Aim: To provide a basic understanding of the legal framework in Scotland with regard to securing benefits for and protecting the rights of individuals with a mental disorder.

The primary objective of the Mental Health (Care & Treatment)(Scotland) Act 2003 is to ensure that individuals with a mental disorder receive effective care and treatment. When a brain injured person develops a psychiatric disorder, they may understand that they need treatment. However, sometimes it is the case that the brain injured person is unwilling or unable 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 people’s rights are, and the safeguards which ensure that these rights are protected.

The Mental Health Tribunal for Scotland is an independent organisation set up to make decisions on the compulsory care and treatment of patients with mental disorder. It was established for the new Mental Health (Care & Treatment) (Scotland) Act 2003.

The Mental Welfare Commission for Scotland has a duty to protect the rights of patients who are detained under the Mental Health Act. It aims to promote best practice in the use of this legislation.

Legal Definition of Mental Disorder under the Mental Health Act:
“any
a) mental illness
b) personality disorder
c) learning disability
However caused or manifested.”

 

Acquired Brain Injury (ABI) is considered to be in the ‘mental illness’ category and is recognised as a mental disorder for the purpose of the Mental Health Act . The other categories (i.e. personality disorder and learning disability) are considered to have been present from birth.

For further information about brain injury and the use of mental health legislation, please refer to the following links:

Acquired Brain Injury and the Mental Health (Care & Treatment)(Scotland) Act 2003

Guiding Principles of the Mental Health (Care & Treatment)(Scotland) Act 2003

The Mental Health (Care & Treatment)(Scotland) Act 2003: Roles and Responsibilities

Detention under the Mental Health (Care and Treatment)(Scotland) Act 2003 :

For further information on the Mental Health (Care and Treatment)(Scotland) Act 2003 please also refer to the following websites:

Mental Health (Care & Treatment) (Scotland) Act 2003

Mental Health (Care & Treatment) (Scotland) Act 2003: Code of Practice
Mental Welfare Commission – Mental Health (Care & Treatment) (Scotland) Act 2003
The New Mental Health Act: An Easy Read Guide