Happy New Year, first of all.

The other day I happened upon a 2008 paper by Large, Nielssen, Ryan, and Hayes, entitled “The danger of dangerousness: why we must remove the dangerousness criterion from our mental health acts.” (J Med Ethics 2008;34:877-881). I won’t link to it, as it’s not freely available. However, I will summarise the main arguments as best I can, and then discuss both my agreement and concerns.

The authors’ point is that dangerousness is not a logical, useful, or ethically-sound, criterion on which to base involuntary psychiatric treatment. They then suggest a person’s capacity to consent as a better replacement.

They start with some historical background on the Obligatory Dangerousness Criterion (i.e. not simply that dangerousness can justify involuntary detention and treatment, but that only dangerousness (to self or others, generally) can do so). They then present arguments against the validity and value of an ODC: that the reasoning behind it is flawed, and its effects unhelpful and possibly even harmful.

First they argue that an ODC is unnecessary as a justification for overriding a mentally ill person’s autonomy, because their illness has already robbed them of their autonomy. This is the point at which I began annotating my PDF… it seems to me to be a rather sweeping generalisation to write, as they do:

“In most cases mentally ill people who refuse treatment do so because their mental illness has robbed them of their capacity to consent to that treatment.”

O rly? “most cases”? That’s definitely a statement I would have liked to have seen backed up by a slew of references – especially as it forms the basis of their later suggestion.

Anyway…

They go on to make I think more cogent arguments against an ODC. First they draw a comparison with non-psychiatric situations where a person might be unable to consent to treatment, and make the point that dangerousness is not a part of the decision-making about their treatment.

Second (and deserving its own paragraph), they discuss our inability to be clear about dangerousness in any really reliable way. Even using the best available actuarial tools, in controlled research settings, you see unsupportably-large amounts of misclassification of risk (they cite particularly the MacArthur Study of Mental Disorder and Violence, in which – despite a higher baseline prevalence of risk than one would usually be dealing with, which increases one’s positive predictive value – 29% of the study subjects were misclassified).

And that’s the best case scenario. By a long way. Most studies agree that a psychiatrist has no better ability to predict who will or won’t kill themselves or someone else, than flipping a coin.

So, I agree with these authors: that seriously undermines the justification for an ODC.

Next they take on the utility of an ODC. One might argue on utilitarian grounds that if an ODC is useful, then let’s go with it even if it’s not logically or clinically justified. I wouldn’t, but one might…. However, they discuss some evidence showing that the Duration of Untreated Psychosis is longer (by 5 months) in countries with an ODC compared to countries without – and they say that was not able to be explained by clinical characteristics of the patients, or by the funding or delivery of psychiatric services. The longer the DUP, essentially the worse the clinical outcome for the ill person. They then cite studies showing a statistical correlation between longer DUP and greater risk of violence, suggesting (in an indirect manner, it should be said) that the adverse effects of an ODC (assuming that is in fact what is causing the problems) are not just limited to the person themselves, but also may involve harm to others.

So, an ODC doesn’t make sense, and isn’t useful. But no-one wants to return to just locking up psychiatrically ill people because they’re psychiatrically ill, so what do we use instead? These authors suggest an assessment of capacity:

“Mental health acts should be redrafted so that treatment without consent can be provided to a mentally ill person if and only if:
1. It can be reasonably held by an independent authority that the mentally ill person lacks the capacity to consent to the proposed treatment.
2. It can be reasonably held by an independent authority that the mentally ill person will gain substantial benefit from the proposed treatment, or alternatively, if a proxy decision maker believes that the mentally ill person would have consented to the treatment had he or she the calacrity to do so.
3. The treatment is provided in the least restrictive environment practicable.”

They go on to say that such a change in criteria:

“…would return the fulcrum for compulsion to its proper place. That is, that the mentally ill person has, usually by virtue of their illness, lost the capacity to see themselves as ill, and as in need of treatment.”

And that, I have a problem with. While I agree with the argument against an ODC, I have serious reservations about the use of capacity as a replacement. In practice I think it would mean people would be detained simply for refusing treatment – with their lack of capacity to consent to treatment being assumed, tautologically, by virtue of their refusal of treatment.

Taking a step back from the practical reality, this also requires a substantial value judgement about both mental illness and the available treatments, and an assumption that the ill person must necessarily share our adjudged values – or that if they don’t, it must be a reflection of their illness, and warrant involuntary treatment.

I accept that there are established methods for the assessment of capacity, and their (mandatory) use might address my first reservation; however, I’m left with the second, and I’m not sure how to surmount it.

In addition, if we were to allow involuntary treatment of someone who lacks the capacity to consent, then why only in psychiatric illness? Why even specifically in psychiatric illness? Shouldn’t this argument then just represent a call for a “Health Act” allowing involuntary treatment of anyone who lacks capacity to consent to treatment of whatever ailment they have?

Cat … pigeons….

And are we talking passive assent or real informed consent? – And how would we monitor the consent processes in relation to such a “Health Act”?

Sadly, I don’t have any answers. I do think the ODC should go. It’s senseless, and probably either useless or actually harmful. However, I’m unconvinced that capacity to consent is a reasonable replacement, and I can’t think offhand of anything else.

Not an easy thing, figuring out what might constitute a reasonable justification for removing a person’s basic human rights …