The Bradford Group are pleased to have the opportunity to comment on the Scoping Study Committee's draft outline proposals, which were discussed at the Group's most recent meeting in London on 23rd April. Many aspects of the draft proposals are welcomed, particularly the importance attached to the principles of non-discrimination, autonomy, reciprocity, user participation and consensual care. We particularly welcome the prominence given to advocacy and advance directives, which we regard as an important way of responding to some of the ethical dilemmas raised by compulsory treatment. We remain deeply concerned about compulsory treatment in the community and it is our view that compulsion, whether in hospital or community is inimical to the principles of non-discrimination, autonomy, and consensual care. In the light of this the principles of user participation, advocacy and reciprocity assume even greater significance and importance.
1. Advocacy and advance directives
The draft proposals attach particular importance to what are described as 'Positive Rights' (paragraph 26), which include the right to independent legal advice, and an 'authorised representative'. Under the heading 'Safeguards (paragraphs 32 and 33), the proposals are 'minded to recommend' statutory recognition of advance directives and suitable arrangements to make trained advocates available. We welcome these proposals which have our full support. However, closer examination of the detailed proposals indicates that these prefatory comments are little more than declarations of intent which lack substantive mechanisms to ensure their implementation. For example, in section D concerning the constitution of the new tribunals, the draft proposals have missed an opportunity to include service users (suitably trained) in the membership (para 91). According to the Mental Health Act Commission (personal communication), there were two service users who were Commissioners in 1998. The MHAC would like to increase this number. The inclusion of service users in the new tribunal system would go some way to balancing professional and medical opinion. There would have to be a genuine commitment to recruiting and training service users to participate in this. This responsibility would fall on the shoulders of the independent body set up to monitor the new tribunal system, which would have to be adequately resourced.
We welcome the recommendation that advance directives should be given statutory recognition, but we are deeply concerned that in its more detailed statements, the draft proposals appear to fall short of a genuine commitment to a statutory right to advocacy. Elsewhere some of our members (Thomas & Bracken, 1999) have argued that patient advocacy is of immense practical value in trying to balance conflicting ethical dilemmas encountered in the practice of clinical psychiatry. In our view, the ethical changes proposed in these draft proposals are of such magnitude (compulsory treatment in the community), as to render a statutory right to advocacy an absolute necessity. We recognise the difficulties in devising a method of establishing a statutory right to advocacy directly enforceable by the patient, referred to in para 220, but we would urge the Scoping Group to make the strongest recommendation to Ministers to ensure that there are sufficiently well-resourced mechanisms in place to guarantee the right to both statutory advocacy and advance directives.
2. Weaknesses in the safeguards offered by the new tribunals
The Scoping Group attaches particular importance to redefining the role played by Tribunals. We agree with the Scoping Group's justification for reversing the Percy Committee's policy about professional opinion in the area of mental health law, and we fully support the emphasis placed on 'demedicalising' mental health practice. We therefore welcome the idea of removing the arbitration of compulsion from doctors, and giving some of these powers to an independent tribunal. We also fully support the principle that patients must be fully involved at crucial stages in decision-making. However, we have reservations that the proposals as they stand are not sufficiently strong. The draft proposals (paragraph 94) correctly draw attention to concern about the independence of the medical members of tribunals, who have contradictory roles as expert witness and decision maker. In paragraph 139 it is proposed that after two months of medication, the clinical team responsible for the patient's care must apply for authorisation to the medical member of the tribunal for authorisation to continue, at which point '...the tribunal would act solely through its medical member who would be required to examine the patient and to perform a function similar to that currently performed by the second opinion appointed doctor.' This suggests that decisions about continuing medication beyond two months would be left to the medical member, who would act without reference to other members of the tribunal. In our view this proposal completely disregards the Scoping Group's own concern about the independence of the medical member. It would result in even more power being vested in the hands of the medical member who would sanction the use of medication. The Scoping Group rejects an alternative, in which the tribunal would have to seek an independent expert report, on the grounds that it would be too costly. If the Scoping Group is genuinely concerned with the principles of reciprocity and the protection of autonomy, we believe that it must support the right to a fully independent medical opinion. It is our view that tribunals which review detention and compulsory medication must hear the opinion of non-medical personnel as well. Decisions, which may have serious effects on the patient's quality of life, must not be left to the medical profession alone. Such tribunals should hear medical evidence from an independent medical expert who presents evidence concerning the patient's response to treatment, and the final decision should rest with the tribunal.
