Compulsory treatment: Rights,reforms and the role of realism

Incapacity is not incompetence

A focus on capacity per se only informs clinicians of ‘one side of the story’. For example, the concept of capacity has itself arisen from the medical profession’s attempts to grapple with the legal determination of competence – a task-specific, dichotomous threshold necessary for an individual to make decisions of import (such as informed consent), with credence given to the autonomous nature of an individual’s decision-making, and its specifically being ‘uncontaminated’ by coercion (Buchanan, 2004).

Callaghan and Ryan have focused on the cognitive components intrinsic to capacity. There has also been much research on the parameters of ‘decisional competence’ (Appelbaum, 2007), depending on the gravity of the decision required of the patient, e.g. medication vs ECT. Yet a focus on capacity alone still appears unduly narrow. From both an ethical and strictly legal standpoint, informed consent cannot just require cognitive capacity. It also requires information relevant to the decision, and voluntariness on the part of the patient (Weiss Roberts, 2002).

Thus, while the cognitive components of capacity have received much scrutiny by academic psychiatry, guidance for assessing voluntariness has somehow been missing. Not surprisingly then, it is this cognitive (rather than volitional) emphasis that has ultimately penetrated the wording of many involuntary treatment statutes worldwide.

That there should be no external duress to decision-making speaks obviously to the concept of voluntariness. However, an argument can also be made that severe mental illness ipso facto robs the individual of their innate ability to make voluntary decisions. This is where, for example, the anosognosia or denial intrinsic to schizophrenia becomes relevant (Fuller Torrey and Kress, 2004). In addition, the impact of apathy, avolition, psychotic ambivalence, delusions and hallucinations on voluntary decision-making is also directly relevant. Even substance dependence can detrimentally impact the ability of an individual to make a ‘free’ choice (via compulsions and cravings, for example), irrespective of whether cognitive capacity is present. Eloquent arguments have already been advanced that ‘deliberativeness’, purposefulness of intent, authenticity, and coherence with an individual’s prior life decisions are all intrinsic to the ‘capacity’ for voluntary decision-making (Weiss Roberts, 2002).

These and other influences on voluntariness were simply not considered by Callaghan and Ryan, with voluntariness being somehow subsumed into the well-established, yet narrow cognitively-based definition of capacity. Further, when capacity was conceptualized in recently proposed statutes, it did not speak to the authenticity of a voluntary choice either. Conceptual clarity is therefore needed in this area. Surely any ‘trier of fact’ (judge or magistrate) would want to be apprised of the additional impact of voluntariness, when weighing up an individual’s competence to consent to treatment?

Alternative paradigms to capacity

It seems a travesty that a paradigm as pertinent as insight has never penetrated any statute wording worldwide. This has artificially limited clinicians to either capacity or (more commonly) dangerousness arguments when advocating for the treatment of unwilling yet severely ill patients. As Callaghan and Ryan have indicated, psychiatrists are commonly thrust into the role of predicting the ‘likelihood’ of dangerousness – a rather tenuous basis for advocating treatment, and a frankly ‘unscientific’ enterprise at that. Moreover, the unintended consequence appears to be the erroneous coupling of dangerousness and mental illness in the public consciousness.

As an overarching paradigm, insight pervasively impacts an individual’s cognitions, volition, ‘intentionality’ and even capacity – with detrimental ‘real world’ consequences both for the patient and society. It therefore provides a fairer and more comprehensive basis by which a trier of fact can assess the need for involuntary treatment than either capacity (as presently defined) or dangerousness, especially if the individual is simply not capable of understanding or exercising ‘self-preserving’ choices. The insight paradigm also dovetails with the ethical duty of society, as well as the legal duty of government, to protect its vulnerable citizens from undue harm (even from themselves) – a foundation of modern jurisprudence, and an appropriate counterbalance to rights-driven legislation.

Then there is the legal (or more accurately, tort) concept of ‘forseeability’ – the reasonable anticipation that harm or injury is a likely result of certain acts or omissions (Black’s Law Dictionary, 2009) – may also be of utility to clinicians and courts. It is far more pragmatic to ‘foresee’ homelessness, incarceration and treatment resistance in a patient with chronic schizophrenia (especially whose history is known) who does not receive timely treatment than it is to ‘predict’ their risk in the near or distant future. Again, conceptual clarity is important in not confusing the statistical concept of ‘risk’ with the above legal concept.

