3 - Major Criticisms of Mental Health Law

A Introduction

Mental health laws codify non-consensual psychiatric treatment and involuntary hospitalisation, and regulate the powers of those given charge to do so. This function is largely unchanged since the nineteenth century, when private ‘madhouses’ and asylums began proliferating in the West.¹ Contemporary mental health laws in high-income common-law jurisdictions appear to reflect concerns associated with deinstitutionalisation; that is, the shift from large-scale stand-alone psychiatric institutions to a more diffuse set of ‘community-’ and hospital-based services. Today, according to Bernadette McSherry, the law is integral to the functioning of mental health systems.² Such systems exert a powerful influence over people’s lives. Lawrence Gostin catalogues some of the effects in legal terms.³ He writes that the law continues to empower the medical profession to ‘limit individual liberty … bodily integrity … privacy … and capacity to act’, as well as to arbitrate special rules of citizenship.⁴ These limitations primarily take the form of compulsory admission and involuntary treatment.

By imposing such restrictions, it can be argued that mental health law operates to protect individuals and create opportunities for social justice⁵; they provide a framework for civil rights protection and procedural due process for those subject to civil commitment. Such laws have undoubtedly achieved a great deal of good: helping individuals avoid harm, providing much-needed access to assistance, creating procedures to prevent arbitrary incarceration and raising standards by which governments (and public officials) use coercive measures to prevent injury to individuals and communities. Certainly, the rights-based legalistic approaches that shaped contemporary mental health legislation were advanced by well-meaning legal and medical professionals who were humanist, liberal and compassionate.

However, there are other ways of seeing mental health law. Despite the hard-won gains and achievements of reformers seeking to improve upon earlier legislation, mental health law has been the subject of wide-ranging criticism, with some commentators charging that it creates more problems in today’s world than it solves.⁶ Various commentators have described mental health law as counter-therapeutic, ineffective on its own terms and discriminatory. In this sense, mental health law can be seen as an emancipatory tool to protect communities and individuals affected by extreme mental health crises, or a veil to legitimise the prejudicial control and exclusion of a confusing and objectionable minority.

These concerns reflect deep and lasting tensions in debates about mental health law. Deep political convictions about how the individual should be valued in relation to the collective give rise to competing answers to the question, How wide should the individual sphere of liberty be before the collective will can impose upon that sphere, whether for public safety or for the safety of the individual? This is essentially a question of political science and moral philosophy. Its consideration in law draws attention to the complex interplay between important and frequently competing principles of freedom, protection and fairness. This dynamic is complicated further by disputed premises regarding the impact of mental disorder upon a person’s ability to make ‘autonomous’ decisions. Willis Spaulding has described this conceptual controversy as arising from competing ‘understanding(s) of the relationship between liberty and mental disorder’.⁷ These concerns populate the background of current mental health law, which this chapter seeks to bring to the fore. The CRPD has offered an opportunity to navigate an alternative path through long-standing debates.⁸ Before focusing on the corrective potential of the CRPD support framework, it is useful to list the major practical and conceptual dilemmas in mental health law today.

In her meta-analysis of mental health law, Jill Peay noted that it is difficult to locate key issues, as there are so many,⁹ a view echoed by the Health and Consumer Protection Directorate-General of the European Commission.¹⁰ Nonetheless, a diverse array of commentators view the current era of mental health law as wanting in key respects, and have identified specific concerns.¹¹ The strident directives of the CRPD Committee and other UN agencies have amplified these concerns.

Although the theoretical lens of this book is human rights-based, pragmatic arguments are also relevant and include matters of resourcing, the internal coherence of mental health law and comparative analysis of evidence regarding its success and shortcomings. The purpose of articulating these issues is to assist in weighing the costs and harms of specific civil commitment laws, and to tease out some of the major practical and conceptual concerns relevant to a human rights analysis. In assessing these costs and benefits, it is perhaps as easy to give mental health law too much blame for the costs as too much credit for the benefits. One possibility is that the potential downsides of mental health law arise when it is distorted or misapplied. Another possibility is that any benefits of mental health law are overwhelmed by other powerful forces in society,¹² such as wealth inequality and resource distribution.¹³

In evaluating the main issues in mental health law, therefore, researchers must isolate and assess these causes and effects as carefully as possible. For the purposes of this chapter, it should be noted that most of the arguments are listed as concisely as possible, even at the risk of seeming overly polemical. The intention here is to explore a range of critical issues in order to evaluate which issues the CRPD support framework may or may not address, as the case may be. Finally, even if the costs of mental health law were established, it would still be necessary to evaluate them alongside the very real accomplishments of mental health law reform in recent decades.

B Rights-Based Arguments

1 Mental Health Law Is Discriminatory

Mental health law can be seen to be unjustly discriminatory, as it only applies to people with apparent or diagnosed mental illness/mental disorder. Mental health law constitutes an entrenched anomaly in a legal system that traditionally privileges and protects individual autonomy and routinely upholds the right to refuse treatment in general healthcare.¹⁴ Core Western legal values of equality and non-discrimination are compromised where powers of mandatory detention and compulsory medical intervention only apply to those with an apparent or diagnosed mental illness in certain circumstances.¹⁵ The authorisation of powers that circumscribe the right to refuse medical treatment, even when individuals retain mental capacity, remains an exception to ethical standards in general medicine. Judy Laing argues that ‘[c]oercive care remains predominant in the treatment of mental ill health’, making it ‘distinctive as one of the very few areas of medical practice where overtly paternalistic traditions still dominate, and patients can be admitted compulsorily to hospital and forcibly treated, irrespective of their mental capacity or individual autonomy’.¹⁶ There are some exceptions to this broad observation; for example, a number of Australian jurisdictions have authorised competent refusal of psychiatric treatment, as is generally the case with other medical treatments.¹⁷ However, these remain largely the exception and, as Chapter 4 will detail, continue to fall shy of ‘harder’ readings of the CRPD, where a number of UN agencies have called for the abandonment of mental capacity assessments because they discriminate in effect (even as they remain formally non-discriminatory) against persons with disabilities.

General medical law has seen a major shift in the past fifty years towards patient autonomy and away from traditional medical paternalism.¹⁸ Medico-legal standards today provide that doctors who treat patients contrary to their expressed wishes breach the following principle: ‘An adult patient … has an absolute right to choose whether to consent to medical treatment, to refuse it or to choose one rather than another of the treatments being offered …’¹⁹ To breach this principle leaves doctors liable for battery under tort law and defies ethical codes of practice.²⁰ This liability applies throughout the common-law world.²¹ Again, mental health law remains an exception to this principle.

It is true that even medical law has limits to respecting patient autonomy when weighed against majoritarian interests and competing human rights. Exceptions include matters of public risk (for example, when epidemics require quarantining and treatment), immediate crises (for example, emergency intervention following severe physical trauma) and specific restricted decisions (such as the selling of organs, or end-of-life treatment when patients express the wish to die). However, these exceptions at the ethical boundaries of medical law, even as they differ between jurisdictions, are generally applicable. By contrast, mental health law applies on an unequal basis to a specific group of people in both principle and application. Even as mental health law applies specifically in certain circumstances, particularly where risk to self or others exists, it is only applicable to those with an apparent or diagnosed mental illness. This creates inconsistency with other areas of medicine where patients deemed ‘mentally capable’ are entitled to make personal health choices, even where such choices result in a risk of death.

