In defence of liberalmental health laws Anselm Eldergill
LiberalsLiberals are comfortably off and removed from theconsequences of their liberality (‘wet liberals’,‘Hampstead liberals, ‘bleeding-heart liberals’).Liberals are guilt-ridden. Unwilling to hold that thoseless fortunate are responsible for their actions, or tosupport punishing them for their wrong-doing.‘Society’ is to blame for their wrong-doing, theprivileged in power, not those in their power. Theyare victims.Liberals are well-meaning but naïf and weak. Theirposition makes people free but not responsible.Liberals are ‘arty-farty’. Guardian-reading, lentileating (organic), sandal-wearing. May be a socialworker.Liberals are muddled. Capital punishment is bad,abortion is an absolute right; manufactured is bad,natural/organic is good; Christmas is bad/racist,Diwali is good/culturally sensitive.
The liberal society‘Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others.’
The liberal societyIndividuality. Society is made up of individuals, andeach individual has distinctive feelings, personal goals,traits, habits and experiences. Variety is of the essence ofthe human race, and not a passing condition.Individual autonomy. Because this is so, mostindividuals wish to determine and develop their owninterests and course in life.Individual liberty. The existence of a private sphere ofaction, free from public coercion or restraint, isindispensable to that independence which everyone needsto develop as an individual. This rests on the rule of law.Individual responsibility. The autonomous individual isresponsible and liable for acts autonomously done.Tolerance. A liberal state accepts that individuals havemany different individual beliefs about the meaning andpurpose of life, and is pluralistic.
The liberal societyFreedom of thought and expression. Individual (andalso, therefore, social) development requires that eachperson is free to develop and express their thoughts.Coercion is counter-productive over the long-term, sincetruth emerges from free debate with falsehood.Distributive justice. Freedom of choice is only meaningfulif individuals have a choice.Compassion. The importance of each individual lifenecessitates caring for individuals in need of care.Individual restraint. Governments of individuals exist toserve the needs and interests of the individuals theyrepresent. The destruction of these rights by individuals inpositions of authority in order to build one universal self-directing human society — of everyone marching towardsthe same rational ends — destroys that area forindividual choice without which life does not seem worthliving.
Freedom is essential … ‘The love of liberty is the love of others. The love of power is the love of ourselves.’ William Hazlitt
Freedom cannot be absoluteAbsolute liberty is undesirable.Individuals have otherobjectives: their safety, theirhealth, the promotion of justiceand equality.We must sometimes choosebetween ‘ends equallyultimate, and claims equallyabsolute, the realisation ofsome of which must inevitablyinvolve the sacrifice of others.’It is because this is so thatindividuals place suchimportance on the right tochoose.
Individuality at its core‘To individualityshould belong the partof life in which it ischiefly the individualthat is interested; tosociety, the part whichchiefly interestssociety.’
Individuality PersonalityPersonality is whatmakes one individualdifferent from another.It is who I am …‘the unique quality of the individual, hisfeelings and personal goals; the sum ofhis traits, habits and experiences andthe whole system of relatively permanenttendencies, physical and mental, whichare distinctive of a given individual.’
Personality & medicine Is human personality a proper subject for medicine? Are people said to have disordered personalities ill or diseased?
The Draft BillNo one is excluded from the definition ofmental disorder in the Bill;People may be dealt with as mentallydisordered by reason solely of promiscuity,immoral conduct, sexual deviancy ordependence on alcohol or drugs;Social interventions not provided undermedical supervision, such as work trainingand social skills training, are defined as‘medical treatments’;A person satisfies the conditions forcompulsion if s/he requires but refuses‘medical treatment’.
‘Hospital’ ‘The approach the Government has developed … involves the idea of detention based on the serious risk such people present to the public.’ ‘Third units’ may be defined as adult secure accommodation of the kind sometimes provided for behaviourally-disturbed children. Anti-social people are mentally disordered. Supervised social interventions are medical treatments. Establishments which detain people under the Act, or provide social care under appropriate supervision, are hospitals.
‘ … People want to live in a ‘To be cured againstcultivated society, and they ones will and curedcultivate society in much the of states which wesame way they cultivate may not regard asnature in their gardens …. disease is to be putThey want to eradicate on a level with thosedisease, because it blights the who have not yetcultivated flowers they reached the age ofcherish. But not only do they reason or those whowish to eradicate disease never will; to befrom their gardens, they want classed with infants,the right to weed it and to imbeciles andcontrol pests. domestic animals. But to be punished ...… weed and control the because we havegarden if you must, but do deserved it ... is to benot treat as diseased that treated as a humanwhich is doing no more than person made in God’sfulfilling its nature.’ image.’
