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The Danish Mental Health Act of 1938: “Progressive” psychiatric paternalism revised
lnternatlonai Journai of Law and Psychratry. VoI Prmted I” the U S A All rights reserved
7 pp 441-453.
1984 CopyrIght
0160.2527/64 $3 00 + .OO 1985 Pergamon Press Ltd
The Danish Mental Health Act of 1938: “Progressive” Psychiatric Paternalism Revised J@rn Vestergaard*
The Danish Mental Health Act of 1938 is currently the focal point of public debate. Criticism of the act and its administration have led to two main demands: 1. The Mental Health Act should be abolished in favour of comprehensive legislation on administrative confinement with no special regard to a person’s status as psychotic. This change would eliminate the current act’s requirement of a “psychotic state of mind” as necessary for involuntary confinement, considered by many to be a victimizing provision. 2. The legal guarantees which the Mental Health Act associates with the use of coercion in psychiatric treatment are inadequate and should be strengthened. There appears to be a far-reaching consensus that the law should authorize involuntary confinement of persons who are dangerous to others. Here the controversy begins. The critics emphasize that dangerousness is not necessarily associated with psychosis as the present Mental Health Act implies. One-third of the total number of involuntary commitments are, in fact, illegal because the detainees afterwards prove not to have been psychotic at the time of commitment. Furthermore, psychotic persons cannot, in general, be considered more dangerous than other people. In light of these observations, the Mental Health Act is considered an arbitrarily discriminating law. Objections have also been raised against the current authority to confine when persons may represent a danger to themselves, and against the authority to confine when failure to do so might considerably reduce the prognosis for recovery. In addition, there is broad agreement to recommend abolition of the present authority to retain a psychotic patient when release might imply significant hardship due to serious personal disability. The so-called “mouse-trap” clause which authorizes retention of voluntarily hospitalizedpatients on the same grounds as involuntary patients has also been criticized. Opinions have been more divided in regard to the courts’ acquiring a central position in the commitment of dangerous persons. Skepticism has been expressed in regard to the courts’ ability to handle such a task. Improvement of the access to administrative review has, however, been suggested. Another focal point of the debate is the police registration of persons com*Associate K, Denmark.
Professor
of Lam, University
of Copenhagen, 441
Sankt
Peders
Straede
19, DK-1453
Copenhagen
J0RN
442
VESTERGAARD
mitted under the Mental Health Act. Registration of involuntary patients in police files may be abolished or significantly curtailed within a short time. The aim of the following article is to describe the current Danish legislation on involuntary confinement and to review the recent debate on a revision of the rules. Criteria for involuntary confinement of psychiatric patients are given in the Mental Health Act of 1938. Involuntary commitments occur in about 1,300 cases a year. It should be noted that, on an international comparison, this is a rather low commitment rate in a total population of five million. A Commission
on the Civil Rights of the Mentally
111
The Danish Mental Health Act of 1938 has now been in effect for nearly half a century, almost without change. Only one revision of major importance has been made. In 1953, a constitutional amendment instigated the right to easy access to court review as well as other procedural relief regarding confinement in psychiatric institutions. The Mental Health Act has in the past been praised by many, including psychiatrists, for its simple structure and practicability. Recently, however, its basic principles have come under severe attack from civil rights advocates. Although the law offers a number of safeguards against abuse of power these critics claim that present provisions give too much discretionary power to psychiatrists. Skepticism of coerced psychiatric treatment has become more prevalent among politicians and within the psychiatric profession itself. Reflecting this widespread concern, the Danish Parliament in 1982 unanimously required the government to create a commission on the revision of the Mental Health Act of 1938. It should be noted that this initiative was not a result of any major scandal, but the combined effect of actions taken by various pressure groups, mental health professionals and politicians. In Spring, 1983, the Department of Justice appointed a commission with the task of evaluating the need for changes in the present Mental Health Act. The commission is to discuss whether any special legislation concerning the mentally ill is needed at all. The commission should furthermore consider the protection of the civil rights of the mentally ill. The commission is comprised of 20 representatives from various organizations and government agencies. The Psychiatric
Establishment’s
Reaction
to the Request for Reform
Considerable reservation has been expressed by established psychiatrists to a wholesale revision of the Mental Health Act. They claim that involuntary commitment and coercion in treatment are primarily used to the patients’ benefit and that an alteration in the fundamental principles of the Act would not be in the patients’ best interest. Only small alterations of the current practice might be needed, these psychiatrists believe, and such changes should be enacted through administrative measures. The psychiatric establishment is organised in the Danish Society of Psychiatry (Dan& Psykiatrisk Selskab), which has expressed its position on the revision of the Mental Health Act in an address of 1982 to the Department of Justice. The address stresses its members’ anxiety about the establishment of more complicated
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commitment procedures and of a so-called bureaucratized style of administration within the mental health sector in general. The Aims of the Danish Mental Health Act
The Mental Health Act of 1938 authorizes involuntary confinement of psychotic persons under certain conditions. The general aim of the code is to guarantee that these patients receive adequate hospital treatment. Simultaneously, the code establishes a set of legal safeguards against the abuse of involuntary confinement. The Act’s provisions protecting the individual citizen against arbitrariness and abuse of psychiatric confinement are clustered around three key issues: 1. When is involuntary confinement authorized (in which cases and situations)? 2. Who is authorized to make decisions on involuntary confinement? 3. How are authorized procedures followed when involuntary confinement is decided upon and when decisions are challenged? The code both defines the substantive conditions for involuntary confinement and aims at ensuring their proper implementation. It does so by requiring a formalized commitment procedure, the establishment of a set of checks and balances through designation of various decisionmakers and by establishment of relatively easy access to administrative and judicial review of decisions on involuntary confinement. Confinement
Criteria
The Mental Health Act deals with two different kinds of administrative involuntary confinement: (a) involuntary commitment, and (b) involuntary retainment. The act does not deal with other kinds of coercion in treatment. Involuntary commitment requires that the patient is diagnosedpsychotic. According to the act’s procedures, necessity of hospital treatment must also be established along with the substantiated assumption that one of the three following conditions is present: 1. The person is dangerous to him/herself. 2. The person is dangerous to others. 3. The prospect for the person’s future recovery will be significantly hampered without hospital confinement. Involuntary retainment can occur under the same conditions as involuntary commitment. Commitment becomes retainment when a plea for discharge is denied. Discharge shall be denied if, in the presence of any of the above three conditions, discharge is not considered reasonable. Furthermore, involuntary retainment may occur under the following condition: 4. Discharge implies significant
sonal disability.
hardship for the patient due to seriousper-
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Initially voluntary patients if the above set of conditions mouse-trap clause.”
at a psychiatric are established.
