E110 - Is Sectioning People Ethical? Mental Health Law, Capacity, Assisted Dying, the Insanity Defence (w/ Alex Ruck Keene)

Alex Ruck Keene KC (Hon) is a barrister at 39 Essex Chambers in London, specializing in mental capacity, mental health, and healthcare law. 

In recognition of his significant contributions beyond the courtroom, Alex was appointed Honorary King's Counsel in March 2022. Beyond his legal practice, Alex is involved in academia and policy development. He serves as a Professor of Practice at the Dickson Poon School of Law, King's College London, and as a Visiting Senior Lecturer at the Institute of Psychiatry, Psychology and Neuroscience at King's College London. 

Alex has been instrumental in shaping mental health and capacity law policy. He was a consultant to the Law Commission's Mental Capacity and Deprivation of Liberty Project and served as the legal adviser to the Independent Review of the Mental Health Act 1983 in 2018. 

Today we discuss:

What is the purpose of the mental health act? 

What does it mean to be sectioned? 

What are the safeguards and appeals available to sectioned patients? 

How to think about complex questions legally like suicide and assisted dying 

The pressures mental health professionals face when making legal decisions 

What is  the legal concept of “Capacity”? 

Warning: This conversation includes frank discussion about serious matters such as suicide and assisted dying. 

You can find out more about Alex's work here: https://www.mentalcapacitylawandpolicy.org.uk/about-the-author/

Further accessible resources regarding the mental health act: https://www.mind.org.uk/information-support/legal-rights/mental-health-act-1983/mental-health-act-faqs/

Interviewed by Dr. Alex Curmi. Dr. Alex is a consultant psychiatrist and a UKCP registered psychotherapist in-training.

If you would like to invite Alex to speak at your organisation please email alexcurmitherapy@gmail.com with "Speaking Enquiry" in the subject line.

Alex is not currently taking on new psychotherapy clients, if you are interested in working with Alex for focused behaviour change coaching , you can email - alexcurmitherapy@gmail.com with "Coaching" in the subject line.

Give feedback here - thinkingmindpodcast@gmail.com - 
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Transcript

[00:00:00] Welcome back, everyone. Today we're going to be making an episode, the likes of which we haven't really made before, an episode talking about the law. Psychiatry as it stands amongst other medical specialties is uniquely involved with the law for lots of different reasons and that could be because patients sometimes have to be detained in hospital against their own will, sometimes given treatment against their own will, and there are also issues of what's known as mental capacity. 

Many complicated situations involving both mental health problems and physical health problems where decisions need to be made in a patient's so called best interest. And I'm so pleased to have Alex Rakeen with us here to discuss this. He's a leading barrister specializing in mental capacity and mental health law. 

He's a professor of practice at King's College London and a legal advisor on key policy reviews. Today we discuss what is the purpose of the Mental Health Act. What does it mean to get sectioned in hospital? What are the criteria on which a [00:01:00] medical team can decide to section someone to hospital? What are the safeguards and checks against this process? 

What are the ways a section can be appealed by a patient or their family? We discussed the pressures psychiatrists face in making these decisions. The difference between the Mental Health Act and the Mental Capacity Act. What is this concept of mental capacity? How do we assess it? Lastly, we also discussed how someone with a mental health condition can be defended for their crimes on mental health grounds. 

And we discussed the controversial issue of assisted dying, including the bill recently proposed by Labour in October 2024, proposing legislation to legalize assisted dying for terminally ill adults, and how that compares to existing legislation in countries like Belgium and the Netherlands. This is the Thinking Minds podcast, a podcast all about psychiatry, psychology, therapy, and self development. 

If you'd like to support the podcast, do check out the links in the description. As [00:02:00] always, thank you for listening. And now here's today's conversation with Alex Rakkeen. 

Welcome Alex to the podcast. Thank you for joining me. Brilliant. Well, thank you and thanks so much for having me. Maybe starting off with some basics around the Mental Health Act for the uninitiated. What would you say is the purpose of a piece of legislation like the Mental Health Act? That's such an interesting question. 

Um, I was the legal advisor to the review of the Mental Health Act, chaired by Sir Simon Wesley. And at one stage, he asked me if I could try and draft a clause, a section of the bill, or the act, to say, what is its purpose? And when you get into that, you realize that in some ways, the Mental Health Act in England and Wales is very badly titled. 

Because when you read the Mental Health Act, you might think it was an act which was designed to make sure that everybody Enjoyed the best possible quality of mental health. [00:03:00] I mean, that's what you might think. But the reality is, actually, it's not that at all. And very crudely, I mean, reduced really to its bare essentials. 

It's an act for the regulation of potentially coercive, uh, admission and treatment. in the context of mental disorder. Framed in human rights terms, I think it's important to understand that what it's trying to do is enable the state to discharge the obligation it's got to try and make sure that wherever possible people don't lose their lives unnecessarily. 

For instance, to suicide in a risk, uh, in, uh, in, in the context of a mental health, um, Crisis, or also to try and make sure that people aren't just left in conditions of complete squalor and neglect if that squalor and neglect arises, not from a so called lifestyle choice. We may come back to this, but anytime anyone talks to me about lifestyle choice, I get quite cross. 

Um, but if someone's in a condition, a serious mental health condition and living in circumstances of [00:04:00] squalor and neglect. And the state's aware of it, that might give rise to the state's duty to protect them under Article 3 of the European Convention on Human Rights. So what it's trying to do is provide a framework to allow the state to discharge its obligation toward people, but not doing so in a way which locks them up arbitrarily. 

But also, and also means that they're not being treated against their will, for instance, without proper safeguards. So it's a very long answer, but it's a super, super important question you ask. Yeah, and what I found really in researching this podcast and researching the different kinds of legislation involved is that every piece of legislation needs to carry some kind of tension between at least two opposing forces. 

So in this case, it sounds like the Mental Health Act is trying to carry on the one hand the tension of, Protecting people when they're vulnerable, say due to a mental health condition versus respecting their autonomy and their ability to make [00:05:00] decisions for themselves, be they good quality decisions or not. 

And these are the kinds of decisions, as a psychiatrist, when I use the Mental Health Act, I'm trying to struggle with. Is it legitimate in this particular situation, whatever situation I'm faced with, to use the power of the state to essentially temporarily take away someone's rights? These are, these are the tensions that seem to be involved with the Mental Health Act. 

No, I agree entirely. I think the only thing I might disagree with is it's not taking away someone's rights. I think, and I know why you say that, and quite often that said, and of course, if you simply, you and the other pieces of the machinery involved, simply detained someone, without actually going through the checks and balances provided for in a mental health, you would be removing their rights. 

But what you're really trying to do is balance, for instance, their right to life, or potentially, we didn't talk about this earlier, the right of other people to life. I mean, as you know, people with mental health conditions are generally far more at risk from other people than they are, than they pose a risk [00:06:00] to other people, but there might be those circumstances. 

So you're trying to balance those rights against the right of the individual concerned not to be, uh, to colloquially turn banged up. So I, but I think it's, whenever I, whenever I do training, I always It's really trying to emphasize the point you, you're making, which is you're thinking about balancing. 

And the other thing I would say, and I, I always say this is the most important thing a lawyer in a way can possibly say to psychiatrists or other professionals involved in this zone is, the law here is very good at telling you, you could. It's very good at telling you these are the steps you could go through to complete the medical recommendation to say this person requires detention and then an approved mental health professional to consider that. 

It says literally nothing in the Mental Health Act about should you. And the should comes, well either it's the balancing in human rights terms, or really it's an ethical question, which is why people listening to this of course won't be able to see your face, but when you were saying it, it was visible that on your face you were grappling with an [00:07:00] ethical dilemma, and please keep grappling. 

Yeah, I think, I think one, the advice I would give to people just training in psychiatry, still training is To not resist the grapple, I think when some, sometimes when people find these situations where, you know, there's not a clear, obvious outcome there's a, there's a desire to maybe extinguish this tension, but actually it is this tension that's very important. 

And it's the tension that's a basis for a huge amount of our practice, whether it's using the Mental Health Act or prescribing medication or various other interventions. I wonder if you could tell me, so, so now that we have an understanding of what the Mental Health Act is for. What does it mean when someone gets sectioned? 

There'll be listeners who's family members. I've been sectioned. What does it, what does that mean exactly? Well, it shows how culturally Mental Health Act is now rooted. I mean, it's been around in some form or other relatively close to this, or [00:08:00] relatively close to this since 1959. I mean, it's an incredibly old piece of legislation. 

Which is why there are lots of calls and it's being reformed at the moment. Uh, and it's amazing how sectioning is a word everybody, almost everybody knows. It's a really familiar word and there are also all sorts of urban myths associated with it. For instance, if you've ever been sectioned, you can't go to America, which is just not true. 

I mean, it really just genuinely isn't true, but people have that understanding or misunderstanding, but essentially what sectioning means is. You have been admitted to a mental health hos mental health facility or ward pursuant to one of the sections of the Mental Health Act. And normally, one's either thinking about section two, which is where you're admitted for a short time for assessment, or section three, where you're admitted because, in essence, people know what the problem is. 

It's that you need to be in hospital to be looked after and provided with treatment in circumstances where it's considered not possible to deliver that treatment [00:09:00] outside hospital. So sectioning in short terms, just means you've been admitted formally to a mental health hospital. Mm-hmm . And I'm, one of the things I was really curious about when researching was what the hell was happening before 1959? 

So I think, I mean, I teach, uh, mental health and capacity law on the mental health ethics and law masters program at Kings, and I always talk about the history because I think it's so interesting and so important because this is kind of pendulum which goes backwards and forwards over time between informality and formality. 

And what's very interesting in, in, in the late 19th century, people had got so disturbed of people being admitted entirely informally into private psychiatric facilities. I mean, kind of Victorian novels, appalling situations, frequently difficult family, family members, rather more often than we'd like to accept, like to admit for family members who are female and perceived as being difficult. 

In other words, they were thinking for themselves. And so they were locked up without any [00:10:00] form of regulation at all. And so therefore there was an idea that we need to have an awful lot of regulation to make sure there isn't an abuse of power. Come 1959, and it's the aftermath of a really interesting commission, the Percy Commission, where actually the Percy Commission was really trying to say, why on earth do we have such a disparity between mental health and physical health? 

