Introduction
Depriving people with
mental disorders of their liberty had been an unquestioned practise for
centuries and even the 1845 Lunacy Act
explicitly prohibited the discharge of patients deemed dangerous or unfit,
together with removing their right to challenge their detention in court.
Evermore, vesting the monopoly of coercion (and violence) to a legitimate
authority is more or less nested within the foundations of our societies,
justified by the aim of safeguarding justice, human rights
and overall wellbeing. However, since 1845 many advances have occurred in the understanding
and management of mental disorders, while the extent to which the state or
other institutions should interfere with individuals’ freedom has been debated
to different directions. The involuntary institutionalization and/or treatment
of the mentally ill “who are a danger to
themselves or to others,” although still common in most countries, has
generated many heated discussions and hence aim of this essay is to discuss the
ethical considerations intrinsic to such a proposition i.e. “it is the right thing
to do,” and those related to its practical and legal issues.
Defining Mental Disorders
One of the greatest
challenges in psychiatry has been the definition of what actually constitutes a
mental disorder and the absence of a solid definition has been the basis for arguments
not only against ‘sectioning’ but also against psychiatry as a science altogether
(c.f. Szasz[1]). Accounts range from those proposing a biomedical objective/factual-based
definition to those considering mental disorders as products of subjective/value-judgments.[2-4]
Currently, it seems
that psychiatric diagnostic concepts are largely value-laden[3] and this wouldn’t matter as much if they weren’t a condition for
involuntary interventions. For example even if cosmetic medicine is inherently value-laden, this does not usually pose any ethical problems as patients consent is prerequisite for any intervention.Therefore, one of the basic arguments against ‘sectioning’ has been its
potential to be used as a tool for social control and political abuse. One great
example is the diagnosis of ‘sluggish schizophrenia’ in USSR that confined
people disagreeing with authority, as political dissent would “call in question the sanity of the one
expressing it.”[5] Similarly, the rates of schizophrenia
diagnoses and misdiagnoses have been higher for African-Americans[6-9] and Metzl has argued that the 1968 DSM-II
actually “functioned as an implicitly racist text because it mirrored the social context of its origins in
ways that enabled users to knowingly or unknowingly pathologize protest as
mental illness.”[10] Nonetheless, current and future research on
psychiatric biomarkers and endophenotypes[11,12]
may not only place the necessary safeguards but also transform our definitions.
Personhood and liberty
A common objection
against ‘sectioning’ is that it violates
individuals’ basic rights to freedom and self-determination, especially if we
consider freedom as that from interference (known as ‘negative liberty’[13]). However, freedom can also be regarded as that
of having the control and realizing one’s potential (‘positive liberty’[13])
and hence a mental disorder could nullify it. For instance, there is increasing
evidence that people with unipolar depression exhibit negative processing
biases in many cognitive domains which could consequently impair their
judgment.[14] Therefore, ‘sectioning’ and involuntary
treatment could actually safeguard and increase one’s positive liberty. Nevertheless,
whether a state should foster the negative or positive liberties of individuals
is a highly political question and lies outside the scope of this discussion.
On a more fundamental
level, it should be noted that ‘sectioning’ might not violate one’s rights as they are ipso facto denied to
him/her. Dennet argues that questioning one’s sanity entails the denial of
his/her (moral) personhood[15] and therefore of both of his/her
accountability and rights. Rights and responsibilities are not unconditional
and not regarded so (c.f. children). Evermore,
if an individual cannot be considered accountable, it is generally accepted
that the state has the duty to prevent him/her from damaging others.
Perhaps, a way to
bypass some ethical issues in a great number of cases would be the conclusion
of an ‘Ulysses contract,’ by which individuals could decide in advance their
management e.g. request or refusal of
involuntary treatment. Advance directives don’t seem to affect future
compulsory readmission rates[16] but may provide some ethical justification.