3. Grounds for Compulsion
a. Ethical aspects
The key changes are to be found in paragraphs 58a (page 23) and 104b (page 31). At present it is only possible to subject someone to compulsion once their condition has deteriorated to such a point that they would warrant detention in hospital. The proposal now is that their condition has only to 'warrant assessment' for an assessment order, or 'requires care and treatment under clinical supervision' for a compulsory treatment order, which can now occur in the community or in hospital. The important point here is that these criteria make it possible for people who are functioning at a level compatible with independent living in the community to be coerced into treatment or assessment. This is a considerable extension of compulsory powers. It may well mean that more people will be seen to fall under the remit of the mental health act, and this, in the absence of any objective criteria for deciding upon levels of functioning, opens up possibilities for an enormous extension and abuse of psychiatric power.
b. Compulsion and medication
The notion of compulsory treatment, whether in hospital or in the community, is based on a number of assumptions. First, it assumes that the person's disturbance is to be understood primarily in terms of illness. Second, it assumes that the disturbance, as illness, will be controlled in the short term by medication. Third, it assumes that longer term treatment will prevent a recurrence of the disturbance. In addition to this, it also makes certain judgements about the relative value of treatment against the loss of the person's autonomy. Most people would agree that greater certainty over the benefits of compulsory treatment (that the person is ill, that the illness will respond in short term, and recurrence prevented in the long term) means that loss of autonomy may become more acceptable. Whilst the Scoping Group acknowledges the conflict between compulsory treatment and autonomy, the proposals as they stand indicate that it appear to favour compulsory treatment at the expense of autonomy, and, therefore, that it is convinced in its own mind about these assumptions. Our first submission presented evidence to challenge the Scoping Group's confidence in this judgement. First, there is conflicting expert evidence that neuroleptic drugs are effective, especially in the long term control of psychosis. Second, most research reveals a great diversity in the outcome of schizophrenia, with many patients having a single episode without recurrence, and many patients having a very poor outcome despite the use of long term medication. We do not share the Scoping Group's confidence in the predictive validity of psychiatric diagnosis. Third, experts have cast doubt on the validity of drug trial studies that have been widely used to support the argument that neuroleptic drugs are effective in the short and long term control of psychosis.
The Scoping Group must bear in mind that there is no consensus within the profession as to the merits of different forms of treatment. For example, a patient with a bipolar mood disorder may well be placed under a community treatment order for refusing to take the drug lithium on a long-term basis, since this is supposed to prevent relapses. The future possibility of a manic relapse could easily be considered to be a "substantial risk of serious harm to the health or safety of the patient or to the safety of other persons" so that this could happen to a person with capacity, i.e. someone who was completely recovered and functioning normally in society. Although most psychiatrists continue to prescribe lithium, recent work has shown that the evidence for its supposed effectiveness is seriously flawed (Moncrieff, 1995; 1997). It is now clear that withdrawal of lithium may actually cause episodes of mania. This calls into question the usual assumption that lithium acts to prevent relapse. There are therefore good reasons why patients may wish not to take lithium treatment. Similar arguments apply to the use of long-term neuroleptic medication in psychoses. The psychopharmacological mechanisms thought to be responsible for tardive dyskinesia may also be responsible for a 'withdrawal' syndrome if these drugs are discontinued suddenly after many years of use (see Thomas 1997 for a detailed review of this evidence). Psychiatrists interpret this as a 'relapse' of illness, when in fact it may be a disordered physiological state brought about by rapid discontinuation of neuroleptic drugs. The patient is thus told that s/he will have to stay on the medication indefinitely, when in fact it is often possible for the patient to come off medication, if it is withdrawn gradually. As patients become more aware of these risks they will become much less likely to want to take long-term medication.
In our view, this evidence casts sufficient doubt over assumptions two and three. The benefits of psychotropic drugs are not clear-cut. We believe that many psychiatrists overestimate their benefits and pay too little attention to the serious side effects of these drugs. It is therefore extremely important that there are adequate safeguards to protect the patient's best interests in decisions about medications.
For these reasons we urge the Scoping Group can make an unequivocal commitment to safeguards which protect and preserve autonomy (i.e. right to advocacy, advance directives, independent medical evidence at tribunals, and service users as members of tribunals) . We shall consider these safeguards below.
The proposal, as it stands at the moment, represents a considerable threat to the human rights of people identified as suffering from mental illness. The Scoping Group must consider very carefully the possible future implications of the legislation it is proposing. The arguments put forward in support of the extension of compulsion from hospital to community make no reference to the possible directions this takes us. In some American States, receipt of state benefits has been tied to compliance with medication, so that if a patient stops taking medication, benefits are stopped. Is the Scoping Group happy that this will not occur in this country in the future?
c. Practical considerations
No mechanisms have been proposed for the implementation of compulsory medical treatment in the community, but there are two ways in which it might work. Patients could be removed against their wishes to an appropriate place where they would be given medication. Where would such an appropriate place be? The hospital? A clinic? The principle of subjecting someone who is well enough to be living in the community to procedures such as the forced ingestion of drugs, blood tests for compliance, forced attendance at day centres possibly under escort by the police, is totally unacceptable. Such treatment is normally reserved for those in society who have committed crimes and are on probation. It would be tantamount to treating the mentally ill as criminals. It would add to stigma, not reduce it, and single out this group of people for even more public fear, disgust and revulsion. Many people feel that despite its weaknesses, the 1983 mental health act tried to strike a fair balance between compulsion and autonomy. Treatment could be given against the person's wishes, but only in hospital.
