Dr O'Muirithe notes that we propose a modified legal test, based on sustained resumption of capacity, to cover people with fluctuating mental disorders and a history of successful treatment who recover for short periods and then refuse treatment. We take this approach because we doubt the wisdom of immediately ceasing treatment of patients whose resumption of capacity may be temporary and whose sustained treatment is required. This approach also avoids the potential for an ‘infinite regress’ of resumptions and losses of capacity.

Nevertheless, when he argues that this requirement of sustained resumption of capacity is discriminatory, Dr Muirithe forgets that the legislation we propose applies to incapacity owing to any condition. This test would therefore apply as much to elderly patients with confusion hypertension and cardiac failure, as to those with a post-ictal confusional state, or to those recovering from a manic episode. We accept this is a compromise of pure capacity principles, but one which is required in practice.

Drs Adeshina & Sule note the ethical problems in the decision to return a convicted person to prison from hospital if they recover capacity and refuse treatment (i.e. to decide that the patient is fit for punishment unless they accept treatment). Psychiatrists make similar decisions when returning offenders to prison who have gone to hospital for acute treatment, and when they inform the authorities that a patient has ‘breached’ the treatment conditions of probation or parole. However, the matter remains troubling. So we also offered an alternative: that forensic patients with capacity may be treated involuntarily, for a limited period, when they have committed acts constituting a serious crime, are suffering from a serious mental disorder that contributed significantly to those acts, and effective treatment could reduce the risk of its recurrence. However, this would also compromise pure capacity principles.