Date lodged: 21 December 2016
To ask the Scottish Government whether it will consider repealing section 242 of the Mental Health (Care and Treatment) (Scotland) Act 2003 on the grounds that it may deprive an adult with capacity the right to refuse treatment.
Answered by: Maureen Watt 12 January 2017
The Scottish Government is not currently considering repealing section 242 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (‘the 2003 Act’).
Section 242 sets out the circumstances and safeguards for the giving of certain treatment to a person where the giving of medical treatment is authorised by virtue of other sections of the 2003 Act or by the Criminal Procedure (Scotland) Act 1995. The section sets out the giving of relevant treatment both to persons who are capable of consenting (including where the person consents) and those who are not capable of consenting.
Whilst not the only criterion, significant impairment of decision-making ability because of mental disorder (as defined by the 2003 Act) is taken into account when treatment is authorised by the 2003 Act. Significantly-impaired decision making ability is used rather than incapacity as it was recommended as one of the criteria in Chapter 2 of the 2001 report by the Millan Committee which forms the basis of the 2003 Act.
Alongside the requirements and safeguards in section 242 for the giving of treatment, any function carried out under the 2003 Act must be in line with the principles set out in section 1, including the present and past wishes and feelings of the patient; the importance of the patient participating as fully as possible; and the importance of providing maximum benefit to the patient.
The Scottish Government is committed to ensuring Scotland's mental health law continues to build on the 2003 Act. The recent Mental Health (Scotland) Act 2015 was the outcome of the McManus review and strengthened measures in the Mental Health (Care and Treatment)(Scotland) Act 2003 that promote support for decision making. The 2015 Act is currently being implemented and we are looking at ways to further promote rights-based practice under the 2003 Act in areas such as treatment, including when updating the statutory guidance in the Code of Practice.
An upcoming review which will consider whether the provisions in the 2003 Act fulfil the needs of people with learning disabilities and autism, which may include the giving of treatment under the Act to persons with learning disabilities and autism.