The criticism that mental health law is unjustly discriminatory is not new. In 1977, Stephen Morse concluded a journal article with what remains a powerful argument today:

Mental disorder is not an efficient and adequate threshold criterion for social and legal regulation of the behaviours regulated by mental health law. Mental health laws often deprive citizens of liberty, autonomy, and dignity without sufficient justification for doing so. Justifications based on disease or on the differences of crazy persons are terribly over- and under-inclusive. Most people with mental disorders, even severe ones, are not different enough from normal persons to warrant special treatment … Conversely, for example, many normal persons behave dangerously or incompetently, and there is good reason to believe they have as little or as much control over their behaviour as crazy persons.²²

Tom Campbell has argued that mental health law leads to ‘institutional discrimination’ by establishing, at law, ‘the idea that there is something about “mental illness” itself which invites a system of control and coercion’.²³ As a result, he suggests, medical treatment and social control become dangerously entangled, promoting stereotyped prejudice and compromising therapeutic support.²⁴ George Szmukler and John Dawson have even intimated that separate mental health legislation is discriminatory against mental health professionals by virtue of their being obliged under law to intervene on prejudicial grounds,²⁵ a view consonant with Joanna Moncrieff’s argument that mental health law unfairly positions psychiatrists as agents of social control at the cost of therapeutic duty.²⁶

The imposition of involuntary psychiatric intervention and restrictions on legal capacity can have secondary effects, some of which are counter to therapeutic support. Stephen Rosenman has argued:

Once they have qualified for compulsory hospitalisation, patients lose their autonomy and personal standing. Not only treatment but all facets of the patient’s personal life fall completely under the power of the hospital staff. However benevolent the staff may be, patients resent staff who are at once their custodians and carers. Such resentment discourages the development of collaboration in treatment.²⁷

Abridging or restricting fundamental rights can inflict profound psychic damage, arguably undermining the healing benefits those restrictions seek to bring about. Bruce Winick has argued that labelling someone as ‘incompetent’ induces feelings of helplessness and leads to non-participation in decisions that are central to living a full life.²⁸ Incompetency labelling can impede the basic human need for self-determination and self-actualisation.²⁹ Michael Bach, Jane Anweiler and Cameron Crawford have argued that placing limitations on legal capacity – in the sense of restricting a person from making decisions based on values and a reasonable availability of meaningful choices – diminishes personhood and citizenship.³⁰ This, in turn, reduces a person’s status in society, contributing to social exclusion and potentially increasing powerlessness and vulnerability to abuse.³¹

2 Mental Health Law Violates International Human Rights Law

As the previous chapter outlined, the CRPD has added weight to arguments that mental health legislation violates a range of human rights.³² Particular sections of the CRPD will create ongoing challenges to the operation of mental health legislation. Laws that discriminate on the grounds of disability can be seen to violate fundamental principles of the CRPD, particularly with regard to ‘[r]espect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons’, ‘non-discrimination‘ and ‘equality of opportunity’.³³ Article 5(2) prohibits all forms of discrimination based on disability, while Article 14 specifically states that ‘the existence of a disability shall in no case justify a deprivation of liberty’.³⁴ Article 17 states that ‘[e]very person with disabilities has a right to respect for his or her physical and mental integrity on an equal basis with others’.³⁵ Article 25 directs that States Parties shall ‘[r]equire health professionals to provide care of the same quality to persons with disabilities as to others, including on the basis of free and informed consent’.³⁶ Finally, Article 12 directs that States Parties shall not place restrictions on legal capacity based on disability,³⁷ which mental health legislation clearly does. (I will discuss Article 12 in detail in Chapters 4 and 5.)

As noted previously, UN treaty bodies have elaborated on legal arguments that involuntary psychiatric intervention under current mental health legislation violates the CRPD.³⁸ For example, the CRPD Committee commented:

As has been established in numerous concluding observations, forced treatment by psychiatric and other health and medical professionals is a violation of the right to equal recognition before the law and an infringement upon the rights to personal integrity (Article 17), freedom from torture (Article 15), and freedom from violence, exploitation and abuse (Article 16). This practice denies the right to legal capacity to choose medical treatment and is therefore a violation of Article 12. States Parties must, instead, provide access to support for decisions about psychiatric and other medical treatment. Forced treatment has been a particular problem for persons with psycho-social, intellectual, and other cognitive disabilities. Policies and legislative provisions that allow or perpetrate forced treatment must be abolished. This is an on-going violation in mental health laws across the globe, despite empirical evidence indicating its lack of effectiveness as well as views of people using mental health systems who have expressed deep pain and trauma as a result of forced treatment. The Committee recommends that State parties should ensure that decisions that involve a person’s physical or mental integrity can only be taken with the free and informed consent of the person with disability concerned.³⁹

Setting aside the veracity of these claims, which I will discuss throughout this chapter, the CRPD Committee directs States Parties to replace mental health law with a ‘supported decision-making regime’.⁴⁰ The nature and feasibility of this directive will be the subject of Part II of this book.

3 Mental Health Law May Lead to Cruel, Inhuman or Degrading Treatment or Punishment

The UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan Méndez, reported in 2013 ‘that involuntary treatment and other psychiatric interventions in health-care facilities are forms of torture and ill-treatment’, and urged the ‘revision of domestic legislation allowing for forced interventions’.⁴¹ Méndez submitted his report to the UN Human Rights Council, which examined the nexus between the torture prevention mandate, the CRPD and the right to health. Concerns about the detention and treatment of persons with psychosocial disabilities formed the majority of the report. Controversially, recommendation 89(b) directed states to:

Impose an absolute ban on all forced and non-consensual medical interventions against persons with disabilities, including the non-consensual administration of psychosurgery, electroshock and mind-altering drugs such as neuroleptics, the use of restraint and solitary confinement, for both long- and short-term application. The obligation to end forced psychiatric interventions based solely on grounds of disability is of immediate application and scarce financial resources cannot justify postponement of its implementation.⁴²

Likewise, Minkowitz calls for the ‘immediate cessation of forced psychiatric interventions’ and the abolition of mental health law.⁴³ While Minkowitz does not identify the exceptions to substituted decision-making, Méndez makes exceptions for life-threatening emergencies ‘in which there is no disagreement regarding absence of legal capacity’, at which point ‘a health-care provider [may] proceed without informed consent to perform a life-saving procedure’.⁴⁴

As this last comment indicates, the report is somewhat conflicted, here endorsing what appears to be a functional mental capacity approach (which accepts that an absence of legal capacity can be agreed upon), although elsewhere in the report suggesting that legal capacity is held by all people regardless of impairment.⁴⁵ The special rapporteur’s comments on risk of harm also appear to be inconsistent. Earlier in the report, he comments that ‘the State must … show that detention (based on mental illness) is necessary to protect the safety of the person or of others’.⁴⁶ Interestingly, however, Méndez revised this position in a statement accompanying the submission of the report to the Human Rights Council, in which he stated, ‘I believe the severity of the mental illness cannot justify detention nor can it be justified by a motivation to protect the safety of the person or of others’.⁴⁷ While the UN Special Rapporteur on Torture directed that the treatment of those with psychosocial disabilities must only be consensual, his inconsistent commentary does leave open an argument that some form of coercive intervention may be justified in some circumstances, namely where interventions are based on a sufficient risk of harm or the ‘absence of legal capacity’. Some countries will endorse the focus of the special rapporteur on mistreatment in healthcare settings, while others may charge that the statement fell outside his mandate, or that the statement did little to provide alternative solutions or concrete recommendations, such as alternative models for ‘supporting legal capacity’. Clearly, as with the views of the CRPD Committee, the task of developing alternatives is left up to States Parties. What is also clear is that an emerging consensus has formed within parts of the UN that the discriminatory nature of mental health legislation justifies its abolition rather than reform, with some notable exceptions.⁴⁸ The special rapporteur endorses what he describes as the ‘very explicit’ directive of the CRPD Committee, which ‘call[s] for the prohibition of disability-based detention, i.e. civil commitment and compulsory institutionalization or confinement based on disability’.⁴⁹

4 ‘Special Measures’: Can Lawmakers Justify Differential Treatment?

Both proponents and opponents of mental health law acknowledge that it subjects people with psychosocial disabilities to different rights – or, at the very least, a substantially different calculus for applying competing rights. Where controversy does arise is in whether such restrictions constitute discrimination in the sense of unjust prejudicial treatment of one group, or whether ‘special measures’ are justified due to the unusual nature of mental illness and the distinct issues it raises.⁵⁰ ‘Special measures’ are typically understood to refer to an acceptable departure from the principle that people are entitled to equal protection of the law and should not be subject to discrimination on the grounds of a certain attribute.⁵¹ Tom Burns writes: ‘Coercion in psychiatry is only justified if you accept that there really is something special about mental illness, that people are not their normal selves when acutely ill. Without such a view, compulsory treatment is indefensible and any analysis of the experience of coercion without acknowledging it strikes me as incomplete’.⁵² The special-case argument rests on a number of critical claims. Jillian Craigie and Lisa Bortolotti summarise the many justifications for the use of psychiatric diagnosis as grounds for involuntary intervention, which range from claims about

impaired insight in mental disorder; to mental disorder removing autonomous control; to the association of mental illness with global irrationality; and to the idea that mental disorder undermines personal identity or diachronic agency. Whatever the underlying assumptions, law that bases interference on the presence of mental disorder – the so-called ‘status’ approach – holds that a psychiatric diagnosis eliminates the need to assess the person’s decision-making ability. The diagnosis alone is taken to mean that the person is not in a position to decide for themselves, at least in relation to psychiatric treatment …⁵³

Three major justifications for distinct legal rules for persons with an apparent or diagnosed mental illness emerge. First, such persons are unusual legal actors who may be unable to make decisions and thus require unique laws in certain circumstances. Second, certain types of mental illness create public risks that necessitate involuntary interventions. Third, emergency interventions in mental health crises require specific regulations and safeguards, which is substantively different from other forms of emergency intervention. I will consider these justifications in turn.

a The Incompetence Claim

The first claim holds that persons with psychosocial disabilities are less responsible causally, and therefore legally, for their actions. Hence, their ability to give or withhold consent for treatment cannot occur to the same extent or in the same manner as for persons with physical disorders.⁵⁴ This view, according to Paul Appelbaum and Thomas Grisso, rests on ‘premises concerning the degree to which persons with mental illness manifest impairment of their decision-making abilities’.⁵⁵ Perhaps the most significant of these premises is the widely held assumption that people who meet the criteria for civil commitment under mental health law generally lack mental capacity.

