The Law and Incapacity Determinations: A Conflict of Governance?
| Published date | 01 May 2008 |
| Date | 01 May 2008 |
| DOI | http://doi.org/10.1111/j.1468-2230.2008.00700.x |
| Author | Aisling Boyle |
ness to foreign subsidiaries, with resulting displaced injuries and deaths to workers
in the state of the subsidiary.
91
All such decisions maylead to job losses and unem-
ployment forUKworkers, reduced personal and corporate taxes for the UK gov-
ernment, an increase in crime (from out-of-work employees) and a general
demoralisationwithin society, but especially within the labour and business com-
munities. In addition, a rigorously enforced law of corporate manslaughter may
giverise to a risk-averse corporate culture. Rather than experimenting, companies
may decide to choose ‘safe’ options. If so, British businesses may ¢nd themselves
falling behind more entrepreneurial competitors operating in less prescriptive
states, to theirdisadvantage andthat of the reputationof British industrygenerally.
Which of the above described e¡ects of the 2007 Act will come to pass is at
present an open question. The answer will depend on how vigorously the gov-
ernment chooses to enforce the newAct and howexpansively or restrictively the
courts interpret its provisions.The Act cameinto force in April2008, and its long-
term e⁄cacy remains to be determined.
The Law and Incapacity Determinations: ACon£ict
of Governance?
Aisling Boyle
n
This article wil l consider the highlycharged questions raised by two major sets of law reforms in
England and Wales, the Mental Capacity Act 2005 and the Mental Health Act 2007, which,
although applyingto closely related clinical populations, proceeded along entirely separatelegis -
lativepaths. By justifying its proposals for reform of mental health legislation on the grounds of
‘risk’, the Government failed to take into account the implications of enforced treatment on
patients who may retain decision-making capacity.
INTRODUCTION
In its reforms of mental healthlaw, the Government hasbeen i ntent on legislating
for increasedlevels of control and coercion.Whilst the Mental CapacityAct
1
seeks
to maximise the number of patients who can exercise autonomy in treatment
decisions, the new Mental Health Act,
2
by sidestepping therapeutic goals, aims
to steer‘mentaldisorder’i n avery di¡erent direction. In an increasingly risk averse
society,public protection hasbecome a central objective of the legislature and this
91 Whether a UK parent company would be liable for a death at a foreign subsidiary is in theory a
complex issue, even though the Actpurports not to apply to deaths that do not occur in the UK
or fall within other well-established exceptions.‘CMCHAct, s.28(3).’ See generallyJ. Gobert,‘Cor-
porateKillingsat Home and Abroad^ Re£ectionson the Government’sProposals’ (2002) 118 LQR 72.
n
Queen Mary Universityof London. I wouldlike to thank Barbara Borraccino and the MLR’s anon-
ymous reviewers for their valuable comments and suggestions. All the views expressed, and any
errors which remain, are entirely my own.
1 Implemented in April 2007.
2 The Mental Health Act 2007 amends the Mental Health Act 1983.The Actreceived RoyalAssent
in July 2007.
Aisling Boyle
433
r2008 The Author.Journal Compilation r2008 The Modern Law Review Limited.
(2008) 71(3) 413^463
in turn raises serious ethical concerns.
3
Against this backdrop, new mental health
legislation marks a radical shift from therapeutic assessment to risk manageme nt,
whereby psychiatric practice isguided by an evaluationof risk and dangerousness,
rather than therapeutic aims. A deep-seated weakness in the legislative reform
process was the repeated adherence to risk, as an assumed derivative of ‘mental
disorder’. In rejecting the Expert Committee’s capacity-based model,
4
the Gov-
ernment, in its desire to be seen to respond to fears about public safety, sum-
marised the position in the following terms:
The principal concern about this approach is that it introduces a notion of capacity
which, in practice, may not be relevant to the ¢nal decision on whether a patient
should be made subject to a compulsoryorder. It is the degree of risk that patients
with mental disorder pose, tothemselves or others, that is crucial to this decision.
5
The failure to includeany reference to decision-making capacity (orcompetence)
6
for con¢ned patients reveals profoundly paternalistic and discriminatory prac-
tices.
7
Although an adult individual with capacity has an absolute right to refuse
treatment for physical illness,
8
mental health legislation permits involuntary treat-
ment notwithstanding the patient’s capacitous refusal. As identi¢ed by Richardson:
If we allow mental health professionals to treat a person in the interests of her own
health despite her competent refusal we are allowing the values of medical patern-
alism to trump those of respect for personal autonomy.
9
In contrast to the position in England and Wales, the adoption of an ‘impaired
decision-making’ test, although not a pure capacity based model, has been
endorsed in Scotland’s mental health legislation.
10
More recently, Shadow Health
Minister Jonathan Morgan tabled arguments forWalesto have the power tomake
its own mental health laws, stating that he ‘wanted to see patients have timely
access to treatment in a therapeutic setting before compulsion became the only
option’.
11
Therefore, Scotland and Wales appear to be moving towards a more
3 See N. Eastman, ‘Public heath psychiatryor crime prevention?’ (1999) 318 British Medic al Journal
549; G. Szmukler, ‘A new mental health (and public protection) act’ (2001) 322 British Medical
Journa l 2.
4 G. Richardson, Report of the Expert Committee, Reviewof the Mental Health Act 1983 (London:
Department of Health,1999).
5Reformof the Mental HealthAct 1983, Proposals forConsultation, Cm 4480 (London: Departmentof
Health,1999) 32.
6 Both terms will be used interchangeably.
7 There is nowa wealth of literature,on the discriminatorynature of mental health law.The reader
is referred to G. Thornicroft, Shunned: Discrimination against people with mental illness (Oxford:
OxfordUniversity Press, 2006);J. Peay (ed),Seminal Issuesin Mental HealthLaw (Ashgate Publish-
ing Limited, 2005);A.H. Crisp (ed), Every Family in the Land:UnderstandingPrejudiceand Discrimina-
tion against p eople with mental illness (London: Royal Society of Medicine Press Ltd,20 04).
8SeeReT (Consentto MedicalTreatment) (AdultPatient) [1993] FLR 95.
9 G. Richardson,‘Balancing autonomy and risk: A failure of nerve in England andWales?’ (2007)
30 InternationalJournalof Law and Psychiatry 71, 72.
10 Mental Health (Carea nd Treatment) (Scotland) Act 2003.
11 M. Brindley,‘Callfor Assembly to Reform Mental Health Laws’ (2007) availableat http://icwales.
icnetwork.co.uk/news/health-news/2007/10/18/call-for-assembly-to-reform-mental-health-laws-
91466 -19968318 (last visited 22 October 2007).
Incapacity Determinations
434 r2008 The Author. Journal Compilation r2008 The Modern Law ReviewLimited.
(2008) 71(3) 413^463
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