The aims and reach of mental health law

Mental health law is concerned with the balancing of complex, and sometimes opposed, interests. Foremost amongst these is the interest that the mentally ill have in maintaining some measure of control of their lives through the making of their own decisions. This is based on the patient's right of autonomy, which is a crucial value in contemporary medical ethics. Important though the right of autonomy may be, however, the realities of mental illness mean that there are other interests to be taken into account. These include the interest that others— the patient's family and society in general—have in protecting the patient from the consequences of an illness, and the interest which the community in general has in protecting itself from potential harm caused by those suffering from mental illness.

The balancing of these interests is by no means easy. Mental health legislation may give psychiatry considerable power, including the power, normally reserved to courts of law, to deprive people of their liberty. One task of mental health law is to protect the vulnerable patient from well-intended but possibly unduly coercive intervention. Critics point out that the law has not always achieved this in the past, and that psychiatric patients have been denied many basic human rights; certainly the history of psychiatry has been marred by abuses of power over highly vulnerable people. Such criticism has been taken seriously by contemporary psychiatry, which has, in general, not attempted to defend an interventionist position but has recognized the extensive nature of the powers entrusted to it and sought to exercise them cautiously. In Britain, for example, reforms of mental health legislation in the early 1980s reflected the readiness of psychiatrists and the legislature to heed human rights concerns and to seek to achieve a balance between psychiatric power on the one hand and the rights of the patient on the other. These reforms were typical of the legislative changes made in many jurisdictions during the latter part of the twentieth century, with the result that many countries now enjoy a system of mental health law which appears transformed when compared with the previous strongly paternalistic system. This is not to say that the issue of human rights in psychiatry is no longer a live one: there continues to be a dialogue between exponents of patients' rights and those who wield compulsory treatment powers. Indeed there is also a counter-movement, which argues that legal reforms have gone too far in the direction of patient autonomy and have had the effect of denying treatment to those in need of it purely in order to avoid the use of coercive powers. Such critics hold that the case for paternalistic intervention needs to be advanced with greater conviction, and that stressing the right to resist compulsory treatment obscures the true nature of the mentally ill person's need. Joining this debate are the voices of those who argue that social protection must again be stressed as an important factor, and that concern over the right to liberty of the mentally ill has obscured the dangers inherent in premature discharge or in unsupervised presence in the community.

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