However, the MacArthur Treatment Competence Study (MAC Study), the largest study to compare the mental capacity of patients admitted to psychiatric institutions with that of general medical patients, found that the majority of research subjects admitted to psychiatric institutions had the mental capacity to make decisions.⁵⁶ Further, more than half of the inpatients in the study were found to have similar mental capacity levels to their counterparts in physical health care.⁵⁷ The study did identify significant differences in ‘decision-making abilities’ between people ‘with and without mental illness, especially when the comparisons focus on patients with schizophrenia’.⁵⁸ The authors caution that such variance ‘may justify differences in the ways in which consent to treatment for mental illness and for [physical] illness are handled’.⁵⁹ They refer to practices for gaining informed consent that accommodate the needs of mental health inpatients as compared to general health inpatients and conclude that overall, the findings disprove the commonly held assumption that people with severe mental health conditions automatically lack mental capacity.⁶⁰ On this basis, mental health law that enables treatment without consent should not be based on a presumption of mental incapacity. While mental capacity is not typically used as a criterion for civil commitment,⁶¹ with an increasing number of exceptions,⁶² the commonly held correlation between mental illness and incompetence may premise claims that mental health law ought to be viewed as a special measure.

b The Public Risk Claim

Another major premise behind seeing persons with psychosocial disabilities as sufficiently unique to justify separate mental health laws is that they pose a significantly higher risk to others than those without such disabilities.⁶³ Indeed, preventing public risk is posed in authoritative accounts as a principal justification for the unusual powers of mental health law; that is, police powers are required in the interest of protecting the community.⁶⁴ (The issue of ‘risk to self’ will be discussed in the section on efficacy, where it is noted that a significant body of research has brought into question the ability of clinicians to predict the likelihood of self-harm.)⁶⁵ However, the risk-of-harm criterion can be criticised as being discriminatory in its application to only those with psychosocial disabilities, whilst other groups at high risk of harming others do not face involuntary treatment and preventive detention.⁶⁶

In part, this special treatment is based on the hypothesis that untreated symptoms of mental illness are the main source of criminal behaviour for offenders with psychosocial disability, and that linkage with psychiatric services is the solution.⁶⁷ However, Jillian Peterson and colleagues have argued that a growing body of evidence is challenging this ‘widely embraced explanation’ which ‘drives much contemporary policy related to offenders with mental illness’.⁶⁸ Their own study analysed the offence patterns of 220 parolees in the United States, 111 of whom had a ‘serious mental illness’ and 109 of whom did not. The findings suggest that substance abuse has a much stronger correlation with violence than solely mental health problems.⁶⁹ A series of American studies support the view that a small subgroup of those diagnosed with severe mental illness may be arrested because their hallucinations or delusions lead to violence or they may cause public disturbances.⁷⁰ Yet Mary Donnelly argues that the correlation between psychosocial disability and acts of violence is less significant than is widely perceived, especially when compared to other factors such as age, history of violence, gender, substance abuse and family breakdown.⁷¹ The broad perception of a connection between mental illness and violence is likely to have been reinforced consistently by the media in the countries considered in this book.

In a series of studies, Paul Mullen and colleagues found that the highest rates of violence occurred where substance abuse coexisted with mental illness.⁷² Mullen has argued that, while most people with a diagnosis of mental illness will never commit an act of violence, people with untreated psychotic illness (and particularly those involved in substance abuse) are more likely than the average person on the street to be seriously violent.⁷³ However, Mullen has argued that ‘there is a correlation between having a schizophrenic syndrome and increased rates of antisocial behaviour in general and violence in particular’, and that ‘the evidence that such associations are not just statistically but clinically and socially significant is now overwhelming’.⁷⁴ Mullen qualifies this assertion by noting that this small fraction of at-risk individuals (about 10 per cent of those with the schizophrenia diagnosis, who themselves are only one portion of those placed under civil commitment orders) are identifiable and can be assisted with a ‘structured programme in which the … behavioural factors, substance misuse and social dislocation are managed together with the active symptoms of the disorder [to] prevent the progress to violence’.⁷⁵

In what appears to be the largest study to date on the correlation between schizophrenia diagnosis and rates of violent crime, 8,003 people diagnosed with schizophrenia were compared with general population controls (n = 80,025) in respect of criminal convictions for violent crimes.⁷⁶ For the vast majority of those with a diagnosis who had committed a violent crime, the acts were attributed to drug use.⁷⁷ Where other factors were controlled, those diagnosed with schizophrenia who had not abused drugs were only 1.2 times more likely to have committed at least one violent crime than the control group.⁷⁸ However, where drug use was a contributing factor, and where unaffected siblings were used as controls, the comparison showed that the subject’s ‘substance abuse comorbidity was significantly less pronounced … suggesting significant familial (genetic or early environmental) confounding of the association between schizophrenia and violence’.⁷⁹

Nonetheless, ‘risk of harm to others’ has remained a strong focus of mental health law despite the modest correlation of psychosocial disability causing violent crime, particularly when compared to other factors such as drug and alcohol abuse. This skewed focus has arguably contributed to prejudice and discrimination towards people with psychosocial disabilities. There have been long-standing calls to abandon the risk criterion in mental health legislation, which have been reiterated in recent years.⁸⁰ These concerns stem from claims that the test is prejudicial (as it only applies to people with psychosocial disability), misguided (as a diagnosis of mental illness per se is a marginally significant indicator of the likelihood of violence being perpetrated) and largely ineffective, as discussed in the next section. Having considered the two major premises behind the claim that people diagnosed with mental illness require certain exceptions from human rights and non-discrimination standards, I will now examine the second major justification for the unique suspension of rights in mental health law.

c Regulating Treatment and Emergency Powers

Another major claim justifying separate mental health law as a ‘special measure’ (and perhaps the most compelling) is its power to respond to extreme mental crises with urgency, and to regulate those responses. Even some critics of separate mental health legislation acknowledge this benefit. George Szmukler, Rowena Daw and John Dawson, for example, have appraised emergency powers under civil commitment in the following terms:

A major strength of non-consensual treatment schemes that are based on incapacity principles [as compared to civil commitment schemes] is the respect shown for the autonomy of those patients who retain their capacity; but these schemes are, nevertheless, often weak on the regulation of emergency treatment powers, detention in hospital, and forced treatment. These are the areas, in contrast, in which civil commitment schemes are strong. The use of force, and the detention and involuntary treatment of objecting patients, is clearly authorised and regulated by mental health legislation.⁸¹

Regulation through mental health legislation ensures that such interventions can be authorised and monitored. In other words, if emergency powers are needed for some mental health crises, then these powers need to be clearly authorised and regulated – a function that is best provided by mental health legislation.

Michael Perlin has argued that comprehensive mental health legislation can serve the dual function of ensuring that (1) individuals can access independent counsel and judicial review mechanisms,⁸² and (2) their treatment and living conditions, especially those in highly marginalised settings, can be regulated and monitored.⁸³ Perlin points to examples of states that have failed to regulate mental health services and address inhumane treatment in institutional settings.⁸⁴ Mental health legislation can assist by establishing legal protection to persons with psychosocial disability in order to prevent such abuse, as exemplified in the MI Principles.⁸⁵

Procedural mechanisms in mental health law arguably safeguard those subject to intervention powers. The Victorian Law Reform Commission (‘VLRC’) evaluated mental health law in its review of guardianship laws and commended its accountability processes, noting that ‘[t]here is clearly a great need for transparent decision-making processes and appropriate external review when the law authorises public officers to deprive people of their liberty and to provide them with compulsory psychiatric treatment’.⁸⁶ The VLRC was responding to a proposal to ‘fuse’ mental health law with guardianship law in order to create one overarching substituted decision-making law. In its report, the VLRC argued that (Victorian) mental health legislation accommodates the aforementioned transparency, while guardianship law, in contrast, has few mechanisms to ‘review a decision to deprive someone of their liberty and provide treatment without consent’.⁸⁷ Under Victoria’s Guardianship and Administration Act 1986, for example, there is no review process for individual decisions made by either tribunal-appointed or personally appointed guardians.⁸⁸

Another added procedural protection in mental health law is the external review process, which is a central feature of contemporary mental health laws.⁸⁹ Mental health tribunals and other bodies empowered under mental health law have a range of powers to review clinical decisions. Under typical guardianship laws, the delegation of decision-making powers to single individuals does not afford as much oversight. Again, on this view, if intervention in some mental health crises is going to occur without the consent of the individual, then it must be appropriately regulated with adequate procedural protection and safeguards against paternalistic overreach.

