Abstract
In a series of judgements in the Supreme Court of New South Wales in the mid-1980s, Justice Powell tackled the idea of what constitutes a mental illness [1], [2]. His decisions had major implications for the care of dementing persons. He decided that dementia per se was not a mental illness. Although the rulings were overturned on appeal on an unrelated technicality, the underlying legal reasoning is illuminating. I will attempt to identify the reasoning behind the judge's decision and examine alternative arguments. In doing so, I will look at the definition, evolution and usage of the terms ‘dementia’ and ‘mental illness’.
The logic behind the decisions would set up two parallel legal and health-care streams based on the distinction between ‘organic’ and ‘functional’ conditions. Taken to its logical conclusion, such an argument suggests psychiatry's current biological phase is self-destructive. As each cause of a psychiatric syndrome is redefined as a brain disease, psychiatry will be pushed further away from ‘biological’ medicine. However, this can be seen from a historical perspective as merely the continuation of an established process. Epilepsy, neurosyphilis and, more recently, intellectual disability have already set the path along which dementia is travelling. The implication may be that schizophrenia and bipolar disorder are next. Psychiatry is allocated the job of attempting to explain and control aberrant behaviour that can not yet be explained by reduction to physical causation. When a physical explanatory cause is demonstrated, societal processes begin to extrude the condition from the primary domain of psychiatry. This reinforces psychiatry's position on the fringe of medicine. Psychiatry is then allocated a secondary (consultation/liaison) role in relation to particular symptoms. The process can be seen as ongoing work in the mind/body debate. However, it also reflects the relative valuation of illnesses on the basis of presumed causation.
The decision
In 1982 in the Supreme Court of New South Wales, Justice Powell ruled that a patient detained in a mental hospital should be discharged because she was not ‘mentally ill’ [1]. The patient's lawyer had petitioned the court to discharge the patient. The patient suffered from dementia and had wandered from home, putting herself at risk. The judge ruled that dementia, ‘despite the emotive overtones which it appears to have acquired in common parlance’, was not attended by such hallucinations or delusions as in schizophrenia or by ‘strong and irrational antipathies or fears such as are not uncommon in cases of psychosis’. Rather, he saw dementia as a deterioration in the intellectual faculties, which includes confusion, disorientation and a loss of memory. He ruled that dementia, whether caused by age or disease, was an ‘infirmity of mind’ in the same manner as intellectual disability. He felt the patient should go to a nursing home. The legal precedent was further elaborated in a later decision [2]. In the second case, the medical superintendent of a psychiatric hospital appealed to the Supreme Court against an order to discharge a patient. The superintendent claimed that the judge's previous ruling had been ‘too limited’ in its interpretation of ‘mental illness’. The patient in this case was also suffering from dementia and had been aggressive to his carers in a nursing home.
The judge asked whether the phrase ‘mental illness’ ‘is to be construed in a classical sense of, and as being limited to, a disease of the mind’. That is, ‘functional psychosis’ as opposed to ‘organic psychosis’. He wondered in which category senile dementia should be placed. To clarify this, he referred to the 1958 Mental Health Act (New South Wales) in drawing a distinction between an ‘incapable person’ (through ‘mental infirmity’), from a ‘mentally ill person’. The ‘mentally ill’ person requires ‘care, treatment or control for his own good or the public interest, and is for the time being incapable of managing himself or his affairs’ (my italics). The incapable, mentally infirm (e.g., dementing) person was described as only incapable of managing his own affairs and not in need of treatment or control.