If you go into hospital to have your broken leg treated, you don't need to be sectioned to go into hospital. You go in, you're treated on the basis of your consent. And the commission took what one might think was an incredibly enlightened view for mid 20th century to say, Why is there disparity? Why do you have to be admitted to a mental health hospital only under incredibly formal circumstances? 

So in 1959, actually, the reality is that they tried to make it much more informal. They didn't use this term, but in reality they were trying to talk about parity of esteem between mental health and physical health. And then the pendulum started swinging back towards more and more formality, gets much more formal in 1983 and [00:11:00] again in 2007. 

because of concerns that that informality is leading to abuse by psychiatrists. And it's perhaps not entirely, um, a coincidence, in fact, not remotely a coincidence. If you think about the landscape from 1959 onwards, it's dominated by things like One Flew Over the Cuckoo's Nest, and a really strong anti psychiatric movement, quite often actually driven by people who were themselves psychiatrists saying, we're committing abuses here. 

And so you get this pendulum going back towards much more formality. We're probably at a zone where we'll never be able to get the law out or formality out. But you do quite often get situations where people are going, the more thoughtful lawyers sometimes, might say, I don't know how much all of this formality and all the tick boxes that one has to go through, is this actually really helping deliver a good quality therapeutic relationship? 

Because the reality is, psychiatrists [00:12:00] want to deliver a good quality therapeutic relationship with their patients, patients would like to have a good quality therapeutic relationship with their psychiatrists, and on one view, the more formality you have to have, the more difficult it becomes. I struggled with that a lot because, on the one hand, The law and this legislation, of course, allows you to treat your patients in very difficult and extreme circumstances. 

And on the other hand, it did very much get in the way of the building of that therapeutic relationship. And of course, because of the use of the Mental Health Act, many of the relationships I had with patients in inpatient settings and, you know, relationships I observed with my colleagues. were of an adversarial nature and often war drowns and patient reviews were dominated by discussions of the law and what was possible in terms of the law rather than what the patient's situation was and their treatment. 

But I'm not sure if there's an easy way around that particularly. No, well, I think it's, I mean, I think it's incredibly sad to hear that. It [00:13:00] doesn't surprise me because I've heard it a lot. I think it's very sad. Um, and it's of course, Doesn't always have to be the case and every so often what one of the situations I love is where the patient and their doctor Ally together against the system and that can be amazingly powerful Um and don't and of course the mental health that does provide You and the chump card is If you're detained, you can be treated against your will. 

But it doesn't say you have to be treated against your will. And the Code of Practice, which accompanies the Mental Health Act, is very strong on psychiatrists trying wherever follow, wherever possible, to follow their patient's wishes. And the Mental Health Bill, which is going through Parliament at the moment, um, so this is February 2025 when we're recording this, So that's going through parliament at the moment and quite a bit of that is picking up on the independent review and Quite a bit of the independent review was trying and when I when we were on review We very squarely had in mind nudge theory is trying very very hard to nudge [00:14:00] practice towards if you follow what your patient wants You have less paperwork to carry out. 

If you don't follow what your patient wants, you'll have an awful lot more paperwork working on the theory that big bang things like you're not allowed to do this, just. It probably don't work, but actually if you're a busy psychiatrist and you've got a choice between two medications, your personal view is you think one might be slightly better, but the patient makes clear to you, I really don't want that because of the side effects I've had, but I don't mind this other one. 

Which you as a psychiatrist goes, well, I'm not a hundred percent sure. If you could be nudged towards going, I'll go with the one which I might personally not think is the best one, but I can tolerate, I don't think it's, I think it's clinically appropriate, and this is the one the patient's indicated, I don't mind this one because I don't like, I don't mind the side effects as much, bang, less paperwork. 

Whereas if you have a psychiatrist who goes, I am totally wedded to my particular fixed view of this medica [00:15:00] or this condition requires this medication, that psychiatrist would have to go through considerably more hoops. So it's, it's a not a very, it's a rather un, um. When the review was published, we had lots of people be rather rude, saying this is extremely unexciting. 

But actually, if you think about it, that might be a way of nudging people towards helping those kind of therapeutic relationships, which actually at the end of the day, people want. I think that's definitely an important factor, but I want to mention another important factor to you, and you tell me what you think. 

Perhaps you've heard this before. One of the biggest anxieties I observed in training psychiatrists when they were working, particularly seeing people in A& E, people in crisis, was that the psychiatrist was going to make the wrong decision and perhaps by not using the Mental Health Act and allowing the patient to decide for themselves, the patient may take their own lives or do something else that's high risk and someone might come to harm and therefore that psychiatrist or other [00:16:00] professionals involved. 

would be scrutinized and perhaps given some sort of disciplinary action against them by the coroner's court and such. And I know because I've talked to enough training psychiatrists that this does, there's a huge motivating factor for potentially using the Mental Health Act, not inappropriately. But using it, um, because of this, this, this sincere worry of the potential legal ramifications. 

Do you think, I suppose my question would be, do we, if we're going to use less restrictive practices, do we also be needing to give psychiatrists somewhat less responsibility as a result of the outcomes of a patient's choice? Should we be giving patients more responsibility? It's an incredibly complicated question. 

But I'm giving it to you anyway. It's a brilliantly complicated question and it's got so many different layers to it. Can I just go one bit, which I need to just get out there now, which is, we do have situations where [00:17:00] psychiatrists say, I think you've got capacity, for instance, to decide to self harm, or I think you've got capacity to decide to take your own life. 

And they decide at that point that they won't necessarily deploy the full, as it were, force and majesty of the Mental Health Act. Um, I think there are a number of problems with that. One being, I haven't the faintest idea how you're supposed to assess someone's capacity to take their own life. There's never been a case which has said, this is the relevant information you need to decide to be able to make that decision. 

So there's no legal precedent? No, it doesn't, it doesn't mean, it's not a thing. There must be a decision and there must be, if you think about the Mental Capacity Act says, a decision that what is the relevant information. But there has been no legal case in England and Wales which sets it out. And also, I slightly defy a psychiatrist in a busy A& E setting or a busy ED setting to be able to go, [00:18:00] I've been able to actually make this proper assessment. 

What I think is sometimes going on, and this came up very, very strongly in the Mental Health Act review, by the way, I think there might be two At least two different things. One, and I have a massive amount of sympathy with everybody involved here, is that essentially the psychiatrists know we're full. 

There is no bed. There is nothing, there is nothing we can offer. And as opposed to saying, look, I'm really sorry, there's just nothing, we can't offer anything here. They feel, morally, it's easier to say, I think you've got capacity here, so in some way this is saying, this is your decision. And Chloe Beale, a psychiatrist I do a lot of work with, has some very powerful things here to say about magical thinking. 

And I think that's sometimes like, that, you know, it's fundamentally dishonest. To be, to be thinking like that, but I understand entirely in circumstances of massively stretched resource, it feels easier to be saying that there is [00:19:00] also a phenomena, and I think this is beyond anic data of a certain group of people, quite often, almost invariably women quite often diagnosed with things like. 

so called emotional, well not so called because diagnosed with emotionally unstable personality disorder or borderline personality disorder who present themselves very often in crisis. And what is going on is actually quite a difficult and quite a subtle conversation about the balance of responsibilities. 

And what's, what the mental health professors are trying to say is there's a limit to how much we can be the safety net. And that's a really difficult conversation to have. I am not a fly on the wall on those conversations, but I understand how difficult they can be. But when they get filtered through, you've got capacity to do this. 

It's, I don't think, a very helpful filtering, not least because if someone is presenting themselves. Presenting saying, I feel that I'm at risk of suicide, the Mental Health Act is not capacity based. And so it's risk based, and [00:20:00] you've got a situation where the person is presenting themselves, the risk appears to be high, the fact the person appears to have capacity to decide to take their own life, as discussed, we don't know what that is, doesn't get the mental health professionals off the hook. 

So I think I just wanted to emphasize that because I think that's actually, it's a really complicated and frankly quite toxic cocktail, which has got a lot of components to it. The other bit though, where, which is slightly different, but is linked in your complicated, but very important question, is situations where psychiatrists and other mental health professors are genuinely grappling with the concern that they don't want to get too restrictive too quickly, and they're worried that if they're seen not to get too restrictive too quickly, and the person then goes and does something awful, they're going to be in real trouble. 

And we got cases like the Rabone case, where the Supreme Court took some quite unusual views about essentially retrospective risk assessment. What happened in that case? Could you walk us through that case? So in that case, the [00:21:00] person had been an informal patient, so they hadn't been so called sectioned. 

They were in hospital informally, which actually means they could just come and go as they wanted. But they'd been It was always weird the way that the Supreme Court described it as allowed home because if you're there in a hospital informally, you can just go. But anyway, there was an agreement she could go home. 

And what was really going on was the mental health professional team were trying to work with her to allow her, she was a young woman, to get to a situation where she could manage better. at home because otherwise all that was going to happen was she would remain institutionalized. And so phrases like positive risk taking and things like that arise at this point. 

But it was thought through, but she went through and she took her own life. And so in the context of a case about did the trust breach its duty to secure her life, the Supreme Court did some quite strange, frankly, retrospective risk assessment saying at point A, the risk of her taking her life was sort of 18 [00:22:00] percent then it was 73 and I'm making up numbers, but there's got this almost fictitious precision to them. 

But the reality is if someone has taken their own life, the risk of that particular person taking their own life ultimately was 100%. And so you get into very difficult terrain and George Schmuckler and others have written very powerfully about the difficulty of risk assessment because you've got population level risk. 

We can identify various factors which might predispose and things like that, but we can't actually say in any given case with any given person with a degree of precision. And so the Rabone case led to, and we really grappled with this on the review, on the review, mental health review, a lot of Twitch. an understandable twitch on the part of mental health professionals thinking, well, I'm going to get in trouble if I don't do something. 

But of course, one of the sad trees is we know people take their own lives in mental health hospital. It's not, it's not as easy as don't be in hospital and be dead and be in hospital and be alive. And I'm sorry, I know we keep talking about [00:23:00] people taking their own lives, but that's where, that's where things really gets hard edged. 

And of course, we also similarly have situations where. Somebody with a mental health condition carries out a terrible act and kills somebody else. And then invariably there is, well why wasn't this person detained? Or if they had been detained, why were they discharged? Why were they allowed out on leave? 

