Intended for healthcare professionals

Head To Head Maudsley Debate

Has the Mental Health Act had its day?

BMJ 2017; 359 doi: (Published 16 November 2017) Cite this as: BMJ 2017;359:j5248
  1. George Szmukler, emeritus professor of psychiatry and society1,
  2. Scott Weich, professor of mental health2
  1. 1Institute of Psychiatry, Psychology and Neuroscience, King’s College, London
  2. 2School of Health and Related Research (ScHARR), University of Sheffield
  1. Correspondence to: G Szmukler george.szmukler{at}, S Weich s.weich{at}

Unjust discrimination against people with mental ill health should be replaced with universal rules based on decision making ability, writes George Szmukler, but Scott Weich worries about legal distractions that won’t improve outcomes while services are so thinly stretched

Yes—George Szmukler

Patients with a “mental disorder” in England and Wales can be detained and treated against their will on legal grounds that are ethically unacceptable. These grounds contribute to the shadow of coercion that hangs over the practice of psychiatry. The relevant law remains fundamentally unchanged since the late 18th century.1

Two sets of rules exist for involuntary treatment—one for psychiatry and one for the rest of medicine. In comparing them, the discrimination against people with a mental illness becomes obvious.23

In non-psychiatric cases, the person’s ability (or capacity) to make a decision about treatment is key to whether over-riding a refusal can be justified.4 A refusal made with capacity is respected no matter what the health outcome might be. Even when capacity is lacking, an involuntary intervention is justified only if it is deemed to be in the person’s “best interests.” In assessing “best interests” the patient’s personal values, beliefs, and commitments have a powerful role.5

Capacity and best interests

These two considerations—capacity and best interests—have almost no role in initiating involuntary treatment in psychiatry. Two entirely different criteria operate: firstly, the presence of a “mental disorder,” largely undefined; secondly, a perceived “risk” to the person’s health or safety or of harm to others. Thus, autonomy (or the recognition of a right to self determination or to pursue personal goals and values) is not accorded the same respect as among patients with a non-psychiatric diagnosis.

In a pluralistic society such as ours, such attention to values is hugely important. The significant shift in medicine from “paternalism” to patient self …

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