Offenders with a Mental Impairment Under a 'Fusion Law': Non-Discrimination, Treatment, Public Protection

Abstract

A common criticism of a ‘fusion law’ - a generic law covering all instances where a person’s ability to make a treatment decision is impaired, regardless of the cause, and furthermore which only allows non-consensual treatment if it is in the person’s ‘best interests’ – is that it fails to deal adequately with the protection of the public. This paper examines the implications of a ‘fusion law’ where a person with an ‘impairment or disturbance of mental functioning’ has committed an offence or where the person has been found ‘unfit to plead’ or ‘not guilty by reason of insanity’. It is argued that within the parameters of a fusion law, unfair discrimination towards those with a mental impairment placed on treatment orders by a court - as exists presently in nearly all jurisdictions - can be avoided while at the same time providing satisfactory public protection. This can be achieved through hospital treatment, voluntary or involuntary depending on the person’s decision-making ability and best interests (or best interpretation of ‘will and preferences’), and a form of supervision order in the community that is supportively structured, but includes special conditions to ensure compliance.