Reforming the 1983 Mental Health Act.

A "Scoping Study Committee" has been established to advise the government on reform of the 1983 Mental Health Act (MHA). This provides a valuable opportunity for addressing, among other issues, the problem of discrimination against those with mental disorder. People with mental disorder are discriminated against in two quite different ways. Consider Mr A and Mr B, both of whom have been seriously violent. Mr A is not mentally ill. He serves a prison sentence. He is still a danger to others, but having served his sentence he cannot be further detained. Mr B suffers from a mental disorder. He is placed in a secure psychiatric hospital. As long as he is thought to pose a risk to others he continues to be detained. Thus, of two people, both equally dangerous, the one who has a mental disorder can be locked in a secure institution indefinitely in order to protect others. The one who is not mentally disordered is free once he has served his sentence. Consider now Mr C and Mr D. Mr C is physically ill, but he is not suffering from a mental disorder. He is refusing beneficial treatment. Without treatment, he may come to serious harm. However, he has the capacity to refuse treatment. The legal situation is clear: an adult with legal capacity may refuse any (even life-saving) treatment. Mr D, on the other hand, is suffering from a mental disorder, but he retains the common law capacity to refuse treatment. Like Mr C, Mr D is refusing beneficial treatment for his mental disorder. Mr D's common law right to refuse treatment, however, may be overridden under the 1983 Mental Health Act. Under current law, the surgeon has to stand by while his or her patient, who has capacity to refuse treatment bleeds to death. The psychiatrist, on the other hand, can intervene, ignoring his patient's competent refusal , to prevent much lesser harm. Why this double standard? This is not simply a theoretical issue as is shown by the case of B v Croydon District Health Authority.' This case concerned a 24-year-old woman who had been admitted to psychiatric hospital with a diagnosis of borderline personality disorder, and who had a history of self-harm. She was detained under the 1983 Mental Health Act following her attempts to cut and hurt herself. In hospital she was prevented from carrying out such harmful behaviour, but her …