So I think to go back to the premise of your question is, you know, should psychiatrists be given less responsibility? I think I, I'm not sure I could put it that way, but what I think I could ask for, and for what it's worth, I spend quite a lot of my time trying to do this, is trying to make sure that coroners, And other people involved in the kind of after action are better able to understand how it is that the law works here in terms of the balancing and how it is that they're then, and I try to always make the point you should only, you should only ever be judging mental [00:24:00] health professionals or social workers, for instance, involved in the detention process on the basis of the information they had at that time and whether their actions were reasonable. 

And whenever the law says reasonable, and this is one of the reasons lawyers are forever people, turning people in your position to write things down, what we're asking is, do you have a coherent explanation for what you're doing? And if you've got coherent explanation, and it's written down close to the time, you're a much stronger ground explaining after the event, this is what I did, why I did it on the basis of the information I had at the time. 

Yes, in retrospect, it might have been that another course of, and of course, when someone's died, you can always find another course of action. But it goes back to that, why are people acting reasonably, which is why the lawyers are always telling people, could you please write things down, which psychiatrists and other people get incredibly irritated about. 

But it's that making sure it's defensible practice. And so do you think there is enough of an understanding among, say, coroners, people like that, that's [00:25:00] Risk assessment is, in fact, incredibly difficult. Uh, no. No, I don't think there is. I think it's, I mean, several, many coroners, not all of them, but quite a few coroners and many people listening to this might know, I mean, coroners are a very unusual Part of our kind of system in the sense that that they're judicial office holders But they're judicial office holders a very specific type and they have an awful lot more as we're Independence than most all judges are independent, but coroners are particularly kind of rule their own fiefs Fiefdoms and some coroners have got a health law background and will understand that some coroners won't necessarily have that they will have training But they won't necessarily have that kind of feeling for, you know, why didn't you do something? 

And of course, whenever someone has died, and I've acted in inquests on behalf of parents of the person who's died. And so of course you're going to be saying, why on earth did you not do more? And it's always much [00:26:00] easier to say, why did you not do more? Rather than, why did you do, you know, shouldn't you have done less? 

And I think it's, it's, it's an ongoing fight that everyone has to have because, and it's a fight that everyone has to have. Because otherwise you end up in a kind of lobster trap of restrictive practice. Because it's very easy to get into more restriction, and it's very difficult to get out into, well sometimes we've got to accept bad things happen, and bad things happen because people are trying not to do stuff which is too restrictive. 

Which goes right back to the discussion we had right at the beginning, which is how are people trying to balance these duties here. Remembering always, we're trying to, you know, balance that positive duty, for instance, say, someone's life, but not do it in a way which, say, massively interferes with their autonomy, that actually it makes it, I don't want to say worse than death, because that's loading it too high, but, you know, that, that's where we're really trying to make sure we're striking the balance correctly. 

Yes, and I should point out also that, of course, it's important for psychiatrists, [00:27:00] like any healthcare professional, to have their practice scrutinized. When that's appropriate, you know, because we are taking very, very important decisions very often. So I think that's, that's, to have that, that check and that safeguard is extremely important. 

What I would say on the subject of risk assessment, I think having worked in hospital wards, busy community teams and things like that is, it's really the problem of finding the needle in the haystack. As a psychiatrist, you're basically having conversations many times a day, I'd say even 10 times a day about suicide. 

Patients telling you about suicidal thoughts with varying levels of intensity and planning. And so, but, but, but an actual suicidal event is quite rare. You know, it might happen if a psychiatrist is training over a six year period, they might be. Adjacent to two or three suicide events, something like that, pretty rare. 

And so that's the [00:28:00] problem. You're being somewhat emotionally desensitized by virtue of the fact that it's an issue you're constantly talking about. You're constantly trying to identify who is the one who is most at risk. But as we've discussed, it's so hard to do that. No, I agree. And I, I, I, it's very easy for a lawyer like me to be pontificating from the outside as it were. 

I mean, I sit adjacent and I do a lot, awful lot of work. In this zone, but it's not, it's not me having those conversations. And I think one of the things is, is also the extent to which I think it's so important. And I think situations are always much easier to think about when it's more than one person involved. 

So it's not just, as it were, one psychiatrist, it's other people, there are nurses picking up, there are other people around, there are other people who are going, what are the signs here? Or those situations where I'm going, this feels either very risky or very problematic. And it's, is there someone else I can talk to about this? 

And obviously that's sometimes simply impossible, you know, that the [00:29:00] one person on call at 3am in a liaison psychiatry busy hospital A& E is impossible, but it's the second you've got more than one person around to bounce the thing off and go, you know, where do we go? What do we think? is I think always, which is one of the reasons just got on, on, on the mental health detention side, just to go back if people aren't familiar with it, just to be very, very clear, mental health detention is never just one doctor saying, admit. 

So that was going to be my next question. What are the conditions where a medical team can decide to a, for example, use a section two of the mental health act to detain someone in hospital for an assessment? What are the conditions that allow for that? So I think it's really important to understand. So section two. 

That's the situation where you're thinking, where people are thinking, and it could be in hospital, it could also be, um, in the community. This person appears to be experiencing a mental health crisis of some kind. We need to get them into hospital formally. Um, to make sure that they are, we can assess and [00:30:00] if necessary start treatment. 

So you've got to have two medical recommendations. There are certain rather limited circumstances where you can go down to one. But in general, you've got to have two medical recommendations, including one from a doctor who's so called Section 12 qualified. So they've got specific, you know, psychiatrists with specific qualifications to make sure that they understand the Mental Health Act, um, and how it applies. 

So two medical recommendations. And then the really, really important thing, which, People sometimes don't quite emphasize enough is that those recommendations have to be considered by an approved mental health professional who is not a medic. Most approved mental health professionals are still social workers. 

There can be other disciplines, but most are still social workers. And they have to consider whether in light of the medical recommendations and all of the circumstances, it's appropriate to make an application for admission. And sometimes. And, and, and, and there can be very, some very interesting power dynamics going on between different teams. 

And also, it can also be very much [00:31:00] where people are feeling very, very risk sensitive. They go, we need to admit, we need to admit. And a social worker might be coming along, or an amp, as they're quite often called, might be coming along and going, the bigger picture is, no, that's the wrong thing to do. And people go, I can't hold this risk without this person being admitted. 

And doing a lot of work training social workers and training amps. It can be quite fruitful that, and, but quite challenging, those sorts of discussions. So the whole point is, and I think it's important to emphasize here, England and Wales is unusual in this actually. Many other jurisdictions involve a judge. 

detaining from the beginning. I mean, Scotland in general does, for instance, um, or a tribunal. In England and Wales, the idea is it's detained first, then challenged afterwards. So, because it's detained first, then challenged afterwards, it's very important there's a multidisciplinary element to the detention. 

And then the patient, the person who's detained can try and challenge that before a tribunal. But some of the listeners to this might be familiar with other jurisdictions [00:32:00] where it's some form of magistrate or somebody who's doing the detention. That's just not how it's set up in England and Wales. Yeah. 

So then once someone is admitted to A mental health hospital, say, under a section, what are the appealing procedures, safeguards available to them? So I think, um, well, essentially what they can do is that they can appeal pretty much immediately to a mental health tribunal. So in a mental health tribunal, there's quite strict statutory time frames in which mental health tribunal has to convene. 

And the important thing about the Mental Health Tribunal, a bit like the admission process, is it's multidisciplinary. So there's legal expertise, there's psychiatric expertise, and then there's specialist non medical expertise. Um, and their job is a, is a limited, very important one, so a limited one, which is do you still meet the criteria for detention? 

Because it might well be that you were extremely unwell when you came in. But actually, and let's see, let's, let's go back. I always think it's interesting to go back and remember the original [00:33:00] word asylum, it's not, it's very toxic in this zone. It's very tarnished in this zone, but the original idea of an asylum is a refuge from the world. 

And so in some circumstances, the very fact of being in a hospital can in fact be, give that person the space. Within which to recover sadly in the state of NHS in particular services in this country at the moment That's probably more aspirational than than always the case, but it's not impossible. So it might be that the very mean it does happens Yeah, for example, I've seen a case where someone was in a state of psychosis because of using cannabis and three days in a mental health ward and they were actually much better. 

And I think in that case, the section was removed just by the consultant on the ward. They didn't even need to go to the tribunal stage. Thank you for reminding me that's, um, it, it, it, cause the way you framed it was, was route of challenge, but of course there's the psychiatrist, the responsible clinician. 

So the person in charge of the [00:34:00] person's care must always keep under review whether they need to be detained. And it's perfectly possible just to detain. And the person, the patient can also challenge a detention to the hospital managers who are lay people. Um, who the hospital appoints to keep, in essence, an overview of what's going on. 

There's always slight query about precisely how their role functions, but there's another set of people who are supposed to be keeping an eye on, and the patient can challenge to, but the very formal route of challenge is to the mental health tribunal. And one thing we haven't said yet, uh, what, what, what are the criteria for detention? 

Well, in essence, you've got to have, um, a mental disorder, which can be very broadly defined, um, of a nature or degree warranting admission for assessment, if we're talking about section two, or, um, treatment assessment followed by treatment, or treatment if we're talking about the longer term section. And there are various other kind of nuances around that, but in essence, you've either got to have something which is a condition which comes and goes, but currently is. 

[00:35:00] As it were coming, so you're having a relapse, or it's you've got something where something's come on suddenly and you really do very badly needs to be in a mental health hospital in order to be looked after. So it's, it, mental disorder is incredibly broadly defined. And again, that goes back to, um, uh, the discussion we're having right at the beginning about, you know, the law is very good at saying, well, you could say somebody's got a mental disorder because if you go and look up in the diagnostic manuals. 

Yeah. You know, there is an enormous range of things that you could diagnose somebody as having a mental disorder, but it comes down to, that's fine. So that's kind of starting point, but that doesn't necessarily mean it's actually sufficiently serious at this point in time to warrant admission. And that's the sort of thing where. 

The psychiatrist and then also the, or the psychiatrist and the doctors, um, and then the social worker, um, are having to grapple with, okay, this person may have a mental condition, mental health condition, but does it really actually mean they have to be in hospital right here, right now? And on the longer term [00:36:00] treatment side, it's incredibly important to understand. 

Two things, one, the person can only be admitted if that treatment can't be delivered outside hospital, and two, and the courts have been getting ever clearer on this, you can only admit someone for treatment if there's genuinely appropriate treatment available. And so for instance, You can't just simply say, well, being in hospital on a long term basis is treatment, because you've got people around you. 

