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showing evidence of psychopathic disorder began to be treated in therapeutic communities. The move away from segregative control in mainstream psychiatry meant that the method to control antisocial behaviour became less feasible. Forensic psychiatry in contrast still had the segregative means to effectively manage such deviance.
Indeed, it seems to be that the precondition of the psychiatric detention of this group is gov- erned by the demands of security and public threat, rather than mental state. As patients who have committed offences, they are likely to be detained for a period at least commensurate with the gravity of their offences (Norris 1984; Peay 1989). This is true also for those who have committed minor offences. An American study, using a large random sample of misdemeanour defendants, found that those with a psychiatric history were ‘criminally sanctioned more severely than defend- ants without psychiatric records, and defendants with relatively extensive psychiatric records were even more severely sanctioned’ (Hochstedler-Steury 1991: 358).
At the turn of the twenty-first century, the British State exerted its right to impose an admin- istrative concept of personality disorder in order to cut through or over-ride professional ambiva- lence (Department of Health/Home Office 1999). This involved the construction of and use of a new category of ‘dangerous and severe personality disorder’ (DSPD). The impasse over which sector (prison or health service) has responsibility for the management and containment of peo- ple with personality disorder was in part been resolved by this State intervention, which included the development and funding of new services.
The solution to the tensions posed by the precarious validity of personality disorder noted above would not have been resolved without the intervention of the State, which refused to rely upon ‘medical science’ alone. Manning (2002) has shown, through the use of actor network theory (Law 1992) and the analysis of policy networks, the mechanisms behind the effective intervention of the State in this arena. It managed to secure a practical policy outcome, despite the contro- versies surrounding the description and treatability of personality disorder rehearsed above. The State funded and promoted professional networks and research designed to achieve the outcome it desired. It even named and promoted this sponsored network, as the ‘Virtual Institute of Severe Personality Disorder’ (VISPED).
Key players within forensic psychiatry and psychology, and others in the academic medical and criminological centres of excellence, were recruited into the policy development. Money was made available to generate both research capability and capacity. Younger people were attracted into the field through PhD, postdoctoral and other research fellowships. ‘Pilot’ services were funded and evaluated.
The characterization of the new service as a ‘pilot’, when it actually looked like the final ver- sion, acknowledged the difficulties of a thin evidence base. At the same time, it warded off criti- cism from professionals and engaged them in a policy development, which could build upon what had been started by government initiative. The research capacity and activity was put in place to furnish the technical capability of DSPD diagnosis, assessment and treatment, in the classic manner of the sociology of ‘translation’. That is, the network enrolled, co-opted and disarmed the professional interests and stabilized the development and production of new knowledge.
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Szasz (1963) has argued that as long as there is legislation authorizing compulsory detention there can be no genuine voluntary admission. The latter status is vulnerable to threats of invok- ing the former. Bean has used the term ‘coactus voluit’ (‘at his will although coerced’) (1986: 5) to describe voluntary admission. In his research into compulsory admissions to hospital Bean found that assessing psychiatrists sometimes gave patients a ‘Hobson’s choice’. Patients were informed in a non-negotiable way of their impending admission or told that if they did not come into hospi- tal voluntarily they would be compelled to do so (Bean 1980). A substantial minority of patients who are admitted to hospital as voluntary patients regard themselves to be there under coercion (Rogers 1993).
This illusory status of voluntary patients has become less relevant practically in recent years in Britain, in the wake of large hospital closures. A consequence has been that the smaller number of in-patient beds have been reserved overwhelmingly for involuntary cases. In the early 1980s, notionally, only a minority of patients was involuntary and the bulk was voluntary. This balance is now inverted. A second illusion can now be dispelled because of the smaller inpatient infrastruc- ture. While the professional campaign of psychiatrists to move from the old asylums to new DGH units was based on a rhetorical alignment with mainstream curative general medicine (Baruch and Treacher 1978), by the turn of the twenty-first century, these units had been reduced to hold- ing units for risky patients. Many of the latter had multiple social problems and used drugs or alcohol.
