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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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