The judge drew out the history of the terminology through several centuries of English law. Until the mid-18th century, the Royal prerogative was towards ‘lunatics’ and ‘idiots’. In 1802 (Ridgeway vs Darwin, 8 Ves. June. 65: 32 E.R. 275, quoted in Powell) Lord Eldon said if the party ‘is unable to act with any proper and provident management, but liable to be robbed by anyone under the imbecility of mind, not strictly insanity’, then they need as much protection as the insane. This remained the law of the land until 1853 when the Lunacy Regulation Act distinguished between those of ‘unsound mind’ and those thought ‘by reason of disease or age, to be incapable of managing their affairs’. The 1890 Lunacy Act in England continued with the division. However, the continuing difficulty was summed up well by Lindey (In re Browne 1894 3 Ch 412#416 quoted in Powell), who said that such persons ‘may be a lunatic in the common acceptance of the term, or they may not.’ ‘They are on the borderline’; but even if not lunatic enough they could be treated as such ‘for many purposes’. The 1894 Lunacy Convention Act (NSW Vic no. 5) framed the words ‘through mental infirmity arising from disease or age incapable of managing their affairs.’ These ‘incapable’ persons could have their property and affairs managed ‘as if’ they had been declared a lunatic. The 1958 Mental Health Act substituted the words ‘mentally ill’ for ‘unsound mind’.
Justice Powell in his later judgement noted medical evidence for an organic basis for schizophrenia, but he could not rule so under the Mental Health Act because of the clear legal precedent that schizophrenia was a mental illness. He ruled that medical advances should not be ignored, rather, they should help him determine that a particular person falls within a class of ‘mentally ill’ or ‘incapable’. He seemed to be saying that schizophrenia would fall outside the Mental Health Act if it could be proven to have an organic basis. So, for Powell, disease meant something with clear organic pathology. The presence of this changed the status of the sufferer from ‘mentally ill’ to ‘mentally infirm’. But, having decided what was not mental illness, Powell had trouble deciding what was. He turned to symptoms as the basis for defining ‘mental illness’, expressing the view that diagnosis was not enough to determine mental illness. The presence of delusions, hallucinations, paranoid symptomatology or other forms of psychotic symptomatology was crucial. So, despite his comments about diseases, he seemed to be saying that symptoms were the key. He reiterated the importance in law of any action that interferes with the liberty of a subject. In doing so he implied that such coercion should be reserved for the truly ‘mentally ill’. It is worth noting that patients with developmental disability of the mind have been specifically excluded from the 1990 Mental Health Act (NSW). This is significant because this group were one driving force for the distinction in law between ‘ill’ and ‘infirm’, as well as for Guardianship Legislation. In both cases, the dementing follow where intellectual disability has led.
In summary, the judge ruled that dementia was not a ‘mental illness’ per se, but could become one if ‘psychotic’ symptoms were present. These he basically defined as delusions or hallucinations. However, in a separate strand of argument he held that dementia was not a mental illness because its cause could be identified as due to disease or age. He distinguished between such patients (incapable due to infirmity) from those mentally ill who needed care treatment and control for their own or society's good. The liberty of the infirm was not to be the subject of the Mental Health Act. Rather, they could have their affairs managed to protect their property. This confusion about how to define mental illness is not new. It has been commented on as recently as the attempts to reform English Mental Health legislation [3].
Definition of terms and discussion of their use
The judge used terms in a legal setting and the meaning of the terms is gained in that context. The judge drew attention specifically to the tension between ‘ordinary use’ and the legal use of terms. There is also a tension with current medical use. A psychiatrist uses the term ‘mentally ill’ to describe a patient who may benefit from treatment. The judge is using it to describe a person who may need to be controlled and detained to receive such treatment.
The Shorter Oxford English Dictionary defines dementia as ‘a species of insanity characterized by the loss of mental powers and caused by disease in, or injury to, the brain.’ [4] The embedded term ‘insanity’ is defined as ‘unsoundness of mind’, including that caused by ‘brain disease’. Thus the ‘ordinary’ definitional use of the terms does not seem to support ‘insanity’ or ‘unsound mind’ being separate from something caused by disease or injury to the brain.
Why then did the judge feel the need to separate the two? The judge could have been attracted by the prospect of increased reliability for the term ‘mental illness’ if he stayed with symptoms rather than syndrome or disease. However, he did not realize that he was straying into even greater definitional problems. The debate regarding the reliability and validity of these symptoms is beyond the scope of this paper. However, the estimation of the number of ‘psychotic’ symptoms in dementia is so variable as to imply almost complete unreliability. For example, research claiming to define the prevalence of delusions in dementia has found results ranging from 10 to 70%% [5]. The variability in these results can be explained by a differing interpretation of what constitutes a delusion in a dementing person.
