Virtually all developed societies have laws which allow the enforcement of psychiatric treatment on people suffering mental illness. All states in Australia have such laws, which are quite similar in structure.
The moral justification for such legislation resides in part in John Stuart Mill’s “harm principle”, which has it that the state can intervene in the life of a person if their actions are likely to harm others, not themselves.
Recent research has indicated that basing such laws on the risk a person’s mental illness presents to the community not only reinforces stigma and the negative perceptions of the mentally ill, but also delays treatment. This latter problem often has catastrophic consequences.
In NSW, mental health legislation exists under the shadow of the “deep-sleep therapy” tragedy of Chelmsford Hospital in the 1980’s. Following this canonical event, the psychiatric profession lost much of its professional autonomy — psychiatric treatment is now closely regulated by independent tribunals and the judiciary and many treatments, such as “psychosurgery” (the surgical alteration of brain structure to relieve psychiatric disturbance), have been outlawed.
The Mental Health Act in NSW was modified in November 2007. This occurred following a consultation process involving those who suffer mental illness, their families and the health professions.
Some of the changes to the law represent an ethical challenge for the mental health professions. In the first instance, patients who are detained in mental health facilities must nominate a “carer”, who is entitled by law to be consulted on the most minor aspects of the patient’s treatment. In no other field of medical practice (bar paediatrics) do such legally mandated breaches of confidentiality exist.
In the second instance, the outlawing of “psychosurgery” is poorly defined and somewhat anachronistic. The leukotomies of the 1940’s are not part of modern psychiatric practice, yet potentially revolutionary techniques such as “deep brain stimulation” or vagal nerve stimulation are. Regardless of the progress in neuroscience research, such treatments cannot be used under this legislation.
In the third, the use of Electroconvulsive Therapy (ECT), in many cases a life-saving treatment, is micro-managed by a tribunal comprised of a lawyer, a non-medical community member, and a psychiatrist with only superficial knowledge of the patient. What this represents is a legal and community perspective intervening in clinical decision making. There are many, far more perilous interventions in medicine which are not routinely constrained by the opinions of lawyers or members of the community.
Regardless of the problems with the mental health legislation, one of the most troubling aspects of this area is the recent experience of the conduct of members of the Mental Health Review Tribunal, the independent body tasked with supervising the legislation’s implementation in NSW.
There have been numerous instances of tribunal members insisting that treatment for medical conditions (and in sporadic instances lifestyle modifications such as insisting a patient lose weight) be included on psychiatric treatment orders for people with chronic mental illness. There has been one instance, where a psychiatric treatment order included the directive that a mental health service undertakes to monitor the patient’s internet usage and report on the number of pornographic websites visited.
Even the most reckless or indifferent intravenous drug user or alcohol dependent person does not face such state paternalism, or violation of civil rights.
If the laws of a community reflect its values, what do the recent modifications of the NSW Mental Health Act say about the value we place on liberty?
Dr Robertson and Associate Professor Kerridge are from the Centre for Values, Ethics and the Law in Medicine, University of Sydney, which will hold a one-day symposium on the ethical dilemmas presented by the NSW Mental Health Act on November 27. For further info, ring 02 90363405 or email lgaze@med.usyd.edu.au
Psychiatric conditions, or “mental illnesses” are a grab-bag of phenomena covering everything from anxiety to dementia. The extent to which these are “illnesses” varies, in the accepted sense of physically-identifiable pathology. Mostly they are diagnosed by means of difficulties or disagreeable deviations in behaviour or experience that are distressing to either the patient and/or to their family and community. Many mental illnesses have social / environmental contributing causes. Most have profound social consequences. In many cases behavioral deviations are so maladaptive as to call into question the sufferer’s ability to manage their own affairs while ill. If no effective intervention occurs to arrest the negative social and potentially legal consequences of this incompetency, these will feed back and likely exacerbate the original condition, resulting in a spiral of loss of control. The better the sufferer’s social supports (family, community) the more likely a good outcome.
So it seems to me that these authors’ objection to “a legal and community perspective intervening in clinical decision making” is actually what is frequently required as a rational strategy of amelioration.
They also object that “even the most reckless or indifferent intravenous drug user or alcohol dependent person does not face such state paternalism, or violation of civil rights.” My response to this is that perhaps it would be better if they did.
I agree that this is a profound issue with major consequences for medicine and the law. But psychiatric conditions are not, and so cannot be treated as, entirely medical in the traditional sense of a disease process confined within the body of a person. In fact this old medical model is breaking down in other areas as well, such as chronic diseases in general where there is increasing recognition of the interaction between bodily disease and behaviour (eg smoking). These also raise issues of “individual freedom” in the context of public health measures such as anti-smoking legislation.
All illness is a matter for the community in terms of health care and loss of contribution. So just as the recent financial meltdown has illustrated for the field of economics, so in the field of health there is balance to be found between freedom and state regulation. There is little freedom to be had either in financial poverty, or in debilitating illness and death.
Tribunal members stipulating the minutiae of treatment orders, and community oversight of ECT are two separate matters and it seems disingenuous to conflate them in this way.
There are “emergency” provisions in certain states whereby the doctor can order ECT if in their judgment the patient is “at risk”. I am aware of cases where patients, having been involuntarily committed following a manic episode, are subjected to ECT without consent, despite presenting no physical danger to anyone, including themselves. This is particularly the case with bipolar patients who refuse to acknowledge their illness and are dismissive towards treatment.
I’m surprised by the authors’ assertion that: “There are many, far more perilous interventions in medicine which are not routinely constrained by the opinions of lawyers or members of the community.” Let’s be clear: we are talking about restraining the patient, placing them under anaesthetic and inducing seizures by passing electric current through the brain. Can the authors offer examples of “more perilous interventions” which can, legally, be forcibly carried out on non-consenting patients?
Treatment of non-consenting individuals requires the highest level of oversight. To imply that this equates to paternalism is fatuous, and even hints at some other agenda. ECT, like DST, lobotomy and trepanation before it, is barbaric pseudo-medicine that should be consigned to the pages of some macabre journal of medieval quackery.
My dear friends just because people call you mentally ill, do not feel that it the end have a loving fighting spirit and believe in yourself and get out in society, if you can find a job great, or do something to share with others, you may need counseling or have friends that make you feel great and then you will sleep well if you love
yourself and go to bed in a happy mood you may sleep well , and perhaps meditation may help. but do not give up.
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God help us if the attitudes to ECT put forward in this article represent the University of Sydney’s Values and Ethics! Anyone who has investigated the use of this ‘therapy’ and its abuse, would fully understand why the psychiatric profession is not trusted to be the sole determiner of its administration.