Abstract
P.T. Dignam, Modbury, South Australia, Australia:
McLachlan and Mulder have made a valiant attempt to address the ethics of involuntary hospitalisation [1]. Their emphasis on the capacity for autonomous decision making is particularly admirable. Their perpetuation of the concept of social paternalism, however, seems semantically and philosophically flawed.
Paternalism is, quintessentially, intervening in someone's life for their own good: Where this good is only a secondary or indirect consequence (e.g. in preventive detention) the intervention cannot properly be called paternalistic. It is also arguable whether ‘paternalism’ is the proper term anyway [2]. An intervention on behalf of someone not capable of exercising autonomy warrants some other term, and ‘paternalism’ in its more typically perjorative connotation should be reserved for situations where control is exercised over potentially truly autonomous individuals. The opposite of the latter definition is ‘freedom’, of the former, ‘neglect’.
But, if the degree of substantial autonomy is so critical, the argument that, in situations of danger to others, the criminal justice system should always be the first port of call seems somewhat arbitrary. Guilt in the legal sense implies a capacity to form criminal intent. In most police matters, this is not in question and competence is assumed. But where the subject is patently incompetent, or where substantial doubt exists, surely those matters (to do with the subject's psychiatric condition as it affects their competence) should be addressed first. The police often pragmatically demonstrate this when they bring obviously psychotic offenders straight to hospital rather than subject them to criminal charges.
The authors' argument against specific mental health legislation for the protection of others centres on their casual equation of ‘imposed hospitalisation and treatment of those deemed to pose a threat’, with ‘preventive detention’. The former is, by and large, a relatively short-term therapeutic exercise with a finite endpoint, focused on the patient's need for treatment (to restore autonomy), with the wider community an indirect beneficiary. The latter is a different thing altogether, and justifies many of the criticisms the authors discuss. The authors' use of the term ‘discriminatory’ also warrants examination, focusing as it does on ‘positive’ discrimination, or applying a distinction between people where none is relevant. The model they proposed arguably demonstrates ‘negative’ discrimination in its failure to recognise a distinction that is relevant: a lack of competence. Rosenman [3] and Campbell [4] also focused on discrimination, and yet it would seem it is the illnesses and their private and public manifestations that create the stigma, not the rules under which people are certified.
McLachlan and Mulder have identified a current trend towards individual liberalism, but they also identified society's unease with this philosophy as applied to mental health. The shift from ‘need’ criteria to ‘danger’ criteria probably derives from the USA as a reaction against unworkably broad earlier models prone to abuse, and reflects the biases of that culture [5]. This American model is flawed in its narrowness and its preoccupation with predictability, and its failure to address need for, amenability to, or imposition of treatment. It is a poor model for Australian society.
Well-designed, specific legislation has the capacity to compensate for the disadvantaged predicament of the mentally ill by recognising their special needs. It should start with McLachlan and Mulder's emphasis on the restoration of autonomous decision making as a central goal of enforced treatment. It would recognise that the community seems to prefer that clinicians, rather than lawyers, apply the rules, at least in the beginning, and would shift towards Rosenman's substituted consent as the scale of intrusion increased. Dangerousness to the public would be included only as an indicator of likely incompetence in someone having a mental illness, rather than as an endpoint in itself. Purely ‘preventive’ detention would rightly be the subject of alternative legislation.