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Compulsion and freedom in community mental healthcare
Compulsion and freedom
Compulsion and freedom in community mental healthcare
The move to community care Over recent decades, there have been substantial changes both in the nature and delivery of mental healthcare.1 Thousands of people have been resettled from hospitals into the community, with large reductions in bed provision. In parallel, resources for community care have expanded steadily. The formation of assertive outreach, crisis and home treatment, and early intervention teams for specific patient groups has enabled people with significant levels of psychological distress and psychopathology to be managed in the community rather than in hospital. There is general consensus that these changes have been in the best interests of those with mental health problems and their families. Modernized services, such as assertive outreach, have significantly improved levels of user satisfaction compared with traditional services.2
Kathleen A Sheehan Andrew Molodynski
Abstract In recent decades, there have been changes in the nature and delivery of mental healthcare, with the majority of patients now being cared for in the community. New legislation, currently being enacted in England and Wales, will give clinicians the power to compel patients to comply with community treatment. These changes in law and service delivery have led to debate about the extent to which treatment pressures should be used to limit patients’ freedom in the community. This contribution outlines recent changes in mental health services and describes how different pressures are used in clinical practice to impose treatment in the community. It summarizes current legislation allowing for compulsory community treatment, provides an overview of new amendments to mental health laws in England and Wales, and explores why balancing compulsion and freedom in the community is such a contested issue.
Balancing freedom and compulsion in the community While community care is viewed as preferable to inpatient treatment, there are continuing concerns about the conditions in which some people with severe mental health problems live and the adequacy of the care they receive.3 Public perceptions of the risk posed by those with mental health problems in the community have increased, although data indicate that there has been no change in aggression by these individuals over time.4 The sociopolitical situation, fuelled by high-profile tragedies, seems to be one of steadily increasing risk aversion and a tendency to attribute such events to failures in care systems. Achieving balance between compulsion and freedom has never been felt as keenly by patients, families, mental health professionals, politicians and the public at large. Some of the most vexing questions and hotly debated issues for those involved in community mental healthcare are when and how to apply pressure to ensure that patients accept treatment, and in what circumstances this is morally and ethically justifiable. The arrival of powers to compel treatment in the community adds a new dimension to this debate, which already often causes divergence of opinion among stakeholder groups and within service delivery teams.
Keywords coercion; community mental healthcare; community psychiatry; community treatment orders; compulsion; involuntary outpatient treatment; supervised community treatment; treatment pressures
The use of compulsion has long been a controversial issue in mental healthcare. The debate over its use has focused primarily on whether patients should be hospitalized against their will. However, as the primary locus of treatment for mental illness has shifted to the community, this debate has also been extended to include those receiving care outside of the hospital. With this change has come a host of clinical, legal and ethical issues to be resolved. This contribution outlines changes in mental healthcare service delivery and provides an overview of how different pressures are used in clinical practice to impose treatment in the community. It also summarizes current legislation allowing for compulsory community treatment and explores why balancing compulsion and freedom in the community is such a contested issue.
Treatment pressures in community psychiatry Traditionally, debates about the use of pressure in psychiatry have focused on the legal mechanisms that allow a patient to be admitted involuntarily to hospital for assessment or treatment. There has recently been recognition that compulsion is only one of many tools used to mandate adherence with care and a number of treatment pressures used in community psychiatry have been identified.5 As shown in Figure 1, these can be conceptualized as a hierarchy ranging from persuasion – the least restrictive and coercive – to compulsion, which tends to be used when all other attempts at gaining consent for treatment have failed. The case study below attempts to illustrate how these treatment pressures may be used in clinical practice.
Kathleen A Sheehan BSc MSc is a doctoral candidate in the Department of Psychiatry, University of Oxford, UK. She received her BSc and MSc from the University of St Andrews and the University of Oxford, respectively. Her research interests include perceived coercion in psychiatric care, mental health policy and ethics. Conflicts of interest: none declared. Andrew Molodynski MBChB MRCPsych is a Consultant in Community Psychiatry at the Warneford Hospital, Oxford, Uk. His interests include the care of those with severe and enduring mental illnesses in a community setting and ways of optimizing outcomes for this group. Conflicts of interest: none declared.
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Case study: Richard Richard is a 34-year-old man with a well established diagnosis of schizophrenia. He has had a number of admissions to hospital 393
© 2007 Elsevier Ltd. All rights reserved.
Compulsion and freedom
Inducement: an art exhibition for those involved with mental health services to show their work is coming up. Richard is a keen graphic artist and would love to be involved. Danny suggests that he could liaise with various people to arrange this. However, he suggests that he would not be able to do so if Richard was not receiving treatment, as he might become ill and therefore could not be relied upon. This is an attempt to exert influence by the promise of extra incentive, with no change to Richard’s standard care.
Hierarchy of treatment pressures5 Persuasion • Clinician sets out benefits of a particular course of treatment • Provides information and answers concerns and questions • Patient is free to either accept or reject the advice about the treatment
Leverage • Clinician can use personal relationship with patient to influence decision-making process • Additional pressure can be placed on patient by expressing approval of one course of action and disapproval of another
Threat: unfortunately, Richard is still not taking medication despite Danny’s efforts. Danny speaks to Richard, who needs a bus pass to visit friends and family, and suggests that he will only be able to help if he takes medication. This is a threat, as it suggests the lack of provision of something to which Richard is entitled. Another example of threat would be saying that a person will be admitted to hospital if they do not take medication or comply with follow up arrangements.
