I agree with Szmukler that the ‘fusion law’ proposal would help shift detention criteria from the presence of mental disorder to the absence of decision-making capacity, and that a revised version of ‘best interests’ would be useful. In this context, it is interesting that the expert committee charged with advising the government on revising the Mental Health Act 1983 found that only a ‘small minority’ believed that ‘a mental health act should authorise treatment in the absence of consent only for those who lack capacity’ and ‘if a person with a mental disorder who refused treatment was thought to pose a serious risk to others then he or she should be dealt with through the criminal justice system, not through a health provision’. 1 There was, however, ‘a much larger body of opinion which was prepared to accept the overriding of a capable refusal in a health provision on grounds of public safety in certain circumstances’. Notwithstanding this matter, I broadly agree with Szmukler that the ‘fusion law’ proposal would help move matters in the direction of greater compliance with the UN Convention on the Rights of Persons with Disabilities (CRPD).
Bennett’s letter is also very constructive. His consideration of mental health legislation in Scotland and Northern Ireland clearly indicates that neither of those jurisdictions meets some of the apparent requirements of the CRPD, and provides further support for my conclusion that there is little evidence that the UK ‘is ready for such profound change’. Reference Kelly2 Ireland, incidentally, has recently made some progress towards greater compliance with the CRPD, with the publication of the Assisted Decision-Making (Capacity) Bill in 2013. Reference Kelly3 There is, nonetheless, more work to be done in Ireland, as there is in England, Wales, Scotland, Northern Ireland and elsewhere, if the robust declarations of the CRPD are to generate meaningful and realistic protections for the full range of rights of people with mental illness.