Clinicians should not be expected to base their decision-making on a ‘pseudo-calculation’ of ‘harm’ and its timing, rather on the range and severity of ‘real world’ detrimental outcomes (e.g. decompensation and consequent psychosocial dysfunction) that are inevitable, if treatment is not received in a timely manner. Lastly, from both a malpractice, as well as an ethical standpoint, clinicians have a ‘duty’ to intervene sooner rather than later.

This conceptual shift would steer clinicians away from meeting the arbitrary and elusive threshold for ‘harm’ (including ‘additional harm’) toward the above public health consequences of non-treatment. A change in statute wording from ‘likelihood’ to ‘reasonably foreseeable’ would also redress the balance of individual freedoms with societal interests – a requisite aspect of fair legal deliberation when weighing up the need for involuntary hospitalization versus less restrictive treatment interventions (Youngberg v Romeo, 1982), (Lake v Cameron, 1966).

Confinement and treatment are not the same

The important distinction between involuntary hospitalization and involuntary treatment must also be considered: namely the constitutional (and now internationally recognized) right of an individual to be at liberty versus his/her right to be free of unnecessary bodily intrusion. These were not adequately distinguished in the Callaghan article and need to be clarified. Hence, if dangerousness does not necessitate hospitalization or treatment, then legally (and from the state’s ‘interest’ in overriding these rights) what does?

According to American case law, incapacity or incompetence alone would be a dubious basis for involuntary detention to a hospital (O’Connor v Donaldson, 1975), (Jackson v Indiana, 1972). In addition, there appear to be no compelling legal arguments for involuntarily treating the cognitive impairments associated with incapacity per se. Guardianship would allow for treatment (being predicated upon established incompetence) but it does not, from a human rights perspective, address if an individual could be treated in a ‘lesser restrictive setting’ than a hospital (see below), because it is based solely upon the expressed preference of the guardian.

If incompetence stands as the only involuntary hospitalization or treatment avenue, another dilemma ensues: whether such ‘treatment’ should be ‘in the best interest’ or whether a ‘substituted judgment’ standard should be used. England and Wales’ Mental Health Act 2007 has specifically spoken to the former standard, even though both it and most American jurisdictions still tend to favour the latter. This means that the preferences of the patient (were he/she to be competent) are respected, when allowing a close relative to make decisions on their behalf.

Without understanding this pertinent legal (as well as ethical) distinction, most clinicians would not be able to appreciate the significance of these two differing standards for involuntary treatment. In reality, there is always a merging of the two paradigms, so a ‘real world’ dilemma inevitably arises – whereby beneficence (duty), societal expectations and individual autonomy inevitably collide. This is something any proposed statute should address practically.

At present, the ‘police powers’ model (the duty of the state to protect the public) remains the dominant international paradigm for involuntary hospitalization, rather than the former parens patriae (duty of the state to protect vulnerable citizens) model. There is an obvious historical context to this: namely political tides that have reflected society’s historical ambivalence toward the mentally ill (ranging from ‘dangerousness’ at one pole to paternalism at the other), as well as the appropriate limits of state intervention (Stavis, 1995). The proposed Australian legislative changes appear to ‘swing the pendulum’ once more in the direction of state paternalism.

The American experience

The above ‘swings’ have occurred periodically throughout American history: beginning with the ‘right to treatment’ (Birnbaum, 1960), which the Supreme Court ultimately declined to enshrine as a constitutional right (O’Connor v Donaldson, 1972). This was followed in the 1960s by the civil rights movement, which facilitated the opposite: raising the threshold both for involuntary hospitalization and involuntary treatment. Such constitutionally-derived rights included: the right to the least restrictive alternative to hospitalization (Lake v Cameron, 1972), to due process of law (procedural justice) before being deprived of freedom (including undue confinement (O’Connor v Donaldson, 1972), and the right to be free of cruel and unusual punishment (and being forcibly medicated could legally be so construed) (Washington v Harper, 1990). Application of international human rights conventions to confinement and treatment of the mentally ill appears to be the latest iteration of these same rights.

Judging by the post ‘civil rights’ landscape in America, subsequent access to psychiatric treatment (for those in most need) has become harder (Copeland et al., 2008). Although primarily attributable to a dearth of community resources (as ‘least restrictive’ alternatives), there is also the pervasive belief that involuntary hospitalization thresholds are too high (Husted and Nehmekis, 1995). A major reason for this difficulty is the adversarial nature of the judicial procedure itself, whereby arguments for hospitalization or treatment are dichotomously ‘splintered’ by zealous counsel. As such, the petitioner’s credibility is oftentimes the focus of cross-examination, rather than the patient’s condition. Then there is the need to ‘prove’ dangerousness by a ‘clear and convincing’ standard (Addington v Texas, 1979). There are also legal idiosyncrasies unique to states that confound clinical arguments (such as collateral history being excluded as ‘hearsay’). Lastly, there are wide local variations in legal interpretation and implementation (Gerbasi et al., 2000).

