The legal background

Every jurisdiction has its own legal framework for mental health issues and it is impossible to provide a survey here of the wide range of legal solutions adopted. However, there is a wide range of general literature available on this topic. (12, and 3) The British model, which exists in English and Scottish versions, will be used here for illustrative purposes. Obviously there will be differences between the legislative arrangements in each country, but an understanding of one system will usually help to explain the rules of another system. The concerns with which mental health legislation deals are, of course, universal, and indeed there is now a strongly international flavour to the mental health law debate. This is demonstrated in the litigation on mental health matters which forms a substantial part of the business of the European Court of Human Rights. The international dimension is also underlined by a number of international codes which spell out the human rights standards to which individual countries should aspire in the promulgation of their domestic mental health legislation. Such codes do not have local force, but they are undoubtedly influential in the creation of international norms for treatment of psychiatric patients. An example of international guidelines is provided by the Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care adopted by the United Nations in 1991.(4)

At the domestic level, the common law starts from the position that every person has a right to physical integrity which must not be compromised except when there is clear legal authorization for such intervention.(5) In the medical context this means that no adult may be subjected to medical treatment of any sort unless he or she has consented to such treatment. This principle is firmly entrenched in the Anglo-American legal tradition—the legal system applicable in most English-speaking countries—and its breach may result in criminal and civil action. A person who is subjected to treatment to which he or she has not consented may have an action for civil damages against the person who treats him or her, and may also, in certain circumstances, expect criminal charges of assault to be brought in respect of the unwarranted intervention. The courts have emphasized that this right to refuse treatment may be exercised even when the treatment is necessary to save the life of the patient. In the Canadian case of Malette v. Shuman,(6) for example, substantial damages were awarded against a doctor who had administered a blood transfusion in the face of a patient's clearly-stated objection to such a procedure. English cases recognizing the right to refuse treatment include Re T (Adult: Refusal of Treatment) (7) and Airedale NHS Trust v. Blana.(8) It is not possible, then, to rely on an argument that the necessity of saving life justifies non-consensual treatment.

The right to reject treatment requires, however, capacity or competence to do so. A doctor is legally justified in giving emergency treatment to a person who is prevented from stating a preference by virtue of unconsciousness, and this justification extends to circumstances where the patient is, by virtue of mental disorder, unable to make a rational decision relating to treatment. The legal principle of necessity thus justifies the administration of life-saving treatment where the patient's mental condition makes it impossible to give a valid consent. It is important to note, however, that the necessity principle has strict limits. It is not possible to use it to override the preferences of patients where these are clearly expressed and where they have expressed an objection to treatment.

Mental illness raises very different legal issues. The law has developed a clear structure for the administration of treatment for persons suffering from mental disorder. This structure provides doctors with the power to treat without the consent of the patient and, as a concomitant of this, the power to deprive the patient of his or her liberty. However, the scope of this legal power is limited. Mental health powers are not intended to be used to treat other conditions, and in particular they are not intended to enable society to coerce those whose behaviour may be unconventional or antisocial but who do not suffer from a mental disorder.

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