However, it could also be argued that earlier access to services and support might prevent the very crises for which involuntary intervention is lawfully required. On the need for coercive powers, a wide range of commentators agree that mental health law has failed most specifically in its function to provide access to support services.⁹⁰ (I will discuss this apparent failure shortly.) If this is indeed the case, then the push for improved procedural protections may be the outcome of a troubling circular logic; that is, mental health law increases the need for involuntary treatment by contributing to the failure to address access to voluntary support at an early stage of the crisis. As a consequence of this failure, increased procedural protections are required for those treated involuntarily. The focus on procedural protections dominates debates on mental health justice, and therefore commands disproportionate institutional attention and resources. While the procedural protections under current mental health law are the result of hard-won gains by reformers, the question remains as to whether this institutional and political focus occupies commentators in the mental health field to the point of making other, more constructive, strategies less available.

It is also worth noting that although policymakers designed mental health laws to safeguard the rights of people subject to involuntary treatment, this very cohort was excluded from the development of these laws. The term ‘cohort’ here refers to people subject to involuntary treatment and detention, but this would also reasonably include all persons with psychosocial disability whose rights to liberty and consent in (mental) healthcare are, according to the terms of mental health law, held to a different standard to other citizens. Yet, as Perlin has commented, ‘[t]here is little evidence that these groups are taken seriously either by lawyers or academics’.⁹¹ If it were the case that safeguarding users’ civil rights was the most compelling function of mental health law, it would seem logical that the development of such safeguards and rights protections should occur with input from those subject to them. For this reason, perhaps, existing procedural mechanisms do not appear to satisfy prominent disabled people’s organisations⁹² or UN human rights agencies⁹³ that have commented on the issue, even as the mechanisms appear to satisfy most policymakers and professional bodies.

Having discussed the principal human rights concerns relating to mental health law, as well as some of the principal justifications for its ‘special measure’ status as an exception to certain human rights standards, it is now appropriate to consider the effectiveness of mental health law.

C Efficacy Arguments: That Mental Health Law Is Ineffective on Its Own Terms

Mental health law is ineffective on its own terms; there is limited evidence to support its success in relation to three of its primary functions. This is essentially a utilitarian line of enquiry. While the human rights-based criticisms of mental health law might provide sufficient grounds for law reform efforts, it is the aim of this book to consider the full range of major conceptual and practical issues arising from mental health law. Further, efficacy concerns are particularly relevant to policymakers given the limited resources facing any government.

The purposes of mental health law are well summarised by Hale, who has observed that civil commitment legislation perpetually struggles to ‘reconcile three overlapping but often competing goals: protecting the public, obtaining access to the services people need, and safeguarding users’ civil rights’.⁹⁴ I will consider the evidentiary basis of each of these functions in turn.

1 Lawmakers Cannot Show Mental Health Law Reduces the Risk of Self-Harm

I have already discussed the use of risk-of-harm criteria in relation to the minimal correlative significance of the public risk associated with a diagnosis of mental illness compared to other factors. Perhaps unsurprisingly then, there is limited evidence to support the view that risk assessments conducted under mental health law reduce violent crimes and other risks to the public.⁹⁵ Predicting who will be at risk of harming others is extremely difficult, given the low rate of violence among people with psychosocial disabilities compared with other groups.

Douglas Mossman conducted a meta-analysis of studies looking retrospectively at risk-categorisation criteria in the lead-up to violent acts.⁹⁶ Mossman argued that there was no way to find a satisfactory balance between specificity and sensitivity in identifying risk.⁹⁷ ‘Hindsight’, Mossman concludes, ‘makes “warning signs” clear, but before violent tragedies occur we cannot efficiently distinguish the signs that point to violence from those that will turn out to be false positive signals’.⁹⁸ Indeed, it remains an open question in the literature on legal psychiatric coercion and violence as to whether the range of civil commitment and legal involuntary treatment measures – including those applied by mental health courts, terms of sentencing, and inpatient and outpatient commitment orders – is effective in reducing the risk of violence.⁹⁹

Similarly, there is limited evidence to support the hypothesis that mental health legislation prevents self-harm and suicide. Alex Pokorny’s large-scale study of 4,800 people admitted to a psychiatric hospital in the United States found that there are no reliable methods to predict particular suicides ‘before the fact’.¹⁰⁰ In a case-control study of ninety-two suicides of people who were inpatients, Jimmy Dong, Ting-Pong Ho and Chui-Kwan Kan found that the ‘[m]ajority of in-patient suicides occurred at a time of perceived low risk’.¹⁰¹ More recently, Matthew Large and colleagues conducted a meta-analysis of longitudinal cohort studies where ‘psychiatric patients or people who had made suicide attempts were stratified into high-risk and lower-risk groups for suicide’ and found the following: ‘The strength of suicide risk categorizations based on the presence of multiple risk factors does not greatly exceed the association between individual suicide risk factors and suicide. A statistically strong and reliable method to usefully distinguish patients with a high-risk of suicide remains elusive’.¹⁰² The fact that limited evidence exists to prove the effectiveness of tests assessing risk of harm to self or others brings into question the justification for their use as a criterion for civil commitment.

David Webb even argues that mental health law has the perverse consequence of increasing suicides by compelling patients who seek discharge or fear involuntary commitment to conceal their suicidal thoughts, hence cutting off the potential for supportive intervention.¹⁰³ Darian Leader summarises this line of argument and assigns blame to the culture of risk-aversion in mental health services when he writes: ‘Risk management means lives cannot be lost, and patients learn to hide suicidal thoughts to facilitate discharge … The more you insist that the person can’t kill themselves the more the chances of a suicidal act increase’.¹⁰⁴ While Webb’s and Leader’s argument remains a hypothesis, and one which seems difficult to validate, a number of other commentators have raised similar concerns. David Jobes reportedly stated that ‘[m]uch of what was done in the name of clinical suicide prevention was actually coercive, shaming and controlling’¹⁰⁵ – a conclusion that speaks to the potentially traumatising and disabling responses of services. Susan Stefan, after interviewing and surveying 244 suicide-attempt survivors for her 2016 study on suicide law and policy, concluded that

our policies and practices regarding suicide create an irrational incentive structure where people understand that they have to attempt suicide to get help, help which is of questionable utility, while community-based approaches that are less expensive and work are underfunded. We have a system that doesn’t work for anyone – neither the people who are supposed to be providing help, nor the people who are supposed to be receiving it.¹⁰⁶

Stefan (writing in the US context) notes the resulting frustration of mental health professionals: ‘Mental health professionals in my interviews also sounded powerless and hopeless: asked to do the impossible with ever-dwindling resources, profoundly anxious about liability, genuinely baffled about how to help some of their patients, plagued by insurance demands and paperwork’.¹⁰⁷

Stefan’s view that ‘we have a system that doesn’t work’ is debatable.¹⁰⁸ However, it is generally agreed that there is a remarkable absence of empirical evidence, which demonstrates the effectiveness of involuntary psychiatric intervention in achieving one of its core objectives, reducing self-harm. On the contrary, according to Stefan, her study suggests that ‘involuntary psychiatric detention increases rather than decreases the risk of suicide for many people, while evidence-based treatments that actually reduce suicidality are all community-based’.¹⁰⁹ She concludes: ‘[W]e focus enormous amounts of resources and inflict substantial pain in the form of involuntary commitment and treatment on people who, statistically speaking, are actually at a fairly low risk of suicide’.¹¹⁰