Paternalism and
Autonomy
The argument of
involuntary management of the mentally disordered is a paternalistic one and
one major issue is the conflict between autonomy and beneficence, as a usual
justification for an involuntary intervention is that this would be for the
best interest of the individual. However, this conflict can be theoretically
resolved. Both Kant and John Mill,
argued that one’s autonomy is conditional upon one’s rationality.[17] Hence, involuntary interventions restoring the
former would also restore the later. Similarly, interfering with someone in
order to assess his/her autonomy can also be justified. However, assessing one’s
rationality and what is beneficial for him/her is a value-judgment depending on
social norms and as such, increases the risk of abuse and assuming principles
of strong paternalism (Strong paternalism in contrast to soft paternalism disregards the autonomy and capacity in favour of one’s best interest. The question of soft versus strong paternalism is again a political one.) For instance, the refusal of treatment could
be regarded as evidence of impaired judgment while beneficence could be
interpreted in terms of perceived medical needs rather than what the patient might
wish. For a schizophrenic patient in
remission, living with unacceptable side effects of medication and the risk of
mental disintegration may not weight enough against ending his/her life, and
this could be a rational judgment. Assuming
global loss of rational capacity may have repercussions in one’s autonomy and
wellbeing. Suicidality should not warrant coercion.[18]
On the other hand,
proponents of a more utilitarian socially-centred view could argue that involuntarily
treating people with mental disorders is beneficial for the society as it may
increase overall wellbeing and hence justifiable even at the cost of the
individual. However, such a radical view could easily lead to totalitarianism.
The ‘Thank you’ argument
Finally, before
considering some more practical issues, one argument that is often mentioned is
that most people undergoing involuntary treatment retrospectively approve the
decisions taken for them. However, in a national-wide study by Priebe et al.[19] only 40% of patients regaining capacity considered
their detention justified. Moreover, Gardner et al.[20] found that despite accepting the necessity of
detention, most people did not change their attitudes towards hospitalisation.
Therefore it seems that the thank you argument is not very supportive.
Overview
of legislation
The legal frameworks vary considerably. For most countries
in Europe, compulsory admission is legal only as a last resort option and the criteria
that allow legal detention used by different countries can be grouped in three
categories: First, there are frameworks in which the ‘need-for-treatment
criterion’ is placed. Then there are countries which consider serious
threat of harm to self and/or others as a prerequisite - the ‘dangerousness
criterion.’ And finally there are countries like UK where either are used.[21] It is
important to note that the use of different criteria ends up targeting and
serving different people e.g. the
dangerousness criterion might target younger men while the ‘need-to-treat’
older women.[22]
In England and Wales compulsory detention and/or treatment
is covered by the Mental Health Act (1983), amended in 2007. The MHA
criteria for detention required that one is suffering from a mental
disorder and that detention is required in the interest of one's health or
safety, or the safety of
others. Detention is provisioned for emergency assessment (up to
72h; section 4), assessment with/without treatment (28 days, not renewable; s2)
and for treatment up to 6 months (renewable after assessment; s3). Issues
due to learning disability and alcohol or drug dependence are
excluded. In order to safeguard patients rights, the MHA also includes
provisions for independent advocates, immediate access to information and the
right to appeal against their detention. The amended MHA makes it possible for
compulsory treatment to be given in the community too (s17) but the ethics are
similar and won’t be discusses separately. (Community treatment orders even if more restrictive (in terms of duration) were proposed as a means of preventing future involuntary admissions however recent empirical evidence is not supportive.[37] In principle the ethics of CTOs do not differ but special issues are discussed in [38].) Other crucial details will be discussed together with other important
issues.
