The current discussion on the reform of the Mental Health Act in Ireland is quite disappointing. Not because of its outcome (although that most certainly will add to this feeling), but because it reinforces some of the old clichés which I thought we would be able to leave behind with the ratification of the UN Convention on the Rights of Persons with Disabilities. Mental health care is messy, with a lot of unknowns and low success rates (in terms of prevention of undesirable social conduct, securing users’ rights, and recovery or treatment outcomes). But its reform is an opportunity for different stakeholders to clarify their positions, with the hope that this contributes to better overall care in the future. With that in mind, I offer my perspective as a human rights lawyer, as an academic teaching mental health law and as a legal representative of persons subject to involuntary treatment. I will comment on four themes I picked up in the current discussion.
Treatment
The central and most divisive question of mental health law is the criteria for involuntary treatment. Lawyers like me, who represent clients in involuntary hospitalisation reviews, are usually seen as an obstacle to getting treatment for people. We are often portrayed as legal fundamentalists, who care about the letter of the law more than their clients’ well-being. But that is a misunderstanding, which stems from the narrow use of the word “treatment” in involuntary hospitalisation. If it is restricted to psychopharmaceutical care (basically drugs), it is neither very desirable nor helpful for many of my clients. However, that does not mean they do not want any treatment. I represented dozens and interviewed hundreds of users, and while the vast majority were strongly opposed to involuntary hospitalisation, not one of them denied that they had a mental health problem they needed help with. They wanted to get better, but being locked up in a hospital at the mercy of doctors and pumped with drugs did not seem a particularly effective way of improving their mental health. That especially includes people who have already had such an experience. They knew what the effect was, they knew what it helped with, and in what dose, and whether it was of any use to them. Even the ones for whom the medication worked preferred to use it on their own terms, in discussion with doctors rather than on their orders. And that is the opposite of what involuntary hospitalisation offers. What they needed was more holistic care and support, they needed help with their life being put in order, with re-establishing their family and social connections, rebuilding their professional lives, and recovering what mental distress had taken away from them, and what contributed to their ill-health.
I do not know how this could be done for each of my clients, but even I could recognise that injecting someone with medication was a far cry from reaching these goals. Nor do I deny that mental distress can have biological components, and psychopharmaceutical care can be part of the solution – but it is only a part. If we single it out and pretend it is the answer to all these problems, we are missing the big picture of what people need. Yet this is exactly what mental health law is doing. What it calls “treatment” I am happy to reject, and do so without remorse, because for the people I represent, it is not doing any good, and it often does quite the opposite. There are many among them who take medication voluntarily, and to some I even recommended it, but for those to whom it is not helpful, it will not become more effective just because we apply it by force of law. It is quite the opposite: the risk of being locked up makes some of them wary of seeking help from a psychiatrist.
I know the usual response: my view is very simplistic, psychiatric care is now much more complex, it is holistic with a full array of wonderful therapies, and it is certainly not restricted to pharmaceutical care – in any case not in this hospital, maybe in others. I do not want to deny that there are other therapies available in hospitals nowadays. I would like them to be explored more. But I would certainly welcome it if the discussion around mental health included developing a wider plethora of options, many of which are not medical in nature. Psychology, social care, family therapy, and peer support are all tools which should be on the table, but they are rarely considered if we have the option of forcing drugs on people. This latter option, which is readily available, prevents the system from offering more effective care for people they would voluntarily make use of. The fact that they reject it and it must be forced on them is a good indication that it is not helpful.
Insight
There is an obvious counter-argument to my previous point: mental illness is different from other illnesses, because psychiatric patients cannot make competent decisions about their treatment – they lack insight into their illness. In my experience, this argument is vastly overused in mental health practice. There might be patients to whom this applies in some situations, but they are much rarer than those subject to involuntary treatment. Even in their case, I would doubt whether a blanket order of psychopharmaceutical treatment is justified. But much more often I see cases where the person simply disagrees with their psychiatrist about the causes of their distress, its exact nature (the diagnosis), and the best course of action for their treatment – and it is then used as evidence of their “lack of insight”. I have represented several persons who had very good rational reasons to reject the treatment which was offered to them – and were involuntarily treated as a result. This often puts patients into an impossible catch-22 situation.
Despite my profession, I am not a huge believer in the courts’ power to improve the world, but on this issue, the European Court of Human Rights understood the problem quite well. In Plesó v. Hungary* (*disclaimer: I represented the applicant before the Court) it condemned the involuntary treatment of the applicant who was apparently very dangerous and lacked insight into his condition. Looking at the evidence, the Court found that the real reason boiled down to essentially his “refusal to undergo hospitalisation. In this refusal, [the authorities] perceived proof of his lack of insight into his condition”. The Court explained that to justify treatment on this basis “would be tantamount to acquiescing in a circular argument, according to which a person reluctant to undergo psychiatric hospitalisation would thereby demonstrate his inability to appreciate his own condition and the risk of its potential worsening – which would yield yet another reason for his involuntary treatment”. Wise words from Europe’s highest human rights court, which I wish were more often taken on board by lower-level courts approving involuntary hospitalisation.