Disease or illness
The word ‘illness’ originally referred to ‘morally evil, wicked, vicious and doing harm’. It later became related to an ‘unhealthy condition of the body, being out of health’ [4].
Disease is defined as a morbid condition of the body or mind. In disease, the body, or some part or organ thereof has its functions disturbed or deranged. It comes from the Old French ‘to ease’ and thus is absence of ease. Boorse says that illness incorporates the patient's experience, whereas disease contains the specialist knowledge of a professional [6].
It is useful to examine Fulford's ideas regarding the importance of the distinctions between ‘action failure’, illness and disease [7]. For Fulford, the core concept is illness, which in turn is based on action failure. This is an evaluative concept, because action is based on intention, which is something we choose. In psychosis, the failure is one of intentions or reasons for action. This could actually serve as a better way of deriving ‘mental illness’ for the purposes of involuntary commitment and avoid the difficulties faced by the judge. This type of action failure can also occur in dementia. Dementia can lead to a failure of intentions or reasons for action. If this basis were used, the barriers in the judge's mind between physical and mental illness would be broken down as proposed by Warnock [7]. This would in turn restore to primacy the patient's experience.
In fact, the judge is attempting to have it both ways. On the one hand he is excluding syndromes (e.g., dementia) from mental illness on the basis of the presence of disease or injury to the brain. On the other hand, he is saying that delusions and hallucinations can rule mental illness in, regardless of the cause. In his 1986 judgement he is aware that delusions and hallucinations can occur in dementia in a ‘minority of cases’. Thus his second judgement recognizes the patient's (illness) experience of symptoms as primary. In fact, following this through would make diagnosis and disease irrelevant, going straight to ‘action failure’ [7]. However, the judge could not take this further step and abandon the disease model.
Mental or physical
Mental is simply defined as ‘relating to, or of the mind’. The mind is the ‘seat of consciousness, thought, volition and emotion’ [4]. ‘Physical’ is defined as ‘pertaining to material nature’. This belongs to the natural sciences and the laws of nature. It is connected with matter. The judge, by placing mental and physical on either side of the legal ‘mental illness/infirmity’ divide would seem to be adopting a dualist view.
Organic (lesion) or functional
The idea that the mind is independent of the physical brain is no longer widely accepted. By using the terms ‘functional’ and ‘organic’, the judge was really referring to a structural lesion-based model. That is, dementia has brain lesions that are demonstrable, schizophrenia does not. Lesions are organic. ‘Functional illnesses’ refer to states where the structure of the brain is not yet demonstrably altered but its functioning is disordered. The judge invokes such a model to justify his split between mental illness and infirmity.
The idea that particular parts of the brain could be associated with particular mental functions (i.e. a lesion model) was strengthened by the aphasias, apraxias and to some extent the ‘frontal personality’. This view remains efficacious for many neurological conditions, but has been unrewarding for more complex mental symptoms. The concept of ‘functional’ (e.g., physiological or neurotransmitter abnormality) models has attempted to explain a range of psychopathology where structural abnormalities have not been identified. The Judge appeared to equate lesion with ‘disease’ and ‘infirmity’.
In defining the deficits he would expect to see in dementia and contrasting them with the symptoms of the ‘mentally ill’, Powell underplays the considerable overlap of symptoms between dementia and the ‘functional’ psychoses. Many magistrates interpreting Powell's rulings fell prey to what Berrios called the ‘cognitive paradigm’, where concentration on the intellectual deficits of dementia prevented the appreciation of its non-cognitive symptoms [8].
Incapable or capable
Incapable comes from the Latin for incomprehensible, ‘that cannot be taken in’. ‘Not having the capacity, power or fitness for, unable’, ‘in a good sense: not having the depravity, moral weakness for’ [4]. This is an intriguing definition as it may shed some light on the distinction between the incapable (or infirm) versus the ill, particularly the mentally ill. As ‘depravity’ is the ‘corruption of human nature, to make bad or perverted’, the inherent negative value is present historically in this definition. When the original value-laden meaning of illness is contrasted with the incapable, the distinction based on value is apparent.
