The model law of Szmukler, Dawson and Daw – the next stage of a long campaign?

Abstract

Except for the criminal justice system, the Mental Health Act 1983 (as amended by the MHA 2007) is the most significant Statute in England and Wales that can be used to challenge a central principle of democratic society, that of the right of an adult to self-determination. Such legislation is considered necessary as there are circumstances when it is right and appropriate to admit individuals to hospital and
to treat them for their mental disorders in the absence of their consent. The need for an option of nonconsensual treatment for a physical illness is also apparent, such as in the case of unconsciousness where, for example, treatments without consent for diabetic coma or cerebral haemorrhage are likely to be lifesaving.
Whether the treatment is for a mental or physical disorder, the question is the same – when is it appropriate for someone else to take a decision on behalf of another? The paper of Szmukler et al and their proposal for what they refer to as ‘fusion’ legislation goes to the heart of the issues. What are mental health and mental capacity legislation there to do? What are the principles that should underpin such legislation? What safeguards should there be? In this paper the Szmukler proposals as set out are considered from a clinical perspective in the light of studies that have examined model capacity-based mental health legislation, internationally-based principles that should guide mental health law, and other proposals such as those of the Bamford report in Northern Ireland. Whilst the approach that is proposed is non-discriminatory and ethically defensible and desirable, the difficult issue is the balancing of the need for such legislation to be both versatile and non-bureaucratic and the need for an appropriate hierarchy
of safeguards that protect the vulnerable from unnecessary or inappropriate interventions. The proposed Bill put forward moves away from the thinking behind the Mental Capacity Act 2005 and is closer in its thinking to an expanded and capacity-based Mental Health Act. This requires further consideration.