For many years, the law relating to treatment for a mental disorder has constituted an anomaly within legal systems which purport to privilege and protect the individual's right of autonomy. In many jurisdictions, including England and Wales, Australia, Ireland and New Zealand, mental health legislation limits the right of patients to make decisions in respect of treatment for their mental disorder, regardless of their capacity. Unsurprisingly, this differential treatment of people with mental disorders has attracted criticism from a range of perspectives. Indeed, as discussed in Chapter 1, critiques emanating from the ‘anti-psychiatry movement’ were part of the impetus for the move to an autonomy-based approach to healthcare decision-making more generally. As with the position in respect of people lacking capacity which was discussed in Chapter 5, there has been a significant shift towards more rights-based legal discourse in respect of people with a mental disorder. People with mental disorders come within the ambit of the European Convention on Human Rights (ECHR) and the United Nations Convention on the Rights of Persons with Disabilities (CRPD). Additionally, non-binding instruments setting out specific protections for the rights of patients with mental disorders have been adopted at United Nations and European levels. However, as will be seen below, it is unlikely that any of these human rights instruments will require a substantive reversal of the differential approach taken to the right of autonomy.
This chapter explores the legal and normative framework within which decisions about treatment for a mental disorder are made.