Coercive Care

Rights, Law and Policy

Bernadette Mcsherry, Ian Freckelton, Bernadette Mcsherry, Ian Freckelton

• Publisher: Routledge
• Year: 2013
• Print ISBN: 9780415628198
• eBook ISBN: 9781135016579
• Edition: 1
• Topic: Law
• Subtopic: Discrimination Law
• Index: Law

There has been much debate about mental health law reform and mental capacity legislation in recent years with the UN Convention on the Rights of Persons with Disabilities also having a major impact on thinking about the issue. This edited volume explores the concept of 'coercive care' in relation to individuals such as those with severe mental illnesses, those with intellectual and cognitive disabilities and those with substance use problems. With a focus on choice and capacity the book explores the impact of and challenges posed by the provision of care in an involuntary environment. The contributors to the book look at mental health, capacity and vulnerable adult's care as well as the law related to those areas. The book is split into four parts which cover: human rights and coercive care; legal capacity and coercive care; the legal coordination of coercive care and coercive care and individuals with cognitive impairments. The book covers new ground by exploring issues arising from the coercion of persons with various disabilities and vulnerabilities, helping to illustrate how the capacity to provide consent to treatment and care is impaired by reason of their condition.

Part I

Coercive care: rights,
law and policy

1 Coercive care

Rights, law and policy

Bernadette McSherry and Ian Freckelton

Introduction

The relationship between coercion and care is complex. Legislative schemes for the compulsory detention and treatment of individuals with severe mental illnesses, those with intellectual and cognitive disabilities and those with substance use problems are now commonplace in developed countries. Many of these schemes have been enacted with the altruistic aim of providing treatment and care to aid recovery and to promote community safety. However, in a troubling percentage of cases this has involved the use of coercion in a way that is central to their operation. Sometimes such coercion takes place within institutions, such as hospitals, rehabilitation facilities or residences; on other occasions it takes place within the community. Moreover, coercion can be overt in the form of certain practices such as physical, mechanical or chemical restraint and seclusion, but it can also be subtle in the form of the threat of a wide variety of forms of force, deprivation or encroachment upon autonomy and dignity if behaviour is not compliant and treatment-adherent. The purpose of this book is to broaden the debate to examine the use of coercive care in a variety of contexts involving persons with disabilities and to identify how such practices need to be viewed through a human rights lens so as to minimise the extent of countertherapeutic and abusive use of force.

It is important to note that there is a range of terms used in respect of persons in receipt of ‘care’. Terms employed can easily stray into the paternalistic, the condescending and the judgmental. This can be potent in consolidating feelings of marginalisation, victimisation and oppression for the person the subject of such language and can reinforce feelings of entitlement and depersonalisation on the part of clinicians, which in turn can inure and desensitise the latter to suffering and to the connotations of acts, omissions and attitudes. Terminology such as ‘patient’ and ‘carer’ are examples of language that can unintentionally articulate imbalances of power in key relationships in the mental health field and serve to relegate those in receipt of services to persons to whom services are given rather than conceptualising the relationship as collaborative. The chapters in this volume are generally careful to refer to individuals or persons with disabilities, but occasionally the word ‘patient’ is used in reference to an individual being treated in a hospital or psychiatric facility.

The relationship between coercion and care has in many ways been traditionally linked to ideas about ‘disability’ as a matter of individual pathology. Disability, however, is an evolving concept and recent trends have seen a move away from seeing disability in terms of care, welfare and charity towards reconceptualising disability as a matter of human rights (Rioux et al 2011). The effect of human rights on how treatment and care should be delivered is one of the central themes of this book. In particular, many of the chapters discuss the effect of the Convention on the Rights of Persons with Disabilities (CRPD) on the provision of care and treatment of those with disabilities including psychosocial disabilities.

The CRPD clarifies the obligations on states parties to promote and ensure the rights of persons with disabilities. As of November 2012, it has 154 signatories and 126 parties (United Nations Treaty Collection 2012). While countries such as the United States, Finland, Ireland and the Netherlands have yet to ratify the CRPD and others such as Australia and Canada have ratified it with a declaration or reservation, it is playing an increasingly important role in international discourse about human rights and disabilities.

The CRPD sets out the steps that should be taken to ensure equality of treatment. Neither ‘disability’ nor ‘persons with disabilities’ are defined in the CRPD, but Article 1 states that the latter term includes ‘those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others’. While Article 1 refers to ‘longterm’ impairments, the provision is not exhaustive and other impairments may be included (Minkowitz 2007: 407).

