Spinning the revolving door: The governance of non-compliant psychiatric subjects on community treatment orders

Abstract

This article examines the enactment of community treatment orders (CTOs) in Alberta, Canada to illustrate how civil law is used to constitute and govern psychiatric patients in the community. I argue that the logic of CTOs constitutes the psychiatric patient as a fractured subject who is simultaneously capable/incapable of making medical decisions and at risk/risky. These paradoxical characterizations highlight how depictions of rationality and choice are contingent on consenting to a pharmacological regime designed to normalize these patients. This construction functions to eliminate opportunities for rationally informed types of non-compliance and promotes hospitalization as the only way to manage harmful, risky and non-conforming individuals. I contend that CTOs are a flawed instrument of regulation that cannot manage ‘legally’ capable but non-compliant individuals.

Keywords

Agency discipline governance harm neo-liberalism non-compliance policy responsibilization risk

The desire to effectively manage people with mental disorders is not a new phenomenon in psychiatry (Foucault, 1988; Grob, 1991). With the adoption of psychotropic medication and the movement towards community mental health care, the ability of psychiatrists to define, treat and control mental illness in less restrictive environments has expanded (Munetz and Geller, 1993). However, the expansion of community care has been met with a heightened concern over the risks that these de-institutionalized patients may pose to public safety (Castel, 1991; Kemshall, 2002). Even though research has generally found no direct causal link between mental illness and violence (Peay, 2011), a common perception remains in the general public that people with mental disorders are ‘risky’ because they are considered potentially dangerous, unpredictable and worthy of fear (Link et al., 1999; Martin et al., 2000; Pescosolido et al., 1999; Phelan et al., 2000). The concern over the potential riskiness associated with de-institutionalized patients has altered community mental health care to become increasingly focused on promoting compliance, increasing surveillance and managing risk, much like the punitive turn and the rise of actuarial justice in penology (Feeley and Simon, 1992; Kemshall, 2002).

Psychiatric medication is positioned as an effective, inexpensive and less invasive way to manage and monitor symptoms of serious mental disorders over traditional hospitalization. However, remaining medication compliant is a significant challenge for some individuals with schizophrenia-related and extreme bipolar disorders (Brophy et al., 2006; Dallaire et al., 2000; Hunt et al., 2007; O’Brien and Farrell, 2005; Segal and Burgess, 2009). These individuals are often caught in a revolving cycle of hospitalization, stabilization, destabilization and re-hospitalization (Geller et al., 2006; Snow and Austin, 2009; Wales and Hiday, 2006). These cycles of hospitalizations often stem from repeated rejection of psychotropic medication and have diminished psychiatrists’ ability to properly govern these clients in the community. As a result, many jurisdictions have adopted new laws aimed at better managing these ‘revolving door’ subjects. Community treatment orders¹ (CTOs hereafter) have been recognized as one civil legal tool available to psychiatrists to promote medication compliance and reduce risk, while the individual lives in the community.²

Although there is a growing international literature on CTOs (Brophy et al., 2006; Burns and Dawson, 2009; Geller et al., 2006; Hiday, 2006; Hunt et al., 2007; Maden, 2007; Monahan et al., 2001; Munetz et al., 2003; O’Brien and Farrell, 2005; Segal and Burgess, 2009; Sheehan, 2009; Snow and Austin, 2009; Swartz and Swanson, 2004; Szmukler and Appelbaum, 2008; Trueman, 2003; Wales and Hiday, 2006), little theoretical attention has been given to how the civil law, through CTOs, is used to manage legally capable subjects who refuse CTO regulation. The exclusive focus on patient compliance obscures the role that consent and rationality have in determining choice and freedom within liberal democracies. CTOs promote the pretence of consent-based regulation, but in practice non-compliant individuals highlight that the freedom of choice and the ability to express rational decisions is not absolute.

Using the development and enactment of CTOs in Alberta, Canada, as a case study, this article explores how CTOs constitute and govern eligible individuals by focusing on three themes: rationality; competence; and choice. After outlining the structure of CTOs, I highlight that the discourse surrounding the enactment of CTOs produces contradictory characterizations of the psychiatric subject. These individuals are simultaneously positioned as rational and irrational, and at risk and risky. I argue that embedded in the CTO eligibility criteria is a narrow characterization of rationality and choice. What constitutes rational decision making is defined as those decisions that comply with the medication and surveillance conditions of the orders. Rationality and freedom are contingent on consenting to a pharmacological regime designed to make psychiatric subjects ‘normal’.³ I argue that despite the desire to increase community tenure and reduce risk, the CTO, at least within its initial conception, is a flawed instrument of regulation that continues to use hospitalization as the primary way of managing risky and non-compliant individuals who have failed to become ‘normal’ and responsible citizens in the community.

