A single standard should apply to decision-making capacity for both physical and mental illnesses, said George Szmukler, M.D., Ph.D., at APA’s annual meeting in New York in May.
“In physical disorders, a high value is placed on autonomy, even when there is a high risk of death,” said Szmukler, a professor of psychiatry and society in the Institute of Psychiatry at King’s College London. “But for mental illness, there is a stereotype that people with mental illness are not capable of making decisions about their care.”
Coercion in mental health care has a long but highly variable history in psychiatry, said Paul Appelbaum, M.D., the Dollard Professor of Psychiatry, Medicine, and Law and director of the Division of Law, Ethics, and Psychiatry at Columbia University College of Physicians and Surgeons, speaking at the same session.
In the United States, individuals with mental illness could be committed to a workhouse under the “poor laws” in colonial times, he said. In 1752, people with mental illness were treated at the Pennsylvania Hospital (the nation’s first) with other patients, but there was no legal oversight, and the patient’s fate was controlled by his or her family, he continued.
In 1833, Worcester State Hospital opened in Massachusetts, ushering in the era of “moral treatment” in big state hospitals. Voluntary admission began in 1881—initially in Massachusetts, but eventually spreading to other states—but most patients in the following decades were still committed involuntarily.
“People with mental illness were presumed to be not competent to make their own decisions, and the burden was placed on the individual to show restoration of competence,” Appelbaum pointed out.
Those views lasted until the 1960s and 1970s, when institutional care became seen as inherently worse than community care for the vast majority of psychiatric patients, and the state’s power to intervene became limited to a standard of danger to self or others, he said. The dream then was that involuntary hospitalization would “wither away.”
“Involuntary approaches are still with us, but the locus has moved into the community,” Appelbaum said. “The leveraged approaches used can be formal or informal, legal or extralegal, overt or subtle.”
Thus, compliance today may not depend on commitment orders but on the patient’s interest in avoiding jail or hospitalization, maintaining parental custody or student status, or other implied or explicit consequences.
“In the end, neither a blanket rejection nor acceptance of coercion is warranted,” said Appelbaum. “Many people with mental illnesses can and should make decisions for themselves, but the nature of mental illnesses may justify coercive interventions.”
Much hinges on the patient’s autonomy, said Arthur Caplan, Ph.D., a professor and head of the Division of Bioethics at New York University Langone Medical Center. “It makes sense ethically to intrude on a person’s autonomy in the short run if you can build back autonomy in the long run, even if in the short run you may override someone who is manifestly competent.”
Autonomy is the ability to make a choice based on the capacity to reason to a goal or action, using standards in line with accepted conventions of reality, he said.
But it also means having choices. Autonomy requires privacy and time to consider options without pressure. Those options must be authentic and not constricted by real-world considerations such as poverty or addiction. And patients need dignity—a respect for oneself and for the autonomy of others, he said.
Treating people with addictions is complicated by the reality that some addicts are not necessarily incompetent but their compulsions for a substance render them less than fully autonomous. That may permit justifiable intrusion into autonomy, given evidence that treatment works, is safe and can be stopped, and can be reviewed within reasonable time limits, said Caplan.
Szmukler suggested a “fusion proposal.” He said, “A single law would apply to all patients for any nonconsensual, involuntary, or facilitated treatment, without reference to mental disorders,” he said. “It would cover all illnesses in all settings in which the person has difficulty in decision making.”
Patients would be assumed to have decision-making capacity unless otherwise established, he continued. “All practicable steps must first be taken before the person is considered as unable to decide. Any act or decision made on behalf of someone must be done, or made, in his or her best interests.”
“Best interests” means the choices the patients would have made had they retained capacity. An advance health care statement is the best way of making those interests clear, he said. Involuntary treatment is indicated in emergencies but with a stepped process of assessment accompanied by independent review and accountability mechanisms.
“If patients retain decision-making capacity and refuse treatment, they should be treated like any other patient,” he said. “And all people who are equally risky should be equally subject to detention.” ■