Treatment and Capacity
One fundamental conflict
in medicine is that of beneficence versus the principle of primum non nocere. There is no perfect
intervention and the risk of harmful side effects is always weighted against
the probability of achieving a favourable outcome. From the practitioner
point of view this is usually resolved by transferring the burden of this
judgment to the patient via an informed consent. However, the situation is
radically different when the practitioner has denied the patient’s autonomy and
takes the responsibility of deciding against one’s will. But, is it morally acceptable
to carry a potentially harmful action
when it is resisted? Most times this is outweighed by overall positive outcomes
but the action per se might not be necessarily justified. For
instance, it is to some extend reasonable to disregard a paranoid delusion that
a treatment is lethal, but what if the basis of the refusal is the experience
of side effects? The European Committee for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment explicitly states that “the
admission of a person to a psychiatric establishment on an involuntary basis
should not be construed as authorising treatment without his consent.”[23] However, the current legal framework allows
involuntary detention/treatment even when one has capacity and although doctor-patient
negotiation is promoted, this is not guaranteed: “The consent of a patient
shall not be required for any medical treatment given to him for mental
disorder from which he is suffering”(s63). Evermore, current empirical
evidence testifies for only “limited
clinical and social gains” after involuntary treatment.[24] Additionally, according to a study by Owen et al.[25] 6% of in-patients were detained while having
capacity, and the only positive association with that group was treatment
refusal. Side effects can be permanent, although the extent to which
involuntary treatment contributes to disability has not been properly
characterised and may have serious implications with regards this group of
patients. Interestingly, Carpenter et al.[26] showed that using educational interventions (teaching,
using computer programs etc.), can lead to significant increases in the
decision making capacity of schizophrenic patients, and it could be argued that
many involuntary admission/interventions could be prevented by spending more
time with the patient.
Probably because of such
considerations, for psychosurgery or the surgical implantation of hormones the
MHA requires both patient's consent and permission from an independent psychiatrist,
while for non-urgent ECT, either consent or a permission in the
absence of advanced decision will suffice. Nevertheless, even if such
provisions seem sound, they are in principle contradictory as there is nothing fundamentally special about these
treatments and it could be argued (using the principle of proportionality) that
similar restrictive criteria should be applied for any intervention.
Treatability
To justify involuntary
admissions/interventions within the concept of paternalism, many legal
frameworks have the condition that interventions are likely to improve or
prevent one’s deterioration. To this effect the original MHA stated that
long-term compulsion could be used only if the treatment was ‘likely to alleviate
or prevent a deterioration’(s3) avoiding so the detention of people that
would not benefit. Of course this was associated with practical challenges in
determining whether and which therapy would have positive outcomes, but from a
human rights approach prevented the unconstrained use of trial and error.[27] However, with the 2007 amendment this
‘treatability test’ was replaced with the requirement that “appropriate medical treatment is available.”
This put emphasis on the general purpose
of interventions rather than patient-specific disease outcomes and many argued
that this was a politically driven decision so that offenders with mental
disorders could be detained (theoretically indefinitely) protecting so the
public; as interventions with the potential to reduce symptoms (e.g. containment) would appear acceptable.[27,28] Hence, albeit MHA has been grounded with
paternalistic aims, the increased potential of “social control through the agency of psychiatry”[29] has many
ethical implications.
Is it ‘dangerous’?
The dangerousness
criterion was born out of the need for fair decisions and protecting the public;
but the absence of absolutely accurate and valid instruments for the prediction
of violent behaviour introduces an important ethical dilemma: can the
prevention of violence be traded with the unnecessary
compulsion of others? It is estimated that by using the most effective
instruments, in order to prevent one act of violence, 3.5 people need to be
detained.[30] If the act
is to cause serious injury, then the theoretical
number rises to 15[30] and
to several thousands for a homicide.[31] Yet, even with a utilitarian
approach it is difficult to define an acceptable ‘equation.’ It is noted that “more people die because of antipsychotics than
are killed by people as a result of their mental
disorder.”[27] The negative consequences of ‘unnecessary
detention’ have not been characterized but could involve treatment side
effects, avoidance of services, and experience of stigma and discrimination. As
Phelan and Link have noted, the use of this criterion may also increase
the stigmatization of all mental health patients as dangerous and violent[32] affecting
so a larger number of people; who anyway are more likely to be victims than
perpetrators.[33] On the
other hand, when this criterion is used obligatorily it can actually lead to delayed
treatment and therefore worse outcomes.[34]
There is some merit for
a dangerousness criterion but it is questionable whether it’s current use is
justifiable especially when used without considering the ‘need-for-treatment’
criterion or even patients’ capacity. After all, “psychiatrists are doctors and their primary role is to improve
patients’ health, superseding issues of public protection.”[35]
Concluding remarks
Expectedly, a definitive answer to the question of whether the discussed
proposition is right or not cannot be given. If at all, although, the
discussion was already limited by unavoidable constraints in space, it can be
safely concluded that this question is interwoven with issues related to the
foundations of psychiatry, i.e. the
value-laden definitions of mental disorders and beneficence; political-philosophical
issues such as those between negative versus
positive liberties and soft versus
strong paternalism; human rights and the potential for political abuse or
social control; issues related to treatability and dangerousness assessment; the
justification of trade-offs and the discrepancies between all these. These
issues were not exhausted, yet, it became clear that current practices are far
from ideal and more investigations and open discussions are needed. Furthermore,
one should investigate aspects of care and policies that may not be directly
relevant but which may have important implications for patients, their autonomy
and mental health care, such as the experience of coercion and the effects of
deinstitutionalization. Howbeit, laws and practice should reflect what is already
stated in the legal literature: “the mentally disordered are not objects of
protection but subjects equal to the healthy, who enjoy the same guarantees for
respect of their personhood […] Individuals with any kind of limitation should
be recognized a fundamental social right to enjoy measures ensuring their
autonomy and their integration in social, financial and political affairs.”[36]