Data and methods

This article draws on two sources of data: (1) publically available legislative and committee debate transcripts,⁴ CTO policy documents and legislative committee briefings from the Committee of Community Services⁵ from the Government of Alberta. Transcripts were collected from the government’s official website for 2007 and 2009 to include all discussions about CTOs in Alberta; (2) in-depth semi-structured interviews conducted between 28 July and 13 December 2010 (N = 13). Using snowball sampling, I interviewed key government ministers and members of the Committee of Community Services, policy makers from Alberta Health and Wellness, and policy implementation specialists, the lead psychiatrist and CTO field managers from Alberta Health Services, who are important players in the development and implementation of this policy. Given the small number of key stakeholders directly involved in the conceptualization and the implementation of CTOs, these interviews provide a more in depth examination of the CTO discourse than can be gleaned from the legislative debates and policy documents alone. Each interview lasted between 1 and 2.5 hours, was audio recorded,⁶ transcribed and managed using NVivo 8. Qualitative discourse analysis was used to analyse these two sources of data.

As a case study, this article can only comment on the mechanism through which the CTO is enacted in Alberta, recognizing that this case may not be generalizable to all jurisdictions that currently have CTO provisions. However, Alberta is a unique case to examine this process not only because it is the most recent province to bring these measures into effect, but, as will be discussed later in the article, psychiatrists in Alberta are also afforded more power to promote compliance with the CTO than other provincial health systems. Unlike comparable jurisdictions such as Ontario, Alberta psychiatrists are granted the authority to enact a CTO even when a person is capable of making medical decisions but does not wish to comply when they are perceived to be a public safety risk.

What are CTOs?

CTOs are similar to probation and parole orders. As part of hospital discharge planning, eligible in-patients are placed onto legal orders that require them to comply with specific conditions, namely taking medications and visiting mental health professions, in order to live in the community (Snow and Austin, 2009). Since community living is preferential over hospitalization, the CTO provides psychiatrists with a system of monitoring aimed at increasing community tenure by having mechanisms in place to better identify when patients are non-compliant with their treatment plan. Non-compliance with CTO conditions can ‘legally’ initiate the use of more invasive measures, such as apprehension and hospitalization, until the patient becomes stabilized enough to live in the community. Consequently, CTOs allow ‘high risk’ patients to reside in the community provided that they agree to the conditions on the orders. Unlike probation and parole, which are time specific, the initial six-month duration of CTOs can be renewed indefinitely if the issuing psychiatrist deems it necessary (Government of Alberta, 2009).

Similar to many international jurisdictions (see Brophy et al., 2006; Swartz and Swanson, 2004; Wales and Hiday, 2006), Alberta officially enacted CTO legislation in 2009 (Wandzura, 2008). The Alberta Mental Health Act (Government of Alberta, 2009b: 11, emphases added) stipulates that in order for an individual to be placed onto a CTO, he/she must (1) have a mental disorder;⁷ (2) within the last three years the person has on two or more occasions been a formal patient⁸ or has been on a community treatment order; and (3) based on the opinion of two physicians that the person is ‘likely to cause harm to the person or others or to suffer substantial mental or physical deterioration or serious physical impairment if the person does not received continuing treatment or care while living in the community’. These inclusion criteria not only limit who is eligible for this regulation, but they are also designed to provide early intervention opportunity in order to prevent individuals from becoming so mentally impaired that they cannot be managed in the community. There is a widespread consensus across Canadian jurisdictions that CTOs are best suited for individuals diagnosed with schizophrenia-related and extreme bi-polar conditions because of their history of re-hospitalization and medication non-compliance (Snow and Austin, 2009).

Prior to amending the Alberta Mental Health Act (Government of Alberta, 1990) in 2009, the previous legal criteria for involuntary commitment was based upon a clinical judgement that an individual posed an imminent danger to themselves or others. In 2009, the assessment criteria changed from an imminent danger to a ‘likely’ harm to oneself or others. Concerns over the potential harm posed by psychiatric patients are now expressed in terms of predictions and probabilities of future actions rather than on concrete evidence of present risky behaviour (Castel, 1991; Kemshall, 2002; Rose, 1998), which in essence lowers the threshold under which riskiness is assessed.

My participants explained that a history of criminal, violent or overtly harmful actions is no longer required for an individual to be in need of intensive supervision. In fact, the harm criterion is the principal legal consideration used to determine CTO appropriateness since the potential for future harm is considered the most pressing risk that must be mitigated. As Mr Chase (legislator) noted ‘a community treatment order is necessary to prevent harm to others’ (Government of Alberta, 2009a: 1979). This shift is viewed as justifiable in order to ‘catch’ and treat people before they actually do a harmful act (Government of Alberta, 2007d; Hopkins interview). Therefore, this shift from imminent danger to likely harm works to widen the net of who can be eligible for these orders, thus expanding the reach of the law and the regulatory capacity of psychiatry (Beckett and Herbert, 2010; Cohen, 1985).