Inducement • Clinician may suggest that patient will receive additional support of services if they agree to participate in the suggested course of treatment
Compulsion: all attempts to engage Richard in treatment fail and he begins to deteriorate. An MHA assessment is called and he is admitted to his local psychiatric hospital under the MHA.
Threat • Clinician may suggest that services and support will be withdrawn if patient does not comply with treatment • Clinician may also mention that use of the Mental Health Act (MHA) will be considered if the patient does not comply with treatment
The law and compulsion in the community Current legislation Several sections of the Mental Health Act 1983 for England and Wales have provisions that allow for patients to be compelled to adhere to different aspects of care in the community (see Table 1). However, patients cannot currently be required to adhere to medication in the community. Legally mandating adherence to treatment in the community, through the use of community treatment orders (CTO) or involuntary outpatient treatment (IOT) (terminology varies among jurisdictions), has been recognized as one of the ‘most contested issues in mental health law’ worldwide.6 Under Section 7 (guardianship), patients can be required to live in a particular place, attend appointments and allow service providers access to their home. Guardianship is often used for those who have cognitive impairment due to dementia or learning disability.7 Section 25a allows for patients to be placed on a supervised discharge order (SDO) following detention in hospital. Patients on SDOs are subject to similar requirements as those who are under guardianship orders. SDOs were introduced through an amendment to the MHA in 1996 and were intended to increase clinicians’ power to convey patients to hospital if they did not comply with community care. However, in practice, SDOs are used relatively infrequently and variably across jurisdictions. Section 41 can be used when patients have been ordered to hospital through the criminal justice system and are used primarily by forensic services. Those subject to restriction orders can be required to comply with certain conditions in the community, following their discharge from hospital, to protect the public from harm. Section 17 allows for patients who are detained under the MHA to be granted leave from the hospital for a specified period of time. They can be required to comply with certain conditions during their leave and it can be revoked at any time. Section 17 is the most commonly used provision for compelling community care.
Compulsion • Clinician will compel the patient to take treatment against his or her will by legally requiring him or her to adhere to treatment, either in the community or hospital, by using provisions of the MHA Figure 1
under the Mental Health Act (MHA) due to poor compliance with medication and illicit drug use. He lives alone and is unable to care safely for himself when unwell, losing weight and neglecting personal hygiene. On several occasions he has hit neighbours when he was unwell. Richard has been out of hospital for nearly a year and, despite having a strong relationship with his assertive outreach worker, has stopped taking his oral medication. The team has discussed Richard’s situation and the steps that could be taken to encourage him to participate in treatment. Persuasion: Danny, Richard’s assertive outreach worker, begins by trying to talk to him about what has happened in the past in similar situations, how he has responded to medication, and the concerns of his team and family. In response to Richard’s objections, he provides information and straightforward advice. Leverage: Richard is unconvinced after attempts at persuasion, so Danny tries to appeal to Richard in the context of their longterm relationship. He indicates that he is sad and disappointed that Richard will become ill again and says that there is little use in trying to work together if he refuses to participate in treatment. This is an attempt to utilize the therapeutic relationship to exert pressure; such attempts often rely on feelings of dependency in the patient.
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Compulsion and freedom
Provisions in the current MHA to allow for compulsion in the community Section
Provision
Requirements
7
• Allows for guardianship in the community • Guardian can require an individual with a mental disorder to: live at a particular place; attend medical appointments, employment, education and training; give access to a doctor, ASW or other approved person (consenting to treatment cannot be required) • Up to 6 months in the first instance • Renewal for a period of 6 months and then periods of 1 year
• Application by ASW, NR or court to local social services authority • Must be based on medical recommendations from two doctors
17
• Leave from hospital for those detained in hospital under an MHA section • Can be: for fixed or indefinite period; subject to specific conditions; in custody of hospital staff; and revoked at any time • Can be exended by further leave, even in the patient’s absence
• Can be granted by the RMO
25
• Those discharged from hospital following MHA detention can be subject to certain requirements • Can require a patient to: live in a certain place; attend medical appointments, employment, education and training; give access to the supervisor specified in the application, any doctor, any ASW, any other person approved by the supervisor (consenting to treatment cannot be required) • Up to 6 months in the first instance, then renewable for a period of 6 months and then periods of 1 year
• Applications can be made by the RMO to the health authority which has responsibility for the patient following discharge from hospital • Must be based on two recommendations; one from the doctor responsible for the patient’s care in the community (CRMO) and one from an ASW
41
• Patients convicted of an imprisonable offence can be detained in hospital for treatment instead of prison • Patients can be made subject to a restriction order if they are believed to pose a significant risk to the public at the time of disposal by the courts • Can be subject to specific conditions set by the Home Secretary or MH tribunal following discharge from hospital
• Application by Crown Court on evidence from two doctors • Patient must also be liable to detention and treatment under Section 37
ASW, approved social worker; (C)RMO (community) responsible medical officer; MHA, Mental Health Act 1983; NR, nearest relative; S, section.
