The model law fusing incapacity and mental health legislation – a comment on the forensic aspects of the proposal

Abstract

The proposal by Szmukler and others for a law that fuses mental health law and mental capacity law in England and Wales, both in the context of civil admissions to hospital based on the mental disorder of the patient and the making of orders by the criminal courts, can be summarised in the following quotes from their paper. They suggest:

“a legal regime that … relies squarely on the incapacity of the person to make necessary treatment decisions as the primary justification for intervention in their life.”

By intervention is meant both detention and treatment under compulsion: so, rather than separate criteria for detention (based on the risk of harm) and treatment (based on capacity, at least in part), there would be a single incapacity test “that specifies the conditions for both treatment under compulsion and treatment under circumstances amounting to a ‘deprivation of liberty’.”

What is meant by ‘incapacity’? It is an “inability to understand, recall, process, use or weigh relevant information; inability to communicate a decision; or inability to reach a decision that is sufficiently stable for it to be followed.”

There would be a requirement that there be no less restrictive option available than intervention; for emergency situations, there would also be a safeguard for intervention based on a reasonable belief as to a lack of capacity.