The Abolition or Reform of Mental Health Law: How Should the Law Recognise and Respond to the Vulnerability of Persons with Mental Impairment?

Vulnerability theory challenges the assumption that human beings are abstract and invulnerable liberal subjects and insists that any decent and just society must create law that takes into account and tries to ameliorate human vulnerability. In this article, I explore how vulnerability might apply in the context of the debate about the future of mental health law that has arisen since the entry into force of the Convention on the Rights of Persons with Disabilities (CRPD) in 2008; namely, whether mental health law should be abolished or reformed. In doing so, this article addresses three key issues: (i) how to conceptualise vulnerability; (ii) whether persons with mental impairments really are vulnerable and in what ways; and (iii) how the law should respond to the vulnerability of persons with mental impairments post-CRPD. It describes and compares three different approaches with respect to how well they address vulnerability: the Abolition with Support, Mental Capacity with Support, and the Support Except Where There is Harm Models. It argues that the law should try to accurately capture and ameliorate the vulnerability of those who are subject to it as much as possible. It also argues that from a vulnerability perspective, the reform of mental health law may be better than its abolition and that decreasing the vulnerability of persons with mental impairment requires systemic reform, resources, and cultural change.