The inclusion of learning disabilities and autism spectrum disorder in mental health legislation was raised by a number of witnesses and in written submissions to the committee. Autism Rights and Psychiatric Rights Scotland called for the removal of people with learning disabilities and ASD from mental health law.
Inclusion Scotland commented that people with learning disabilities are concerned that they could be subject to compulsory treatment as a result of their learning disability alone. The committee received powerful testimony from Steve Robertson of People First, who questioned the appropriateness of the way in which people with learning difficulties are considered under mental health legislation. He said:
“We honestly believe that the time has come for a new piece of legislation that is just about people with learning disabilities. We think that it is only right and fair that learning disability is properly defined as an intellectual impairment rather than a mental disorder. With that definition, we would want recognition that additional time to learn and support to understand things, together with easy-read documents and support to make some decisions, are what we need. We need those things to help us take part in our communities, rather than restrictions, detentions and efforts to keep us apart from the world that we want to live in.”—[Official Report, Health and Sport Committee, 11 November 2014; c 39-40.]
I recognise that the Government’s document “The keys to life”, which came on top of the iconic and groundbreaking document “The same as you?” produced under Labour in 2000, moves things on for learning disability. However, we should recognise that, in 1999, recommendation 2 from the Millan committee said:
“In due course, mental health and incapacity legislation should be consolidated into a single Act.”
In 2009—six years ago—the McManus commission said that there was a need to review the Adults with Incapacity (Scotland) Act 2000 along with the Mental Health (Care and Treatment) (Scotland) Act 2003.
Northern Ireland has already begun the process of aligning incapacity and mental health legislation. In discussing previous amendments, I have raised my concern about the difference between SIDMA—significantly impaired decision-making ability—and lack of capacity, which must be looked at again. The need for alignment was echoed by a raft of witnesses who called for a wholesale review of mental health and incapacity legislation for a further reason—because of new information on, and knowledge about, neurodevelopmental disorders.
I concur with the Mental Welfare Commission for Scotland, which said that while the 2003 act and the 2000 act
“for a time ... genuinely led the world”,—[Official Report, Health and Sport Committee, 30 September 2014; c 27.]
there is a need to start thinking about the next wave and particularly about supported decision making in future plans.
Such views apply not just to amendment 55 but to other amendments that I have lodged. By continuing to include learning disability in the definition of mental illness, we are harking back to a bygone era. The inclusion of learning disability as a mental illness goes to the heart of issues of capacity.
The journey that we have taken from the lunacy acts of the 19th century, when we had idiot schools, through the asylum movement, the growth of huge institutions such as the Royal Scottish National hospital, Gogarburn house and Lennox Castle hospital, the shift to the community—which happened in my professional lifetime and was an excellent move with transitional and double funding—to the groundbreaking “The same as you?” report in 2000 and “The keys to life” in 2013 must now or in the very near future be matched by and fully reflected in our laws.
Colleagues, the simple truth is that, although people with learning disabilities are much more likely to have mental illness than the one in four of the general population who will have it, learning disability is not in and of itself a mental illness, and to continue to include it in the definition is an infringement of the human rights of those with such disabilities. Of course they need protection in law, but not in a law that could remove their human rights. As the Government’s second response to the committee’s stage 1 report said, a review would not be simple, but that should not prevent us from immediately commencing one.
In April 2014, the Committee on the Rights of Persons with Disabilities made a general comment on article 12 of the Convention on the Rights of Persons with Disabilities. Paragraph 38 of that general comment states:
“forced treatment by psychiatric and other health and medical professionals … denies the legal capacity of a person to choose medical treatment and is therefore a violation of article 12 of the Convention.”
Learning disability is such a disability. Accordingly, it follows that states parties
“must abolish policies and legislative provisions that allow or perpetrate forced treatment”.
We cannot ignore the fact that there have been occasions when patients have been deprived of their right to refuse treatment although they did not lack capacity and when the treatment and what those who were in power considered to be in the patient’s best interests might not, in fact, have been in their best interests. If necessary, a speedy application to the court should occur when there is a dispute.
The Government said in its initial response to our stage 1 report that it was not considering removing learning disabilities or autism spectrum disorder from the 2003 act or having a wider review. Its more recent, fuller response to the report was much more accommodating but still said that such an approach would be difficult.
I believe that the minister is sympathetic. I ask him to make a firm commitment on the record to an early review and to discussing with other parties and stakeholders the chair, membership and remit for such a review in the near future. Amendment 56 goes further than my amendment 55 in specifying that such a review must occur within a year. For me, a year is too long but, nevertheless, I will support Jackie Baillie’s amendment 56 if my amendment is disagreed to or if I do not press it.
On 19 May, the General Assembly of the Church of Scotland approved a report prepared by its church and society council that includes a section on human rights and mental health. That report strongly urges the Government to undertake the wider review for which I call. It also urges that the review should consider the issues that are raised in that report, which include matters relating to legal capacity and consent to treatment.
I seek from the minister an unequivocal commitment to an early review with a full commission similar to the Millan committee to examine the relevant acts: the Criminal Procedure (Scotland) Act 1995, the Adults with Incapacity (Scotland) Act 2000, the Mental Health (Care and Treatment) (Scotland) Act 2003 and the Adult Support and Protection (Scotland) Act 2007.
I will listen carefully to the minister’s response before deciding whether to press my amendment, because I realise that it might remove protections in the 2003 act for individuals with learning difficulties or autism spectrum disorder. Nevertheless, it is an important amendment that requires debate.
I move amendment 55.