Table 1
Data on new applications for guardianship and SDOs are collected by The Information Centre, an independent NHS Special Authority (www.ic.nhs.uk). In recent years, there has been relative stability in the levels of new applications (see Figure 2). However, as there is no national system for recording the use of Section 17 leave or the renewal of guardianship or SDOs, it is not possible to examine the trends in overall levels. Current legislation has limitations in actually enforcing compliance with care in the community. There are no powers to require patients to take medication and, in most cases, the only sanction available for failing to comply with the conditions is return to hospital for assessment. When other conditions are specified, enforcing these requires cooperation between patients and service providers. These provisions tend only to be effective when they are applied to patients who already respect the authority of health and social services.8
last decade. The government’s initial proposals for compulsory community treatment were viewed by many as an unjustified restriction of human rights and lobbying by an unprecedented alliance of interested parties resulted in several concessions and significant amendments being made. At the time of writing, the House of Commons has given final approval for amendments to the Mental Health Act, which now await Royal Assent. These will allow psychiatrists to place patients who have been compulsorily detained in hospital under the MHA on an SCT. These provisions will extend current compulsory community powers and require patients to comply with medication regimes, in addition to other conditions that may be specified by the care team, such as residence or attendance for treatment and assessment.9 A summary of the changes in legislation is shown in Table 2.
The controversy of compulsion in the community
Amendments to current legislation Proposals to increase compulsory powers in the community and introduce supervised treatment in the community orders (SCTs) have resulted in vigorous debate in England and Wales over the
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As previously mentioned, compulsion is the most restrictive and controversial treatment pressure used in the community. The main issue of contention is whether this restriction of 395
© 2007 Elsevier Ltd. All rights reserved.
Compulsion and freedom
acceptable, most believe that compulsion is necessary and justified under certain circumstances. Treatment decisions are usually made within the framework of the principles of biomedical ethics, where patients’ preferences and autonomy are considered as most important and tend to only be overruled if the patient lacks capacity or is considered a danger to others or themselves.10
New applications for guardianship and supervised discharge orders between 2000 and 2005 Guardianship
SDO
1000
Capacity: patients are generally required to provide informed consent during the treatment decision-making process. This process requires that the patient have capacity, defined as the ability to understand relevant information about the proposed treatment and to appreciate the possible consequences of their decision. Patients who have capacity can determine which decision is in their best interest, even if this leads to a negative outcome and even if this decision is not in agreement with the advice of their clinician. Although most individuals who suffer from mental illnesses have the capacity to make treatment decisions, the new Mental Health Act amendments allow for these patients to be compelled to accept treatment even when they refuse. It has been suggested that this will be challenged under UK and EU human rights legislation (see Table 3) after the amendments are passed into law.11 Many health professionals and legal experts have suggested that mental health legislation, and specifically CTO legislation, should include a capacity criterion.12 This is the case in many other jurisdictions that already have laws allowing for CTOs, including Scotland and some areas of Canada and Australia. However, capacity is not included in the new amendments as a consideration.
Number of cases
800
600
400
200
0
2000
2002
2004
2005
Year Data from The Information Centre (www.ic.nhs.uk)
Figure 2
ersonal liberty and freedom is justified, both ethically and p clinically. Ethical justification for compulsion While some opponents of compulsion argue that mandating an individual to adhere to treatment that they have refused is never
Excerpts from the European Convention on Human Rights that may be used to challenge amendments to the Mental Health Act
Summary of amendments to the Mental Health Act passed by the House of Commons for Royal Assent in July 20079
Article 3 Inhuman treatment 1 No one shall be subject to torture or to inhuman or degrading treatment
The amendments make several changes to the current Mental Health Act. These include: • new powers to place patients who have been detained in hospital on community treatment orders, which will mandate that patients comply with treatment • a requirement that patients can be detained only if appropriate treatment is available for their mental disorder or to treat its symptoms and manifestation • children and young people to receive treatment for a mental disorder in an environment that is suitable for their age and geared to meet their needs • statutory advocacy services will be introduced to support patients detained under the Mental Health Act • new rights for victims of violent and sexual crimes committed by mentally disordered offenders • reforming two incompatibilities between mental health and human rights legislation; one in relation to the arrangements for nearest relatives under the Mental Health Act and the other in relation to safeguards for people deprived of their liberty in their best interests who do not meet the criteria for treatment and safeguards under the Mental Health Act
Article 5 Right to liberty 1 No one shall be deprived of his liberty save in the following cases … a the lawful detention of a person after conviction by a competent court b the lawful detention of persons for the prevention of the spread of infectious diseases, of persons of unsound mind, alcoholics or drug addicts, or vagrants 2 Everyone… shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily and his release ordered if the detention is not lawful Article 8 Right to privacy 1 Everyone has the right to respect for his private and family life, his home, and his correspondence… except such as is necessary for the protection of health or for the protection of the rights and freedoms of others
Table 2
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Table 3
396
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Compulsion and freedom
Dangerousness: current mental health legislation allows patients to be compulsorily treated if they are considered a danger to themselves or others and if they suffer from a treatable mental disorder (the ‘treatability’ criterion). Following several highprofile cases of violence by people suffering from mental illness, the government stated that ‘concerns of risk [would] always take precedence’ in mental health law reform and that they would extend legislation to allow for the detention of those with ‘dangerous and severe personality disorders’ (DSPD), even though they did not meet the current treatability criterion.13 It was believed that, if enacted, legislation to this effect would result in individuals with DSPD being subject to preventative detention and incarceration even when they had not committed a crime. Following outcry from an alliance of stakeholder groups and several defeats in the House of Lords, the government modified their proposed legislation. The amendments awaiting Royal Assent allow for compulsory detention only if appropriate treatment is available for the individual’s mental disorder or its symptoms. Many have questioned how this change in the treatability criterion will alter clinical practice.