The Formal Procedure
VESTERGAARD
for Involuntary
institution can be retained, This rule has been named
Commitment
too, “the
and Retainment
From the Mental Health Act’s perspective it is typically the person’s relatives who raise the question of commitment when the person in question does not submit him/herself to the necessary treatment. Under such circumstances, it is an obligation for the relatives to contact a doctor and make further necessary arrangements to enact the commitment, which means to sign a commitment petition and to request police assistance. According to the act if no relative does so, the police must take responsibility for the commitment of a psychotic person. Involuntary commitment requires a brief medical certificate, which typically is drafted by a private practising physician or by a doctor from the public medical emergency aid. The law does not require that the physician have any special psychiatric education or experience, nor is there any presumption of consultation with the patient’s own doctor. On the other hand, the certificate cannot legally be issued by a staff member at the hospital where the patient will be placed. The inspecting doctor should state in his certificate whether the patient is psychotic and whether commitment is necessary due to dangerousness or the need of treatment. The law itself does not require a specified and substantiated diagnosis. The Health Directorate has, however, issued a circular stating that a certificate ought to be relatively specific regarding factors indicating dangerousness. Involuntary commitment based on the need of treatment is conditional on the approval of the local health inspector. This special type of procedure is not required when a patient is considered dangerous. The assistance of the police is mandatory when an involuntary commitment is enacted. A decision on involuntary retainment is normally made by the chief psychiatrist at the institution. Involuntary retainment based on serious personal disability is conditional on the approval of the Department of Justice. Involuntary commitments occur on the basis of two different sets of forms which contain the medical certificate and the necessary signatures. When involuntary commitment is based on an indication of dangerousness, so-called “red papers” are used. When it is based on a treatment indication, “yellow papers” are used. The Mental Health Act does not operate with any concept of an observation period initially after commitment. Assisting
Counsel
for the Involuntarily
Confined
Patient
Act, patients who are involuntarily commitThe person acting as counsel shall stay informed of the patient’s condition and seek to ensure that the duration of stay at the institution is no longer than necessary. The assisting counsel should preferably be one of the patient’s nearest relatives. In practice, however, patients are often discharged before assisting counsel has been assigned, which usually takes a week or two. According
to the Mental Health
ted shall be assigned assisting counsel.
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Patients who are involuntarily retained have the right, by petition, to be assigned assisting counsel. In practice, assisting counsel very seldom challenge the legality of the commitment. Lack of experience may preclude effective action on their part as may their personal relationship with the patient. Consequently, it has been suggested that professional counsel with expertise in psychiatry and law should be appointed. These persons would be associated with, but not directly employed by, the treatment institutions. For example, part-time practicing lawyers or social workers with a supplemental education might effectively be used in this role. In May 1983, Parliament urged some kind of administrative improvement in the conditions regarding assisting counsel as soon as possible, without waiting for a general revision of the Mental Health Act. Assigning legal counsel in all cases of involuntary commitment has also been mentioned as a means of ensuring and strengthening the protection of civil rights. Such a system might be a supplement to assignment of nonprofessional counsel. Another variation suggests that practising lawyers be assigned the task of assisting counsel. Administrative
Review of Decisions
on Confinement
Complaints regarding involuntary confinement are handled by the Department of Justice, whose decisions may eventually be challenged in court. The right to an administrative-and eventually a judicial -review is technically connected with the law’s provisions on involuntary retainment. The Mental Health Act presupposes that in some cases the patient, a relative, or the assisting counsel may make a plea for discharge. If the chief psychiatrist refuses discharge, then a decision on involuntary retainment has formally been made. Thereafter, the petitioner or representative may demand an administrative review in a rather informal manner. He need no more than ask the hospital staff to inform the Department of Justice that a challenge of retention has been made, after which the petitioner need take no further action. The Mental Health Act has no rule obliging the treatment institution to inform the patient or others about the possibility of administrative review. However, in 1982, a circular from the Department of Justice stated that the chief physician shall inform the patient and the person who acts on behalf of the patient about the right to make a plea for discharge. In case of involuntary retainment, they must be informed of the right to have the case reviewed by the Department of Justice and the possibility of a later court review. A parliamentary decision from May 1983 urges that psychiatric patients be informed, both verbally and in writing, about their rights in all situations which occur during hospitalization and treatment. A pamphlet with such information was issued by the Department of Justice in December 1983. When a case is under review, the Department of Justice will hear the permanent Medico-Legal Council, which is a consultative board of medical experts appointed by the Department of Justice. The Mental Health Act requires the person requesting the discharge to be notified by the Department of Justice of its decision within one month after the challenge has been made. If the Department of Justice concurs with the refusal to discharge, the patient must be informed about the possibility of access to a
446
JQIRN VESTERGAARD
court review. This is the only specific rule in the act concerning patients’ rights to information. Even though the Mental Health Act does not include any rules for complaints regarding involuntary commitment, in practice these complaints can be made either independently or in connection with complaints about involuntary retainment. This system which authorizes the Department of Justice as the reviewing instance has been criticized on the grounds that the Department does not contribute with any independent expertise. On the contrary, the Department of Justice is easily associated with police and prosecution, which may strain the credibility of the review process. It has also been pointed out that the Department of Justice usually defers to the Medico-Legal Council which in turn, often defers to the chief physician. Judicial Review of the Justice Department’s
Denial of Discharge
The Mental Health Act’s rules on judicial review of involuntary confinement are founded on provisions in the Constitution requiring easy court access. Further regulations are incorporated in the Administration of Justice Act. According to these rules, the Department of Justice must submit the case within 5 days after the challenge has been made. Appointment of legal counsel is mandatory. The object of the judicial review is the Justice Department’s refusal to grant discharge with the Department and the patient (or the patient’s representative) as the two adversary parties. It has been suggested that a mandatory judicial review be initiated immediately after confinement as a means of guaranteeing civil rights. However, this proposal has been met with only limited approval. It has been claimed that this will not serve its expressed purpose since it is doubted whether the courts are likely to perform an independent test on the legality of the confinement. Additionally, such a judicial process might prove to be a disproportional strain on the patient. The appointed commission on the revision of the Mental Health Act has been assigned the task of addressing the need to set time limits concerning the process of case reviews. Although the Justice Department must submit a case within 5 days after the request, court backlog often leads to delays in judicial review of more than 3 months. These delays have been subject to much criticism. Parliamentary
Supervision
of the Mental Health Sector
In 1953, a constitutional amendment mandated a special board, appointed by Parliament each year, to supervise conditions of administratively confined persons. This “Section 71-Board,” consisting of parliamentary members, rarely holds meetings and only publishes brief, sporadic reports. The board has little significance as a supervising body. The patients’ legal rights under the Mental Health Act rely on the presumption that access to administrative and judicial review provides protection against unnecessary confinement. In reality, however, because of the psychiatrist’s professional authority, position, and social status and the patients’ dependence on psychiatric care in one form or another, the psychiatrist will almost always be
