Date lodged: 10 October 2018
To ask the Scottish Government whether, under the Mental Health (Care and Treatment) (Scotland) Act 2003, it is mandatory for doctors, nurses, social workers and mental health officers to make people with learning disabilities and those with a mental illness aware of their right to independent advocacy and how to access it.
Answered by: Clare Haughey 31 October 2018
Section 328(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003 Act defines mental disorder as mental illness, personality disorder or learning disability however caused or manifested.
Section 259 of the 2003 Act places a duty on Local Authorities and Health Boards to secure the availability, to every person in its area who has a mental disorder, of independent advocacy services and to take appropriate steps to ensure that those persons have the opportunity of making use of those services.
There are additional specific requirements in respect of patients who are subject to compulsory powers under the 2003 Act. Section 260 of the 2003 Act places a requirement on the managers of the hospital in which the patient is to be detained to take all reasonable steps to ensure that, at various stages throughout the operation of compulsory measures, patients are aware of, and understand their rights to independent advocacy. Section 260 also places a requirement on managers to provide the patient, together with any named person, appropriate material to aid their understanding of these services and provides that managers take appropriate steps to ensure that the patient has the opportunity of making use of such advocacy services.
However for some orders under the 2003 Act, e.g. Short Term Detentiton Certificates, Compulsory Treatment Orders etc there is a specific duty placed on mental health officers to inform the patient about the availability of independent advocacy and to take appropriate steps to ensure that the patient has an opportunity of making use of those services.