Midweek Medicine: interface with law
Psychiatry’s Peculiar Place
I was struck today (not for the first time) by the peculiar place psychiatry has, in comparison to the other medical specialties. As psychiatrists we are one of only two groups in society who can detain people and restrict their basic freedoms. We can only do so in very closely-defined circumstances, but then again, it’s the same for the police: they can no more grab any random bystander than can we. In any case, the point is we find ourselves in the position of temporarily restricting a person’s freedom – in quite a major way: cops can only lock you up; we can make you take some unpleasant medication too.
So why do we do this? Many argue against it, for various reasons, and the ethical aspects of it would make good fodder for a future Friday Filosophy post, but that’s not what this post is about. This post is about the tension between the legal and the medical aspects of that situation.
The law is very clear about what the grounds are for compulsorily detaining and treating a person. Very clear that is, in legal language and concepts; not in medical or psychiatric language or concepts – though sometimes the Act might (foolishly) use one of our words or phrases, which creates all sorts of confusion. Basically Mental Health Acts exist to provide for the treatment of psychiatrically ill people who refuse treatment … if their illness means there is serious risk of harm to them or to someone else. One part of that is motivated by beneficence, and the latter can stray into social control, but that’s another topic ….
Psychiatrists are (relatively) clear about who we can and would like to help with treatment. Clear in medical and psychiatric terms, that is; not in legalese. We might want to treat someone who doesn’t want our treatment. Mental Health Acts allow us to start doing so, but somewhere along the line we can no longer make that decision, and a judge/magistrate gets to decide what happens. That’s where the medical and legal languages meet and (sometimes) start having a good old-fashioned rumble.
Speaking the Language
The Australian MHA is a good (bad) example: it uses the phrase “mentally ill person”, which makes it sound like it’s speaking our language. The thing is though, the Act includes a definition of what constitutes a “mentally ill person”: it might not include everyone we consider mentally ill – and it might include some we wouldn’t. I guess I’m fortunate in a way, that I quite enjoy coming to grips with the legal interface: understanding what’s actually meant in the Act, and – crucially – learning the best ways to communicate with lawyers and judges, who really do think and communicate in a very different way from us as doctors.
An example of that is a patient I treated some years ago. This patient was very ill: paranoid about their neighbours to the point of throwing bricks through windows and being rather threatening. The provided lawyer went to see the patient prior to the heearing, and came to discuss the case with me afterward. The lawyer was quite disturbed by the interview with this patient, and clearly indicated an understanding of how unwell and dangerous this person was. But … come the hearing, the lawyer strove mightily to get the patient released. Despite real concern for their mental state and dangerousness, the lawyer clearly felt a higher duty to justice, and the process of law. Damn good lawyer too, so if I didn’t know how to speak the right language the patient would almost definitely have been released. 
Speaking the right language is important – I did a 2nd opinion and report more recently for a patient who a judge had ordered should be released. There was to be another hearing, to look at continuing to detain the patient. Clinically it was crystal clear this person remained very ill, and posed high risk, but my guess is that it hadn’t been communicated in the right language to the judge. So I did my best to put it all into the right language, which is not psychiatric jargon. It’s clear, non-medical/lay understandings of terms, adhering strictly to the definitions as set out in the Act, and forgetting for a moment the psychiatric use of any common words – because the meaning in the Act is the important one in that setting.
Final thought:
As a final note, I would ask you to remember this: it is our societies that have decided that some psychiatrically ill people should be detained and treated against their will – and in so doing, given us the (decidedly unwelcome) power to do so. Psychiatrists would be much happier and more relaxed if we – like Thomas Szasz – treated only those people who wanted our care. We’d still undoubtedly have enough to keep us busy, and we wouldn’t have such difficult relationships with a large chunk of our patients, and wouldn’t have to wrestle constantly with the thorny ethical dilemmas that compulsory detention and treatment bring up. We do this however, because we do care – when often no-one else will – and because we know that with treatment, a good proportion of these people will have vastly better lives – and in the long run enjoy more freedoms for it.
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