Scottish Mental Health Law Review

The Royal Society of Edinburgh (RSE), Scotland’s National Academy, welcomes the opportunity to respond to the Scottish Government’s Executive Team on the Scottish Mental Health and Incapacity Law Review. Our response was facilitated by a group consisting of RSE Fellows, Young Academy of Scotland (YAS) members, and representatives from leading Mental Health Organisations, Advocacy Groups, Legal Groups and Private Mental Health Practices. The group discussion aimed to provide expertise from varied perspectives in the mental health field to produce a well-rounded response to this consultation. The participants attending the Roundtable included those with expertise in mental health legislation, clinical psychology, healthcare, advocacy, and stakeholders from various organisations that specialise in Alzheimer’s disease, eating disorders, autism and learning disabilities, and a generic mental health organisation.


The group welcomed the proposals on the principles and purposes set out in the Scottish Mental Health Law Review, commending its breadth and ambition. It was agreed that this legislation is a move in the right direction, where the law has the potential to help empower people to make as many decisions as possible, fostering greater protection of service users’ rights.

However, whilst the changes to the laws are welcomed, it was recommended that there should be more focus on how they are implemented in practice. For example, issues that have arisen in the execution of ‘supported decision making’ have been cited as the result of poor practice and not necessarily inadequate legal frameworks. It has been repeatedly emphasised that, for the law to be effective, resources and appropriate staff training must be in place to ensure that the law is being adhered to in the delivery of support services.

The group suggested that the application of any new principles should be flexible to suit the needs of the individuals and the various settings in which they are supported. It was noted that mental health illness is complex, and individuals can have multiple and diverse needs, which makes the application of laws that protect their rights challenging.

The group was pleased to see the proposals on Human Rights Enablement and agreed with the framework set out in the consultation. The participants agreed that an accurate and comprehensive understanding of people’s situations, needs and values will aid in the protection of their rights. However, concerns were raised as to whether the Ministry of Justice’s proposals to repeal the Human Rights Act and replace it with a Bill of Rights has the potential to conflict with the proposals set out in this Law Review.

The development of a robust accountability framework will be crucial for a human rights-based approach to be successfully implemented. People must understand their rights and have a clear route to seek justice when their rights have been violated.

The participants fully support mandatory training for both paid and unpaid carers. It was noted that this would not only be helpful for carers to improve their practice but could foster an awareness of when they require mental health support themselves.

It was suggested that, in order to foster a more effective and meaningful complaints process, it needs to be more accessible, transparent, and independent for people who wish to challenge decisions. It was also recommended that more work should be done to understand the complainant’s lived experience and perspective in order to design a more effective process.

Download this Advice Paper