Commentary on "The Time Frame of Preferences, Dispositions, and the Validity of Advance Directives for the Mentally Ill"

This paper could hardly be more timely or better focused to address major issues of current psycho-legal debate. Rarely has mental health law been the subject of so much legal, professional, and political debate and decision making. In the UK alone there has recently been legislation creating both “supervised discharge orders” for psychiatric treatment in the community (Mental Health [Patients in the Community] Act 1995) and “hybrid orders” conjoining justice and welfare sentencing by the criminal courts for some mentally disordered offenders (Crime [Sentences] Act 1997). In addition, court decisions have further defined mental competence to consent to medical treatment (Re C), defined what amounts to “treatment for mental disorder” under the 1983 Mental Health Act (Re B; Re MB; Tameside v. Glossop), and determined, first, that it is unlawful to detain a patient in hospital for psychiatric treatment who is legally incapable of consenting to admission without admitting that patient formally under the 1983 Act (L v. Bournewood), and then the reverse. Further, an important Law Commission Report on mental incapacity, which included major proposals concerning incapacity in relation to treatment for physical medical conditions (1993a; 1993b), now looks very likely to be enacted, given publication recently of the related British government Green Paper “Who Decides?” (1998). Finally, and very directly relevant to the paper, there is widespread belief that the government is moving towards substantial law reform in relation to mental health care.

What appears to be at the ethical heart of many of these activities is not, however, the principle of respect for individual autonomy, and reference to the importance of competence (with the notable exception of the Law Commission Report and the Green Paper), but the perceived imperative for public protection. Hence, proposals for a (non consensual) “community treatment order” are often justified on a public protection basis, sometimes even by psychiatrists (see, for example, Dyer 1998). Savulescu and Dickenson therefore go far beyond the current real world debate in the UK. Indeed, their paper assumes, for example, that psychiatrists are unwilling to respect the current (and past) wishes of their patients because of their lack of full “competence and rationality. “Although the 1983 Act is “permissive” and not “mandating” of doctors (Eastman and Peay) such that they can import their own additionally required element of “incompetence” into the “appropriateness” test for legal detention of patients, there is no empirical evidence of this. Indeed, there is very little psycho-legal empirical research evidence available in the UK at all. Perhaps more fundamentally, the Act itself clearly adopts a status test to determine detention (that is, “[having] a mental illness of a nature or degree . . . which makes [detention for medical treatment] appropriate”).

Although the paper is far ahead of its time in its conclusions, in its reasoning, it is finely focused on the key areas of current legal, professional, and political debate. Indeed, it exposes many of the policy “choices” which, in ethical terms, lie at the heart of current debate, including the core assumption that because the disorder which is to be treated (the mental disorder) is also the disorder which brings competence into question, the legal rules should be different from those which apply to treatment of other (physical) disorders. The contortions which the courts have gone through recently, apparently in order to achieve “just” results in individual cases (for example, for a patient [Re B] or for a fetus within a patient [Tameside v. Glossop], in particular stretching to the extremes the definition of “treatment for mental disorder” under the 1983 Act [Re B]) not only suggest the potentially dubious construction of the distinction but also the likely irrationality of the core assumption itself. This, in turn, exposes “public fear of (or at least distaste for) the mad” as the likely driving force behind our current status test for detention, albeit sometimes expressed as “the presumption of irrationality.” So the 1959 and 1982 Acts represent only very partial attempts to achieve “normalization” of mental illness towards the way in which physical illness is dealt with socially.

The...