As a result of the prominence of risk-based thinking, my data show that individuals are constituted as risky by policy stakeholders when they do not comply with the normative expectations outlined by psychiatrists on CTOs. The participants in this study were very clear that this legislation limits when CTOs are legitimate. As Ms Anderson (a CTO legislation specialist) noted,

this law then puts the parameters around when it is okay [to use CTOs]. And we say it is with your consent or with your substitute decision makers unless you’re going to be at risk of harm to somebody else. So, now the public safety piece is overriding individual rights on that. So, is there a coercive element? Yes.

(24)

As a consequence of framing psychiatric patients as risky, their needs and wishes become subservient to the broader goals of risk management (Maurutto and Hannah-Moffat, 2006; Turnbull and Hannah-Moffat, 2009). It is clear within the CTO discourse that concerns for public safety often trump considerations of individual autonomy.

In spite of the international acceptance of CTOs, the literature surrounding the origins, purposes and effects of these orders is less consistent. Research demonstrates that when people are placed onto and comply with CTO guidelines some individuals have fewer and shorter stays as hospital inpatients (Brophy et al., 2006; Dallaire et al., 2000; Hiday, 2006; Hunt et al., 2007; O’Brien and Farrell, 2005; Swartz and Swanson, 2004); have higher rates of mental health service usage in the community (O’Brien and Farrell, 2005); have earlier intervention opportunities, quicker access to hospital care when non-compliant and fewer incidences of medication non-compliance (Hunt et al., 2007; Swartz and Swanson, 2004); and have less contact with the criminal justice system (Maden, 2007; Swartz and Swanson, 2004). CTOs have been lauded as a less restrictive option for dealing with medication non-compliance without confining individuals in institutions (Segal and Burgess, 2009; Trueman, 2003). Despite suggesting that CTOs ‘work’, this body of literature limits our understanding about how the psychiatric subject becomes a justifiable target of CTO regulation, how this subject is governed by a CTO and how rationality is constituted within the CTO criteria in the first place.

The development of CTOs is a controversial topic for many mental health researchers. Studies focused on the ethical implications of CTOs tend to frame these tools in terms of human rights violations (Snow and Austin, 2009); concerns over the use of coercion to ensure compliance (Geller et al., 2006; Sheehan, 2009; Szmukler and Appelbaum, 2008); issues surrounding the autonomy of patients, and the paternalistic nature of psychiatric medicine (Beauchamp and Childress, 2001). Even though coercion has been a feature of psychiatry since its inception (Sheehan, 2009), researchers contend that the use of coercion to induce compliance through CTOs is a fundamental violation of the right of legally capable individuals to refuse medical treatment (Burns and Dawson, 2009; Monahan et al., 2001). Additionally, some researchers within the psychiatric survivor movement⁹ argue that this expansion of psychiatric power into the public sphere has allowed forced medication to be experienced by psychiatric subjects as a form of chemical incarceration (Fabris, 2006).

Researchers have argued that these orders are predicated on a depiction of people with mental illnesses as incapable of making responsible choices. Critical scholars highlight that CTOs create a tension between individual autonomy and risk management which allows new formal control mechanisms to be designed around compelling patients to comply with a normative understanding of behaviour (Munetz et al., 2003; Snow and Austin, 2009), irrespective of the patient’s desire to act accordingly by taking psychotropic medications.

Even though the literature on CTO suggests that these orders may be effective yet ethically problematic, much of this research focuses on compliant subjects and has excluded any consideration of the implications that may manifest if an individual does not comply with these orders. Scholarship on CTOs has yet to examine how the CTO criteria, eligibility and decision-making process produced a particular understanding of the psychiatric subject that is embedded in the role that capacity and consent have in this mental health regulation. I will extend the CTO literature by illustrating how capacity is achievable only with medications and that the assessment of rationality reciprocally determines who is eligible for CTOs. Moreover, this research examines how capacity and consent are assembled to establish a normative expression of agency and rationality that precludes non-compliance in the community. Despite the promise that CTOs can help close the revolving door, this article highlights that CTOs have a limited capacity to govern certain psychiatric patients since re-hospitalization is often the only alternative available for managing individuals who refuse.

Producing the responsible and competent psychiatric subject

The development of CTOs in Alberta is situated within a neo-liberal discourse focused on promoting individual responsibility and managing risk (Moore and Hannah-Moffat, 2005). Rose (2000) contends that citizens in advanced liberal democracies are primarily governed through self-regulation rather than by force. He refers to this process of self-regulation as ‘responsibilization’, whereby citizens are expected to take responsibility for their choices and manage their own conduct according to social norms and values (Rose, 2000). CTOs are advanced by legislators and policy stakeholders as tools that can manage psychiatric patients ‘at a distance’ by promoting normal self-governance, individual choice and empowerment, which are essential attributes of a ‘good’ responsibilized citizen (Hannah-Moffat, 2000; Rose, 2000; Turnbull and Hannah-Moffat, 2009). CTOs are designed to enhance ‘good’ citizenship by holding individuals accountable for their ‘risky’ transgressions.

