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WHAT DO WE WANT?

All we want is a day when:

People are offered the full array of services
in adequate duration, intensity, and quality
by people who believe they can achieve full recovery.

Provide accurate information and let them choose. (And, change their mind.)

The Bill enshrines in law the right to seek treatment and that treatment to lay out ALL appropriate treatment options that the COUNTRY has at its disposal.
If that care plan was breached for no apparent reason, without consent, or if a treatment option was refused (with written reasons why) then the person can seek advice to raise a judicial challenge.
Scottish Government states: “We would argue people already have rights to health care that meets their needs”
There are no legal obligations beyond the general duties of Secretary of State and the Scottish Ministers outlined in Sections 1 & 1A of the National Health Service (Scotland) Act 1978 and Section 1 of Public Health (Scotland) Act 2008 covering treatment of choice.
There is not a level playing field across the country in terms of treatment choice.
The Scottish Government approach elsewhere, such as the UNCRC rights of child bill, is completely different
- The Bill will deliver the highest protection possible for children’s rights across Scotland within the powers of this Parliament and ensure that a rights-respecting approach is at the heart of our recovery from the pandemic.
In Scotland, child rights are already broad and all-encompassing – yet, new Bills are being brought in, and the same can not be said for the recovery community.
The Right To Recovery Bill takes existing legislation and pushes it further by making law the right to seek treatment and that treatment to lay out ALL appropriate treatment options that the COUNTRY has at its disposal.

The Right to Recovery Bill enshrines in law the right to seek treatment, and that treatment to lay out ALL appropriate treatment options that the COUNTRY has at its disposal. It would then be down to the person seeking treatment, and their allocated worker to form a care plan. If that care plan was breached for no apparent reason, without consent, or if a treatment option was refused (with written reasons why) then the person can seek advice to raise a judicial challenge – similar to homeless applicants refused homeless accommodation under s29 of the Housing (Scotland) Act – for example.

Recently, the Scottish Government stated: “we would argue people already have rights to health care that meets their needs, and what we need to do is ensure people [have] rights to good health, and support and treatment, that is implemented. It is worth noting that there isn’t any legal obligation beyond the general duties of Secretary of State and the Scottish Ministers outlined in Sections 1 & 1A of the National Health Service (Scotland) Act 1978 and Section 1 of Public Health (Scotland) Act 2008 covering treatment of choice. Nor does this bring equity or a level playing field across the country, so a “postcode lottery” still applies, never mind treatment of choice.

To look into Scot Gov’s approach elsewhere, on UNCRC rights of child bill, John Swinney said: “The Bill will deliver the highest protection possible for children’s rights across Scotland within the powers of this Parliament and ensure that a rights-respecting approach is at the heart of our recovery from the pandemic… But it does not represent the end of the journey in making children’s rights real. It is now incumbent upon us all to ensure the Bill’s ambitions are translated into real-life improvements which transform the lives and life chances of our children and young people.”

As we all know, this is not the same for people with addiction issues and their families. As there are no pieces of legislation that allows it. We keep hearing about Patients Rights Act 2011 as an example. Well section 20 of that Act basically states no one will be held accountable if that Act isn’t applied. So, in summary, the Government’s approach for children: “the highest protection possible” with the “we already have some laws’ ‘ for those seeking treatment is not comparable. We are not saying for a minute we shouldn’t have these for children – of course we should 100%. So we are keen to hear what these “rights” are that already exist, and if an existing “right” can’t be effectively implemented through the legal process, how much of a right is it?

If an existing “right” can’t be effectively implement through the legal process, how much of a right is it?

The right to recovery bill would ensure in law the right to seek treatment and that treatment to lay out ALL appropriate treatments options that the COUNTRY has at its disposal.

Further Information

1. The general principles of the Bill are:
  1. Any individual seeking addiction and/or substance misuse treatment is able to quickly access their
    preferred treatment option, unless a medical professional deems it would be harmful to the
    individual.
  2. No individual shall be denied access to their preferred addiction and/or substance misuse
    treatment option, unless a medical professional deems it would be harmful to the individual.
  3. Should an individual request an addiction and/or substance misuse treatment option and be
    refused immediate access to that treatment, a medical professional will be required to provide a
    written explanation detailing the grounds of refusal within 24 hours.
2. The Bill would seek to provide a statutory right to addiction and recovery treatment services including, but not limited to, the following:
  1. Short-term residential rehabilitation.
  2. Long-term residential rehabilitation.
  3. Community-based rehabilitation.
  4. Residential detoxification.
  5. Community-based detoxification.
  6. Stabilisation services.
  7. Substitute prescribing services.
  8. Any other forms of treatment as a health professional may deem appropriate, in line with guidance from the Scottish Ministers.
3. The Bill would seek to prevent individuals seeking drug and alcohol treatment services from being refused access for reasons including, but not limited to, the following:
  1. A medical history of substance misuse.
  2. A criminal history involving substance misuse.
  3. The outcome of a mental health assessment.
  4. The individual currently being in receipt of substitute prescribing services, regardless of the volume of prescription.
  5. The individual currently still undertaking alcohol and/or drug misuse.

