The ‘Fusion Law’ proposal
In the late 1980s and early 1990s it became clear to me that conventional mental health law governing involuntary detention and treatment of people with a mental illness was unfairly discriminatory. A radical change was necessary if such interventions were to rest on an ethical basis.
The following links show how the arguments have been developed:
Szmukler G, Holloway F. (1998) Mental health legislation is now a harmful anachronism. Psychiatric Bulletin 22: 662-665.
Dawson J, Szmukler G (2006) Fusion of mental health and incapacity legislation. British Journal of Psychiatry 188: 504-509.
I gave a public lecture in 2010 as part of the Gresham College series, entitled ‘How mental health law discriminates unfairly against people with mental illness’.
Synopsis: Mental health legislation in most jurisdictions (including England and Wales) discriminates against people with a mental illness. When it comes to involuntary treatment, it fails to respect – without adequate justification – the ‘autonomy’ of people with a mental illness, in stark contrast to the treatment of people with a physical illness. It further discriminates against persons with a mental disorder by allowing a form of preventive detention on the basis of ‘risk’, without any offence having been committed. Mental health legislation thus carries underlying assumptions that people with mental disorders are not fully self-determining and that they are inherently dangerous. It is possible to frame a law based on impaired decision-making capacity, from whatever cause (whether due to a mental or physical disorder), that would counter such discrimination.