That's not treatment. You've actually got to be able to say, there's something we think we can offer, which will either make your condition worse, or alleviate it, alleviate it, or it's sintered, and it's genuinely on offer. And if you can't do that, you can't admit, because the, the, the courts are becoming ever clearer. 

It's utterly improper just to use the mental health vat to warehouse somebody. Which gives rise to some very complicated issues we, I think we probably can't really get into here. That's amazingly complicated issues in terms of people, um, who have got [00:37:00] things like personality disorder, who were considered to pose a risk to other people, but it's not really very obvious what the treatment is for personality disorder. 

And, and you will see the courts tying themselves sometimes up in enormous knots on justifying detention. And the psychiatrists involved are going, we don't think we're doing anything here. Yes. And that was something I wanted to ask you, which is, do you see it as a problem that the Mental Health Act as it stands now can apply to individuals with quite different disabilities? 

Yes. categories of conditions. So for example, that's one end, something like a personality disorder, which is said to be more using a simple term, heavily psychological versus something like a severe episode of mania or psychosis, which, you know, I've been having a lot of debates on the podcast about this, but the mainstream psychiatric view would be more heavily biologically determined. 

Do you see it as a problem that the mental health act is trying to encapsulate this huge spectrum of [00:38:00] conditions? It's a very interesting question. I mean, um, I find it quite interesting that the Indian Mental Health Care Act 2017, which is a really fascinating piece of legislation everyone should go and look at, not least because it actually tries to say one of the things we're trying to do is make sure that people have a high standard of mental health. 

So it goes back to they really are trying to do that. But there. The, the lawyers and the, the doctors involved in drafting naps up drafting that were really alive to the fact that just an idea of mental disorder being any, you know, disturb disorder or disturbance in the mind or brain was just enormous. 

And so they tried to say, which is recognized by, as it were, standard diagnostic manuals, which is quite interesting. They were, you know, they're really trying to tie it down. And I have a lot of sympathy with that, but I think one of the problems is, I mean, human beings are human beings and human beings manifest themselves in almost every single way you can possibly think of. 

And when you start trying to categorize down, it gets really very difficult very [00:39:00] quickly. Welcome to my world. Exactly, exactly. And we're living that at the moment when recording this because The government wants to change the mental health act so that you cannot detain someone under Section 3 if they're autistic or they have a learning disability. 

So long as they haven't got something standing alongside that condition. And that goes, you know, an awful lot of people would think. Autism is not a mental health condition, why is it lumped under the same bracket? But the second you start digging into the kind of, well, in that case, autism shouldn't be under the mental health act, because, for instance, it's not treatable in a conventional sense, well you start going, well there are lots of other things which aren't treatable in any conventional sense, so why are they under the mental health act? 

And once you start pulling at that thread, some people might think an awful lot of the scaffolding starts falling away, and then you come in. You can't have threads and scaffolding, but you know what I mean. But you then come back to, a lot of this is around [00:40:00] the law giving a lot of flexibility, a lot of discretion. 

But at the same time, requiring a lot of care to be exercised, and we might have a discussion about how often that care is exercised, a lot of care being exercised by the people applying that law to explain their reasoning. And I think, having been around the houses a long time on this, I have some considerable reservations about trying to define things too narrowly, because every time you try and define something too narrowly, you find a case which doesn't quite fit. 

And so I think, to my mind, but other views are very much available, I think the very important thing is what we're really after is transparent and accountable mechanisms by which psychiatrists and approved mental health professionals and judges are explaining their reasoning. So, and Routes of Challenge, which enables, enables people to be supported to say, I just completely disagree. 

Absolutely. That makes a lot of sense to me. Transparency, showing you're working, coherent explanations. [00:41:00] Is there a country around the world which has a corresponding piece of legislation to the Mental Health Act that you think we should emulate in the UK? You mentioned India. Would that be a country that you think we should emulate? 

Is there another country? Well, I'd really like India because, I mean, I should say my understanding is that it's an incredibly ambitious piece of legislation, um, against a backdrop of situation where mental health services in India are, in many cases, just completely lacking. So part of the point of the legislation was to try and make sure there was even a base level of service provision. 

And it's run into an awful lot of resistance as it's being rolled out. But I think what I really like about that act is it's got a clear purpose. It's got much, I've got a much clearer, we're trying to make, you know, everybody enjoy a higher standard of mental health purpose, which sounds terribly aspirational, but it's really important. 

And then it's got quite a lot of structures for thinking through [00:42:00] those circumstances under which we might need to override someone's will and trying to make those as limited as possible. I mean, the other country, which is interesting. Um, is, well, it's not technically a country, but it's a part of the jurisdiction within the United Kingdom is Northern Ireland, because in Northern Ireland, they passed in 2016, an act which tried to fuse the Mental Health Act or Mental Health Order in Northern Ireland with mental capacity legislation. 

So in Northern Ireland, when it comes fully into force, the idea is there won't be, with sort of limited exceptions, stand alone mental health legislation. Which goes back to the discussion about the Percy Commission. Because really, it goes back to the idea of why do we treat people differently, just because they say, I mean to be really crude, they've got a broken mind as opposed to having a broken leg. 

Why don't we just proceed on the basis that if someone's got capacity to make the relevant decisions, we don't intervene. And if they don't, We intervene and try and make sure that we give them the care which is in their best interest. And why should it make a difference if it's a mental health problem or physical health problem?[00:43:00] 

It should just be capacity, is that argument? Exactly. And the problem with Northern Ireland is, um, for all sorts of other complicated reasons, it isn't fully in force. So everyone has been watching to see this kind of test bed, and it's not in force, so we don't know. And going back to our earlier discussion about capacity and suicide, I think quite a lot of people might have some reservations that It sounds brilliant, but it might license mental health professionals in a stressed situation with stretched resources to go, we're not going to intervene because you've got capacity. 

And that might be, might be the right thing to do. It might conversely also be entirely the wrong thing to do. And if we don't have capacity based legislations, we don't in England or Wales at the moment, people are still on the hook. I was a very, it's unbelievably complicated. Um, but yeah, this is not a straightforward area of the law because it's not, it's life and life isn't easy, but this law here, law here was particularly complicated. 

Yeah, it's [00:44:00] interesting how the problems with. Mental health law just echoed the problems of psychiatry itself, so I think I'm really enjoying this conversation for that reason. One question I wanted to ask is, is there any particular area or aspect of the Mental Health Act as it stands now which you think is worth revising, which really needs some kind of specific update? 

One bit I think is really important to revise, and it is being revised, quite, how it's going to come out of Parliament when the Mental Health Bill passes, I'm not quite sure. But it's this idea of advanced choice documents, so enabling people to be supported to make documents which make much clearer what they want and what they don't want. 

And I don't just mean around medication, I mean around, um, all aspects of their care and treatment. Um, because It's one of the few tools that we've got which can maximize the chances that people are actually going to have their voices listened to. And it's also one of the few tools we think we've [00:45:00] got which might do something concrete to deal with the fact that the Mental Health Act is being rampantly overused, um, against black people in particular. 

I mean, the stats are absolutely shocking. Um, and it is. The one thing we're absolutely clear about is it is not that black people, in particular black men, it's not that they have higher rates of mental ill health than anybody else. It just isn't that. There's a whole cocktail of circumstances, some of them being the overlap between, um, the social, I mean, the social determinants of mental ill health. 

So if you live in socioeconomic deprivation and the overlap between socioeconomic deprivation and black people, the Venn diagram is, is disturbingly large. So that might mean there's a, there are greater risk of mental ill health. We also just have flat out racism in how the Mental Health Act is applied. 

Um, in particular, the, you know, young black person being seen as black and aggressive and psychotic, when in fact that's not the case at all. But one of the things I think we also have, and I should say, this is one of the [00:46:00] bits of work I was really heavily involved in on the mental health review, working, trying to think through what legal tools might there be. 

But one of the things we've got going on is, in part because of the historic and continuing rampant misuse of the Mental Health Act, a massive distrust of mental health services. So if you don't trust mental health services and you don't think you're going to be listened to, the likelihood, and again, going back, this is population level, not individual, but there is a higher likelihood that you may not be seeking to engage before the point you're much worse. 

And then we really are talking about the mental health bank, mental health app being used. But having been involved in a really interesting project at South London and Maudsley, um, at the South London Maudsley Trust, trying to do advanced choice documents for specifically black service users, it is a tool through which you might enable people who have had some contact with mental health services to give some element of, if you get readmitted, your voice will be listened to. 

And so [00:47:00] there is a small We don't want to oversell it, but there is a small but important change one could make in terms of increasing trust and therefore meaning we might actually be able to reduce the amount of, uh, well, the mental health card being just completely improperly used. It's, it's a multifaceted, amazingly complicated problem, but from a, being a pure lawyer. 

There's only so much the law can do. I'm now very leery, and to use a technical term, about lawyers overselling what the law can do here. But that is a law, that is a legal tool, which might actually make a, make a change. Because an awful lot of the other problems are, and in a way you've been alluding to this throughout the conversation, an awful lot of the other problems aren't anything really to do with the law. 

They're to do with resources. They're to do with risk aversion by psychiatrists. They're to do with societal views about the risk posed by people with mental, Health conditions. That's not the law. That's a whole series of problems. Money, that's society, those sorts of things. There are, but that's so that we wouldn't want to be too, as I said, overselling [00:48:00] what the law could do, but there are some specific things I think. 

And that, that, so to pick an advanced choice documents would be one of them. Yes, and before we move on from the Mental Health Act, one other thing I wanted to ask was, aside from the tribunal, which you mentioned, are there any other ways, steps that can be taken by a patient detained in hospital or a family member? 

To try and appeal a section and get it lifted prior to their attending physician deciding that that should be the case. So, um, the, uh, a patient's nearest relative and that's a, a, a strange legacy, um, thing in the sense of it reflects kind of late 20th century views a family likes. There's a kind of statutory list you go down. 

Um, one of the things the Mental Health Bill is changing is to try and make it so that you can appoint your nominated person. So there isn't just a statutory list. But the patient's nearest relative can say to the responsible clinician, I want this person out. Um, the responsible clinician can bar, well they can actually have [00:49:00] ways of stopping them going in, but if they're detained, they can say, I want this person out. 