DANISH
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ACT OF 1938
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able to “convince” the patient and the relatives that continued hospitalization is necessary. The right to review is only of minor value when psychiatric coercion is displayed in such an informal manner. Legal protection must be partially independent of the patient’s own initiative. This recognition has lead to proposals that a new supervising entity be established. The responsibility for supervision and control of patients’ rights in psychiatric institutions might be trusted in local councils comprised of, for example, an experienced practicing lawyer and two to three lay citizens. A central review board might then add further protection of patients’ rights. It has been suggested that such a supervising entity be given the authority to 1. address questions regarding hospital treatment and other practical issues whether or not connected to involuntary confinement, 2. act on its own initiative, 3. replace the Department of Justice in its role as administrative review institution and as party in court review cases. According to such proposals, the institution of the Parliament’s Ombudsman should serve as a model for the functioning of such a supervisory body. Legal Protection
of Involuntary
Confined
Patients
The Mental Health Act regulates involuntary psychiatric treatment with regard only to confinement and retainment. Other types of psychiatric coercion such as placement on a locked ward, forced treatment, physical restraints, control of visits and correspondence are not regulated by law. The Parliament’s Ombudsman has had repeatedly to urge the Department of the Interior to issue administrative guidelines on the use of physical power in psychiatric institutions. Finally in December 1983 a circular was issued by the Health Directorate. Problems associated with both forced treatment and experimental treatment have also been debated. A parliamentary decision of May 1983 urged the government to enact rules requiring “informed consent” to experimental treatment from the psychiatric patient similar to that required from non-mentally ill persons. Again, this innovation is to be initiated without awaiting the general revision of the Mental Health Act. The Commission on the Revision of the Mental Health Act has also been requested to address the eventuality of mandatory reporting of acts of force against psychiatric patients and patients’ right to permanent supervision while being restrained. Some Basic Statistics
Up until the early 1970s the annual number of involuntary commitments was about 2,200. Since then there has been a significant decrease as a result of a declining number of “red paper” commitments (patients considered to be dangerous). The number of such commitments has gone down to half the earlier number and now comprises 1,000 cases a year, while the number of “yellow paper” com-
448
J0RNVESTERGAARD
mitments (need of treatment) has been constantly at about 300 cases a year. When comparing these statistics internationally the Danish numbers are quite low, the total population being 5 million inhabitants. There is no available information as to the total number of involuntary retainments. The annual number of reviews by the Department of Justice is about 200 cases, a figure which has increased slightly during recent years. Approximately half of these complaints come from patients who were originally hospitalized on a voluntary basis. “Treatment indication” is the dominant reason for retainment in the administratively reviewed cases. There is reason to assume that the number of involuntary retainments is significantly higher than that reflected in the number of cases reviewed. Of 1,250 complaints to the Department of Justice during the period from 19601973, the hospital’s decision to retain the patient involuntarily was reversed in only four cases. Close to one third of the decisions of the Department of Justice are subject to court review. From 1960-1973, the Municipal Courts reversed the decision made by the Department of Justice to retain the patient involuntarily in only 8 out of 193 cases. Relatively few Municipal Court verdicts were appealed to the High Court, and in no case was a Municipal Court’s decision regarding an involuntary retainment overruled (Adserballe, 1977).
Illegal Commitments Empirical studies (Adserballe, 1977) show that one third of all involuntarily committed patients were not psychotic at the time of commitment. From a formal point of view, these involuntary commitments are simply illegal. Patients in these cases are typically suffering from an affective reaction (i.e., an emotional reaction precipitated by a specific stress situation). In such cases, the patient is discharged after an observation period with the diagnosis “not-psychotic.” The most common reason for involuntary commitment is a perceived suicidal risk. Such patients are characterized by severe social problems such as drug and alcohol abuse. The current alternative to hospital commitment would often be a night in jail. The practices regarding involuntary retainment are apparently in accordance with the criteria in the Mental Health Act. Involuntary retainment of nonpsychotic patients seems not to occur (Adserballe, 1977, Chap. 14). The Mental Health Act does not authorize involuntary commitment or retainment of a nonpsychotic patient, even though the person in case is considered suicidal. In practice, however, doubts regarding the diagnosis of a suicidal patient will often result in an initial diagnosis of psychosis, on which involuntary commitment is then based. Furthermore, a number of apparently suicidal patients are committed, even though they are not perceived as psychotic by the certifying doctor. Considering that nonpsychotic patients are rarely involuntarily retained, the need for judicial clarification might be met by legally authorizing very short commitments for observation of the obviously suicidal, extremely emotionally affected patient, without the present legal requirement of a diagnosis of psychoses.
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Legal Accountability and Compensation for Illegal Confinement As a consequence of the procedural setting of involuntary commitment under the Danish Mental Health Act, the decision on commitment rests with the physician who issues the initial medical certificate. Realistically, this person is the key decision maker. As a matter of fact the physician’s signature on the medical certificate is a mandatory condition for commitment. However, the certificating physician is, in practice, not legally accountable. According to the Mental Health Act the chief psychiatrist of the intake institution is formally responsible for any decision to make an involuntary commitment. From the chief physician’s perspective the situation may be rather complicated at the time a patient is received at the institution with a police escort along with the necessary documents for involuntary commitment. At that step of the intake procedure the chief psychiatrist holds the legal responsibility for the commitment decision while he, not seldom, at the same time lacks adequate and sufficient information about the patient’s state of mind. The fact therefore is that the chief psychiatrist has to commit the patient to determine whether commitment is required! The law does not operate with the concept of an observation period. In practice such a period will often be necessary. One important consequence of this is that an illegally committed patient will not be able to claim any compensation, since this requires established proof not only as far as the formal illegality of the commitment is concerned but also in regard to legal culpability on the chief physician’s part. The latter type of proof has never been established, even though as much as one third of all involuntary commitments should be termed illegal from a formal legalistic perspective. From a medical perspective, it might not seem reasonable to change the procedures when receiving a patient. However, the necessary length of observation time is debatable, which seems in part also to be dependent on the available resources. A court practice which does not rule for restitution, even after establishing that an illegal confinement has occurred, has been recognized as deficient and unsatisfactory. It has therefore been suggested that a special rule about strict responsibility for (certain) illegal confinements be introduced. Such a rule would recognize the responsibility of the public authorities to provide compensation for loss and hardship resulting from an involuntary commitment without necessarily expressing criticism of the decision-making authority. The Debate on Confinement Criteria Three different
sets of attitude have been expressed in the debate thus far:
1. The Codification Model. According to this model, present practices need not be altered but the law should be clarified and maybe adjusted so that its wording covers present practices optimally. This is the model presented by the psychiatric Establishment. 2. The Revision Model. Supporters of this model demand more strict confinement criteria, especially with regard to abolition or restriction of confine-
