To the Independent Review of the Mental Health Act 1983: Think again

By Harry Hudson

The recent review of the Mental Health Act 1983, published in December 2018, focused on increasing choice and reducing compulsion. It highlighted dignity as the first casualty of compulsive powers; their use was identified as denying self-respect to patients. When discussing compulsion, it failed to properly challenge involuntary medication of patients with capacity. In my paper, I argue that patients shouldn’t be faced with this; like any other inpatient with capacity, psychiatric inpatients should have their autonomous refusal respected. I arrive at this conclusion through implications of individual safety, public safety, authentic wishes and protection of future autonomy on the case of Mr Jones. Mr Jones was admitted to hospital after an episode of self-poisoning; he has a chronic history of self-harm in response to command hallucinations.

The most pervasive justification for involuntary treatment of patients with capacity is to protect the public. We are bombarded by real crime dramas and tabloid headlines about psychopaths, crazed killers and maniacs; this discourse readily feeds into the notion of mental illness as dangerousness. Even President Trump’s lamentable decisions reputedly result from a mental disorder. Established discourse predicates on dangerousness being a product of mental disorder.

We rarely hear headlines about mental disordered individuals being ‘normal’: volunteering, raising offspring, getting good exam results, etc. Statements like ‘he’s a bit OCD’, catwalk models ‘looking anorexic’, or media portrayals of criminality as a heinous manifestation of madness are extremely unhelpful. The discourse fundamentally misunderstands mental disorder; law and medicine are not immune, with both beset by a hyperbolic dangerousness fallacy.

Dangerousness is key to our mental health legislation and, I argue, does not provide a convincing moral case for involuntary treatment of patients with capacity. As Jonathan Herring points out, “in a US study, it was found that 165 of men aged 18-24 from low socio-economic classes were violent – a far higher percentage than those suffering from mental disorder.” He goes on to question whether, if dangerousness is our priority, Americans would justify incarcerating all poor young men. Compounding this, psychiatrists are roughly mistaken in half to three-quarters of patients they identify as dangerous. Even if you refute my paper’s moral case against the public safety argument, or think that the mentally disordered are still in some way potentially more dangerous, preventative incarceration plainly isn’t a practicable policy.

In Psychiatric Power, Michel Foucault argues that psychiatry “functions as power well before it functions as knowledge.” In a post-deinstitutionalisation climate, psychiatry controls bodies through psychopharmaceuticals, rather than directly as bodies in asylums: it is, literally, mind control. To control a patient’s mind without his consent seems as great an assault as I can conceive of. In the paper, I use Derek Parfit’s notion of psychological connectedness to explore mind control as murder of a previous uncontrolled self.

Legal scholars have argued that the current law contravenes the United Nations Convention on the Rights of Persons with Disabilities, because the mentally disordered are discriminated against. In my paper’s conclusion, I advocate for the fusion proposal, eloquently advanced byamongst othersGeorge Szmukler. This proposal endorses a capacity-based approach to mental health legislation, bringing psychiatry in line with other medical specialties. In the model, those with capacity can decide on treatment; those without capacity are treated in their best interests (like all non-psychiatry patients).

Changing our approach to mental health and the discourse surrounding it will be a lifelong endeavour for many activists. In the meantime, there’s a clear message from me about the Mental Health Act: let’s move away from its egregious injustices; a review of the Independent Review is the only way to prevent continued infliction of suffering on a vulnerable subaltern group. Bluntly, legislation specific to mental health should be abolished in favour of legislation on capacity covering all patients and all medical practice equitably.


Paper title: Coercion in Psychiatry: Is it right to involuntarily treat inpatients with capacity?

Author: Harry Hudson

Affiliations: Bristol Medical School

Competing interests: None

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