Challenging Psychiatric Coercion by Bob Sapey

During the 1980s I was an Approved Social Worker, and I cannot quite understand how so much power was invested in me. I now understand how little I knew and how little I needed to know in order to satisfy the authorities that appointed me.

Over the years since I have heard and read several firsthand accounts of the experience of ‘being sectioned’ and these have reinforced my concerns about coercion. But it was listening to Jacqui Dillon and Peter Bullimore a few years ago that convinced me that it was not only wrong to invest the authority to detain in social workers, but that it was also wrong to invest it in psychiatry.

Jacqui’s and Peter’s explanations of their experiences, along with so many stories from others in the Hearing Voices Network, simply made much more sense than the ideas constructed by pharmacological psychiatry. So in this article I want to question the professional legitimacy of social workers being involved in the detention and compulsory treatment of people struggling to recover from trauma.

I don’t want to question this legitimacy from a strictly anti-psychiatry position. As Bentall puts it, the challenge to psychiatry today is utilitarian compared to Szasz’s1 arguments fifty years ago. It is not simply about not doing wrong, but of being in a position to offer alternative social and psychological forms of help.

Bentall2 summarises four powerful arguments against coercion:

• Psychiatry has failed to show an adequate understanding of mental disorder, enough to justify its prescribed treatments.

• Pharmaceutical treatments prescribed for psychosis are not only generally ineffective but they have harmful side-effects.

• Coercion can harm a person’s psychological capacity to recover and is therefore, in relation to mental health, intrinsically wrong.

• Compulsion is unhelpful in establishing a therapeutic relationship that could be helpful in recovery.

However, while the arguments against coercion may be growing, so too is its use. In England in 2009/10 there was a 30% increase in the number of people being compulsorily detained in hospital.3 This was almost 10,000 additional people. This is accounted for mostly by psychiatrists and Approved Mental Health Professionals filling beds that had become vacant due to the introduction of Community Treatment Orders.4

In England, the 1983 Mental Health Act allows psychiatrists and Approved Mental Health Professionals to detain people and to treat them without their consent if they are ‘suffering from a mental disorder’ and if detention and treatment are considered to be in the interests of their health or safety, or so as to protect someone else. Yet, at the same time, Article 5 of the European Convention on Human Rights requires states to respect people’s ‘liberty and security’. However, the Convention does make certain exceptions to the right of liberty, including wherever a person is deemed to be ‘of unsound mind ’.

In its ruling in the case of Winterwerp v The Netherlands, the European Court of Human Rights said that:

The Convention does not state what is to be understood by the words “persons of unsound mind”. This term is not one that can be given a definitive interpretation … it is a term whose meaning is continually evolving as research in psychiatry progresses, an increasing flexibility in treatment is developing and society’s attitude to mental illness changes …5

Whilst psychiatry is empowered to assess people and to detain and treat them if they are ‘of unsound mind ’, what is meant by ‘unsound mind ’ is open to argument and challenge.

Szmukler6 has suggested that the UN Convention on the Rights of Persons with Disabilities challenges detention on the basis of a person having a mental disorder. The argument is that the Mental Health Act is discriminatory since it is aimed at reducing dangerousness, yet it only targets people experiencing mental distress – and in fact this excludes most dangerous people.

Two articles of the UN Convention are particularly important. First, Article 12 says that ‘persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life’. The World Network of Users and Survivors of Psychiatry suggests that Article 12 creates a paradigm-change in the attitude towards mental distress. They argue that it means that all people have the right to decide ‘whether to accept medical treatment or go into a hospital’, and that ‘mental health commitment laws violate this Article’.7 However, Article 12 allows states to place limits on a person’s legal capacity in accordance with Human Rights legislation. In English law this means that the ‘unsound mind’ exceptions of the European Convention on Human Rights take precedence (but of course ‘unsound mind’ is not defined or static).

Similarly, Article 14 of the UN Convention states that countries should ensure ‘that the existence of a disability shall in no case justify a deprivation of liberty’. Szmukler suggests that this appears to challenge the legitimacy of the inclusion of mental disorder as a ground for detention by the 1983 Mental Health Act. However Article 14 does recognise that detention may be lawful if it is in compliance with Human Rights CHALLENGING PSYCHIATRIC COERCION legislation. Hence, the legitimacy of detaining someone of unsound mind is still preserved.

