Legal leverage

Tony Zigmond’s editorial about ‘leverage’ in English mental healthcare helps to demonstrate the promotion of coercion without appeal (as may be even more common in the USA) resulting from an apparent contradiction in local mental health law:

‘Even when taking medication is a condition attached to a conditional discharge (from a restriction order, Mental Health Act 1983) or community treatment order, it would be unlawful to recall the individual solely because the individual decided to refuse the medication.’ ¹

Presumably at the time of conditional discharge (including the requirement that they continue prescribed medication) the person is well enough to cope with the requirement. They are coerced (by stated conditions), hopefully, because it has been demonstrated that without medication they are highly likely to become unwell again.

So what is different about the situation where the person is out of hospital and stops their medication, that they cannot be legally coerced to take it? Has the person changed in some way when they face a similar clinical risk?

Is it better to have a legal provision for this coercion outside the hospital, with all the necessary legal safeguards and reviews required (as under the Australian New South Wales Mental Health Act 2007) or to await decompensation and have caring people desperately trying to forestall such an event, possibly with illegal (and possibly inappropriate) ‘leverage’ pressures?

The article does not address the often characteristic accompanying distress to the person and their network when a person decompensates into more disorganised psychosis. Perhaps ‘he died with his rights on’.

In the Australian New South Wales Act, intervention requires not only the ‘least restrictive’ option, but also the ‘continuing condition’ of a mentally ill person and risk of ANY harm. In other words, if the history indicates a chronic illness and the likelihood of decompensation off medication, this must be considered, even it the person is apparently getting by at the time.

Perhaps failure to initiate sensitive intervention, including coercion as necessary, with legal safeguards and appeal capacity, in such circumstances, is negligence. Such intervention may also be regarded as a ‘loving act’.

To say that a person has the capacity to make a decision does not determine the quality or appropriateness of that decision.

To say that a person is ‘capacitous’ because they are capable of apparently understanding their situation (and so ‘having the capability of making decisions about their own treatment’) and have ‘insight’ is to leave open much definitional argument, but it is not appropriate as the sole determinant of non-intervention in a situation of carefully determined clinical risk to the person and the legitimate distress of others.

In asking ‘Who should have the final say?’, Zigmond seems to assume that this question is resolved by choosing either the patient or the psychiatrist. In matters of coercion it is the law that has the final say and at its best it seeks widely and wisely for an answer – hence tribunals. Hence also the need for good law.

It may be that the (statistical numbers) rise in coercion in psychiatric practice is necessary, but dealing with doubts about its desirability is not best met by placing difficulties in the way of people getting treatment they need to live their lives most fulfillingly and with others. Rather, the preferred emphasis may be for more careful review, in particular cases, of the necessity of coercion and of prescribing choices.