Implementation

1. Section 1 of The National Health Service (Scotland) Act 1978 places a general duty on the Scottish
  Ministers to continue to promote a free, comprehensive and integrated health service to secure:
  1. improvement in the physical and mental health of the people of Scotland and
  2. the prevention, diagnosis and treatment of illness.

Section 1A(1) of the Act permits the Scottish Ministers to do anything they consider is likely to
assist in the duty to promote the improvement of the physical and mental health of the people
of Scotland. 1A(2) permits Scottish Ministers to do anything which they consider is likely to assist in
discharging that duty including, in particular:

1. 1. giving financial assistance to any person,
  2. entering into arrangements or agreements with any person,
  3. co-operating with, or facilitating or co-ordinating the activities of, any person.

These provisions contain what are called “target duties”. These duties are expressed at a high
level of generality, with an aim only to secure the provision of public services.
We propose an insert of a new section to the 1978 Act to require the Scottish Ministers to
enshrine the rights of people with substance misuse issues and to transfer these rights from a
general duty to a statutory duty.

Right to Recovery (Scotland) Bill Proposal | June 2021 | 3

1. In performing the duty under the new section, the Scottish Ministers will be required to introduce
  a scheme to enable a person access to an individual holistic “care plan” in line with the “Orange
  Book – Drug misuse and Dependence: UK guidelines on clinical management”. This will be a “plan
  agreed with, and offered to, an individual to treat that person’s addiction issues”.
  This should include the options of residential or community-based detoxification, stabilisation
  services, residential and community-based rehabilitation, substitute prescribing (of choice) and such other forms of treatment as the Scottish Ministers may deem appropriate.

A plan may also include support, aftercare or throughcare measures including
housing/accommodation, employability support, training, community-based support, voluntary work experience and any other psychosocial support to enable someone to fulfil the desired out come discussed in their plan.

This plan should also include services for the children and families of the person. This should
ensure that parental rights are protected when someone seeks treatment and ensure that the
family remain as a unit and that at no time should a person fear losing their family at a time of need.
That the Scottish Ministers make regulations to provide a person with a right to be assessed for a
care plan within a reasonable period of approaching the relevant services and asking for
assistance. The person will only have services offered and provided under a care plan if they choose this and are eligible for that treatment. Scottish Ministers must make provision for the timeframe under which particular care plans must be implemented. This should also require the Scottish Ministers to set out which professionals can carry out a care plan assessment and what
their role will be during that process.
Additional to the changes in legislation it should be required that the Scottish Ministers must
provide a Code of Guidance of Drug Treatment in Scotland, following the guidance and
recommendations in the UK guidelines on clinical management, giving guidance to any person
doing a care plan. Anyone carrying out these plans and assessments must adhere to the
Code and in terms of the law would be expected to follow the guidance unless there is a reason
not to (residential rehabilitation waiting times or other practical reasons for example). The Code
should be available to be reviewed and amended when the occasions is required.
That the Scottish Ministers commission an independent regulatory body to monitor the
performance of the duties and guidance, to ensure that all partners, statutory and third sector are
held equally accountable.

Myth Busting The Bill

Is the Bill is against Safe Consumption Rooms?

No, it’s not against one thing over the other. Such a claim would be as absurd
as stating it’s against Hospitals or
Doctor’s Surgeries.
The Bill is a proposed amendment to
the current NHS (Scotland) Act and so
would include all agreed treatment-
based interventions, leaving room for
future treatment options to be added in
future. The proposed Bill would allow
anyone attending these services help
when they ask for it.

What if Safe Consumption Rooms aren’t classed as a treatment option?

In future, if SCR’s are not classed
as a treatment option, for whatever
reason, then a further Bill can be
proposed to allow such
consumption facilities and the
current proposed Bill does not
affect this in any way
shape or form as it would be a
separate piece of legislation.

Is the proposed Bill is about abstinence over harm reduction?

The term “recovery” in the Bill seems to have thrown
opinion before content was read. But this is not true
– the proposal is about ALL available treatment
options that are already available. These would be
available to ALL people who seeking treatment,
regardless of any other fact.

How will this be implemented?

This would give the legal right to form a person-
centred care plan of choice that cannot push
someone towards anything they do not want.
If any disagreement of this then the person can ask
for the reasons in writing, to be scrutinised by
advocacy workers or advisors. Legal challenges may
ensue but in other sectors rarely reach that stage.

