Where to for mental health laws?
Professor Bernadette McSherry
by Professor Bernadette McSherry
Recently, Christopher Ryan, Sascha Callaghan and Matthew Large wrote an article in Australasian Psychiatry calling for Australian mental health laws that enable the involuntary detention and treatment of those with severe mental health problems to be based on a lack of decision-making capacity and best interests, instead of on the risk of harm to self or others.
The risk of harm criterion in mental health laws is indeed problematic.
First, it is difficult to predict when a person is likely to harm him or herself. In 1983, Alex Pokorny conducted a large scale prospective trial of the prediction of suicide made at the point of admission of 4800 individuals to the inpatient psychiatric services of a Veterans Administration Medical Centre in Houston. He was unable to find any combination of clinical or other factors that could be used in practice, concluding that there were no methods to predict particular suicides “before the fact”. There have been few subsequent studies of predictors of suicide and there is some evidence to suggest that suicides often occur during periods when the risk of self-harm appears to be low.
Second, it is difficult to predict who will be at risk of harming others because of the low base rate of violence amongst those with severe mental health problems. In 2002, the MacArthur Violence Risk Assessment research in the United States suggested that a diagnosis of severe mental illness, in particular a diagnosis of schizophrenia, was associated with a lower rate of violence than a diagnosis of a personality or “adjustment” disorder. More recent research suggests that substance abuse has a stronger correlation with violence than mental health problems alone.
Third, the risk of harm criterion may also be criticised for being discriminatory in singling out those with mental impairments for preventive detention when other groups are not. The focus on risk of harm in mental health laws has contributed to significant prejudice and discrimination towards people with mental health problems.
However, the "solution" proposed by Ryan and colleagues also raises concerns. The authors advocate laws based on a lack of decision-making capacity and best interests. This is based on the presumption that those with severe mental impairments cannot make decisions concerning their health because they lack a complete understanding of the nature of their mental impairment. Sometimes, psychiatrists refer to such a lack of understanding as a lack of “insight”. While this is a rather vague term, insight is generally taken to refer to a person’s self-awareness that there is a problem or an illness and an understanding of its cause or meaning.
From a psychiatric perspective, if a person is unaware, or only partially aware, that he or she has a mental illness, it is in that person’s best interests to go ahead with treatment with the aim of improving “insight”. Many psychiatrists would argue that the ends justify the means in relation to involuntary treatment and therefore they are justified in substituting their decision to go ahead with treatment for whatever the individual concerned might want to occur.
However, since the coming into force of the Convention of the Rights of Persons with Disabilities (CRPD), which Australia has ratified, mental health law reform is moving away from substituted decision-making by clinicians towards putting supports in place to help people make their own treatment decisions. It is also emphasising voluntary treatment wherever possible and recognising a person's legal capacity on an equal basis with others. The problem with mental capacity legislation is that it may become too broad in scope in that too many people may be subject to treatment against their will.
In addition, countries such as Ireland which have had a "best interests" test in their mental health law have found that rather than being an objective standard, such a test opens the way for subjective interpretations of what the clinician believes is best for the individual concerned without regard for the person's will and preferences. Ireland has in fact signalled that it will move away from a best interests test in its proposed new Mental Health Act. Many in the mental health consumer movement would also see a best interests test as overly paternalistic.
By focusing on the problems associated with the risk of harm criterion in mental health laws, Ryan and colleagues may have raised a more fundamental question – how can we justify laws that single out those with mental health problems?
The CRPD is providing the impetus for challenging the justifications for why we have mental health laws at all. Last year, the United Nations Committee on the Rights of Persons with Disabilities called for the repeal of legislative provisions that allow for the deprivation of liberty on the basis of disability, “including a psychosocial or intellectual disability”. As has often been pointed out, we don’t have diabetes or epilepsy laws compelling people to take medication, so why do we have mental health laws?
The idea that mental health laws should be abolished is not new. Back in 1994, Tom Campbell wrote that mental health legislation “institutionalises the idea that there is something about ‘mental illness’ itself, which invites a system of control and coercion”. In addition, the very existence of mental health legislation enabling involuntary treatment means that the mental health system becomes an emergency-driven one with a lack of resources available for access to voluntary treatment.
Northern Ireland has signalled that it will abolish its mental health legislation and instead enact one capacity law for all those with severe mental and intellectual impairments. A draft bill is in the process of development and, if it is enacted, it will provide an interesting test case for how such law could work in practice.
With mental health laws currently undergoing reforms in the Australian Capital Territory, Tasmania, Victoria and Western Australia, Ryan and his colleagues’ article is a timely one. It seems unlikely that any Australian government will abandon mental health laws, or indeed the risk to self or others criterion, any time soon.
While some individuals clearly benefit from involuntary treatment, others may be left with a sense of trauma and grievance as a result of a process which may involve the police, the use of seclusion and restraint and injections of drugs that can have serious side effects. It is therefore essential that we keep questioning the justifications for depriving those with severe mental health problems of their liberty and treating them without their consent.
Bernadette McSherry is a Professor of Law and Australian Research Council Federation Fellow in the Faculty of Law at Monash University.
A version of this article also appeared in The Conversation.