We fail to understand Dr Qurashi's comment that ‘separate legislation is therefore unnecessary’. Our paper sets out a policy for providing treatment to people with mental disorder based on common law (Reference Earthrowl, O'Grady and BirminghamEarthrowl et al, 2003). We are not proposing separate legislation.

Dr Qurashi also mentions that we appear to have overlooked recent guidance from the Department of Health (2002). The Department of Health guidelines were produced in July 2002, after our paper was accepted for publication.

These guidelines provide guidance on establishing capacity but, in our opinion, they do not tackle the practical issues relating to the management of prisoners with mental disorder in any great detail, they do not deal with the ethical issues surrounding the provision of an equivalent service in prisons adequately and detailed guidance on making a concerted effort to obtain treatment under the Mental Health Act in hospital before proceeding with treatment under common law is lacking. In our view, these are serious omissions.