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Notes
KEY JOURNAL/BOOK SOURCES
1. Laing, J. 'Reforming the Mental Health Act: Will More Rights Lead to Fewer Wrongs?' (2022) MLR 30(1), p158
2. Bondi, L., & Burman, E., 'Women and Mental Health: A Feminist Review' (2001) Feminist Review 68, pp6-33
3. Glover-Thomas, N., 'The Age of Risk: Risk Perception and Determination Following the Mental Health Act 2007' (2011), M.L.R. 19(4), p581
4. Fanning, J., 'New Medicalism and the Mental Health Act' (2018) Bloomsbury Publishing
5. Foucault, M., 'Madness and Civilisation'
6. Thomas Szasz, Law, Libero, and Psychiatr: An Inquir inio the Social Uses of Menial Heallh Praclices (Syracuse University Press 1989 [1963]
John Coggon and Judy Laing, ‘Exploring New Paradigms in Mental Health and Capacity Law: Persons, Populations, and Parity of Esteem’ (2019), Northen Ireland Legal Quarterly 70(1), pp31-52
7. Fanning, J., Risk and the Mental Health Act 2007: Jeopardising Liberty, Facilitating Control?’
8. Szmukler, G., & Holloway, F., 'Reform of the Mental Health Act: Health or Safety? (2000) British Journal of Psychiatry 177, p196
9. Richardson, G., 'Balancing Autonomy and Risk: A Failure of Nervein England and Wales' (2007), International Journal of Law & Psychiatry 30, p71
10. Morgan, J., 'Does the Emphasis on Risk in Psychiatry Serve the Interests of Patients or the Public? Yes' (2013), BMJ 702
11 Rethinking Rights-Based Mental Health Laws, Bernadette McSherry, Penny Weller
Bloomsbury Publishing, 16 Aug 2010
Guiding Principles of WP:
1. Choice and autonomy
2. Least restriction
3. Therapeutic benefit
4. The person as an individual
Warehousing of Patients
Bondi, L., Burman, E., 'Women and Mental Health: A Feminist Review' (2001), Feminist Review 68, pp6-33
Therapeutic Benefit
Time's almost up for CTOs- implications for patient liberty
Rehabilitation & Reintegration- people with mental illness as the 'other'- patients as individuals
UNCRPD
Statement of Research Problem:
Judy laing's piece challenges the WP's assertion that its reforms represent an unprecedented transformation but her argument is not very interesting perhaps its too soon for her to be more critical but I think she couldve been a lot more critical
G. Szcmuckler and L. Gostin- seeing patinets as individuals
Madness & Civilisation MF
3. Reforms mark a shift from a prioritisation of risk-management to prioritisng patient autonomy and therapeutic benefit; but is this change simply at face value?
1. The reforms contained in WP2021 address concerns of MHA1983 marking a progression in prioritising patient welfare as opposed to minimising risk
2. Categorisation and medicalisation of people with mental disorders: Foucault. The state exerts biopower over certain populations through mental health law and policy
More Routes to Review
New Part IV and Therapeutic Benefit
If, as Fanning suggests the MHA is driven by 'risk'; then the 'new' MHA must be driven by therapeutic benefit in order to have meaningful improvement for service users
Autonomy, Suicide, Anorexia
Research Question:
Autonomy and anorexia-nervosa
Mothers detained under MHA
Racially disproportionate detention rates
'new' detention criteria
"It is not as a scientist that homo medicus has authority in the asylum, but as a wise man. If the medical profession is required, it is as a juridical and moral guarantee, not in the name of science" p270 or
"The physician could exercise his absolute authority in the world of the asylum only insofar as, from the beginning, he was Father and Judge, Family and Law- his medical pracitce being for a long time no more than a complement to the old rites of Order, Authority, and Punishmnet" p272 Foucault, M., Madness and Civilisation
How far do reforms contained in the White Paper 2021 demonstrate a shift from the centrality of risk to a prioritisation of therapeutic benefit and the patient as an individual in Mental Health Law and Policy?
JB Fanning, 'New Medicalism and the Mental Health Act' (2018) Bloomsbury Publishing: p42 risk provides the policy rationale for MHA; see also, N Thomas-Glover. My argument goes beyond this: yes risk is key rationale in necessitating detention, I agree that is is social control but it is more radical than risk... as literature and cases show necessary and sufficient risk can almost always be found by the responsible clinician (eg. Code of Practice- risk of condition getting worse without treatment that can essentially be applied to any mental illness) ; so yes risk is key rationale; however, it is not risk that matters (because risk is almost an empty concept it can be fitted to any patients circumstances) it is simply the fact that a patient has a mental illness. By virtue of a mental illness to the degree required of the MHA, treatment can be forced upon P regardless of their wishes. As JBF highlights the 2007 Act expanded which patients may be detained with focus on minimizing/avoiding risk. Most of the literature on detention is centered upon 'risk'. Reforms suggest a moving away from the a priori centrality of risk to seeing the patient as an individual wiht autonomy, rather than a risk to be extinguished and taken away from society. Do reforms move away from simply viewing patients as liabilities to themselves or others? Regard for the iatrogenic harm of being detained.- detaining a suicidal individual may stop them from physically harming themselves in short term but detention may be worse for long term rehabilitation (need statisitics)
Problems with prioritization autonomy when the autonomy of those detained under the MHA is routinely disregarded (A) --Prioritization of a vulnerability and care ethics approach is better as it is suited to WP principle of seeing the patient as an individual and could lead to better endorsing therapeutic benefit of P's treatment (B)
Care Ethics and The Autonomy Myth
Research Method:
Statement of research problem: the MHA criticised as failing to protect the wishes of the patient as an individual , the WP2021 aims to address issues, through its four guiding principles: autonomy, the patient as an individual, TB and least restriction. The detention and treatment of pregnant women is not addressed in the act or reforms and is carce in the literature.
Recent Court decisions on involuntary caesarean sections of pregnant women detaied under the Act highlight disatisfactory implications for pregnant women with mental illnesses: their individual wishes , future autonomy and wider conceptions of TB [X and Y v NHS Trust v A 2021]. the wishes of detained mother who is deemed to lack capacity will always be in her best interests and is often assessed to be a cure for her antenatal psychosis- United Lincolshire NHS v CD 2019, SLAM v R 2020. Anticipatory Declarations of Incapacity pose a novel and more threatening challenge to the rights of pregnant women with mental illness subject to the Act and in general. This dissertation explores why pregnant women detained under the Act have a unique experience with medicalism and legalism through feminist theory and postmodernist theory in order to trace thed root of the lack of endorsement of mentally ill women;s autonomy and the wider picturfe of the segregation and subjugation of those considered mentally ill- LA Mad, Bad and Sad; MF Madness and Civilisaton; JS Manufacture of Madness.
Once the root of biopower exerted by the State over individiuals with mental disorders through medicien has been explored, the dissertation is then able to examine justifications for the Act including deprivation of libertynin the name of health and prevednting riskand extingusihing autonoym JF NEw Medicqalism & NGT Age of Risk etc; negative implications nd cfriticisms of the Act: warehousing of patients, s.63 saying no to treatment, risk is circular, wide discretion for clinicians.
Reforsm aim to fix this could indicate a shift from risk to PAI and TB (see above for ways the WP does this)
But SLAM and CD do not show this in terms of Advance Choice Documents in line with old case law from CD and S v SWt Georges, paternalism specific to women with mental illness who are pregnant- not addressed in reforms or literqature
UNCRPD not in WP2021
Defence of psoition of the CTs
'The MHA and reforms fail to accommodate for the unique experience of pregnant women detained under the Act'