Meaningful Participation or Tokenism? Individual and Advocacy Experiences of the Mental Health Tribunal in Scotland

The Mental Health (Care and Treatment) (Scotland) Act 2003 has earned Scotland an international reputation for progressive mental health policy. It diverges from other jurisdictions through its focus on rights and safeguards, as opposed to public protection, and is underpinned by key principles including participation, benefit, and reciprocity. Despite this, the Mental Welfare Commission, the regulatory body in Scotland, has raised concerns that individuals are not able to effectively claim their rights, suggesting that the legislation is incompatible with the United Nations Convention on the Rights of Persons with Disabilities.

This paper draws on doctoral research into experiences of community based compulsory treatment orders in Scotland. Based on qualitative, semi-structured interviews with mental health advocates and individuals subject to compulsory treatment, it examines the extent to which the mental health tribunal facilitates meaningful participation in legal decision making. Whilst individuals had the opportunity to share their views during tribunal proceedings, this was largely experienced as tokenistic, with informants feeling disempowered by the process. A lack of a successful outcome further reinforced feelings of powerlessness and caused some participants to disengage from the process altogether. This paper argues that the subordinated position of individuals subject to compulsory treatment, by virtue of their diagnosis, in comparison to the ‘expert’ status afforded to medical professionals, undermines the participatory potential of the mental health tribunal