Abstract
Language, as we have previously shown, is an imprecise and capricious tool, perhaps especially so at the interface between law and psychiatry [1]. Specialized professional usages and terminology may differ from commonly understood meanings in everyday speech. Such deviations are noteworthy enough, as terminological clarity is a prerequisite to clear thought and analysis. However, their recognition is particularly important in discussions between members of different professions, such as medicine and law, where misunderstandings may lead to distortion of outcomes and therefore cannot be dismissed as esoteric debate or point-scoring. This is particularly true when attempts are made to establish mutually acceptable medico-legal definitions of issues such as the psychological symptomatology of psychiatric illness [2].
In addition to these semantic difficulties, there are also those raised by the use, albeit covertly, of different conceptual frameworks. Prominent in this context is the implication that not only may a person's capacity to make rational decisions be reduced by mental illness, but also that capacity may itself be displaced by the mental disorder, as if the illness itself has taken possession of the patient's mind. It is not simply that a normal function has been subverted, but rather that a new and alien force has intruded. At first sight, this idea of possession of the mind by an ‘evil’ influence harkens back to the theories of demonology. It appears to have little in common with contemporary medicine, psychiatry or law. However, it may well be a suitable metaphor as it has been for the possession-like states of substance intoxication, passionate fanaticism in politico-religious issues and even neoplastic processes in bodily organs.
This paper focuses on one particular instance in which these conceptual and semantic difficulties obtrude into everyday legal and clinical practice. It examines some ways in which the vexed issue of involuntary treatment for severe anorexia nervosa might profit from greater clarity of terminology, especially of those terms that deal with the nature of the condition (as disease, illness or syndrome) and those that refer to the capacity of the person with severe anorexia nervosa and whether that capacity may be overtaken by the illness process itself.
In Australia the body of law which governs involuntary treatment differs from jurisdiction to jurisdiction. All jurisdictions apply the mental health laws, and many (but not Victoria) also utilize the adult guardianship laws [3], [4].
The medical concepts of ‘disease’ and ‘illness’
Our starting-point is our observation that medicine finds it useful to attempt to differentiate between a ‘disease’ and an ‘illness’, whereas these terms are synonyms in lay understanding [1]. As we have previously explained, that is not to say that medicine has an agreed or straightforward way of delineating these terms. It does not. However, it does draw a distinction [5], and it is that distinction which is the foundation of the first part of our analysis with regard to the reasons why definitions of mental illness are somewhat fluid.
Within medicine, a ‘disease’ usually refers to a pathological problem affecting one or more organs of the body. An ‘illness’ on the other hand, is the human condition of someone who feels that he or she is not as he or she ought to be. It has a normative, and subjective, dimension to it; it encapsulates a social stance [6]. Thus, in some medico-legal and other settings, being ‘ill’ may excuse a person from certain responsibilities in civil society, such as the need to work, while also generating new expectations – such as the expectation that someone with an illness will seek out and accept treatment [1]. Australia's disability pension regime enshrines just such a configuration of expectations: a person with at least a stipulated level of incapacity as measured by tables of impairment is not expected to work, but their illness only qualifies for rating of its level of impairment once it is sufficiently stabilized, diagnosed and ‘treated’ [7].
The dubious utility of a disease/illness dichotomy in the task of achieving greater definitional clarity is exposed by the development of the ‘biopsychosocial’ model of diseases and disability – the International Classification of Impairments, Activities and Participation (ICIDH-2). This new WHO model of disability reaches well beyond medical ‘impairments’, to incorporate other dimensions located in social, cultural and environmental factors, intrinsic or extrinsic to the person, including new measures of ‘participation’ and the relationship to the human environment [8–11]. Even comparison of strict disease nosologies such as the World Health Organizations' International Classification of Diseases (ICD-10) [12] or the Diagnostic and Statistical Manual of the American Psychiatric Association (DSM-IV-R) [13], reveals both a measure of generality between the two systems while for other terms meanings diverge [1]. Partly of course, this is a product of perspective: ‘health’ tends to be conceived within medicine in terms of a biomedical construct, while epidemiologists are interested in the incidence or prevalence of disease or illness within a population (and with lowering the incidence of morbidity and mortality). Clinicians for their part, seek to make such people better or, if that is not possible, to enable them to endure their ailments with minimal discomfort [14]: ‘To cure, occasionally; to alleviate, frequently; to comfort, always’, is an adage long cherished by health professionals. Some of the definitional fluidity reflects such perspectives, but it does not explain it all.
