ABSTRACT
The mentally ill have the same basic right to self-determination as the physically ill in respect to medical treatment.71 This principle is emphasised in the Law Commission’s report on Mental Incapacity (No 231) and in the Mental Health Act Code of Practice,72 which stress the necessity of providing patients with sufficient information to enable them to ‘understand the nature, purpose and likely effect of the treatment’. The test of capacity to consent to treatment was outlined in Re C73 and, despite recommendations by the Law Commission, has not been incorporated into statute. The mentally ill are not presumed to be incompetent, either at common law or under the Mental Health Act. The use of compulsory powers is not dependent on establishing incapacity, even when no risk to third parties is posed. The Code of Practice states that: ‘(a) person suffering from a mental disorder is not necessarily incapable of giving consent. Capacity to consent is variable in people with mental disorder and should be assessed in relation to the particular patient, at the particular time, as regards the particular treatment proposed.’74