The responsible clinician can bar, um, It's actually if they think that to discharge a person would be dangerous. And then the nearest relative or the patient can appeal that to the tribunal. There's nearest relative discharge route, there's the hospital managers, and there's the responsible clinician keeping people's positions under review at all times. 

So, there are multiple tools, um, where someone is detained to make sure that they, it, they're not just languishing with nothing happening. Yes, and I'll put a link in the description to a resource perhaps where people can access this kind of information quite easily about how the Mental Health Act works. 

I think that could be helpful. Moving on to I think it's really important. Didn't shout yet. So I was just going to say I think it's really important and charities like MIND have got an awful lot of very useful resources written in very, um, family friendly and patient friendly ways. Great. Yeah. Moving on to the Mental Capacity Act. 

So what are we, what's the difference here between Mental [00:50:00] Health Act and Mental Capacity Act. So I think it's, so if we go back to the Mental Health Act is essentially about at its hardest edge, the regulation of coercion in the context of admission and treatment. We've discussed it isn't always coercive, but that's your hard edge tools. 

The Mental Capacity Act is much broader because it's really about. In the zone we're talking about, thinking about acts of care and treatment across the board. So, um, that's physical health treatment, but that also could be things like where someone lives, who they see, things like that. And so that's predicated on an idea of capacity. 

So in other words, can the person make the decision they need to make at the relevant time? I think one really important thing to understand is the Mental Capacity Act doesn't give people power to do anything. Where the powers for people to do things are coming from are from other places. So a local authority might have some power to move somebody from a situation of self neglect [00:51:00] into a care home. 

That might come from somewhere else, and what they're thinking about is, are we saying, we'd like to move you, and the person's capacitously agreeing? Or are they saying, we think we need to move this person, but the person hasn't got the ability to agree? And then they're thinking, is it what's called in the person's best interest for them to move? 

So the Mental Capacity Act just covers a whole lot of stuff. It also covers frameworks for thinking about where people can't make their own decisions about money, about property and affairs. It's also got the ability for people to plan ahead to make, appoint people to do things like lasting powers of attorney to make decisions about the health and welfare of property and affairs. 

So really the Mental Capacity Act is enormous. far bigger. Mental health act is very limited. Um, the two kind of knock together in certain quite complicated ways, but, but I think it's always easier to go back and think the mental health act is primarily focused on the regulation of coercive where necessary admission and treatment in hospital. 

The mental capacity act is across the board. Now, one of the problems I encountered with capacity is. I'm learning about [00:52:00] it as a doctor with other doctors who have been at med school for five years and in training and I think we unconsciously treated capacity as we would other aspects of biological functioning. 

So like in hospital you might measure someone's renal function and you get a very specific quantity or you measure their blood count. So we thought capacity, I think we unconsciously thought capacity to be a. biological facet, whereas something that I found very helpful was when someone said, listen, capacity is not biological. 

Capacity is a legal construct that's designed to interact with the law. Do you think that's a fair definition of capacity? Yeah. And I think it's very honest of you. Um, and I mean, very true, but also, I mean, in a sense of, it's undoubtedly the case that many people think that, but I was very honest and reflective to have that idea that you had this sense that this was some kind of biological construct construct. 

And we also have an awful lot of people who do things like. [00:53:00] If the person has a certain score on the MMSC, so the mini mental state exam, or they've got a certain score on the MOCA test, that's it. They have or haven't got capacity, which is just wrong at so many different levels. A, it's not a biological thing. 

And B, you can't have or lack capacity. You have or lack capacity to make a specific decision. And it's very important to understand, and thank you for flagging it, it's good that the psychiatrist is telling the lawyer that there's a legal test as opposed to the lawyer telling the psychiatrist there's a legal test. 

But yeah, it's a construct, but it's important to understand that doesn't mean it's fictitious. It's a construct which is a valid construct, which is, we as a society have said, there are some circumstances under which we're not going to take your no or yes as determinative. And we are setting the bar to say what those circumstances are going to be. 

And I think when you come at it that way, you start then going, Oh, okay, now I understand I need to be probing whether this person's yes or no is determinative. And I [00:54:00] should say in this, I nearly got lynched by a group of consultant psychiatrists actually once. When I, I said, Why are you only ever bothered about your patient's capacity when it looks like they want to refuse something? 

Because actually, the patient's capacity to consent to treatment is just as important because you're interacting with that patient on the basis that their capacity to consenting to whatever you're prescribing. If, in fact, they don't have capacity to consent, then what's going on, and you haven't recognized it, is you've made a best interest decision to prescribe that medication to the patient. 

Let's just assume this is outside the scope of the mental health app for a minute. And that's, it may well be absolutely right, but morally and legally, it's on you, the psychiatrist. You've just made that decision for the person. If the person has got capacity, then morally and legally, it's on the person saying, Yep, I accept and understand the risks. 

I'm taking them. That's an incredibly important point and I think it also applies to the Mental Health [00:55:00] Act. So one of my first consultants that I trained under told me if the Mental Health Act is appropriate to use, you should use it even if the patient is sort of passively going along with what you recommend. 

So for example, if a patient is, uh, severely psychotic and clearly, uh, posing a risk as a result of that psychosis, um, but they're in the moment, just willing to go with any decision you make, you should still heavily consider using the Mental Health Act because the Mental Health Act affords certain protections and supervisions like the involvement of a tribunal and so on, um, that are, they're important oversights. 

Would you agree with that? Yeah, I mean, I think this, I mean, I think this, the reason I'm sounding hesitant is this gets very complicated very quickly because this is about which regime is the right regime to use. I'm going to be really annoying and say, I suggest [00:56:00] it's probably best not to get too far down this route because from long experience of going down this route, it's a rabbit hole, which we can get ourselves very confused and very quickly. 

What I would suggest if I'd be. Maybe shameless is if people want to have a think about the framework, so is it the Mental Capacity Act or the Mental Health Act as the framework within which someone's admitted and treated that they have a look at a video on my website because I've done a video on 20 minutes on the interface between the Mental Health Act and the Mental Capacity Act with some slides. 

And I think it's probably easy. I mean, it's a, it's so important to highlight it. Um, but I think it's, it's just a long experience. If we go down, it's fascinating. And then three quarters of people listening to this will go, I'm now completely lost. Yeah. Fair enough. And the devil is in the details of the case ultimately. 

So that's really important to understand, but important to understand that these, these are decisions that need to be made, which framework to use going back to capacity. So how is. define, how is capacity defined in this context? How do we make decisions about [00:57:00] who has capacity and who doesn't? So what you do is you go and look at the Mental Capacity Act and what you do is you look at the Mental Capacity Act and it tells you in sections two and three that what you need to tease out is can, what's the decision you're asking the person to make? 

You need to know what the information is you think that person needs to be able to understand, retain, use, and weigh to be able to make their decision. And you also need to know whether the person can communicate their decision. And you always have to be trying to support the person. So if it looks like they're having difficulty using, weighing the information because they, they have difficulty thinking in abstract terms, for instance, what you need to do is try and think of a way to make sure that it's presented in a concrete way. 

So you try and work out. With support, can they understand, retain, use away the information and communicate their decision? If they can't, then you go on to ask, well, why not? And the Mental Capacity Act is very specific and says you're only allowed legally, remembering this is a legal test, to find a person to lack capacity to make the [00:58:00] decision if the reason they can't understand it, say, is because of an impairment or disturbance in the functioning of the mind or brain. 

And the courts are very clear that you start with can the person make the decision in the way I've just described and it's only if they can't you then go on to ask why not. And the courts are also very clear you need to draw what's called a causative link between the two. Because it's really important to understand just because you've got dementia say, doesn't mean you can't make any decisions. 

You may have dementia and not be able to make decisions about complex financial arrangements, but perfectly able to make decisions about who you want to see. And so it's really important to zero in on the decision and it's really important to zero in on, is the problem, the underlying condition actually mean that this person can't make this decision? 

What are the situations where someone might lack capacity, not because of a disturbance? Of mind, body, or brain. What are the other potential reasons for lacking capacity? That's a really good question. That's a really good [00:59:00] question. And the ones which are really clear and we really, you know, we, we, we, we thought when we passed the Mental Capacity Act in 2005, we divided the world into, in the case of adults, we're just talking about adults here, children are different. 

We thought we divided the world into adults who lacked capacity to make relevant decisions and adults who had capacity to make relevant decisions. And essentially, if they had capacity, And then we realized, of course, people are people and life is much more complicated. And so you might well have somebody who is under very heavy influence from somebody else. 

So the doctor's engaging with the patient, and the patient has a family member there, and the family member is very strident. And every time the doctor asks the patient a question, the patient looks to the family member. And the doctor goes, look, it's really important. I'm trying to get, I need to understand this patient's decision. 

And they asked the family member, would you mind awfully stepping out of the room? Family member steps out of the room. And every time the doctor asks the patient, [01:00:00] the patient looks, you know, through the door as it were to where the family member might be. And then the doctor might form the view. I don't think there's anything wrong, particularly, there's nothing, I can't identify this person's got, you know, a learning disability. 

I can't identify this person's got. Schizophrenia. There's nothing actually organically, if that's not quite the right word, but you know what I mean? I can't identify anything functionally wrong with this person, but what they don't seem to be able to make a decision. Because the only thing they're doing is parroting or, or doing, and so that is a situation where the courts have identified now a relatively, and I say relatively because it's still a work in progress, sophisticated set of tools for going, this person can't make their own decision, but it's not because they've got anything wrong with them, it's because of the one, and actually one person who was caught in the middle of this was in their own case, described it brilliantly as being in the spider's web. 

Which I thought was amazing. This was the person themselves. The subject of the proceedings said, I am caught in a spider's web, which I do think is a marvellously, it really brings it all home. It's not [01:01:00] legalese and you get it immediately. So you always need to be alert. If you're a professional, you need to be alert to the potential for that. 

Could I also flag, professionals need to be alert to the fact that the pressure, the undue influence could be coming from them. Because we always think of under your influence and that sort of pressure from coming from family members or friends but it could also be coming from a doctor or social worker who has a very very strong view about what should be happening and entirely unconsciously is influencing that person. 