Lay understandings and conceptions of health and illness are even broader and more confused. When the legislature leaves such concepts entirely undefined, as once was the case in New South Wales, this divergence between clinical or public understandings of health and illness and where law draws the line for the purposes of involuntary detention, can become very murky indeed. The New South Wales Mental Health Act 1958 did not define mental illness and hence offered no assistance in deciding what did and what did not constitute it as an entity [15]. This allowed for flexibility in interpreting the law and may even have been thought to have rendered it permeable to common or lay understandings of mental illness, had the courts not interpreted it in more specialized terms in order to limit incursions on personal liberty [16]. Clearly, in its legal context, mental illness was considered as something different and more limited in scope than the broader terms of psychological disturbance or psychiatric illness. The question posed then is, what does differentiate mental illness (in the legal sense) from psychological disturbance in general?
An attempt to address this issue was made in the new NSW Mental Health Act of 1990, as amended in 1997. Various psychological symptoms were proposed not only as being indicative of mental illness, but further as being sine-qua-non for its presence: Mental illness means a condition which seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterized by the presence in the person of any one or more of the following symptoms: (a) delusions; (b) hallucinations; (c) serious disorder of thought form; (d) a severe disturbance of mood; (e) sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a)-(d).
This has been characterized as the ‘psychopathological’ (or ‘disorder of function’) approach to definition, in contrast to the alternative models of ‘no definition’ (as previously in NSW or currently in Victoria), or that of stipulating ‘statutory classes’ of people covered [16]. The psychopathological definition does not provide the degree of precision intended, however. This is because it merely shifts the issue of definition from that of ‘mental illness’ to that of symptom presentation. The faulty assumption is that, unlike the terms used to indicate psychiatric illness, which are inherently imprecise, the terminology used to describe psychopathology is fixed and constant. Unfortunately, that is simply not true. Indeed, Dawson argues that there is a ‘trade-off’ between the benefits of ‘symptom-based’ definitions which are more meaningful both to psychiatrists and to the lay public (fostering public ‘participation’ in such conversations) set against the disadvantages of undue ‘flexibility’ and uncertainty of outcomes [16].
Mental illness
Part of the reason for this definitional uncertainty is that many of the concrete characteristics manifested in physical diseases are missing from definitions of psychiatric disease. This is because most disorders in general (physical) medicine are both diseases and illnesses, such as pulmonary tuberculosis for instance. Processes like consolidation of lung tissue, inflammation or infiltration can be defined concretely and unambiguously. However, organic brain disease foundations of psychiatric or mental illnesses have generally proved rather elusive [17], [18] (there are exceptions, e.g. tertiary syphilis), partly perhaps because the disease is of so subtle a nature as to have evaded detection by contemporary scientific methods. Hence, the mind is considered as an abstraction, like the soul, not an organ of the body and there can be no concrete pathology of an entity which is itself an abstraction. The opposing theories of ‘physicalism’, ‘idealism’ and ‘dualism’ have been argued during almost 3000 years of philosophical debate, with Thomas Aquinas as one of the major proponents of ‘physicalism’ and Descartes of ‘dualism’. We do not seek to endorse either point of view, but merely point to the ambiguity that pervades all discussion of the mind–body or soul–body relationships, unless a clear commitment to one or other of these theories is acknowledged. To avoid even more digression, we avoid any consideration of the distinction between ‘mind’ and ‘soul’ – if such exists – and the ethical implications thereof.
Psychiatric texts reflect the sterility of a search for such markers of disease and therefore do not devote much space to notions of ‘disease’ and ‘illness’. As Tengland has shown [19], texts instead prefer concepts with clinical utility to practitioners, such as those of normality/abnormality, or of a ‘disorder’, as in the DSMlV [13]. As we have shown elsewhere [1], the concept underlying the way psychiatric illness is interpreted also relates the ‘episteme’ current at the time, as illustrated by Michael Foucault in his book Madness and civilization. (Giordano offers interesting speculation on anorexic ‘pursuit of lightness’ and its possible association with protection of personal space, asceticism and perfectionism [20].) In place of the concrete pathology of physical disease that can be ascertained by physical measurement, psychiatry substitutes the concept of psychopathology, for which various operational definitions are construed. But psychopathology, like the mind itself, is insubstantial; and the meaning of psychopathological and psychiatric terms (as with those used in social sciences) is more arbitrary than are those used in the natural and biological sciences. This level of abstraction is obvious even when looking at the terms used in different languages for psychiatric concepts, which are usually not strictly equivalent. For instance, the English word anxiety, with its strong sense of anticipation, is not what is meant by the German word Angst (fear). As Freud recognized, the correct German term would be Vorangst. Similarly, delusion, deriving from the Latin verb ludo: I play or am mischievous, is not equivalent to the German Wahnvorstellung or Wahndenkbeeld – literally crazy proposition or mental image [1].