It doesn’t include the rights of a family member.

It did. It also included
housing/accommodation, voluntary
and psychosocial support. But these
were removed as a member bill due
to having too wide a scope (to many
different laws affected). Only
Government bills can have such a
scope, although we are hoping the
consultation leads to these being
inserted back in as we believe only a
fully holistic approach will work.

Scotland’s treatment system lacks the quality,
diversity and capacity to fulfil its potential in
protecting people from substance use related
harms including drug-related deaths.

The proposed Bill does address this by
underpinning the right to treatment in law. It
therefor ensures equal funding must be
provided to allow local authorities/NHS
health boards to perform its duties under
this Act.
It also shifts the balance of power from
opinion of individual decision makers and to
the right of the person to choose what their
plan is and have the right to challenge any
negative decision (if warranted) through the
courts by way of Judicial review.

This Bill would further disempower people presenting
to treatment services as it would establish an
oppositional rather than a therapeutic relationship
between the treatment provider and the person
engaging in treatment.

Shifting power to the service user by enshrining the
right to treatment of choice in law does not create
such a thing. This power imbalance and relationship
already exists in many quarters across the country, a
legal right to treatment will equalise this.

What are the examples of this relationship?

Homeless people, children, mental health – are just some
examples where a relationship between worker and service
user is not affected just because the service user has legal
rights NOR does it mean that every single case is taken
through the courts as often they rights are upheld by all.

The proposed Bill further consolidates
the idea that people with an addiction
are not to be extended the rights
afforded under the Equality Act as it
does with people with other
significant health conditions

Addiction is exempt from the protections
enshrined within the Equality Act 2010, under
Regulation 4(1)(b), already. So, unless they have
an additional impairment (disability) as
recognised in the same Act people in addiction
would not come under it’s protection, unlike
people who suffer other life changing
impairments. The proposed Bill offers a legal
right to treatment for anyone who needs it.

So how would this proposed Bill work
alongside the Equality Act 2010 then?

The rights enshrined in this proposed Bill would
bring a statutory duty for all people seeking
treatment. As is the case with any public function
the Equality Act 2010 would add subsequent rights
to those suffering from a recognised impairment
under the Act. This rights in the proposed Bill is
extended to ANYONE seeking treatment and not
just those suffering from an impairment.
As opposed to arguing that it shouldn’t then
exists at all the sector would do well to look at
the current exemption and lobby for it to be
changed.

But this right to healthcare doesn’t
exist for anyone else.

It’s distasteful to suggest that because
some people don’t have a right means no-
one should have a right.
We should ask why people with any life
threatening conditions all don’t have this
right, not the other way round.

The proposals run counter to the rights-
based approach of current strategy on
which there is a broad consensus and
replace it with a legislative approach.

No. The proposal wouldn’t “replace” anything, it
would underpin them in law as exists
already in other sectors.
The proposal would underpin any strategy or policy
in law, meaning the balance of power
shifts to the person seeking treatment. Like other
sectors any guidance, policy or strategy
would be enforceable although legal action is a
small % of cases.
Other sectors don’t speak in this way or wish they
didn’t have legal underpinning (see
homeless sector).

The proposed Bill threatens the cross-party
and broader consensus which is essential
not only in delivering the National Mission
but in progressing wider public health
priorities on substance use.

We are unsure what this means. The “Bill” hasn’t
been debated at a cross-party level other than get
the support it did to pass the first motion, as the
sector has been quick to remind everyone. But
agreement that people should have a legal right to
a chosen treatment option, in law, is only a starting
point. If we all agree on that then the content can
be what everyone agrees on.
But, as above, any Act would only be a foundation
where any policy or strategy would be built. It
doesn’t create or hinder any of this.

The rights in this proposal would further
disempower people with a drug problem
seeking treatment by giving others the
power of veto over their treatment
choice.

“Veto” is what happens now, with no
challenge. People’s choices are routinely
ignored. Under these proposed rights
someone cannot “veto” without their
consent or without giving good reason,
in writing. That decision can then be
challenged by Law Centres or Advocacy
workers (whoever is trained in the new
rights).

This would potentially damage the
establishment and development of the
relationship between service user and
worker, on which the success of all drug
treatment ultimately depends.

This doesn’t happen in any other sector
just because the person has a legal right,
so why would this be any different. We
already see relationships being managed
in the children’s sector, homelessness and
mental health – where a legal right of
choice already exists. If anything, having
the legal right (service user) and the
resources (worker) fosters better
relationships.

The MAT standards are what
should be negotiated – an
informed choice in the context of
expert advice and support.

The MAT Standards only go so far as to what
medical treatment someone should be entitled
to; it does not include ALL options.
Regardless, a legal right would underpin this
in law, similar to the Code of Guidance used
in the homeless sector is backed by the
Housing (Scotland) Act 1987.
The MAT Standards, like any other existing
guidance, does not allow for a legal challenge
where necessary.