In nearly all jurisdictions, the introduction of laws allowing for mandatory community treatment has been controversial. Some view compulsion in the community as the provision of treatment in the ‘least restrictive environment’, while others believe that it is an unjustified restriction on autonomy and may push patients away from mental health services. However, in most areas, the debates over whether the legal changes are ethical tend to be short lived and the use of compulsion is quickly incorporated in clinical practice. As these new laws are enacted, clinicians should remember that compulsion is just one of several treatment pressures used to improve adherence in the community. The possible benefits and risk should be considered for each patient to ensure that an ethically appropriate level of pressure is used in their specific case. While the use of compulsion is ubiquitous in psychiatry, empirical research in this area is limited. There is no conclusive evidence showing the benefit or harm of compulsory community treatment. Further research is required to determine why patients fail to comply with treatment in the community and the mechanisms by which interventions may target this non-adherence. In examining the effect of compulsory community treatment on clinical outcomes (e.g. hospital readmission and symptomatology), it will also be necessary to determine which specific patient populations benefit most from these orders and how they respond to being placed under compulsion in the community. ◆
Clinical justification for compulsion Generally, concerns about whether treatments are ethically justified are offset by evidence of the effectiveness of the treatment. In these situations, restrictions on autonomy and liberty are viewed as acceptable because the treatment provides some level of therapeutic benefit. The results of empirical studies investigating compulsory community treatment, however, have been mixed.
References 1 Burns T. Community mental health teams: a guide to current practices. Oxford: Oxford University Press, 2004. 2 Marshall M, Lockwood A. Assertive community treatment for people with severe mental disorders. Cochrane Database Syst Rev 2000; (2): CD001089. 3 Rose N. Governing risky individuals: the role of psychiatry in new regimes of control. Psychiatry Psychol Law 1998; 5: 177–95. 4 Taylor PJ, Gunn J. Homicides by people with mental illness: myth and reality. Br J Psychiatry 1999; 174: 9–14. 5 Szmukler G, Appelbaum PS. Treatment pressures, coercion and compulsion. In: Thornicroft G, Szmuckler G, eds. Textbook of community psychiatry. Oxford: Oxford University Press, 2001. 6 Monahan J, Bonnie RJ, Appelbaum PS, Hyde PS, Steadman HJ, Swartz MS. Mandated community treatment: beyond outpatient commitment. Psychiatr Serv 2001; 52: 1198–205. 7 Ford R, Durcan G, Warner L, Hardy P, Muijen M. One day survey by the Mental Health Act Commission of acute adult psychiatric inpatient wards in England and Wales. Br Med J 1998; 317: 1279–83. 8 Pinfold V, Bindman J, Thornicroft G, Franklin D, Hatfield B. Persuading the persuadable: evaluating compulsory treatment in England using Supervised Discharge Orders. Soc Psychiatry Psychiatr Epidemiol 2001; 36: 260–66. 9 Department of Health. Government welcomes passing of Mental Health Bill as vital to community care, 5 Jul 2007. Report No.: 2007/0191. 10 Beauchamp T, Childress J. Principles of biomedical ethics, 5th edn. Oxford: Oxford University Press, 2001. 11 Lakhani N. Protests grow over Mental Health Bill. The Independent 8 Jul 2007. 12 Churchill R. International experiences of using community treatment orders. London: Institute of Psychiatry, 2007.
Reviews of CTOs and compulsory community treatment There have been several reviews of the international literature on compulsory community treatment.12,14 These have included many different types of studies investigating this form of treatment. Data from naturalistic, observational and qualitative studies have consistently indicated that CTOs are viewed as beneficial by clinicians, families and patients; however, investigations of CTOs using experimental methods have demonstrated that they have no significant effect on rates of hospital readmission, length of hospital stay, medication compliance or patients’ quality of life. The quality of empirical studies of compulsion in the community has been criticized and conceptual and methodological limitations have been noted. Only two randomized controlled trials (RCTs) have been conducted to date, both in the USA.15,16 Swartz et al. suggested that compulsory community treatment may be effective when it is sustained over a long period of time and includes intensive treatment.16 This has led some to suggest that legal compulsion may not be required if sufficient resources were allocated to mental health services. However, this finding has been questioned and other studies have shown that even when high quality services are provided, rates of compulsion are not reduced.17,18
Conclusion With the passing of a new Mental Health Act in England and Wales, community mental health services have increased powers to compel patients to accept treatment outside of the hospital. This shift in mental health legislation is not limited to the UK but can be found in many countries around the world.
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16 Swartz MS, Swanson JW, Hiday VA, Wagner HR, Burns BJ, Borum R. A randomized controlled trial of outpatient commitment in North Carolina. Psychiatr Serv 2001; 52: 325–29. 17 Szmukler G, Hotopf M. Effectiveness of involuntary outpatient commitment. Am J Psychiatry 2001; 158: 653–54. 18 Priebe S, Fakhoury W, Watts J, et al. Assertive outreach teams in London: patient characteristics and outcomes. Pan-London Assertive Outreach Study, part 3. Br J Psychiatry 2003; 183: 148–54.
13 Joint Home Office and Department of Health Working Group. Managing dangerous people with personality disorders. London: HMSO, 1999. 14 Kisely S, Campbell LA, Preston N. Compulsory community and involuntary outpatient treatment for people with severe mental disorders. Cochrane Database Syst Rev 2005; 3: CD004408. 15 Steadman HJ, Gounis K, Dennis D, et al. Assessing the New York City involuntary outpatient commitment pilot program. Psychiatr Serv 2001; 52: 330–36.