References
1. Szasz TS. The myth of mental illness. Am Psychol 1960;15:113.
2. Brulde B. Wakefield's hybrid account of mental disorder. World
Psychiatry 2007;6:163-4.
3. Fulford KW, Broome M, Stanghellini G, Thornton T. Looking with
both eyes open: fact and value in psychiatric diagnosis? World Psychiatry
2005;4:78-86.
4. Wakefield JC. The concept of mental disorder: diagnostic
implications of the harmful dysfunction analysis. World Psychiatry
2007;6:149-56.
5. Wilkinson G. Political dissent and "sluggish"
schizophrenia in the Soviet Union. Br Med J (Clin Res Ed) 1986;293:641-2.
6. Mukherjee S, Shukla S, Woodle J, Rosen AM, Olarte S.
Misdiagnosis of schizophrenia in bipolar patients: a multiethnic comparison. Am
J Psychiatry 1983;140:1571-4.
7. Simon RJ, Fleiss JL, Gurland BJ, Stiller PR, Sharpe L. Depression
and schizophrenia in hospitalized black and white mental patients. Arch Gen
Psychiatry 1973;28:509-12.
8. Strakowski SM, Shelton RC, Kolbrener ML. The effects of race
and comorbidity on clinical diagnosis in patients with psychosis. J Clin
Psychiatry 1993;54:96-102.
9. Strakowski SM, Lonczak HS, Sax KW, West SA, Crist A, Mehta R,
et al. The effects of race on diagnosis and disposition from a psychiatric
emergency service. J Clin Psychiatry 1995;56:101-7.
10. Metzl J. The Protest Psychosis: How Schizophrenia Became a
Black Disease.: Beacon Press, 2010.
11. Gottesman II, Gould TD. The endophenotype concept in
psychiatry: etymology and strategic intentions. Am J Psychiatry
2003;160:636-45.
12. Boksa P. A way forward for research on biomarkers for
psychiatric disorders. J Psychiatry Neurosci 2013;38:75-7.
13. Berlin I. Two Concepts of Liberty. In: Anonymous Four essays
on liberty.: Oxford University Press, Oxford Paperbacks, 1969.
14. Everaert J, Koster EH, Derakshan N. The combined cognitive bias
hypothesis in depression. Clin Psychol Rev 2012;32:413-24.
15. Dennett D. Conditions of personhood. In: Oksenberg-Rorty A,
editor. The Identities of Persons. : University of California Press, 1984: 175.
16. Papageorgiou A, King M, Janmohamed A, Davidson O, Dawson J.
Advance directives for patients compulsorily admitted to hospital with serious
mental illness. Randomised controlled trial. Br J Psychiatry 2002;181:513-9.
17. Christman J. Autonomy in Moral and Political Philosophy,
The Stanford Encyclopedia of Philosophy. Spring 2011 Edition.
18. Callaghan S, Ryan C, Kerridge I. Risk of suicide is
insufficient warrant for coercive treatment for mental illness. Int J Law
Psychiatry 2013;36:374-85.
19. Priebe S, Katsakou C, Amos T, Leese M, Morriss R, Rose D, et
al. Patients' views and readmissions 1 year after involuntary
hospitalisation. Br J Psychiatry 2009;194:49-54.
