Szmukler & Holloway (2000) put forward some plausible arguments in favour of incapacity as a key point in deciding when to administer treatment on an involuntary basis. However, there is the problem of how to assess the capacity of the individual in question.
Guidelines regarding capacity of individuals already exist (Department of Health & Welsh Office, 1999). Assessing capacity, however, remains a subjective process and any decision regarding capacity will depend on the assessor. Incapacity in such circumstances could then simply amount to disagreeing with the psychiatrist (Sayce, 1998). If such an Act were to replace current legislation, it would be important to avoid this pitfall. This can only be assured by taking into account the views of all concerned parties - professionals, clients and the public. Whatever changes are made, it will be important to avoid excluding individuals lacking capacity who would benefit from compulsory treatment, in the name of individual liberty; or including individuals for compulsory treatment whose views regarding treatment even remotely differ from the widely held beliefs of the profession, in spite of having the capacity to decide (Fulford, 1998).
The recent preoccupation of society and the psychiatric services with dangerous individuals with mental illness has become instrumental in demands for changes in the mental health legislation. However, to assume as Szmukler & Holloway do that the protection of society is the prime aim of involuntary treatment is ill-founded. They cite an increase in compulsory admissions as evidence. However, during this period other factors, such as targets to reduce rates of suicides and increasing charges of negligence against psychiatrists owing to widely reported cases of suicide and homicides, have also played their role in increasing detention of individuals under the Mental Health Act.
In the current environment there is a need for a broader and more open discussion involving professionals, clients and the public alike. Only by educating the public can we as professionals fulfil our duty in the shaping of a just and more humane policy towards people suffering from mental illness.