Taking steps to reform the Mental Health Act

The film 55 Steps (see trailer) starts with Eleanor Riese (played by Helena Bonham-Carter) being injected with antipsychotic medication under restraint in a psychiatric hospital. Represented by her lawyers, Riese managed to convince the California State Court of Appeal that mental patients who are involuntarily committed to health facilities for short-term crisis care may refuse to take anti-psychotic medications, unless a judge determines that they are incapable of making an informed decision about their medical care (see NYTimes 1987 article). The ruling excluded those cases in which emergency intervention is needed to save the patient's life or prevent injury to the patient or others.

Similarly, the Alaska Supreme Court case has ruled that patients should not be given medication against their will without first proving by clear and convincing evidence that it is in their best interests and there is no less intrusive alternative available (see previous post). Nonetheless, forced medication under restraint is still common in psychiatric hospitals across the world.

Germany's Constitutional Court also found that the criteria under which coercive antipsychotic treatment is given were far too wide (see article). Because of legal challenges, for a brief time Germany was left without a law governing coercive treatment in psychiatry in all but life-threatening emergencies. A greater emphasis on consensual and less coercive treatment is required.

Essentially, the recent UK government's Independent Review of the Mental Health Act 1983 has failed to deal with this issue (see previous post), despite hearing considerable evidence of unacceptable, including abusive, treatment. Once detained, people essentially lose their rights and little account is taken of their will and preferences. This situation has been revealed by BBC Panorama in undercover reports at Whorlton Hall and Winterbourne View hospitals.

We need to move on from legislation based on substitute decision-making to offering support according to a person’s will and preferences, accepting that these may be unknown or distorted at times when people lose mental capacity. Nonetheless, the person's perspective still needs to be considered to give the best interpretation of their will, preferences and rights. For example, would patients want to be forcibly injected with medication if they become psychotic? The right to legal capacity needs to be protected (see WHO QualityRights training tool).

The problem is that assessments of capacity are not always very objective (see eg. Flynn, 2019). Although the Mental Capacity Act makes clear that a person should not be regarded as lacking the capacity to make a decision just because they make an unwise decision, in practice this can be the apparent criterion used. The person making the decision seems to need to make the case that they reach the standard of the ‘ability’ expected. If the explanation doesn't sound very persuasive then the person might be found to lack capacity. In short, substitute decision-making risks imposing disproportionate alternative perspectives to the person's own will and preferences.

To be clear, I do recognise that people lack mental capacity at times. I also accept the need for involuntary intervention at times. What I'm arguing for is a Mental Health Act that preserves the dignity and respect of detained patients. The Independent Review will not lead to sufficiently rights-based reform. Maybe the film 55 Steps can encourage further discussion by focusing debate on whether forced treatment with medication can ever be justified. Under what circumstances would you accept this if you became psychotic?