Mental health legislation should respect decision making capacity

doi:10.1136/bmj.331.7530.1467

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Len Doyal, emeritus professor of medical ethics1,
Julian Sheather, senior ethics adviser (jsheather@bma.org.uk)2

¹ Barts and The London School of Medicine and Dentistry, Queen Mary College, University of London, London E1 2AD
² Medical Ethics Department, BMA, London WC1H 9JP

New legislation should raise the moral standards of professional and personal life, but the proposed new mental health bill fails to deal with serious ethical problems in the existing act

Introduction

The government is introducing new mental health legislation in England and Wales. Critics have argued for some time that the 1983 Mental Health Act is outmoded, unable to provide the flexibility required after changes in psychiatric practice and social attitudes towards mental illness. Case law has also shown that the act has to be changed to ensure compatibility with human rights legislation. A draft bill was published in September 2004,1 and, after a report by a cross-party scrutiny committee in March 2005,2 the government announced its intention to introduce a new bill in autumn 2005. Concerns have been raised, however, by both user and professional groups about both the Mental Health Act and the draft legislation. The most serious of these is the lack of respect for the autonomy of mentally ill people, which we believe strikes at the heart of the legislation's moral legitimacy.

Autonomy

Concerns about autonomy can be traced back at least as far as the 1999 review of the Mental Health Act by a Department of Health expert committee led by Professor Genevra Richardson.3 Her report raised questions about whether the act demands respect for the autonomy of patients that is equal to that demanded for patients with physical illnesses. Although a competent person with a physical illness can reject treatment that is clearly in his or her best interests, mental health legislation permits compulsory treatment even if the patient retains the capacity to make decisions. As a result, the Richardson report suggested that any new legislation, “Must be expressly concerned with preserving… autonomy.”3 Crucially, new Scottish mental health legislation, enacted in 2003, …