So, an incapable person acting in a certain way needs to be differentiated from a mentally ill person acting in the same way. The incapable person is excused from both moral and legal responsibility. Perhaps the ‘mentally ill’ as distinct from the ‘infirm’ (incapable) are not completely free from the taint of moral responsibility. Could it be that illness at one period in history was seen as the effect of immoral or bad agencies, and that this use has persisted longer in mental illness than in physical illness?
Thus, the ‘mentally ill’, at times, need to be ‘controlled’ for society's good. Provision exists for a ‘bad’ person to be controlled in gaol, a ‘mentally ill person’ in a hospital or asylum. An ‘incapable’ person, in Powell's view, is not entitled to control under the Mental Health Act. Practically, the judge said such patients could go to a nursing home. No mention is made of consent or that many nursing homes have locked doors. His concerns for ‘liberty’ in this sense look hollow in suggesting a person go elsewhere to be locked up without legal supervision. Instead they hint at the differentiation being a reflection of the perceived dangerousness of various groups of people.
While there is some evidence that dementing people are more dangerous when also delusional, they can be a risk to others without clear evidence of delusions [9], [10]. Thus it may be the perception of dangerousness rather than the reality that plays a role in the split. If this is the case it suggests that values are once more important.
Sound or unsound
Powell noted that the 1958 Mental Health Act substituted ‘mentally ill’ for the previously used term ‘unsound’. The dictionary definition for unsound as ‘not physically sound, unhealthy’ does not make clear the reason for the change. ‘Health’ is defined as the ‘soundness of body and mind’ and comes from the Greek word meaning ‘whole’. Berrios has pointed out that in the pre-Cartesian world there was ‘no ontological distinction made between physical and mental disease’ [11]. The ‘coexistence of the two caused little theoretical or practical discomfort’.
Perhaps ‘soundness’, which looked at body and mind in a holistic fashion, was not helpful in making a discontinuity between mental and other illness.
Infirmity
Increasingly, the infirmities of age that may affect mental capacity have been explained in terms of pathology and disease. Dementia is one such area. Once seen as a normal part of ageing, it has now become the result of numerous potentially avoidable diseases.
The use of the term ‘infirmity’ in the judgements is interesting. Its dictionary definition is ‘a lack of strength or weakness’. It is specifically defined as a ‘physical weakness or feebleness especially through age’. The definition of infirmity is clearly physical and this suits Powell's use of the term as related to disease or lesion.
Guardianship or Mental Health Act
Guardianship has its roots in the Old French ‘garden’ and Frankish ‘warding’ referring to ‘guarding or protecting or preserving’ [4]. A guardian is ‘one to whom the care or preservation of any thing is committed’. A second more specific legal meaning is recorded as one who ‘has or is entitled to the custody of the person or property of an infant, an idiot or other person legally incapable of managing his own affairs’. This is clearly a protective role, which the judge felt to be in tension with the loss of liberty entailed in the Mental Health Act. Thus, the dictionary definition of guardianship is longer term and specifically protects the person. In Powell's view, this model better fits the infirm, incapable person. Unlike the Mental Health Act, it protects society from bad debts but not physical harm. It is not specifically about treatment. Dementia is perceived as largely untreatable and therefore could be seen in a separate category to ‘mental illness’ in that regard. The Mental Health Act protects society as much as the person from the consequences of their ‘improper’ actions. Such actions may be seen as a threat that needs control.
Guardianship legislation could be seen as more holistic in that the central question is incompetence as a result of disability. The legislation covers medical consent, financial management and accommodation. It seems to address the whole needs of a person. This in part is because it starts from the basis of action failure and works back to identify the needs of the patient. This contrasts with the flawed definitions in the 1990 NSW Mental Health Act, which starts with symptoms that hide an underlying disease model. If the Mental Health Act was repealed, guardianship legislation could cover the treatment and care aspects of the mental health legislation as suggested previously [12], [13].
