Forced treatment of any description is perhaps the single most
important question facing consumers, mental health practitioners and lawyers in
the mental health field. Mental health is unique in that it is the only area of
health care in which the choices of consumers are routinely overridden under
the protection of legislation. Saks poses this dilemma as a simple question:
When should we treat those who don’t want treatment, and when should we respect
their choices? Any proposed resolution to this question is to be taken
seriously. Saks’ solution calls for a more nuanced application of mental health
legislation resulting in more paternalism than is currently allowed in first
episodes, and more respect for autonomy subsequently. Given that many people
who experience mental illness have long periods of contact with many individual
episodes, the balance of her argument is in favour of greater respect for
autonomy.

Previous analyses have argued either that greater use of coercion is
necessary to respond to the unmet needs of the mentally ill (Torrey, Out of
the Shadows, reviewed
in Metapsychology  January 2003), or that coercion in the name of
treatment is by definition an assault and not to be countenanced in a
democratic state (see Thomas
Szasz). Saks’ proposals attempt a rapprochement between these two
positions, and so are unlikely to meet with approval from either camp. She
argues that there can be no principled paternalists or autonomy theorists in
this area, and that what is needed is a rational balance of these approaches. 

Having cast the debate in terms of arguments for a balance of autonomy
against medical paternalism, the scene is set to consider what common ground
there might be between these positions. In chapter two Saks addresses arguments
based on conceptual and philosophical analysis of the concept of mental illness
to ask whether there is such a thing and can it be distinguished from simple
social deviance. While acknowledging the problematic nature of mental illness
from a philosophical perspective, Saks makes the useful observation that few
aspects of social life are exempt from such philosophical problems. She urges a
consensus solution to what is essentially a conceptual problem before focussing
on what she sees as the more important question of when a label of mental
illness is used to justify involuntary treatment.

It is considering the standard to be applied in invoking civil
commitment that Saks advances the novel argument that is the central thesis of
her book. She proposes firstly a standard involving ‘serious impairment’, loss
of one’s characteristic state of mind, and, in some circumstances, amenability
to treatment. Notably absent from these criteria is a specific reference to
dangerousness or risk. But what is unique about Saks approach is that she would
apply a different standard to a first psychotic break than to subsequent
episodes. Recognising that the person having a first psychotic break has not
had the opportunity to express a preference, Saks would use a stronger standard
than that applied once the person has had the opportunity to communicate their
views. This approach suggests that an advance directive, or Ulysses contract,
should be mandatory following any initial use of commitment. Ulysses contracts,
however, are not seen as a simple solution, and raise questions about a person’s
right to change their mind, and in the case of mental health, for a prior
contract to be negated in some circumstances. Linked to these arguments, and
central to them, is the concept of a two tier model of competency; a lower
standard (impairment) is urged in first episodes, a higher standard
(competency) once the person has had the opportunity to express a preference.

In the next three chapters Saks sets out her arguments on the issues of
forced medication, seclusion and use of mechanical restraints. On the issue of
medication, Saks pursues her argument that different criteria should apply to
first and subsequent episodes. She introduces the notion of competency as a
standard for forced medication, thus extending greater autonomy on this issue
than on the issue of hospitalisation. Chapter seven explores impairment and
competency, and provides an analysis of these concepts in support of Saks’
two-tier model. Ulysses contracts are covered in Chapter eight, where Saks sets
out a case for greater use of such contracts.

In all cases Saks suggests that without the use of medical paternalism
to impose compulsion, clinicians are forced to negotiate care, and that is a
benefit both in ethical terms, and clinically, as people who consent to
treatment are likely to respond better. It is this appeal to situational
judgement rather than principled paternalism that permeates the book. The use
of forced medication and seclusion would be restricted using this model; mechanical
restraints would likely be outlawed altogether. 

The style of the book reflects Saks’ legal perspective: propositions
are presented individually, and then arguments for and against are considered.
This is effective enough when dealing with the logic of individual
propositions. But as Saks acknowledges, multiple criteria are applied
simultaneously in diagnosing mental illness and making decisions on commitment.

One of the refreshing aspects of Saks’ book is that she places
responsibility for more humane care not only on health professionals and
administrators, but on society, whose responsibility it is, she argues, to
provide the range of alternatives that would enable provision of least
restrictive care to a standard compatible with human rights and dignity.

We treat the mentally ill badly….because we do not value then
sufficiently as people (p. 1).

A theme of the book is that thinking and decisions about consent to
care in mental health are made in social contexts in which mental illness is
deeply stigmatised. That means that factors such as degree of illness, risk and
dangerousness are likely to be overstated, as is the justification for coercive
actions. It is this recurring theme that makes Refusing Care more than a
legal or clinical analysis. The book has an ethical concern for the plight of
the mentally ill, and for accepted social standards of care, and of coercion.
This is further shown in Saks recommendation that for those under civil
commitment there should be a statutory provision of diminished criminal
responsibility applying to those who fall short of the standard for an insanity
defence. The recommendation extends considerable legal protection to those
defined as mentally ill. 

Refusing Care is extensively footnoted and referenced, drawing on
both the medical and law literature, and on American case law. The thesis is
closely argued, with the author meticulously exploring arguments counter to her
own, as well as that in favor. She provides a comprehensive coverage of the
empirical literature, and is forthright in acknowledging its limitations. For
this reason the book has much to commend it as a resource of issues in mental
health law.

 Although the arguments are complex and raise many possible objections
and counterarguments, the language of Refusing Care is straightforward,
and the issues are explored carefully and systematically, making the arguments
accessible to a wide range of health professionals, lawyers and consumers. The
success of Saks’ proposals would be dependent on lawyers’ willingness to accede
to a paternalistic standard in first presentations, and clinicians’ willingness
to accede to a higher standard of autonomy on subsequent presentations. As Saks
points out, both sets of practitioners tend to overplay their hand currently;
doctors in favour of their belief in the benefits of treatment; lawyers in
favour of principled autonomy.

Refusing Care is a book to read, reflect on, and reread. It is
underpinned by a belief stated in the final sentence, that society’s task is to
"obtain for the mentally ill treatment they ask for and they are now
refused by others" (p. 221).

I’m recommending it for my library; I suggest you recommend it for
yours.

 

© 2003
Tony O’Brien

 

Tony O’Brien,
Senior Lecturer, School of Nursing, University Auckland, New Zealand.

 

 

Tony
O’Brien mail to:

Lecturer, Mental
Health Nursing

University of Auckland

Categories: Ethics, Philosophical