Memoranda submitted by Professor Genevra Richardson  (MH 22)
I offer this statement in my capacity as chair of the 1998-9 Expert Committee.
1. The debate concerning the proper shape of mental health law may have moved on since our committee published its Report to ministers in 1999, but the fundamental issues remain the same. In our Report we made a serious attempt to reflect the underlying values of all those with experience in the field of mental health care and thus the legislative framework we recommended was designed to respect both the needs of public safety and the dignity and rights of individual patients (Department of Health 1999).
Impaired decision making
2. Fundamental to the entire shape of our recommendations was a desire to encourage the treatment of mental ill health according to principles similar to those which govern the treatment of physical ill health. We were committed to reducing the discrimination present in the 1983 Mental Health Act both because we thought it wrong in principle and because of the stigma it so clearly reflected and encouraged. To this end we recommended the introduction of an impaired decision making (or incapacity) requirement for the imposition of compulsory powers in all but exceptional cases. Society does not impose treatment on those with physical disorders in the absence of their consent unless they are incapable of giving that consent and we believed that the same general principle should apply to the treatment of mental disorder.
3. It is therefore most unfortunate that a section of our Report was quoted out of context by Lord Hunt in the debate on 10 January (Col. 245). The impression was given that we had concluded that the whole question of patient autonomy and the impaired decision making (or incapacity) requirement that flows from it was fraught with such irreconcilable differences of view that it should be left to politicians to determine. That was absolutely not the case. We were clear and unanimous in our desire to see the introduction of an incapacity criterion. In our view there was no justification for allowing the overriding of a capable refusal of treatment except in very clearly defined circumstances:
"The distinction made between patients who have the capacity to make treatment decisions and those who do not ... is central to our desire to produce a non-discriminatory and principled framework for intervention in the absence of consent" (5.96)
4. Patients should not be subjected to compulsory treatment against their capable wishes simply in the interests of their own health or for the avoidance of annoyance to others. To do so would be to discriminate unjustifiably against mental, as opposed physical, ill health. We were, however, satisfied that the need to protect others from a patient who posed a substantial risk of serious harm could constitute sufficient justification to override that patient's capable refusal, and we recommended accordingly. A much more difficult dilemma was raised by the small minority of patients who retain decision making capacity but still pose a substantial risk of serious harm to themselves if they remain untreated. And it was in the context of this dilemma alone that we found the irreconcilable views quoted by Lord Hunt.
5. I would therefore urge the retention of clause 4 in its amended form. The presence of impaired decision making as a condition for the use of compulsory powers is essential if we are to apply the recognised principles of health care equally across mental and physical disorder. It will help significantly to reduce both the discrimination reflected in the Mental Health Act 1983 and the stigma which feeds on it. In the years since the publication of our Report our understanding of the nature and extent of the stigma attaching to those with mental disorder has greatly improved (Thornicroft 2006) and it is clear that the retention of the impaired decision making amendment would mark a significant step in the battle to combat it. Far from seeking to deny treatment to those who need it, the impaired decision making condition would place mental and physical disorder on an equal footing and would begin to break down those barriers which deter people from seeking the help they need.
Placing principles on the face of the Act itself.
6. The 1983 Act authorises significant infringement of individual liberty and both those with mental disorders and those who care for and treat them need to know the principles which should govern the use of these extensive powers. These principles need to be in the Act itself, not the code. If, as the government argues, the principles would sit uneasily within the drafting of the current Act, then it is not the principles that are at fault but the Act itself. The government should not be trying to reinforce an Act which is inconsistent with the principles of modern health care.
Department of Health 1999, Report of the Expert Committee Review of the Mental Health Act 1983.
Thornicroft G. 2006 Shunned: Discrimination against People with Mental Illness (Oxford University Press)
 Professor of Law, King's College London and Chair of Expert Committee on the Review of the Mental Health Act.