The historical process (neurology or psychiatry?)
The history of mental illness has shown a constant fluctuation between the poles of physical versus mental (organic versus functional). The physical view of Galen was supplanted in Western Europe by moral and spiritual ideas of causation. In the 18th century, Pinel's emphasis on the psychological was followed by Esquirol, reverting to a more physical view. Despite the swings, neurology and psychiatry were intertwined until the 1800s.
The first half of the 19th century saw increasing interest in the description of symptoms to replace ‘global accounts of madness’. One of the consequences of this was the acceptance of subjective accounts of patients’ experiences as a legitimate area for study. This, according to Berrios was one of the precipitants to the divergence between neurology and psychiatry [11]. The subjective became the province of psychiatry, the objective more that of neurology. (This can be seen when Powell uses the symptoms of delusions and hallucination to define mental illness as opposed to infirmity.)
Another swing can be detected through Jaspers to Freud as a reaction to the biological phase characterized by Greisinger, Wernicke and Meynert. A lack of results (apart from the dementias and generalized paralysis of the insane (GPI)) tempered the initial enthusiasm that the microscope would uncover the pathology of mental illness. Powell was willing to accept physical causation for mental disorders, but then attributed such diseases a different status outside ‘mentally ill’. Powell commented on the possibility of new neuroimaging techniques, such as computed tomography scanning, again awakening hopes for biological causes for the ‘functional psychoses’.
It is worthwhile to look briefly at the historical path of other disorders that have straddled the physical/mental divide. Delirium is another syndrome of undisputed ‘organic’ cause that may have ‘psychotic’ symptoms as defined by Powell. Indeed, Berrios argues that it was delirium rather than GPI ‘that served as the clinical model for the current notion of psychosis’ [11]. The contemporary view is that the best place to manage delirious patients is in a general hospital, where a consultation/ liaison psychiatrist might be asked to manage the behaviour but the primary medical responsibility would be with the physician treating the underlying disease. It would seem that Powell would deal with such a patient as mentally ill if they had delusions and hallucinations, but again would have difficulty with the fact there is an underlying ‘disease’.
Epilepsy up until the 1840s was treated in its severe manifestations in mental asylums. This changed after the work of Jackson when the psychiatric manifestations became ‘complications’ [11]. Berrios describes this as a ‘difficulty’ in relation to the status of its psychiatric symptoms. At the same time the concept of ‘neurosis’ was being refined, becoming narrower with the establishment of ‘psychosis’. Epilepsy was then seen as a ‘functional’ derangement of the brain and did not fit into the new categories. Epilepsy sometimes causes delusions and hallucinations. These symptoms are not a core feature of the illness but could be regarded as evidence of ‘mental illness’ under the Powell rulings. However, he would have excluded epilepsy as a mental illness ‘per se’ because of the presumed underlying disease.
Parkinson's disease was regarded as a ‘neurosis’ until the 1880s because no definable lesion had been identified to explain its course. When ‘lesion’ was redefined around this time to include lesions of function as well as structure, Parkinson's disease, like epilepsy, could be subsumed by neurology [11]. However, why was schizophrenia not also subsumed, because a functional defect could also be postulated in this condition? With time it was the identification of consistent lesions in Parkinson's disease and abnormal electroencephalograms in epilepsy that cemented their place in neurology. Less consistent computed tomography abnormalities showing enlarged ventricles in schizophrenia have not been enough.
Generalized paralysis of the insane was one of the conditions that began to fill the asylums during the birth of the psychiatric professions. Such patients had abnormal behaviours and mental states but no clear explanation for their illness. Bayle described the neuropathology in the 1820s but Berrios notes that it was not generally recognized as a separate illness until more than 30 years later [11]. In 1906 the discovery was made that this protean illness was the result of syphilis. For some, this disease was seen as the prototype for the successful study of mental illnesses to reveal underlying causes. With the explanatory model and the availability of treatment, this disease passed out of psychiatry.