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ment indicated by need of treatment, by serious personal disability, or by suicide risk. According to this view, a diagnosed psychosis would still be a necessary condition for confinement. It is supported by some psychiatrists, some legal experts and, probably, by a majority in Parliament. 3. The Reform Model. According to this line of thought, the concept of psychosis ought not be included in the confinement criteria, which furthermore should be restricted considerably. This model has been introduced by a group of more radical psychiatrists and is now supported by patients’ and relatives’ organizations. The debate on this issue has elicited strong feelings in psychiatric circles. Finding a consensus on what is, in fact, a central concept in the practice of psychiatry has proved difficult. Clarification of the Concept of Psychosis Some psychiatrists have recognized that the criteria in the current law are vague and inaccurate. They have welcomed attempts at clarification of the concept of psychosis, this being the basic legal criterion for a confinement decision. “The criteria which allow for involuntary confinement, i.e., psychosis in conjunction with dangerousness, serious personal disability or need for treatment, are all inaccurate and difficult to interpret” (The Danish Medical Association, November 1982). A pragmatic approach to the concept of psychosis has also been proposed. “Despite theoretical disagreements, in practice, a consensus exists when evaluating whether a given person in a given situation is actually psychotic. With this background, it is neither desirable nor necessary to attempt to solve the basically impossible task of operationalizing the concept of psychosis, i.e., by detailing the law text and administrative circulars” (Young Doctors’ Association, September 1982). Clarification/Revision
of the Criterion of Dangerousness
Demands have been made to clarify and specify the criterion of dangerousness which have been called “an alarmingly empty and meaningless criterion for encroachments into personal freedom.” Reforms concerning the “dangerous-toothers” criterion tend to aim at a greater degree of specificity regarding the kind, degree, immediacy and concreteness of the danger. Somewhat surprisingly, no party in the current debate is advocating a limitation on the current practice or a total abolition of the use of the “dangerous-toothers” criterion. Considering the uncertainty associated with predicting a given person’s future behaviour, such considerations can hardly be dismissed as irrelevant. It is recognized in Danish psychiatry that the perceived dangerousness is only manifested in a small number of cases. The dangerousness indication also provides the authority to involuntarily commit and retain suicidal, psychoticpersons. This authority covers both acute, temporary conditions and chronic mental illnesses. The need to protect patients of the first category, who will most likely later disassociate themselves from their
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temporary wishes for suicide, is commonly recognized. As for the chronic psychotic, it has been claimed that such a person’s decision to commit suicide is as worthy of protection as is a similar decision made by a nonpsychotic person. Abolition
of the Need-for- Treatment Criterion
Authority to confine based on the need-for-treatment criterion has been sharply criticized. An experienced chief psychiatrist, Jytte Willadsen, has written in the journal of the radical Movement for the Mad (Galebevaegelsen): “It is ethically unjustifiable that human beings, against their own will and even under heartrending protests, are forced into psychiatric institutions, on the sole ground that they are in need of treatment. It is difficult enough to obtain successful effect with voluntary patients. What are the results then going to be if the treatment is coerced?” Abolition
of the Serious-Personal-Disability
Criterion
Involuntary retainment based on the serious-personal-disability criterion is not being defended wholeheartedly by many people, although there are known cases which seem to justify the rules. One example is a manic patient who might seriously scandalize him/herself after discharge. There are also those cases in which a senile patient demands to be discharged, although he/she is perceived as being unable to care for him/herself. Abolition
of the Special Legislation Concerning the Mentally Ill
The most significant differences of opinion regarding the future of the Mental Health Act have emerged in connection with a proposal to create comprehensive legislation concerning “administrative confinement as a means of social defence in cases of certain specifically defined states of mind.” This proposal was originally introduced by a group of 28 psychiatrists in an address of June 1982 to the Judicial Committee in Parliament. The idea has received support from patients’ organizations, both from the relatively radical “Movement for the Mad” (Galebevaegelsen) and the somewhat more established National Association for the Health of the Mentally Ill (Landsforeningen Sindslidendes Vel). A majority support in Parliament has expressed sympathy towards the idea, including the spokesperson for the Social Democrats. The commission on the revision of the Mental Health Act has been assigned the task of investigating thoroughly the possibility of enacting a comprehensive legislation along the aforementioned lines instead of the current Act. The supporters of a non-discriminatory, comprehensive legislation base their proposal on a multitude of arguments, two of which are of central importance. First of all, it is argued that we need to be skeptical towards the authoritarian and paternalistic tradition within psychiatry. A psychosis does not per se justify coerced treatment. There ought to exist a strong presumption that the personal integrity and accountability of the psychotic peson will be respected to the greatest possible extent. Furthermore, psychotic persons cannot be regarded as more dangerous to others than the population in general (Adserballe, 1977).
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Typically, commitment to a hospital will not follow as the result of a psychosis but as the result of perceived dangerousness, whether or not the patient is actually psychotic. In the light of this, it is seen as arbitrary discrimination against psychotic patients to use the concept of psychosis as a determining criterion for confinement. For those who advocate abolition of victimizing special legislation, the main problem is a determination whether adequate concepts can be found to define accurately the states of mind which should constitute the legal basis for involuntary confinement. The wish is to formulate a set of criteria which does not expand current practice. Two major concerns are expressed about this idea. First, there is a fear that abandoning the psychosis criterion will lead to more involuntary confinements of people who are socially maladjusted. Second, there is fear that doing away with the psychosis criterion will mean that the brief hospitalizations under the current law will be replaced by more detention stays in jail. There are no great expectations that resources to substantially improve the jail conditions will be made available. Under the present conditions, a system which would lead to more persons ending up in jail is not desirable. Conclusion The debate regarding the Mental Health Act has at times been rather heated. Compared to international standards the use of coercion in Danish psychiatry is quite moderate. Coercive practices have even decreased in recent years. It is therefore interesting that the criticism against the law and its application is so vehement. Since there is now some distance from the anti-psychiatric debate of the 1970s and since attitudes in the psychiatric sector have changed towards a less authoritarian and mechanistic medico-biological tradition, the time should be ripe for law reform. There ought to be a chance now for the parties involved to start communicating. According to some established psychiatrists only the voice of the experts should be heard in the debate. There is, however, a growing recogntion also among psychiatrists-that the use of coercion in psychiatry has broad judicial and cultural interest. It has been recognized also that patients’ and relatives’ organizations have a right to be taken seriously in the debate. Whether or not the existing Mental Health Act in Denmark will undergo significant changes, it is of extreme importance that fundamental values and the regulation of mental health provisions are now being debated from a civil rights perspective. Public scrutiny might be just as important for the protection of psychiatric patients and for the development of the psychiatric profession as the more technical legislative activities. Naturally, what the law says is important. Still, it is of even greater importance how that law is applied, and what is crucial is how people are treated, whether in everyday routine or in extraordinary cases. The impact of a qualified public debate on the psychiatric reality might be just as significant as the impact of legal change. Even though Danish psychiatrists might on the average belong to a less authoritarian and “softer” paternal-
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istic tradition within their profession, a permanent public check on the balancing of fundamental values within the Medical Health Sector is still of the utmost importance.
Reference Adserballe, H. (1977). Frihedbergvelse og rvong ipsykiairien (Deprivation of liberty and use of compulsion within psychiatry). Copenhagen and Arhus. Vestergaard, J. (1984). Revisionen aJSindssyge/oven (The Revision of the Danish Mental Health Act). University of Copenhagen.
