In a specially commissioned article for SRN, international mental health leader with lived experience, Mary O'Hagan, critically challenges the use of legal coercion in a world where the recovery approach and human rights are accepted norms. Why not let us know what you think about this challenging but important subject by commenting on the article.
 In the last ten to fifteen years the recovery philosophy has become a centrepiece of mental health policy and practice models in many English speaking countries (Compagni et al, 2006). At the same time rates of compulsory interventions in many of these countries have increased (Director of Mental Health, 2006; de Sephano and Ducci, 2008; Burns and Dawson, 2009; Lawton-Smith, 2010).
The four cornerstones of a recovery approach are hope and belief in people’s potential, self-determination over their lives, the choice of a broad range of services, and equal participation in their communities. Legal coercion, through mental health legislation, empowers selected mental health professionals with support from the police and the judiciary to detain people in hospital, treat them without their consent, place them in solitary confinement (seclusion), and in many jurisdictions to compel people to take treatment in the community. Legal coercion erodes all the cornerstones of the recovery philosophy, yet it remains a core response in our mental health systems.
Discrimination is the biggest single barrier to recovery and it pervades the justifications, criteria and processes involved in legal coercion in mental health. Misplaced community fears that mad people are violent and unpredictable automatons have been a major driver for mental health legislation. In most jurisdictions the legal criteria for compulsory interventions include dangerousness to self or others. There is growing concern that these criteria create double standards for justifying the loss of liberty – one for people diagnosed with mental illness and one for the rest of the population. When it comes to danger to self, critics note that general health service users have the right to refuse treatment with dangerous consequences to themselves, but mental health service users do not (Hoyer, 2008; O’Brien, 2010; Ryan, no date; Burns and Dawson, 2009). When it comes to danger to others, critics state that the criminal justice system has no power to take a person’s liberty away before they have committed a crime, so why should the mental health system be given these powers (Campbell, 1994; Szmuckler, 2000; Hoyer, 2008; Ryan, no date).
Behind these double standards sit some implicit assumptions about the incapacity of people who use mental health services. Studies have shown however, that psychiatric and general hospital inpatients have similar rates of incapacity (Okai et al, 2007; MacArthur Research Network, 2001).
In recent times incapacity has become an explicit criterion in some mental health legislation, and some commentators have advocated for generic incapacity legislation that would enable compulsory interventions for general health service users as well as mental health service users. Some of these advocates however, propose a different threshold for incapacity in mental health than in general health, such as not being in agreement that one has an illness and might benefit from treatment (Ryan, no date), as well as a different capacity test to capture the 'complex and subtle' loss of capacity thought to be peculiar to people with a diagnosis of mental illness (Dawson and Szmuckler, 2006). It’s clear this would not resolve the problem of discrimination in the criteria, but just shift its focus.
Modern mental health laws provide more avenues for people to challenge their involuntary status, but the review processes and decisions are usually stacked against the consumer. People applying to be released from compulsory status often find these processes disempowering and weighted towards medical opinion (Topp, 2008). The success rate for people making such applications in Commonwealth mental health review tribunals is between 1% and 10% (Shah and Heginbotham, 2010; Mental Health Review Tribunal, 2010; Director of Mental Health, 2010). In some jurisdictions people may be left on compulsory orders indefinitely.
If people with a diagnosis of mental illness were subject to legal coercion under generic incapacity legislation on an equal basis with other members of the community, it is unlikely that the community would tolerate an increase in use of coercion and the unfair appeal processes for general health service users; it is far more likely that its use among mental health service users would drastically decrease and the appeal processes would become fairer.
Rates of legal coercion in mental health vary enormously over time, between jurisdictions and within jurisdictions. For instance there is a 20 fold variation in compulsory detention rates between the highest and lowest European Union countries (Zinkler and Priebe, 2002). Compulsory intervention rates have increased significantly in many Northern European countries and in New Zealand and Australia in the last 20 years (Director of Mental Health, 2006; de Sephano and Ducci, 2008; Burns and Dawson, 2009; Lawton-Smith, 2010). These variations show that the rates are driven by factors outside the criteria in the legislation, such as poor services and growing pressures to manage risk (Bindman et al, 2002; Ducci & de Stephano, 2008; Lawton-Smith, 2010). People from socially deprived groups are also more likely to be subject to legal coercion.
