Balancing autonomy and risk: the Scottish approach

Abstract

The impact of compulsory measures of medical treatment for mental disorders have for some time interested medical and legal commentators, possibly because of the complex ethical issues these raise. In a context where stigma and discrimination are realities for many of those who use mental health services some people argue that holistic legislation, which places treatment for mental disorder within amore general framework of incapacity law, could reduce the stigma of mental ill health. Szmukler, Daw and Dawson have made an interesting attempt to show how such a law might look inpractice. They have built on and reflected the work of the Bamford Committee in Northern Ireland, which, while recommending a single legislative basis for mental health and incapacity law, fell short ofproducing a draft bill. In looking at these proposals from a Scottish perspective, we have resisted the temptation to focus on points of detail and have attempted to discuss certain themes. In particular, we have looked at how Scotland has introduced a capacity-based threshold for mental health law and how this compares with Szmukler et al’s proposed approach.