7 pp 441-453.
1984 CopyrIght
0160.2527/64 $3 00 + .OO 1985 Pergamon Press Ltd
The Danish Mental Health Act of 1938: “Progressive” Psychiatric Paternalism Revised J@rn Vestergaard*
The Danish Mental Health Act of 1938 is currently the focal point of public debate. Criticism of the act and its administration have led to two main demands: 1. The Mental Health Act should be abolished in favour of comprehensive legislation on administrative confinement with no special regard to a person’s status as psychotic. This change would eliminate the current act’s requirement of a “psychotic state of mind” as necessary for involuntary confinement, considered by many to be a victimizing provision. 2. The legal guarantees which the Mental Health Act associates with the use of coercion in psychiatric treatment are inadequate and should be strengthened. There appears to be a far-reaching consensus that the law should authorize involuntary confinement of persons who are dangerous to others. Here the controversy begins. The critics emphasize that dangerousness is not necessarily associated with psychosis as the present Mental Health Act implies. One-third of the total number of involuntary commitments are, in fact, illegal because the detainees afterwards prove not to have been psychotic at the time of commitment. Furthermore, psychotic persons cannot, in general, be considered more dangerous than other people. In light of these observations, the Mental Health Act is considered an arbitrarily discriminating law. Objections have also been raised against the current authority to confine when persons may represent a danger to themselves, and against the authority to confine when failure to do so might considerably reduce the prognosis for recovery. In addition, there is broad agreement to recommend abolition of the present authority to retain a psychotic patient when release might imply significant hardship due to serious personal disability. The so-called “mouse-trap” clause which authorizes retention of voluntarily hospitalizedpatients on the same grounds as involuntary patients has also been criticized. Opinions have been more divided in regard to the courts’ acquiring a central position in the commitment of dangerous persons. Skepticism has been expressed in regard to the courts’ ability to handle such a task. Improvement of the access to administrative review has, however, been suggested. Another focal point of the debate is the police registration of persons com*Associate K, Denmark.
Professor
of Lam, University
of Copenhagen, 441
Sankt
Peders
Straede
19, DK-1453
Copenhagen
J0RN
442
VESTERGAARD
mitted under the Mental Health Act. Registration of involuntary patients in police files may be abolished or significantly curtailed within a short time. The aim of the following article is to describe the current Danish legislation on involuntary confinement and to review the recent debate on a revision of the rules. Criteria for involuntary confinement of psychiatric patients are given in the Mental Health Act of 1938. Involuntary commitments occur in about 1,300 cases a year. It should be noted that, on an international comparison, this is a rather low commitment rate in a total population of five million. A Commission
on the Civil Rights of the Mentally
111
The Danish Mental Health Act of 1938 has now been in effect for nearly half a century, almost without change. Only one revision of major importance has been made. In 1953, a constitutional amendment instigated the right to easy access to court review as well as other procedural relief regarding confinement in psychiatric institutions. The Mental Health Act has in the past been praised by many, including psychiatrists, for its simple structure and practicability. Recently, however, its basic principles have come under severe attack from civil rights advocates. Although the law offers a number of safeguards against abuse of power these critics claim that present provisions give too much discretionary power to psychiatrists. Skepticism of coerced psychiatric treatment has become more prevalent among politicians and within the psychiatric profession itself. Reflecting this widespread concern, the Danish Parliament in 1982 unanimously required the government to create a commission on the revision of the Mental Health Act of 1938. It should be noted that this initiative was not a result of any major scandal, but the combined effect of actions taken by various pressure groups, mental health professionals and politicians. In Spring, 1983, the Department of Justice appointed a commission with the task of evaluating the need for changes in the present Mental Health Act. The commission is to discuss whether any special legislation concerning the mentally ill is needed at all. The commission should furthermore consider the protection of the civil rights of the mentally ill. The commission is comprised of 20 representatives from various organizations and government agencies. The Psychiatric
Establishment’s
Reaction
to the Request for Reform
Considerable reservation has been expressed by established psychiatrists to a wholesale revision of the Mental Health Act. They claim that involuntary commitment and coercion in treatment are primarily used to the patients’ benefit and that an alteration in the fundamental principles of the Act would not be in the patients’ best interest. Only small alterations of the current practice might be needed, these psychiatrists believe, and such changes should be enacted through administrative measures. The psychiatric establishment is organised in the Danish Society of Psychiatry (Dan& Psykiatrisk Selskab), which has expressed its position on the revision of the Mental Health Act in an address of 1982 to the Department of Justice. The address stresses its members’ anxiety about the establishment of more complicated
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commitment procedures and of a so-called bureaucratized style of administration within the mental health sector in general. The Aims of the Danish Mental Health Act
The Mental Health Act of 1938 authorizes involuntary confinement of psychotic persons under certain conditions. The general aim of the code is to guarantee that these patients receive adequate hospital treatment. Simultaneously, the code establishes a set of legal safeguards against the abuse of involuntary confinement. The Act’s provisions protecting the individual citizen against arbitrariness and abuse of psychiatric confinement are clustered around three key issues: 1. When is involuntary confinement authorized (in which cases and situations)? 2. Who is authorized to make decisions on involuntary confinement? 3. How are authorized procedures followed when involuntary confinement is decided upon and when decisions are challenged? The code both defines the substantive conditions for involuntary confinement and aims at ensuring their proper implementation. It does so by requiring a formalized commitment procedure, the establishment of a set of checks and balances through designation of various decisionmakers and by establishment of relatively easy access to administrative and judicial review of decisions on involuntary confinement. Confinement
Criteria
The Mental Health Act deals with two different kinds of administrative involuntary confinement: (a) involuntary commitment, and (b) involuntary retainment. The act does not deal with other kinds of coercion in treatment. Involuntary commitment requires that the patient is diagnosedpsychotic. According to the act’s procedures, necessity of hospital treatment must also be established along with the substantiated assumption that one of the three following conditions is present: 1. The person is dangerous to him/herself. 2. The person is dangerous to others. 3. The prospect for the person’s future recovery will be significantly hampered without hospital confinement. Involuntary retainment can occur under the same conditions as involuntary commitment. Commitment becomes retainment when a plea for discharge is denied. Discharge shall be denied if, in the presence of any of the above three conditions, discharge is not considered reasonable. Furthermore, involuntary retainment may occur under the following condition: 4. Discharge implies significant
sonal disability.
hardship for the patient due to seriousper-
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Initially voluntary patients if the above set of conditions mouse-trap clause.”
at a psychiatric are established.
