Your Rights

Our mental health services are always keen to work in partnership with our service users and carers.

We have found that working together is the best way to gain improvement and overall well-being.

This section provides information about your rights relating to mental health, the Patients Rights Act, Advocacy information and also the Mental Health Act in Scotland and how it relates to you and your care. The Mental Welfare Commission have information concerning your rights called Rights In Mind.

Your rights are always important within mental health treatment. However, there may be circumstances when your ability to make a decision about your care is impaired or you require treatment with which you do not necessarily agree. Further to the Patients Rights Act for all in Scotland treated by the NHS, The Mental Health Act (Scotland) has a number of principles for the care provided by Mental Health services as well as safeguards to protect patients’ wishes.

Important Concepts

These concepts are important because they are key to the decisions mental health services will make when deciding how best to respond to your needs.

Mental Capacity

In Scots law, adults are presumed to be capable of making decisions and manage their care. While having a mental disorder, an adult is still assumed to have capacity unless they are unable to meet one or more of the tests of the law. These being unable to: understand information regarding decisions; or retain information to make a decision; or weigh information to make a decision; or communicate decisions. Mental capacity can be important in the treatment of those with dementia or learning disability.*

With respect to the Mental Health Act, decision-making capacity regarding treatment can be impaired as a consequence of a mental disorder.

Further information about Mental Capacity is available

Management of Risk

At every consultation, there will be an assessment and consideration of risk and Mental Health services have a duty to ensure your safety, especially when there is an impairment of mental capacity. For most, risk can be managed in collaboration with Mental Health professionals, but significant risk is also one of the guiding criteria in the use of the Mental Health Act.

Those most at risk usually pose harm or vulnerability to themselves, but Mental Health professionals must also take into consideration risks to others.

Further information about Management of Risk is available 

Supported Decision Making

This is when a person receives support to enable them to understand information and to express their will. In the context of mental health treatment, this support is often received when under the compulsory powers of the mental health act, e.g. advocacy support.

Substitute Decision Making

This is when an external person is appointed to act in the best interest of someone else. These are commonly Guardians or those with Power of Attorney.

*The test to be applied is different in Scots law S1(6) AWISA

  • “adult” means a person who has attained the age of 16 years;
  • “incapable” means incapable of—

(a) acting; or

(b) making decisions; or

(c) communicating decisions; or

(d) understanding decisions; or

(e) retaining the memory of decisions, as mentioned in any provision of this Act, by reason of mental disorder or of inability to communicate because of physical disability; but a person shall not fall within this definition by reason only of a lack or deficiency in a faculty of communication if that lack or deficiency can be made good by human or mechanical aid (whether of an interpretative nature or otherwise); and

  • “incapacity” shall be construed accordingly