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Special Ed. J. Mental Health L. 34 (2010)
Mental Illness Is Different and Ignoring Its Differences Profits Nobody

handle is hein.journals/jmhl20 and id is 34 raw text is: Mental illness is different and ignoring its differences profits nobody Tom Burns' Szmukler, Daw and Dawson have produced a detailed and carefully worded proposal for a new approach fusing mental health and capacity legislation. In practice their proposal abolishes separate mental health legislation. It aims to ensure that compulsory care for the mentally ill is provided, when needed, according to the same principles as in severe disabling physical disorders (e.g. toxic confusion states, acute head injury, dementia). Their proposal derives from two strongly held and clearly presented principles - respect for the autonomy of the psychiatric patient and removal of what they consider the stigmatising discrimination between mental and physical illness. Capacity becomes the threshold for considering any compulsory detention or treatment. Their paper is in two parts. It starts with an introduction outlining the principles behind the proposed 'fusion' legislation and an overview of its practice. This is then followed by an extensive preliminary draft of their model statute in eight parts. These eight parts contain a detailed presentation of the mechanics and definitions of the processes of the statute; they cover details such as the different proposed orders, safeguards, operation of tribunals and even details of the transfer of patients to hospital. Drafting legislation is a complex and tricky undertaking and they appear to have made an excellent start. I will restrict my commentary to their introduction. This reflects my primary sphere of competence as a clinical academic psychiatrist, not a lawyer. It is also my experience that few, if any, clinicians ever read the details of legislation. Most familiarise themselves 'on the job' with the mechanics of those parts of the Act they regularly use. They learn what they have to sign and complete in order to achieve what they have already clinically decided on. Gaining any understanding of the principles of the Act is usually through exposure to where it restricts their clinical decisions. Such learning is via simple, practical requirements such as confirming 'treatability' or 'danger to others' in the detention of specific individuals. Where I describe 'what psychiatrists do' it is based on my direct experience of practice in the UK and in a range of international jurisdictions where I have worked alongside colleagues. These include various European countries, the USA, New Zealand and Australia and also in India and Hong Kong - in no way a scientific sample. However, I have been impressed by the strikingly similar decision-making processes and declared professional values of psychiatrists; this despite widely differing social and healthcare contexts and a range of mental health legislations. It will be clear that I do not believe that mental illnesses are 'simply social constructs' but have a consistency and reality beyond our diagnostic manuals and legal definitions. It is the nature of mental illnesses and their treatments that shape mental health legislation: not mental health legislation that shapes mental health practice (other than at the edges). I Pro4'ssor of Socud Psychiatry, University of Oxford, \arnefonl Hoslital, Oxford, OX3 7JZ tn.intrns@psych.ox.ac.uk Special issue Journal of Mental Health Law

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