It is when we come to recognize the challenges in defining a psychiatric illness like anorexia nervosa for the purposes of deciding whether involuntary treatment laws can be invoked, that we begin to appreciate the high stakes at this intersection between law and psychiatry. Some seek to resolve the definitional difficulty by turning to a new concept, such as the notion of a ‘syndrome’, as the basis for defining the medical condition sought to be delineated [21]. But changing the name does not eliminate the problem. As a disgruntled correspondent wrote to one of the present authors when informed that he had used the wrong name: ‘You can't fool me by changing your name. I mean you, whatever you call yourself’ [1].
The syndrome of anorexia nervosa
As Beumont (1993) has pointed out, most psychiatric illnesses are defined in terms of a syndrome, that is an association of symptoms and signs which are consistently associated with each other, which point to a common course of illness and (preferably) which respond to a common form of treatment. As a syndrome, anorexia nervosa is as well established as any other psychiatric illness [22–24]. The patient must fulfil specified operational criteria if the diagnosis of a syndrome is to be made. The diagnostic criteria for anorexia nervosa, as given in the ICD-10 [12] and the DSM-IV-R [13], are basically unaltered from those suggested in the original descriptions of the illness more than 100 years ago.
In his New South Wales Supreme Court ruling in the case of JAH versus the Medical Superintendent of Rozelle Hospital (S.14, 4 March 1986), Justice Powell referred to sections 4, 12 and 18 of the then current Mental Health Act 1958 (NSW). The judgement warrants full exposition, as it illustrates the problem that we seek to address in our paper.
Powell, J: The condition from which the Plaintiff suffers, and for which, on a number of occasions over the last four years, she has, because of her intractable attitudes, required treatment, is that commonly known as anorexia nervosa. Since it deals with the matter in such a clear and succinct way, it is convenient to set out some of the evidence of Professor B. It is as follows:
'Anorexia nervosa is a diagnostic term applied to a condition of self-induced undernutrition usually seen in adolescent girls and young women. Its cause is unclear and it does not arise from any discernible pathological change to the brain or other organ of the body. Therefore it is not a disease (which in medical parlance implies structural or chemical change), but rather an illness, that is an experience of ill-health. In these respects it is similar to most psychiatric diagnostic terms which refer to conditions of unknown causation, without discernible pathological changes.
All such illnesses are defined in terms of a syndrome, that is an association of symptoms and signs which are consistently associated with each other, which point to a common course of illness, and (preferably) which respond to a common form of treatment. As a syndrome, anorexia nervosa is as well established as any other psychiatric illness.
The patient must fulfil specified operational criteria if the diagnosis of a syndrome is to be made. The diagnostic criteria for anorexia nervosa, as given in the [ICD-9 or DSM-III] are basically unaltered from… the original descriptions of the illness more than 100 years ago.
Essentially these criteria are:
(a) a significant state of undernutrition, together with its physical consequences.
(b) brought about deliberately by the patient using a variety of weight losing behaviours.
(c) associated with a fear of being fat and an overvalued idea about the desirability of being thin.
(d) in the absence of other physical or psychiatric illnesses that might account for the patient's symptoms. It is criterion (c) which is of crucial importance. In its absence, the subject's condition is not necessarily seen as being an illness. For instance, someone who goes on a hunger strike for political purposes, or on a long period of fasting for religious reasons, is not considered to have anorexia nervosa although he fulfils criteria (a) (b) and (d).
Although it is a serious mental condition and may be life-threatening, anorexia nervosa is not a psychotic illness. The term psychosis is defined in the Comprehensive textbook of psychiatry, 3rd edition (Kaplan, Freedman and Sadock) as ‘a mental disorder in which a person's thoughts, affective response, ability to recognize reality, and ability to communicate and relate to others is sufficiently impaired to grossly interfere with his capacity to deal with reality. The classical characteristics of psychosis are: impaired reality testing, hallucinations, delusions, illusions.’ Confusion arises when the term psychotic is used to indicate a level of severity of mental illness. Its proper use is to refer to specific kinds of mental illnesses, not to their level of severity.'
Powell, J continued: In the light of this evidence, and the views which I have expressed as to the meaning to be attributed to the phrase ‘mental illness’ for the purposes of the Act, it is, in my view, inescapable that I should hold that the Plaintiff is not suffering from a ‘mental illness’, and that, accordingly, she is not a ‘mentally ill person’, for the purposes of the Act.