Within this political context, my data illustrate the production of what I term ‘the psychiatric subject’ upon whom CTO conditions are applied. Psychiatric subjects are constituted as contradictory subjects. They are conceptualized in my data as ‘at risk’ and ‘risky’, competent and incompetent, and rational and irrational. CTOs aim to manage and normalize these paradoxical subjects by helping them to responsibly manage their risk through taking their medication (Kemshall, 2002).

Since individuals eligible for CTOs have a serious mental disorder, they are characterized by legislators and policy stakeholders as lacking insight, incapable of making appropriate health care decisions, lacking a capacity to understand the risks associated with treatment non-compliance, delusional, exercising poor judgement and even according to some possessing a ‘broken brain’ (Government of Alberta, 2007a-d; Holmes interview; Jones interview; Roberts interview). As a result of their inherent inability to make rational decisions, these individuals are depicted as ‘at risk’ of future mental deterioration and ‘risky’ to themselves and others.

This depiction of the psychiatric subject as incapable of making responsible treatment choices is a common sentiment found throughout the data. Not accepting that one has a mental disorder, for instance, is considered evidence of the subject’s inability to grasp the reality of his/her situation and this places the subject into a state of dependence on others. For example, Ms Anderson (CTO legislation specialist) commented that:

[a]s a society we are saying people with a mental disorder are not going to be making good judgement and good decisions for themselves, so we’re going to help them do that. We are going to create safety around them so that they can make those [types of] decisions.

(25)

This excerpt illustrates that the psychiatric subject’s ability to be a rational decision maker is impaired by his/her mental illness. In this case, CTOs are promoted as tools that can help these individuals to re-gain good judgement and decision-making skills.

This seemingly negative portrayal of psychiatric subjects is juxtaposed with a depiction of these individuals as being capable of making rational medical decisions. These subjects are supposed to understand that their history of re-hospitalization and inconsistent use of medication places them in jeopardy of further health complications. Since CTOs are considered consent-based tools, psychiatric subjects are portrayed as individuals who recognize that they need more intensive forms of community care. As Dr Holmes (psychiatrist) describes, rational individuals have gained

a degree of stability and insight during their hospitalization [to] agree that a CTO would be a useful tool in managing their illness […]. They recognize that this additional authority will help them in keeping their appointments, taking their medications, etc.

(38)

This demonstrates that these individuals are positioned as subjects who logically accept the conditions of the order as being in their ‘best interest’. Moreover, Dr Holmes explained that rational individuals are

aware that [they] need treatment and [they] have to be aware of the risks as well as the benefits of this treatment. So, you have to be in a state of mind which allows you to be able to weigh the facts in terms of the risks and responsibilities to you as well as the risks of benefits and the risks of harm, to yourself as a result of taking particular treatment.

(5)

There was general consensus throughout my data that these individuals have become stable enough on their medications while in the hospital to achieve the level of rationality necessary to recognize the benefits of compliance.¹⁰ Complying with CTO conditions demonstrates the capacity to self-govern, which is essential for responsible citizenship.

Capacity to consent and active agency

Even though CTOs are depicted as consent-based tools, the capacity to consent requires the production of a capable subject. Only when the psychiatric subject is stabilized on their medication can they, under this civil law, acquire the legal capacity¹¹ to consent to CTOs. A determination of capacity is complicated by a recognition that capacity is not static, but rather that individuals with severe mental disorders can wax and wane between competence and incompetence depending on how consistently they follow their prescribed treatments. Due to the fluidity of capacity, this civil law ensures that the psychiatric subject remains in a perpetual state of regulation geared towards assessing competence and ensuring compliance with their medication.

Eligibility for CTOs is determined by a patient’s capacity to consent to the order. Even though there is an explicit expectation that ‘in the CTO realm if you are competent, you consent’ (Roberts interview: 44), there was a general agreement among legislators and policy stakeholders that when individuals are too sick to make decisions in their own best interest, thus constituting them as incompetent, substitute decision-makers consent for the individual. In cases where the individual is deemed competent and consents to treatment or where a patient is designated as ‘incompetent’, the CTO can be used with few administrative difficulties.

The narrative of choice figures prominently in these data. The key issue debated in this discourse is how to manage people who possess the capacity to consent but refuse to comply with the orders. It is clear in the data that individuals with mental disorders are considered prone to making irresponsible choices when they do not take their medications. For example, Ms Roberts (CTO policy developer) explained that:

[s]ome with bipolar disorder […] when they are experiencing their manic phase, they can exhibit behaviour that is extremely dangerous to themselves such as high promiscuity, spending all their money. You know, deciding to invade an airport and try and get on a plane without a passport, stuff like that because they just don’t have that kind of judgement […]. So, it’s the behaviour you are going to get […] when they go off their medication.

