The laudable aim of Dawson & Szmukler (Reference Dawson and Szmukler2006) of eliminating discrimination against those with mental illness by a fusion of mental health and incapacity legislation may not be achievable with their proposals. They address the ethical difficulties of treating ‘patients with fluctuating mental conditions who temporarily regain their capacity after medication, and again refuse necessary treatment’. They suggest that ‘where the patient has been treated involuntarily on several occasions with a positive response, and a sustained course of treatment is again considered necessary, sustained resumption of capacity on the part of the patient might be required for the patient's refusal to be honoured’.

In my opinion this highlights two issues. First the authors fail in their aim to stop the discrimination against patients with mental illness who retain capacity. In their proposed legislation they suggest permitting the coercive treatment of patients with mental illness despite the presence of capacity but decry this principle in the Mental Health Act 1983. Second their proposal of using a past history of successful coercive treatment to allow further treatment is unworkable. It is impossible to implement for new patients as no previous history of successful treatment can be demonstrated.