The preamble recognises that disability results from the interaction between individuals with impairments and societal barriers. Paragraphs (i) and (j) of the preamble refer to the recognition of ‘the diversity of persons with disabilities’ and ‘the need to promote and protect the human rights of all persons with disabilities, including those who require more intensive support’.

Article 3 sets out the General Principles of the CRPD:

(a) Respect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons;

(b) Non-discrimination;

(c) Full and effective participation and inclusion in society;

(d) Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;

(e) Equality of opportunity;

(f) Accessibility;

(g)Equality between men and women;

(h) Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.

The emphasis on human dignity can be viewed as an empowering notion linked to autonomy and self-determination, implying a respect for the will and preferences of the individual (Hale 2005). Foster (2011) puts it in terms of that which enables and facilitates human thriving. Alternatively, it may be seen as a constraint on restricting human rights in order to protect a more general notion of human dignity such as the sanctity of human life (Feldman 1999). How to respect human dignity in legislative schemes that enable the involuntary detention and treatment of those with disabilities is an ongoing challenge and this theme is explored throughout this book.

The ensuing chapters have been grouped into four parts: Conceptual frameworks for coercive care; Legal capacity, ‘best interests’ and coercive care; Coercive care in the community; and Coercive care and the criminal justice system. However, these parts are not discrete and there are a number of themes that are common to them all.

Conceptual frameworks for coercive care

Given the existence of the CRPD, there is now an increasing emphasis on the respect for human rights as providing a new conceptual framework for the care of those with disabilities. In her chapter, Penny Weller argues that because health care must pay attention to human rights standards, any resort to coercion represents a failure of care. Similarly, Janet Lord and Michael Stein point out in their chapter that persons with disabilities, along with persons in other minority groups, are now being heard in unprecedented ways and that it is essential that the focus of care and treatment be on the wishes and preferences of recipients.

The concept of coercion in relation to treatment and care has traditionally been associated with the practice of psychiatry and the concept remains highly contested and controversial (Newton-Howes and Mullen 2011). Many of the chapters in this book examine legislative schemes that enable involuntary detention and treatment of those with severe mental illnesses. There have been well documented, tragic examples of the misuse of psychiatry to punish dissidents in the Soviet Union (Weisstub and Arboleda-Flórez 2000) and China (Munro 2000; Bonnie 2002; Lu and Galli 2002) and to single out individuals for extermination in Nazi Germany (Roelke et al 2001; Hassenfeld 2002; Strous 2006, 2011). Thomas Szasz argued (2005: 77) that ‘[p]sychiatry was founded and continues to function as a coercive apparatus of the State’ on the basis that ‘[c]oercing the patient is the oldest, most enduring, and most characteristic feature of the psychiatrist's job’. His view (2005: 78) was that since the Second World War, psychologists have ‘embraced the prevailing principles and practices of psychiatrists’ and that when psychologists treat individuals against their will, they too act as coercive agents of the state, ‘regardless of what lies they tell themselves or what lies their superiors or professional organizations tell them’.

Unlike those in the anti-psychiatry camp, Szasz was not opposed to the practice of psychiatry and psychology if it is non-coercive in form and substance. If the relationship between mental health professional and client is a contractual arrangement between consenting adults with no state involvement, then his view was that the mental health professions comply with ethical principles. It is only when there is no consent to treatment that from his perspective coercion gives rise to problematic practices.

Szasz's view, however, is an extreme one. Paul Appelbaum (1988: 780) has stated that ‘[p]sychiatrists point to treatment as the ultimate purpose of commitment, even if society — out of concern for limiting intrusions on autonomy — restricts the imposition of involuntary treatment to those who are dangerous to themselves or others’. On this basis, detention in mental health facilities can be of direct benefit because ‘treatment’ can include provision of a safe haven away from societal pressures as well as the more traditional notion of treatment through medical intervention.