2 Mental Health Law Fails to Facilitate Access to Treatment

Mental health legislation fails to facilitate access to voluntary support during times of crisis. From a rights perspective, mental health law fails to secure substantive rights for people with psychosocial disabilities. The claim that mental health law fails to facilitate access to treatment forms a major critique of the pre-CRPD human rights approaches to mental health law, which have involved a strong focus on negative liberties or so-called first-generation rights. This cluster of rights is based around non-interference and finds expression in mental health law around the ‘rights to liberty and autonomy in relation to the involuntary commitment of individuals with very serious mental illnesses’.¹¹¹ This libertarian push, captured particularly in Gostin’s concept of a ‘new legalism’ in mental health law, saw procedural safeguards increased to regulate the control of psychiatrists and address the misuse of medical power.¹¹²

It is true, however, that the legalistic approach also sought to provide for the right to treatment. However, this goal was arguably the least successful of the ‘new legalism’ framework, a shortcoming which, according to Gerard Quinn, has drawn mental health debates into an ‘imprisoning logic’ and caused a breakdown of meaningful dialogue:

Some civil libertarians would hesitate to use an argument for a legal right to treatment (no matter how meritorious) lest the need for treatment might be used to justify an undue encroachment on liberty. Contrariwise, some professionals in the field who have the responsibility to deliver services, would hesitate to embrace liberty-enhancing arguments lest it interfere too much with their capacity to deliver a substantive right to treatment – with their professional prerogatives.¹¹³

The impasse forms a conceptual tension in mental health law linked to a common critique of ‘new legalism’: it has typically struggled to provide substantive rights to persons with mental impairments in the form of access to healthcare and support. Peay describes the lopsided emphasis on negative rights as the ‘problematic nexus of mental health and law’, where the law has taken a historical role of restraining rather than facilitating access to services.¹¹⁴

Numerous commentators have raised the concern that mental health law exacerbates the inaccessibility of services, especially for individuals in crisis.¹¹⁵ As early as 1985, Nikolas Rose criticised the rights-based approach to mental health law on the basis that it is ‘impotent when it comes to debating or securing positive policy alternatives’.¹¹⁶ Rose argued against a rights-based strategy of mental health reform from the perspective that ‘new legalism’ simply transfers the involuntary powers from doctors to lawyers.¹¹⁷ This transfer occurred somewhat misleadingly, according to Rose, cloaked in the language of a vaguely defined notion of human rights: ‘There might be an argument for the tactical use of the language of rights because of its consonance with the common sense of western social and political thought. But it is clear that such language provides no means of formulating objectives for substantive reforms or for implementing such reforms’.¹¹⁸

Rose was prescient in identifying the difficulty with which a ‘new legalism’ approach could garner appropriate social provisions, conceive and defend ‘freedom’,¹¹⁹ and appraise and alter the powers of expertise over subjects of mental health law.¹²⁰ Rose’s argument is located in a broader critique of the trend to pursue sociopolitical objectives in legal terms¹²¹ – an argument he and others have made against human rights more generally.¹²² Rose’s proposition that a rights vocabulary provides ‘no means of formulating objectives for substantive reforms’ is arguably less prescient in the light of conceptual advances in human rights in the twenty-first century,¹²³ although some commentators remain sceptical of the power of CRPD-based strategies to garner necessary resources (as shall be discussed in Chapter 7).

According to the International Disability Alliance, the narrow focus on civil and political liberties in mental health and adult mental capacity law has often left people with disabilities in a ‘binary system of self-sufficiency versus enforced dependence’.¹²⁴ The tension, then, between the protection of individual rights and the discretionary powers of non-consensual treatment means that mental health law has struggled to address the matter of access to supportive services, except by authorising coercive treatment. As such, there remains a strong call to bolster state duties to provide resources to enhance a range of human rights (for example, the right to enjoy the highest attainable physical and mental health, and the right to autonomy and self-determination), rather than simply inviting non-interference.

3 ‘Involuntary Outpatient Treatment’ Is Ineffective

It is worth considering the efficacy of legal frameworks for involuntary psychiatric intervention outside the hospital, in people’s residences. As noted in Chapter 1, involuntary outpatient treatment, often referred to as community treatment orders (‘CTOs’), was partly designed to promote adherence to medication regimes and reduce rates of hospitalisation.¹²⁵ However, of the three large-scale randomised controlled trials to consider its success in achieving these aims, according to Steve Kisely and Leslie Campbell, none could demonstrate that CTOs were effective.¹²⁶ For example, the largest randomised trial of CTOs in England and Wales to date found that ‘the imposition of compulsory supervision does not reduce the rate of readmission of psychotic patients’.¹²⁷ The authors of the study, Tom Burns and colleagues, ‘found no support in terms of any reduction in overall hospital admission to justify the significant curtailment of patients’ personal liberty’.¹²⁸ Following the study, Burns, formerly a major proponent of CTOs, reportedly stated simply that CTOs ‘don’t work’.¹²⁹

Similarly, a 2011 Cochrane Review by Steve Kisely, Linda Campbell and Nick Preston examined the ‘effectiveness of compulsory community treatment for people with severe mental illness’ by systematically reviewing all relevant randomised controlled clinical trials.¹³⁰ Overall, they concluded that the trials ‘provided little evidence of efficacy on any outcomes such as health service use, social functioning, mental state, quality of life or satisfaction with care’.¹³¹ According to the authors, the studies faced challenges of data availability: there were no reliable data for assessing cost and ‘unclear presentation of data made it impossible to assess the effect on mental state and most aspects of satisfaction with care’.¹³² However, the findings generally supported an earlier review by the same researchers that could not demonstrate that CTOs achieved their aims.¹³³ Likewise, Andrew Molodynski and colleagues reported on the general ‘absence of convincing evidence that [CTOs] improve clinical or social outcomes or reduce hospital use’.¹³⁴ Pointing out a troubling methodological issue in assessing CTOs more generally, Light and colleagues observe that even if CTOs were found to be effective, ‘it is not clear whether any benefit is due to their compulsory nature or simply a result of the intensity of treatment that they facilitate’.¹³⁵

Steven Segal and Phillip Burgess have challenged claims that the current evidence base provides grounds to dismiss the utility of CTOs. Segal and Burgess undertook two studies which found that in certain circumstances, CTOs were associated with reductions in bed-days¹³⁶ and mortality rates.¹³⁷ But despite these claims, Sonia Johnson has argued that ‘the case for urgent review’ of legislation permitting involuntary outpatient treatment, ‘both at government level and within the professions involved in CTO use, is now strong’.¹³⁸ Reinhard Heun, Subodh Dave and Paul Rowlands, who are members of the Executive Committee of the Faculty of General Adult Psychiatry of the Royal College of Psychiatrists in the United Kingdom, went a step further, calling for an end to the use of CTOs in their current form.¹³⁹ The authors referred to the existing evidence base and argued that ‘[u]nder these circumstances, no clinical procedure would have any support from any regulatory institution. The use of coercion without or even against scientific evidence may be seen as unethical and might violate the patients’ human rights. These circumstances may increase the stigma against psychiatry’.¹⁴⁰

4 Mental Health Law Codifies Medical Discretion, Control and Regulation

Phil Fennell has argued that mental health law’s rights-based rhetoric contradicts the lack of substantive rights protection that the law offers in practice, and instead codifies medical authority to treat and detain.¹⁴¹ This is despite policymakers designing mental health law to provide special rights and improve the freedom of a group whose rights to liberty and healthcare decision-making were previously subject to almost unfettered medical discretion. Despite the rights-based framework of mental health law, coercive ‘powers’ held by clinicians have increased in certain respects.¹⁴² Weller queries whether rights-based legalism better protects substantive rights, given that discretionary power remains with medical authorities who retain a privileged status as expert witnesses.¹⁴³ Similarly, Appelbaum concluded his 1994 treatise on mental health law in the United States thus:

Although patients’ right to refuse treatment in general is frequently endorsed, it is rare for courts to uphold the refusal of any given patient. The nearly uniform consequence of a court hearing is treatment against the patient’s will. The levels at which discretion can be applied to thwart the narrow limits of mental health law are manifold. In civil commitment, for example, family members and mental health professionals have considerable scope in framing their allegations of a patient’s committability; attorneys appointed to represent respondents can vary the vigor with which they contest commitment petitions; and judges can elect to apply broader or narrower interpretations of commitment standards … The effectiveness of mental health law in most contexts depends on the willingness of those who gather information and make decisions – often operating with low visibility – to conform to the dictates of the law. When the law seems wrongheaded, however, unless incentives can be provided for their cooperation or sanctions imposed for their resistance, they will often respond according to their own lights.¹⁴⁴

In Australia, the Human Rights and Equal Opportunity Commission Report of 1993, which was influential in the development of Australian mental health policy, found that legislative formulations in Australian states are ‘marked by circularity of reasoning and apparently designed to intrude to a minimal degree upon the territory of psychiatrists’.¹⁴⁵

D Pragmatic Concerns

A number of pragmatic issues arise in mental health law relevant to this investigation. While many of the issues identified below are corollary to human rights and efficacy concerns, they warrant separate consideration for the sake of a clearer and more complete analysis.