The shift in the 1990 Act to embrace a ‘symptombased’ definition of mental illness reversed the outcome of this case. But many of the difficulties remain because statutory terms such as ‘delusion’, or ‘serious disorder of thought form’ also prove to be defined by psychiatry in terms which are more fluid than those commonly encountered by law.
Some psychopathological terms
The words cited in the Act of 1990 have meanings that are generally accepted in psychiatry, but are not immediately obvious to non-psychiatrists [25].
For instance, the current NSW Act with its reference to a ‘disorder of thought form’ – such as thought blocking, incoherence, irrationality and paucity of thought – uses a concept which is fundamentally different to a disorder of content, that is an abnormal, ‘psychopathological’ idea. The defining psychopathological feature of anorexia nervosa, criterion (c) as designated by Justice Powell, is a thought content, not a thought form, disorder. It is not loss of a capacity to think logically, but it is basing one's thinking on thoughts which are themselves pathological. Paradoxically, the thinking process itself may be unimpaired. (A similar paradoxical illustration of this distinction is found in the paranoid delusions of a person with schizophrenia. Although the person's beliefs are abnormal, i.e. delusional, thinking itself may remain rational. The abnormality is the thought itself. But if this thought were accepted as a legitimate premise, all the conclusions that follow would not necessarily be faulty.)
The major forms of ‘thought content’ disorder recognized in clinical psychiatry are obsessions, overvalued ideas and delusions. At their simplest, obsessions refer to recurrent ideas that a person experiences, that he or she recognizes as being alien, that is, not under voluntary control and that are actively resisted. Delusions are the ‘false’ beliefs that are thought to constitute madness and may be either bizarre (beliefs in impossible things) or non-bizarre (e.g. a nihilistic delusion such as that one is suffering from cancer when this is not true) and either mood-congruent (the delusion of a seriously depressed woman that she has been the greatest sinner that ever lived) or non-congruent (the belief of a chronic psychiatric patient that he is really a royal personage, held quite cheerfully and without awareness of the incongruity that he has been allocated the duty of sweeping the floor).
The term ‘over-valued idea’ is more ambiguous, even in its simplest use. Indeed, in North America it is often synonymous with lack of ‘insight’ [26]. Some psychiatrists apply the ‘over-valued idea’ to a delusional-type idea, which falls short of being a full delusion because it is not held with utter conviction. Others use it to refer to those unusual and false beliefs that are not idiocentric, for example, the belief that aliens regularly visit earth from outer space, without the concomitant belief that the believer is either the reason for extra-terrestrial visits or has some special role to play in relation to them. A similar disparity applies to the term pseudo-hallucination: for some it refers to a false perceptual experience that is merely less florid than a true hallucination; for others, it implies an experience which is recognized as qualitatively different from a perception [27]. For our purposes, David Veale's suggestion that over-valued ideas are associated with idealized values of such over-riding importance, that they totally define the ‘self’ or identity of the individual, has greatest resonance for anorexia. He goes on to argue that such value positions are also characterized by the rigidity with which they are held: patients are unable to adapt to different circumstances and ignore the consequences of acting on their values [26].
There are differences in meaning for these words between psychiatrists and lay people. More importantly, they are terms of meaning to outside observers rather than to the patient experiencing them. Thus, a text on objective psychopathology (often inappropriately termed phenomenology; for a brief summary, see [16]) may define delusion as ‘a fixed belief incorrigible and impervious to logical argument, whose context is ideocentric’ (e.g. ‘the FBI are after me: I know that because my lights failed last night’). This is quite different to the thought that the patient actually experiences [14], [28]. He or she could not possibly complain that they have a false belief and that they hold it persistently, despite all evidence to the contrary [1].
Falsity of belief is quite an unhelpful criterion. All the false beliefs once held, in good faith, by scientists past were not delusions, but rather mistakes. In fact, to follow Popper [29] all hypotheses in science are potentially false beliefs, because they must stand by their subservience to the principle that they must be open to subsequent falsification. We need something more in order to distinguish delusions and other thought content disorders from normal thought [1]. This issue is one of the major preoccupations of the phenomenological approach to psychopathology. It centres on the basis of the thought and how it is held, not on its truth, falsity, reasonableness or irrationality. It is examined intensively in Jaspers' monumental tome [26]. However, the topic is too complex to be addressed in this paper. Suffice it to state that the various forms of thought content disorder are not clearly distinct from each other, but pass almost imperceptibly from one to another. Whether a particular experience should be considered a delusion or an obsession is often a matter of argument, especially as both abnormalities may be found simultaneously in the same patient and neither is diagnostic of any particular psychiatric disorder.
