English Mental Health Law: Arguments for Justice, Equality, and Enhanced Compatibility with the United Nations Convention on the Rights of Persons with Disabilities

Abstract

Over the last two decades, the care and treatment of people with mental disorders has increasingly become the subject of academic and political debate. A key theme is the dichotomy of respecting individual autonomy versus the desire to protect the individual and the public from risk. Expert reviews of the Mental Health Act 1983 (MHA 1983) have differed in their recommendations: the 1999 review recommended a greater significance for mental capacity than the more recent 2018 review, which rejects capacity as a detention or treatment criterion. Academic debate tends to be somewhat polarised, some authors arguing for greater respect for individual autonomy, others countering that this would deny care and treatment to those who need it. The United Kingdom's (UK) ratification of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) in 2009 brought a renewed vigour to the debates. To comply fully with the CRPD would require significant, far-reaching changes to existing mental health and capacity law in England and Wales- though the perspectives of the CRPD Committee and the UK government disagree on the required level of change. This thesis sets out a unique approach that draws together principles from existing mental health, mental capacity and public health law, to better balance the competing needs of respect for individual autonomy and public protection, and to enhance compliance with the CRPD. The thesis has three central themes- risk, equality, and social justice. The theme of risk argues that risk posed by people with mental disorders is viewed disproportionally, risk posed (only) to self should be excluded from statute for capacitous individuals, and the risk presented by receiving mental health treatment is under-represented in the debate. However, the need for public protection is acknowledged, consequently 'substantial risk of significant harm to others', where caused by a health condition, is the proposed threshold for detention. The theme of equality asserts that the MHA 1983 is discriminatory due to the disparity in approach to compulsory treatment, when contrasted with the Public Health (Control of Disease) Act 1984. Under the approach in the thesis, treatment could be given only with valid consent, or where supported decision-making deemed it applicable. The theme of social justice uses the principles of Scanlon's contractualism to underpin the approach. The thesis ultimately argues that adopting a risk-threshold approach to the legal management of disorders that fall within the scope of 'health status' is a more socially just means of balancing individual autonomy and public protection.

Date of Award	1 Aug 2021
Original language	English
Awarding Institution	The University of Manchester
Supervisor	Neil Allen (Supervisor) & Nicola Glover-Thomas (Supervisor)