(34)

In this quotation, poor choices such as excessive spending or trying to board a plane without a passport are described as consequences of not taking medications. In fact, poor choices are consistently understood as those that do not comply specifically with the medication conditions on the CTO. According to Dr White (psychiatrist),

[i]f we have an indication that a patient is not taking the medication, the nurse goes out to see the patient. Sometimes the physician, if available, will go out to see the patient with the crisis team, and the patient is given a choice: ‘Take your medication, and you stay at home; you continue to function. If you don’t take your medication, well, we’re going to have to bring you back into hospital so we can restabilize you.’ The patient is given a choice here.

(Government of Alberta, 2007b: CS–49)

It is clear from this excerpt that individuals are given a choice: comply and live in the community or, refuse and be re-hospitalized. Being a functioning, thus responsible, citizen is linked to the individual’s continued adherence to medication. The ability to remain in the community without taking medications is not a choice available to non-compliant individuals.

Similar to Turnbull and Hannah-Moffat’s (2009: 538; see also Rose, 2003a) finding that female parolees must ‘prove she is capable of exercising reason’ and take responsibility for her ‘life as if it were an outcome of acts of choice’, I found that psychiatric subjects are also expected to demonstrate their reason by entering a system of control where their choices have consequences. During one legislative debate, Mr Agnihotri (legislator) commented that

community treatment orders refer to a legal process whereby certain people designated as mentally ill may be forced to comply with the physician’s ordered treatment plans while living outside hospital. Those who do not comply may be returned to hospital for psychiatric assessment and possible admission. (Government of Alberta, 2007a: 753).

This quotation demonstrates that choices that run counter to the conditions outlined on the CTO are taken as evidence of the psychiatric subject’s inability to effectively demonstrate his/her rationality. In this case, the threat of re-hospitalisation¹² is the primary consequence for choosing not to be compliant.

Non-compliant psychiatric subjects

There are two types of capable, yet non-compliant, subjects that are identified in the data: those considered a ‘likely’ harm to themselves or to others. My analysis highlights that for individuals who were designated as competent and deemed ‘likely’ harmful only to themselves, CTOs were not a legitimate management tool. As Mr Chamberlain (parliamentary legal counsel) noted during one committee debate,

a patient can make decisions about how they want to treat themselves. If they are going to have incidents or cycle down a little bit but aren’t going to be a harm to others, then if they’re competent to make that decision, they can do so.

(Government of Alberta, 2007b: CS–118)

Thus, individuals who pose a ‘likely’ harm themselves cannot be stripped of their right to refuse treatment and be required to follow a CTO treatment plan. This finding is consistent with previous rulings made by the Supreme Court of Canada, which found that being diagnosed with a mental disorder and posing harm only to oneself is not a sufficient justification for requiring people to take medications (Starson v. Swayze, 2003). It is only when this potentially self-harming subject begins to show signs of significant deterioration, harm to others or upon further psychiatric assessment that he/she is no longer competent can psychiatrists order a CTO in an attempt to keep him/her in the community. Until this point, these individuals are managed within the regular mental health system and are not subjected to the additional monitoring that is associated with CTOs.

The group that poses the greatest challenge to the CTO regulation is individuals who are capable of making medical decisions, who refuse to consent to the conditions of a CTO, and are considered to be harmful to others by the issuing psychiatrist. Within this discourse, these individuals are depicted as being capable of making medical decisions, but their unwillingness to consent and comply is used by psychiatrists to legally override their right to refuse treatment. In this case, treatment refusal by capable actors is not only indicative of an inherent assumption of irrationality, but it is also equated with being a danger to others (Ellis Interview: 20). In fact, Alberta is the only Canadian jurisdiction where psychiatrists have the legal authority to override a competent person’s decision to refuse treatment when they are considered a ‘likely’ harm to others (Government of Alberta, 2007b, 2009a).

Interestingly, the discourse on CTOs in Alberta is particularly silent on how psychiatric subjects can legitimately refuse these orders. Despite the recognition that there are a number of ‘rational’ explanations for why some people refuse to take their medications, most notably the side-effects and stigma associated with psychiatric treatment (Cooper et al., 2007; Fenton et al., 1997), the refusal to take medications is not considered a rational choice. Since these individuals are considered risky, any attempt to assert one’s agency by not taking medications is taken as evidence of the individual’s inherent instability and public safety risk, rather than an expression of free will.¹³ Notwithstanding the rhetoric of choice and consent, my analysis demonstrates that psychiatric subjects can be placed onto CTOs even when they are capable enough to refuse treatment. In the Alberta context, it does not matter whether the psychiatric subject is capable of making medical decisions or not, if they are deemed potentially harmful to others and are non-compliant, psychiatrists can compel them to take medication without their consent.

