Abstract
Civil commitment involves involuntary assessment and treatment of the mentally ill. The application of civil commitment can be viewed as a therapeutic management strategy directed towards the goal of maximising benefits and limiting the potential for harm. This process requires the balancing of potential benefits and harms as they accrue to patients and others. Even with this therapeutic intent in the application of civil commitment, there is the reality that patients may perceive the process of enactment of civil commitment as being coercive (forced upon them against their will). This sometimes justifiable perception may be detrimental to the therapeutic intent of maximising benefit over potential harm for the individual patient.
There is a rudimentary, yet growing literature, on how clinicians might therapeutically enact civil commitment [1]. This literature focuses on reducing the potential harm to patients by limiting their perception of coercion. Procedural justice involves strategies that enhance patients' experiences of involvement in decision-making processes and this has the effect of limiting their perception of coercion.
One goal of this paper is to review the literature outlining the significance of procedural justice strategies which, as far as we are aware, has not been previously accomplished. This evidence-based research is presently confined to the enactment of civil commitment at the time of hospital admission. There is a dearth of evidence-based research that guides the ongoing use of involuntary treatment. Given this dearth, ethical considerations become even more important in guiding clinical management. We will also show how seeking a patient's preference on how they would wish to be treated in advance of an illness episode (a ‘Ulysses’ contract) is a helpful procedural justice strategy.
The role of civil commitment
The state has two justifications for intervening coercively in the lives of its citizens. Under ‘police powers', the state has a right to protect citizens from the damaging behaviours of others. With reference to parens patriae (State paternalism), the state has a responsibility to intervene in the lives of people on the grounds that they are unable to make decisions adequately for themselves [2].
Civil commitment has elements of both police powers and parens patriae. Civil commitment may be enacted when a patient's autonomous decision-making ability is assessed as impaired by mental illness. In such circumstances, mental illness is perceived to render patients devoid of the competence to make decisions on their own behalf [3,4]. However, civil commitment in most contemporary jurisdictions can only by invoked when this inability is coupled with a risk to self or others. These dual considerations give rise to the potential ethical conflict of ‘walking the tightrope’ between the juxtaposed clinical roles of therapist and agent of social control [5].
This ethical conflict is long standing [6] despite the present emphasis in mental health legislation on patient autonomy [7]. The difficulty of grappling with the interface between loss of autonomy and ‘dangerousness’ understandably triggers in some clinicians a paternalistic response. Paternalism implies the routine subordination of patient autonomy in clinical decision making in order to avoid possible adverse outcomes. The clinical challenge is to define an approach to the application of civil commitment by incorporating ethical imperatives.
Patients' perception of coercion
The enactment of involuntary assessment and treatment of the mentally ill leaves a significant number of patients feeling that this experience was forced upon them against their volition (i.e. they feel coerced). However, legal status is only a ‘blunt index’ of this sense of coercion. A significant minority of involuntary patients felt that they chose to come to hospital on their own volition; conversely, a significant minority of voluntary patients (about 10%) felt that they were coerced when they were hospitalised [8–12].
An important question in regard to research on the patient's experience of coercion is whether these subjective experiences are reflective of what actually takes place. One difficulty is in observing the events that occur. To counter this difficulty, a method has been devised to construct the ‘most plausible factual account’ based on files and on interviews with patients, clinicians, and family members. Patients' perceptions most closely approximated the constructed accounts and therefore constituted a relatively valid version of what happens [13]. Furthermore, the patients' experiences of coercion have been operationalised in the form of a validated and reliable psychometric measure [4].
There remains a lack of clarity as to whether patients' experiences of coercion are linked to therapeutic outcome or to longer-term harmful effects. For example, it was postulated that the experience of coercion places the therapeutic alliance between clinician and patient in jeopardy by creating mistrust. This mistrust in turn encouraged a sense of patient alienation which was manifested internally as anger or depression, or externally as a negative response to mental health services [8,14]. The latter involves rejection of the psychiatric definition of the ‘problem', rejection of mental health services, non-compliance with medication and discontinuity of care in the community [15,16]. Gardner [4] indicated that the sense of alienation may even lead patients to encourage others to avoid mental health services. While there is a dearth of evidence supporting these concerns, they are intuitively important nevertheless. These concerns add to the ethical imperative to establish strategies to reduce patient experience of coercion whenever possible.
