Rights versus risk? Reform of the Mental Health Act 1983

Decision-making competence in adults: a philosopher's viewpoint

What does it mean to respect autonomy and encourage meaningful consent to treatment in the case of patients who have dementia or are otherwise incompetent? This question has been thrown into sharp relief by the Law Lords' decision in R.v Bournewood Community and Mental Health NHS Trust, ex parte L (1998). The effect of the Law Lords' ruling in the Bournewood judgment is to reinforce problematic and serious anomalies in the way we view patients whose competence is in doubt because of their mental disorder. Others, such as relatives and informal carers, are frequently allowed to decide on behalf of adults whose competence is doubtful in a way that English law generally abhors, even for totally incompetent patients in a persistent vegetative state. This raises profound questions about autonomy. And incompetent adults' consent to treatment is not required to be of the same quality as it is for the rest of us: mere absence of resistance will do. This paper will explore the philosophical, jurisprudential and legal implications of this difference. Throughout I will be more concerned with the ramifications of a finding of incapacity than with how such a finding is made (for the latter, see such classic texts as Applebaum & Roth (1982), Grisso & Applebaum (1998) and Bellhouse et al (2001)).

How personality became treatable: The mutual constitution of clinical knowledge and mental health law

In recent years, personality disorders – psychiatric constructs understood as enduring dysfunctions of personality – have come into ever-greater focus for British policymakers, mental health professionals and service-users. Disputes have focussed largely on highly controversial attempts by the UK Department of Health to introduce mental health law and policy (now enshrined within the 2007 Mental Health Act of England and Wales). At the same time, clinical framings of personality disorder have dramatically shifted: once regarded as untreatable conditions, severe personality disorders are today thought of by many clinicians to be responsive to psychiatric and psychological intervention. In this article, I chart this transformation by means of a diachronic analysis of debates and institutional shifts pertaining to both attempts to change the law, and understandings of personality disorder. In so doing, I show how mental health policy and practice have mutually constituted one another, such that the aims of clinicians and policymakers have come to be closely aligned. I argue that it is precisely through these reciprocally constitutive processes that the profound reconfiguration of personality disorder from being an obdurate to a plastic condition has occurred; this demonstrates the significance of interactions between law and the health professions in shaping not only the State’s management of pathology, but also perceptions of its very nature.

Treating the vulnerable in England and Wales: the impact of law reform and changing policy

This article considers the role of treatment in the provision of mental health care in England and Wales. The current legislative position with regard to the making of treatment choices following compulsory commitment will be examined. Consideration will also be given to the position of the informal hospitalised patient, as in the case of R v. Bournewood Community and Mental Health NHS Trust, ex parte L and finally, the role of the common law in establishing (in)capacity in relation to the non-consensual provision of treatment for physical conditions. Attention will then be given to the reform process, which is currently ongoing in England and Wales, and its likely impact on treatment provision. The Mental Capacity Act 2005 received Royal Assent on the 7th April 2005, while the draft Mental Health Bill 2004 underwent detailed examination by the Joint Scrutiny Committee, a report of which was published on the 23rd March 2005. On the 13th July 2005 the British Government outlined its response following the publication of the Scrutiny Committee's recommendations and despite it accepting many of the recommendations put forward, some significant areas of concern remain making the draft Mental Health Bill 2004 "a long way from acceptable legislation".