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(8) Ethics in medicine

Prof. Lord Robert Winston - Medicine, Ethics and Society

Basic Ethical Principles

EM8

Inconsistencies about madness

43rd day of April in the year 2000: Today we celebrate a most illustrious event! Spain has a king. He has been found. I am this king . . . Now everything has been revealed to me. I see it all as clearly as my own hand. But before this, I don’t know why, before I seemed to see everything through some sort of fog. I think this all can be explained by the ridiculous idea people have that the brain is in the head. Nothing of the kind: it is carried by the wind from the direction of the Caspian Sea.

(Gogol, Diary of a Madman, 1835)

In 1851 Dr Samuel Cartwright published an article in the New Orleans Medical and Surgical Journal describing the mental illness of drapetomania (quoted in Reznek, 1987). This was an illness from which Negro slaves suffered: it was manifest by a tendency to run away from their white masters.

In 1952 the first edition of the US Diagnostic and Statistical Manual of Mental Disorders was published. This is the main US classification of mental illness. Homosexuality was listed as a mental disorder and its status was confirmed in the second edition of the manual in 1968. In 1973 there was debate in the American Psychiatric Association as to the medical status of homosexuality.

By a small majority the Association voted to remove homosexuality from the list of mental disorders.

The classificatory system of disease that is used in most of Europe, including the UK, is the International Classification of Diseases. The current edition includes fetishism as a mental disorder.

This is described as: Reliance on some non-living object as stimulus for sexual arousal and sexual gratification. Many fetishes are extensions of the human body, such as articles of clothing or footwear. Other common examples are characterized by some particular texture such as rubber, plastic or leather.

The diagnosis of fetishism can be made if the person experiences recurrent intense sexual urges and fantasies involving such objects, if he acts on these, if the preference has been present for more than six months, and if the object is the most important source of sexual stimulation. Will fetishism still be classified as a mental disorder in 20 years’ time?

The social and ethical values that lie behind the diagnosis and classification of mental disorders have been under attack since the anti-psychiatry movement in the 1960s. What we count as ‘healthy’ or ‘unhealthy’ sometimes reflects our value commitments, and these can, and should, be challenged. Although the question of what is a mental illness can raise deep and difficult problems, I am going to put these to one side. Some conditions, such as schizophrenia, do render people out of touch with reality, and cause suffering, to such an extent that I will take for granted that these conditions are the proper concern of the medical specialty of psychiatry. What I want to examine are the different standards used in enforcing treatment and secure accommodation for those with and without mental disorder.

I will argue that those with mental disorder are subject to a double injustice. Most Western countries have special legislation to allow patients with mental disorder to be kept in hospital, and treated, against their will. Such legislation typically addresses two issues: first, when can treatment be imposed on patients with mental illness, for their own sake, in situations where they are refusing treatment; and second, how can society be protected from potentially dangerous people with mental illness? I believe it is mistaken to attempt to do these two different things within one body of legislation.

 Crime and mental illness

It is the criminal law that deals mainly with the question of public protection. It is problematic, however, to treat mentally ill people as criminals when their dangerous and illegal behaviour is a result of mental illness. In English law, as well as in the law of many other countries, for a person to be found guilty of a crime two points have to be proven: that it was this person who carried out the relevant act; and that this person had the state of mind necessary to be held responsible for that act. The first aspect is known as the actus reus (‘guilty act’) and the second as the mens rea (‘guilty mind’). The precise mens rea required varies from crime to crime. For example, to be guilty of murder a person must have had ‘specific intent’, i.e. must have had the intention to kill (or cause serious physical harm to) the victim. To be found guilty of manslaughter it is necessary only to establish that the person showed gross negligence.

It is a long-established liberal principle that a person who suffers from a mental illness may be found ‘not guilty’, even though he committed a criminal act, on the grounds that he should not be held responsible for his behaviour, because of the illness. Crudely put: the person’s body committed the act, but the person’s mind did not commit the crime.

A key English case was that of Daniel McNaughten who, like Shakespeare, spelt his name in many different ways. McNaughten suffered delusional beliefs, including the belief that the British Tory Party was behind a plot to kill him. He decided to kill its leader, Sir Robert Peel. In 1843 he shot Peel’s secretary, Edward Drummond, but was prevented from firing a second shot.

