I read the article by Earthrowl et al (Reference Earthrowl, O'Grady and Birmingham2003) with interest. The issue of providing treatment to prisoners, who are frequently incapable of consenting, will not be unfamiliar to psychiatrists providing mental health care in these establishments. Although the authors correctly state that there is no legislative framework for providing treatment for mental disorders in prisons, this may be slightly disingenuous. The current legislative framework that provides for the treatment of mental disorders, namely the Mental Health Act 1983, is clear that prison health-care wings are not hospitals. It follows that any treatment that is administered forcibly must be consistent with common law. Separate legislation is therefore unnecessary.

They also appear to have overlooked recent guidance on this matter. The Department of Health (2002) in collaboration with the Prison Service has set out, in detail, good practice guidelines for providing care to both competent and incapacitated adult prisoners. These outline circumstances in which prisoners who lack capacity can receive treatment. We have found this very helpful in developing protocols for treatment in the prisons we visit.

The development of policies and protocols will assist in establishing who, when and in which circumstances incapacitated prisoners may be treated and allow us to be more confident when making these difficult decisions.