Chapter 5 Guidance on answering selected questions from the book

Question

Often, the argument is made that we need to protect the general public from the mentally ill. Are not the mentally ill themselves members of the general public?

Guidance

The Mental Health Act 1983 has become well established in the law. Many members of the public will be familiar with the concept of being “sectioned”. Yet we should not forget it is exceptional. As a case like S v St George’s NHS Trust establishes a patient with mental capacity can refuse treatment, even if without it they will die or, in that case, the foetus she was carrying would die. Remarkably, however, the Mental Health Act permits treatment on a non-consenting patient. So although the death of a patient or a foetus does not justify breaching autonomy, the fact they have a mental health condition does. So it will be worth starting the answer to this question by putting the Mental Health Act in the wider medical law context.
One justification for the unusual approach is that in cases under the Mental Health Act 1983 there is normally a fear of danger: either to the general public or to the patient themselves. You could explore the detailed provisions of sections 2 and 3 to examine this.
Two important points to make are that in fact those with mental health are a far greater danger to themselves than they are to others. You might discuss whether this strengthens or weakens the approach of the Mental Health Act. Second, it should be noted that treatment under the Mental Health Act must be treatment for a mental condition and you could explore how that fits in with the justification for the legislation.

Readings

Bartlett, P. (2012) ‘The United Nations Convention on the Rights of Persons with

Disabilities and mental health law’, Modern Law Review 75: 724

Large, M., Ryan, C., Nielssen, O., et al. (2008) ‘The danger of dangerousness: why

we must remove the dangerousness criterion from our mental health acts’, Journal of

Medical Ethics 34: 877