An Expert Committee set up by the Government in 1998 to advise on reform of the MHA endorsed two fundamental principles: non-discrimination against those with a mental illness, so they are treated like those with other illnesses, and respect for patients' autonomy (Department of Health, 1999). This led to a reconsideration of the grounds of involuntary treatment in general and to the conclusion that this must be connected with a patient's lack of capacity to make treatment decisions. ‘Capacity’, put at its simplest, refers to the patient's ability to understand the nature and purpose of the recommended treatment, including the consequences of having or not having it, and to reason using this information (Law Commission, 1995; Grisso & Appelbaum, 1998).
By any standards, the Committee complied with the Government's demand for a ‘ root and branch’ reassessment of the MHA: it recommended radical and far-reaching revisions — far too radical, it now appears. Table 1 summarises the key recommendations and, for comparison, the Government's proposals in the Green Paper (Secretary of State for Health, 1999). As Table 1 shows, the Green Paper finds capacity unattractive; the overarching principle is to reduce the risk of harm — to the patient and especially to others. However, where this principle comes from and why it should be primary is unexplained.
By any standards, the Committee complied with the Government's demand for a ‘ root and branch’ reassessment of the MHA: it recommended radical and far-reaching revisions — far too radical, it now appears. Table 1 summarises the key recommendations and, for comparison, the Government's proposals in the Green Paper (Secretary of State for Health, 1999). As Table 1 shows, the Green Paper finds capacity unattractive; the overarching principle is to reduce the risk of harm — to the patient and especially to others. However, where this principle comes from and why it should be primary is unexplained.
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