How would you feel if you or a member of your family was involuntarily detained, forced to take medication with long term side effects, exposed to physical danger and given few means of redress, all at the hands of the State?
This is happening in Australia every day.
Take James, he’s a business analyst and psychiatric patient who was diagnosed with major depression. James – that’s not his real name – says he often can’t get out of bed and has a deep desire to end his life on some days.
James was treated with Electro-Convulsive Therapy (ECT), after he was trialled on three different anti-depressants that did not help him. It was not voluntary treatment but was coercive after he tried to take his own life. His was one of 680 applications to the Mental Health Review Tribunal (MHRT) in 2010 to administer ECT to involuntary patients. The application was approved and he received a course of ECT.
“I don’t feel any happier. I just feel worse. Surely, they could have found me a medication, anything but ECT. It has made my life worse,” he says.
The effects of ECT may have been lasting and he feels he has deficits in his cognition. “My memory is impaired. I still have large gaps in my memory, it is very frustrating.”
This makes studying for a Master of Business Administration (MBA) difficult, although he continues to do well. Moreover, he feels he was lucid enough to contribute to his treatment.
“I was coherent, just suicidal. Surely the psychiatrists could have negotiated with me an alternative treatment,” he says, his face expressing anguish.
“You lose your rights as an involuntary patient. Everything is determined by the psychiatrists and legal avenues are limited to the MHRT or, for example, going to the Supreme Court to get an injunction, which is costly and very few appeals succeed. Maybe I should have exhausted all legal avenues rather than just accept it but I was at an awful stage in my life and not really thinking of these things.”
In NSW, the Mental Health Act 2007 sets out the circumstances in which involuntary treatment of a psychiatric patient can occur. Presently, a person can be detained if suffering a severe disturbance of thought and/or mood, and poses a risk to themselves or others.
Dr Jim Telfer, staff specialist at the Psychiatric Unit at Royal North Shore Hospital, said the concept of ‘risk’ to self or others was regarded as “ambiguous and unreliable” and so has been criticised as “a flawed concept with unreliable methodology”. He said a number of medical practitioners felt the legal system was too restrictive in specifying what is permissible for them to treat.
Dr Telfer points to an increasingly held view in psychiatry that ‘capacity’ should be included in legislation as an assessment tool for coercive measures to be allowed. A patient lacks ‘capacity’ when he/she cannot give ‘informed consent’.
“Informed consent requires patients to know what the treatment is, understand the explanation for the reason it is being given and the nature of the consent they give,” he said.
Where a person lacks ‘capacity’, he/she is not able to make rational decisions. For example, people who are very unwell with voices telling them to kill themselves and are unable to distinguish that these voices are not real are deemed to lack ‘capacity’. These peple cannot currently be treated coercively, unless they make an attempt on their life. In this case, it may be too late to save them.
“The failure to treat a patient is far more common than the actual mistakes in the treatment of patients,” Dr Telfer points out.
“[In the case where coercive measures are necessary], a patient can’t be morally regarded as responsible for their actions, which puts a moral responsibility onto other people.”
Peter Smith, a lawyer who formerly worked at the NSW Medical Council, regards ‘risk’ as an appropriate tool for detaining patients. “I would say it is morally appropriate to use coercion in psychiatry only in cases where the patient is clearly a danger to themselves or a danger to others,” he said.
But there are problems with the use of coercion to treat patients. For example, in NSW there have been instances where the legal status of a patient has been misunderstood by the psychiatrist. Patients have been subjected to forced treatment, despite their voluntary status.
“Treatment has been given against a patient’s will in contravention of the NSW Mental Health Act 2007,” says Dr Telfer. He notes that these cases are rare but problematic from a human rights perspective. They have also been the subject of legal proceedings.
The Mental Health Review Tribunal Annual Report for 2011/2012 highlights the problem of incorrect application of ‘coercion’. The MHRT found on 26 out of 775 occasions, (3.4 per cent) a medical officer’s decision to use coercion was inappropriate and ordered that the patients be discharged.
“Of course it is a problem if there is incorrect coercion,” says Dr Telfer.
Mr Smith agrees the current model is flawed insofar as a patient can be held at a psychiatric facility for as long as 7-21 days before an appeal is heard. During this time, patients can be subjected to forced medical regimes that may include chemical restraint. While patients may have the right to independent review by another psychiatrist, the prevalence of patients being incorrectly treated is highly problematic from both a legal and moral perspective.
Another issue is that sexual assault can and does occur in psychiatric facilities.
“In hospitals, as in the community, there are situations where people are sexually molested or assaulted,” Dr Telfer said.
Males and females can be kept together on the same ward. Some patients are a threat to others and some are a threat to themselves. The lack of separation between patients who are a danger to themselves and patients who are a danger to others is “dangerous and frightening” for patients says Mr Smith.
Then there is the legal jargon. Mr Smith does not believe many people really understand their rights, even at the best of times, and for these patients their ability to comprehend such rights may be limited. He notes that during one visit, there was a sign he read on the wall explaining patients’ rights that even he could not understand.
James’s story raises important human rights questions about the use of coercion, particularly in relation to invasive treatments such as ECT. While James did not respond to the anti-depressants he was put on, he believes there were other options.
“I guess I was treatment-resistant to some degree but there were certainly a few more medications I could have tried. ECT should be an absolute last resort. I do not feel this was the case for me but they [the MHT] approved it so I had no choice,” he said.
What is clear is that psychiatric patients are amongst the most vulnerable people in our society. In many instances, they are the ‘forgotten people’, often alienated from family and friends, and locked away at the mercy of an overworked system where human rights may not always be the priority.