The Formal Procedure
VESTERGAARD
for Involuntary
institution can be retained, This rule has been named
Commitment
too, “the
and Retainment
From the Mental Health Act’s perspective it is typically the person’s relatives who raise the question of commitment when the person in question does not submit him/herself to the necessary treatment. Under such circumstances, it is an obligation for the relatives to contact a doctor and make further necessary arrangements to enact the commitment, which means to sign a commitment petition and to request police assistance. According to the act if no relative does so, the police must take responsibility for the commitment of a psychotic person. Involuntary commitment requires a brief medical certificate, which typically is drafted by a private practising physician or by a doctor from the public medical emergency aid. The law does not require that the physician have any special psychiatric education or experience, nor is there any presumption of consultation with the patient’s own doctor. On the other hand, the certificate cannot legally be issued by a staff member at the hospital where the patient will be placed. The inspecting doctor should state in his certificate whether the patient is psychotic and whether commitment is necessary due to dangerousness or the need of treatment. The law itself does not require a specified and substantiated diagnosis. The Health Directorate has, however, issued a circular stating that a certificate ought to be relatively specific regarding factors indicating dangerousness. Involuntary commitment based on the need of treatment is conditional on the approval of the local health inspector. This special type of procedure is not required when a patient is considered dangerous. The assistance of the police is mandatory when an involuntary commitment is enacted. A decision on involuntary retainment is normally made by the chief psychiatrist at the institution. Involuntary retainment based on serious personal disability is conditional on the approval of the Department of Justice. Involuntary commitments occur on the basis of two different sets of forms which contain the medical certificate and the necessary signatures. When involuntary commitment is based on an indication of dangerousness, so-called “red papers” are used. When it is based on a treatment indication, “yellow papers” are used. The Mental Health Act does not operate with any concept of an observation period initially after commitment. Assisting
Counsel
for the Involuntarily
Confined
Patient
Act, patients who are involuntarily commitThe person acting as counsel shall stay informed of the patient’s condition and seek to ensure that the duration of stay at the institution is no longer than necessary. The assisting counsel should preferably be one of the patient’s nearest relatives. In practice, however, patients are often discharged before assisting counsel has been assigned, which usually takes a week or two. According
to the Mental Health
ted shall be assigned assisting counsel.
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Patients who are involuntarily retained have the right, by petition, to be assigned assisting counsel. In practice, assisting counsel very seldom challenge the legality of the commitment. Lack of experience may preclude effective action on their part as may their personal relationship with the patient. Consequently, it has been suggested that professional counsel with expertise in psychiatry and law should be appointed. These persons would be associated with, but not directly employed by, the treatment institutions. For example, part-time practicing lawyers or social workers with a supplemental education might effectively be used in this role. In May 1983, Parliament urged some kind of administrative improvement in the conditions regarding assisting counsel as soon as possible, without waiting for a general revision of the Mental Health Act. Assigning legal counsel in all cases of involuntary commitment has also been mentioned as a means of ensuring and strengthening the protection of civil rights. Such a system might be a supplement to assignment of nonprofessional counsel. Another variation suggests that practising lawyers be assigned the task of assisting counsel. Administrative
Review of Decisions
on Confinement
Complaints regarding involuntary confinement are handled by the Department of Justice, whose decisions may eventually be challenged in court. The right to an administrative-and eventually a judicial -review is technically connected with the law’s provisions on involuntary retainment. The Mental Health Act presupposes that in some cases the patient, a relative, or the assisting counsel may make a plea for discharge. If the chief psychiatrist refuses discharge, then a decision on involuntary retainment has formally been made. Thereafter, the petitioner or representative may demand an administrative review in a rather informal manner. He need no more than ask the hospital staff to inform the Department of Justice that a challenge of retention has been made, after which the petitioner need take no further action. The Mental Health Act has no rule obliging the treatment institution to inform the patient or others about the possibility of administrative review. However, in 1982, a circular from the Department of Justice stated that the chief physician shall inform the patient and the person who acts on behalf of the patient about the right to make a plea for discharge. In case of involuntary retainment, they must be informed of the right to have the case reviewed by the Department of Justice and the possibility of a later court review. A parliamentary decision from May 1983 urges that psychiatric patients be informed, both verbally and in writing, about their rights in all situations which occur during hospitalization and treatment. A pamphlet with such information was issued by the Department of Justice in December 1983. When a case is under review, the Department of Justice will hear the permanent Medico-Legal Council, which is a consultative board of medical experts appointed by the Department of Justice. The Mental Health Act requires the person requesting the discharge to be notified by the Department of Justice of its decision within one month after the challenge has been made. If the Department of Justice concurs with the refusal to discharge, the patient must be informed about the possibility of access to a
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court review. This is the only specific rule in the act concerning patients’ rights to information. Even though the Mental Health Act does not include any rules for complaints regarding involuntary commitment, in practice these complaints can be made either independently or in connection with complaints about involuntary retainment. This system which authorizes the Department of Justice as the reviewing instance has been criticized on the grounds that the Department does not contribute with any independent expertise. On the contrary, the Department of Justice is easily associated with police and prosecution, which may strain the credibility of the review process. It has also been pointed out that the Department of Justice usually defers to the Medico-Legal Council which in turn, often defers to the chief physician. Judicial Review of the Justice Department’s
Denial of Discharge
The Mental Health Act’s rules on judicial review of involuntary confinement are founded on provisions in the Constitution requiring easy court access. Further regulations are incorporated in the Administration of Justice Act. According to these rules, the Department of Justice must submit the case within 5 days after the challenge has been made. Appointment of legal counsel is mandatory. The object of the judicial review is the Justice Department’s refusal to grant discharge with the Department and the patient (or the patient’s representative) as the two adversary parties. It has been suggested that a mandatory judicial review be initiated immediately after confinement as a means of guaranteeing civil rights. However, this proposal has been met with only limited approval. It has been claimed that this will not serve its expressed purpose since it is doubted whether the courts are likely to perform an independent test on the legality of the confinement. Additionally, such a judicial process might prove to be a disproportional strain on the patient. The appointed commission on the revision of the Mental Health Act has been assigned the task of addressing the need to set time limits concerning the process of case reviews. Although the Justice Department must submit a case within 5 days after the request, court backlog often leads to delays in judicial review of more than 3 months. These delays have been subject to much criticism. Parliamentary
Supervision
of the Mental Health Sector
In 1953, a constitutional amendment mandated a special board, appointed by Parliament each year, to supervise conditions of administratively confined persons. This “Section 71-Board,” consisting of parliamentary members, rarely holds meetings and only publishes brief, sporadic reports. The board has little significance as a supervising body. The patients’ legal rights under the Mental Health Act rely on the presumption that access to administrative and judicial review provides protection against unnecessary confinement. In reality, however, because of the psychiatrist’s professional authority, position, and social status and the patients’ dependence on psychiatric care in one form or another, the psychiatrist will almost always be