1 Mental Health Law Fails to Protect against the ‘Tyranny of the Majority’

Mental health legislation provides poor protection for people with psychosocial disabilities (and potentially even medical practitioners) in the face of malign public attitudes. Given the discretionary power of typical mental health legislation, and in the absence of strong laws against mental health- or disability-based discrimination, the majority of public fears concerning mental health, no matter how irrational their basis, could pressure policymakers, mental health tribunals and professionals to broaden the operation of mental health laws. Abuse of the authority to treat may occur, particularly when powerful sources apply sporadic pressure (for example, politicians or media who tap populist fears and push for greater control of feared groups).

Moncrieff has argued that mental health legislation allows broader society to abrogate responsibility for people in distress and crisis, and instead wield authority over a marginalised population.¹⁴⁶ She argues that governments aim to contain and isolate problematic groups by compelling clinicians to use their unusual powers to ‘treat’.¹⁴⁷ Appelbaum points to involuntary outpatient treatment laws in almost half of US states as an example of public scandals resulting in laws with questionable effectiveness (and constitutionality).¹⁴⁸ A more recent example is US gun control law reform. Following extreme acts of gun violence, reform proposals have resulted in expanded criteria for involuntary treatment and additional duties on psychiatrists to report suspect persons.¹⁴⁹ Peay discusses the potential for such scandals to generate public pressure on legislators and clinicians, particularly where violent crimes have been committed by persons with a diagnosis of mental illness, in this case personality disorder:

The existence of a vocal and seriously injured section of the public may in turn combine with a further significant proportion of the wider public who may live in fear, justified or not, of becoming victims. And this fear may be inappropriately fed by … common lay misunderstanding … This can create a momentum for those very legislators and policymakers to act, and for clinicians to respond.¹⁵⁰

Peay’s observation was specific to personality disorder and particular political issues in England and Wales at the time. Yet her observations seem applicable more broadly. Crimes committed by people with a psychiatric diagnosis often act as a precursor to greater incursions upon the civil rights of persons with psychosocial disabilities – mental health law, despite ostensibly being aimed at upholding the rights of people with psychosocial disability, seemingly offers little to prevent such systemic discrimination, and can even be seen to facilitate such incursions.

These concerns bring to the forefront the tension between the majoritarian principle of democratic rule and the humanitarian principle of protecting excluded and marginalised minorities. In seeking to achieve that fine balance, it is questionable whether mental health law is currently achieving this aim.

2 ‘Voluntarism’ in the Shadow of Compulsion

Mental health law creates a ‘gap’ between voluntary admission and involuntary psychiatric intervention in which compulsion becomes a threat. The threat of being placed on an involuntary order means voluntary service users can be coerced into agreeing to unwanted treatment, in order to avoid legal compulsion and the associated stigma, discrimination and loss of rights.¹⁵¹ Consider the following illustrative case:

A man voluntarily admitted himself to a hospital’s psychiatric inpatient unit. At no time was the man given information regarding his rights as a voluntary patient, and there was a failure to provide him with services for his pre-existing diabetes. The man became concerned that his ‘treatment’ involved only medication and not a referral to a social worker, psychologist, or community counselling service, despite the psychiatrist recommending this. Although the issue was raised with hospital staff, no action was taken. The man notified staff of his intention to discharge himself (which was within his rights as a voluntary patient), however he was warned his status would be changed to ‘involuntary’ should he attempt to discharge himself. The man then attempted to leave the ward, and was subsequently reclassified as an involuntary patient and put into seclusion for 6½ hours, and stripped of his clothing. The man was not provided with an explanation of his change of patient status to involuntary or the reason for being placed in seclusion.¹⁵²

This case was presented in Australia’s 2012 ‘shadow report’ to the CRPD Committee, which was compiled by People with Disabilities Australia in partnership with multiple law and human rights organisations.¹⁵³

The issue of unregulated coercion via threats of civil commitment was raised as far back as 1964.¹⁵⁴ Rachel Bingham has argued that the issue is systemic rather than an unusual instance of distorted process or ‘bad’ practice.¹⁵⁵ Bingham refers to the ‘common clinical scenario’ in which a person ‘acquiesces to continued admission to a mental health unit primarily because he or she believes he or she will otherwise be formally detained’.¹⁵⁶ Some mental health services have produced guidelines and patient information materials addressing informal patients.¹⁵⁷ For example, the 2015 Mental Health Act Code of Practice for England and Wales makes clear that ‘[t]he threat of detention must not be used to coerce a patient to consent to admission to hospital or to treatment (and is likely to invalidate any apparent consent)’.¹⁵⁸ However, according to Bingham, ‘[u]nfortunately, in many ways this sort of information simply makes explicit the original predicament: you will be “allowed” to exercise your rights, “unless …”’ with the implication being that treatment refusal or leaving a hospital will be sufficient to activate coercive powers.¹⁵⁹

Anne Rogers has examined coercion in British psychiatric inpatients settings, including surveying in 1990 412 psychiatric patients who had experienced at least one period of hospitalisation.¹⁶⁰ Her research suggested that ‘a substantial number of nominally voluntary patients reported coercive aspects of their hospitalisation’,¹⁶¹ which ‘was found to produce a more rejecting attitude towards psychiatric services’.¹⁶² Certainly, there is evidence that clinicians have explicitly drawn on the threat of coercion. Consider the following quite extraordinary statement from Tim Lambert, Bruce Singh and Maxine Patel about people subject to CTOs:

Arguably, CTOs are most successful when patients perceive (if erroneously) that they can be treated against their wishes outside the hospital setting. This remains a form of coercion over and above the legislation itself. Hence, CTOs may serve to ‘persuade the persuadable’, in the hope that the patient does not test the resolve of the community teams to rescind the CTO for breaches relating to non-adherence.¹⁶³

Even as certain methods have been introduced to address this issue (transparency about the legal situation of voluntary patients, clearer information for voluntary patients and so on), the gap between genuine consent and legal safeguards will always exist where there is recourse to detention and involuntary treatment on the partial basis of a diagnosis of mental disorder. This is more likely where the threshold for intervention is lower than for life-threatening emergencies.

3 Coercion Interrupts the Development of Decision-Making Skills

Where legal coercion takes away decision-making control from individuals, the development of their decision-making skills is potentially disrupted. Webb has argued that mental health legislation can lead to disempowerment when the decision of a psychiatrist with substituted decision-making power conflicts with the relevant person’s views about treatment.¹⁶⁴ His argument echoes those of intellectual disability advocates, who suggest that substituted decision-making can stifle decision-making learning, which, in turn, gives the false impression that a person’s decision-making difficulties are ‘natural’.¹⁶⁵

In the mental health context, Gunvant Patel has argued that the widespread use of CTOs in Victoria, Australia, which reportedly has the highest rate of CTO use per capita in the world,¹⁶⁶ produces a similar effect: ‘[W]ith CTOs, learning and growth through experiencing the adverse consequences of one’s actions is sabotaged (developmentally a particularly crucial step for young adults). Relapse prevention and risk management (often poorly assessed and addressed by use of ad hoc untested locally developed measures) are reified instead’.¹⁶⁷ Patel continues to argue that the ‘over-emphasis on positive symptom control over longer term concerns’ prevents clinical staff from being able to ‘engage in a long term relational-based approach to enhancing compliance and engagement’.¹⁶⁸ He argues that clinical staff are negatively affected by the ease with which they have recourse to CTOs, where the

[a]brogation of responsibility for finding alternative and creative solutions is too easily supported. Pejorative terms come into being to both exclude undesirable elements and evade responsibility for tackling difficult to hold patients or parts of them that are difficult to manage. The classic example is the re-labelling of challenging behaviours as ‘behavioural’ or ‘personality’ and thus legitimizing rejection, particularly when resources are limited.¹⁶⁹

Patel further argues that the coercive aspect of CTOs leads to clinicians having ‘the unconscious and at times conscious tendency … to perceive the client as having less human value than ourselves’.¹⁷⁰ Concerns that psychiatric coercion diminishes the ability of individuals to exercise autonomy are especially relevant in the light of mounting evidence that CTOs are ineffective.¹⁷¹

