How mental health legislation discriminates unfairly against people with mental illness

1. How mental health legislation discriminates unfairly against people with mental illness George Szmukler Professor of Psychiatry and Society Institute of Psychiatry, King’s College London Gresham College Nov 15th Institute of Psychiatry at The Maudsley

2. How involuntary treatment is governed • In many jurisdictions, the circumstances under which involuntary treatment may be given are not governed by one uniform set of principles. • Compare: • Ms A (cancer of the cervix) • Ms B (schizophrenia) • Two legal schemes: ‘capacity-based law’ v. ‘civil commitment law’ (or mental health legislation); different legal criteria apply

3. The usual position ‘Physical disorder’ • Sets very high value on ‘autonomy’ (self-determination) • Involuntary treatment for refusing patient only if: • lacks treatment decision-making ‘capacity’; and, • treatment is in ‘best interests’

4. The anomalous position of ‘mental disorder’ • Autonomy not respected in same way for refusing patient • Involuntary treatment if suffers from ‘mental disorder’ and poses ‘risk’ (to health or safety of the person or for protection of others) • Why? • An underlying assumption that mental illness necessarily entails incapacity; not fully a ‘person’; not autonomous;stereotype

5. ‘Protection of others’ • Confusion of ‘paternalism’ with ‘protection of others’ • Legislation like MHA 1983 betrays another form of discrimination in this regard • Those with a ‘mental disorder’ are liable to detention due to risk of violence alone, not only after actually committing an offence (like the rest of us)

6. Protection of others

7. Protection of others:non-discriminatory

8. ‘Protection of others’ • If preventive detention is to be allowed for the those with mental disorder on account of their risk to others, if we are to avoid discrimination, so should it be for all of us. • ‘Fairness’ requires that all those presenting an equal risk to others should be equally liable to detention • Why this discrimination? • Stereotype of mental illness entailing dangerousness

9. Violence and mental illness • Violence may be a consequence of mental illness in a small minority of patients • Even in psychosis, the risk, in the absence of alcohol or drug abuse, or of an ‘antisocial personality’ is modestly, if at all, raised • Not more predictable; no evidence that more ‘treatable’ than violence persons without a mental illness

10. Community treatment orders • May be appropriate if based on ‘capacity’ and ‘best interests’ and treatment can be safely and effectively given in the community rather than in hospital • Must terminate when capacity is regained

11. Recent history of legislation in England and Wales • An opportunity for significant reform was lost • Protracted process between 1998 and 2007 • Sustained criticisms of, and alliance against, the government’s proposals • Resulted in amended MHA 1983 • Separate regimes for involuntary treatment highlighted by concurrent passage of Mental Capacity Act (MCA) 2005

12. A solution to the discrimination:‘Fusion Law’ proposal • A single comprehensive law (with no specific reference to ‘mental disorder’) • Covers all illnesses or disorders in all settings • Single regime for involuntary treatment based on ‘capacity’ and ‘best interests’

13. A solution to the discrimination:‘Fusion Law’ proposal • Capacity-based law (e.g. MCA 2005) • Strong on respect for autonomy and self-determination, but weak on emergency treatment, use of force and detention • Civil commitment (e.g. MHA 1983) • Weak on respect for autonomy, strong on emergency treatment, use of force and detention • ‘Fusion’ because it combines the strengths of capacity-based law and ‘civil commitment’ law, while minimising their weaknesses

14. New landscape for the rights of persons with disabilities • UN Convention on the Rights of Persons with Disabilities (2006) • Especially challenging in respect of involuntary treatment • Convention unambiguously states: • “the existence of a disability shall in no case justify a deprivation of liberty” • MHA clearly not compliant; but ‘Fusion Law’, I suggest, is

15. Conclusions • Mental health law, as conventionally conceived, discriminates against those with a mental illness • Its underlying assumptions stigmatise those people • By building on the complementary strengths of capacity-based and civil commitment law, a ‘fusion’ model is proposed that applies to all persons who lack capacity, whatever the cause, or healthcare setting • This proposal, unlike the MHA, I argue, is compliant with the UN Convention on the Rights of Persons with Disabilities