By the 1990s, the prospect of these units being true treatment centres, in line with the medical rhetoric and aspirations of the 1970s, had disappeared. They had become ‘non-therapeutic’, with patients feeling unsafe and often describing a deterioration in their mental health as a result of hospital admission (Sainsbury 1998; MIND 2004). Acute psychiatric units were effectively becom- ing small madhouses.
The challenge for the State then was no longer been about the lawful control of those admitted to and controlled in hospital (this is taken care of by ‘mental health legislation’, which defines who can and cannot be lawfully detained without trial and by whom). Instead, the main social admin- istrative challenge began to relate to the bulk of patients living in the community, who previously would have lived and died in the asylum system. When patients episodically developed acute psy- chotic symptoms they were already in hospital (to be controlled). After the closure of the asylums this was no longer the case. After the policy of deinstitutionalization, the typical socio-legal chal- lenge was about the surveillance and management of community-based patients.
In the US ‘involuntary outpatient civil commitment’ (IOC) is now widely accepted as a prin- ciple in mental health services. Although the use of such powers are still relatively rare, since the early 1980s most States have passed legislation that permits involuntary outpatient intervention on the basis of a need for treatment. Some patients have been placed on IOC indefinitely, and the penalty for non-compliance has varied from no action to automatic readmission, depending on the State involved (Maloy 1992).
Since the early 1990s, CTOs have been advocated at different times in British mental health policy debates which would entail the forced medication by injection with psychotropic drugs of people in their own homes. The Mental Health Act of 2007 has indeed introduced CTOs – a version of this ‘long leash’ approach to the surveillance and control of non-compliant patients outside of hospital.
Advocates for the introduction of legislation permitting this treatment argued that a small number of patients were prone to ‘relapse’ and could not be relied on to take medica- tion. This gave rise to a number of philosophical, ethical and practical difficulties. Who would administer the medication? Although psychiatrists would prescribe it, CPNs were reluctant to take on the responsibility for administering drugs, which they viewed as potentially damag- ing to their relationship with patients. There were also problems related to who would receive
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compulsory treatment, given the limited effectiveness of major tranquillizers in treating certain patient groups and the strong opposition to the idea on the part of patient advocacy groups.
Although formal attempts by psychiatrists in Britain to negotiate powers of compulsory com- munity treatment failed in the late 1980s, the issue was revisited by politicians in the mid-1990s, when a series of embarrassing incidents occurred in public involving psychiatric patients. As a result, new legislation was introduced to ensure active follow-up in the community with powers to recall non-compliant patients to hospital (the Supervised Discharge Act 1995 modified the 1983 Act). This legal adaptation of the 1983 Act was reinforced by a raft of procedures including a reg- ister of ‘at risk’ patients and the Care Programme Approach. These administrative mechanisms were a governmental attempt to systematize risk management in the community. There has been a steady increase in the use of CTOs. After their introduction their use steadily increased. For example, by 2012 there had been a 120 per cent increase in the use of CTOs over a 4-year period.
On 31 March 2012, 22,267 people were restricted under the Mental Health Act for England and Wales either on hospital sections or CTOs. Of this number, 17,503 people were detained in hospital (an increase of 856, or 5 per cent) and 4,764 people were subject to a CTO (an increase of 473, or 11 per cent). These figures include detentions and CTOs for both NHS and independent sector provider
These reflect powers of the State to legally enforce ‘case management’, a concept prevalent in mental health policy since the late 1908s in Britain. Huxley (1990), for example, described case management as a system in which care is provided through individually planned combinations of dif- ferent sources of support. The ideal type of case management began with a collaborative and volun- taristic emphasis. In contrast, once coercion emerges centre stage then different ethical matters must be considered. The term ‘aggressive outreach’ (used in the USA) as opposed to the British notions of
‘Care Programme Approach’, ‘care management’ or ‘assertive outreach’ suggest tenacity and surveil- lance on the part of mental health professionals, which goes beyond paternalistic benevolence.