Paragraph 115 of the draft proposals addresses concerns about the inappropriate use of medication, but it cannot justify restricting these concerns to what it calls 'sub-optimal drug(s)'. The use of neuroleptic medication, especially in high doses, carries significant risks to the physical safety of the patient. People on high doses of these drugs require close monitoring by medical and nursing staff. They may require regular and frequent blood tests because of risks of liver damage or severe forms of anaemia. They may also need regular ECG tests to ensure that high doses of these drugs are not having dangerous effects on the heart. We do not believe it is safe to use polypharmacy or higher than recommended BNF doses of drugs in the community. Is the Scoping Group suggesting that this can be done safely in the community?
The draft proposals point out that problems with compliance in the community could mean that the newer drugs, which at present are not available as longer acting injectable preparations, will be underprescribed. It goes on (para 115) to seek views on the monitoring of compliance with such medication in the community. Tests to monitor compliance will depend upon the patient's willingness to give blood, urine or saliva samples, and this raises the difficult issue as to what should happen if the patient is unwilling to provide such specimens. Is the Scoping Group suggesting that patients in the community should be compelled to provide a specimen? If so, how is this to be done, by whom, where? We can think of no situation in which this would be justifiable. In any case, the same problem is encountered at the moment with detained patients in hospital taking the newer oral neuroleptic drugs. We remain opposed to the notion of compulsory medication in the community. It is our view that it is unethical and unsafe. Medication should only be given against the patient's wishes in hospital, as is the case under the 1983 act.
Most of the service users we have discussed these issues with remain strongly opposed to compulsory treatment in the community. Like us, they acknowledge that there are times when compulsion is unavoidable, but if this must happen then they would prefer it to happen in hospital. For many service users the community is a haven from psychiatric services, a place of safety where they can have 'time out' from psychiatry. The extension of compulsion into the community threatens this respite. Compulsory treatment in the community coupled with potentially invasive new types of service, such as 'Assertive Outreach' which will almost certainly be included in the National Service Frameworks, may result in further estrangements between patients and services. Many people would not wish to have contact with such services, and would struggle to avoid doing so. The Government has repeatedly stressed the issues of safety and security in its statements about the need to change mental health services. A combination of compulsory treatment and assertive outreach could have the paradoxical effect of driving people away from services, thus increasing risks to the public and mental health professionals.
4. Preventive detention
The group would not wish to see any of the three options listed by the Scoping Group to be enacted, since they are all based on the assumption that those deemed to have capacity to refuse treatment can be detained on the grounds of dangerousness, and the only difference among the three options is whether and when treatment could be given compulsorily. We reiterate in the strongest terms our opposition to detention in hospital on grounds of perceived dangerousness in the absence of the commitment of a criminal offence. Not only is this a policy highly vulnerable to political abuse, as in the Soviet Union, but it is untenable due to the poor predictability of violent behaviour. Risk assessment does not fulfil the criteria required if a screening procedure, which is what it is, is to be implemented: 1) It has poor sensitivity and specificity; 2) it is ethically unacceptable 3) there is not an effective treatment to be offered as a result of screening positive for dangerousness, and 4) would be far too costly if it were logically implemented, since this would result in the preventive detention of all those who present a danger to others e.g. whenever under the influence of drugs or alcohol.
Moncrieff, J. (1997) Lithium: evidence reconsidered. British Journal of Psychiatry. 171, 113-119.
Moncrieff, J. (1995) Lithium revisted: a re-examination of the placebo controlled trials of lithium prophylaxis in manic- depressive disorder." British Journal of Psychiatry. 167, 569-573.
Thomas, P. (1997) The Dialectics of Schizophrenia. London: Free Association Books. (see Chapter Six).
Thomas, P. & Bracken, P. (1999) The Value of Advocacy: Putting Ethics into Practice. Psychiatric Bulletin. In press, June 1999.
Members of the Bradford Group
Simon Baugh Consultant Psychiatrist, Bradford Community Health Trust
Mike Basher Trainee psychiatrist, The Maudsley Hospital
Pat Bracken Consultant Psychiatrist, Bradford Community Health Trust, and Senior Research Fellow, University of
Christine Dean Consultant Psychiatrist, Wolverhampton Health Care
Duncan Double Consultant Psychiatrist, Norwich
Claire Henderson Research Psychiatrist, Institute of Psychiatry
Steve Hopker Consultant Psychiatrist, Bradford Community Health Trust
William Hopkins Consultant Psychiatrist & Lead Medical Clinician, Barnett Health Care Trust
Rhodri Huws Consultant Psychiatrist, Sheffield
Joanna Moncrieff Research Psychiatrist, Chelsea & Westminster Hospital
Marcellino Smyth Consultant Psychiatrist, North Birmingham Mental Health Team
Phil Thomas Consultant Psychiatrist, Bradford Community Health Trust, and Senior Research Fellow, University of Bradford