I doubt few areas of medical practice are more ethically charged than the forced treatment of people with mental disorders. Recently a colleague forwarded me some comments made in March this year by Juan Mendez, the special rapporteur on torture, regarding mental illness. (For anyone unfamiliar with the United Nations human rights structures, a special rapporteur is an independent expert given a mandate by the United Nations Human Rights Council to “examine, monitor, advise, and publicly report” on human rights abuses. Mandates relate either to specific countries, or, as in the case of the rapporteur on torture, particular themes.) Were Mendez’s comments introduced into medical practice, psychiatry, and the care and treatment of adults lacking capacity, would be transformed. Because the issues are so important, I quote Mendez at some length. For the sake of clarity, bear in mind that mental disorder here comes under the rubric of psychosocial disability.
States should 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, for both long and short term application. The obligation to end forced psychiatric interventions based on grounds of disability is of immediate application.
In order to give this statement some context here are some additional quotes from the special rapporteur’s report to the Human Rights Council of the United Nations General Assembly in February.
Both this mandate and the United Nations treaty bodies have established that involuntary treatment and other psychiatric interventions in healthcare facilities are forms of torture and ill treatment. Forced interventions, often wrongfully justified by theories of incapacity and therapeutic necessity inconsistent with the Convention on the Rights of Persons with Disabilities, are legitimized under national laws, and may enjoy wide public support as being in the alleged “best interest” of the person concerned. Nevertheless, to the extent that they inflict severe pain and suffering, they violate the absolute prohibition of torture and cruel, inhuman and degrading treatment…Only in a life threatening emergency in which there is no disagreement regarding absence of legal capacity may a healthcare provider proceed without informed consent to perform a life saving procedure.
During the development of the Mental Capacity Act for England and Wales and again during the protracted wrangle over the most recent amendment to the Mental Health Act, the question of parity of rights between those suffering from mental disorders and those suffering from physical disorders was much debated. What was the justification for legislation permitting forced treatment of people with mental disorders where they retained capacity? If the justification was to protect the mentally disordered from harm, why could competent adults with physical disorders lawfully refuse treatment even if it resulted in their death? Was this not a clear case of unfair discrimination? These are good questions, and I understand that Northern Ireland is still considering introducing a single piece of mental incapacity legislation that will only permit treatment for mental disorders where the individual lacks capacity. Although there may be problems with such an approach—it may, in the face for example of suicidal ideation, lead to the setting of a very high capacity threshold—the arguments in favour of the Northern Irish position look interesting. The special rapporteur’s comments however take us into a very different landscape.
I have been scratching my head trying to understand the impact of ending all “forced psychiatric interventions” and all health interventions in relation to incapacitated adults unless in a life-threatening emergency. Obviously any statement by a special rapporteur needs to be taken seriously; accusations of health workers being involved in the “torture” of their patients require urgent attention—and history with respect to psychiatric abuses is still raw. Now there may of course be a deep hinterland of reflection here that I am unfamiliar with, and yes there are dangers with quoting selectively from small sources. But nothing here suggests that there has been a proper grappling with the problems of impaired agency, delusional thinking, and cognitive disturbance that make the issues here so complex. Respecting the liberty rights of competent adults is not controversial. But obligations with respect to the proper care and treatment of adults who have, either permanently or temporarily, lost the capacity properly to promote their own interests is very different. Justice does not mean we treat everybody the same. Where people are differently situated, treating them the same can be unjust. And this is the justification for not respecting the liberty rights of the mentally disordered in certain circumstances. If you or I decide after much consideration that we wish to sell all our belongings, give our money to charity, and retreat to holy orders, then no one should have the right to stop us. But to let someone in the highest flights of mania make such a decision based upon the belief that he is God would not be to show him equality of respect. It would be to betray his fundamental interests.
My dictionary gives the following definition of torture: to cause extreme physical pain to, esp. in order to extract information, break resistance, etc…to give mental anguish to… to twist into a grotesque form. Removing an adult’s liberty rights in their interests is a grave decision. It is governed in the UK by legislation and rightly requires quasi-judicial oversight by a tribunal—in this area the rights and interests of people at their most vulnerable require very careful scrutiny. Surely what is needed is a productive dialogue between those who seek to promote the liberty rights of the mentally disordered, and those health workers who struggle in difficult circumstances to bring them the best available treatment. It is unclear to me that framing this in the context of torture will bring that dialogue about.
Julian Sheather is ethics manager, BMA. The views he expresses in his blog posts are entirely his own.