BIHR Explainer- Coronavirus Law & Policy: Changes to Mental Health Law (Scotland) You can download this Explainer as a PDF here. In response to Covid-19, the UK government introduced a range of temporary changes to health and care legislation via the Coronavirus Act 2020. The Coronavirus Act includes changes to health and care legislation in Scotland as well as England, Wales and Northern Ireland. Scottish Ministers gave their consent to these changes. The Scottish Government has the power to switch these changes on (and off again) when they consider it necessary and appropriate to do so (based on the situation in Scotland). The Coronavirus Act is time-limited for two years and will be subject to six monthly reviews. What is the Mental Health (Care and Treatment) (Scotland) Act? The Mental Health (Care and Treatment) (Scotland) Act came into force in 2005. It exists to ensure the protection of rights for people with mental disorders. The term mental disorder in the Act covers; mental illness, learning disability and personality disorder. The Act puts a duty on local councils to provide care and support services to people with mental disorders and they must do this in a way which uploads human rights. You can read more here. What changes have been made to the Mental Health (Care and Treatment) (Scotland) Act? The Coronavirus Act set out changes to various pieces of Scottish health and care legislation. Schedule 9 includes lots of changes to the Mental Health (Care and Treatment) (Scotland) Act. Some of these changes are listed below but you can find them all in more detail here. Emergency detention: Change to timescales: the period for which a patient may be detained in hospital has effect as if for “72 hours” changed to “120 hours”. Section 36(8)(b) Short term detention certificates: An approved medical practitioner may grant a short-term detention certificate in respect of a patient under section 44(1) without consulting a mental health officer if this would be impractical or cause delay. Community Treatment Orders: An application by a mental health officer under section 63 may be founded on a mental health report from a single approved medical practitioner if a second opinion would be impractical or cause delay. Nurses power to detain: Nurse’s power to detain pending medical examination has effect as if for “3 hours” changed to “6 hours”. Section 29(2). Administration of medicine: Medicine may be given to a patient without a certificate under Section 241 (1) if the patient’s responsible medical officer has requested a certificate from a designated medical practitioner but this has not happened yet – as long as the certificate has not been refused. It is crucial to state that the changes set out above have not been enacted by the Scottish Government. This means that all mental health practice should continue to comply with existing mental health legislation. Will these changes be switched on and how will this be decided in Scotland? It is up to Scottish Ministers to decide when (if ever) the changes set out in the Coronavirus Act should come into force in Scotland. Scottish Ministers have made it clear throughout the passage of the Coronavirus Act that decisions to activate the changes will be taken based on advice from the Chief Medical Officer, data on workforce pressures and advice from partner bodies. They say they will make the provisions, “available to professionals at a time when the safe running of the mental health system requires it.” The Scottish Government, Mental Health Directorate published an update on the Coronavirus Act 2020 as it relates to Scottish Mental Health legislation. The update makes three things clear: That until mental health provisions are switched on in Scotland, all practice should continue to comply with existing mental health legislation. If measures are commenced, existing laws and processes should be complied with as far as possible with the temporary amendments only being relied upon in situations of severe staff shortages where it would be impractical or cause delay. If measures are commenced it will be clearly communicated to all those affected. You can read this in detail here. What does this mean for people who have mental health issues? The impact of these changes (if enforced) will fall on people who are already in vulnerable situations. Any length of unnecessary detention could have a significant impact on the mental health of the individual involved. We must think about these changes not as a list of sweeping measures but on an individual by individual basis. What could any of these changes look like for a person with mental health issues in that already vulnerable situation of being detained. What does this mean for human rights in Scotland? The changes to the Mental Health (Care and Treatment) (Scotland) Act set out in the Coronavirus Act could have a potential impact on our fundamental human rights. Should these be switched on in Scotland, it is crucial that any changes made (to timescales for detention or safeguards around sign off and reporting for example) are applied compatibly with human rights law. Scotland through the UK ratification process are signed up to various United Nations and Council of Europe Human Rights Treaties. The European Convention on Human Rights (1950) and the Human Rights Act (1998) ensure that the public bodies must respect, protect and fulfil individual’s human rights even (or especially!) during crisis like Covid-19. Additionally, the Scotland Act (1998) ensures that Scottish Ministers cannot pass a law or do anything which is incompatible with human rights. Human rights law has not been relaxed or changed in any way by the Coronavirus Act. Which human rights are involved? The changes set out above if enforced without proper human rights knowledge and training could have an alarming impact on various rights set out in the Human Rights Act. The right not to be tortured or treated in an inhuman or degrading way (Article 3 of the HRA) For example, if a patient is detained for up to 120 hours without proper safeguards in place. Professionals should think about the duration of the detention and the mental and physical impact on the individual involved. This is an absolute human right and can therefore never be lawfully restricted. The right to liberty (Article 5 of the HRA) If a patient is detained for longer than necessary without the proper safeguards in place. Or if a patient is given medicine which restricts their movement without the proper sign off procedures in place. This is a non-absolute human right and can therefore only be restricted if is lawful, legitimate and proportionate. It would not be lawful if the legal safeguards were not being met, regardless of covid-19. The right to respect for private and family life and home and correspondence (Article 8 of the HRA) This covers autonomy. For example, if a person is detained or subject to treatment as a result of these legal changes but not supported to be involved in the decisions about their body and life. Article 8 also covers being able to maintain ordinary family relations as well as mental and physical wellbeing which could be impacted by these proposed changes. This is a non-absolute human right and can therefore only be restricted if the restriction is lawful, legitimate and proportionate. The right to be free from discrimination (Article 14 of the HRA) A person cannot have their rights restricted on the grounds of discriminatory attitudes to mental health. For example, using the changes to legislation to detain someone for longer than is necessary on the basis that the person’s current mental health may prevent them from being able to challenge their detention or demand safeguards are met. What happens now? The Scottish Government have said that if measures are commenced it will be clearly communicated to all those affected. We will keep an eye on this and provide updates and briefings as time passes. Where can I find more information? BIHR information: Our joint letter to MSP’s calling on rights not to be an afterthought The Scottish Governments response to mental health legislation changes BIHR’s Coronavirus and Human Rights Hub Local mental health information and support: Scottish Government - Mental Health Directorate Citizens Advice Scotland -Mental Health The Scottish Human Rights Commission -Mental Health and Human Rights PLEASE NOTE: BIHR Explainers are provided for information purposes. These resources do not constitute legal advice. The law may have changed from the date of writing.