5. Commissioner's Statutory Responsibilities
5.1 The Mental Health (Care & Treatment) (Scotland) Act 2003 Section 259 states that:
"Every person with a mental disorder shall have a right of access to independent advocacy; and accordingly it is the duty of-
(a) each local authority, in collaboration with the (or each) relevant Health Board; and
(b) each Health Board, in collaboration with the (or each) relevant local authority,
to secure the availability, to persons in its area who have a mental disorder, of independent advocacy services and to take appropriate steps to ensure that those persons have the opportunity of making use of those services."
5.2 The Code of Practice (Volume 1, Chapter 6, para 140) which supports the Act states:
"Where a patient has a degree of incapacity, or cannot for any reason clearly say whether or not they would like an independent advocate, an MHO/hospital managers/appropriate person should consider how an independent advocate may be involved…………The right of access to independent advocacy is for each patient and is not limited only to those who are best able to articulate their needs."
5.3 This right applies to everyone who has a mental disorder, and to all types of independent advocacy. The term mental disorder includes any person with a mental illness, a personality disorder or a learning disability. People with dementia and acquired brain injury are also covered by the Act. People do not have to have a medical diagnosis to access independent advocacy.
5.4 Commissioners thereby have a legal duty to ensure that everyone with a mental disorder in their NHS Board or Local Authority area can access independent advocacy. This duty applies to children and young people as well as adults. It also applies to people living in the community with a mental disorder who may be supported by a wide range of care providers in community settings and also prisoners and is not solely those who are detained under the Act's powers.
Stripped of pride and dignity
we've struggled for this day
The law to mandate patient power,
our right to have a say
A long time in the coming
Too soon to count the cost
of sanity held ransom
and the lives of friends we've lost
Tired of being overlooked
Sick of being mad
We're standing up for reason
and the rights we've never had
The power of lock and key
they've wielded, drugs and ECT,
must now be balanced
with the check of reciprocity
The principles enshrined in law
our welfare to protect,
and those to come who're subject to
the judgement of this Act
We've advocated wisely,
we're victors to the cause
We've stood up to insanity
and now WE'VE GOT A VOICE!
(Jo McFarlane, AWOL, 2013)
Email: Sandra Falconer, firstname.lastname@example.org
Phone: 0300 244 4000 – Central Enquiry Unit
The Scottish Government
St Andrew's House