The ‘unintended consequences’ are that nuances of legal procedure tend to conflict with the ethical duty of professionals to act in a timely fashion to address their patients’ acute clinical needs. Meanwhile the patient, by virtue of the severity of his/her illness, has been ‘robbed’ of the ‘right’ to advocate for his/her own treatment needs. Counsel, while provided, tends to advocate only for the constitutional right to refuse treatment, rather than arguing for the client’s need or right to receive timely treatments.

Some American states have created the additional hurdle of applying for judicial authorization for treatment once an individual is involuntarily hospitalized – adding yet more procedure to what is already the adjudicated (and intended) reason for involuntary hospitalization in the first place: treatment. Of note, capacity-based arguments are accepted by some states here, but with the burden of proof on the psychiatrist to again meet a ‘clear and convincing’ standard. Many states have an additional ‘gravely disabled’ or ‘unable to take care of self’ prong for commitment, but this tends to be valid only when severe/imminent medical complications are likely to ensue, again creating an unduly (even unethically) high threshold for timely psychiatric intervention for an objecting (but mentally ill) patient (Husted and Nehmekis, 1995). Thus, the proposed ‘additional harm test’, while well intentioned, could predictably suffer a similar fate.

Alternative models

This is where the ‘therapeutic jurisprudence’ model has been touted (Wexler, 2008). Here, the ‘need to treat’ transcends adversarial struggles over rights or arbitrarily determined thresholds. It also goes beyond capacity arguments. Lack of insight would rightly be factored into the decision-making process. By avoiding an adversarial legal process, it encourages collaboration between judges, lawyers, physicians and families, one that prioritizes the absolute needs of the patient. In such a model, the ethical duty of both the physician and the state to act in a protective and timely fashion is congruent, and becomes the idealized paradigm within which all parties are communicating effectively. There is also evidence that such a model would withstand constitutional scrutiny (Appelbaum, 1984).

The assisted outpatient commitment model was similarly absent from the Callaghan article, despite the fact that it has been the subject of much recent discussion about involuntary treatment (Geller, 2006). This includes the need for lesser restrictive alternatives to hospitalization, but also speaks to: the ‘need for treatment’ (including more preventative/proactive strategies), the need to reduce incarceration rates, more coordination between community systems (social, psychiatric, legal), and the controversial use of ‘leverage’ of housing and financial entitlements as incentives for receiving mandated community treatments. In this model, the dichotomy of ‘freedom versus coercion’ is replaced by a ‘quid pro quo’ engagement of the individual in the process of treatment (when insight has been restored), including his/her share of responsibility for the societal (including fiscal) consequences of non-treatment.

Both models allude to the issue of broader involuntary treatment criteria, while blurring the boundary between ‘preventative’ and ‘least restrictive’ treatments. For example in New Zealand, legislation has enacted the same criteria for both involuntary hospitalization and compulsory community care (Dawson, 2005). The breadth of the criteria and the extent of clinician discretion also enable community treatment orders to be used preventatively – relying on the notion of ‘intermittent disorder’ (Simpson, 1998) to anticipate deterioration.

Conclusion

Notwithstanding recent emphases on the human rights of the mentally ill, there needs to be better appreciation of the conflicting paradigms and ‘real world’ challenges pivotal to the compulsory treatment debate. The time also appears ripe to learn from the lessons of history: repeated oscillations of the political pendulum only serve to enhance polarization of public attitudes toward involuntary treatment. There must also be a fundamental and universal recognition that to not treat severe mental illness has devastating individual as well as societal consequences (Drake et al., 2000), with it ethically incumbent upon families, advocates, physicians and law-makers to ensure the prevention of such outcomes. Therefore, given notable advances in treatment strategies and thinking on this issue, it is time that collaborative efforts by these stakeholders were properly reflected in subsequent legislative proposals. It is therefore the pragmatic ‘need for treatment’, rather than abstract arguments about incapacity or dangerousness, upon which arguments for involuntary hospitalization and treatment should, from herein on, be based.