The political and ethical dimensions of inclusion: a case study based upon the Mental Health (Care and Treatment) (Scotland) Act 2003

The paper addresses the core theme of the conference – the relationship between Bioethics and Biopolitics – by reflecting on the processes involved in the formulation of Scottish Law on Mental Health care and treatment. Mental health legislation purports to safeguard the well-being of some of the most vulnerable in our society. Those responsible for drafting mental health legislation are
required strike a delicate balance between promoting the autonomy of those who may receive a diagnosis of one or more forms of mental disorder, and the need to restrict or limit that autonomy either for the protection of the individual or society as a whole. The Mental Health 120 (Care and Treatment) (Scotland) Act 2003 has been widely heralded as representing the gold standard of such legislation and held up as an example for other jurisdictions to emulate. This legislation contains three categories of mental disorder namely: mental illness, learning disability and personality disorder. This legislation adopted a principle-based approach, not least by explicitly drawing upon the four principles approach outlined by Beauchamp and Childress to provide an underlying bioethical structure for mental health legislation in Scotland. On the face of it the inclusion of those who attract a diagnosis of personality disorder represents a form of progress, insofar as it provides a means for those who fall within this historically marginalised diagnostic group, to assert their right to both recognition and appropriate service provision. In this sense one might think that the process is one, which embodies all that is best in bioethical thinking.

However, closer examination of the underlying policy process suggests that the decision to explicitly include the category of personality disorder was a response to a moral panic, and the need for politicians within the newly established devolved Parliament in Scotland to be seen to be in control of events rather than controlled by them. The apparent inclusion of those who fall within this diagnostic group is consequently limited and contradictory in that they continue to be marginalised and overlooked within key aspects of the policy framework that drives practice on the ground and shapes the way that services are designed and delivered. The Mental Health (Care and Treatment) (Scotland) Act 2003 is an example of the limits of legalism representing at most an example of symbolic legislation that is ultimately less intended to advance the public good than to accommodate competing interests. Despite the fact that a right to mental health services has been long acknowledged in international agreements since the mid-20th century, exemplified by the United Nations Covenant on Economic, Social and Cultural Rights, the legitimate needs of those who fall within the diagnostic circumference of personality disorder in Scotland continue to be subservient to broader political considerations.