Medical Kidnapping: The Dilemmas of Therapeutic Optimism

Editorial Note: This is the fifth post in a medical kidnapping series. There will be at least one more, perhaps two.

Lost rights

The county asylum system that came into being in 1845 initiated a period of therapeutic optimism, that was extinguished by 1900.

Therapeutic optimism re-emerged in the 1950s with the advent of the first effective psychotropic drugs. Current mental health legislation is predicated on a presumption of benefit from these drugs.

However while the evidence indicates that these treatments offer a sometimes beneficial tranquilization, there is less evidence in favor of cures. There is lots of evidence that many people become more agitated rather than more contained. Some are at greater risk of harming themselves and others than they were in the first instance. The data points to a loss of up to twenty years of life expectancy.

If the stated reason for detention is on the basis of reducing risks to self, or others or to the patient’s health, this raises a problem. The problem is this. Justified by an expectation of benefit, the deprivation of liberties within the mental health system is greater than in the criminal justice or any other system short of a concentration camp.

To compensate, the patient can appeal against their loss of liberty on the basis that they were not as ill as was claimed in the first instance, that the risks to their health and safety or the health and safety of others were not as great as was claimed, or that detention is disproportionate in the circumstances.

Any statutory appeals process will inevitably give rise to discontent. There will always be people who feel hard done by.

But there is a major fault in the current system – it makes no provision to address a problem that many patients point to, which is that these treatments can cause adverse effects with significant behavioral consequences.

For instance, clinical trial evidence indicates that more patients go on to commit suicide or violent acts on antidepressants or antipsychotics or mood-stabilizers compared with those on placebo.

These treatments also pose risks to the health of the person taking them – more so than the illness.

The treatments can cause behavioral disturbances that mimic the mental states that lead to detention. The antipsychotics for instance can cause auditory hallucinations, stereotypies, mannerisms, agitation and can produce a ‘psychotic look’.

Under the influence of one of these drugs, if the doctor is unaware of the situation, a normal person could be detained in the interests of their own health and safety.

While there is an appeals process with an independent doctor, who will have unquestioned expertise in mental illness, and who may be very good at keeping patients out of hospital in the first instance, these independent doctors are not trained in the recognition of treatment related adverse events. They have not seen the evolution of the problem which almost by definition will not be recorded in the medical records as an adverse event, or may not be recorded at all – or something would have been done about it.

Good though they might otherwise be, tribunal doctors lack expertise to explore this domain. They lack basic training. None know the ground rules for establishing adverse events. Nor do they have an inclination or any incentive to recognize treatment induced problems.

And if they don’t recognize the origin of the problem, it is difficult to sanction the release of someone whose condition has deteriorated since admission.

The people who are often best placed to recognize a deterioration or a failure of the original promise of detention are members of the individual’s family. But their protests that treatment is not helping are increasingly likely to be dismissed or viewed as a questioning of clinical authority.

A stroppy nearest relative may end up being displaced as the nearest relative, or bypassed – a de facto displacement without going through a judicial process.

The relative may end up being billed themselves as mentally ill with Munchausen’s Syndrome by Proxy.

Families have effectively lost an historic right – the right to discharge – and the patient has lost an important protection.

Beyond mental health

The problem extends beyond mental health and is growing. New treatments in the rest of health have engendered ever greater therapeutic optimism. Clinicians want to bring these benefits to the patients that come under their care. Many think that patients who are reluctant to engage with treatment must lack capacity. The aphorism that it is an even greater art to know when not to treat is not one that informs the practice of medicine today.

Families who question, whether in general medicine, elder care or care of the learning disabled, are increasingly viewed as obstacles.

However for pretty well all pharmacological treatments on patent within medicine today, close to the entire scientific literature that fuels the therapeutic optimism that leads to their use is ghost written. There is a total lack of access to the data underpinning the claims that are made and the presumptions that are held. The data, that might support a patient’s or families’ perception that the treatment being offered isn’t working, in the way that is claimed by companies or portrayed by treating teams, has been generated but is not available.

In these circumstances to claim that the patient and family lack insight or capacity and must be forced to comply is close to psychotic.

Far from being scientific, the literature in therapeutics is biblical in tone; it commands assent. A properly scientific literature would offer provisional findings and open up possibilities to adapt and vary management rather than support an increasing standardization of care.

Beyond mental health acts

The dilemmas linked to therapeutic optimism apply to more than judgments of detainability under Mental Health or Mental Capacity Acts. They increasingly arise following the application of a range of other “instruments”.

In the United Kingdom one such instrument is a POVA (Protection of Vulnerable Adults). A mechanism to protect Vulnerable Adults sounds like good thing. Interventions to achieve this within health and social care began to take shape in the late 1990s with the Protection of Children Act in 1999, the Standards of Care Act in 2000 and the Safeguarding Vulnerable Adults Act in 2006.

While there is some statutory basis to the idea of a POVA, there is no statutory process. Everyone working in healthcare comes across adults who by virtue of physical or mental infirmities and social situation are vulnerable. POVA may be invoked to remove them from their home to hospital.

If restricted to cases of gross abuse this might be one thing, but today a vulnerable adult is defined as anyone receiving healthcare. And POVAs get triggered if healthcare staff are uncertain about something. If they lacked capacity, that is one thing, but we operate in a world where increasingly if you don’t agree with your doctor, or nurse or social worker you are at risk of being viewed as lacking in capacity.

Once action is taken, POVA has no method to put an issue to bed. There is no appeals process. There are no checks and balances. Perhaps because of this, POVA is spreading like a bindweed across British healthcare.

There are likely thousands of patients sitting in hospital beds or in other settings across the United Kingdom who are effectively detained because they are “under POVA” and because staff do not know that patients have a perfect right to walk out if they or their families want to take them out.

Developments like this British one are being replicated in many different ways across the world as service providers adopt Risk Management Strategies in their approach to healthcare.

Risk Management is anti-medical. It locates problems in people, but essentially with a view to avoiding the perception that a service provider might be to blame should the outcomes not be optimal. We may proclaim otherwise, but services of this sort do not have the restoration of a patient’s functioning as their primary objective.

These semi-formal processes, driven by intentions to help, mesh with an increase in treatment seeking in communities sold the benefits of modern treatments by the most sophisticated marketing on earth. This marketing plays on the fact that families want to do the best for their members.

The most striking examples come from the mental health domain and involve families bringing children along for treatment for ADHD, depression or variations in development that would never before have come to medical attention.

To be continued.