Patel’s arguments are reminiscent of service-user activist Peter Campbell’s description of the effect of stand-alone psychiatric institutions in the United Kingdom. He argues that the old asylums fostered a ‘double dependency’: ‘On the one hand the users of existing services [were] bred to accept dependency as a characteristic of relationships. On the other, the caring team based their operations on this inequality’.¹⁷² He noted the dehumanising result of long-term institutionalisation, and the constant iterations of difference: ‘[a]t times, it is hard work not to believe we are a separate branch of humanity’.¹⁷³

There is some empirical support for the view that coercive powers undermine the development of effective voluntary services during emergency mental health crises. In Germany in 2011 and 2012, several landmark decisions by the Constitutional Court and Federal Supreme Court restricted the imposition of involuntary psychiatric treatment.¹⁷⁴ The restriction narrowed the grounds for intervention to ‘life-threatening emergencies’ only.¹⁷⁵ The court restrictions were based on Germany’s constitutional obligations as a signatory to the CRPD. According to Martin Zinkler, the resulting legal provisions led to ‘examples where clinicians put an even greater emphasis on consensual treatment and did not return to coercive treatment’.¹⁷⁶ There is some evidence that the changes resulted in lower rates of coercive treatment, although the study was small-scale.¹⁷⁷ Despite these findings, some adverse effects were reported, including a possible increase in ‘violent incidents’ at some services, which potentially increased the use of physical and mechanical restraint.¹⁷⁸ There is current evidence from mental health services that substituted decision-making by clinical staff occurs in general services, even outside the context of civil commitment. A study by Marion Freidl and colleagues, for example, examined how 588 patients experience decision making in community-based mental health services in six European countries.¹⁷⁹ The study investigated the ‘relationship between decision topic and involvement in the decision, satisfaction with it, and its subsequent implementation from both staff and patient perspectives’.¹⁸⁰ The researchers stated that service users ‘reported poorer involvement, satisfaction, and implementation in regard to treatment-related decisions’, and concluded that ‘clinicians may need to employ different interactional styles for different types of decisions to maximize satisfaction and decision implementation’.¹⁸¹ It is not clear whether lawful coercion in inpatient and outpatient settings contributes to a broader culture of informal substituted decision-making in service provision. Yet civil commitment law could reasonably be seen to have numerous flow-on effects and consequences for individuals, including stymied decision-making skills, delayed recovery, passivity, learned helplessness and an increased dependence on services, all of which have significant individual and public implications.

4 The Competing Aims of Mental Health Law Blurs Decision-Making Processes

Mental health law is an unsound mechanism for distinguishing the reasons for and processes of substituted decision-making following emergency mental health crises. According to Moncrieff, the entwinement of the legal doctrines of police powers and parens patriae in mental health law, which have distinct ends, creates a destructive tension – the policing mandate presents a conflict of interest against the therapeutic role of the clinician.¹⁸² The competing aims may also create confusion as to the rationale for substituted decision-making. The punitive or protective role of the authorised clinician or mental health tribunal adds yet another aim (preventive detention) to an already confusing decision-making process, where clinicians must make single decisions that also include consideration of resource constraints, access needs, treatment advice and individuals’ rights. For clinicians, the constituent motives for clinical decision-making can be exceedingly complex. John Brayley has argued that this motivational confusion often results in clinicians (and other service providers) prioritising risk-reduction for the service above the interests of the individual.¹⁸³ Decision-making processes become unclear with the blurring of resource concerns and support needs, thus generating confusion about which decisions are being made and for what reasons. In the guardianship context, Brayley argues that the confusion of decision-making motives creates a gap at the point where law meets policy, and the interests of the individual are potentially undermined because decision-makers are limited by the narrow set of service delivery options open to them.¹⁸⁴ This argument could be reasonably applied to mental health law.

5 The Medical Model Dominates in Mental Health Law

Mental health law gives precedence to the neurobiological model of mental health at the expense of other strategies for addressing mental health issues. The competing epistemological (and professional) responses to mental illness are important to consider. Throughout history, differing approaches to regulating coercive measures have related not just to cultural or legal traditions, but also to the variety of concepts and structures of professional intervention.¹⁸⁵ The medical model tends to view the problems facing people in crisis in individual, medicalised terms, rather than from a ‘systems perspective’, including where a person sits in the social context. A strong medical focus thus tends to concentrate attention upon isolated individuals, rather than on social and economic policies that enhance the capacity of communities, families and individuals to respond to mental health crises.

This is illustrated by the rise in the use of psychopharmacological treatment, which is an important feature of the curtailment of legal capacity in mental health law.¹⁸⁶ In Australian mental health law, Ian Freckelton and John Lesser have identified a ‘heavy emphasis on pharmacological management of serious mental illnesses’.¹⁸⁷ In relation to CTO use in the United States, Simon Stefan has characterised forced medication as the ‘core of outpatient commitment’,¹⁸⁸ and Marvin Schwartz and Chris Constanzo propose that outpatient commitment ‘already has or will become synonymous with forced medications’.¹⁸⁹ The side effects of neuroleptic drugs are well-documented.¹⁹⁰ Research indicates that side effects range from anticholinergic and antiadrenergic to neurologic (including endocrine disturbances), all of which can have serious and negative impacts on a person’s quality of life.¹⁹¹ Many neuroleptic medications have permanent and serious possible side effects, including docility, passivity, diabetes, Parkinson’s-type symptoms, dental pathology, weight gain, and salivation and elocution problems.¹⁹²

The vocabulary of the medical model has implications for realising justice. As noted previously, it can draw the focus from collective responsibility by individualising issues of disability. The centrality of diagnosis in the operation of mental health law is important to consider, particularly given expanding categories of diagnosis in the past century. In 1952, the original American Psychiatric Association Diagnostic and Statistical Manual (‘DSM’) had 106 diagnoses.¹⁹³ The second edition of the DSM-IV in 2000 included 360.¹⁹⁴ Controversy surrounding the creation of the DSM-IV went beyond the expansion of diagnostic categorisation and included the well-documented influence of pharmaceutical corporations.¹⁹⁵ The latest iteration, DSM-5, has faced similar criticisms.¹⁹⁶ For example, the British Psychological Society’s division of clinical psychology has criticised the manual and called for abandoning its diagnostic categories altogether.¹⁹⁷ Lucy Johnstone, who co-authored the response by the division of clinical psychology, argued that ‘[t]here is now overwhelming evidence that people break down as a result of a complex mix of social and psychological circumstances – bereavement and loss, poverty and discrimination, trauma and abuse’.¹⁹⁸

The implications of a biomedical conceptualisation of extreme mental stress affect the operation of law. In a 2007 World Health Organisation study into mental health policy and practice across Europe, the authors argued that ‘[f]ar too much confidence has been placed in the brain disease model, which may compound rather than challenge the stereotypes of dangerousness and, particularly, incompetence’.¹⁹⁹ When the focus is narrowed to ‘risk’ at an individual level, the emphasis turns to personal responsibility and individual behavioural change, and relies on traditional coercive powers of public and mental health. Bernadette McSherry has written that ‘a simplistic, reductionist account of the causes of mental impairments brings with it the dangers of sanism and discrimination’.²⁰⁰ Endorsement of a strong biological account of mental distress in mental health law may therefore impose further legal barriers to effective support.

6 Family, Friends, Partners and Other Informal Supporters Are Sidelined

Although there is a general lack of research into the effects of mental health law on interpersonal relationships,²⁰¹ there is some evidence to suggest that current legal and policy frameworks effectively exclude family members and other supporters. Most of the literature on families is medical in nature and centres on assessing the ‘burden of care’ placed on families, as well as the effectiveness of family interventions for treating mental illness.²⁰² In contrast, literature on contact between family and clinicians and on the effects of mental health law on informal supporters is limited. Notable exceptions suggest that families and other informal supporters often experience mental health law within a more general sense of being devalued and ignored in the mental health ‘system’.²⁰³ Fleur Beaupert and Alikki Vernon examined the ‘role of carers in mental health tribunal processes and systems of mental health care’ in different Australian jurisdictions.²⁰⁴ They found that ‘[f]oremost among concerns expressed by carers was the experience of being marginalized in the mental health care system’ as a whole.²⁰⁵

Provisions in mental health law relating to families and other supporters differ in each jurisdiction and can have a significant impact on the supporter and service-user relationship.²⁰⁶ For example, Lesser argued in 2004 that the Victorian Mental Health Review Boards were under no obligation to provide information to informal supporters of those subject to its decisions, and he identified a number of legal and practical barriers that prevent the board from involving supporters in hearings in meaningful ways.²⁰⁷ The Victorian Law Reform Commission’s review of Victorian guardianship law noted that ‘some families have felt forced to apply for Guardianship Orders in order not to have mental health services exclude them from the treatment and care of their family member, and to have their role as advocates recognised’.²⁰⁸

