Mental Health and Political Liberty- Time to Move from Rhetoric to Reality

Mental Health and Political Liberty- Time to move from Rhetoric to RealityIn England and Wales, people with mental disorders can be detained and treated under the Mental Health Act 1983, irrespective of their mental capacity. This is discriminatory and is the only sphere of health care and treatment in the UK where treatment can be given to a person in the face of their competent refusal. Usually, healthcare in the United Kingdom takes an individualistic stance, where capacity and consent are the watchwords of professionals- thus freedom is normatively basic. Yet mental health law adopts a collectivist position, not permitting a competent individual to refuse treatment, on the grounds that either the person themselves or others are put at risk by that refusal. Why do people with mental disorder occupy this category of ‘others'?It is asserted that neither beneficence nor prevention of harm are sufficiently compelling reasons to maintain this legal position. Instead, a fusion law approach should be taken to all users of healthcare services, de-linked from the idea of risk, and regardless of whether the problems they have are physical or mental. Claims that public protection- even where it overrides the autonomy of the individual- is a necessary element of mental health law, are not accepted: instead a ‘bright line' approach is taken, where capacity is the absolute barometer. It will be argued that where a person possesses capacity, only those healthcare interventions they give consent for should be given; and where a person lacks capacity, interventions may be given only in their best interests.