Julian Sheather: Reviewing the Mental Health Act—we need to talk about autonomy

julian_sheatherThe Government is reviewing mental health legislation for England—the 1983 Act and its bolt-ons. From an ethics’ perspective, front and centre is the issue of autonomy: the decision-making rights of people with mental disorders. It is a truism that adults with decision-making capacity can refuse treatment for a physical disorder, even where the decision is mortal. The 1983 Act permits treatment for mental disorder even where the individual is assessed as having the capacity to refuse the treatment.

Critics argue that this is discriminatory. If someone can make a considered and informed decision to refuse treatment for mental disorder, even where it may result in harm to them, why treat them differently? What is morally different about mental disorders? (I want to set aside the issue of those who present a risk of harm to others. There are surely times when the public interest is strong enough to override autonomy rights.)

Supporters of the current approach argue that a capacity-based approach will leave people with mental disorders appallingly vulnerable. If someone has profound depression and seeks to end their life by suicide, respecting their choices is a dereliction of professional duty—surely they need care, not the freedom to harm themselves? Many of those emerging from periods of serious mental disorder express relief and gratitude that they were treated, even against their will—even though they may be harshly critical of how they were compelled. The biggest challenge in mental health today is not respect for liberty, but how even the most seriously ill can get access to services.

If there is something morally distinct about mental illness, it is because it strikes those faculties most closely associated with decision-making. Severe depression, anorexia, irresistible compulsions, psychosis—they can all challenge the sufferer’s ability to make self-governing decisions.

And yet the presence of mental illness does not by itself mean that a person has lost the capacity to make decisions. People with severe mental disorders can retain capacity in relation to a range of decisions—can understand, retain, weigh, and balance information in many areas even where illness may overwhelm them in others.

A few weeks ago, I was at a fascinating policy lab run by Mental Health and Justice and jointly hosted by King’s College and the Essex Autonomy Project. The focus of the lab was how to balance the requirement to protect vulnerable individuals with the need to respect their agency, autonomy, and human rights. There were policy makers, judges, academics, service users, health professionals. And unsurprisingly views about the autonomy question varied.

Listening to the powerful testimonies of those whose lives had been saved by psychiatric interventions it was clear that respect for bare choice was insufficient. There are times when some people with mental disorders will need to be rescued, and that may mean treatment against their will. But a respect for autonomy is not the same as a right to do as you please. Autonomy is to do with self-rule, and mental illness can challenge our ability to govern ourselves.

On reflection it struck me that the testimonies of those who expressed gratitude for rescue more supported than undermined an autonomy-based approach. In the grips of severe mental illness, their ability to make informed decisions was compromised. The purpose of medical intervention was to return them to a place where they could, once again, exercise their autonomy.

I am attracted by this approach, but important questions remain. To work, it must ground legal capacity in the conditions necessary for the exercise of autonomy. It is not clear that current law always supports such an approach. I am no legal scholar but there seems to be a bit of a wobble here. At times the law seems to defend choice in and of itself—a capacitous patient can refuse treatment “for rational or irrational reasons or for no reason at all.” But then presumably that is where capacity has been established. On the other hand, the Mental Capacity Act, at 3(1) seems to lay down some basic requirements for practical reasoning—abilities to “understand” and to “use and weigh” information. Elsewhere, at common law, judges have adopted a more strenuous approach, seeing capacity grounded in an individual’s considered and reflectively endorsed choices. But if the law were to move to an emphatically autonomy-based approach, what might follow? Would the test of capacity for all people and all decisions become more strenuous? And what effect on fundamental freedoms might that have?

There might also be a tendency in practice simply to find that all those who need treatment for serious mental disorder and refuse it lack capacity, so nothing changes. And here is where the autonomy question levels its challenge—if we are serious about autonomy, then we must accept that some who may benefit from intervention and refuse it will come to harm. This is well established in relation to physical treatment—but are we ready for such a change in relation to those suffering from mental disorders? This is a conversation that needs to continue.

Julian Sheather is ethics manager, BMA. The views he expresses in his opinion pieces are entirely his own.