Your rights
The Mental Welfare Commission puts individuals with a mental illness, learning disability, dementia or related condition at the heart of all we do, promoting their welfare and safeguarding their rights.
Find out more about your rights below.
Quick links to useful information
Advice line
Leaflets for individuals
This information might be particularly useful for people who are receiving care or treatment, in hospital or in the community, or for their carers and relatives.
Advance statements
Advance statements are a powerful way of ensuring that people with mental health problems are listened to, even when they are unwell. Even so, we guess that only a small number of people who are treated for mental ill health are aware of them.
Can I be forced to have treatment?
If you become unwell with a mental illness, you may need treatment. Sometimes, when people are unwell, they are unwilling or unable to give consent to treatment.
In some cases, you may be given treatment even if you do not want it. This is called compulsory treatment.
There are strict rules about when this can happen. The rules are different for different types of treatment and situations.
You can be given treatment without your consent in an emergency, if it is urgent.
In some cases, you may be detained in hospital, or 'sectioned'.
For some types of treatment, like electroconvulsive therapy (ECT) or artificial nutrition, there are special rules requiring a second opinion from a specially trained doctor: a designated medical practitioner (DMP). These treatments have safeguards.
If you need long-term treatment, you may be subject to a compulsory treatment order.
The law contains safeguards to protect your rights. For example, you have a right to appeal against being detained, and compulsory treatment orders must be approved by a tribunal.
You can also consider writing an advance statement, explaining the sort of treatment you would like to receive. This will be taken into account if you need treatment in future.
Physical force
Most people will understand that compulsory treatment means they do not have a choice. In some cases, it may be necessary to use physical force.
If you are in hospital for compulsory treatment:
- force can only be used if necessary.
If you are in your own home:
- force cannot be used to give you treatment.
If you are on a compulsory treatment order in the community:
- you can be taken to hospital and force can be used.
If you are unhappy about the use of force in your treatment, you can complain. Your named person or independent advocate can help you.
Leaflets for individuals
We produce service user and carer leaflets to explain our role, help people understand their rights, and to promote best practice in the use of mental health and incapacity law.
Being detained
If you become unwell with a mental illness, you may need treatment.
In some cases, if you refuse treatment, you may be detained under the Mental Health Act, or 'sectioned'. This means you will have to spend time in hospital, even if you do not want to.
There are three types of detention:
This allows a person to be held in hospital for up to 72 hours, while their condition is assessed. It can only take place when recommended by a doctor. Where possible, a mental health officer should also agree to it.
This allows a person to be detained for 28 days. It can only take place if recommended by a psychiatrist and a mental health officer.
This has to be approved by a tribunal. It allows treatment for six months initially, but could be extended for a further six months and after that, for a year at a time. It could be in hospital or in the community.
There are strict rules about when this can happen. The tribunal can only approve a compulsory treatment order if:
- you have a mental disorder.
- medical treatment is available which could stop your condition getting worse, or help treat some of your symptoms.
- there would be a significant risk to you, or others, if that treatment was not provided.
- your ability to make decisions about medical treatment is significantly impaired because you have a mental disorder.
The use of compulsory powers is necessary.
The law contains safeguards to protect your rights if you are detained. For example, you have the right to appeal against the detention, and to nominate a named person who will look after your interests.
If you or someone you know is affected by this, you may find it helpful to read this Scottish Government guide "A short introduction to the Mental Health Act". (This document has not yet been updated with changes to the Act in 2015)
Independent advocacy
Under the Mental Health (Care and Treatment) (Scotland) Act, people with learning disabilities and people with a mental illness have a right to independent advocacy.
You do not have to be in hospital or under any mental health act in order to get this right to independent advocacy.
This means that you should be able to have an independent advocate and/or join an advocacy group if you want to.
What is independent advocacy?
Independent advocacy helps you to make your voice stronger and to have as much control as possible over your life.
It is called independent because advocates and advocacy workers are separate from services. They do not work for hospitals, social work, or other services.
Why might I need independent advocacy?