There is still no consensus in the evidence that compulsory community treatment improves clinical or personal recovery outcomes (Kisely, 2009), and very little research has been done on the effectiveness of compulsory inpatient detention (Hoyer, 2008). The most common compulsory intervention is antipsychotic medications. These can cause life-shortening conditions, and their introduction in the 1950s has not increased clinical recovery rates in people diagnosed with schizophrenia, according to longitudinal studies (Warner, 2004).
Compulsory interventions can cause significant physical and psychological harm but can they also save people from death and peril? Occasionally perhaps, but one commentator has calculated that it would take 85 community treatment orders to prevent one admission and 238 of them to prevent one arrest (Molodynski et al, 2010). Another has claimed that the state would need to deprive the liberty of many thousands of mental health service users to possibly prevent one homicide (Szmuckler, 2000). There is clear evidence that mental health experts' predictions of risk are unreliable.
What do the people subject to legal coercion think of it? The limited research suggests they are often ambivalent, with complaints about loss of freedom on one hand but acceptance if it on the other (Dawson, 2003; Wallsten et al, 2008; McKenna et al, 2004; Jarrett et al, 2008). Clinicians routinely use their legal coercion powers to ensure people have priority access to services when demand exceeds supply. The acceptance some service users express may be in response to getting a more reliable service. It may also echo the paradoxical Stockholm syndrome, where people experience, or at least express, gratitude to those who deprive them of their freedom.
A major 'game changer' in the area of legal coercion has been the UN Convention on the Rights of Persons with Disabilities, passed in 2006. Article 14.1 states that 'the existence of a disability shall in no case justify a deprivation of liberty'. United Nations officials have interpreted this to mean that legal coercion in mental health probably is not allowed under the Convention (United Nations Human Rights Council, 2009). Member states appear to be slower in coming to this fairly obvious conclusion.
The recovery philosophy and recent developments in human rights should be rocking the foundations of legal coercion in mental health as we know it. Instead, legal coercion remains the elephant in the recovery room. All of us who support recovery and human rights need to voice our objections and develop a vision for a new regime within the following outlines. The mental health system shifts its orientation towards preventing crises rather than reacting to them. It develops services that facilitate recovery, works in collaboration with service users, and offers advance directives and choices for people in crisis. Society no longer tolerates discrimination and demands that all mental health and general health service users are treated equally when it comes to non-consenting interventions.
Society also expects that offenders with mental health problems will receive the same level of support for recovery in the criminal justice system as people do in the mental health system.
References
- Bindman, J., Tighe, J., Thornicroft, G., Leese, Morven. (2002). Poverty, Poor Services, and Compulsory Psychiatric Admission in England. Social Psychiatry and Psychiatric Epidemiology 37:341-345.
- Burns, T. and Dawson, J. (2009). Community Treatment Orders: How Ethical without Experimental Evidence? Psychological Medicine 39: 1583-1586.
- Campbell, T. (1994). Mental Health Law: Institutionalised Discrimination. Australian and New Zealand Journal of Psychiatry 28: 554-449.
- Compagni, A., Adams, N., and Daniels, A. (2006). International Pathways to Mental Health system Transformation: Strategies and Challenges. Sacramento: California Institute for Mental Health.
- Dawson, J. (2003). Ambivalence about Community Treatment Orders. International Journal of Law and Psychiatry. 26: 243-255
- Dawson, J. and Szmukler, G. (2006). Fusion of Mental Health and Incapacity Legislation. The British Journal of Psychiatry 188: 504-509.
- de Stefano, A. and Ducci, G. (2008). Involuntary Admission and Compulsory Treatment in Europe. International Journal of Mental Health 37(3): 10-21
- Director of Mental Health (2006). Annual Report 2005. Wellington: Ministry of Health.
- Director of Mental Health (2010). Annual Report 2009. Wellington: Ministry of Health.
