via Gresham College
Professor George Szmukler, Institute of Psychiatry, King’s College London
How mental health law discriminates against people with mental illness
Summary
Mental health legislation, as currently conceived in most jurisdictions, discriminates against people with a mental illness. It carries underlying assumptions that people with such illnesses are not fully autonomous and that they are dangerous to others. Thus such legislation reinforces damaging stereotypes of people with a mental illness. By building on the complementary strengths of capacity-based and civil commitment legislation, we propose a ‘fusion’ of legal principles into a model law which has decision-making capacity at its centre, but which clearly defines how the use of detention and force are to be governed. This comprehensive law is designed to apply to all persons who lack capacity, from whatever cause and in whatever healthcare setting. We have drafted a model law that demonstrates these principles can be given practical expression11. The model law, unlike the current MHA is, I would argue, compliant with the UN Convention on the Rights of Persons with Disabilities.
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