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Epistemic problems with mental health legislation in the doctor–patient relationship
  1. Giles Newton-Howes1,
  2. Simon Walker2,
  3. Neil John Pickering3
  1. 1Department of Psychological Medicine, University of Otago Medical School, Wellington, New Zealand
  2. 2University of Otago, Dunedin, New Zealand
  3. 3Bioethics Centre, University of Otago Medical School, Dunedin, New Zealand
  1. Correspondence to Professor Giles Newton-Howes, Department of Psychological Medicine, University of Otago Medical School, Wellington 3424, New Zealand; giles.newton-howes{at}


Mental health legislation that requires patients to accept ‘care’ has come under increasing scrutiny, prompted primarily by a human rights ethic. Epistemic issues in mental health have received some attention, however, less attention has been paid to the possible epistemic problems of mental health legislation existing. In this manuscript, we examine the epistemic problems that arise from the presence of such legislation, both for patients without a prior experience of being detained under such legislation and for those with this experience. We also examine how the doctor is legally obligated to compound the epistemic problems by the knowledge they prioritise and the failure to generate new knowledge. Specifically, we describe the problems of testimonial epistemic injustice, epistemic silencing, and epistemic smothering, and address the possible justification provided by epistemic paternalism. We suggest that there is no reasonable epistemic justification for mental health legislation that creates an environment that fundamentally unbalances the doctor–patient relationship. Significant positive reasons to counterbalance this are needed to justify the continuation of such legislation.

  • Coercion
  • Ethics
  • Legislation
  • Mental Health
  • Psychiatry

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  • Contributors GNH conceptualised the work, undertook initial conceptual analysis, provided resources, wrote the original draft, led the revisions and managed the project. NJP and SW developed the concept, provided resources and edited the draft. SW also supported the revisions. GNH is the guarantor.

  • Funding The authors have not declared a specific grant for this research from any funding agency in the public, commercial or not-for-profit sectors.

  • Competing interests None declared.

  • Provenance and peer review Not commissioned; externally peer reviewed.