Yet what seems to remain is the possibility of challenging the way in which ‘unsound mind’ is understood and used in psychiatric practice.

One group of people who are regularly detained and treated are those who ‘hear voices’. While bio-medical psychiatry maintains that this experience is a symptom of a disease that should be eradicated, other explanations for this experience are sufficiently developed to challenge the continuing legitimacy and competence of psychiatric diagnoses of schizophrenia, especially when they are also used to legally define someone as ‘of unsound mind’.

One way of approaching this might be through the Mental Health Act ‘Code of Practice’. This makes provision for consulting with other professionals with a particular expertise when assessing, say, a young person or a person with learning difficulties. This is the recognition that most psychiatrists will not have the relevant expertise. Those involved in the process of ‘sectioning’, particularly the Approved Mental Health Professionals, could seek to apply the same provision to people who ‘hear voices’, since conventional pharmacological psychiatry has failed to prove itself as possessing the appropriate expertise to work with ‘voices’. Instead, they might only be able to claim to work with ‘schizophrenia’. While there are some mental health practitioners with expertise in working with ‘voices’, there are also many experts-by-experience within the Hearing Voices Network who could, and should, be consulted.

Another approach which might be taken would be to challenge coercive treatment through another UN Convention, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In 2008, Manfred Nowak, the special rapporteur to the UN Human Rights Committee, reported to the General Assembly of the UN on his Review of the Torture Framework in Relation to Persons With Disabilities. 8 In this he wrote:

 Inside institutions, as well as in the context of forced outpatient treatment, psychiatric medication, including neuroleptics and other mind-altering drugs, may be administered to persons with mental disabilities without their free and informed consent or against their will, under coercion, or as a form of punishment. The administration in detention and psychiatric institutions of drugs, including neuroleptics that cause trembling, shivering and contractions and make the subject apathetic and dull his or her intelligence, has been recognized as a form of torture.

If treating people with neuroleptics without their informed consent is torture, then it is contrary to Article 3 of the European Convention on Human Rights – and also to Section 134 of the UK’s 1988 Criminal Justice Act.

Manfred Nowak was quoting from an earlier report to the Commission on Human Rights (February 1986), handed down from a previous special rapporteur.9 This means that for more than a quarter of a century the UN has considered the use of neuroleptics without informed consent as a form of torture.

I believe that it is by now evident that psychiatrists and other mental health professionals ought to practise without coercion. This would make mental health interventions more effective in helping people and it would not compound the trauma that distressed people may have experienced. Psychiatrists and Approved Mental Health Professionals must be challenged to change the way they interpret the phrase: ‘being of unsound mind’.

The UN Convention on the Rights of Persons with Disabilities, decisions of the European Court of Human Rights, and of the UN, all recognise that compulsory treatment with mind-altering and physically destructive drugs is a form of torture. These decisions can and should be used to combat psychiatric coercion, so as to defend and extend the human rights of people experiencing psychosis.

Bob Sapey is a lecturer at Lancaster University.

Endnotes

1. Szasz, T. (1962) The Myth of Mental Illness, London, Secker & Warburg.

2. Bentall, R. (2009) Doctoring the Mind. Why Psychiatric Treatment Fails, London, Allen Lane.

3. NHS Information Centre (2011) Mental Health Bulletin. Fourth report from Mental Health Minimum Dataset (MHMDS) annual returns, 2010, London, NHS Information Centre. Page 20.

4. NHS Information Centre (2010) In-patients formally detained in hospitals under the Mental Health Act 1983 and patients subject to supervised community treatment, Annual Figures, England 2009/10, London, NHS Information Centre. Page 7.

5. Winterwerp v Netherlands 6301/73 (1979) ECHR 4, Paragraph 37

6. Szmukler, G. (2010) How mental health legislation discriminates unfairly against people with mental illness, Gresham College lecture, 15th Nov. 2010, [www.gresham.ac.uk].

7. World Network of Users and Survivors of Psychiatry (February 2008) Implementation Manual for the United Nations Convention on the Rights of Persons with Disabilities [www.wnusp.net]

8. Nowak, M. (2008) Interim report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, New York, United Nations.

9. E-CN_4-1986-15 pdf United Nations office of the High Commissioner for Human Rights.


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