Men in White Coats

Abstract

The book examines medical treatment under coercion and its justifications. Psychiatry springs to mind as most associated with coercion. Here, the fundamental criteria governing detention and involuntary treatment have remained fundamentally unchanged for over two centuries—first, the person has a ‘mental disorder’, largely undefined; and second, there is a risk of significant harm to the person or to others. Major problems attach to these criteria allowing a large degree of arbitrariness in the use of compulsion. Furthermore, when set against the huge shift over the past 50 years from ‘paternalism’ to patient ‘autonomy’ in general medicine, it becomes clear that conventional mental health law discriminates against people with ‘mental disorders’. Involuntary treatment is governed by entirely different principles. Patient ‘autonomy’ is not accorded the same respect in mental health care, while the ‘protection of others’ justification, based on ‘risk’ not offences, constitutes a discriminatory form of preventive detention reserved for people with ‘mental disorders’. A solution is proposed—a generic law, applicable across all medical specialties and settings. This ‘Fusion Law’ draws on the strengths of both ‘capacity-based’ and civil commitment models. The relationships of ‘capacity’ and ‘best interests’ to a person’s ‘beliefs and values’ (or ‘will and preferences’) are elucidated in order to examine the ‘Fusion Law’ against the standards set by the United Nations Convention on the Rights of Persons with Disabilities. ‘Coercion’ short of compulsion is then considered, as are the implications of the ‘Fusion Law’ for the forensic domain, general hospital practice, involuntary outpatient treatment, and ‘advance directives’.