The model law fusing incapacity and mental health legislation – a comment on the forensic aspects of the proposal

Abstract

<p>The proposal by Szmukler and others for a law that fuses mental health law and mental capacity law in England and Wales, both in the context of civil admissions to hospital based on the mental disorder of the patient and the making of orders by the criminal courts, can be summarised in the following quotes from their paper. They suggest:</p><p>“a legal regime that … relies squarely on the incapacity of the person to make necessary treatment decisions as the primary justification for intervention in their life.”</p><p>By intervention is meant both detention and treatment under compulsion: so, rather than separate criteria for detention (based on the risk of harm) and treatment (based on capacity, at least in part), there would be a single incapacity test “that specifies the conditions for both treatment under compulsion and treatment under circumstances amounting to a ‘deprivation of liberty’.”</p><p>What is meant by ‘incapacity’? It is an “inability to understand, recall, process, use or weigh relevant information; inability to communicate a decision; or inability to reach a decision that is sufficiently stable for it to be followed.”</p><p>There would be a requirement that there be no less restrictive option available than intervention; for emergency situations, there would also be a safeguard for intervention based on a reasonable belief as to a lack of capacity.</p>

Fusion legislation and forensic psychiatry: the criminal justice provisions of the Mental Capacity Act (Northern Ireland) 2016

“…The PPO has been regarded as a contentious part of the Act, given that its purpose is to protect the public rather than to serve a health interest. It has thus proved necessary to include a measure aimed at reducing harm ‘as a basis for society to take action’ even within a fusion law (Gledhill 2010). There is a body of opinion that the circumstances for a PPO are ‘extremely limited’ (Harper 2016).…”

“…The Scottish Executive opted to incorporate a softer incapacity test of 'a significant impairment of decision making caused by the disorder' as a criterion for involuntary treatment, following the review of mental health legislation reported by the Millan Committee (Scottish Executive 2001) and the MacLean Committee (Scottish Executive 2000). However, a capacity-based approach was not incorporated into criminal justice provisions because of concerns for public safety (Gledhill 2010).…”

“…A key ethical argument against fusion legislation is that an increase in patient autonomy could come at the expense of beneficence (Burns 2010). Furthermore, in theory, there could be an increased risk of harm to the public in cases where a person is capable of making decisions in relation to treatment but remains a risk to others because of mental disorder (Gledhill 2010). Opponents of fusion legislation have argued that assessment of capacity in relation to mental disorder is unsuitable as a basis for making decisions in clinical practice.…”

“…Repeated attempts to incorporate such an approach into UK mental health legislation over the past few decades have mostly failed for the same reasons. The UK government rejected the Richardson Committee's (Department of Health 1999) recommendation to incorporate a capacity-based criterion into involuntary treatment of people with mental disorders, reasoning that it would broaden the scope of the legislation (Gledhill 2010). The Scottish Executive opted to incorporate a softer incapacity test of ‘a significant impairment of decision making caused by the disorder’ as a criterion for involuntary treatment, following the review of mental health legislation reported by the Millan Committee (Scottish Executive 2001) and the MacLean Committee (Scottish Executive 2000).…”

No longer 'anomalous, confusing and unjust': the Mental Capacity Act (Northern Ireland) 2016

“…Thus, in Northern Ireland it has indeed proven the case that a measure primarily aimed at reducing harm was necessary as 'a basis for society to take action' even within a fusion law. (Gledhill, 2010). However, such circumstances are extremely limited and there is not universal agreement on the need for the Public Protection Order in practice nor on its acceptability in principle for the purposes of section 4(1).…”