Harnessing the power of fusion? A valiant but flawed effort to obviate the need for a distinct mental health law

Abstract

When it comes to involuntary interventions, the notion that people with mental disorders should be treated identically to persons with general medical disorders has an undoubted appeal. As Dawson and Szmukler have argued previously, principles of fairness and non-discrimination would appear to be well served by basing involuntary hospitalization and treatment in both contexts on incapacity to provide consent. In this commentary, I take note of some of the intellectual forebears of the Szmukler, Daw, and Dawson proposal, and ask why – despite the formidable intellects that have lined up behind similar approaches in the past – they have not been adopted. I also consider some aspects of the current proposal itself, including the unresolved tensions between equal and differential treatment of persons with mental disorders, and the potential practical consequences, especially for persons with general medical disorders. I conclude that the rationale for fusing two disparate bodies of law may itself be irremediably flawed, and the undesirable consequences significant.