20. Gardner W, Lidz CW, Hoge SK, Monahan J, Eisenberg MM, Bennett
NS, et al. Patients' revisions of their beliefs about the need for
hospitalization. Am J Psychiatry 1999;156:1385-91.
21. Salize HJ, Dreßing H, Peitz M. Compulsory admission and
involuntary treatment of mentally ill patients-legislation and practice in
EU-member states. Central Institute of Mental Health Research Project Final Report,
Mannheim, Germany 2002;15.
22. Segal SP. Civil commitment standards and patient mix in
England/Wales, Italy, and the United States. Am J Psychiatry 1989;146:187-93.
23. CPT Standards European Committee for the Prevention of Torture
CPT/Inf/E (2002) 1, Rev 2004, p. 57, para 41. IN Bartlett P. 'The necessity must be convincingly shown to
exist': standards for compulsory treatment for mental disorder under the Mental
Health Act 1983. Med Law Rev 2011;19:514-47.
24. Priebe S, Katsakou C, Yeeles K, Amos T, Morriss R, Wang D,
et al. Predictors of clinical and social outcomes following involuntary
hospital admission: a prospective observational study. Eur Arch Psychiatry Clin
Neurosci 2011;261:377-86.
25. Owen GS, Szmukler G, Richardson G, David AS, Hayward P, Rucker
J, et al. Mental capacity and psychiatric in-patients: implications for
the new mental health law in England and Wales. Br J Psychiatry
2009;195:257-63.
26. Carpenter WT,Jr, Gold JM, Lahti AC, Queern CA, Conley RR,
Bartko JJ, et al. Decisional capacity for informed consent in
schizophrenia research. Arch Gen Psychiatry 2000;57:533-8.
27. Bartlett P. 'The necessity must be convincingly shown to
exist': standards for compulsory treatment for mental disorder under the Mental
Health Act 1983. Med Law Rev 2011;19:514-47.
28. Pickersgill M. How Personality Became Treatable: The Mutual
Constitution of Clinical Knowledge and Mental Health Law. Social Studies of
Science 2012.
29. Moncrieff J. The politics of a new Mental Health Act. Br J
Psychiatry 2003;183:8-9.
30. Buchanan A. Risk of violence by psychiatric patients: beyond
the "actuarial versus clinical" assessment debate. Psychiatr Serv
2008;59:184-90.
31. Morgan JF. Giving up the Culture of Blame: risk assessment and
risk management in psychiatric practice. Royal College of Psychiatrists 2007.
32. Phelan JC, Link BG. The growing belief that people with mental
illnesses are violent: the role of the dangerousness criterion for civil
commitment. Soc Psychiatry Psychiatr Epidemiol 1998;33 Suppl 1:S7-12.
33. Brekke JS, Prindle C, Bae SW, Long JD. Risks for individuals
with schizophrenia who are living in the community. Psychiatr Serv
2001;52:1358-66.
34. Large MM, Nielssen O, Ryan CJ, Hayes R. Mental health laws
that require dangerousness for involuntary admission may delay the initial
treatment of schizophrenia. Soc Psychiatry Psychiatr Epidemiol 2008;43:251-6.
35. Mental Health Law subcommittee of the Royal College of
Psychiatrists. Response to the Government’s White Paper
‘Reforming the Mental Health Act.’ London; Royal College of
Psychiatrists, 2001. IN Morgan
JF. Giving up the Culture of Blame: risk assessment and risk management in
psychiatric practice. Royal College of Psychiatrists 2007.
36. Alexakis, Y. O thesmos
tis dhikastikis symparastasis [The institution
of judicial
support]. Klimaka-Afieromata 2004;8:6-19. (in Greek)
37. Burns T, Rugkasa J, Molodynski A, Dawson J, Yeeles K,
Vazquez-Montes M, et al. Community treatment orders for patients with
psychosis (OCTET): a randomised controlled trial. Lancet 2013;381:1627-33.
38. Munetz MR, Galon PA, Frese FJ,3rd. The ethics of mandatory
community treatment. J Am Acad Psychiatry Law 2003;31:173-83.
No comments