Liberal mental health laws‘Freedom of men under government is to have astanding rule to live by, common to every one of that society...and not to be subject to theinconstant, uncertain, arbitrary will of another man.’
‘Patients’ An individual KEY CHARACTERISTICS An individual, no more and no less so than any other individual. An individual who suffers, who wills certain ends for themselves and their loved ones and not others, who wishes to develop, and to be happy and fulfilled. A citizen. That is, a person whose needs and interests the Government exists to serve. A brother, sister, mother, father.‘Those we describe as patients are members of the public, sothat the law must seek to ensure that members of the publicare not unnecessarily detained, and also that they areprotected from those who must necessarily be detained.’
Liberal principles‘There is a long record ofpast experimentation inconduct, and there arecumulative verificationswhich give manyprinciples a well earnedprestige. Lightly todisregard them is the J o h n D e w eyheight of foolishness.’
Autonomy What is autonomy? Autonomy is the ability to determine one’s own course in life. Why is autonomy important? Variety is of the essence of the human race, and not a passing condition. The desire to determine one’s own life and interests — to be self-directing — is common to human beings.
AUTONOMY The ability to determine one’s own course in life Requires CAPACITY FREEDOMfor autonomous to act action Autonomously Capacity Freedom from(1) to determine restraint a course and (liberty) (2) to act.
Restricted autonomy LACK OF AUTONOMY Restricted ability to determine one’s own course in life Reasons NO CAPACITY RESTRAINED for autonomous from acting action autonomously e.g., cannot decide or feed oneself e.g., coercion
Individuals who lack thecapacity to act autonomously
AUTONOMY Requires CAPACITY FREEDOMfor autonomous action to act autonomously Reduced by LACK OF CAPACITY RESTRAINTSfor autonomous action on autonomous actionLiberal obligations BENEFICENCE Vicarious decision Practical assistance Beneficence
Restraining an individual’s freedom to act autonomously‘Useful’ and ‘necessity’ was always the tyrant’s plea.
Expediency‘The true danger is when liberty ‘They that can give up essentialis nibbled away, for expedients.’ liberty to obtain a little Edmund Burke temporary safety deserve neither liberty nor safety.’‘It is seldom that liberty of anykind is lost all at once.’ Benjamin Franklin David Hume ‘It will be found an unjust and unwise jealousy to deprive a man‘I believe there are more of his natural liberty upon theinstances of the abridgment of supposition he may abuse it.’the freedom of the people bygradual and silent Oliver Cromwellencroachments of those in powerthan by violent and suddenusurpations.’ James Madison
Loss of freedom‘Loss of freedom seldomhappens overnight.Oppression doesn’t standon the doorstep withtoothbrush moustacheand swastika armband— it creeps up insidiously… step by step, and all ofa sudden theunfortunate citizenrealizes that it is gone.’
When is compulsion justified? The ‘only purpose for which power can rightfully be exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant ... Over himself, over his own body and mind, the individual is sovereign.’ ‘It is, perhaps, hardly necessary to say that this doctrine is meant to apply only to human beings in the maturity of their faculties ... Those who are still in a state to require being taken care of by others, must be protected against their own actions as well as against external injury.’
Justifiable compulsion Reasonable grounds for believing: (1) that the individual or some other person is likely to avoid significant physical harm or serious suffering (if the individual is required to receive medical treatment of a certain description), and (2) that the harm or suffering likely to be avoided is likely to be less substantial than that caused to the individual or other persons by the interference. Justifiable if just (justice) Paternalism. Beneficence.
The draft BillThe definition of mental disorder in the Billis meaningless.Who meets the test for compulsorytreatment in the Parliamentary Act dependson the regulations made by the Minister;Social interventions not provided undermedical supervision count as medicaltreatments;A person satisfies the conditions forcompulsion if s/he requires but refuses‘appropriate medical treatment’;
Admission & detentionA doctor may authorize the detention for up to 72 hours ofan informal in-patient who appears to require compulsoryassessment in the community.An ‘authorised person’ may likewise detain such a person forup to six hours.A constable acting on information from an AMHP may forceentry to private premises without a warrant (urgent need ofcare or control).Under the new s2 procedures, compulsion is automatic if thethree examiners agree that the relevant conditions are met.A person who meets the ‘s2’ conditions for compulsion maybe detained in hospital if an AMHP and one doctor consider it‘appropriate’.A patient may be admitted to hospital under the new s4 ifthe doctor determines that their assessment is an urgentnecessity.