And, you know, you might ask, well, how on earth do we tell? And the answer is, well, I can't tell you in the abstract, but all I can tell you is you need to be alert to the potential that that might be happening. I mean, on that subject, I can say I have found the sort of unconscious. power or prestige or whatever you want to call it of being a medical professional to be so strong with some patients that I have to go out of my way not to [01:02:00] diminish necessarily my own force on the interaction but to actively give the patient as much choice and frame things as much as possible as their decision. 

To be really, really explicit and sometimes with the patient saying actually I'd really rather you make the decision and I might have to say actually I really can't make this decision before you, for you. You need to make this decision because I can't, it depends on the decision of course but I've really had those situations where I have to say, you know, please take, take the tools here that I'm trying to give you. 

And it's really complicated and it's really difficult because they're about prior dynamics. They're about, um, all sorts of things. And also you've got certain cultures, you've got certain ages, you've got certain personality types. You just don't want to do it. And then you get into this, you know, I think it's really, I think one of the situations I feel somewhat challenged by every, every so often is a doctor going, I'm basically going to perform no function here. 

I'm just going to be Dr. Google, tell you the options over to you. [01:03:00] And for some people that can be deeply problematic. I think if people are interested in this, there's a fantastically good book. Written by a philosopher called Dr. Kamilia Kong, um, about relational autonomy, which is really explaining how no one ever makes a decision in isolation, and how we've all got circles of people, of, of, of, of around us which can enable or disable, and professionals can be that circle. 

If people think that book is too complicated, because I have to admit, it's quite dense. There's a book I, I basically helped her translate it into, um, a book called Overcoming Challenges in the Mental Capacity Act, which I'm not trying to flog a book because I was involved in it, but really it's camellia's thinking, but really it's going back. 

And I really liked the way you were framing it back at me, Alex. It's, it's this ethical dilemma. So if you're trying to think about the ethics of it, because this is about ethics, you might find it helpful just as that reflective practice about how am I trying to support this person, but not do it to such extent that actually I'm going through this kind of fictional exercise to make myself feel better and I'm actually leaving this person in [01:04:00] the lurch. 

It's, yeah, it's complex stuff, but it's going back to, I mean, I keep saying the word ethics, but it's ethical. It's as ethic as much as it is law. Do you see any issues with capacity and how it's assessed as it stands now. Are there any tweaks you might recommend in that regard or is it sort of similar to other things we've discussed? 

it's better to leave it a little bit undifferentiated to prevent sort of over categorization and things like that? I think that's a very good question. I mean, I was involved in a very large research project called mental health and justice where we, we did a lot of research on more difficult capacity determinations. 

To try and come up with some tools to help people do them better, not in the sense of more repeatable because that would be wrong because they will fall back into this is biological measuring, but we were trying to do a set of tools to come up with more transparent and accountable ways of doing it. 

And a lot of that comes back to, it's not about subcategorizing, but it's a trying to [01:05:00] work out or trying to identify the sort of phenomena which come up and how you can think about them. So, you know, when someone just doesn't seem to, I mean, one, one which comes up the whole time is it said the person doesn't have insight into their condition. 

That's a real thing, which clinicians recognize, but it's important to understand that doesn't appear in the Mental Capacity Act. The legal criteria are, can the person understand the information, retain it, use and weigh? And so it's, sort of, part of it is doing some of that translation work and thinking, well, how am I supposed to think about the person who appears not to have insight? 

I mean, once you've got through all of the things about supporting the person, making sure I haven't got into professional standoff with them, making sure I'm allowing space for a patient just to disagree with me, All of those sorts of things. How do you think it through? And it might well be that what's really going on, or might be going on, is the person is simply unable to use and weigh the fact you might be right. 

At which point you might be in a zone of thinking, I might be in a mental capacity act zone. I think the one, I don't know if it's a [01:06:00] tweak, but the one point I would really want to emphasize is people radically misunderstand the presumption of capacity. Because they think it means I'm not allowed to probe. 

It definitely doesn't. If you've got reasonable grounds to believe, or legitimate basis to doubt the person's capacity, the courts are very clear, you have to think about it. And if I may circle back to use the, the situation in emergency department, where the psychiatrist is saying, I think this person's got capacity to take their own life. 

In those circumstances, any situation where any record I see which says there is a presumption of capacity, I give the person a very Paddington hard stare. This person is in ED, they're saying I feel suicidal. At that point, there is a legitimate basis to think, does this person really have capacity to make this decision? 

Why do people think that you can't probe? Is it because one of the sort of key principles of the Mental Health, Mental Capacity Act is that you're supposed to assume capacity [01:07:00] wherever possible? Yeah, but the, and, well, yes, but it doesn't say, and the courts are very clear, assume it in the face of evidence to the contrary. 

And so, and I think partly people have got, in a way, it's really difficult because in a way I'm delighted people have got the idea that don't go around questioning people's capacity. I mean, that's brilliant, but that's not, it does not say if there's reason to think, disengage your brain. And we've got people, I'm afraid, and I'm being, I'm going to be blunt here, we've got people here who are dead. 

Because people hid behind, I mean, hid behind that presumption of capacity. And I think it goes back to sometimes, and I think this is largely unconscious, people doing the kind of magical thinking from Coey Beale, going, I can't really help this person. I'm trying to find a way to make myself feel less bad about that. 

So if I say there's a presumption of capacity, and I say there's a right to make unwise decisions, ethically I'm doing the right thing. And that's just [01:08:00] Not true in the sense that actually the person may not have had capacity and also yes The capacity act says you can't find someone to lack capacity just because their decision unwise But it doesn't say there's a right to make unwise decisions and the Supreme Court in a case called JB in 2021 made very clear It's only if you have capacity to make the decision that you have the right to make an unwise decision And so I think it's, it's challenging because 99 95 percent of the time, I want people not to be going around assuming people don't have capacity and question their capacity. 

And 95 percent of the time we want people to be able to go around making radically unwise decisions because they make the world a much more interesting place. Otherwise they'd all be sad beige people. But the problem is how you get professionals to recognize I'm not in that zone. I am in a zone where I have to think about capacity. 

And I don't know, I mean, I spent an awful lot of time in training, I spent an awful lot of time writing about this, I [01:09:00] spent an awful lot of time trying to think about this, I don't know, it's very difficult to give that calibrated message. I don't think it's, I think it's difficult to say, well, you need to change the law, because I think the law actually does what it means to do, but the law is so radically misunderstood the whole time, you think, well, what, you know, what other tools can we reach for here? 

If someone does have capacity and you've probed and you've been thorough and you're interviewing and you feel they really do have capacity, it's not presumed, and they are going to make an unwise decision, like what kind of unwise decision have you seen commonly in your casework? I'm just curious about, is it It's an unwise decision, like for example, discharging themselves from hospital against medical advice. 

Is it refusing to take medication? What do you see commonly? So it's just discharge against medical advice. It's not taking medication. It's living in circumstances of hoarding. It's living in circumstances of self neglect. Um, and then to go back to a phrase I [01:10:00] used earlier, it's, you know, then you, that's where you start getting people talking about lifestyle choices. 

And whenever someone says the phrase lifestyle choice to me, I get quite agitated because I don't know whether they mean I have really thought this through here in a nonjudgmental way. And I recognize it's not for me to impose my own standards of how I might, you know, hygiene or how one chooses one to live one's life. 

It's not for me to impose it on that person. And I genuinely think this person has got the ability to make this decision, which we need to respect or it is. This situation is really annoying. It takes up an awful lot of time in staff meetings. I don't really know what tools to use. And actually, I've got, if I've got very limited amount of time, I want to deploy it on, in a situation or with a person, which is easier to deal with. 

And I'm afraid instinctively, and I, I, I know I've come across as quite critical of lots of people in this podcast. [01:11:00] I am, want to emphasize. Almost invariably, it is not people acting maliciously, it's people being nudged into doing the wrong things while feeling they're doing the right thing. And it's so important to always take that step back and think, why am I being nudged into thinking that? 

And people being nudged into saying, well, if I say this is a lifestyle choice, it makes it sound like I am being suitably respectful of people's autonomy. And, yes, it might be, but no, it might just be, and occasionally people say this, it's leaving someone to die with their rights on. So I think one thing, can I just flag, and it's a piece of work I was involved in as part of Mental Health and Justice Project. 

I got really interested in the fact that, in fact, everything we've been talking about is about uncertainty. And so much of what we're doing is you professionals under, under pressure to shut down uncertainty very quickly. You're very hard pressed and you need to shut down, you need to get a clear answer, yes, no.[01:12:00] 

And what is always going, what's going on is ha, so often that means we don't live, we don't deal with uncertainty in a just way. And just means just to the person, it means just to the professionals, it means also, for instance, just to the interest of wider society. So people might be interested if you Google just uncertainty policy lab, we did a, we got together a group of people for all sorts of professions. 

So not just psychiatrists and lawyers, whole sorts of people to think about, well, what would just, how would resolving uncertainty justly look like? And you come back frequently to some of it is the drivers on the individual doctor say, so that might be their training, that might be their ethical codes, that might be their risk aversion. 

They've come across in their previous experience. La, la, la, la, la. But some of it is also the system. Because if the system isn't allowing the doctor or the social worker the time they need to be able to think about it carefully, to go talk to other people, sometimes just to say, I need more time with this person [01:13:00] and I need a large cup of tea for this person to help de escalate. 

The system itself is forcing people into situations that are radically unjust. And of course it's massively problematic for the individual clinician faced with This is a systems level problem, but I'm face to face with this individual right here right now, but a bare minimum it allows the person to go I know this is a point where part of what I might need to be doing is actually saying to the patient or the person, go, you know what, it's you and me against the system. 

And occasionally that level of honesty can just be massively important to go, I'd like to help, but I can't. Is there something I could do to help you here while we together fight, as opposed to coming up with this kind of, you know, some of this frankly spurious, legally spurious stuff about, you know, capacity or lifestyle choices, all those sorts of things. 

Yes, I've definitely been in situations similar to that, and I've often found that the pressure to make a very important decision at 3 a. m. is often the true [01:14:00] enemy. Completely. And if you can find some way, you know, this definitely goes out to all the psychiatry trainees listening who are doing these shifts. 

If you have a way to inject some time into the situation and make it a daybreak, you know, without making a huge consequence, consequential decision, that's very often the best thing that you can do to, to, uh, allow the best option to emerge. I couldn't agree more. And I think it's really interesting also, if you're fighting within a system. 