In both types of research positive outcomes include measures of the extent of contact that people with mental health problems have with their worker and a reduction in hospital admission rates. However, existing prototypes of this model in the UK at least have not provided optimistic results. In one RCT, even though participants found assertive community treatment more accept- able and engaged better with it than standard care provided by community mental health teams, no advantage over usual care from community mental health teams in reducing the need for inpa- tient care and in other clinical outcomes was found (Killaspy et al. 2009).
The emergence of inpatient units as crucibles of coercive control (when they originally aspired to be treatment units to generate mental health gain or recovery from acute episodes) poses a major problem now for professional ideology about ‘mental health care’. Where legal rules govern admission, discharge and daily decision-making and action in between, in what sense can professions like psychiatry and mental health nursing maintain an ethical stance of caring for patients? Pols (2001) studied this clash of functions and ideologies in the work of mental health nurses in their interactions with inpatients. She found that legal measures to define ‘doing good’
(the patients’ ‘right to treatment’) and those which were inherited from a non-legal paradigm of professional ethics interfered with one another.
The forced integration of professional paternalism with its preferred voluntary approach and one in which professional action is shaped and expected by legal requirement was highlighted in the Draft Mental Health Bill (Department of Health 2004) preceding the Mental Health Act of 2007.
In order to make the Draft accessible to ordinary people, the government produced an ‘easy read version’ which contained the following the statement:
It is better if people with a mental disorder can live the life they want with the right help and support but sometimes they have to have treatment which they do not agree to.
(Department of Health 2004: 4)
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Once such legal rules were made accessible to all, ordinary people were arguably becoming party to their own oppression. This was part of the rationale in the Bill to shift towards lawful measures of community control, but it continued an older theme in the discourse of professional mental health work. That is, it is presumed that care or treatment, whether given with or without the per- mission or co-operation of the patient, is still the same care or treatment.
The professional and political assumption here is that the content of care is independent of legal rules. Pols (2001) points out that this is a rhetorical avoidance of actual outcomes in services, where compliance with legal rules inevitably affects patient–staff relationships. It is not merely a matter of patients having treatment ‘which they do not agree to’. It is also that any such failure to agree triggers an interaction with staff, which alters the very nature of any treatment received or imposed upon patients.
This point opens up two different interpretations of the link between compulsion and treat- ment. On one side is the State, most psychiatrists and some sociologists (e.g. Gove 1975) who assume that the impairments of mental disorder include a failure on the part of the patient to request what is needed, due to a lack of insight.
In this view, compulsion ensures that those without insight into their real needs are given access to interventions which are good for them. The law is being used as a vehicle to ensure patients have the treatment they need (one version of ‘doing good’ in Pols’s analysis above). On the other side are those who assume that compulsion is largely driven not by patient needs (actual or assumed, expressed or not expressed) but by the needs of others to maintain social order. This position has been taken in the main by dissident psychiatrists (e.g. Szasz 1963) and by sociologists studying the social control of residual deviance (e.g. Scheff 1966).
Underlying these debates about the ethical status of compulsion in mental health work are two discrepant, and so competing, assumptions. On the one side is the assumption that coercion increases the chances of a patient receiving treatment that will improve their quality of life in the long term (Torrey and Zdannowicz 2001). On the other side there are those who argue that coer- cion infringes the human right to autonomy and increases stigma, thereby actually aggravating quality of life (Pollack 2004). These competing claims were investigated empirically by Link et al.
(2008), who tracked outcomes for patients either given CTOs or not by courts in New York. The authors found partial support for both assumptions, one they called the ‘coercion to beneficial treatment’ perspective, and the other the ‘coercion to detrimental stigma’ perspective.