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© 2007 Elsevier Ltd. All rights reserved.
Compulsion and freedom in community mental healthcare
The move to community care Over recent decades, there have been substantial changes both in the nature and delivery of mental healthcare.1 Thousands of people have been resettled from hospitals into the community, with large reductions in bed provision. In parallel, resources for community care have expanded steadily. The formation of assertive outreach, crisis and home treatment, and early intervention teams for specific patient groups has enabled people with significant levels of psychological distress and psychopathology to be managed in the community rather than in hospital. There is general consensus that these changes have been in the best interests of those with mental health problems and their families. Modernized services, such as assertive outreach, have significantly improved levels of user satisfaction compared with traditional services.2
Kathleen A Sheehan Andrew Molodynski
Abstract In recent decades, there have been changes in the nature and delivery of mental healthcare, with the majority of patients now being cared for in the community. New legislation, currently being enacted in England and Wales, will give clinicians the power to compel patients to comply with community treatment. These changes in law and service delivery have led to debate about the extent to which treatment pressures should be used to limit patients’ freedom in the community. This contribution outlines recent changes in mental health services and describes how different pressures are used in clinical practice to impose treatment in the community. It summarizes current legislation allowing for compulsory community treatment, provides an overview of new amendments to mental health laws in England and Wales, and explores why balancing compulsion and freedom in the community is such a contested issue.
Balancing freedom and compulsion in the community While community care is viewed as preferable to inpatient treatment, there are continuing concerns about the conditions in which some people with severe mental health problems live and the adequacy of the care they receive.3 Public perceptions of the risk posed by those with mental health problems in the community have increased, although data indicate that there has been no change in aggression by these individuals over time.4 The sociopolitical situation, fuelled by high-profile tragedies, seems to be one of steadily increasing risk aversion and a tendency to attribute such events to failures in care systems. Achieving balance between compulsion and freedom has never been felt as keenly by patients, families, mental health professionals, politicians and the public at large. Some of the most vexing questions and hotly debated issues for those involved in community mental healthcare are when and how to apply pressure to ensure that patients accept treatment, and in what circumstances this is morally and ethically justifiable. The arrival of powers to compel treatment in the community adds a new dimension to this debate, which already often causes divergence of opinion among stakeholder groups and within service delivery teams.
Keywords coercion; community mental healthcare; community psychiatry; community treatment orders; compulsion; involuntary outpatient treatment; supervised community treatment; treatment pressures
The use of compulsion has long been a controversial issue in mental healthcare. The debate over its use has focused primarily on whether patients should be hospitalized against their will. However, as the primary locus of treatment for mental illness has shifted to the community, this debate has also been extended to include those receiving care outside of the hospital. With this change has come a host of clinical, legal and ethical issues to be resolved. This contribution outlines changes in mental healthcare service delivery and provides an overview of how different pressures are used in clinical practice to impose treatment in the community. It also summarizes current legislation allowing for compulsory community treatment and explores why balancing compulsion and freedom in the community is such a contested issue.
Treatment pressures in community psychiatry Traditionally, debates about the use of pressure in psychiatry have focused on the legal mechanisms that allow a patient to be admitted involuntarily to hospital for assessment or treatment. There has recently been recognition that compulsion is only one of many tools used to mandate adherence with care and a number of treatment pressures used in community psychiatry have been identified.5 As shown in Figure 1, these can be conceptualized as a hierarchy ranging from persuasion – the least restrictive and coercive – to compulsion, which tends to be used when all other attempts at gaining consent for treatment have failed. The case study below attempts to illustrate how these treatment pressures may be used in clinical practice.
Kathleen A Sheehan BSc MSc is a doctoral candidate in the Department of Psychiatry, University of Oxford, UK. She received her BSc and MSc from the University of St Andrews and the University of Oxford, respectively. Her research interests include perceived coercion in psychiatric care, mental health policy and ethics. Conflicts of interest: none declared. Andrew Molodynski MBChB MRCPsych is a Consultant in Community Psychiatry at the Warneford Hospital, Oxford, Uk. His interests include the care of those with severe and enduring mental illnesses in a community setting and ways of optimizing outcomes for this group. Conflicts of interest: none declared.
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Case study: Richard Richard is a 34-year-old man with a well established diagnosis of schizophrenia. He has had a number of admissions to hospital 393
© 2007 Elsevier Ltd. All rights reserved.
Compulsion and freedom
Inducement: an art exhibition for those involved with mental health services to show their work is coming up. Richard is a keen graphic artist and would love to be involved. Danny suggests that he could liaise with various people to arrange this. However, he suggests that he would not be able to do so if Richard was not receiving treatment, as he might become ill and therefore could not be relied upon. This is an attempt to exert influence by the promise of extra incentive, with no change to Richard’s standard care.
Hierarchy of treatment pressures5 Persuasion • Clinician sets out benefits of a particular course of treatment • Provides information and answers concerns and questions • Patient is free to either accept or reject the advice about the treatment
Leverage • Clinician can use personal relationship with patient to influence decision-making process • Additional pressure can be placed on patient by expressing approval of one course of action and disapproval of another
Threat: unfortunately, Richard is still not taking medication despite Danny’s efforts. Danny speaks to Richard, who needs a bus pass to visit friends and family, and suggests that he will only be able to help if he takes medication. This is a threat, as it suggests the lack of provision of something to which Richard is entitled. Another example of threat would be saying that a person will be admitted to hospital if they do not take medication or comply with follow up arrangements.
