Capacity as the Gateway: an alternative view

Abstract

The Royal Commission on the Law Relating to Mental Illness and Mental Deficiency (the Percy Commission) in its 1957 report put the case for providing “forms of control, within stated limits, over people suffering from mental disorder which do not apply to other people”. Paragraph 314 (i) of the report offers the following justification for compulsory treatment in the interests of the patient’s health: “When an illness or disability itself affects the patient’s judgment and appreciation of his own condition, there is a specially strong argument for saying that his own interests demand that the decision whether or not to accept medical examination, care or treatment should not be left entirely to his own distorted or defective judgment. Admission to hospital against the patient’s wishes at the time may be the only way of providing him with the treatment or training which may restore his health or enable him to take his place as a self-supporting member of the community or to develop his limited capabilities to the greatest possible extent. The better the prospects are of treatment or training being successful, the more important this consideration becomes.” The report goes on to say: “No form of mental disorder should be considered to be, by itself, a sufficient ground for depriving a person of his liberty. It is necessary to balance the possible benefits of treatment or training, the protection of the patient and the protection of other persons, on the one hand, against the patient’s loss of liberty on the other.”

This rationale, which is reflected in the provisions of the 1983 Act, is rejected in the Report of the Expert Committee on the Review of the Mental Health Act 1983 because it discriminates against the mentally disordered by depriving them of the right to patient autonomy, that is the right of people to make effective treatment choices. Crucially, the right depends upon the patient having capacity to make such choices: “Patient autonomy brings with it an inevitable emphasis on capacity.” (para.2.4) The purpose of this paper is to argue that the Expert Committee’s approach is flawed. First, because it would merely, to use the terminology of discrimination law, replace direct discrimination with indirect discrimination. Second, because in conceptualising the detainable mentally ill patient as lacking capacity to make choices about treatment it erodes the validity of other choices which such a person may make. Third, that it tends to weaken the criteria for compulsion to what is, in effect, a best interests test. Fourth, that the justiciability of questions of capacity is problematic where the incapacity both results from mental illness and is considered in the context of treatment for mental illness.