During the first half of the 19th century it was felt that mental retardation was a defect of intellectual function different from insanity. However, Berrios has noted it was still ‘burdened with ambiguity of whether it was necessarily a form of mental illness’ [11]. This was heightened by observations that the degree of psychiatric symptomatology increased with the depth of retardation. Like dementia, it is a clinical syndrome of various symptoms including cognitive dysfunction. These are caused by presumed underlying diseases in some instances. Developmental disability can be ‘psychotic’ at times with delusions and hallucinations. In NSW, this condition had to be specifically excluded from the Mental Health Act to address the ambiguity. Only in the past few decades have the long stay wards for such persons passed out of the ‘mental’ hospital.
Vandermeersch said that ‘patients who were considered prototypes of psychiatric patients lost their psychiatric status, such as in the case of epileptics’ [14]. He wondered ‘whether a well formulated definition of the object of psychiatry could be given.’ ‘Can psychiatry be defined in another way than by formulating it on the basis of what psychiatrists do?’ Does it ‘rest on anything else than the accidental concurrence of circumstances that have placed a heterogeneous group under the heading of a simple profession? Examination of the process of extrusion from psychiatry of the various disorders described herein may shed some light on these matters. So too might the examination of the current process of extrusion of dementia. The common theme is previously unexplainable behaviour being sheeted home to a biological/medical model that causally reduces the disturbed behaviour. This process makes the behaviour ‘safer’ and less in need of control. More mainstream specialties in medicine subsume the disease: Parkinson's disease and epilepsy into neurology, mental retardation into paediatrics, neurosyphilis into infectious diseases. Dementia is moving into geriatric medicine and neurology. In the process, negative value associated with unexplained behaviour is reduced.
What values are at work?
Value in the decisions
Because of the lack of agreement over what ‘mental illness’ describes, and with no clear definition in the Act, the judge's statements are inevitably evaluative, for example ‘in the public interest’, ‘incapable of managing himself’ and ‘for his own good’. They refer to the ‘emotive’ overtones of the word in common parlance.
The judge based his decision on legal precedent that made a clear distinction between ‘mental infirmity’ due to disease or age, and being of ‘unsound mind’. Both groups could be protected by law in terms of their property. (While this could be seen as altruistic, the historical legal rulings clearly spell out another agenda, that is, the payment of debts and provision for family.) Those of ‘unsound mind’ (i.e., lunatics and the mentally ill), could be further detained against their will if they were likely to harm themselves or others. The patients in Powell's rulings were admitted because they were aggressive or wandering away. If ‘mentally ill’, such a person could be detained under the Mental Health Act as they were at risk of harming themselves or others. However, if ‘mentally infirm’ only their affairs could be managed.
One conclusion is that the community, through its laws, sees the need for protection from the ‘mentally ill’ but not the ‘mentally infirm’. Another interpretation is that the ‘infirm’ should be treated as medically ill, with the venue and constraints for such treatment different from the ‘mentally ill’.
This distinction could revolve around values being different for those with mental ‘illness’ as opposed to physical ‘disease’. Suspicion and fear are more prominent in the attitudes to the former with more compassion and sympathy for the latter. Physical disease is perhaps something ‘done to’ a person by affecting their organs, whereas mental illness retains some of the overtones of moral depravity and is more a characteristic attributed to a person than their organs. Justice Powell referred to Barnley's case of 1775 where a ‘depravity of reason'was equated with ‘unsound mind’. Ample evidence exists for historical attribution of moral involvement in mental illness. (e.g., witch trials [15], Morel's moral degeneration theory[16]).
In Fulford's model [7], the further step would be to say that the failure in mental illness is one of intentions or reasons for action. This provides a sounder basis to make the (value laden) decision of involuntary commitment. The judge did not take this step, as he valued ‘physical’ and ‘mental’ differently. If he had defined mental illness as a type of action failure, the barrier between the two is removed and the difficulty with the terms lessened. However, this concept of mental illness then encompasses areas that have now passed under guardianship rather than mental health legislation in NSW. This is also the view taken by the expert committee reviewing the English Mental Health Act (1983) in regarding ‘capacity’ as the central feature for mental health legislation. Such a view places ‘the interests of the patient centre stage’ and provides ‘the soundest safeguards against abuse’ [3].
