Abstract
<p>Our thoughts on the proposed Mental Health Act are a product of us working together for a considerable period of time and feeling that we have something to offer jointly by bringing together our legal and psychiatric perspectives.</p><p>The main thrust of our thoughts is that we have a fundamental problem with the reform of mental health law as proposed. We are beginning to question whether there is any need for a mental health act at all. In any case, legislation which interferes with the freedoms of others should, we believe, be predicated on the libertarian model as espoused by John Stuart Mill.</p>
Highlights
This is a philosophical statement that is echoed in the most famous legal version by Cardozo CJ in Schloendorff v New York Hospital3:
The tribunal will discharge the patient if “satisfied that [they are] being unlawfully detained at the hospital.”[38]. We would agree with the following overall assessment of the House of Lords and House of Commons Joint Committee on Human Rights, the Committee is concerned that the system does not apply to non-resident patients or patients in residential homes
46 There is no definition of this phrase and, the wide definitional approach adopted in the proposed Mental Health Act is Convention compliant as it does rely upon the availability of medical evidence
Summary
Our thoughts on the proposed Mental Health Act are a product of us working together for a considerable period of time and feeling that we have something to offer jointly by bringing together our legal and psychiatric perspectives. 12 establishing validity and applicability is never easy but assuming those requirements are present, such advance refusals should apply to all forms of treatment including treatments for mental disorder It is for reason of the practical problems and some concern that its presence might make passage of any Mental Incapacity Bill through Parliament difficult (which are the reasons for not codifying the Bland rules and for not introducing statutory rules on research and people with incapacity) that the Government, in its consultation process, has not decided whether to have advanced refusals within any future Mental Incapacity Act, see Lord Chancellor’s Department, Making Decisions: The Government’s proposals for making decisions on behalf of mentally incapacitated adults (1999, Cm 4465), at paras. Whilst we recognise that the draft Mental Health Bill does, to some extent, endeavour to take capacity and autonomy more seriously,[15] we feel that it does not go far enough
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