And if you're fighting on a capacity based system, one of the things you can say is, if you force me to make this decision right here, right now, I might have to find this person to lack capacity. But you know what? I don't think that's true. Because actually, if I had more time, I think I might well be able to support this person to make their own decision. 

And can I tell you, X trust, or X whatever, that if you decide to go ahead and do best interest decision making here, you may well be acting unlawfully. Because you're not [01:15:00] allowed to find someone to lack capacity unless you've taken all practicable steps to support them. And if I quite often use that as when I'm trying to enable people, professionals, to fight back against the system, and say, I need more time to think, you can say, if you force me down this route, can I tell you that the legal ice you as an organization are going to be on is amazingly thin? 

And sometimes, not invariably, but sometimes that can be quite helpful in terms of the system. You know, the grown ups go, ooh, okay. Let's take that bit more time and that that the very passage of time may itself solve the problem not always But it may solve the problem. That's a very strong point And I think you know professionals often think you know, they just have to do what their organization tells them to do but You are being employed because you are a professional before, because you have expertise and you should feel comfortable standing your ground, you know, when you're at the center of an important ethical decision when you need to. 

I think that's really important. [01:16:00] It is and I feel terribly sorry for junior people. You are unsupported in that situation, because I think the decisions they make are ones which are frequently not the right decisions. Because they are in a position where they go, I've just got to do this right here, right now. 

I'm not, can I make, make clear that, I'm not saying that's across the board. But I think there are sometimes situations where, if it had been someone more senior and had the clout just to go, I know. administratively, it'd be easier for me to do it, but I'm just not going to. They fight, they've got that clout to fight back, and it's very difficult for a very junior person. 

Obviously, that's why you'd have systems around, say, how can junior people be supported to go, I'm going to fight. Yes, and so it's clear for the audience. a typical junior psychiatrist making this decision. They may have been a psych, a psychiatry trainee for three years, so they've been seeing stuff for three years, two or three years of foundation training before that, and five years of medical school before that. 

So even though they're [01:17:00] classed as junior doctor, junior psychiatrist, they often have, you know, eight to ten years of experience under their belt. And yet they just not, they may not feel like they have That sense of professional autonomy, but they absolutely should, especially when they're the ones making the decision in question. 

I completely agree. And I thank you also for just flagging because people get terribly, they terribly badly misunderstand what junior means here. And so these are not inexperienced professionals, but within the hierarchy in a busy hospital, it can be quite difficult for someone who is relatively new in post. 

Um, and maybe lower down the pecking order to be able to do that. I'm sorry, it's me, it's my call, I don't agree. And that's what we're trying to, I think, collectively you and I are trying to empower those people to say, I need more time to make it. I'd really, I appreciate this isn't your specialty, but I'd really love to talk about, you know, individuals with mental health conditions, doesn't happen commonly, [01:18:00] it's a rare event, but it does happen that they may commit crimes, serious crimes like homicide. 

Sometimes as a result of their mental health condition, or at least their mental health condition can be a contributing factor. Could you give us an overview of how someone with a mental health condition can be defended for their crimes on mental health grounds? So it gets quite complicated quite quickly here. 

So this is, please, this is very high level. In essence, we decide as a society that we don't want to hold some people responsible for their actions. where those actions were driven by a mental health condition. And so the Mental Health Act has it in an entire part called Part 3, which is devoted to ways in which people are effectively diverted from the criminal justice system into the psychiatric system. 

And it doesn't mean that we say the person didn't commit the act, but what it does mean is we will say in different ways that they either were wholly or [01:19:00] partially not responsible for that act as a part, as a result of their mental health condition. It's, to be honest, quite controversial internationally, lots of countries have this, but it is quite controversial because for multiple reasons. 

One of it, it really brings out how we treat people with mental health conditions differently to other people. You know, why, why do we not hold people accountable for their own actions? Um, and you can also then see, you know, whenever someone with a mental health condition does commit some terrible act, you will see, for instance, in relation to the most recent horrible acts committed by Valdo Calacane, there, there was a really strong challenge by the families of the people he killed, that they saying, why was he not held? 

properly criminal accountable for his actions. And it's a really, it's a very deep societal question about why we say some people are and aren't responsible. I think one of the other important things to understand is if you get so called diverted, either at an earlier stage or after a court case, [01:20:00] um, into the mental health system. 

It is not as if it's an easy ride. Um, and in fact, in many situations, and this is one of the other reasons it's controversial, you might well end up spending an awful lot longer detained. Or be it in a psychiatric hospital, then you would have been if you had been convicted as having been responsible for your actions and having served a criminal sentence. 

And actually I did, I was involved in a research project, um, kind of international research project. And one of the, I acted as a kind of respondent to a situation where an autistic man in Ireland, where Ireland's got quite similar law here, an autistic man was amazingly annoyed. That whenever he did something wrong, he was always treated as not responsible for their own actions and detained under their mental health law. 

He said, if I do something wrong, I want to be treated as a criminal. It was a really interesting challenge from inside as it were, but I think it's, so I think, but just at high level, it's important that [01:21:00] the mental health system and the criminal justice system kind of work together, that people can be diverted. 

Um, but it's not, I think the critically important message to understand, it's not as if. You get, because sometimes the media portray it as you get an easy ride because you go into hospital. Um, and frequently if you've been sent there by the crime court, you've been, uh, after sentencing, actually the, you know, you've, you've got secretary of state involved in your case and you won't be discharged unless the secretary of state for justice eventually acts as the public guardian, you know, the guardian of the public interest, unless the secretary of state is satisfied. 

And the psychiatrist is satisfied at the need for release. And sometimes the parole board is also involved as well. So it's, it's a complex area. The anecdote you mentioned about the autistic. Man in Ireland kind of blew my mind because it just brought home to me how I mean obviously in this context We're talking about responsibility as quite a fixed thing. 

But in reality, I know this for example in my psychotherapy work [01:22:00] Responsibility is something you can very much you can you can empower someone with you can give like I was saying even in my consultations where I'm trying to give someone more responsibility and more choice if you treat someone as though they don't have responsibility very often They act as if they don't. 

And if you give someone more responsibility, and I think this works at an individual level, but also a societal, cultural level, they will act more responsibly. So this is a philosophical point, but very important, I think. Yeah, no, no, I agree. I mean, it was a wonderful project to be involved in. If you look it up, it's called ERC, as in the letters, Voices. 

And I think the website's still live, even though the project's ended. And it was just a, it was a fantastically interesting challenge from this man. And it really, it really did get to the heart of why do we just have an assumption that we say some people aren't responsible for their own, criminally responsible for their own actions? 

It's a, I mean, I think we'll just have to leave it there, but I just think it's a, it's a really profound challenge and it was a [01:23:00] particularly well framed challenge from this, from this autistic man. Yes. So going on to specific defences then for when people have committed crimes due to a mental health condition, I found researching this, there are specific defences like diminished responsibility. 

Lack of mens rea, automatism, also called total loss of control over actions, and not guilty by reason of insanity. What are the, what are the differences between those? I can see the difference between diminished responsibility and the latter three, but what are the key differences between the latter three and how they could be used? 

So, again, I think this is probably one of those rabbit holes that may get quite complicated to get into if we go too deep, but essentially what they're really doing are talking about a scale within which society is saying, we want to hold people responsible. And they, I mean, automatism is just fascinating because we, Take completely [01:24:00] different views, for instance, of whether somebody killed someone when they were sleepwalking versus, for instance, someone who killed someone whilst they had under the influence of drugs, you know, in both situations, someone has no control. 

But in one we say, it's not your fault. You have no control. And the other, we say it is your fault. You have no control. So sleepwalking would be a case of automatism? Potentially, yes. I mean, please can I make it super clear? I am not giving legal advice in this podcast for anyone who might have done something awful while sleepwalking. 

But it's that sort of, it's capturing, as I say, really, I think the critical thing to keep an eye on or keep an understanding of, it's society trying to calibrate how we feel about people having committed certain acts in different ways. Um, and then depending on how we label the degree of responsibility. 

And it gets really difficult because it's this kind of moral question, it's a philosophical question, it's a societal question, clinicians are involved as well. We then, there are different range of defences [01:25:00] which can be open to, to be run, and then the different ways in which the courts respond to when those defences are run. 

And you can see in the examples of some of the cases where we have done things or have done awful things, you know, society feels quite, some people in society feel quite differently about the level of attribution of responsibility, which has been, as it were, accepted by the courts. So there's often this trial of public opinion that's happening in parallel to the actual trial. 

Yeah, and I think it's so important to understand. I mean, I think the point I'd really want to emphasize on this before we possibly leave this rabbit hole is it is spectacularly more likely if you have a mental health condition that you are going to be harmed by someone else than it is that you will harm someone else. 

Um, that the stats are so heavily skewed towards your, you being at risk is, is, I mean, they're just, it's kind of almost off the charts, but because of course, when someone with a mental health condition does something awful, it can be completely inexplicable. It's [01:26:00] completely devastating. And everyone always goes. 

Why weren't they stopped, when, if and when they are diverted down some route, which suggests they didn't have responsibility for their own actions, there will always be a group of people, and I can totally understand why this is the case, you go, Why are you letting them off the hook? Why are you saying, you know, they're not guilty by reason of insanity? 

Of course they're guilty, they killed the person. But, the law is saying, no, as a society, we will say certain people, well, not certain people as a class, but in certain situations, where someone is in the grip of a mental health condition, which means, for instance, they had just no idea that what they were doing was wrong, you know, being superficial, but that's sort of at the heart of it. 

That, um, we're not going to hold them responsible, but this is, I mean, whenever I read the essays written by my students at King's on this, these are always the deepest philosophical issues because they just get so, and as, as you were talking about, when [01:27:00] you get to that idea of responsibility, it's a very, very deep understanding. 

And also it gets to the heart of what we also, I mean, the other point just before we leave this is what we think about criminal law, because is criminal law about punishment? Is criminal law about rehabilitation? You know, what is it, what is it doing? And so when the criminal law knocks up against mental health law, it's, the cocktail just gets incredibly complicated. 

Yeah, I feel like every area we've touched on today really needs its own three hour podcast, so. Apologies for trying to compress it into this brief seminar, but the last topic I'd like to touch on before we finish is that of assisted dying, something that's been in the news recently. So, I appreciate you may want to issue some caveats about this before you give a response, but In October 2024, Labour, a Labour MP introduced the terminally ill adults bill in the House of Commons and this proposed legislation aims to legalise [01:28:00] assisted dying for terminally ill adults in England and Wales. 