McNaughten was acquitted of murder on the grounds of insanity and was sent to a secure psychiatric hospital (the Bethlem hospital in South London, which is the origin of the word bedlam). The acquittal caused public outrage. The House of Lords asked the judges to draw up rules (now known as the McNaughten rules) for determining when someone should be considered ‘not guilty’ on grounds of insanity.

Protecting society from dangerous people

A person without mental disorder who commits a violent crime of sufficient gravity is typically sent to prison. There are a number of reasons for sending such a person to prison. One reason is as retribution: he deserves to be punished. Another reason is to protect society.

There are two crucial liberal principles that are incorporated into criminal law - and are part of the European law on human rights:

1. A person who has not (yet) committed a crime cannot be detained on the grounds that it is expected that he will commit a crime.

2. A person must be allowed back into the community once he has served his prison sentence, although some crimes may attract a life sentence.

These two principles apply, however, only to those who do not suffer a mental disorder. If you have committed a violent act as a result of mental illness you can be detained in a psychiatric hospital as long as it is thought that you pose sufficient risk to others. This may well be much longer than a mentally healthy criminal would have been detained in prison for a similar violent act. Indeed you may be so detained even if you have not yet committed a violent act. I will use the term ‘preventive detention’ to refer to keeping someone in a secure environment (prison or a secure psychiatric hospital) on grounds of protection of others in one, or both, of the following situations: when the person has not (yet) committed a violent act; and when he has committed such an act and been in a secure environment for the length of the prison sentence appropriate to the act. The two liberal principles stated above can now be rewritten as: ‘A person should not be preventively detained’. What worries me is that this applies to those without mental disorder but not to those with mental disorder. And that is unfair.

There is, of course, an important issue of public policy as to how society should protect itself against people who pose significant risk of harm to others. In the UK this is a particularly live issue in the context of those who pose a threat to children. The argument I want to make is an argument about consistency. If two people, A, who is mentally ill, and B, who is not mentally ill, pose the same risk of harm to others, then, if it is right to preventively detain A (on grounds of this risk of harm) it is right to do so to B. Conversely if it is wrong to preventively detain B (as European legislation states) then it is wrong to detain A. Otherwise we are discriminating against the mentally ill.

Are there any reasons that justify such apparent discrimination? I can think of four possible reasons, but none, in my opinion, justifies a different approach to preventive detention.

1. The mentally ill person is more dangerous.

2. The assessment of risk of harm is more certain in the case of those with mental illness.

3. It may be the case that prolonging detention in hospital will lead to further improvement in the mental illness and further reduction in risk of harm to others. It would be silly to release the patient from the secure psychiatric hospital when a further period in hospital would reduce risk.

4. The final reason depends on a distinction being made between what a person wants when mentally ill, and what the person would want if cured of the mental illness. It is typically the case that those mentally ill patients who are preventively detained remain chronically ill. That is why they remain at risk of harming others, and why they continue to be detained. It is possible, at least in theory, to distinguish between what the ill person wants, and what the person might have wanted if well – even though he remains ill.

It might be argued that his genuine wishes are those he would have when well. Since the danger he poses to others is due to the mental illness, it might reasonably be expected that if he were well he would say that he would like, when ill and a danger to others, to be preventively detained. Thus respecting the authentic wishes and autonomy of the person when well would mean preventively detaining the person when ill (and dangerous).

I will consider each of these four reasons in turn. The first reason is irrelevant. The situation I am considering is where the two people – the person with, and the person without, the mental illness – pose the same risk of harm to others.

The second reason might provide weak grounds for a difference in approach if it were true; but it is not. Assessment of risk of harm to others is notoriously difficult whether we are dealing with mentally disordered people or not. In any case the point at issue is whether risk of harm justifies preventive detention. The level of uncertainty over the estimation of risk might alter the threshold but not the principle of preventive detention.

The third reason does not provide ground for treating those with mental illness differently from those without. In both cases a detained person might pose less of a risk of harm to others if further detained. If this continuing reduction in risk gives grounds for preventive detention in those with mental illness then it also provides grounds for preventive detention of those without. I don’t believe, however, that it gives good grounds in either case. If preventive detention is to be justified then it should be on the grounds of the risk of harm to others. If two people pose similar risks then they should be treated similarly.