The psychopathology of anorexia nervosa
The psychopathology of anorexia nervosa is difficult to label but it is illustrative of all the issues previously discussed. Anorexia relates to an unwillingness to eat, a determination to be unnaturally thin and evident contentment with being capable of refusing to eat and being emaciated. This has been variously termed an hysterical symptom [30], [31], a phobia of weight gain [32], an obsession [33], [34], a delusion [35] or an over-valued idea [36]. Probably all these terms are justified in patients at different stages of their illness. Patients are overwhelmed by concerns about their body and protest that they feel themselves to be fat even when they are actually emaciated. They are preoccupied with ways to further reduce their weight or at the least to prevent any gain. They appear genuinely terrified at the prospect of being overweight and some state openly that they would rather be dead than fat. Although so extreme as to be pathological, such beliefs represent an exaggeration of the widespread concern about weight and shape that has been engendered in our society. In most patients with anorexia nervosa, these beliefs would best be termed over-valued ideas. When they are held stubbornly despite overwhelming evidence that the behaviour has become life-threatening, they are interpreted as delusions, in that the patient is no longer able to examine them rationally.
Onto this core concern are imposed other psychological symptoms, many of which are known to be common in semi-starvation, irrespective of cause [37]. These include depressed mood, irritability, social withdrawal, loss of sexual libido, preoccupation with food, obsessional ruminations and rituals and eventually reduced alertness and concentration. Dysphoria is particularly important, an integral feature of the illness. Many clinicians who make an inappropriate second diagnosis of a mood disorder do not appreciate this intimate association. Similarly, severe obsessional symptoms, usually relating to eating and food but sometimes of a more general nature, are common in anorexia nervosa patients. Often, but not invariably, these symptoms also improve with weight gain. Intense feelings of guilt are frequently present and paradoxical. Patients complain that they feel guilty if they eat or do not exercise, but also feel guilty if they do. They relate these feelings to their extremely low self-esteem [38].
Although the objective psychopathology is similar, the core experiences (phenomenology) of anorexia and bulimia nervosa patients are subtly different. Both accord an unduly high salience to weight and shape, are preoccupied with eating and not eating, relate low selfesteem to their view of their own bodies and tend either to deny their thinness or overestimate their size, but none of these features is unique to these illnesses. Obese girls, binge eaters and even many healthy young women have similar cognitions. What distinguishes bulimia and anorexia nervosa patients is the intensity of the cognitions. However, in bulimia nervosa these concerns are the essence of the disorder. The bulimia nervosa patient seeks slenderness, but wants it in order to be healthy and happy. It may be foolish, but it is not irrational. In the anorexia nervosa patient, this is true only in the early phase of the disease.
Anorexia nervosa patients come to believe that they are not worthy of life, that they do not deserve any form of gratification, that they must punish themselves by unrelenting exercise, that they are not like other people and what is acceptable in others is not acceptable in them. If they let up on their anorexic behaviours, they are filled with self-loathing and guilt. Being emaciated is a goal in itself, not a means of achieving happiness. Work is an obsession, driven by fear of failure rather than hope of success. It is not that they are closed to reason about their physical condition, but rather that it is irrelevant because the sole purpose of their lives is their abstinence. The extent of their divorce from the reality that most of us recognize may be so great that they are incapable of being responsible for their decisions in relation to their illness. Whether this divorce is the result of an eventual loss of competence, or whether it is because competence has been displaced by the presence of the illness, is a moot point. Certainly, many anorexia patients choose to express their experience in the latter terms, speaking of the illness as something different to themselves, just as some schizophrenia patients distinguish between what they know to be true and what the voices say [39], [40]. (For a discussion of the different ‘forms’ of the self as related by patients diagnosed with anorexia, see [41]).
In the final appraisal of the mental health status of an anorexia nervosa patient, it is necessary to recognize that the psychopathology, in a technical sense, may have progressed through being an overvalued idea, to have acquired the attributes of an obsession or even a delusion. The challenge to the lawmakers is how to encompass this fluidity in their laws.
The legal approach to the ‘challenge’ of psychiatric terminology
Mental health law answers this challenge in two ways, both from within the tight constraints of formal legislative rules.
A tight ‘formal’ structure of mental health law predicated on protection of civil rights
Because mental health laws can authorize deprivation of liberty (involuntary detention) and involuntary treatment, the legislature has generally insisted on laying down detailed ground rules and procedures which must be satisfied to obtain an order. As hinted at in the JAH case extracted earlier, the courts have construed statutory language tightly, searching out precise (or ‘technical’) meanings [42], which understandably unsettle some clinicians until it is appreciated that clinical psychiatry is not unduly affected by such pronouncements, since mental health tribunals apply more sophisticated tests where weight is given to concepts such as ‘insight’ [43], [44] or consent [45].
