Tracing the lines of assent

Treatment Without Consent
May 17, 1996

Some readers may be surprised that in the first half of this book there is little in-depth discussion about consent. This is not an oversight on the part of the author, a distinguished academic and former Mental Health Act commissioner. Rather, it is a reflection of the fact that the early history of psychiatry was characterised by the cavalier application of one grisly and misguided technique after another, invariably forced upon a disenfranchised, and often captive population.

On one level, the book is a fascinating and meticulously researched historical record of the development of psychiatry. But by focusing on consent, or more appropriately, the lack of it, Phil Fennell is able to show how the historical perspective sheds light on current issues in psychiatry. The dominant theme that emerges is of a "profession" in which clinical autonomy has run amok and patients' rights are nonexistent or overridden. Professional opinion has, in the past, supported clitoridectomies, laxative abuse, tonsillectomies, psychosurgery, mechanical and pharmaceutical restraint as "cures" for mental disorder. What is even more disturbing is that "therapies" that are now totally discredited, such as induced coma and leucotomy, were a mainstream phenomenon, not a marginal aberration.

By tracing the theme of consent throughout history, Fennell forcefully demonstrates that recent legislative changes that will effectively extend forcible treatment into the community may employ different therapeutic methods but in civil libertarian terms are characterised by the same degree of coercion and excess of professional control. Fennell implies that complacency is misguided. We cannot dissociate ourselves from psychiatry's dark ages as being of an entirely different order to our current approaches to the treatment of mental disorder.

Although Fennell acknowledges (albeit on the penultimate page) that psychiatry has made considerable advances over the past 150 years, ethical abuses within psychiatry are still rife. Seclusion is still used as punishment rather than therapy, deaths have occurred from excessive dosages of medication for "emergency sedation", the voluntariness of patients' consent to participate in research is questionable and gender and race biases in treatment are apparent.

Inducements from the pharmaceutical industry, and a desire to be seen as a "medical" discipline have witnessed an unseemly reliance on a drug-based approach to psychiatry at the expense of psychological or psychotherapeutic approaches. The (ab)use of Largactil and other powerful tranquillisers as a means of control is also powerfully documented.

Fennell shows how law has colluded with the psychiatric profession to protect professional autonomy. Part four of the Mental Health Act specifically introduces a regime for treatment for mental disorder without consent. Safeguards introduced in the 1983 act do little to alter the medicalised, rather than patient-centred approach to psychiatry. For example, doctors required by law to provide a second opinion as to the appropriateness of treatment without consent rarely challenge the decision of the patient's responsible medical officer. Recent controversial cases have interpreted the already broad definition of treatment for mental disorder so as to justify the force-feeding of a young woman with a borderline personality disorder and a forced caesarean on a schizophrenic patient.

Provisions in the Mental Health Act prevent patients bringing legal actions against psychiatrists unless they can show that they have acted in bad faith. Rather, the only realistic route to make a complaint is to sue in negligence. Here, too, the patient faces an often insurmountable barrier. The effect of the "Bolam" test for medical negligence, which arose out of a case in which a patient sustained injuries after being given electroconvulsive therapy without the use of a muscle relaxant, is broadly that doctors will not be acting negligently provided they are acting in accordance with a practice accepted as proper by a responsible body of professional opinion. This means that if, for example, prescribing excessive doses of neuroleptics is the norm, a patient will have no legal redress for harm suffered.

At common law, judges have consistently deferred to medical opinion. Treatments other than for mental disorder may be given to mentally incapacitated patients, notwithstanding their inability to consent, or even if in the face of their express refusal, provided doctors feel that it is in their best interests, decided in accordance with the "Bolam" test. Thus, in the case of mentally disordered people, their right to be treated in their best interests amounts merely to a right not to be treated negligently. Ironically, the precedent establishing this principle arose out of a case concerning the sterilisation of a mentally handicapped woman. One wonders just how far we have really come from our own murky eugenic past of the 1930s.

Fennell examines the sweeping reforms proposed by the Law Commission that recommend an overarching legislative framework for decision-making on behalf of the mentally incapacitated, but points out that these reforms do not detract from the need for a radical overhaul of the mental health legislation. The Government has since decided not to implement the Law Commission's proposals.

The obvious conclusion is that ethical safeguards are essential as clinical judgement cannot be relied on to protect patients' rights. Ultimately, the improvement and maintenance of high standards must be orchestrated by psychiatrists. Fennell's concluding remarks sum this up: "The development of high ethical standards and a culture of consent-seeking among psychiatrists are much more likely to improve the position of patients than any amount of legislative reform."

To bring about this transformation, Fennell could usefully have have identified the need for psychiatric ethics to be seen as a central part of the training of all mental health professionals. Greater public awareness and better education will ensure that the next 150 years of psychiatry move away from unbridled abuses of power and towards a therapeutic alliance between psychiatrist and patient. This timely book deserves to be part of that process.

Julie Stone is editor, Medical Law Monitor.

Treatment Without Consent: Law, Psychiatry and the Treatment of Mentally Disordered People since 1845

Author - Phil Fennell
ISBN - 0 415 07787 7
Publisher - Routledge
Price - £50.00
Pages - 356

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