The independent review of mental health legislation: a real opportunity for change?
| Published date | 12 February 2018 |
| DOI | https://doi.org/10.1108/MHSI-12-2017-0053 |
| Pages | 1-5 |
| Date | 12 February 2018 |
| Author | Rachel Perkins,Julie Repper |
| Subject Matter | Health & social care,Mental health,Social inclusion |
Rachel Perkins and Julie Repper
The independent review of mental health legislation: a real opportunity for change?
There have been many critics of the discriminatory nature of the 1983 Mental Health Act, most
notably people diagnosed with mental health challenges themselves (see, e.g. Chamberlin,
1977 and O’Hagan, 2014) and Professor George Szmukler and his colleagues (Dawson and
Szmukler, 2006; Szmukler and Holloway, 1998, 2000; Szmukler, 2010, 2017). Based on the
work of such people, we have written about the intrinsically discriminatory nature of mental health
legislation in the pages of Mental Health and Social Inclusion (Perkins and Repper, 2014).
In particular, current mental health legislation in England and Wales denies those diagnosed with
a mental disorder the rights accorded other citizens in two primary ways.
First, unlike any other citizen who may be a danger to themselves or others, it allows people
diagnosed with a “mental disorder”to be detained because they might commit an offence.
On civil rights grounds, UK law does not permit this sort of preventative detention for anyone else
who are at risk of causing harm to others, like, habitual spouse abusers or those who are drunk
and may drive dangerously. Again, those deemed to have “mental disorders”are denied the
rights accorded to other citizens:
Justice requires that all people posing equal risk should be equally liable to preventive detention
(Szmukler in Szmukler and Weich, 2017, p. 1).
Second, as Szmukler (in Szmukler and Weich, 2017) describes, two sets of rules exist for
involuntary treatment –one for psychiatry and one for the rest of medicine:
[…] having one law for decisions about physical illness and another for mental illness is anomalous,
confusing and unjust (Bamford Review of Mental Health and Learning Disability, 2007, p. 36).
If you have a physical illness, then you have the right to refuse treatment, even if that treatment
may save your life. The only exception to this is, under the terms of the 2005 Mental Capacity Act,
if your ability to make decisions is impaired: you are unable to understand what you are told
about your condition and treatment and the consequences of accepting or refusing it. If you have
been diagnosed with a “mental disorder”, under the terms of the 1983 Mental Health Act, your
ability to make decisions can be ignored. You may be fully able to make decisions, but you can
still be forcibly detained and treated if professionals think that the nature and degree of this
disorder make detention and treatment necessary for your own health and safety or for the
protection of others. This is discriminatory because one law applies to those diagnosed with
mental health challenges –one based on a “disorder, diagnosis and risk model”–while another
law applies to the rest of the population –one based on a “capacity and best interests model”
(Szmukler, 2017). This is in direct contravention of Article 14 of the United Nations Convention on
the Rights of Persons with Disabilities (UNCRPD) because it permits compulsory detention and
treatment on grounds that include disability (which includes “mental disorder”).
If we are to create a non-discriminatory legal framework:
A key point is that the law must be generic: namely that it applies to everyone who has a problem
with decision making, whether the diagnosis is physical or psychiatric, and in any setting –medical,
surgical, psychiatric or in the community. A specific ‘mental health’law is not necessary: the law
should be formulated so as to apply throughout medical specialties, from psychiatry to orthopaedic
(Szmukler in Szmukler and Weich, 2017, pp. 1-2) (added emphases).
Northern Ireland have taken the ground-breaking step to do just that. Their journey is described
by Harper et al. (2016).
DOI 10.1108/MHSI-12-2017-0053 VOL. 22 NO. 1 2018, pp. 1-5, © Emerald Publishing Limited, ISSN 2042-8308
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MENTALHEALTH AND SOCIAL INCLUSION
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Editorial
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