The Coronavirus Act 2020, enacted in light of the covid-19 pandemic, is a timely reminder that Descartes’ philosophy of Cartesian Duality—a theory that the mind and body are conceptually distinct—has long been reflected in legislation in England and Wales.
Powers have long existed under the Public Health (Control of Diseases) Act 1984 and various iterations of the Mental Health Act 1983 to detain people with physical or mental illnesses (respectively) against their will, if certain conditions are met. However, closer consideration of the relevant legislation reveals a Cartesian discrepancy in relation to whether patients with mental capacity can refuse treatment.
The Mental Health Act permits involuntary detention and forced treatment to prevent or reduce the risk of harm (under some sections of the Act), irrespective of a patient’s mental capacity to consent to treatment. In contrast, the Public Health (Control of Disease) Act permits magistrates to make orders in respect of involuntary assessment and detention to prevent or reduce risk—but involuntary treatment of a patient with capacity is not permitted.
The Government’s emergency legislation to combat the spread of Coronavirus is a notable reminder of the differing approaches, and presents an opportunity for policymakers to interrogate the different legislative approaches and consider whether the underpinning logical assumptions need re-examination.
At a glance, the Coronavirus Act offers some superficially similar provisions to the Mental Health Act. In a manner familiar to mental health services, the Police have powers to detain someone they reasonably suspect has Coronavirus (and is a threat to themselves or to other people as a result) and move them to a suitable location. The person can be compelled to take part in an assessment and detained against their wishes if this is thought necessary and proportionate.
However, forced treatment of a capacitous person is not permitted via the Coronavirus Act, in line with the prevailing conceptual orthodoxy—whereby involuntary treatment of a patient with a physical illness (presuming it is unrelated to a mental illness) is only legal if the patient does not have mental capacity (and it is in their best interests to be treated), via the Mental Capacity Act 2005.
The starkly differing approach to forced treatment in capacitous patients is reflected in legal cases which have made it clear that an individual with mental capacity has the autonomy to refuse even life-saving treatment for physical health conditions if they so wish, providing that they are unrelated to a mental illness (such as wounds from self-harming).
Other cases have established that someone with a mental illness shouldn’t automatically be presumed not to have the capacity to refuse life-saving treatment for an unrelated physical illness (which they can refuse if they have mental capacity to do so). However, involuntary treatment of a capacitous patient for mental illness is still permitted.
If the law accepts the principle that an adult with either a physical or mental illness (and who has mental capacity) should have the right to refuse even life-saving treatment if their own health is imperiled by a physical illness, then it is surely logically unsustainable that this should not be the case for someone with a mental illness if their own health is imperiled by that illness.
If a mental illness presents a risk to others then this is potentially both more politically and clinically complex, but this should not preclude consideration of capacitous refusal of treatment for a mental illness where the risk only relates to the patient themselves (as for non-communicable physical illnesses).
There is much to admire about the Coronavirus Act in terms of respecting the decision of someone with mental capacity to decline treatment. However, it certainly isn’t perfect. In contrast with the Mental Health Act, both the Public Health (Control of Disease) Act and the Coronavirus Act provide punitive frameworks for non-cooperation whereby courts can levy heavy fines if, for example, a patient absconds from quarantine.
Discrepancies in how different police forces have used the newly available criminal sanctions for Coronavirus suggest that their utility will no doubt be a topic for retrospective review. Notwithstanding its arguable other flaws, the Mental Health Act has successfully eschewed criminalisation of illness to date and further iterations should continue to do so.
Modern medicine has rightly refused to accept Descartes’ schism between the mind and body. The Coronavirus Act now offers lawmakers in England and Wales a valuable opportunity to consider how to follow suit—albeit without borrowing the bad with the good—and view psychiatric patients’ choices in respect of risk to themselves through the legislative lens of capacitous decision-making, irrespective of diagnosis. Successive governments have committed to achieving parity of esteem between mental and physical health—if they are serious then this is not a subject that can be shied away from for much longer.
Gregory Smith, Solicitor, Healthcare Advisory Team (London), Hempsons LLP
Competing interests: None declared.