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Published online by Cambridge University Press: 27 July 2015
Mental health acts allow for interference with the liberty of the individual. As such, they serve as test cases for theories of liberty, and thus the question of what Mill would think about them arises. My aim is to answer this question. I argue that Mill would embrace mental health acts to protect mentally disturbed individuals from themselves and others from them, and that they should have broad admission criteria, allow capable patients to refuse treatment, and have treatment decisions made by patients or their families on the basis of substituted judgements rather than representatives of the state acting on best interest judgements. This interpretation will show that many writers who claim Mill's support cannot properly do so. It is also a combination of views that cannot be readily found in mental health acts themselves, but which, as Mill's reasons for it show, is a serious candidate for legislative adoption.
1 Szasz, T., Law, Liberty, and Psychiatry (New York, 1963)Google Scholar.
2 Miller, K., Managing Madness: The Case against Civil Commitment (New York, 1976)Google Scholar.
3 Szasz, Law, Liberty, and Psychiatry, interprets Mill like this.
4 Mill specifies the reforms he thinks most imperative in Mill, J. S., Principles of Political Economy, 7th edn. (London, 1871)Google Scholar, bk. v, ch. xi, sect. 9, footnote to para. 3 (CW III, 951). References to Mill are given wherever possible by both chapter and paragraph to specific writings, and by pages to The Collected Works of John Stuart Mill (33 vols.), general editor John M. Robson (Toronto, 1963–91). The latter are written as: CW XVIII, 266, for Collected Works, vol. XVIII, p. 266.
5 Miller, Managing Madness, attributes this view to Mill. Some of the textual evidence against it is assembled by Monahan, J., ‘John Stuart Mill on the Liberty of the Mentally Ill: A Historical Note’, American Journal of Psychiatry 134 (1977), pp. 1428–9Google Scholar.
6 Mill, J. S., On Liberty (London, 1859), ch. 1, para. 9 (CW XVIII, 223–4)Google Scholar.
7 Mill, ch. 1, para. 10 (CW XVIII, 224).
8 For example in ch. 4, para. 3 (CW XVIII, 276) and ch. 5, para. 5 (CW XVIII, 294).
9 Mill, Principles of Political Economy, bk. v, ch. xi, sect. 9 (CW III, 951).
10 Rees, J. C., ‘A Re-reading of Mill on Liberty’, Political Studies 8 (1960), pp. 113–29CrossRefGoogle Scholar.
11 Brown, D. G., ‘Mill on Harm to Others’ Interests’, Political Studies 26 (1978), pp. 395–9CrossRefGoogle Scholar.
12 As argued by Rees, ‘Re-reading of Mill’.
13 As argued by Honderich, T., ‘The Worth of J.S. Mill On Liberty’, Political Studies 22 (1974), pp. 463–70CrossRefGoogle Scholar, and Williams, G. L., ‘Mill's Principle of Liberty’, Political Studies 24 (1976), pp. 132–40CrossRefGoogle Scholar.
14 Mill, On Liberty, ch. 4, para. 6 (CW XVIII, 279).
15 Mill, On Liberty, ch. 3, para. 14 (CW XVIII, 270–1).
16 J. S. Mill, ‘The Law of Lunacy’, Daily News, 31 July 1858, p. 4 (CW XXV, no. 407, pp. 1198–9).
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18 Gray, J. E., Shone, M. A. and Liddle, P. F., Canadian Mental Health Law and Policy, 2nd edn. (Markham, Ontario, 2008), ch. 9, esp. pp. 332–4Google Scholar.
19 Mill, J. S., Considerations on Representative Government (London, 1861), ch. 3, para. 23 (CW XIX, 411)Google Scholar.
20 Mill, On Liberty, ch. 3, footnote to para. 14 (CW XVIII, 270–1).
21 Mill, Principles of Political Economy, bk. v, ch. xi, sect. 9 (CW III, 951).
22 Mill, On Liberty, ch. 4, para. 3 (CW XVIII, 276).
23 On Liberty, ch. 5, para. 5 (CW XVIII, 294).
24 Isaac, R. J. and Armat, V. C., Madness in the Streets: How Psychiatry and the Law Abandoned the Mentally Ill (New York, 1990), p. 339Google Scholar.
25 McCorkell v. Riverview Hospital (Director). BCSC [1993] B.C.J. No. 1518 Vancouver Registry No. A911598, at para. 26.
26 Mill, On Liberty, ch. 4, para. 8 (CW XVIII, 280).
27 Mill, On Liberty, ch. 1, para. 12 (CW XVIII, 225).
28 Mill, On Liberty, ch. 4, para. 10 (CW XVIII, 281).
29 Mill, On Liberty, ch. 4, para. 6 (CW XVIII, 279).
30 Mill, On Liberty, ch. 4, paras. 10–11 (CW XVIII, 282–3).
31 Mill, On Liberty, ch. 1, para. 9 (CW XVIII, 224).
32 Mill, On Liberty, ch. 3, para. 2 (CW XVIII, 261).
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34 Mill, On Liberty, ch. 1, para. 11 (CW XVIII, 224–5).
35 Mill, Utilitarianism, ch. 2, para. 24 (CW X, 226), and Mill repeats this counsel in ch. 5, paras. 29–30 (CW X, 254).
36 Arboleda-Flores, J. and Copithorne, M., Mental Health Law and Practice (Toronto, 1994), pp. 5–50, 5–41Google Scholar. Cited in Gray et al., Canadian Mental Health Law, p. 203.
37 For a fuller description of the state and private models see Gray et al., Canadian Mental Health Law, pp. 200–14.
38 J. S. Mill, ‘Poulett Scrope on the Poor Laws’, Morning Chronicle, 31 Oct. 1846, p. 4 (CW XXIV, no. 320, pp. 923–6).
39 J. S. Mill, ‘The Contagious Diseases Acts 1871’, CW XXI, 349–72, at 352.
40 Mill, On Liberty, ch. 4, para. 4 (CW XVIII, 277).
41 These terms come from Gray et al., Canadian Mental Health Law, pp. 11–14. In their purest forms the ‘human needs perspective’ is characterized by broad involuntary admission criteria, no right of the capable to refuse treatment, and the state model of authorization of treatment, the ‘civil liberties perspective’ by narrow involuntary admission criteria, the right of the capable to refuse treatment, and the private model of treatment authorization.
42 I am grateful to D. G. Brown for discussion, encouragement and advice on Mill, and to two exceptionally helpful reviews by anonymous referees of Utilitas.
