The treatment of mentally disordered offenders under capacity-based mental health legislation

Abstract

I agree that someone’s lack of mental capacity, or their inability to make proper choices, as I would prefer, has an intuitive moral force as a criterion for coercing them to accept care. The authors of “A Model Law Fusing Incapacity and Mental Health Legislation” (henceforth AML) are right also, I think, when they suggest that this moral force is reflected in the law’s widespread use of “choice based” criteria to
determine when and to what degree a medical patient’s stated wishes will be respected. I also agree that bad legislation can contribute to the stigmatization of the mentally ill.

As AML points out, mental health legislation has to incorporate many principles, some of which are in tension with each other. AML uses, as an example, the balance that has to be achieved between maximizing patient autonomy, on the one hand, and ensuring their safety and that of others, on the other. An essential principle in mental health legislation is that mentally disordered offenders need treatment and that the law should seek to ensure that they get it. As would be the case for any law, other principles will need to be respected too; but this one seems crucial. I am not convinced that the need to ensure treatment receives sufficient attention in AML. I also have some concerns over the details of what is proposed.