Tight statutory definitions of what constitutes mental illness, satisfaction of additional conditions (such as showing harm to self or others), and procedures for prompt tribunal review of mental health committal decisions have been common for a century or more [46]. Clinicians have long criticised undue reliance on such legalism – arguing that it delays prompt treatment; cramps professional judgement and discretion in managing patients; and undermines the authority of the treating doctor [47].
Briefly in the middle of the century in Australia and elsewhere, clinicians obtained the sought-after greater freedom to treat [46], [48]. ‘Gateway’ definitions of mental illness were rewritten to reflect the more openended or non-technical lay language (and conceptions) of mental illness, supposedly minimizing the intrusion of compliance with undue strictures of overly rigid diagnostic criteria – an outcome which the courts circumvented in cases such as JAH, where the judiciary narrowed the language to clinical concepts in order to minimize incursions on civil rights. However, clinicians did win greater authority as arbiters of who should be treated in another respect, to the extent that psychiatrists rather than legal bodies decided on initial admission (as is still the case in Victoria) and/or to the extent that legal scrutiny of admissions was relaxed – such as by making tribunal review elective (as in the UK) rather than automatic, or by extending the period of permissible treatment before external review was required.
These clinical gains were fairly short-lived however, and 1980–90s legislation largely reinstated the legalistic model [49], [50]. One advantage to clinicians of the demize of the so-called ‘clinical-bureaucratic’ model was that they avoided acquiring the antitherapeutic reputation of being the gaolers [51]. However, little hinges on this. US studies demonstrate that legislative pronouncements are resisted, or are remoulded in practice, so that they more closely engage with the moral sentiment that mental health law should retain a focus on the treatment needs of patients [52], [53].
The ‘practice’ of mental health law
In practice, clinicians' judgements reign supreme in deciding who is mentally ill and who should or should not be involuntarily admitted to mental health care. (The same phenomenon has been documented at other points of intersection between law and health care for the vulnerable, such as in the switch to a ‘best interests’ test rather than full application of equal opportunity laws to scrutinize British health care for the disabled [54].) Front-line clinicians and other service providers substitute a ‘common sense’ view of who should be committed, as Rees has observed [55]. Psychiatrists focus on the ‘health and safety’ of patients when making admission decisions. While psychiatrists may differ between themselves about the level of risk posed by a patient's condition, they tend to base committals on their assessment of the ‘needs’ of the patient – an area where agreement between the certifying psychiatrists is much stronger [56]. So, as Michael Perlin has written of US experience (where only a court can authorize detention for treatment), clinicians are able to substitute a ‘moral’ or ‘common sense’ outcome in place of strict compliance with statutory criteria [53], p. 12].
Studies of the operation of mental health tribunals demonstrate that liberty values or fidelity to legislative values are not very prominent influences [45],[57–59]. Contextual factors, such as internal dynamics of tribunal operations, the influence of surrounding community values, and the structure (and ‘convenience’) of service systems are most influential [51], [60]. Thus Peay's landmark study of British Mental Health Tribunals found that court pronouncements about the ‘meaning’ of governing legislation had little impact on the daily work of tribunals [61]. Their impact was diluted by a variety of contextual forces, not least the dialogue between ‘legal’ and ‘welfare’ cultures [62]. Tribunal members interpreted (or ‘filtered’) information placed before the tribunal against their ‘preconceived attitudes and knowledge’ acquired prior to the hearing; medical reports served to delimit the issues for debate; and there was a strong tendency for evidence to be judged more by its source than its content [61], pp. 21–23,178]. Tribunal decision-making often followed a ‘conclusion first; justification later’, or back-to-front reasoning [61], p. 182]. Given a clash of ideologies in an essentially therapeutic environment, it is the ‘therapeutic considerations which will hold sway’. Conversely, in a purely legal context such as the criminal or civil courts, it will be psychiatric precepts which ‘play second fiddle to legal considerations’ [61], p. 205].
