Detention Decisions Shouldn't be Black and White
Part 1 of an examination of mental healthcare policy.
Posted Jul 10, 2019
As Vice’s recent documentary treatment of Florida’s Baker Act showed, there are grave stakes surrounding the decision to forcibly evaluate, detain, and medicate people affected by psychiatric illness. Inaction can lead to harm, both over time, as chronic conditions worsen without treatment, and immediately, through self-harm and suicides. Yet, applying laws that revoke consent overenthusiastically carries definite harms as well — to the autonomy of people who’ve not lost the faculties necessary to make choices for themselves.
Some months ago, I wrote a piece for Mental Health Today on this topic, and I want to bring the argument to a new audience, both because of its importance and because I think it’s among the few genuinely good ideas I’ve had. (There are maybe one or two others.) The core of my idea emerges from considering what sub-capacities one can identify within the more general capacity to make responsible decisions, inspired by the work of Adina Roskies, a philosopher of mind and neuro-ethicist at Dartmouth College. If we can track the way specific mental illnesses in specific people affect some, but not other, sub-capacities that underlie agency, perhaps decisions about when to revoke a patient’s right to refuse treatment can be more informed, and consequently more just.
In this post, I’m going to go over the status quo, looking at the language of the laws that govern involuntary detention in different places and apply Roskies’ "capacitarian" view of agency to people suffering from mental illness. Next time, I want to develop some detailed examples and examine what sorts of policy changes this perspective suggests.
Although mental health legislation differs in many important respects, like how long one can be detained for and the exact circumstances in which it’s legal to do so, the laws in all states and countries are aligned on one crucial point: one either has the capacity to make their own medical decisions, or they do not. In MHT, I wrote:
Mental health laws set out criteria for when a patient loses the right to refuse treatment. Almost all jurisdictions commit patients when necessary for “the health or safety of the patient or for the protection of other persons” (UK Mental Health Act). Laws in most US states employ similar language, as do laws in Canada. A second common standard is a psychiatrist’s determination that a patient is incapable of making “a rational and informed decision as to whether or not to submit to treatment” (Texas Health and Safety Code). In the UK, a separate law, the Mental Capacity Act, covers incapacity to make medical decisions, while Scotland’s Mental Health Act includes both criteria.
Once the criteria have been met, whatever their language, the person loses just about any power of self-determination, but if they fall just sort of meeting the criteria, they have just all the powers anyone on the street does.
Each of these laws has birthed slang terms: in the UK, people are "sectioned;" in Florida, they are "Baker-acted." Legislation surrounding mental illnesses govern a person’s autonomy—the vitally important control over one’s own body—so it’s no surprise they loom so largely in the communities affected by them.
I believe that efforts by philosophers of mind to understand what meaningful agency requires can provide a clearer picture of the complex terrain that’s being legislated; in particular:
Adina Roskies, a Dartmouth College philosopher, argues that decision-making is not a unitary capacity, but “a constellation of capacities.” Looking at the many underlying capacities allows questions about a person’s ability to act responsibly to be answered in a nuanced manner. Problems with one capacity, say, “the ability to rationally assess… intentions” will have different impacts than difficulties with “inhibiting... responses.” All these possibilities for variation suggest the capacity to make responsible decisions is a spectrum, not all or nothing.
If each part of this "constellation of capacities" contributes to an individual’s decision making in a distinct way, the impact of mental illness on agency will depend on which specific capacities are affected. This implies:
A spectrum is more suitable than a binary approach for determining whether someone should make their own treatment decisions. Each person’s illness presents a unique cluster of symptoms that interact with the psychological capacities involved in choice in different ways. Some symptoms, in some people, might interfere with one but not the other underlying capacity, and therefore inhibit decision-making in a particular way. The presence of a mental illness doesn’t show someone is unable to make treatment decisions responsibly. We need to consider how the illness impacts the capacities connected to choice.
Following this path would result in a more complex framework for making detention decisions, one in which psychiatrists would have to consider exactly what aspects of choice are undermined by disease. It calls for the legal recognition that the incredibly varied symptoms and effects of even the same disorder across individuals can impact agency in many different ways, for which a one-size-fits-all framework is not always appropriate. It would take time, money, and effort were something like it ever to be implemented. But I believe it would be well worth it, because:
Using a more nuanced understanding of the capacity to consent to treatment can balance the competing goals of mental health legislation. On the one hand, we want to give patients as much autonomy as possible. On the other, psychiatrists need to be able to treat those whose refusal to take medications is induced by disease, not genuine desire. Attending to the impact of symptoms on the “constellation of capacities” that contribute to choice affords people as much autonomy as possible.
In Part 2, I’ll have some thoughts about what a system that could ‘afford as much autonomy as possible’ could look like. To do so, I’ll develop an example of bipolar individuals undergoing very different manic episodes, and consider whether attending to the capacities their specific illnesses affect could justify treating their autonomy differently. In the meantime, I’d love to hear the thoughts of those with experience in this area, whether as practitioners or patients.
Roskies, Adina (2015). "Agency and Intervention," Philosophical transactions of the Royal Society of London. Series B, Biological sciences, 370(1677).
Pecotic, Adrian (2018). "We Should Be Looking at Capacities," Mental Health Today. url: https://www.mentalhealthtoday.co.uk/blog/crisis-care/we-should-be-looking-at-capacities-plural-in-mental-health-detention-decisions