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We should replace conventional mental health law with capacity-based law

  • George Szmukler (a1) and Brendan D. Kelly (a2)
Summary

As general medicine moves away from ‘paternalism’ and places an increasing emphasis on patient choice and autonomy, George Szmukler and Brendan D. Kelly debate whether conventional mental health legislation should be replaced with a model that focuses on the person's decision-making capabilities.

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References
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1 Okai, D, Owen, G, McGuire, H, Singh, S, Churchill, R, Hotopf, M. Mental capacity in psychiatric patients: systematic review. Br J Psychiatry 2007; 191: 291–7.
2 Flynn, S, Rodway, C, Appleby, L, Shaw, J. Serious violence by people with mental illness: national clinical survey. J Interpers. Violence 2014; 29: 1438–58.
3 Dawson, J, Szmukler, G. Fusion of mental health and incapacity legislation. Br J Psychiatry 2006; 188: 504–9.
4 Szmukler, G, Daw, R, Dawson, J. A model law fusing incapacity and mental health legislation. J Ment Health Law 2010; 20: 922.
5 Szmukler, G, Daw, R, Dawson, J. Outline of the model law. J Ment Health Law 2010; 20: 99122.
6 House of Lords. Mental Capacity Act 2005: Post-Legislative Scrutiny. Report of Select Committee. TSO (The Stationery Office), 2014.
7 Cairns, R, Maddock, C, Buchanan, A, David, AS, Hayward, P, Richardson, G, et al. Reliability of mental capacity assessments in psychiatric in-patients. Br J Psychiatry 2005; 187: 372–8.
9 Martin, W, Michalowski, S, Jutten, T, Burch, W. Achieving CRPD Compliance: An Esssex Autonomy Project Position Paper. University of Essex, 2015.
10 Szmukler, G, Bach, M. Mental health disabilities and human rights protections. Glob Ment Health 2015; 2: e20.
11 Porter, R. Madness: A Brief History. Oxford University Press, 2002.
12 Kelly, BD. Mental Illness, Human Rights and the Law. RCPsych Publications, 2016.
13 Szmukler, G, Daw, R, Callard, F. Mental health law and the UN Convention on the rights of persons with disabilities. Int J Law Psychiatry 2014; 37: 245–52.
14 United Nations. Convention on the Rights of Persons with Disabilities. United Nations, 2006.
15 Kelly, BD. An end to psychiatric detention? Implications of the United Nations Convention on the Rights of Persons with Disabilities. Br J Psychiatry 2014; 204: 174–5.
16 Committee on the Rights of Persons with Disabilities. General Comment No. 1. United Nations, 2014.
17 Burns, T. Mental illness is different and ignoring its differences profits nobody. J Ment Health Law 2010; 20: 34–9.
18 Holland, A. The model law of Szmukler, Dawson and Daw – the next stage of a long campaign? J Ment Health Law 2010; 20: 6370.
19 Expert Committee. Review of the Mental Health Act 1983. Department of Health, 1999.
20 Banner, N, Szmukler, G. ‘Radical Interpretation’ and the assessment of decision-making capacity. J Appl Philos 2014: 30: 379–94.
21 Large, M, Nielssen, O, Ryan, C, Hayes, R. Mental health laws that require dangerousness for involuntary admission may delay the initial treatment of schizophrenia. Soc Psychiatry Psychiatr Epidemiol 2008: 43: 251–6.
22 Doyle, AC. A Study in Scarlet. Ward Lock & Co., 1887.
23 Doyle, AC. The Adventures of Sherlock Holmes. George Newnes, 1892.
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The British Journal of Psychiatry
  • ISSN: 0007-1250
  • EISSN: 1472-1465
  • URL: /core/journals/the-british-journal-of-psychiatry
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We should replace conventional mental health law with capacity-based law

  • George Szmukler (a1) and Brendan D. Kelly (a2)
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