Dawson & Szmukler (2006) raised a number of interesting points but assumed that general medical patients who lack capacity and object to medical intervention have as serious consequences for their actions as those that refuse psychiatric care. However, we believe that for psychiatric patients objection to intervention could increase risks to self and others. This justifies involuntary treatment under the Mental Health Act 1983. Studies have shown that mental disorder is a risk factor for violent offending in the community (Reference Monahan, Steadman and SilverMonahan et al, 2001).

Earlier intervention in mental disorders as a result of using ‘incapacity criteria’ will not confer any advantage, as the Mental Health Act 1983 already makes provision for such early intervention (allowing detention on the basis of the nature or degree of the disorder). Nature in this context represents the pattern of the disorder, allowing for earlier application of the Act.

Finally, we believe that returning patients who have mental disorder and capacity to prison because they refuse hospital treatment is wrong. The prison health services are at best basic (Reference WilsonWilson, 2004). It seems unethical to return vulnerable patients to an environment which can exacerbate their mental disorder and even increase their risk of suicide (Reference Shaw, Baker and HuntShaw et al, 2004).