This Bill is neither radical nor
bold enough to achieve its
aims.

We are unsure as to the context of
this concern, a proposal for new
protective legislation is one of the
boldest thing’s society can do. Never
has there been such a rights-based
approach put forward, one that
ensures all of the good work being
done in the sector is underpinned in
law.

People with a drug problem will have the rights
they need and deserve, when they are fully
recognised under the Equalities Act – an act
which currently enshrines in law their
stigmatisation and marginalisation by explicitly
excluding them.

The equality Act 2010 has no bearing on a proposed
change to Scottish Law, one doesn’t need to change
for the other to happen.
Even if the Equality Act was to include addiction, all
it would do is add additional protection to those
seeking treatment.
The rights proposed in the Bill would be the rights
extended to anyone seeking treatment, pending their
own circumstances – they wouldn’t need an
impairment or be nearly dead to have rights.

The proposed Bill doesn’t give legal
clarity on what remedies would be
available where a breach of statutory
duty has occurred.

Remedies available would be civil litigation
and especially in judicial review. Judicial
review is not an appeal, nor as costly to the
public purse as raising through current
negligence routes, nor is it suing the
authorities. Even if it was to reach the
courts it would usually result
in a quick case and so relatively lower the
current costs

There are already a number of legal
routes someone could take against a
provider where harm has been caused,
for example an action for negligent.

Judicial review would at best mean the courts
would order; a reduction on a decision (that
that public body has to take it again if for
example if there has been a defective decision-
making process); issue a public statement that a
public body has acted unlawfully, called a
declarator; award damages (unusual in Scotland);
Issue an interim order suspending a public
bodies decision pending a legal case.
Current remedies are costly and also not
extended to everyone, only certain cases fit the
criteria for legal action.

Even if someone is right to take legal
action, what about the costs?

This may be down to each public body. However, public
authorities have separate budgets for the provision of
services, legal fees, etc and there are clear limits on what
certain money can be spent on. So, what is budgeted into
addiction services can’t then pay for legal costs on a case
where they have been found at fault.

Who would be liable for them?

Note that expenses would only follow success. That means
that if a legal challenge was made, the public body opposed
it, and the case was successful – then and only then would
the public body be liable for the costs. It should be known
that many petitions for judicial review are resolved at an
early stage on the basis of no expenses due to or against any
party. Meaning legal teams would negotiate the outcome out
of court – as often happens in homeless breach of duty
cases.

Could legal costs end up coming out
of individual commissioned providers
budgets?

No. Legal costs are ringfenced in a different budget.
Looking at costs to the person raising the action. In
Scotland, legal aid would likely apply in
most cases, similar to other sectors dealing with
vulnerable people. The SLAB would consider:
Is there a legal basis of the case, is there a strong legal
argument? Would it be reasonable to grant legal aid?
The legal aid board will consider matters such as the
vulnerability of the applicant, the complexity, the
prospects of success and the impact on the individual. So,
it would be anticipated that legal aid could be granted if
the legal provisions in the Bill were passed in law

Legal challenges would cost money
and divert it from treatment budgets
and anyway there are other legal
routes someone can take.

A very confusing statement. Raising concerns
about legal challenges costing money (that could
be spent on other matters) but adding other
routes by which to challenge providers is a
difficult argument to make. Many of the “other
rights” touted, such as negligence, involve many
days of hearings and expert evidence, costing a
lot of money. Judicial reviews are decided on
written documents and heard by a judge in one
day.
Under the Bill challenges would cost public
bodies less than the other legal routes mentioned.

The Bill doesn’t include an aspiration to
decriminalise drugs

Correct – the point of the bill is to provide legally
enforceable rights for people seeking treatment
for their addiction. These other matters are
contained within other laws which are not
devolved to Scotland.
Decriminalisation, whether people agree or
disagree, is devolved to Westminister and so
“outwith competence”. It is also outwith the scope
of the NHS (Scotland) Act and inserting this
would likely result in Presiding Officer stating it is
outwith competence or the UK Government
seeking a referral to the Supreme Court – wasting
the same public money many seem to be
concerned about.

People will be able to just pop off to
rehab as soon as the ask or feel like it.

No. In forming of a care plan, like any other
health sector, due consideration should be
taken into that person’s specific needs and the
urgency of such a request. It may be likely that
someone at high risk of overdose, or who has
overdosed, asks to go to such a facility – they
may be considered as a priority. But
otherwise the care plan should plan towards
this.
What the proposal wouldn’t allow, is to be told
no, or we don’t fund rehab here.

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Implementation

Right to Recovery (Scotland) Bill Proposal | June 2021 | 3