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Law and Rights
Law and Rights
In Scotland, there are several pieces of law that ensure people with mental illness, learning disabilities, dementia and related conditions get appropriate treatment and have their rights respected.
The Mental Welfare Commission has duties under the Mental Health (Care & Treatment) (Scotland) Act 2003 and the Adults with Incapacity (Scotland) Act 2000. We monitor the acts to see how the law is being used. We also help professionals, people who receive care and treatment and carers to understand the law and put it into practice.
We're not solicitors, so we can't give legal advice. But we can help by looking at how best to apply legal and ethical principles to individuals' care and treatment.
Mental Health Act
The Mental Health (Care and Treatment) (Scotland) Act 2003 applies to people who have a "mental disorder" - this is defined under the Act and includes any mental illness, personality disorder or learning disability (as per s328).
Most of the time, when people become unwell, they understand that they need treatment. But sometimes people are unable, or unwilling, to agree to treatment. The Mental Health Act sets out:
- When and how people can be treated if they have a mental disorder.
- When people can be treated or taken into hospital against their will.
- What a person's rights are, and the safeguards which ensure that these rights are protected.
Adults with Incapacity Act
The Adults with Incapacity (Scotland) Act 2000 provides a framework for safeguarding the welfare and managing the finances of adults (people aged 16 or over) who lack capacity due to mental illness, learning disability, dementia or a related condition, or an inability to communicate.
The Mental Welfare Commission has supervisory, investigative, and advisory duties in relation to welfare guardianship and welfare powers of attorney under this Act.
Criminal Procedure Act
The Criminal Procedure Act includes provisions for people who are accused of a criminal act and who may have a mental disorder.
Adult Support and Protection Act
Some people may find it more difficult to stop harm happening to them. The Act calls people in this situation 'adults at risk'.
MHA and AWI forms
You can download and print some of the forms relating to the Mental Health Act and Adults with Incapacity Act here.
Please note that only the following forms can be completed and saved electronically:
ADV1, ADM2, ADM3, Appendix A, Appendix E, RES1, RES2, RES3 and 3a, RES4, RES5 and RES6
You can also download, complete online, and print forms from the Scottish Government website at Mental Health Act forms, and Adults with Incapacity Act forms.
Monitoring the Acts
Every year we produce an independent overview of the operation of the Mental Health (Care & Treatment) (Scotland) Act 2003 and the Adults with Incapacity (Scotland) Act 2000.
Rights in Mind
This pathway is designed to help staff in mental health services ensure that patients have their human rights respected at key points in their treatment.
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.
If you become unwell with a mental illness, you may need treatment. Sometimes, when people are very unwell, they are unable or unwilling to consent to treatment. In some cases, you may be given treatment even if you don't want it.