Inducement • Clinician may suggest that patient will receive additional support of services if they agree to participate in the suggested course of treatment
Compulsion: all attempts to engage Richard in treatment fail and he begins to deteriorate. An MHA assessment is called and he is admitted to his local psychiatric hospital under the MHA.
Threat • Clinician may suggest that services and support will be withdrawn if patient does not comply with treatment • Clinician may also mention that use of the Mental Health Act (MHA) will be considered if the patient does not comply with treatment
The law and compulsion in the community Current legislation Several sections of the Mental Health Act 1983 for England and Wales have provisions that allow for patients to be compelled to adhere to different aspects of care in the community (see Table 1). However, patients cannot currently be required to adhere to medication in the community. Legally mandating adherence to treatment in the community, through the use of community treatment orders (CTO) or involuntary outpatient treatment (IOT) (terminology varies among jurisdictions), has been recognized as one of the ‘most contested issues in mental health law’ worldwide.6 Under Section 7 (guardianship), patients can be required to live in a particular place, attend appointments and allow service providers access to their home. Guardianship is often used for those who have cognitive impairment due to dementia or learning disability.7 Section 25a allows for patients to be placed on a supervised discharge order (SDO) following detention in hospital. Patients on SDOs are subject to similar requirements as those who are under guardianship orders. SDOs were introduced through an amendment to the MHA in 1996 and were intended to increase clinicians’ power to convey patients to hospital if they did not comply with community care. However, in practice, SDOs are used relatively infrequently and variably across jurisdictions. Section 41 can be used when patients have been ordered to hospital through the criminal justice system and are used primarily by forensic services. Those subject to restriction orders can be required to comply with certain conditions in the community, following their discharge from hospital, to protect the public from harm. Section 17 allows for patients who are detained under the MHA to be granted leave from the hospital for a specified period of time. They can be required to comply with certain conditions during their leave and it can be revoked at any time. Section 17 is the most commonly used provision for compelling community care.
Compulsion • Clinician will compel the patient to take treatment against his or her will by legally requiring him or her to adhere to treatment, either in the community or hospital, by using provisions of the MHA Figure 1
under the Mental Health Act (MHA) due to poor compliance with medication and illicit drug use. He lives alone and is unable to care safely for himself when unwell, losing weight and neglecting personal hygiene. On several occasions he has hit neighbours when he was unwell. Richard has been out of hospital for nearly a year and, despite having a strong relationship with his assertive outreach worker, has stopped taking his oral medication. The team has discussed Richard’s situation and the steps that could be taken to encourage him to participate in treatment. Persuasion: Danny, Richard’s assertive outreach worker, begins by trying to talk to him about what has happened in the past in similar situations, how he has responded to medication, and the concerns of his team and family. In response to Richard’s objections, he provides information and straightforward advice. Leverage: Richard is unconvinced after attempts at persuasion, so Danny tries to appeal to Richard in the context of their longterm relationship. He indicates that he is sad and disappointed that Richard will become ill again and says that there is little use in trying to work together if he refuses to participate in treatment. This is an attempt to utilize the therapeutic relationship to exert pressure; such attempts often rely on feelings of dependency in the patient.
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Compulsion and freedom
Provisions in the current MHA to allow for compulsion in the community Section
Provision
Requirements
7
• Allows for guardianship in the community • Guardian can require an individual with a mental disorder to: live at a particular place; attend medical appointments, employment, education and training; give access to a doctor, ASW or other approved person (consenting to treatment cannot be required) • Up to 6 months in the first instance • Renewal for a period of 6 months and then periods of 1 year
• Application by ASW, NR or court to local social services authority • Must be based on medical recommendations from two doctors
17
• Leave from hospital for those detained in hospital under an MHA section • Can be: for fixed or indefinite period; subject to specific conditions; in custody of hospital staff; and revoked at any time • Can be exended by further leave, even in the patient’s absence
• Can be granted by the RMO
25
• Those discharged from hospital following MHA detention can be subject to certain requirements • Can require a patient to: live in a certain place; attend medical appointments, employment, education and training; give access to the supervisor specified in the application, any doctor, any ASW, any other person approved by the supervisor (consenting to treatment cannot be required) • Up to 6 months in the first instance, then renewable for a period of 6 months and then periods of 1 year
• Applications can be made by the RMO to the health authority which has responsibility for the patient following discharge from hospital • Must be based on two recommendations; one from the doctor responsible for the patient’s care in the community (CRMO) and one from an ASW
41
• Patients convicted of an imprisonable offence can be detained in hospital for treatment instead of prison • Patients can be made subject to a restriction order if they are believed to pose a significant risk to the public at the time of disposal by the courts • Can be subject to specific conditions set by the Home Secretary or MH tribunal following discharge from hospital
• Application by Crown Court on evidence from two doctors • Patient must also be liable to detention and treatment under Section 37
ASW, approved social worker; (C)RMO (community) responsible medical officer; MHA, Mental Health Act 1983; NR, nearest relative; S, section.
