Abstract
A common criticism of a ‘fusion law’ - a generic law covering all instances where a person’s ability to make a treatment decision is impaired, regardless of the cause, and furthermore which only allows non-consensual treatment if it is in the person’s ‘best interests’ – is that it fails to deal adequately with the protection of the public. This paper examines the implications of a ‘fusion law’ where a person with an ‘impairment or disturbance of mental functioning’ has committed an offence or where the person has been found ‘unfit to plead’ or ‘not guilty by reason of insanity’. It is argued that within the parameters of a fusion law, unfair discrimination towards those with a mental impairment placed on treatment orders by a court - as exists presently in nearly all jurisdictions - can be avoided while at the same time providing satisfactory public protection. This can be achieved through hospital treatment, voluntary or involuntary depending on the person’s decision-making ability and best interests (or best interpretation of ‘will and preferences’), and a form of supervision order in the community that is supportively structured, but includes special conditions to ensure compliance.
Highlights
The aim of this paper is to examine the implications of a ‘fusion law’[1] for the management of offenders with an ‘impairment or disturbance of mental functioning’, regardless of its cause
For example, provides a good account of the prominence in the UK of public protection concerns during debates on reform of the Mental Health Act 1983 (MHA 1983) in response to proposals that some form of capacity-based criterion should be included in the justification for involuntary treatment.[3]
An echo of the same concerns is repeated in the 2018 Final Report of the Independent Review of the Mental Health Act 1983.8 Despite suggesting that a fusion law is currently the most promising direction of travel for the future, a number of ‘tests’ are proposed that such a law would need to pass
Summary
The aim of this paper is to examine the implications of a ‘fusion law’[1] for the management of offenders with an ‘impairment or disturbance of mental functioning’, regardless of its cause. For example, provides a good account of the prominence in the UK of public protection concerns during debates on reform of the Mental Health Act 1983 (MHA 1983) in response to proposals that some form of capacity-based criterion should be included in the justification for involuntary treatment.[3] Inclusion of such a criterion was supported by the Richardson Expert Committee[4] set up by the government to review the MHA 1983, by a number of stakeholders’ (including the Royal College of Psychiatrists, the British Psychological Society, Mind) as well as in parliamentary recommendations from the Joint Scrutiny Committee, the House of Lords, and the Joint Committee on Human Rights.[5]. An echo of the same concerns is repeated in the 2018 Final Report of the Independent Review of the Mental Health Act 1983.8 Despite suggesting that a fusion law is currently the most promising direction of travel for the future, a number of ‘tests’ are proposed that such a law would need to pass. We think at this stage that necessity and proportionality are likely to be more appropriate assessments.”[9]
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