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able to “convince” the patient and the relatives that continued hospitalization is necessary. The right to review is only of minor value when psychiatric coercion is displayed in such an informal manner. Legal protection must be partially independent of the patient’s own initiative. This recognition has lead to proposals that a new supervising entity be established. The responsibility for supervision and control of patients’ rights in psychiatric institutions might be trusted in local councils comprised of, for example, an experienced practicing lawyer and two to three lay citizens. A central review board might then add further protection of patients’ rights. It has been suggested that such a supervising entity be given the authority to 1. address questions regarding hospital treatment and other practical issues whether or not connected to involuntary confinement, 2. act on its own initiative, 3. replace the Department of Justice in its role as administrative review institution and as party in court review cases. According to such proposals, the institution of the Parliament’s Ombudsman should serve as a model for the functioning of such a supervisory body. Legal Protection
of Involuntary
Confined
Patients
The Mental Health Act regulates involuntary psychiatric treatment with regard only to confinement and retainment. Other types of psychiatric coercion such as placement on a locked ward, forced treatment, physical restraints, control of visits and correspondence are not regulated by law. The Parliament’s Ombudsman has had repeatedly to urge the Department of the Interior to issue administrative guidelines on the use of physical power in psychiatric institutions. Finally in December 1983 a circular was issued by the Health Directorate. Problems associated with both forced treatment and experimental treatment have also been debated. A parliamentary decision of May 1983 urged the government to enact rules requiring “informed consent” to experimental treatment from the psychiatric patient similar to that required from non-mentally ill persons. Again, this innovation is to be initiated without awaiting the general revision of the Mental Health Act. The Commission on the Revision of the Mental Health Act has also been requested to address the eventuality of mandatory reporting of acts of force against psychiatric patients and patients’ right to permanent supervision while being restrained. Some Basic Statistics
Up until the early 1970s the annual number of involuntary commitments was about 2,200. Since then there has been a significant decrease as a result of a declining number of “red paper” commitments (patients considered to be dangerous). The number of such commitments has gone down to half the earlier number and now comprises 1,000 cases a year, while the number of “yellow paper” com-
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mitments (need of treatment) has been constantly at about 300 cases a year. When comparing these statistics internationally the Danish numbers are quite low, the total population being 5 million inhabitants. There is no available information as to the total number of involuntary retainments. The annual number of reviews by the Department of Justice is about 200 cases, a figure which has increased slightly during recent years. Approximately half of these complaints come from patients who were originally hospitalized on a voluntary basis. “Treatment indication” is the dominant reason for retainment in the administratively reviewed cases. There is reason to assume that the number of involuntary retainments is significantly higher than that reflected in the number of cases reviewed. Of 1,250 complaints to the Department of Justice during the period from 19601973, the hospital’s decision to retain the patient involuntarily was reversed in only four cases. Close to one third of the decisions of the Department of Justice are subject to court review. From 1960-1973, the Municipal Courts reversed the decision made by the Department of Justice to retain the patient involuntarily in only 8 out of 193 cases. Relatively few Municipal Court verdicts were appealed to the High Court, and in no case was a Municipal Court’s decision regarding an involuntary retainment overruled (Adserballe, 1977).
Illegal Commitments Empirical studies (Adserballe, 1977) show that one third of all involuntarily committed patients were not psychotic at the time of commitment. From a formal point of view, these involuntary commitments are simply illegal. Patients in these cases are typically suffering from an affective reaction (i.e., an emotional reaction precipitated by a specific stress situation). In such cases, the patient is discharged after an observation period with the diagnosis “not-psychotic.” The most common reason for involuntary commitment is a perceived suicidal risk. Such patients are characterized by severe social problems such as drug and alcohol abuse. The current alternative to hospital commitment would often be a night in jail. The practices regarding involuntary retainment are apparently in accordance with the criteria in the Mental Health Act. Involuntary retainment of nonpsychotic patients seems not to occur (Adserballe, 1977, Chap. 14). The Mental Health Act does not authorize involuntary commitment or retainment of a nonpsychotic patient, even though the person in case is considered suicidal. In practice, however, doubts regarding the diagnosis of a suicidal patient will often result in an initial diagnosis of psychosis, on which involuntary commitment is then based. Furthermore, a number of apparently suicidal patients are committed, even though they are not perceived as psychotic by the certifying doctor. Considering that nonpsychotic patients are rarely involuntarily retained, the need for judicial clarification might be met by legally authorizing very short commitments for observation of the obviously suicidal, extremely emotionally affected patient, without the present legal requirement of a diagnosis of psychoses.
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Legal Accountability and Compensation for Illegal Confinement As a consequence of the procedural setting of involuntary commitment under the Danish Mental Health Act, the decision on commitment rests with the physician who issues the initial medical certificate. Realistically, this person is the key decision maker. As a matter of fact the physician’s signature on the medical certificate is a mandatory condition for commitment. However, the certificating physician is, in practice, not legally accountable. According to the Mental Health Act the chief psychiatrist of the intake institution is formally responsible for any decision to make an involuntary commitment. From the chief physician’s perspective the situation may be rather complicated at the time a patient is received at the institution with a police escort along with the necessary documents for involuntary commitment. At that step of the intake procedure the chief psychiatrist holds the legal responsibility for the commitment decision while he, not seldom, at the same time lacks adequate and sufficient information about the patient’s state of mind. The fact therefore is that the chief psychiatrist has to commit the patient to determine whether commitment is required! The law does not operate with the concept of an observation period. In practice such a period will often be necessary. One important consequence of this is that an illegally committed patient will not be able to claim any compensation, since this requires established proof not only as far as the formal illegality of the commitment is concerned but also in regard to legal culpability on the chief physician’s part. The latter type of proof has never been established, even though as much as one third of all involuntary commitments should be termed illegal from a formal legalistic perspective. From a medical perspective, it might not seem reasonable to change the procedures when receiving a patient. However, the necessary length of observation time is debatable, which seems in part also to be dependent on the available resources. A court practice which does not rule for restitution, even after establishing that an illegal confinement has occurred, has been recognized as deficient and unsatisfactory. It has therefore been suggested that a special rule about strict responsibility for (certain) illegal confinements be introduced. Such a rule would recognize the responsibility of the public authorities to provide compensation for loss and hardship resulting from an involuntary commitment without necessarily expressing criticism of the decision-making authority. The Debate on Confinement Criteria Three different
sets of attitude have been expressed in the debate thus far:
1. The Codification Model. According to this model, present practices need not be altered but the law should be clarified and maybe adjusted so that its wording covers present practices optimally. This is the model presented by the psychiatric Establishment. 2. The Revision Model. Supporters of this model demand more strict confinement criteria, especially with regard to abolition or restriction of confine-