Table 1
Data on new applications for guardianship and SDOs are collected by The Information Centre, an independent NHS Special Authority (www.ic.nhs.uk). In recent years, there has been relative stability in the levels of new applications (see Figure 2). However, as there is no national system for recording the use of Section 17 leave or the renewal of guardianship or SDOs, it is not possible to examine the trends in overall levels. Current legislation has limitations in actually enforcing compliance with care in the community. There are no powers to require patients to take medication and, in most cases, the only sanction available for failing to comply with the conditions is return to hospital for assessment. When other conditions are specified, enforcing these requires cooperation between patients and service providers. These provisions tend only to be effective when they are applied to patients who already respect the authority of health and social services.8
last decade. The government’s initial proposals for compulsory community treatment were viewed by many as an unjustified restriction of human rights and lobbying by an unprecedented alliance of interested parties resulted in several concessions and significant amendments being made. At the time of writing, the House of Commons has given final approval for amendments to the Mental Health Act, which now await Royal Assent. These will allow psychiatrists to place patients who have been compulsorily detained in hospital under the MHA on an SCT. These provisions will extend current compulsory community powers and require patients to comply with medication regimes, in addition to other conditions that may be specified by the care team, such as residence or attendance for treatment and assessment.9 A summary of the changes in legislation is shown in Table 2.
The controversy of compulsion in the community
Amendments to current legislation Proposals to increase compulsory powers in the community and introduce supervised treatment in the community orders (SCTs) have resulted in vigorous debate in England and Wales over the
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As previously mentioned, compulsion is the most restrictive and controversial treatment pressure used in the community. The main issue of contention is whether this restriction of 395
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Compulsion and freedom
acceptable, most believe that compulsion is necessary and justified under certain circumstances. Treatment decisions are usually made within the framework of the principles of biomedical ethics, where patients’ preferences and autonomy are considered as most important and tend to only be overruled if the patient lacks capacity or is considered a danger to others or themselves.10
New applications for guardianship and supervised discharge orders between 2000 and 2005 Guardianship
SDO
1000
Capacity: patients are generally required to provide informed consent during the treatment decision-making process. This process requires that the patient have capacity, defined as the ability to understand relevant information about the proposed treatment and to appreciate the possible consequences of their decision. Patients who have capacity can determine which decision is in their best interest, even if this leads to a negative outcome and even if this decision is not in agreement with the advice of their clinician. Although most individuals who suffer from mental illnesses have the capacity to make treatment decisions, the new Mental Health Act amendments allow for these patients to be compelled to accept treatment even when they refuse. It has been suggested that this will be challenged under UK and EU human rights legislation (see Table 3) after the amendments are passed into law.11 Many health professionals and legal experts have suggested that mental health legislation, and specifically CTO legislation, should include a capacity criterion.12 This is the case in many other jurisdictions that already have laws allowing for CTOs, including Scotland and some areas of Canada and Australia. However, capacity is not included in the new amendments as a consideration.
Number of cases
800
600
400
200
0
2000
2002
2004
2005
Year Data from The Information Centre (www.ic.nhs.uk)
Figure 2
ersonal liberty and freedom is justified, both ethically and p clinically. Ethical justification for compulsion While some opponents of compulsion argue that mandating an individual to adhere to treatment that they have refused is never
Excerpts from the European Convention on Human Rights that may be used to challenge amendments to the Mental Health Act
Summary of amendments to the Mental Health Act passed by the House of Commons for Royal Assent in July 20079
Article 3 Inhuman treatment 1 No one shall be subject to torture or to inhuman or degrading treatment
The amendments make several changes to the current Mental Health Act. These include: • new powers to place patients who have been detained in hospital on community treatment orders, which will mandate that patients comply with treatment • a requirement that patients can be detained only if appropriate treatment is available for their mental disorder or to treat its symptoms and manifestation • children and young people to receive treatment for a mental disorder in an environment that is suitable for their age and geared to meet their needs • statutory advocacy services will be introduced to support patients detained under the Mental Health Act • new rights for victims of violent and sexual crimes committed by mentally disordered offenders • reforming two incompatibilities between mental health and human rights legislation; one in relation to the arrangements for nearest relatives under the Mental Health Act and the other in relation to safeguards for people deprived of their liberty in their best interests who do not meet the criteria for treatment and safeguards under the Mental Health Act
Article 5 Right to liberty 1 No one shall be deprived of his liberty save in the following cases … a the lawful detention of a person after conviction by a competent court b the lawful detention of persons for the prevention of the spread of infectious diseases, of persons of unsound mind, alcoholics or drug addicts, or vagrants 2 Everyone… shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily and his release ordered if the detention is not lawful Article 8 Right to privacy 1 Everyone has the right to respect for his private and family life, his home, and his correspondence… except such as is necessary for the protection of health or for the protection of the rights and freedoms of others
Table 2
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Table 3
396
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Compulsion and freedom
Dangerousness: current mental health legislation allows patients to be compulsorily treated if they are considered a danger to themselves or others and if they suffer from a treatable mental disorder (the ‘treatability’ criterion). Following several highprofile cases of violence by people suffering from mental illness, the government stated that ‘concerns of risk [would] always take precedence’ in mental health law reform and that they would extend legislation to allow for the detention of those with ‘dangerous and severe personality disorders’ (DSPD), even though they did not meet the current treatability criterion.13 It was believed that, if enacted, legislation to this effect would result in individuals with DSPD being subject to preventative detention and incarceration even when they had not committed a crime. Following outcry from an alliance of stakeholder groups and several defeats in the House of Lords, the government modified their proposed legislation. The amendments awaiting Royal Assent allow for compulsory detention only if appropriate treatment is available for the individual’s mental disorder or its symptoms. Many have questioned how this change in the treatability criterion will alter clinical practice.
