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'Mental Health Law is inappropriate for informal mentally ill patients without capacity
- George Szmukler (16 July 1998)
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George Szmukler, Medical director Maudsley Hospital
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‘Mental health law’ is inappropriate for mentally ill patients admitted informally but who lack capacity EDITOR - Why do Eastman and Peay think of those suffering from a mental disorder as constituting a special class of patient whose treatment must be regulated by specific ‘mental health’ legislation?[1] In the wake of the House of Lords’ overturning of the Court of Appeal decision in Bournewood, concern is being expressed about what Lord Steyn called ‘an indefensible gap in our mental health law’ for non-objecting patients without capacity who are admitted to hospital informally. What should be the safeguards for these so called ‘de facto’ detained patients? Many see these safeguards as requiring changes in mental health law or the involvement of the Mental Health Act Commission[2]. This is inappropriate. One of the options mentioned by Eastman and Peay needs to be put more strongly and to be extended. We fail to see any difference between patients with mental incapacity whether they suffer from a ‘mental disorder’ or a ‘physical disorder’. Both groups of patients require the same protections, whether they are on a psychiatric, medical or surgical ward. The surgeon’s knife poses as many hazards as the psychiatrist’s antipsychotic medication. We see the Law Commission’s proposals[3] and the subsequent consultative paper Who Decides?[4] as offering an excellent framework for all patients who lack capacity, including the mentally ill. A range of useful options is presented which we believe will improve the care of all patients. A Mental Health Act or the Mental Health Act Commission has no role to play. One could go further. The Bournewood case illustrates the disjunction in mental health legislation between the legal criteria for detention in hospital and the question of capacity. The latter plays no direct role, yet for all patients, other than the mentally ill, non-consensual treatment cannot be given in their ‘best interests’ unless the patient lacks the capacity to make treatment decisions. We see no justification for this discrepancy. If a patient with a mental disorder has the capacity to make treatment decisions, why should this not be respected as it is for all other patients? Who Decides discusses provisions for all patients with incapacity, including those who object and thus might require treatment against their will. These include advance directives, continuing powers of attorney covering health care decisions, court appointed managers and judicial decisions. Thus, there remains no need for a mental health act for interventions with a paternalistic justification. Indeed, a strong case can be made that ‘mental health legislation’ discriminates against patients with a mental disorder, supporting prejudicial stereotypes of difference, incompetence and dangerousness[5,6]. 1. Eastman N, Peay J. Bournewood: an indefensible gap in mental health law. BMJ 1998; 317:94-95 2. Dyer C. New safeguards planned for psychiatric patients. BMJ, 1998; 317:7 3. Law Commission. Mental incapacity law. London: HMSO, 1995 (Com 231) 4. Lord Chancellor’s Department. Who decides? Making decisions on behalf of mentally incapacitated adults. London: HMSO, 1997. (Cm 3803). 5. Campbell T, Heginbotham C. Mental illness: prejudice, discrimination and the law. Vermont: Dartmouth, 1991 6. Szmukler GI, Holloway F. Mental health legislation is now a harmful anachronism. Psychiatric Bulletin, 1998 (in press) 7. G I Szmukler Consultant pychiatrist and medical director F Holloway Consultant psychiatrist Maudsley Hospital, Denmark Hill, London SE5 8AZ |
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