Conditioning competence through responsibilization

The CTO provides psychiatrists with a concrete legal mechanism that can guide these complex and contradictory subjects back to a state of ‘normal’ functioning where they have the capacity to make responsible decisions. CTOs offer the promise of governing non-compliant individuals ‘at a distance’ (Hannah-Moffat, 2000) by creating the conditions under which responsible citizenship can be learned without having to resort to force. Legislators and policy stakeholders uniformly contend that in order for these individuals to have a better quality of life, to participate as productive members of society and, most importantly, to reduce the risks associated with being considered harmful to oneself and others, medication compliance is essential. As Mr Hancock (2007 Health Minister) noted

[i]n circumstances where there’s already been a recognition of the nature or the affliction that the individual has that needs to be controlled in order for them to be able to stay and live in the community and have a quality of life, and if they fail to take their appropriate medications and treatment, they will deteriorate to a point where at some point they will need hospitalization, they will need to be engaged in a much more comprehensive treatment program.

(Government of Alberta, 2007d: 2443)

This quotation highlights the disciplinary features of the CTO (Foucault, 1995) used by psychiatrists to prevent further deterioration by helping these patients to regain the insight necessary to comply. Consequently, it appears that responsibilization, self-governance and competence are all mediated by medication adherence.

Similar to how conditions on parole and probation orders are used to produce responsible citizens (Turnbull and Hannah-Moffat, 2009), CTOs are also designed to produce ‘good’ citizens through the conditions listed on the orders. Specifically, these conditions outline that ‘the person […] must take the following medications’ and ‘attend the following appointments with, accept telephone contact or home visits from, or received treatment or care from the following provider(s) […]’ (Government of Alberta, 2010: 5, emphasis added). Importantly, these conditions do not read as if there is an option between medication and professional visits, but rather medication is positioned as the primary form of treatment necessary for the individual to reside in the community.

These conditions structure rational capacity in two essential ways. First, in order to produce a competent self-governing subject, the regulation of this person is not just at the individual level per se, but rather governance of this subject is only achievable through managing brain chemistry. Rose (2003a, 2003b) refers to this reconfiguration of the psychiatric subject as the production of the ‘neurochemical self’. According to Rose (2003b: 58), ‘the active and responsible citizen must engage in a constant monitoring of health, a constant work of modulation, adjustment, improvement in response to the changing requirements of the practices of his or her mode of everyday life’. Medications work to govern the individual by regulating behaviour caused by disruptions in brain function. The data highlight two main assumptions associated with the use of pharmacological interventions. First, psychotropic medications are considered effective because they can target specific impairments in thought, mood and behaviour in a less intrusive and restrictive fashion. Second, since patients’ behaviour can be considered harmful to themselves or to others, medications are thought to be able to adequately control these sorts of behaviour as the first step towards allowing the patient to live in the community rather than in a hospital (Bassman, 2005).

The constitution of the psychiatric subject as susceptible to mental health relapse and potential harm makes medications a targeted CTO condition (Turnbull and Hannah-Moffat, 2009). Throughout the CTO discourse, pharmacological interventions are positioned as new technologies of the self that ‘oblige the individual to engage in constant risk management and act continually in him or herself to minimize risks by […] reshaping the body itself’ (Rose, 2003b: 59). As such, the safety of the individual and, more importantly, the security of others are evoked as the paramount reason for requiring medications as a CTO condition. As Dr Sherman (2009 Deputy Health Minister) noted during one governmental debate ‘this isn’t about forcing everyone to take medications, just those who absolutely need it’ (Government of Alberta, 2009a: 1980). In this case, people who need medications are those individuals who are considered ‘likely’ harmful to themselves or others.

However, simply requiring people to take medications to alter disruptive behaviour is not sufficient enough to produce self-governance. Since the psychiatric subject has already demonstrated a history of medication non-compliance, the second way that CTOs produce responsible action is by creating a system of surveillance that is geared towards monitoring compliance. This system of surveillance is established through the daily interactions that these individuals have with treatment and service providers.¹⁴ As Dr Holmes (psychiatrist) explained:

[i]n the course of their community treatment—visits with health care providers, day treatment etc. patients are assessed as to mental state and functioning, on an ongoing basis. If the patient is not doing well or if non-compliance to the conditions of the CTO becomes evident to a care provider the provider is required to report same to the responsible psychiatrist who then follows up with the patient and a decision is made as to what steps to take, if any.

(38)

This quotation highlights that psychiatric subjects must participate in a diffuse network of monitoring (Cohen, 1985; Monahan, 2006; Monahan et al., 2001) which places them in a perpetual state of regulation by psychiatrists geared towards assessing rationality and compliance.

As previously noted, hospitalization is positioned as the primary consequence of non-compliance. Before a formal apprehension warrant is issued and committal takes place the CTO system is designed to give psychiatric subjects a final opportunity to make the responsible choices by taking their medication. All service providers listed on the CTO must ensure that these subjects comply with their medication and must report non-compliance to the issuing psychiatrist. In fact, many of my participants noted that most people on CTOs are required to take medications through injections rather than oral tablets because injections are considered a more consistent way for professionals to ensure that people take their medications as prescribed and to detect non-compliance.