Some people need support to speak up, to understand what is being said, and to make decisions. Many people find that when they feel ill or upset they are not as good at saying what they want and they need support to speak up.
When might I need independent advocacy?
There are some times when it is especially important for you to get advocacy support. These times may be when you are:
- In hospital
- Going to a Tribunal meeting
On an order which says that:
- you must stay in hospital
- you can only stay out of hospital on certain conditions
- you can be given treatment even if you do not want it
Your doctors, nurses, social workers, and mental health officers should make sure you know about independent advocacy, and help you get it.
Mental Health Tribunal
The Tribunal is an independent organisation set up to make decisions on the compulsory care and treatment of people with mental disorders in Scotland.
The Tribunal has a President and 300 members around Scotland.
If you have a Tribunal meeting there will be a group of three people - a doctor (psychiatrist), a lawyer, and another person with relevant skills and experience, e.g. a nurse, social worker, or someone with personal experience of mental illness, learning disability, dementia or related conditions.
A Tribunal meeting is often called a 'hearing'. The Tribunal must hear and read all the information about you and your case. They then decide what to do about your care and treatment.
What does the Tribunal do?
The main role of the Tribunal is to consider and determine applications for compulsory treatment orders (CTOs) under the 2003 Act. It also considers appeals against compulsory measures such as short-term detention certificates and CTOs. The Tribunal also reviews every CTO once it has been in place for two years and every two years after that.
How do I contact the Tribunal?
You can write or phone the Tribunal office. You can ask your named person, independent advocate, or solicitor to help you to do this.
Mental Health Tribunal for Scotland
1st Floor Bothwell House
Hamilton Business Park, Caird Park
HAMILTON ML3 0QA
Mental Health Professionals: 01698 390 000
Enquiries from patients, carers, general public: 0800 345 70 60 (Freephone)
website: www.mhtscot.gov.uk
Safeguarded treatments
Sometimes, when people are very unwell, they are unwilling or unable to agree to have treatment. In some cases, you may be forced to have treatment, in hospital or in the community.
If you are being treated under the Act, you can be given medications without your consent in the first two months of your treatment.
There are strict rules about when this can happen, which are in the Mental Health Act. The rules are different for different types of treatment and situations.
After two months, you can only continue to have medication if:
- you are capable of consenting and agree to take it, or
- your doctor contacts the Mental Welfare Commission to arrange a visit from a specially trained psychiatrist, or designated medical practitioner (DMP), and the DMP decides that you should have the treatment.
Some treatments require extra, special permissions, or safeguards
If you do not give your consent to them, these treatments cannot be given without a second opinion from a DMP. That applies right from the start of your treatment under the Mental Health Act.
Treatments with special safeguards from the start include:
- Artificial feeding
- Electroconvulsive therapy (ECT)
- Other treatments that act directly on your brain
- Medication where the purpose is to reduce sex drive.
If your doctor wants to use any of these treatments, they will contact the Mental Welfare Commission to arrange a visit from a DMP.
What is a designated medical practitioner (DMP)?
Designated medical practitioners (DMPs) are experienced psychiatrists. When you need the safeguard of a DMP, your doctor will contact us and we'll ask a DMP to see you.
The DMP who comes to see you will work in a different hospital to the one you are in.
We try to make sure that the DMP has experience of working with your condition, or specialist knowledge of the treatment that is being proposed. A DMP's duties are set out in the Act. They have experience as NHS consultants and are asked to undertake independent opinions for the Commission.
What does the DMP do?
Your own doctor will put forward a plan for treating you. The DMP's job is to decide whether the treatment the doctor has put in this plan is in line with the law and is in your best interests. The DMP can only give an opinion on the specific medical treatment. The DMP cannot give a second opinion on your diagnosis or general treatment. Before making a decision, the DMP will:
- talk to you and listen to your views about your treatment;
- assess your mental state;
- look at your case notes;
- pay particular attention to an advance statement if you've made one;
- consult others (including your named person) about your care, if practical.
Can I be forced to have treatment?
Sometimes, when people are unwell, they may need to have treatment, even if they don't want it. There are strict rules about when this can happen.