The Scottish MH Act has safeguards in place, to protect the rights of mental health service users, the main ones being the Mental Health Tribunal, named person, advocacy, advance statement, Mental Welfare Commission. In theory these pillars, along with the Principles of the Act, should ensure fair and just treatment for people in mental distress and under detention. In practice it depends on the safeguards having the power and place they are meant to have, in my opinion. Independent advocacy that is free from conflict of interest and supports freedom of speech, which may mean challenging statutory agencies. Advance statements that are recognised, and promoted, by psychiatric professionals. Named persons given their place, informed and included.
I provided advocacy for a male patient in a forensic ward 10 years ago. He had been transferred to the ward from prison and had narrowly missed being transferred to the State Hospital. The advocacy he wanted was help in writing letters to hospital professionals about his treatment, so that he had a voice despite being locked in. I believe the advocacy support helped him to be listened to, to be fairly treated and to eventually be discharged out into the community as an active citizen (he became a volunteer at the project I worked for).
Recent experience of trying to access advocacy for a relative in a locked ward was not so positive. There was no continuity of advocacy relationship, difficulties in accessing an advocate when needed, and a reluctance on the part of the advocacy project to challenge statutory provision. As a named person I was not kept informed or always included, by professionals. The advance statement had some power but was no defence against forced treatment, the result being that a more bulletproof statement has since been created. Time will tell if this has power. Again I want to believe that it is possible to be empowered even when locked up and receiving compulsory treatment. I use the word compulsory rather than forced. Ever the optimist.
Some of us by nature or circumstance are non-conformist, non-compliant and questioning of the status quo. I have found this to be a useful stance in normal society as it makes sense to have an inquiring and critical mind. But in the psychiatric system this independence of mind and non-compliance can be perceived as a lack of insight (anosognosia), proof of mental illness and a reason for compulsory treatment. In my experience. Professionals who didn't know me when in good mental health made decisions about me when in mental distress. Which resulted in detention, compulsion and paternalistic prognoses. Making the road to recovery a longer and more challenging one, than it might have been if I'd been listened to.
There is a list of approaches and alternatives, much of them from American sources, in the Scottish Government's Review of Literature Relating to Mental Health Legislation, Ch 10, Least Restrictive Alternative, one of the underlying principles of the new Act "... because of its relationship with two new provisions to the new Act that have generated considerable interest, namely, compulsory treatment in the community and advance statements.". Food for thought. Discussions about chemical and/or physical restraint, which is the least invasive, that willingness to take medication doesn't mean the patient isn't feeling coerced. In the summary it states "There has been a tendency to assume that LRA means treatment out-with an institutional setting, but a different approach would suggest that it means treatment in accord with a patient's wishes.". That's more like it. Person-centred treatment for mental distress. Preferably with alternatives that didn't involve compulsion or force.
There are proposed changes to the 2003 Mental Health Act Scotland, following the McManus Review Report and the government's response to the review. Relating to advance statements, advocacy, named persons, medical matters and tribunals. From reading the report and responses I can see attempts to increase the uptake of advance statements and the availability of advocacy. Also for more clarity on the named person role. I would like to see more power given to the patient/service user, requiring a releasing of power from the psychiatric professional/establishment. Ron Coleman, in Recovery: An Alien Concept? says "“... it is not the professionals’ role to give power to clients. Their role should be to renounce their power and influence over service users, and by doing so create the conditions in which service users can reclaim power for themselves." (p66).
In conclusion, mental health acts are laws under which people with mental disorders can be admitted, detained and treated against their will in hospital. The first principle in the MH Act Scotland 2003 is "Non-discrimination – People with mental disorder should, wherever possible, retain the same rights and entitlements as those with other health needs.". Therefore there is an expectation that people under compulsory treatment should have their rights respected. This respect also stretches to carers under the Scottish Act. The problems and tensions arise, in my opinion, when the expectations of the patients and their carers, regarding treatment, are not the same as the psychiatric professionals. When the only choices are chemical or physical restraint, neuroleptics, forced treatment and seclusion. Control rests with the system. Human rights become secondary. The mental health act safeguards seem powerless in the face of diagnoses, medication and detention (or labels, drugs and forced treatment).