Chamber and committees

W. Hunter Watson submission of 1 October 2021

PE1878/B - Investigate prosecutions under the Mental Health (Care and Treatment) (Scotland) Act 2003

It is my hope that the Petitions Committee will agree to investigate why there have been so few prosecutions under sections 315 and 318 of the 2003 Mental Health Act as called for in petition PE1878. Any investigation should take account of the fact that the number of charges reported to the COPFS during the relevant period was much lower than would reasonably be expected given that:

• thousands of persons are subjected to compulsory treatment each year; and
• some of those who work in mental hospitals ill-treat patients.

From the Government submission PE1878/A, it can be deduced that during the 12 year period 2007-08 to 2019-20 there were on average only six persons per year charged with a section 315 offence. Evidence that some of those who work in mental hospitals ill-treat patients is contained in three BBC documentaries, one of which was about Winterbourne View. This was a hospital which catered for people with learning disabilities. In spite of complaints made to it by a nurse, who had previously complained to the management, the Care Quality Commission failed to investigate claims that patients were being abused. The abuse might have continued indefinitely had that nurse not approached the BBC which was able to arrange that someone did undercover filming. That provided the basis for the BBC documentary about that hospital. The investigation which resulted from that documentary led to six members of staff being jailed, five being given suspended sentences and the hospital being closed. Regrettably, I believe that evidence exists to suggest that the Mental Welfare Commission, like the Care Quality Commission, does not always investigate complaints made about the ill-treatment of mental health patients.

It should also be noted that there seems to be a reluctance on the part of the police to properly investigate complaints about the ill-treatment of persons detained in mental hospitals. I am aware of several such cases; one concerned a complaint made about the allegedly excessive use of physical restraint used on a young man who is detained in the learning disability ward in the State Hospital. On one occasion, that restraint resulted in one of his arms being so badly broken that the subsequent treatment involved the use of 45 staples and two metal plates. His mother informed me that she complained to Police Scotland, but that it declined to investigate on the grounds that the State Hospital has its own investigatory procedures. I phoned Police Scotland in order to give it an opportunity to comment. The person who answered my call told me that, since I could not give her the incident number, she could not check. However, I was assured that the police would have done what was necessary “according to the letter of the law”! I was given no cause to disbelieve the mother’s claim that there had been no proper investigation by Police Scotland into the circumstances that had led to her son having had his arm so badly broken.

The provisions of the European Convention of Human Rights (ECHR) specifies rights and freedoms to which everyone in Scotland is entitled. Of these the two most basic are set out in Articles 2 and 3 ECHR. Article 3 specifies that no one shall be subjected to inhuman or degrading treatment, i.e. to ill-treatment. Article 2 specifies that everyone’s right to life shall be protected by law. Further, section 3.18 of the Guide to the Human Rights Act states that there is an obligation to investigate if it is alleged that someone has died through the negligence or omission of a state body such as a hospital. It should be noted that there are not always careful investigations of deaths that occur in mental hospitals: for confirmation, study the 2015 BBC report that an NHS trust failed to investigate hundreds of deaths of mental health and learning-disability patients for which it had a responsibility. Perhaps some people wrongly suppose that the rights of those with a mental illness or a learning disability are less important than the rights of people without disabilities.

When considering this petition, account should be taken of the UN Convention on the Rights of Persons with Disabilities. In Article 12.4 it is stated that “States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law”: the low number of prosecutions of those who are implementing the Mental Health Act might imply that sections 315 and 318 of the Act contribute little to the effective safeguards required by this Convention. Information about this matter could be of interest to those who are currently reviewing Scots Mental Health Law since that law clearly lacks effective safeguards.