A qualitative study examining the Scottish legislative framework dealing with mental health, incapacity and adults at risk of harm, from the perspective of professional staff undertaking related social work functions

  • Iain Fisk

    Student thesis: Doctoral ThesisDoctor of Philosophy


    This qualitative study examines the Scottish legal framework, which deals with incapacity, mental health and adult protection from the perspective of professional staff exercising related social work functions. Social work departments have a lead role in respect of the three main Acts. As a social worker employed in one of these authorities, I had identified a gap in research, reflecting the views of this group of staff. I was aware of increasing concerns about the legislation and wide-spread variation in its use across Scotland. Furthermore, court cases at Scottish and international levels have increasingly challenged legal authority to take decisions or limit the personal freedom of individuals experiencing mental disorder or who lack mental capacity.

    Literature reviewed for the purpose of this study examines the origins of diagnosis and treatment and developments in mental health law in Scotland and western society. Literature and research relating to Scotland is limited and very little reflects the views of those exercising social work functions under this framework.

    The primary data for this study was collected through eight focus groups across three local authority areas involving 48 participants. These included eleven nurses of whom seven were employed by NHS, the remaining 37 were social workers. All were engaged in assessing and delivering community care services. Each group answered a set of open questions and specific questions relating to three case studies. These questions were designed to better understand the credibility of the law from the perspective of participants and how they interpreted the law. The data was analysed using a thematic approach.

    In terms of credibility, participants broadly supported the intentions of the law, believing it had improved user and carer involvement and increased respect for human rights. Many believed the law reached out to hidden groups and improved inter-agency cooperation. Concerns related to bureaucratic processes, inappropriate and inconsistent use of law, poor risk management, lack of resources to support implementation and increased political and managerial interference. Ethical concerns were raised in relation to use of investigative powers, attitudes to those misusing substances and increasing blame culture. Differing interpretations of law were evident across the groups and, by their account, in other professional groupings. Areas of difference included assessing capacity, diagnosing mental disorder, thresholds for intervention, terminology and responses to deprivation of liberty.

    Recommendations arising from this thesis identify a need for further research into understanding others’ perspectives on this framework, inappropriate use of civil and criminal procedures and identifying ideal service structures to support the legislation. Practice recommendations call for multi-agency training utilising an integrated approach to the legislative framework, review of roles relating to this framework and also entreats managers and government bodies to reflect on why participants might perceive an increase in blame culture. Finally, in terms of legal reform legislators should consider widening the range of professionals who can assess capacity and review the principles across all three Acts. Consideration should also be given, as to how to better involve groups of professionals such as these, who work with the law on a day-to-day basis, in legal reform.
    Date of Award2019
    Original languageEnglish
    SupervisorMurray Simpson (Supervisor), Ian Barron (Supervisor), Geoffrey Wallace (Supervisor) & Jane Fenton (Supervisor)

    Cite this