In order to be satisfied that psychiatric subjects are aware that they have violated CTO conditions, subtle forms of encouragement are used by psychiatrists to promote compliance without issuing warrants of apprehension. The CTO legislation clearly states that psychiatrists must be

satisfied that efforts that are reasonable in the circumstances have been made to (a) inform the person that the person has failed to comply with the community treatment order, (b) inform the person of the possibility that the psychiatrist may issue an order for apprehension and assessment of the person if the person continues to fail to comply with the community treatment order, and of the possible consequences of that assessment, and (c) provide reasonable assistance to the person to comply with the community treatment order.

(Government of Alberta, 2009b: 14)

These discussions of non-compliance are meant to engage non-conforming patients in the treatment process and to provide a way of convincing them to take their medications. The issuing psychiatrist has an obligation to make sure that these individuals understand that they have not been compliant with the conditions, help them to comply and highlight the important consequences that resistance can have on their ability to remain in the community. These informal discussions are often persuasive enough to ensure future compliance. For example, Dr Holmes (psychiatrist) explained that:

[t]he consequence of being hauled up on the carpet would be intimidating for some of these people. These people are very shy, they are very anxious individuals, they don’t like being called up by the nurse and saying there is a rumour going around in the group home that you are living in, that you are smoking dope,¹⁵ get in here we’re doing a blood test. [So] getting proven that you have been not complying will be a big consequence for some of them.

(30)

This excerpt highlights that the law, expressed through psychiatric power to determine non-compliance, allows for a further intrusion into the body beyond initially requiring medication. Although CTOs are promoted as less intrusive forms of management, these data suggest that requiring psychiatric subjects to submit to blood tests to verify that they are taking their medications and to receive mandated injections of prescribed drugs extends the reach of psychiatry further into the bodies of these subjects in quite intrusive ways. This allows the force of law to not only be applied to the body of the psychiatric subject, but it can also be symbolically infused into the body to modify behaviour (Hyde, 1997).

Medication adherence is positioned as an essential way to mitigate the risk of future mental deterioration and acts of harm associated with risky psychiatric subjects. Nevertheless, Canadian law prohibits forcing individuals to take medication in the community against their consent. The law is designed to place limits on the legitimate intrusion into the liberty of democratic citizens. However, in the case of CTOs, the law is actually being marshalled to ensure that medication is taken. In order for psychiatric patients to be recognized as rational decision makers they must take their medication. The law not only promotes medication compliance in order to alleviate risk, it also creates the conditions under which the psychiatric subject can be managed with more intrusive interventions. In keeping with the critical scholarship that suggests that the use of CTOs makes the community no less restrictive than the hospital (Heffern and Austin, 1999; Munetz and Geller, 1993; Segal and Tauber, 2007; Snow and Austin, 2009), I argue that CTOs are de facto forced medication orders.

Capable yet non-compliant patients pose a problem of governance for the mental health system.¹⁶ This ‘harmful, non-compliant and risky’ subject typifies an important contradiction between the intention of the orders and the actual way that they are designed by policy makers to be used on the ground. Although CTOs are designed to better support the psychiatric subject in the community re-committal to the hospital becomes a reasonable restriction of ‘freedom’ for individuals who cannot be effectively managed under a CTO. Even though forced medication in the community is prohibited by law, once the non-compliant subject is returned to the hospital the Alberta Mental Health Act (Government of Alberts, 2009b: 32–33) legally allows the use of force to control the behaviour of risky and dangerous patients by stipulating that:

the authority to control a person under this Act is authority to control the person without the person’s consent to the extent necessary to prevent serious bodily harm to the person or to another person by the minimal use of such force, mechanical means or medication as is reasonable, having regard to the physical and mental condition of the person.

Therefore, medications play an important role in governing the body inside and outside of the hospital, despite the perception that medications are a form of treatment not control.

Implications and conclusions

Scholars contend that the use of coercion to induce medication compliance through CTOs is a fundamental violation of the right of capable individuals to refuse medical treatment (Burns and Dawson, 2009; Monahan et al., 2001). However, this scholarship has generally focused on compliant individuals rather than fully exploring the way in which non-compliant patients threaten the efficacy of CTOs. They fail to look deeper into the logic and nuances of these orders to appreciate how CTOs endorse re-institutionalization over and above the expansion of psychiatric power. In much the same way as Beckett and Herbert (2010) have documented the expansion of punitive sanction into civil/administrative spaces, this article considers how techniques of governance of risky populations are being incorporated into the mental health system. This study looked specifically at how psychiatric subjects are constituted within the CTO discourse, how the CTO is used to govern these individuals and how rational non-compliance poses a particular kind of governance problem in Alberta, Canada.