Studies of the analysis of medical reports presented to tribunal hearings [63], [64] are particularly instructive. A narrative of ‘endorsement’ or ratification of reports and opinions of treating personnel tended to dominate in tribunal deliberations [61]. Mental Health Tribunals, it seems, are not places where clinical judgements are often seriously challenged, much less overturned. Other studies of mental health tribunal decision-making confirm the elevated status accorded to the medical member of the tribunal and to medical evidence tendered [65], [66]. As was found in the Richardson and Machin study: … it is significant that in none of the observed tribunals was a decision reached in the face of opposition from the medical member. Further,… it was clear that the presidents perceived a danger that medical members might ‘take over’, and many lay members indicated that they had to guard against the medical member carrying too much influence [and] [o]ne lay member argued that it was dangerous when doctors let their opinions show during the deliberations, and… to favour medical interpretations of behaviour… [67].
This too is perhaps unsurprising, given findings that the ‘health and safety’ of the patient, or a culture of attention to the ‘needs’ of patients, is apparently central to tribunal work.
Moreover, very few people are discharged by the tribunals. Rates of discharge by Mental Health Tribunals tend to be very low, generally ranging from 1–10% [61], p. 178]. Canadian tribunals are somewhat exceptional, reportedly discharging approximately a third of the cases to reach a hearing; but since approximately half were resolved before reaching a hearing, even that overall success rate is effectively halved [68], [69].
Legal engagement with mental health concepts
Mental health law necessarily engages with a number of mental health concepts, but does so in ways which mould them to other ends, such as in serving as proxy measures for capacity to ‘consent’, or as proxies for setting the boundaries sought to be drawn between those who are or are not mentally ill. ‘Risk’ is one such dominant narrative. Symptoms often become a proxy for the satisfaction of statutory tests [65], [66]. One of those concepts which serves this purpose, and one with special resonance in anorexia nervosa, is the concept of ‘insight’ (or rather the lack of insight) into one's condition.
The concept of insight is quite fraught in mental health law due to its imprecision [44], [70], reminiscent of the fluidity associated with the 1958 law in NSW which left mental illness undefined. One very basic difficulty is in identifying the ‘object’ (the mental condition) in respect of which the person may or may not have adequate insight; an answer which may alter depending on how the condition itself is characterized [71]. Another difficulty is that any clinical correlates of insight have been found to be poorly delineated [72]. As might be expected, insight into one's illness appears in part to be a product of access to ‘normalising’ social interactions and supports for the patient [73], so social context looms large. The concept of an over-valued idea is also problematic, as we have already seen.
Because mental health laws condition admission on the absence of a ‘less restrictive’ or alternative course of action [48], patient ‘insight’ (and their capacity to cooperate with outpatient or community care) is central to many tribunal deliberations in cases of anorexia. In Victoria this is reinforced by an express requirement to show that the person is unable to ‘consent’ to their treatment. So legally mandated involuntary detention for treatment, or involuntary naso-gastric intubation, tends to account only for small slices of the total life-course of anorexia, even in chronic or complex cases [74].
Capacity to consent, for its part, is best considered as something wider than the purely rational, or ‘perfect’ cognitive consent [46]. The wider view encompasses levels of risk and benefit to individuals, concepts of exploitation of the person and questions of cultural expectations [75]. Or as Pedroni terms it, a ‘socio-legal’ sense of consent is one where: Informed consent in the socio-legal sense of the term refers to practices and conventions that make it socially or legally acceptable to use a person as a research subject, and includes the rules, regulations, and cultural and professional practices governing informed consent to research [76].
The Victorian Mental Health Review Board endorses this wider or contextual view, posing the test as one of being able to understand the ‘broad nature and effect of the treatment for which consent is sought’ [Re SF 1989: 145]. In practice, a high threshold of required competence is set before the Board accepts that the case for involuntary committal has not been made out by the applicant physician. So evidence that the patient denies suffering from an eating disorder, or is ambivalent about its acceptance, will lead to findings of lack of capacity to consent [Re ET 2001: 6]. (In Re ET the Board placed weight on the inappropriateness of an explanation given in evidence about the most recent episode of weight loss where ‘ET said that she may not have been eating properly because they [she and her partner] forgot to take food away on a camping trip’ [Reasons p. 6]). Thus in Re EC (2001) the Board wrote: When asked directly if she thought she had an eating disorder she responded initially by saying ‘even if I did’, which does not indicate that she had an eating disorder. In addition EC clearly expressed the belief that her current body weight of 42 kilograms and a body mass index of 17.2 were satisfactory despite clear medical evidence to the contrary… [coupled with a history of hospital admissions, this] indicates that EC… did not have a sufficient understanding of her mental illness and the need for its treatment for the Board to be satisfied that she was able to give informed consent (Reasons p. 7). (In the opinion of the present authors, having a BMI of 17.2, although being suboptimal, would not pose sufficient threat to a patient's health to justify involuntary treatment [1].)