In nearly all jurisdictions, the introduction of laws allowing for mandatory community treatment has been controversial. Some view compulsion in the community as the provision of treatment in the ‘least restrictive environment’, while others believe that it is an unjustified restriction on autonomy and may push patients away from mental health services. However, in most areas, the debates over whether the legal changes are ethical tend to be short lived and the use of compulsion is quickly incorporated in clinical practice. As these new laws are enacted, clinicians should remember that compulsion is just one of several treatment pressures used to improve adherence in the community. The possible benefits and risk should be considered for each patient to ensure that an ethically appropriate level of pressure is used in their specific case. While the use of compulsion is ubiquitous in psychiatry, empirical research in this area is limited. There is no conclusive evidence showing the benefit or harm of compulsory community treatment. Further research is required to determine why patients fail to comply with treatment in the community and the mechanisms by which interventions may target this non-adherence. In examining the effect of compulsory community treatment on clinical outcomes (e.g. hospital readmission and symptomatology), it will also be necessary to determine which specific patient populations benefit most from these orders and how they respond to being placed under compulsion in the community. ◆
Clinical justification for compulsion Generally, concerns about whether treatments are ethically justified are offset by evidence of the effectiveness of the treatment. In these situations, restrictions on autonomy and liberty are viewed as acceptable because the treatment provides some level of therapeutic benefit. The results of empirical studies investigating compulsory community treatment, however, have been mixed.
References 1 Burns T. Community mental health teams: a guide to current practices. Oxford: Oxford University Press, 2004. 2 Marshall M, Lockwood A. Assertive community treatment for people with severe mental disorders. Cochrane Database Syst Rev 2000; (2): CD001089. 3 Rose N. Governing risky individuals: the role of psychiatry in new regimes of control. Psychiatry Psychol Law 1998; 5: 177–95. 4 Taylor PJ, Gunn J. Homicides by people with mental illness: myth and reality. Br J Psychiatry 1999; 174: 9–14. 5 Szmukler G, Appelbaum PS. Treatment pressures, coercion and compulsion. In: Thornicroft G, Szmuckler G, eds. Textbook of community psychiatry. Oxford: Oxford University Press, 2001. 6 Monahan J, Bonnie RJ, Appelbaum PS, Hyde PS, Steadman HJ, Swartz MS. Mandated community treatment: beyond outpatient commitment. Psychiatr Serv 2001; 52: 1198–205. 7 Ford R, Durcan G, Warner L, Hardy P, Muijen M. One day survey by the Mental Health Act Commission of acute adult psychiatric inpatient wards in England and Wales. Br Med J 1998; 317: 1279–83. 8 Pinfold V, Bindman J, Thornicroft G, Franklin D, Hatfield B. Persuading the persuadable: evaluating compulsory treatment in England using Supervised Discharge Orders. Soc Psychiatry Psychiatr Epidemiol 2001; 36: 260–66. 9 Department of Health. Government welcomes passing of Mental Health Bill as vital to community care, 5 Jul 2007. Report No.: 2007/0191. 10 Beauchamp T, Childress J. Principles of biomedical ethics, 5th edn. Oxford: Oxford University Press, 2001. 11 Lakhani N. Protests grow over Mental Health Bill. The Independent 8 Jul 2007. 12 Churchill R. International experiences of using community treatment orders. London: Institute of Psychiatry, 2007.
Reviews of CTOs and compulsory community treatment There have been several reviews of the international literature on compulsory community treatment.12,14 These have included many different types of studies investigating this form of treatment. Data from naturalistic, observational and qualitative studies have consistently indicated that CTOs are viewed as beneficial by clinicians, families and patients; however, investigations of CTOs using experimental methods have demonstrated that they have no significant effect on rates of hospital readmission, length of hospital stay, medication compliance or patients’ quality of life. The quality of empirical studies of compulsion in the community has been criticized and conceptual and methodological limitations have been noted. Only two randomized controlled trials (RCTs) have been conducted to date, both in the USA.15,16 Swartz et al. suggested that compulsory community treatment may be effective when it is sustained over a long period of time and includes intensive treatment.16 This has led some to suggest that legal compulsion may not be required if sufficient resources were allocated to mental health services. However, this finding has been questioned and other studies have shown that even when high quality services are provided, rates of compulsion are not reduced.17,18
Conclusion With the passing of a new Mental Health Act in England and Wales, community mental health services have increased powers to compel patients to accept treatment outside of the hospital. This shift in mental health legislation is not limited to the UK but can be found in many countries around the world.
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16 Swartz MS, Swanson JW, Hiday VA, Wagner HR, Burns BJ, Borum R. A randomized controlled trial of outpatient commitment in North Carolina. Psychiatr Serv 2001; 52: 325–29. 17 Szmukler G, Hotopf M. Effectiveness of involuntary outpatient commitment. Am J Psychiatry 2001; 158: 653–54. 18 Priebe S, Fakhoury W, Watts J, et al. Assertive outreach teams in London: patient characteristics and outcomes. Pan-London Assertive Outreach Study, part 3. Br J Psychiatry 2003; 183: 148–54.
13 Joint Home Office and Department of Health Working Group. Managing dangerous people with personality disorders. London: HMSO, 1999. 14 Kisely S, Campbell LA, Preston N. Compulsory community and involuntary outpatient treatment for people with severe mental disorders. Cochrane Database Syst Rev 2005; 3: CD004408. 15 Steadman HJ, Gounis K, Dennis D, et al. Assessing the New York City involuntary outpatient commitment pilot program. Psychiatr Serv 2001; 52: 330–36.
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