Psychiatric patients differ from other patients in one important way. If other patients reject the treatment offered, doctors cannot enforce it on them against their will, they have to offer alternatives and make an effort to convince them. They do not have to do that in the field of mental health, because involuntary treatment is readily available. That is a huge power, which must be wielded responsibly. Pretending that all psychiatric patients who are rejecting treatment are doing so because they lack capacity will not get us closer to discussing what the proper contours of that power should be.
Exceptions
All discussions of involuntary hospitalisation are bound to reach the question of exceptions. The ultimate argument for it goes like this: there surely are psychiatric patients who can give consent (some would admit that there are many such patients, and it is usually better to provide treatment with consent), but there are those exceptional cases who cannot, and who are truly dangerous and therefore they should be treated against their will.
The problem with this line of argumentation is twofold. First, I do not doubt that there are people in situations like that. But I am highly sceptical of any legal system’s ability to reliably identify who those people really are. Somehow, every patient subject to involuntary hospitalisation is purported to be that exceptionally dangerous individual, in whose case forced treatment is justified – including those who are clearly absolutely not. This is known in science as the group-to-individual problem. Statistically speaking there might be a certain number of persons in the population who fit the description – but that does not say anything about whether a certain individual is part of this group or not. For that, psychiatrists are required to predict the impossible: whether the person is likely to commit harm in the future. We can pretend that they have a magic crystal ball accessible by medical training, but I think it is failing them more often than not. And I do not think basing mental health law on that belief is the right course of action. No wonder they prefer to err on the side of caution by detaining patients, especially if they expect to be blamed for anything the patient might commit if they are released. In fact, I think it is unfair to doctors that society puts this responsibility on them; I wish they could do what they are trained for: diagnosing illnesses and offering the best ways of treating them, in cooperation with other professionals. Requiring them to be guardians of public order is masking the truth and serves no one.
The second issue is closely connected: involuntary treatment is hugely overused. Persons with mental health problems are not, in general, more dangerous than others. In fact, they are less dangerous and more likely to be the victims of violence compared to the general population. Yet many are detained on the ground of dangerousness. All of them are portrayed to be “exceptional” cases.
This is the reason why many advocates want to abolish involuntary treatment. Not because they do not know that there are some people in mental distress who could really harm others and themselves – they are perfectly aware of that. However, the empirical evidence shows that if these exceptional cases are used to justify involuntary treatment, a lot of ordinary people (who should be treated with consent, or who should be treated differently, or who should not be treated at all) would be coerced into treatment. The only way to avoid this is to abolish involuntary treatment – and deal with the exceptional cases by some other way. That “other way” is the catch here, because we do not have a developed proposal on how this would work on a societal level – and we are unlikely to find it if we can resort to involuntary hospitalisation.
Scare tactics
If all of what I am saying is correct, and there is some unjustified overuse of involuntary treatment, what is the harm? People unnecessarily getting extra treatment might cost the taxpayer, but it is a price worth paying if, on the other side, we are preventing great tragedies. In fact, the argument against relaxing mental health laws usually starts with some description of a horrible incident, which supposedly could have been avoided if the person in question had been hospitalised.
I have two things to say about this. First, tragedies always happen. They happen under the current system (in fact the examples show that the current system does not prevent these tragedies, undermining the argument), and they also happened in the past, when doctors had more power to detain anybody. Pretending that somehow a stricter mental health law will eliminate the tragedies is nothing but scare tactics aimed at eliciting emotional rather than rational reactions. It will not happen. Either doctors would have to develop magic powers to predict who will commit a dangerous act (of which I am highly sceptical), or they would have to lock up everybody suspected of mental illness (which would be considered an unjustified restriction of rights by most people, and would lead to many tragedies). In the absence of these two unrealistic options, we are left with a situation where the system often reacts to tragedies which have already taken place, and is not particularly effective in preventing future ones by the same person because of the ineffectiveness of involuntary treatment to achieve recovery from mental illness. Often it makes the situation worse, but that is a topic for another day.
Second, even if the system does prevent some harm, it does it at a huge cost. What doctors call treatment, many people experience as a restriction of their autonomy and even as torture, and while I am not suggesting that those feelings are universal, there are court decisions to back up those positions.
The mental health system will never prevent all tragedies. That should not even be its goal, because that is impossible to achieve. This should be common sense – nobody expects, for example, the criminal law system to prevent all crime; other values must be balanced against crime prevention. The more we try to use the mental health system to prevent harm, the more people we expose to unnecessary treatment. The goal should be risk management. That is much better served with treatment that actually helps people recover. That is very difficult to achieve without their cooperation, which involuntary treatment endangers rather than engenders.
It follows that the existence of individual tragedies should also not be used to justify stricter mental health laws. De-contextualised anecdotal evidence is not a good way to devise policy or to have a constructive discussion. Users can also list many examples of severe suffering due to involuntary treatment, but these various experiences do not talk to each other if we remain on the surface and we do not contrast them empirically.