Similarly, where the acceptance of the diagnosis is either recent or is ‘limited’ in its effect [Re DM 2002: 11]. While ‘full or complete’ insight is said not to be the test, the Board went on to say that: [D]espite her statements before the Board, DM had not yet demonstrated that her insight was sufficient, in that she has not demonstrated a willingness or capacity to abide by the advice of her treating team (p. 12).
Likewise acceptance of her diagnosis of anorexia nervosa did not lead to discharge of the legal orders for a 19-year-old patient with a weight of 35.7 kg and a BMI of 13.5 in Re KJ (2001: 8), because the Board found that she ‘did not demonstrate an understanding of the seriousness of her illness and how seriously low her body weight is. For example, she clearly said that she was happy with the way she looked and did not feel too thin…’ A more co-operative patient whose weight had risen to 48 kg before plateauing below the clinic's goal of 50 kg was found to be capable of consenting and was discharged in Re EF (1996: 351). And a stabilized, more co-operative and insightful patient was discharged in Re MR#2 (2000: 5), having earlier failed to win release when less insightful [Re MR#1 2000].
So a more contextualized reading of consent and capacity appears to characterize the work of the mental health tribunals in their dealings with anorexia nervosa.
Conclusion
This paper has demonstrated that psychiatric terminology is quite fluid and flexible. This is a feature which advances the goal of providing responsive care and support to patient needs. Driven by the imperative to secure basic liberties and civil rights of citizens, legal terminology instead favours technical precision and fine distinctions.
In mental health law, these two cultures intersect. Anorexia nervosa has been shown to be a classic case where the tension between preservation of liberty of the patient and the imperative to treat a severe illness becomes quite acute. We have demonstrated a fundamental incompatibility between these two dialogues at the formal or ‘definitional’ level. Court interpretations, on the rare occasions that the judiciary become involved, therefore often create understandable angst for psychiatry.
In practice however, mental health admissions and tribunal reviews of clinical decisions about involuntary admission do adopt the more capacious and fluid terminology favoured by the practice of psychiatry. Occasionally, the tension reappears, as clinicians are confronted by mental health advocates (or tribunal members) who seek to (re)assert the legal paradigm. But this is a rare (if excoriating) experience. Mental health law generally, and the case of anorexia nervosa in particular, is rarely characterized by subjugation or rejection of the conclusions and reasoning of clinical psychiatry. Committals are rarely reversed by the tribunals and clinicians rarely fail to obtain the orders they seek.
The therapeutic goals of psychiatry, with its fluid terminology, generally win out over the ‘rights-protecting precision’ expected of the law with its focus on ensuring that involuntary detention is clearly and accurately justified, even if clinicians understandably perceive it to be otherwise, based on gruelling experiences before an individual tribunal.
Footnotes
Acknowledgements
This paper is part of a larger study, funded over three years by the Australian Research Council Discovery Grants scheme, titled Involuntary Treatment of Severely Ill Anorexia Nervosa Patients: A role for law in therapy? The other members of the multidisciplinary study team are David Tait of the University of Canberra and Stephen Touyz, Professor of Clinical Psychology, University of Sydney.
Re DM 2002. Re DM. Unreported Statement of Reasons of the Victorian Mental Health Review Board, 22 February 2002 (Newby & Wood, McSherry dissenting).
Re EC 2001. Re EC. Unreported Statement of Reasons of the Victorian Mental Health Review Board, 17 July 2001 (Meadows, Newby & Gidley).
Re EC 2001. Re EC. Unreported Statement of Reasons of the Victorian Mental Health Review Board, 5 June 2001 (Hopkins, Mead & Lush).
Re EF 1996. In the review of EF an Involuntary Patient at Royal Melbourne Hospital (1996) 2 MHRBD (Vic) 346.
Re ET 2001. Re ET. Unreported Statement of Reasons of the Victorian Mental Health Review Board, 29 November 2001 (O'Shea, Healy & Hall).
Re KJ 2001. Re KJ. Unreported Statement of Reasons of the Victorian Mental Health Review Board, 14 August 2001 (Meadows, Gallois & Gidley).
Re MR#12000. Re MR#1. Unreported Statement of Reasons of the Victorian Mental Health Review Board, 16 May 2000 (Lush, Fowler & Barlow).
Re MR#22000. Re MR#2. Unreported Statement of Reasons of the Victorian Mental Health Review Board, 18 July 2000 (Hopkins, McShane & Mellsop).
Re SF 1989. In the appeal of SF an Involuntary Patient at Royal Park Hospital (1987–1991) Decisions of the Mental Health Review Board Victoria, 137 (12 January 1989, Rees, Barlow & McConnell).