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ment indicated by need of treatment, by serious personal disability, or by suicide risk. According to this view, a diagnosed psychosis would still be a necessary condition for confinement. It is supported by some psychiatrists, some legal experts and, probably, by a majority in Parliament. 3. The Reform Model. According to this line of thought, the concept of psychosis ought not be included in the confinement criteria, which furthermore should be restricted considerably. This model has been introduced by a group of more radical psychiatrists and is now supported by patients’ and relatives’ organizations. The debate on this issue has elicited strong feelings in psychiatric circles. Finding a consensus on what is, in fact, a central concept in the practice of psychiatry has proved difficult. Clarification of the Concept of Psychosis Some psychiatrists have recognized that the criteria in the current law are vague and inaccurate. They have welcomed attempts at clarification of the concept of psychosis, this being the basic legal criterion for a confinement decision. “The criteria which allow for involuntary confinement, i.e., psychosis in conjunction with dangerousness, serious personal disability or need for treatment, are all inaccurate and difficult to interpret” (The Danish Medical Association, November 1982). A pragmatic approach to the concept of psychosis has also been proposed. “Despite theoretical disagreements, in practice, a consensus exists when evaluating whether a given person in a given situation is actually psychotic. With this background, it is neither desirable nor necessary to attempt to solve the basically impossible task of operationalizing the concept of psychosis, i.e., by detailing the law text and administrative circulars” (Young Doctors’ Association, September 1982). Clarification/Revision
of the Criterion of Dangerousness
Demands have been made to clarify and specify the criterion of dangerousness which have been called “an alarmingly empty and meaningless criterion for encroachments into personal freedom.” Reforms concerning the “dangerous-toothers” criterion tend to aim at a greater degree of specificity regarding the kind, degree, immediacy and concreteness of the danger. Somewhat surprisingly, no party in the current debate is advocating a limitation on the current practice or a total abolition of the use of the “dangerous-toothers” criterion. Considering the uncertainty associated with predicting a given person’s future behaviour, such considerations can hardly be dismissed as irrelevant. It is recognized in Danish psychiatry that the perceived dangerousness is only manifested in a small number of cases. The dangerousness indication also provides the authority to involuntarily commit and retain suicidal, psychoticpersons. This authority covers both acute, temporary conditions and chronic mental illnesses. The need to protect patients of the first category, who will most likely later disassociate themselves from their
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temporary wishes for suicide, is commonly recognized. As for the chronic psychotic, it has been claimed that such a person’s decision to commit suicide is as worthy of protection as is a similar decision made by a nonpsychotic person. Abolition
of the Need-for- Treatment Criterion
Authority to confine based on the need-for-treatment criterion has been sharply criticized. An experienced chief psychiatrist, Jytte Willadsen, has written in the journal of the radical Movement for the Mad (Galebevaegelsen): “It is ethically unjustifiable that human beings, against their own will and even under heartrending protests, are forced into psychiatric institutions, on the sole ground that they are in need of treatment. It is difficult enough to obtain successful effect with voluntary patients. What are the results then going to be if the treatment is coerced?” Abolition
of the Serious-Personal-Disability
Criterion
Involuntary retainment based on the serious-personal-disability criterion is not being defended wholeheartedly by many people, although there are known cases which seem to justify the rules. One example is a manic patient who might seriously scandalize him/herself after discharge. There are also those cases in which a senile patient demands to be discharged, although he/she is perceived as being unable to care for him/herself. Abolition
of the Special Legislation Concerning the Mentally Ill
The most significant differences of opinion regarding the future of the Mental Health Act have emerged in connection with a proposal to create comprehensive legislation concerning “administrative confinement as a means of social defence in cases of certain specifically defined states of mind.” This proposal was originally introduced by a group of 28 psychiatrists in an address of June 1982 to the Judicial Committee in Parliament. The idea has received support from patients’ organizations, both from the relatively radical “Movement for the Mad” (Galebevaegelsen) and the somewhat more established National Association for the Health of the Mentally Ill (Landsforeningen Sindslidendes Vel). A majority support in Parliament has expressed sympathy towards the idea, including the spokesperson for the Social Democrats. The commission on the revision of the Mental Health Act has been assigned the task of investigating thoroughly the possibility of enacting a comprehensive legislation along the aforementioned lines instead of the current Act. The supporters of a non-discriminatory, comprehensive legislation base their proposal on a multitude of arguments, two of which are of central importance. First of all, it is argued that we need to be skeptical towards the authoritarian and paternalistic tradition within psychiatry. A psychosis does not per se justify coerced treatment. There ought to exist a strong presumption that the personal integrity and accountability of the psychotic peson will be respected to the greatest possible extent. Furthermore, psychotic persons cannot be regarded as more dangerous to others than the population in general (Adserballe, 1977).
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Typically, commitment to a hospital will not follow as the result of a psychosis but as the result of perceived dangerousness, whether or not the patient is actually psychotic. In the light of this, it is seen as arbitrary discrimination against psychotic patients to use the concept of psychosis as a determining criterion for confinement. For those who advocate abolition of victimizing special legislation, the main problem is a determination whether adequate concepts can be found to define accurately the states of mind which should constitute the legal basis for involuntary confinement. The wish is to formulate a set of criteria which does not expand current practice. Two major concerns are expressed about this idea. First, there is a fear that abandoning the psychosis criterion will lead to more involuntary confinements of people who are socially maladjusted. Second, there is fear that doing away with the psychosis criterion will mean that the brief hospitalizations under the current law will be replaced by more detention stays in jail. There are no great expectations that resources to substantially improve the jail conditions will be made available. Under the present conditions, a system which would lead to more persons ending up in jail is not desirable. Conclusion The debate regarding the Mental Health Act has at times been rather heated. Compared to international standards the use of coercion in Danish psychiatry is quite moderate. Coercive practices have even decreased in recent years. It is therefore interesting that the criticism against the law and its application is so vehement. Since there is now some distance from the anti-psychiatric debate of the 1970s and since attitudes in the psychiatric sector have changed towards a less authoritarian and mechanistic medico-biological tradition, the time should be ripe for law reform. There ought to be a chance now for the parties involved to start communicating. According to some established psychiatrists only the voice of the experts should be heard in the debate. There is, however, a growing recogntion also among psychiatrists-that the use of coercion in psychiatry has broad judicial and cultural interest. It has been recognized also that patients’ and relatives’ organizations have a right to be taken seriously in the debate. Whether or not the existing Mental Health Act in Denmark will undergo significant changes, it is of extreme importance that fundamental values and the regulation of mental health provisions are now being debated from a civil rights perspective. Public scrutiny might be just as important for the protection of psychiatric patients and for the development of the psychiatric profession as the more technical legislative activities. Naturally, what the law says is important. Still, it is of even greater importance how that law is applied, and what is crucial is how people are treated, whether in everyday routine or in extraordinary cases. The impact of a qualified public debate on the psychiatric reality might be just as significant as the impact of legal change. Even though Danish psychiatrists might on the average belong to a less authoritarian and “softer” paternal-
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istic tradition within their profession, a permanent public check on the balancing of fundamental values within the Medical Health Sector is still of the utmost importance.
Reference Adserballe, H. (1977). Frihedbergvelse og rvong ipsykiairien (Deprivation of liberty and use of compulsion within psychiatry). Copenhagen and Arhus. Vestergaard, J. (1984). Revisionen aJSindssyge/oven (The Revision of the Danish Mental Health Act). University of Copenhagen.