Compulsory treatment Medication may be given by force in any NHS clinic or out-patient department, and in small mental nursing homes. Home treatment and assertive outreach teams may give medication within the home to people who would refuse it if free to decide. A community patient’s consultant may sign a pink statutory form, upon the completion of which the patient is liable to detention.
Protecting the individual‘Governments exist to protect the rights of minorities.The loved and the rich need no protection. They havemany friends and few enemies.’
The rule of law‘… implies limitations onlegislative power, safeguardsagainst abuse of executivepower, adequate and equalopportunities of access to legaladvice and assistance andprotection, proper protection ofthe individual and grouprights and liberties, andequality before the law.’ Power must never be arbitrary
Separation of power‘It is not by the consolidation,or concentration of powers,but by their distribution, thatgood government is effected.‘No legislative body should bedeluded by the integrity oftheir own purposes, andconclude that unlimitedpowers will never be abusedbecause they themselves arenot disposed to abuse them.Mankind soon learns to makeinterested uses of every rightand power which they possessor may assume.’
Vulnerable people‘The greater the power the more dangerous the abuse.’The risk of abuse is multiplied if the individual is not free toescape abuse, is incapacitated or otherwise vulnerable, ortheir word is not given the same weight as that of others.Children and adults with mental health problems areparticularly at risk, and the law has usually afforded themspecial protection.This protection involves imposing legal duties on thosewith power, conferring legal rights on those in their power,and independent scrutiny of how these powers and dutiesare exercised.The effectiveness of such schemes depends on whether,and to what extent, they are observed.
Safeguards An in-patient’s spouse, partner or child cannot discharge them home, even if their objections to compulsion are not unreasonable and no one is in danger. Patients who meet the conditions for compulsion no longer have a right to an independent decision concerning their medication or ECT. The duty to provide after-care under section 117 is abolished. The principles and guidance in the Code of Practice may be qualified. Hospital managers, Health Authorities, NHS trusts, and local authorities will lose their powers of discharge. There will no longer be a separate, specialist, Mental Health Commission.
Tribunals Where a person asks for a review of the grounds for their detention, it can extend it by up to six months. Whether a patient who meets the conditions for compulsion is released from detention is left to entirely up to the tribunal’s discretion. People who have not committed any criminal offence may be placed under restrictions on discharge, transfer and leave of the kind now imposed by the Crown Court on offenders who pose a risk of serious harm to the public.
Functions — 1 Monitoring the When reasonably Mental Health Act requested, to visit and the European hospitals and other Convention establishments Scrutiny and Ill-treatment, neglect, rectification of improper statutory documents compulsion When requested, to Review deaths or visit incapacitated injuries to patients patients and those Solitary confinement subject to and mechanical compulsion restraint.