- Ducci, G. and De Stefano, A. (2008). Guest Editors’ Introduction: New Rights in Mental Health. International Journal of Mental Health 37(3): 3-9.
- Hoyer, G. (2008). Involuntary Hospitalization in Contemporary Mental Health Care. Some (still) Unanswered Questions. Journal of Mental Health 17(3): 281-292.
- Jarrett, M., Bowers, L., Simpson A. (2008). Coerced Medication in Psychiatric Inpatient Care: Literature Review. Journal of Advanced Nursing 64(6): 538-548.
- Kisley, S. (2009). Compulsory Community and Involuntary Outpatient Treatment for People with Severe Mental Disorders. Cochrane Review 4.
- Lawton-Smith, S. (2010). Briefing Paper2: Supervised Community Treatment. Mental Health Alliance: London, England.
- MacArthur Research Network. (2001.) The MacArthur Treatment Competence Study (Executive Summary). Retrieved 18 December 2011 from http://www.macarthur.virginia.edu/treatment.html
- McKenna, B., Simpson, A., Coverdale, J. (2004). Outpatient Commitment and Coercion in New Zealand: A matched Comparison Study. International Journal of Law and Psychiatry 29: 145-158.
- Mental Health Review Tribunal. (2010). Annual Report of the Mental Health Review Tribunal. Sydney: Mental Health Review Tribunal.
- Molodynski, A., Rugkasa, J., Burns, T. (2010). Coercion and Compulsion in Community Mental Health Care. British Medical Bulletin 95: 105-119.
- O’Brien, A. (2010). Capacity, Consent, and Mental Health Legislation: Time for a New Standard? Contemporary Nurse 34(2): 237-247.
- Okai, D., Owen, G., McGuire, H., Singh, S., Churchill, R., Hotopf, M. (2007). Mental Capacity in Psychiatric Patients: Systemic Review. The British Journal of Psychiatry 191: 291-297
- Ryan, C., Large, M., Nielssen, O., Hayes, R. (No Date). A Proposal for Uniform, Ethically Informed and Evidence Based Mental Health Law Reform in Australia. A Submission for Consideration at the 2020 Summit. New South Wales: Authors.
- Shah, A. and Heginbotham, C. (2010). Newly Introduced Deprivation of Liberty Safeguards: Anomalies and Concerns. The Psychiatrist 34: 243-245.
- Szmukler, G. (2000). Homicide Inquiries: What Sense do they Make? Psychiatric Bulletin 24: 6-10.
- Topp, V., Thomas, M., Ingvarson, M. (2008). Lacking Insight: Involuntary Patient Experience of the Victorian Mental Health Review Board. Melbourne: Mental Health Legal Centre.
- United Nations Human Rights Council. (2009). Annual Report of the United Nations High Commissioner for Human Rights and Reports of the Office of the High Commissioner and the Secretary-General: Thematic Study by the Office of the United Nations High Commissioner for Human Rights on Enhancing Awareness and Understanding of the Convention on the Rights of Persons with Disabilities. New York: United Nations.
- Wallsten, T., Ostman, M., Sjoberg, R., Kjellin, L. (2008). Patients’ and Next-Of-Kins’ Attitudes Towards Compulsory Psychiatric Care. Nordic Journal of Psychiatry 62(6): 444-449.
- Warner, R. (2004). Recovery from Schizophrenia: Psychiatry and Political Economy. New York: Routledge.
- Zinkler, M., and Priebe, S. (2002). Detention of the Mentally Ill in Europe – A review. Acta Psychiatrica Scandinavica 106: 3-8.
What are your views on the use of legal coercion in the recovery approach to mental ill-health? Let us know your comments.
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The point is that the New Zealand Mental Health Act itself (and presumably others similar) breach the intent of the Convention. It may currently be lawful to lock people up without them having committed or even been accused of committing a crime, but what this article and the thousands of people who have suffered under this law are saying is "It is repressive, undemocratic law and should be repealed."
And in answer to John Spiers's question: No the state has no such obligation. To enter that territory is to open the door to the pathway towards totalitarian government. Such government is driven by fear-based ignorance rather than democracy. The raft of so called anti-terrorist laws around the world are driven by exactly the same ignorance.