict procedures around giving treatment where consent is not given or is refused. Treatment authorised by the 2003 Act, or the Criminal Procedure (Scotland) Act 1995 may only be given in accordance with the range of safeguards set out in part 16 of the 2003 Act.
Public authorities, including NHS boards, are required by the Human Rights Act 1998 to act in a way that is compatible with the European Convention on Human Rights and will need to satisfy themselves that they do so, taking into account any relevant judgements of the ECHR.
In the Official Report
No contribution in the Official Report cites S5W-11985 by reference.