Bolton and Hill have elaborated a similar way of defining mental ill health ‘…disorder is found in the failure of intentional states to underpin action, either where these are undermined by the external world, or where they are distorted, contradictory or unintegrated, and action is undermined or ineffective.’ In fact, the very symptoms Powell took to be integral to mental illness (delusions and hallucinations), can be seen as an attempt ‘to restore the integrity of intentional-causal processes.’
Is the judge's decision a snapshot of part of the process of psychiatry as a transitional phase between value-laden ‘illness’ and less value-laden ‘disease’? As if fact and value exist in inverse proportion: the more fact the less value. Is psychiatry forced to eat further into ‘moral and behavioural’ problems to stay alive, longingly looking back at the solid ground of medical diseases, which once discovered, slip from its grasp?
The practical effects of the decisions
The subsequent guardianship legislation set up to deal with the developmentally disabled eventually became primarily used to deal with dementia. It was much less formal and legalistic than Mental Health legislation. Orders were made for longer periods of time and lawyers were expected to only observe at hearings. The implication was that such patients needed less monitoring in the denial of their rights.
One unexpected outcome of Powell's decisions was that magistrates began to automatically discharge patients who had a diagnosis of dementia recorded in their notes. They ignored or were not aware of his further comments that a person with dementia could be ‘mentally ill’ if they also had delusions or hallucinations. This brings to mind the comments of Reich who wrote of ‘the attractiveness of the diagnostic process as a means of solving or avoiding complex human problems’ [18]. While Powell was clear that a patient could be both demented and ‘mentally’ ill, the operation of the system at the level of magistrates could not cope with this subtlety.
Conclusion
What do the Powell rulings mean for mental health? Was it just a mistake? Or has it exposed once more areas of important, practical uncertainty in psychiatry in relation to the fundamental terms in its field?
Mental illnesses affect the individual's ability to have their meaning approximate reality. This ‘action failure’ [7] is more encompassing and allows for a dimensional view of mental ill health as opposed to the categorical nature of Powell's position.
The judge discards disease as a basis for establishing mental illness, relying instead on symptoms and thus the illness experience of patients. This is because he recognizes the deficiencies of disease diagnosis in being able to define who is ‘mentally ill’. However, he continues to use diagnostic terms to rule between ‘infirm’ and ‘illness’, thus contradicting his position. He fails to take the logical step and define mental illness in terms of the failure of intentional states that underpin action.
He also fails to take in the full experience of dementia by being partially trapped in the ‘cognitive paradigm’. The resultant constriction of the concept of ‘mental illness’ has led to the necessity of a new legislative and administrative structure to deal with another class of patients who are distinguished from the mentally ill, partly on evaluative grounds. This is the antithesis of ‘mainstreaming’. In the terms of Jaspers [19], the Judge felt that dementia is ‘explanatory’ and should not fall into the realm of mental illness.
Perhaps the core question is value related. Perhaps it is unattractive and potentially violent behaviour that has always underpinned the coercive nature of the Mental Health Act. The judge never specified what should happen if the aggressive demented patient had not ameliorated. It is the perceived capacity and expertise of mental health professionals in dealing with this type of behaviour that continues to see such patients referred. At a deeper level, the Mental Health Act reveals society's fears of the unexplained nature of behaviour in mental illness.
The provision under guardianship legislation for orders for locked accommodation and treatment makes the Mental Health Act potentially redundant. In fact this case has been argued [12]. Guardianship has disability (action failure) at its core as opposed to the NSW Mental Health Act, which overtly relies on symptoms (illness) but covertly functions at a disease level (e.g., schizophrenia is, dementia is not).
Perhaps ‘mainstream’ psychiatry's future lies in embracing the ‘action failure’ and illness experience models. To follow exclusively the disease model at their expense paradoxically undermines what psychiatry has to offer medicine. If the current process with dementia and past processes with other diseases reflect this, it also spells the inevitable erosion of psychiatry's need to exist in its current biologically focused form.