Mental Welfare Commission publishes two reports for consideration by the Scottish Mental Health Law Review

Advance statements

In the first of two reports published today by the Mental Welfare Commission, new analysis shows very low use of advance statements by people who are detained for treatment and who are visited by doctors appointed by the Commission.

An advance statement is written by a person when they are well, setting out the care and treatment they would prefer or would dislike should they become mentally unwell again in the future. A person’s advance statement should be regarded by their psychiatrist, the designated medical practitioner, and the Mental Health tribunal for Scotland. 

While advance statements were introduced in the 2003 Mental Health Act as important safeguards for individuals, the Commission’s new analysis shows that only 6.6% of people being detained for treatment under the Act over a three and a half year period (to December 2020) had written an advance statement.

The report published today analyses the data and makes recommendations to health boards to improve uptake of advance statements. It also make suggestions for the Scottish Mental Health Law Review to consider as part of its current work.

Significantly impaired decision-making ability

The second report published today by the Commission is a research paper focusing on one of the criteria – significantly impaired decision making ability (SIDMA) – used when doctors consider that a person requires compulsory treatment.

Significantly impaired decision-making ability is a concept unique to Scottish law. It was also introduced in 2003 Act as part of efforts to reduce discrimination and incorporate greater respect for patient autonomy. 

Today’s research paper finds poor practice in recording and describing the presence of significantly impaired decision-making ability in the individual concerned in almost every one of 100 compulsory treatment forms examined. While it is not a legal requirement to record that detail, the Commission believes it is important to do so. 

Again, the Commission asks the Scottish Mental Health Law Review team to consider these findings and make changes for the future.

Dr Arun Chopra, medical director at the Mental Welfare Commission, said:

“We undertook this research and are publishing these reports today because we believe they will be of interest to the Scottish Mental Health Law Review as it develops its thinking on the future of mental health laws in this country.
“Both of the subjects we explore – advance statements, and the concept of significantly impaired decision-making ability – were introduced to law in the 2003 Mental Health Act. 
“Both sought to bring about more consideration of individuals’ rights, but today’s research shows that while the concepts were and are good, the practice has not achieved what it set out to do.
“We hope that by having this factual analysis the Scottish Mental Health Law Review team will be more able to take forward ideas for change.
“We would be happy to attend a session of the relevant group to discuss the findings and legislative ideas further.”

Copies of the research documents are available here: