Abstract
A controversial issue in the field of mental health in recent years has been that of mental health legislation. Debate has taken place about the purposes [1–3] and effectiveness [4–6] of legislation dealing with compulsory hospitalisation and treatment of psychiatric patients. Media reports of squalid living conditions, suicides and armed ex-psychiatric patients being shot by police have fuelled the argument. Part of the problem may be that the theoretical basis of mental health acts has been inadequately considered, and as a consequence there is widespread confusion as to what function they perform. Fundamentally, such legislation is concerned with public health, and it follows that the foundations of the law in this area should be derived from the principles, which guide the health professions. This paper aims to provide an overview of how two principles, autonomy and beneficence, may be used to establish a framework for involuntary hospitalisation legislation.
Principles of bioethics: beneficence and autonomy
The principle of beneficence has for centuries been at the core of medical ethics. It is a fundamental tenet of the Hippocratic Oath, which states: ‘[t]he regimen I adopt will be for the benefit of my patients according to my ability and judgement’ [7]. The philosophical pedigree of beneficence can be traced back to Plato's notion of the form, or model of human excellence, which was to live so as to properly display those qualities that make us human. These included reason, social interaction and our function as members of the natural order [7]. The physician throughout history has been taken to exemplify this moral and intellectual excellence, which imparts a superior ability to judge the best interests of anyone else, regardless of what the patients, themselves think.
Over the past few decades, the pre-eminence of beneficence has been eroded. The reason for this is both a shift in general societal values towards individual freedom, and a change in the relationship between doctors and patients. Instances of perceived abuse by medical practitioners, changes in the law, and advances in medical techniques which provide a greater range of outcomes from which to choose, have all contributed to this altered relationship. For example, there is a choice between undergoing a difficult course of treatment for cancer, which may relieve the disease, and purely palliative care, which may serve to make the terminal stages of the disease more comfortable. The outcome of such a choice is largely dependent on the values of the person making it, so there is a strong argument that such decisions should not be left in the hands of doctors, whose area of expertise lies in optimising medical outcomes, and not in deciding the ‘best interests’ of other people. The patient, who is able to weigh up the personal pros and cons of the options, can best make that judgement. There has been a shift away from medical paternalism toward the principle of autonomy.
The theoretical foundations of the modern concept of autonomy can be traced back to two philosophers: Immanuel Kant and John Stuart Mill [8]. Kant argued that because humans alone are rational agents, only they have intrinsic moral worth, and from this it follows that they should be treated as an end, and never only as a means [9]. Using the Categorical Imperative, whereby one must ‘act only according to that maxim by which you can at the same time will that it become a universal law’ [9], Kant developed a rule-based system of morality. This prescribed that rational beings should respect all similar beings by upholding and never restricting their goals and considered judgements [8]. Mill preferred a utilitarian approach, stating that ‘social control over individual actions is legitimate only if it is necessary to prevent harm to other individuals and that citizens should be permitted to develop their potential according to their personal convictions’ [8], unless doing so interfered with other people doing likewise. Thus, using very different philosophical frameworks, they both arrived at similar conclusions regarding the place of the human individual.
Aside from the theoretical arguments, there are practical reasons for autonomy being central to medical practice. Modern society is cosmopolitan, a heterogeneous collection of values, moral philosophies and belief systems which are all essentially based on intuition. Because of this, moral conflicts arising between individuals holding different value systems will often be difficult to resolve [10]. The solution most agreeable to the principle of autonomy is to establish a compromise by mutual negotiation and consent.
The basis of negotiation is the assumption that all ethical disputes involve conflicts between (and only between) moral agents and that rational ethical negotiation requires that these individuals be free participants. This is the framework of Engelhardt's ‘secular bioethic’, the function of which is not to provide concrete answers to ethical problems, but rather to create a structure in which all manner of differing perspectives can peacefully coexist. By placing the freedom of the individual centrally, this system allows all moral agents to follow their personal intuition in their behaviour, as long as doing so does not interfere with the freedom of others. According to this system, an individual is free to live a life of extreme hedonistic decadence or to forfeit their freedom to a community, which demands an abstinent lifestyle, and obedience to other members. All that is required is that the decision to do so is autonomous. This accommodates the argument that many patients prefer to have their treatment decisions made by doctors, under the secular bioethic; they are free to cede control to another. Note that Beauchamp and Childress draw a distinction between autonomous persons and autonomous choices; the latter are not simply decisions made by the former. In order for an action to be classed as autonomous, it must ‘substantially satisfy’ three criteria: the agent taking a particular course of action must do so (i) intentionally; (ii) with understanding; and (iii) without controlling influences [8]. Thus, if a patient wishes to put his or her medical care in the hands of a physician, and be sheltered from unpleasant facts, this stance must be established at the outset of the clinical relationship, and not assumed.
Implications for involuntary hospitalisation
Despite the fact that the principle of autonomy is increasingly influential in general medical ethics, it is true that in many aspects of the doctor-patient relationship, beneficence continues to play a major role. This is because autonomous decision-making, in its fullest sense, is often practically difficult to achieve. There is a very real power difference between the doctor and the patient, which can be minimised but not eliminated. For example, obtaining informed consent for a particular procedure requires that the patient understand all aspects of that procedure: what will be done, what the risks are and what will happen if an unforeseen problem arises. The doctor has acquired knowledge of these things through years of training and experience, and it is not possible for a patient to be given all this information, and to fully comprehend it, prior to every medical intervention. A large degree of trust (that is, understanding that the doctor will, whatever happens, use her superior skill and knowledge in the patient's best interest) is still a necessary part of modern medicine.
In psychiatry, beneficence arguably plays a greater part in the therapeutic relationship than in other medical specialties. This is because there is often a power gradient between the rational and the irrational, in addition to that between the skilled and the unskilled as described above. Thus, the practical difficulties of empowering a person to make autonomous decisions may be superseded by the fact that he or she is not capable of making such a decision. In this case, the principle of autonomy becomes inapplicable; as an irrational patient is incapable of determining his or her best interests, which in this situation include the restoration of the ability to make autonomous decisions, it follows that treatment decisions should be made by those whose goal is to achieve this end. Beneficence becomes the primary ethical justification for intervention and as such may be regarded as the moral basis for mental health legislation governing compulsory hospitalisation and treatment.
The precise nature of the beneficent goal of mental health legislation appears to be a source of confusion. Kjellin and Nilstun define two aspects of beneficence, social and medical paternalism, and we use their definition for this paper. Both involve the ‘interference with a person's liberty of action’, the former for reasons of protecting the public and the latter for promoting the patient's own welfare [2]. These two types of paternalism will now be examined in turn with respect to the ethical discussion outlined above.
Social paternalism
By social paternalism, we mean the interference with a person's liberty of action justified by the need to protect others from the person whose liberty is being restricted [2]. The best example is the use of dangerousness as a criterion for compulsory hospitalisation. There are two main problems with compelling people to undergo hospital treatment because they pose a threat to others. The first is that such acts are discriminatory. In a recent paper criticising the general concept of mental health legislation, Campbell asserts that ‘[i]n the popular mind, preventative detention is politically acceptable in the care of mentally ill persons, but much less so in relation to the rest of the population’ [1], and goes on to argue that ‘insofar as there are good reasons for…[compulsory care and preventative detention]…, they apply equally to all persons’ [1]. From the point of view of law and order, it makes no sense to incarcerate only those violent people who have a mental illness, as they make up only a fraction of the number of violent offenders. In contrast, if one is concerned with mental health, compulsory treatment may be warranted, but to restrict such actions to the violent would be to ignore the great majority of those suffering in the community. Public order, the domain of the Criminal Justice system, is fundamentally a function of individual behaviour regardless of the reasons or causes of that behaviour. If an individual commits a crime or is acting in a menacing way, social paternalism requires that they be detained. Only then are the circumstances behind the behaviour examined, and it is here that mental health services may become involved, to assess the role of the person's mental state in their actions and decide whether further input is necessary. Similarly, with preventative detention, it is only logical that it include any dangerous person, regardless of their mental state, as it is the perceived danger rather than any causative mechanism that is threatening the public order.
The second problem with relying on dangerousness as a criterion for involuntary hospitalisation is the difficulty in accurately predicting dangerousness. Miller addresses this point by contrasting the fact that dangerousness is used as a criterion in ‘virtually all jurisdictions in the United States’ [12], with the problem that ‘longer-term predictions of behaviour in different contexts…have been shown to be so inadequate that the official policy of the American Psychiatric Association (APA) is that psychiatrists are incapable of making them’. From this it is concluded that ‘the routine prediction of long-term dangerousness…might constitute a breach of ethical conduct’ [13], as it requires practising outside the psychiatrist's area of professional competence.
Medical paternalism
By medical paternalism, we mean that the interference with a person's liberty of action is justified by reasons referring to the welfare, good, happiness, interests or values of the person whose liberty is being restricted [2]. Medical paternalism steps beyond the intrinsic trust in the doctor-patient relationship, which holds that the doctor has acknowledged expertise in the practice of medicine, while the patient is the best judge of his or her own best interests. To deprive rational persons of their freedom cannot be justified by healthcare ethics, as it violates the principle of autonomy, and thus can not be said to be in the patient's best interests. If a doctor believes treatment is necessary, she is certainly obliged to try to convince the patient of this point of view, but if in the end the person remains unconvinced, it is not permissible for the doctor to force her will on a rational agent.
If, however, a person has diminished capacity for autonomy, the ethical framework outlined above compels health professionals to act beneficently. This may be seen in the arguments for respecting autonomy. If this principle is accepted, the duty to uphold and protect the rights of autonomous agents dictates some action to restore the capacity for independent living when it is reduced. It is only in this way that the ideal of autonomy and Engelhardt's secular bioethic (a non-judgemental society in which all citizens are free to live the life they choose) can be achieved. However, in order to do this there must be means available to benefit the patient, to restore some measure of her autonomy. The means available at this point in time include psychoactive drugs and placement in therapeutic communities in which an individual may enjoy limited independence and develop the skills necessary for an autonomous lifestyle. Prior to these being employed, a limited period of civil commitment for assessment may be necessary, and this in itself may be viewed as a tangible benefit as it identifies an appropriate course of action.
Discussion
Mental health legislation facilitating involuntary hospitalisation for psychiatric illness is ethically justified by the concept of medical paternalism (i.e. the restriction of the patient's liberty justified because it will result in benefits for him or her). In addition, the central role of autonomy in medical ethics suggests that the patient must have a diminished capacity for autonomy, so committal will not be interfering with their rights as a rational agent. While diminished autonomy and potential for benefit are necessary, they may not be sufficient justification for committal, since a person could, conceivably, be happy living in the community with a treatable disorder which hindered their power of reason. It is necessary to have subsidiary criteria to identify those in need of institutional care; these criteria are based on the principle that hospitalisation should serve to protect patients from harm that they would not necessarily be exposed to if they were capable of autonomous decision-making. The major criteria are harm to oneself and the inability to care for oneself.
We have argued that social paternalism is an insufficient basis for involuntary hospitalisation under mental health legislation. Such legislation is discriminatory and in conflict with the evidence that psychiatric expertise is unable to accurately predict who should be confined. If legislation to confine potentially dangerous people is felt to be necessary, it should be considered under public order legislation rather than public health legislation, and should be applicable to all dangerous individuals rather than only those with a mental illness.
Medical paternalism can, as a principle, include involuntary admission in patients who pose a risk to others. It is not in a patient's interest to be in legal difficulties. Therefore, in an individual patient with a history of violence when mentally unwell, it may be necessary to commit the patient to stabilise their mental state. The hospitalisation is for the benefit of the patient, rather than protection of the public. There is also evidence that such predictions have some accuracy, compared with general predictions of risk of violence [11].
An argument advanced by some is that, while medical paternalism may justify involuntary hospitalisation, this argument is only valid if the hospitalisation is likely to result in a restoration of some degree of autonomy [10]. The requirement of potential benefit implies that diagnoses such as dementia, intellectual handicap and severe personality disorders may not provide grounds for committal since they are not necessarily treatable by current psychiatric practice. We would argue that, provided patients benefit from such an admission, it is justified ethically by medical paternalism. However, it is reasonable to say that the ethical basis for such committals are less clear and need to be considered more carefully than in patients where there is an expectation of restoration of autonomy.
Finally, it is worth noting that public attitudes may not reflect the ethical niceties that have been discussed. In one study of public attitudes to mental health legislation, the majority of the public, relatives of patients, patients themselves and mental health staff felt that ‘need for treatment’ justified committal, even in the absence of loss of autonomy. The public attitude was also firmly in favour of social paternalism; 91% felt that a danger to society justified committal. Interestingly, relatives of patients were less certain (58–63%) and patients, themselves, even less so (37–40%). However, patients also felt that danger to others was more of a justification for committal than danger to oneself [2]. It is also of note that the public, relatives and mental health personnel overwhelmingly felt that decisions about committal should be made by doctors and not by legal authorities [2]. Many current mental health acts that, with the aim of protecting patients' autonomy, have increasingly invoked legal authority in decisions over committal may therefore be completely at variance with public attitudes.