Treating the vulnerable in England and Wales: the impact of law reform and changing policy

This article considers the role of treatment in the provision of mental health care in England and Wales. The current legislative position with regard to the making of treatment choices following compulsory commitment will be examined. Consideration will also be given to the position of the informal hospitalised patient, as in the case of R v. Bournewood Community and Mental Health NHS Trust, ex parte L and finally, the role of the common law in establishing (in)capacity in relation to the non-consensual provision of treatment for physical conditions. Attention will then be given to the reform process, which is currently ongoing in England and Wales, and its likely impact on treatment provision. The Mental Capacity Act 2005 received Royal Assent on the 7th April 2005, while the draft Mental Health Bill 2004 underwent detailed examination by the Joint Scrutiny Committee, a report of which was published on the 23rd March 2005. On the 13th July 2005 the British Government outlined its response following the publication of the Scrutiny Committee's recommendations and despite it accepting many of the recommendations put forward, some significant areas of concern remain making the draft Mental Health Bill 2004 "a long way from acceptable legislation".