It set out some criteria, they have to be aged 18 or over, they have to have been diagnosed with a terminal illness or are and are expected to die within six months. They possess the mental capacity and now we know what capacity is to make an informed decision. Do you think this proposed legislation suggests progress in the right direction on this issue? 

So I do need to issue a caveat, which is my views here, in fact my views throughout, but specifically my views here on mine, they don't reflect any organization I work with or I'm associated with, because This is an incredibly complicated and emotive area. And I should also just say, um, as I'm, this has been recorded in the kind of the beginning of February, 2025, that bill is being looked at by a bill committee at the moment. 

So we don't yet know whether it will progress fully into law, quite what's going to happen, but it's, it's got, it's got further than any previous bill has in England and Wales. And in a way, I think [01:29:00] in a, in a way it really stress tests, almost everything we've been talking about so far. Because we talked about a law, the Mental Health Act, which thinks about the state's duty to secure people's life in crisis. 

How does that square with, and it's very interesting the Mental Health Bill is in Parliament at the moment, looking at that aspect, how do we secure people's life in crisis, at the same time as the House of Commons are considering at the moment a law which would under certain circumstances say the state should be supporting people or providing assistance to people to take their own life. 

It's going back to that balance. You know, the people's right to life, but also the people's right to make autonomous choices. And then what do we mean by autonomy? Does it mean pure capacity? Does it mean, but what happens if you make a decision that the reason you want to seek assistance with dying is because you have inadequate palliative care? 

Is that a true decision that we should accept because we simply go people have got capacity? Or is it a decision [01:30:00] where we go that's one we feel uncomfortable with? I think it's interesting that you use the word progress or progressive because I think there's a common understanding it's progressive. 

It's certainly always explained as being as part of the kind of progressive movement. It's interesting though when you see The number of countries around the world which have adopted this, this is a very specific group of countries. This is not worldwide. They're weird in the sense of Western, educated, independent, rich, and developed, with a couple of exceptions in Latin America and the Latin American countries might well consider themselves weird as well. 

So I think it's people, important people understand this is not as if it's a worldwide movement. It's a specific. Group of what's a specific group of countries which have adopted it. And I think it raises some quite difficult and quite important questions, which parliament needs to grapple with very carefully about the extent to which. 

We want to respond to people's desire for autonomy at the end of life in the context of terminal illness with a law which provides for [01:31:00] assistance. And speaking entirely for myself, I have some considerable doubt about whether the Mental Capacity Act as it's currently framed, for instance the presumption of capacity, really works here. 

I mean, do we presume people have got capacity to make the decision to end their own life? And fascinatingly, going back to the discussion we had earlier, there has been no court case which has said what it is you need to have to have capacity to end your life. That is the statutory test Parliament is proposing. 

And of course Having many, many kinds of terminal illness can impair your capacity, such as a paraneoplastic syndrome, if you have terminal cancer, or even the treatments for terminal illnesses can impair your decision making. Yes, absolutely, and um, I think it's also interesting to think that, going back to that discussion we had earlier about the link, the need for the causative reason why you can't make the decision, what happens if the doctor is thinking about a patient who appears not to be able to understand the decision, but it's got nothing wrong with [01:32:00] their mind or brain? 

The Mental Capacity Act would deem that person to have capacity. I'm not a hundred percent sure that the people who were advocating for the bill would like that as an outcome, but at the moment, the bill simply says for capacity, see the mental capacity act. So I think it really throws. Almost everything we've been speaking about into, it throws, well, it throws an interesting light. 

And whenever a lawyer says interesting, everybody else should be mildly nervous. But it throws an interesting light on all the things we've been talking about. And I think it also throws into some, it throws into really stark relief what we as a society think we owe by way of duties to secure people's life, duties towards supporting people's autonomy, and duties towards respecting people's decisions. 

Combined also with, and whether or not one is for or against it, it would require a substantial change in the conventional understanding of what doctors do. And I should say many doctors [01:33:00] would feel they want to be able to help alleviate their patient's suffering, and they see that's an important thing to do, and they feel that having stopped from doing it, many other doctors might feel that is so completely a change from what they did when they came in to medicine that it's something they feel deeply uncomfortable about. 

And the one last thing, and I will stop here on this, but the one last thing is the bill, as it currently is, doesn't make it clear whether what's being proposed is simply legalization. So in other words, if you, Dr. Kermy, want to prescribe medication to me, and I'm a willing person with a terminal illness, is the law just getting out of the way? 

Or is it me saying, I am terminally ill, I'm capacitous, I want assistance, and the state having to ensure that I'm provided with that assistance? Those are two completely different things and one of the challenges of the bill It is at present, it doesn't say that. What I anticipate will happen as the bill goes through Parliament is that these things will be thrashed [01:34:00] out. 

But it's a bit weird, and I've said this in Parliament, um, it's a bit weird, I didn't quite use that word, but it's a little challenging to have policy being developed on the fly for it, because this is too important. This is too important to be done on the fly. Whether one's for or against, this is too important to be done on the fly. 

And if I could turn up the controversy dial just a couple more points, of course, other countries, Belgium, the Netherlands, in those countries, unbearable, so called unbearable psychological suffering is a legitimate uh, criterion for assisted dying and we have cases such as a case of a Belgian woman, I believe last year, who was helped by the state to end her life due primarily to diagnosis of PTSD and emotionally unstable personality disorder and of course both of those are considered treatable mental health conditions. 

And both of those have suicidality to be [01:35:00] known, you know, to be a known part of the condition as it were. So that, that raises all sorts of ethical questions as well. So yes, I mean, I think just to be super, super clear, the bill, which is currently before the parliament in Westminster is terminal physical illness only. 

And it also requires the person to carry out the final act. So Belgium and the Netherlands and also Canada allow for euthanasia, so in other words, the doctor to actually administer the medication. So the sort of situation you just described could not happen under the bill as it, if, uh, in England and Wales as it's currently proposed. 

That having been said, many people might feel that once you have said, or so many people might feel at the heart of what. Uh, the issue here is how high, highly we value autonomy. And if you say we value autonomy very highly, which Belgium, Netherlands, and Canada do, and also interestingly, the German Federal Constitutional Court has recently said or [01:36:00] said a couple of years ago, if you value autonomy very highly, it then becomes quite difficult to see why there are any limits on who is able to access assistance. 

Because the second you start saying, well, you can't get it because X, well, why not? And I think it's very interesting. I mean, the German federal constitutional court a couple of years ago said in this area, we value autonomy highly and any limits are discriminatory. And I think it's. That is a very intellectually coherent way to approach it. 

It's very hardcore when you, one, one thinks through how much weight is then being placed on the idea of autonomy. And it's very hardcore when it comes down to things like if someone says, I want assistance because I don't value my life. And actually what appears to be going on is they're not valuing their life because they're lonely and isolated and social services aren't involved and all those sorts of things. 

Do we really say that's a truly autonomous decision? And that's a. You know, it's a [01:37:00] massive ethical question, but having just given evidence last week alongside somebody was part in parliament. So recording this in February, end of January, having given evidence last week alongside a former high court judge with Parkinson's disease, who will not be included in the cohort of people who would be eligible for assistance under the, the, the assisted dying bill currently, um, proposed. 

It is quite interesting to think, well, what coherent answer do you give to that person to say, I'm sorry, you're not eligible? Because he described it's really worth watching people reading the transcript or watching his evidence of Nicholas Mostyn, because he gives very clear evidence about the dying process he anticipates he'll be undertaking. 

And yes, differential treatment isn't discrimination if it's justified, but I think one of the issues and I was trying to say this in Parliament last week and I'm perfectly happy to repeat it here. One of the issues is the Parliament needs to be very clear about why they're saying certain people get it, certain people don't. 

I think it's super helpful to [01:38:00] understand the, it's this principle of autonomy that's being prioritized um, when this legislation is being used in these countries. What I would add to that, um, this is my personal philosophical point of view and not the view of any organizations I work with or represent. 

Um, I think if you, I think for an ethical system to be sound, it should be very much embracing the tensions between different virtues. as we discussed at the beginning and I think when you prioritize any one virtue such as autonomy, compassion, honesty, any virtue too highly at the expense of others and and when you prioritize one you are doing it at the expense of others. 

inevitably, you can't walk, you can't run away from that, in my view. You're not really building a sound ethical system. And I think that is because life has too many [01:39:00] crazy, unpredictable situations. And therefore your ethical toolkit needs to have balance in mind to deploy different principles in different situations of different combinations of principles in different situations. 

Whereas if you prioritize one virtue above others, you kind of end up with a sledgehammer that can only do one thing in lots of different situations. And that just doesn't cut it in, in view of how complicated life is. Yeah. And I think, I think that's a very I think there's, yes, I can absolutely see what you're saying. 

I think it's also important to understand, even if you just talk about autonomy, we've actually talked really earlier throughout about two versions of autonomy. You've got very thin version of autonomy, which looks just looks very narrowly at do you have the ability to make this decision? Yes. No, and then you have the much thicker version of autonomy, which might say, well, you are making this decision and procedurally. 

Yes. No, you can make it, but really, is this true autonomy? So I [01:40:00] think even within the kind of, even if you only alight on autonomy. And far greater, I mean, much better thinkers than I have talked about this a lot, and I'm not claiming any great profundity here, but I think it's really important to, to even within that, that, that, you know, we elevate, and so even, even if you're thinking, well, we want to elevate autonomy because we value it highly, well, what do you mean by autonomy? 

And so I think it's, you know, this is one of the biggest ethical challenges, um, most profound ethical challenges and legal challenges this parliament, I mean, the parliament in England and Wales faces, and I think it's any country faces. Uh, so yeah, it's going to be very interesting for people of me, not least, listening back to this podcast in a couple of years time and knowing where, or no, a few years time and knowing where we ended up. 

Alex Rakeen, it's been wonderful to speak to you and to get your insights. Thank you so much for spending some time with me today. It's been an absolute pleasure. Thank you so much. Where can people find you if they want to learn more about your work? So I think, well, the easier part, just Google my name, but also my [01:41:00] website, mentalcapacitylawandpolicy. 

org. uk is the easiest place that's got lots of stuff on there. Perfect. Thanks so much.