Within a neo-liberal political climate focused on individualized responsibility and risk, my analysis shows that a particular kind of psychiatric subject is produced in the Alberta CTO discourse. I have argued that policy stakeholders portray patients as being able to make rational and responsible choices, but that their psychiatric illness negates their ability to fully exercise these choices. As a result, psychiatric subjects are also characterized as inherently irrational, risky and harmful to themselves and others. However, these individuals are not beyond the reach of psychiatry. The CTO is taken up as a technique of regulation that is intended to help return the psychiatric subject to a state of ‘normalcy’ and rationality, while at the same time reducing the public safety risk associated with untreated mental illness. Taking medications is considered the most effective and least intrusive form of regulation that can help produce a normalized and competent citizen.

The narrative of choice runs throughout my analysis. It is clear from the data that capable subjects are constructed as being able to make responsible choices about their mental health care, yet I have argued that choice and rationality are only possible when individuals remain medicated. In practice, there are only two options available for psychiatric subjects: take medications and live in the community or do not take medications and risk being re-hospitalized. Remaining in the community without pharmacological intervention is not an option for individuals on CTOs. What constitutes a responsible and normatively acceptable choice is narrowly defined for the psychiatric subject as choices that are consistent with the medication and surveillance conditions of the orders. Failure to comply with pharmacological interventions is not only considered a ‘poor choice’, but it is also constituted as a public safety risk. Unlike Dawson’s (2010) suggestion that the enforcement function of the CTO is based on the threat of swift recall to the hospital rather than forced medications in the community, I have argued that re-hospitalization is only legitimately enforceable when ‘forcing’ compliance with pharmacological interventions has failed. This means that medication non-compliance is the a priori condition under which recall to the hospital can be pursued.

This narrow conceptualization of rationality limits the ability of capable individuals to make non-conforming choices. Policy specialists in my data see non-compliance as dangerous and as evidence of the subject’s inability to make ‘good’ choices, regardless of assessments of competence. My analysis suggests that in the context of Alberta CTOs, the neo-liberal focus on responsibilization and risk has worked to limit the rational expression of competent individuals. The use of forced medication orders and hospitalization for competent individuals demonstrates that the freedom of choice and liberty, itself, are not absolute in liberal democracies. While the community is promoted as a ‘freer’ social environment, CTOs provide the pretence of freedom that is conditional on chemical restraint. By resorting to hospitalization as a consequence of making non-conforming choices, CTOs are a form of regulation that aims to control and contain these ‘ungovernable’ subjects until they can become self-regulating and moral citizens (Rose, 2000).

In some respects, the re-institutionalization of non-compliant patients works as a form of selective detention. Hospitalization functions as a form of preventative detention by containing non-compliant subjects in a secure location until they have demonstrated that they are no longer public safety risks. Once the individual becomes compliant again their public safety risk is diminished. However, unlike the case of sex offenders who are sometimes portrayed as being incurable and a persistent risk to society (Hayes et al., 2009), psychiatric patients are only subjected to selective detention when they do not comply with their pharmacological regime. Their detention in the hospital is conceptualized as temporary and it requires psychiatrists to use their clinical experience to determine whether a person is a ‘likely’ harm to others in quite probabilistic ways. Since individuals who do not take their medications are presumed to pose a public safety risk, the CTO provides a more palatable route towards detention.

Even though long-term hospitalization is not the desired goal of the Alberta CTO system, the way that consent, capacity and choice are assembled provides little recourse for psychiatrists who have to manage these non-compliant individuals in the community. Despite not technically doing anything ‘wrong’, they are still placed under a draconian type of control that negates their ability to express their competent rationality as they see fit. The use of hospitalization as a consequence of CTO non-compliance highlights an important tension between individual liberty and public protection (Beauchamp and Childress, 2001; Snow and Austin, 2009). As a result, this further entrenches sanctions common to the criminal justice system, such as parole and probation violations, into the civil law context of mental health.

Instead of increasing the length of community tenure and reducing the risk associated with medication non-compliance, the CTO as conceived in my data may not achieve either of these outcomes for non-compliant subjects. Since these orders are unable to reduce non-compliance for this risky group within a less restrictive environment, the CTO process simply provides the myth of regulation rather than true community control. My analysis suggests that CTOs are incapable of managing non-compliant individuals within the community without resorting to hospitalization. Even though CTOs are promoted as tools aimed at helping restore revolving door clients to a state of self-governance, the dynamics of competency, consent and compliance suggest that self-governance may only be possible for those who remain medication compliant. However, when government ‘at a distance’ does not work to produce responsible citizens, disciplinary strategies, such as hospitalization, are used to reduce risk and increase public safety (Hannah-Moffat, 2000). As a result, this legal form of chemical regulation continues to spin the revolving door rather than close it.

Footnotes

Funding

The author wishes to acknowledge the funding support offered by the Social Science and Humanities Council of Canada (SSHRC) for this project.

Notes

Author biography

Amy Klassen is a senior PhD candidate at the University of Toronto. Her work looks primarily at the ways in which power and control are developed in social institutions. Her current work looks specifically at the ways in which prison officers are trained and the implications that has for how they manage working in a penal context. Her research interests include risk, governance, agency and resistance.

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