1 How the law stigmatises people with mental illness George Szmukler Professor of Psychiatry and Society Institute of Psychiatry, King’s College London 21st Feb 2008 Institute of Psychiatry at The Maudsley

2 ‘Physical disorders’ High value placed on ‘autonomy’ Treatment refusals only over-ridden if: –Impaired decision-making ‘capacity’ –In patient’s ‘best interests’ e.g. Mental Capacity Act 2005

3 Mental Capacity Act 2005 A person is unable to make a decision for himself if he is unable – (a)to understand the information relevant to the decision (b)to retain that information (c)to use or weigh that information as part of the process of making the decision (d)to communicate his decision (whether by talking, using sign language or any other means)

4 Mental Capacity Act 2005 ‘Best interests’ Consider, so far as is reasonably ascertainable – Person’s past and present wishes and feelings (including relevant written statements) The beliefs and values that would be likely to influence his decision if he had capacity The other factors that he would be likely to consider if he were able to do so

5 ‘Mental disorders’ Different test: –Mental disorder –of a nature or degree which makes it appropriate…..to receive medical treatment –necessary in the interests of the health or safety of the patient or for the protection of other persons.

6 Why the difference? ‘Physical disorders’ Autonomy Capacity Best interests ‘Mental disorders’ Autonomy not respected in same way ‘Risk’, not capacity Patient’s interests not considered in same way Stereotype of the mentally ill person as not a competent, ‘whole person’

7 Non-discrimination requires that there should be a single form of generic legislation which covers involuntary treatment for all patients who lack decision-making capacity, whatever the cause.

8 Protection of others

9 Mental health legislation confuses ‘paternalism’ and ‘protection of others’. They are quite distinct ends ‘protection of others’ turns on the question of ‘risk’ and does not have a necessary health interest People posing an equal risk of harm to others should be equally liable to detention

10 Treatment for the protection of others Capacity and ‘protection of others’ –if a person has capacity, does ‘danger to others’ provide an acceptable reason for compulsory treatment?

11 Protection of others

12 Mental disorder and protection of others Current and proposed mental health legislation carries a built-in assumption that dangerousness (and lack of autonomy) is an inherent aspect of mental disorder This reinforces stereotypes and is stigmatising (in addition to being discriminatory) Society will usually try to expand the boundary of ‘mental disorder’ as a means of controlling those perceived as threatening

13 Compulsory admissions to NHS facilities, including high security hospitals and private mental nursing homes Total orders, changes from informal to section, and court orders

14 Community treatment orders May be very long-term No ethical objection if based on capacity and best interests Criteria for applying and terminating a CTO would then be clear

15 Non-discriminatory legislation governing involuntary treatment should be generic and based on treatment decision-making capacity and best interests It could be strengthened by ‘importing’ from civil commitment schemes provisions regulating emergency treatment and the use of force.

16 Assessing capacity Can it be reliably assessed?

17 Patients Interviewed by RI 2 Interviewed by RI 1 Transcript of interview rated by: Transcript of interview plus vignette rated by: 1*1* 234 Panel of expert clinicians * Expert clinician 1 also rated MacCAT-T subscales Assessment, diagnosis & treatment by independent clinical teams Figure 1 Rating by clinical team

18 Reliability of ratings (Kappa values) between clinician raters and research interviewer: Based on transcripts and clinical vignettes for the same interview Rater ARater BRater CRater D Research Interviewer Rater A Rater B Rater C0.85

19 Mental Health Act 1983 and the Human Rights Act 1998 With regard to involuntary treatment, does the MHA violate: Article 3 (torture, inhumane or degrading treatment), Article 8 (right to respect for private life), Article 14 (prohibition of discrimination)?