Communication styles
There are four styles of communication which may potentially be used during civil commitment. These have been categorised as the use of persuasion, inducements (promises), threats and force [17]. Persuasion is the most common approach used in acute mental health care settings [18]. Along with promises, persuasion focuses on patients' being better off if they accept admission. The use of both persuasion and promises do not impact on the experience of coercion, and constitute acceptable communication styles during civil commitment.
Styles of communication that have been shown to significantly increase patients' experiences of coercion are the use of threat and force. The use of these styles lead patients to feel that the consequences for them will be worse if they resist hospitalisation [10,11]. The use of threat and force are significant predictors of patients' experiences of coercion. The use of force includes the use of approved ‘calming and restraint’ techniques. McKenna [12] found that those patients who experienced physical restraint by staff immediately following admission reported a significantly higher level of coercion. These results indicate a priority to avoid threat and force whenever possible.
However, even if clinicians find it necessary to adopt such styles of communication, other factors may be additionally influential on patients' experiences of coercion. These include the involvement of the police for example [12]. There is also evidence that indicates that patients with a high level of education experience a greater sense of coercion [12,19,20], perhaps reflecting an expectation by more educated people that their own preferences will be recognised in the process of admission to hospital. One limitation in this area of research, however, is that little is known about the interactions between these variables and specific communication styles adopted by treating clinicians.
The influence of ‘procedural justice’ on coercion
The use of threats and force is antithetical to the concept of procedural justice. This concept evolved from research on participants in legal proceedings. This research suggests that it is too simplistic to assume that participation is only influenced by self-interest in the outcome of such events. Participants are psychologically affected by their inclusion or otherwise in just processes subsequent to the outcome decision. Inclusion in legal proceedings that are experienced as fair has the effect of making any final decision more acceptable to participants [21,22]. These findings based on legal proceedings are transferable to decision making between health professionals and patients within medico-legal proceedings such as civil commitment [23].
Procedural justice places obligations on health professionals to fulfil their statutory responsibilities under mental health legislation by including patients in fair decision-making processes. This involves the patient believing that the process of civil commitment is free from the value biases and vested interests of the decision-maker, and includes legal mechanisms for reviewing bad decisions [10].
The experience of procedural justice is multifaceted. It involves patients' perceptions of the fairness of the process of enactment of civil commitment (referred to as ‘fairness'). Patients experience procedural justice when they feel they are able to express their views (‘voice') and that these views are seriously considered (‘validation'). In experiencing procedural justice, patients feel that they are treated with dignity and respect (‘respect') and politeness and concern (‘motivation') [21]. Experiencing procedural justice also includes being given accurate and relevant information about the procedures in which the patient is involved (‘information') [24]. All of these aspects are also subsumed within the doctrine of informed consent.
Professional adherence to procedural justice has the potential to ameliorate conflicts of interest by acknowledging the social status of patients and by enhancing their psychological feelings of self-esteem, self-worth and a sense of personal security [21,23,25].
Procedural justice has been applied to the medico-legal process of civil commitment in qualitative research [26]. Lidz quantified the link between procedural justice and coercion by surveying voluntary and involuntary psychiatric admissions to hospitals in Virginia and Pennsylvania [10]. This study focused on the use of reliable and validated psychometric scales and found a strong inverse correlation between perception of procedural justice and perception of coercion, for both voluntary and involuntary admissions [10]. This strong inverse correlation has been found in replicated studies in the USA [9,19,20] and in New Zealand [12].
This research, however, is dogged by methodological issues including measurement validity, selection bias and difficulty in the construction of prospective longitudinal designs [8,27]. Another methodological limitation is that we know little about patients' perceptions of coercion beyond the time of admission. However, the process of civil commitment can extend into longer-term involuntary inpatient treatment and involuntary outpatient treatment program. Despite these concerns, the evidence indicates that procedural justice serves as a potential buffer against patients' experiences of coercion for both involuntary and voluntary admissions to hospital. Others have suggested that the link between perception of procedural justice and perception of coercion is conclusive and that, therefore, there is a need to consider experimental research which enhances procedural justice in reducing patient perception of coercion [1].
Multidisciplinary approach to procedural justice
Psychiatrists have been perceived to be the most coercive professional group followed by general practitioners and nurses [28]. This finding is understandable given that psychiatrists are most involved in decisions about civil commitment. Nurses are more involved in the 24–h care of involuntarily hospitalised patients. They are more likely to instigate de-escalation techniques including the use of force [29]. Each group of health professionals involved in the process of civil commitment needs to identify their own strategies for response to countering potential patient experiences of coercion. This will require the application and modification of the principles of procedural justice to their own unique roles.
