Mental Health (care and treatment) (Scotland) Act 2003

Key legislation-principles and provisions

The Mental Health (Care and Treatment) (Scotland) Act 2003 places a range of duties upon and gives a range of powers to organisations involved in the provision of mental health services and defines clear procedures for compulsory treatment and/or the detention of persons with a mental disorder. It introduced new mechanisms such as the possibility of “advance statements” which enable people to set out how they wish to be treated for a mental disorder when they are unable to make decisions.

The Act sets out a series of principles which say that whenever a professional is involved in making a care and treatment decision he or she should:

  • take the past and present wishes of the individual into account

  • make sure the person gets the information and support he or she needs to take part in decisions

  • take the views of the person's carer, named person, guardian or welfare attorney into account

  • look at the full range of care and treatment options that a person may need

  • give treatment that provides maximum benefit to the individual

  • take account of the person's background, beliefs and abilities

  • make sure that any restrictions on an individual's freedom should be the minimum necessary in the circumstances

  • make sure that individuals receiving care and treatment under the Act are not treated less favourably than other people

  • take the needs of carers into account and ensure that carers get the information and support they need

  • take special care of the individual’s welfare if the individual is under 18 years of age when receiving care and treatment

  • ensure safeguards are in place to protect that person's rights

Connection to human rights

Which key Articles of the Convention?

Article 5 - the right to liberty and security of person. This Act provides for the necessary “procedure prescribed by law” under which a person can be detained.

Article 8 – the right to respect for private and family life, home and correspondence. The compulsory treatment of an individual will automatically engage aspects of an individual’s physical and psychological integrity and autonomy that are protected by Article 8.

Article 3 - prohibition of torture and inhuman or degrading treatment. Without the necessary safeguards afforded by the Act detention or treatment could amount to ill treatment.

Article 9 - the right to freedom of thought, conscience and religion. Any care and treatment decision must take account of the person's background, beliefs and abilities.

Article 14 - the right to non–discrimination. Any care and treatment decision must make sure that individuals receiving care and treatment under the Act are not treated less favourably than other people.

The principle of proportionality which applies to Article 8 of the Convention corresponds with the principle of the Act that any restrictions on an individual's freedom should be the minimum necessary in the circumstances.