In her chapter, Penny Weller notes that coercion can be viewed as describing interpersonal interactions (see also McConnell and Gillett 2006). From this perspective, it is important to examine the views of those who feel they have been forced into treatment. Gibbs et al (2005) have identified the phenomenon of persons who in retrospect are appreciative of their having been the subject of mandated treatment. Angela Guarda and colleagues (2007) have noted a similar phenomenon in relation to persons who have been involuntarily hospitalised with eating disorders. However, there are others who have been treated against their will whose lives have been significantly adversely affected by the deprivation of autonomy and who are both distressed and resentful of the use of coercion (Topp et al 2008; Lapsley et al 2002). David Oaks (2011: 201), for example, writes:

… all involuntary psychiatric procedures can lessen an individual's level of dignity and self-determination, which are necessary resources for longterm sustained recovery. All involuntary psychiatric procedures undermine an individual's trust with their provider and the community, and this trust ought to be a cornerstone in rebuilding the relationships we all need for mental and emotional well being. All involuntary psychiatric procedures can feel unjust, because an individual is losing their liberty due to a psychiatric diagnosis, rather than because of violating a law created by duly elected representatives that is fairly applied to everyone equally.

Another aspect of coercion is that almost inevitably it renders the psychiatristpatient relationship even more unbalanced than when the relationship is consensual and informed. There is a risk that it will promote resentful passivity on the part of the recipient and will not assist toward a person experiencing or regaining a ‘contributing life’, in the sense of ‘having a good home, meaningful activity, valued friendships, proper health care and opportunities for education and training, all without experiencing discrimination due to having a mental health difficulty’ (National Mental Health Commission 2012: 14). It does not encourage persons receiving treatment to assume responsibility for their mental health and work in a collaborative way with clinicians to address symptoms effectively, regain wellness and manage their illness.

An argument raised in respect of the imposition of restraint of movement of persons with intellectual disabilities, and potentially also with persons with dementia or brain injuries, is that the care provided to them is contained rather than coercive. Another argument is that such persons' status is informal or even necessary rather than coerced. However, the legitimacy of such distinctions is dubious, the reality being that such coercion inevitably involves a reduction of autonomy for which there should be a lawful justification. In general terms, as both Kris Gledhill and Ian Freckelton point out in their respective chapters, the European Court of Human Rights said as much in its ‘Bournewood decision’ (HL v United Kingdom 2004).

Legal capacity, ‘best interests’ and coercive care

Article 12 of the CRPD sets out the right to equal recognition before the law and refers to the right to ‘enjoy legal capacity on an equal basis with others in all aspects of life’. Of particular relevance to those with mental and intellectual impairments are the following paragraphs:

3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.

4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person's circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person's rights and interests. (emphasis added)

The Council of Europe's Commissioner for Human Rights (2012: 7) defines ‘legal capacity’ as ‘a person's power or possibility to act within the framework of the legal system’. There are two constituent elements to legal capacity. The first refers to ‘legal standing’ in the sense of being viewed as a person before the law; the second to ‘legal agency’ or what is sometimes referred to as ‘active legal capacity’ (McSherry 2012).

At various times in different societies, certain groups have been viewed as not having legal ‘personhood’ or standing. The extinction or suspension of legal standing, sometimes referred to as ‘civil death’, was once seen as a necessary consequence of conviction. Similarly, women, children under the age of majority and those with mental and intellectual disabilities have been and continue to be viewed in some societies as not having legal standing. This can readily constitute a basis for discrimination and extreme forms of coercion against those whose dignity and personhood is relegated by such discriminatory attitudes.

‘Legal agency’ refers to the ability to act within the framework of the legal system. The reference to exercising legal capacity in paragraph (3) of Article 12 together with paragraph (2) ensures that legal agency is also encompassed by the concept of legal capacity within the CRPD. It is this aspect of legal capacity that has been the focus of recent writing in relation to those with mental and intellectual impairments. This notion of legal capacity is explored in detail in the chapter by Janet Lord and Michael Stein, as well as in the chapter by Marcia Rioux, Joan Gilmour and Natalia Angel. Legal agency can be viewed as a driving force behind ensuring that the will and preferences of those with disabilities are the main focus of decisions that have legal repercussions.

The chapter by Rowena Daw examines how Article 12 of the CRPD and other human rights principles may provide the impetus for the abolition of stand-alone mental health laws in favour of a ‘fusion model’ law based on the (in)capacity of persons with disabilities to make treatment decisions. Historically, many individuals with mental and intellectual impairments have been viewed as lacking decision-making capacity and substitute decision-make...

Table of contents

• Cover
• Half Title
• Biomedical Law and Ethics Library
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Table of cases
• Table of legislation
• List of contributors
• Part I Coercive care: rights, law and policy
• Part II Conceptual frameworks for coercive care
• Part III Legal capacity, ‘best interests’ and coercive care
• Part IV Coercive care in the community
• Part V Coercive care and the criminal justice system
• Part VI Conclusion
• Bibliography
• Index