This does not mean that each health professional group should employ their own interpretation of procedural justice principles in isolation from the approach of others. For example, in the context of civil commitment in New Zealand, the legislation itself provides a vehicle for the integration of varying approaches through regular clinical reviews [30]. Such processes should allow health professional groups to bridge ideological and philosophical professional boundaries, and to present a coordinated response in the use of procedural justice principles.
Linked to these issues is the increasing interest in the legal concept of therapeutic jurisprudence [3,31]. This is a form of analysis of the structure and practice of law in a particular field and allows a critical analysis as to whether it achieves therapeutic or anti-therapeutic ends. Much of the above discussion overlaps with such an analysis. The concept of procedural justice can therefore be extended beyond health professionals to other professional groups (such as police, judges and lawyers) involved in civil commitment [12].
Judicial hearings are an inherent component in the checks and balances of clinical decision making during civil commitment. Judicial hearings enable potential clarification and modification of the processes put in place by clinicians to benefit patients. However, there is the potential for health professionals to perceive legal procedures as adversarial, rather than as a legitimate challenge which can facilitate clarification. Health professionals should facilitate a cooperative, rather than an adversarial relationship with legal professionals [32]. Given the potential inherent hazards for patients in hearing their case aired in public, it is imperative that all professional groups present a coordinated approach to enhancing procedural justice principles preliminarily to and throughout hearings, and during debriefing following judicial processes.
Ulysses contract
A possible additional procedural justice strategy is based on the concepts of Ulysses contracts and advanced directives. In a Ulysses contract consent for measures to avoid risk that is given when a patient's decision-making is less impaired is applied to subsequent situations in which decision-making becomes more impaired [33,34]. A Ulysses contract should be sought in advance of the possibility of a patient having a recurrence of an illness episode. The emphasis in this process is on the clinician providing information, entering into constructive dialogue and seriously listening to what the patient has to say when the patient is well [35]. At the point of impaired decision-making, the contract serves the purpose of assisting patient decision-making by respectfully reminding the patient of the earlier explicit preference which was declared when less impaired by psychiatric illness. Ulysses contracts serve the principles of procedural justice.
Ulysses contracts have important features in common with advance directives. Advance directives are designed to establish a person's preference for treatment should that person become incompetent in the future or become unable to communicate those preferences to treatment providers [35–38]. Advance directives are now legally available in a number of USA jurisdictions, although their application has been infrequently evaluated [37]. Ulysses contracts also have important features in common with secondary preventive integrated care strategies that attend to early warning signs in the outpatient management of chronic schizophrenia [39]. However, we are not aware of literature that has formally applied these concepts to the process of civil commitment.
The application of Ulysses procedures should not be viewed as a measure to justify less consideration of a patient's preference at the time of compulsory treatment. Ulysses contracts are reversible, whereas advanced directives connote less reversibility. Furthermore, assuming patients are incompetent at the time of civil commitment may understate their competency. The appropriate clinical ethical strategy is to assess a patient's change in decision and, by reminding the patient of their earlier preferences, to attempt to maximise their decision-making capacity. In the absence of specific advanced directive legislation, Ulysses contracts are not legally binding, but should be respectfully considered when making later treatment decisions.
Conclusions
In this paper we have emphasised the clinical and ethical importance of procedural justice principles in the enactment of civil commitment. These principles involve allowing patients to have their say, listening to them seriously, providing patients with information and treating them with concern, fairness and respect.
However, civil commitment involves a process and not a one-off event. Furthermore, in accordance with the model of treatment in the ‘least restrictive environment', the process of civil commitment extends beyond involuntary inpatient treatment into community-based treatment programs. The process also extends into voluntary therapeutic relationships that occur outside of the legal parameters associated with civil commitment, but in which civil commitment might become a management strategy when the patient has other illness episodes. In the absence of evidence-based criteria beyond the admission phase, grounds for the universal application of procedural justice principles are supported by reference to ethical considerations including the use of Ulysses contracts. We recommend that all professional groups involved in the processes of civil commitment adopt the principles of procedural justice.
There are two important ethical justifications for this recommendation. First, close attention should be paid to the implementation of procedural justice principles is likely to advance longer-term therapeutic outcome. Second, procedural justice should enhance patient decision-making capacity and autonomy. The autonomy-enhancing strategies of procedural justice are essential in blunting paternalism in the clinical management of civil commitment.