On the other hand, there remain legitimate concerns that individuals may require legal protection to prevent the unwanted involvement of family members and other informal supporters through, for example, provisions relating to privacy and confidentiality. The rights of those subject to mental health law may sometimes give rise to tension with the interests (and even rights) of families and other supporters.²⁰⁹ However, in general, reports from people with psychosocial disabilities, and families and supporters, indicate that informal support networks are often overlooked by clinical substituted decision-makers who may not seek their counsel in decision-making processes or take into account the effect of particular treatment decisions upon those relationships.²¹⁰ Relationships are compromised between individuals and those in their support network where significant psychiatric interventions, regulated by mental health law, are decided upon without consideration of those relationships. Further, these relationships can be significantly affected where supporters are placed in coercive roles which effectively impose legal obligations on them to assist in implementing involuntary orders and engage in substituted decision-making.²¹¹

7 Perverse Incentives to Use Coercive Mechanisms

Mental health law may inadvertently skew the distribution of institutional resources towards coercive mechanisms by focusing solely on the parameters for involuntary detention. This can result in compulsion becoming synonymous with much-needed access to support in a sector often beset by resource shortages. Clinicians may be faced with situations in which compulsion becomes the quickest avenue for necessary resource allocation. This has been a particular concern regarding the use of CTOs.²¹²

Community service providers and support agencies that wish clients to receive acute care services may also be inclined to exaggerate reporting to improve their chances for involuntary admission. Family, friends and other supporters may also be presented with similar incentives, where compulsion enables the supported person to access resources that would otherwise be unavailable to voluntary service users. Accounts such as the following appear regularly in the literature on family and other supporters concerned with civil commitment:

We weren’t so worried about actually making an order against D, we were wanting to make an order against the system. We wanted them to say: ‘The system must provide this man with some help’. And that was the major outcome we were after … You can’t just keep on letting this guy out of jail, not provide him with any supports and services, and not expect a bad thing to happen.²¹³

Where voluntary services are not available, interpersonal problems may arise when informal supporters seek out coercive care for their parent, friend, sibling, partner, adult son or daughter, and so on. Possibly this is an issue to be resolved by policy (and particularly budgetary considerations) and not law. Yet it could be argued that the law is creating an unintended negative consequence, which undermines its original intention to provide responses to worst-case scenarios.

E Conclusion

As previously noted, the listing of issues in this chapter is not exhaustive. Other concerns that could be listed include the increasing number of first-person accounts of trauma caused by coercive interventions; reports of sexual assault, harassment and other forms of abuse that people, especially women, experience in acute settings;²¹⁴ the situations of those who admit themselves who lack the ‘mental capacity’ to consent to admission and treatment and thus become de facto detained without procedural oversight (the so-called Bournewood gap);²¹⁵ and the overrepresentation of persons with psychosocial disabilities as victims of violence and abuse, for which mental health law offers little protection.²¹⁶ Instead, I have chosen to discuss major issues along the lines of rights, efficacy and other pragmatic matters, in order to investigate the potential contribution of the CRPD support framework.

The notion of ‘wise constraints’ has long been advanced by liberal philosophers such as John Locke as a means to enhance human freedom.²¹⁷ Locke’s idea captures the essential logic of those who defend the unusual coercive powers of mental health legislation: civil commitment can augment autonomy through prudent intervention to restore people to their normal selves, or it can restrict autonomy rights in order to uphold other rights – the right to life, to health, to physical and mental integrity. Where interventions are undertaken for public safety purposes, mental health law provides the ‘best of the worst’ ways to reduce harm caused by the peculiar consequences of mental illness, mental impairment, ‘madness’ and so on.

In other words, for doctors and lawmakers who endorse the need for separate, mental health-specific legislation, the ends of mental health law appear to justify the means. On this view, the suspension of principles of autonomy and non-discrimination are viewed as acceptable costs in the pursuit of timely treatment, procedural safeguards and public protection. Mental health law provides for the emergency powers needed to intervene during extreme mental health crises – emergency powers that have been refined over decades of trial and error, and developed through entrenched infrastructure for the regulation and oversight of coercive intervention. This view has been adopted by governments in all jurisdictions considered by this book, irrespective of the apparent divergence between the CRPD and mental health law.

However, even if the human rights issues identified in this chapter are set aside, can it be said that society as a whole is better served by the powers of mental health law? Is greater protection for citizens achieved by restrictions under mental health law on the movement and decisions of certain individuals who may pose harm to others? The claim that such powers are necessary appears to rest on justifications that have been challenged by a growing body of evidence. Indeed, the literature suggests that the public protection measures contained in mental health law are overblown, ineffective and unreasonable, particularly when tied to a diagnosis of mental disorder. This would suggest that the ‘risk of harm to others’ justification is informed by disability-based prejudice, or ‘sanism’ as Perlin has termed it.²¹⁸ As for the protection of people from themselves, can it be said that the present legal system is actually protecting people with psychosocial disability from harming themselves, even in acute crisis?²¹⁹ Again, the literature does not support this view. Therefore, even if one accepts that at least some crises warrant coercive intervention of some kind, the aim of preventing the risk of harm to self or others appears to be ill-served by mental health legislation.

The second primary function of mental health law identified at the beginning of this chapter, ensuring access to support, returns even more troubling results. On this point, the literature is unequivocal: mental health law does not effectively ensure timely voluntary access to support for those in crisis. The lopsided focus on ‘negative rights’ in rights-based legalism – or the narrow application of ‘positive rights’ to involuntary intervention only – appears to hinder this function of mental health law. The impasse then contributes significantly to the common experience of people with psychosocial disabilities, who see themselves as being stuck in a ‘binary system of self-sufficiency versus enforced dependence’.²²⁰ This ‘binary system’ can be explained not just by a lack of resources, but by the design of mental health legislation itself.

The third and final major function of mental health law discussed here is the need to ensure procedural safeguards for persons subject to civil commitment. Arguably, the push for improved procedural protections is compromised from the outset by the apparent failure of the first two major functions of mental health law. Such safeguards appear to command disproportionate attention and resources, and detract from a focus on substantive rights and the provision of (voluntary) treatment and support more generally. Consider the significant costs of administering and regulating CTOs, a cost that could be reinvested in achieving positive rights, for example, via personal advocacy services.²²¹ Nevertheless, the regulatory function of mental health law continues to provide perhaps the most compelling case to a range of academics, service providers, lawyers, government agencies and others on the need to retain it. It is noteworthy that this justification does not appear to be shared by prominent commentators with lived experience of mental health issues or by representative service user and survivor organisations,²²² as well as prominent UN human rights agencies. Indeed, existing safeguards and rights protections were not developed with the active participation of those whose rights are deemed to need safeguarding. Instead, it appears that in all of the jurisdictions considered by this book, it is clinicians, lawyers and service providers who have taken a more prominent role in developing procedural safeguards than service users themselves.²²³

The concerns outlined above paint a general picture of some of the drawbacks to current mental health law. It seems obvious, when reflecting on the major issues in mental health law overall, that there is clearly a need for a practical and conceptual evaluation of any proposed change to such law, with as much consideration as possible given to the full range of potential downsides or negative flow on effects. Appelbaum concluded his treatise on the history of mental health law reform in the second half of the twentieth century by observing that ‘[i]f generalization is possible across these very disparate areas of law, our conclusion must be that the consequences of reform were much more limited than partisans on either side anticipated’.²²⁴ In a similar vein, Brendan Kelly observed that many of the deficits in securing the rights of persons with disabilities

relate not to the content of declarations of rights (such as the CRPD) or to the specific provisions of legislation (such as mental health and capacity legislation), but to a profound failure to observe laws, implement policy and realise agreed principles in the day-to-day lives of persons with disabilities and mental disorder, resulting in systematic denial of rights, social exclusion and political disempowerment.²²⁵

Or consider Tom Burns’s (quite extraordinary) statement about the way practicing psychiatrists engage with mental health law: ‘[F]ew, if any, clinicians ever read the details of legislation. Most familiarise themselves “on the job” with the mechanics of those parts of the Act they regularly use. They learn what they have to sign and complete in order to achieve what they have already clinically decided on’.²²⁶ This is not to disparage law reform efforts. Instead, these observations suggest that it is important to be circumspect about our expectations of what law reform can deliver, or to consider the mechanisms required to ensure the effective implementation of law. Further, acknowledging the limitations of past reform efforts encourages the careful evaluation of new ideas for promoting substantive equality for persons with psychosocial disability, including the support framework of the CRPD itself.