Abstract
<p>Concepts of mental capacity are taking on an increased importance in the mental health law of the United Kingdom. For England and Wales, the proposal to introduce a threshold requirement of ‘impaired decision-making’ into the criteria for detention under sections 2 and 3 of the Mental Health Act 1983 was the first amendment to be voted upon in the House of Lords’ reading of the Mental Health Bill. Despite its emphatic (and whipped) resistance to this amendment, Government lost the vote by a wide margin, although it seems possible, at the time of writing, that the Government will seek to overturn their defeat in the Commons.</p><p>It is therefore timely to re-examine the role of such capacity tests in mental health legislation dealing with detention and treatment. This paper describes as yet unresolved definitional questions that must be encountered when concepts of mental capacity operate as a threshold for coercive psychiatric detention and/or treatment.</p>
Highlights
In the House of Lords debate, the Minister stated that the proposal to introduce a test of impaired decisionmaking was “one of the core amendments that will undermine the broad intent of the Bill”[6]
This paper describes as yet unresolved definitional questions that must be encountered when concepts of mental capacity operate as a threshold for coercive psychiatric detention and/or treatment
Legal developments in the twentieth century have addressed the question of criteria for such recognition and, for certain circumstances, recognised that an absence of mental capacity to provide consent to intervention could be the threshold for coercive intervention: for example, the Mental Treatment Act 1930 allowed that temporary treatment procedures available under that Act could only be invoked to detain a patient ‘for the time being incapable of expressing himself as willing or unwilling to receive such treatment’[9]
Summary
The framework of current law relating to the detention of psychiatric patients in England and Wales was established with the enactment of the Mental Health Act 1959, itself based upon the recommendations of the Royal Commission led by Lord Percy between 1954-7. The other criteria are: (1) presence of mental disorder; (2) availability of medical treatment likely to treat the disorder or alleviate symptoms; (3) significant risk to the patient’s health or safety, or to the safety of others, without such treatment; and (4) necessity of making a compulsory order[25] Such a critique must be applicable to the changes proposed by the amendment to the 1983 Act. The indeterminacy of mental incapacity as a test in law it would appear that mental incapacity is a narrower concept than impaired decision-making, it is itself broadly and loosely defined in many clinical and even legal contexts. This indeterminacy extends from civil cases relating to such matters as healthcare or financial decisions, to the use of notions of concepts of mental capacity in determining culpability for criminal acts.[34]
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