George Szmuckler explains his views on how mental health legislation in most jurisdictions (including England and Wales) discriminates against people with a mental illness. When it comes to involuntary treatment, it fails to respect – without adequate justification – the ‘autonomy’ of people with a mental illness, in stark contrast to the treatment of people with a physical illness. It further discriminates against persons with a mental disorder by allowing a form of preventive detention on the basis of ‘risk’, without any offence having been committed.
Mental health legislation thus carries underlying assumptions that people with mental disorders are not fully self-determining and that they are inherently dangerous. It is possible to frame a law based on impaired decision-making capacity, from whatever cause (whether due to a mental or physical disorder), that would counter such discrimination.