Functions — 2Restrictions on the Possible Functionsright to communicate 1. Release of thoseProsecution of subject to unlawfuloffences compulsionPublication of a Code 2. Appeals fromof Practice MHTs and other prescribed bodiesPublication of anannual report 3. Advising the Secretary of StateOther functionsprescribed byregulations
ENSURI NG QUALI TY STAN DARDS Modernisation A enc y g National Institute for Mental Health in Engla nd C ounc il for the Re gulation of Health Care Profe ssionals General Soc ial Care C ounc il S E TI NG QUALI TY STAN DARDS T Protec tion of V lnerable Adult s Sc h e e u m National Clinic al Asse ss m nt A t hority e u National Servic e Fr a ework m National Patient Safety A enc y g Care pr ogr a m a pproac h m e Exec utive arra ng e ents m NICE guidanc e Overvie w & Sc rutiny Co m itt ees m Patient s Charter I ndepe ndent Rec onfiguration Panel Perfor m nc e Asse ss m nt Fr a eworks a e m I ndepe ndent Complaint s A dvoc ac y Servic e V lue for m oney/B st value duties a e NH a nd soc ial servic es c omplaint s proc e dures S National Inspec tion Sta ndards Health Servic e Co m issioner mNational Minimum Sta ndard s (c are ho m s, e Loc al A t hority Co m issioner u m indepe ndent h ealthc are) Par li a entary Co m issioner m m General Soc ial Care C ounc il Codes of Patients Forums Prac tic e Co m ission for Patient & P ublic I nvolv e ent in Health m mSoc ial Care Institute of Exc ellenc e guidanc e Patient a nd user surveys Profe ssional Codes of Prac tic e Clinic al governanc e guidanc e Guidelines pr oduc ed by bodies to the right Co m ission for Health Impr ov e ent m m (CH , Audit Co m ission, etc ) I m National Care Sta ndard s Co m ission m Soc ial Servic es Inspec torate Audit Co m ission m I nquiry & Intervention Powers S E TI NG LEGAL STAN DARDS T ENSURI NG LEGAL STAN DARDS Mental Health A t 1983 c Mental Health Revie w Tri bunals Code of Prac tic e on the 1983 A t c Mental Health A t Co m ission c m Co m on la w duty of c are m Court s (Eur op ean C onvention, tort s, o ffenc es) Civil wr ong s (torts) Disab ility Right s Co m ission m Criminal o ffenc es Eur op ean C onvention on H m n Rights u a OT HE R C HANGE S SI NC E 1997 NHS Plan Nat io nal Healt h S ervice (Primary C are A ct ) 1997 (p ilo t s chemes ) C reat io n o f Healt h A ct io n Z o nesEs t ab lis hment o f Primary C are G ro up s , Primary C are T rus t s , C are T rus t s , S p ecial Healt h A ut ho rit ies Part ners hip arrang ement s Healt h Imp ro vement Pro g rammes Perfo rmance- b as ed fund ing Privat e- p ub lic s ect o r C o nco rd at NHS A p p o int ment s C o mmis s io n New p ro vis io ns co ncerning lo ng - t erm care & p res erved rig ht s
Governments & legislation‘He who would make his own liberty secure must guard even his enemy from oppression; for if heviolates this duty he establishes a precedent that will reach to himself.’‘The greater the power the more dangerous the abuse.’
Three liberal issues When does an individual lack the capacity to act autonomously? When is interfering with an individuals freedom to act autonomously justified? What are our obligations to those individuals who are incapacitated or whose freedom we have curtailed?These legal issues are not specific to mental health.They are relevant to each and every area of humanconduct.
Three liberal answersAn individual who is capable of making their owndecision, and able to carry that decision out, hasthe capacity to act autonomously.Interfering with an individual’s freedom to actautonomously is justifiable where there arereasonable grounds for believing (1) that s/he orsome other person is thereby likely to avoidsignificant physical harm or serious suffering, and(2) the harm or suffering likely to be avoided islikely to be less substantial than that caused to theindividual or other persons by the interference.Decisions that an individual is incapacitated orshould be restrained must be just, reliable and inaccordance with the rule of law. There is a duty toprovide care and assistance, and stringent forms ofprotection against the abuse of power.
AUTONOMY Requires CAPACITY FREEDOMfor autonomous action to act autonomously Reduced by LACK OF CAPACITY RESTRAINTSfor autonomous action on autonomous action Liberal obligations BENEFICENCE RISK-BASED, JUST, Vicarious decision LIBERAL, RULE OF LAW Practical assistance
Forward Convention compliant A proper definition of mental disorder Proper limits on the use of compulsion Proper respect for the family Professional discretion Proper consent provisions Treatment without Proper definitions of hospital and treatment consent outside A duty to provide care to those in need An adequately funded independent hospital as an Mental Health Commission alternative to in- Tribunals with mandatory and discretionary powers of discharge patient treatment Tribunals with powers to transfer or grant leave to restricted patients Rehabilitation provisions No treatability Proper safeguards concerning the use of seclusion and restraint criterion Separation of medical treatment and social care New criminal An unqualified Code of Practice Competent drafting legislation Less bureaucratic procedures (violence, drugs) Practical (professional consensus)
Liberty & personal safety‘War is an ugly thing butnot the ugliest of things …A man who has nothing forwhich he is willing to fight,nothing which is moreimportant than his ownpersonal safety, is amiserable creature andhas no chance of being freeunless made and kept so bythe exertions of better menthan himself.’