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

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

Globalización y nueva complejidad social

El mundo está atravesando una transición de una sociedad industrial, que giraba en torno del trabajo como fuerza y valor, hacia una sociedad del conocimiento, cuyo núcleo es la información y la capacidad para manejarla y producirla. Esta transformación, que tiende a darse a escala global, ha sido impulsada fundamentalmente por los cambios producidos en el plano de la tecno-economía, cuyos actores primordiales son las transnacionales y los científicos y profesionales de la información. En el plano de la política, que no alcanza a dar respuesta a estos cambios, han cumplido un rol importante los nuevos movimientos sociales, que desplazaron la centralidad de los partidos políticos y de los movimientos sociales clásicos, como los sindicatos

A model law fusing incapacity and mental health legislation

An outline for a model law is presented here that would govern the non-consensual treatment of people who lack the capacity (or competence) to consent due to mental impairment, whether this is due to ‘mental disorder’ or ‘psychiatric disorder’ as conventionally conceived, or due to a ‘physical disorder’. Our aim in drafting this model law is to give coherent and practical expression to the case, previously made by two of the current authors, that separate legislation authorising the civil commitment of ‘mentally disordered’ persons is unnecessary, and discriminatory, and should be replaced by new, comprehensive legislation that would govern the non-consensual treatment of both ‘mental’ and ‘physical’ conditions. This new scheme – which we have described as the ‘fusion’ proposal – would be based squarely on incapacity principles: that is, on the impaired capacity of a person to make decisions about treatment, from whatever cause – whether this is due to schizophrenia, Alzheimer’s Disease, a learning disability, a confusional state due to infection, a cerebrovascular accident, a head injury, or any other mental impairment.A model statute of this kind, drafted largely by Rowena Daw, is presented here in skeleton form.  

Mental health law and the UN Convention on the rights of persons with disabilities

People with a mental illness may be subject to the UN Convention on the Rights of Persons with Disabilities (CRPD), depending on definitions of terms such as ‘impairment’, ‘long-term’ and the capaciousness of the word ‘includes’ in the Convention's characterisation of persons with disabilities. Particularly challenging under the CRPD is the scope, if any, for involuntary treatment. Conventional mental health legislation, such as the Mental Health Act (England and Wales) appears to violate, for example, Article 4 (‘no discrimination of any kind on the basis of disability’), Article 12 (persons shall ‘enjoy legal capacity on an equal basis with others in all aspects of life’) and Article 14 (‘the existence of a disability shall in no case justify a deprivation of liberty’). We argue that a form of mental health law, such as the Fusion Law proposal, is consistent with the principles of the CRPD. Such law is aimed at eliminating discrimination against persons with a mental illness. It covers all persons regardless of whether they have a ‘mental’ or a ‘physical’ illness, and only allows involuntary treatment when a person's decision-making capability (DMC) for a specific treatment decision is impaired — whatever the health setting or cause of the impairment — and where supported decision making has failed. In addition to impaired DMC, involuntary treatment would require an assessment that such treatment gives the person's values and perspective paramount importance

Response to the Commentaries

We are immensely grateful to the commentators for their careful reading of the Model ‘Fusion’ Law (ML). The level of support for our proposal from most of the commentators is encouraging as is the news that Northern Ireland intends to introduce legislation along similar lines. The aim of the ML is to eliminate the unwarranted discrimination against people with mental disorder that is inherent in current mental health legislation in England and Wales and in many other jurisdictions. We remain convinced that the principles underlying the enterprise are right and that they can be translated into a practical form. At the same time, excellent points have been raised by the commentators that have stimulated us to think further and to propose a number of revisions.The editors have invited us to respond briefly to the commentaries. We should have liked to engage with each of the commentators on a number of specific issues, but in our response we must focus on the major themes that have emerged

The concept of objection under the DOLS regime

In England and Wales, there are now two regimes under which an adult can be deprived of liberty when receiving mental health treatment: the regime established by the Mental Health Act 1983 (MHA), and the Deprivation of Liberty Safeguards (DOLS) authorisation regime established by the Mental Capacity Act 2005 (MCA). Where both regimes might apply to a mentally disordered person in hospital for mental health treatment, a major dividing line between them is the ability of the patient to “object” to being a mental health patient or to being given mental health treatment. If such an objection occurs, a hospitalised patient is ineligible for the DOLS regime and only the MHA regime may be used to authorise the deprivation of their liberty

Addendum

Possible amendments to Parts IV and V following review of the commentaries:As a result of a consideration of the commentaries on the Model Law we propose a number of possible amendments to Parts IV and V that take account of some of the points raised (see our response to the commentaries). We here reproduce the complete clauses as amended