The fourth reason provides the best argument but even this is unconvincing. The mentally disordered people we are talking about tend to be either those with chronic mental illness or personality disorder. There is unlikely to be good evidence that the person’s ‘authentic wishes’ would be to continue to be detained. In the absence of such evidence it seems highly dubious to keep the person locked up on the grounds of respecting his autonomy.

I conclude that if we think it right for society to lock away mentally ill people who present a certain level of risk of harm to others then we should do the same for those who are not mentally ill.

Conversely if we think preventive detention is an unacceptable infringement of human rights in the case of people without mental illness, it is an unacceptable infringement of human rights for those with mental illness. I leave open which way we ought to go. The point I want to make is that the current position is untenable, because inconsistent and unjust.

Enforcing treatment for the sake of the mentally ill person I wrote at the beginning of this chapter that those with mental disorder are subject to a double injustice. They are discriminated against not only for the protection of others but also for the protection of themselves. It is a long-standing principle in medical ethics and law that those who are ill may refuse what their doctors and others believe is beneficial treatment. A classic example is when a Jehovah’s Witness refuses blood transfusion even when she is likely to die without the transfusion. It is a principle in many legal systems that a competent adult has a right to refuse any, even lifesaving, treatment. This principle applies to the treatment of physical illness. It does not apply however in many countries to those with mental illness. Take the case of England, where it is the Mental Health Act that governs the compulsory treatment of patients with mental disorder.

Under the English Mental Health Act there are three criteria that need to be met in order for a patient to be detained in hospital for treatment:

(1) He should suffer from a mental disorder;

(2) His mental disorder is ‘of a nature or degree which makes it appropriate to receive medical treatment in a hospital’;

(3) The admission for treatment ‘is necessary for the health or safety of the patient or for the protection of other persons’.

I have already considered the inequities inherent when considering the protection of others. I want now to consider the ‘health and safety’ of the person himself.

What is of note about the Mental Health Act is that a person who has a mental disorder may be treated for his mental disorder despite refusal even if he is competent to give or refuse consent.

A competent person with a mental illness can be treated against his will if others (such as a psychiatrist and social worker) think it is appropriate. This is unjust unless anyone with a mental disorder is ipso facto not competent to refuse treatment. But this is not the case. The question of whether someone has a mental disorder is a question left mainly to doctors and it covers many psychological problems which cause distress. Some people with a mental disorder will lack decision-making capacity. Some won’t.

The issue came under legal scrutiny in England in the case of B v Croydon District Health Authority (1994). This concerned a 24-year-old woman who had been admitted to psychiatric hospital with a diagnosis of borderline personality disorder. She had a history of self-harm. She was compulsorily detained under the Mental Health Act following her behavior of trying to cut and hurt herself. In hospital she was prevented from such harmful behavior, but her response was to virtually stop eating and as a result her weight fell to dangerously low levels. By May 1994 her weight was only 32 kilos and her doctor thought that she would die within a few months if she continued to behave as she was doing.

Her doctors wanted to tube feed her in order to prevent her death. She was granted an injunction to prevent this until the case could come to a full legal hearing. Although by the time the case came to a full hearing she was eating, the High Court considered the question of whether tube feeding would have been lawful.

At the High Court the following points were decided: (1) she was found to have the capacity to refuse treatment; but (2) she had a mental disorder, and therefore, despite having the capacity to refuse treatment, she could be treated compulsorily under the Mental Health Act. This was because it was held that she had a mental disorder of a nature and degree that made it appropriate to receive medical treatment in hospital, and that such admission was necessary for her health and safety.

Again it is the different standards being applied to those with mental disorder, compared to those without, that trouble me. It may be right to impose life-saving treatment on a patient who is refusing, and who is competent to refuse, treatment or it may be wrong. But what does not seem right is to change the answer depending on whether the person has a mental disorder. Of course many mental disorders interfere with competence to refuse treatment. Perhaps the High Court was wrong to decide that B had capacity to refuse treatment. We may need to deepen our understanding of how and when mental disorder interferes with such capacity. But what seems unacceptable to me is to bypass this issue altogether and to treat all those with mental disorder paternalistically, while allowing those without mental disorder the freedom to refuse treatment. To do so is to discriminate, once again, against those suffering from a mental illness.

 

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