Suitable cases for treatment?
Carole Caulfield
How would you feel if, completely innocent of any crime, you were taken away, locked up and deprived of your freedom, without any kind of trial, and then compelled to undergo 'treatment' of questionable value? This may sound improbable, but, in fact, it appears to be quite a common occurrence. The victims are mental patients. 'Clearly, the right to liberty is now denied to free people in free societies more often on psychiatric grounds than on any other. In such societies many more people are now deprived of their liberty by being incarcerated in mental hospitals than by being incarcerated in prisons' (Professor Thomas Szasz).
The 1959 Mental Health Act has several sections dealing with compulsory admission which have aroused much criticism. The most basic criticism concerns compulsory detention itself — should a mentally ill person be detained against his will when, if physically ill, he would not be? As Szasz argues, what right does society have to compel a person to be cured? A person can, of course, enter a .hospital on a voluntary basis, and to this Szasz has no objection, but he may then be detained as a formal (involuntary) patient if he becomes 'more disturbed' while in hospital.
Admission to hospital can be compulsory on a number of counts. limier section 29 of the Act, anybody can be admitted to mental hospital for seventy-two hours if it is a case of 'urgent necessity'. Only one medical recommendation is needed. This section was brought in strictly for emergencies, but in 1975, for instance, in some local authorities over 90 per cent of short-term compulsory admissions were ' made under this section.
Under Section 136 a mentally disordered person can be admitted to 'a place of safety', such as a mental hospital, for seventy-two hours. In this case it is a policeman who can make the recommendation. One may be forgiven for. wondering how a policeman could be considered competent to diagnose mental disorder. Even psychiatrists them selves seldom agree on such matters, and the definition of mental illness given in the Act is very vague and imprecise.
The application for admission (under sections 25 and 26) is made by the patient's nearest relative or social worker upon the written recommendation of two doctors. A person admitted under section 25 is there for observation and can be detained for up to twenty-eight days, while under section 26 he is admitted for treatment and can be detained for up to a year. In the whole of Europe and North America, England and Wales are the only countries to practise compulsory admission for observation, and they have been criticised on this count by the World Health Organisation. Section 25 is open to abuse, as the DHSS admits in a consultative document; people 'have, in fact, been treated although supposedly in hospital for observation only.
On entering hospital a person is deprived of certain rights: the right to a full enti tlement to state benefits and pensions, the right to a driving licence; his mail can be read and even withheld from him and, what is more important, he loses the right to full, unimpeded access to the courts. In essence this means that, if a mental patient feels he has been maltreated, he would find it very difficult to institute proceedings against the person concerned. The High Court would have to give leave and would not do so 'unless satisfied that there is substantial ground for the contention that the person to be proceeded against has acted in bad faith or without reasonable care.' In addition, although the Mental Health Act has pro visions relating to the length of time a person can be detained, in practice the period of detention can be extended indefinitely on the advice of a doctor.
Can a patient appeal against his detention? An important difference between sec tions 25 and 26 is that only when admitted under the latter has a patient the right of appeal. Neither has he the right if admitted under sections 29 and 136. Appeals are heard by the Mental Health Review Tribunal, an independent body which is sup posed to act as a safeguard against unfair detention. Membership of the tribunal includes a doctor, a lawyer and an experi enced lay member. A tribunal's power is limited to approving or disapproving the discharge of patients and it has been criti cised on the grounds that it tends to accept the view of the doctor in charge; if the doctor opposes discharge, the tribunal will normally follow suit. It is up to the patient to appeal — there is no automatic referral — and because of this less than 20 per cent of those eligible do apply. Furthermore, very few are, in fact, eligible; in 1975, for instance, only 3 per cent of all non-criminal cases had the right of appeal. At the hearing of the tribunal medical evidence is considered the most important kind of evidence, yet the patient or his relatives are not always
allowed to hear it. In contrast, a criminal in a formal court of law is always given an opportunity of hearing the case against him, as well as presenting his own side, and this occurs before he is convicted and impris
oned, not after. Yet a mental patient who has committed no crime is detained without a trial and actually has to appeal to obtain
any kind of hearing at all. It should also be recognised that where the power exists f detain people without a trial, there is the danger of abuse for political purposes, frequent occurrence in the Soviet Union., Alongside compulsory detention ° another controversial and hotly debate' issue: compulsory treatment. 'There art freedoms, other than liberty, which can V endangered by psychiatrists. I refer to forn° of treatment in which the effects an irreversible or so untried as to leave tilt outcome of treatment in doubt' (Dr Hon) Rollins). Prominent amongst such trail' ments are electro-convulsive therapy an,' psychosurgery. What is the position Wit' regard to their use? Is the consent of the patient being obtained? As section 26 authorises compulson detention for treatment, this has frequent') been taken to mean that consent to treat' ment is thereby implied and no further eon sent is necessary. However, the Coo' federation of Health Service Employee' the psychiatric nurses' union, have recent') been told by their legal advisers that cony pulsory treatment in a psychiatric hospitaP unlawful, even for patients compulsort'l detained. It is currently understood that in the ease, of informal (voluntary) patients, cons' should always be obtained for any treat' ment. However, the Citizens' Commission on Human Rights (CCHR) and 0," National Association for Mental Hat" (MIND) have substantial evidence shovallfg that informal patients have been given EC' and drugs without their consent. The thy lowing, a statement by an ex-army capfa,,Iti: is typical of cases on file with CCHIsi 'Despite the fact that I refused permissinn'i was given some seventeen treatments 0 ECT which confused me and greatly ehs; turbed my memory such that I could Pe: recognise any friends.' Even when cons& is obtained, in most cases it represents i nothing more than a signature on a fon° from a patient, unaware of the nature of the, treatment and its risks. 'All I was told aboltd. it [ECT I was that "I would go to sleep an wake up happy".' (A young housewife). To ensure that patients are made aware, of the risks involved, legislation is needeth possibly along the lines of that recent') IY, passed in California, which states that All informed consent must be obtained priori°, psychosurgery or ECT. And even when tIlls has been done, a three-physician committee, must agree unanimously to go ahead afte„' reviewing the case. Compulsory detentio: and compulsory treatment are vital issuesi they strike at the heart of fundament°, human rights. To detain a person who committed no crime and to submit hint t° physical treatment against his will gne: against the spirit of such international code. of ethics as the Nuremburg Code and thcf United Nations Universal Declaration n, Human Rights, to which Britain is a al natory. The Mental Health Act urgent needs revising and clarifying to ensure tint such basic human rights are not violated.
Previous page
