Tuesday, 6 January 2009

Compulsory treatment, illness and capacity

There were a number of interesting papers at Rachel Cooper’s one day workshop on philosophy of psychiatry yesterday but a couple were interestingly interrelated. John McMillan (pictured) considered the justification for the compulsory treatment of mentally ill subjects.

First, he suggested that the debate about the reality or not of mental illness is independent of the debate about whether compulsory treatment is ever justified. One might think that such illness exists but still deny it is a justification for compulsion. Equally, one might deny the existence of mental illness (qua illness) but still think that compulsory treatment is justified (I’m guessing either by thinking that medical treatment of a related physical illness is justified or by thinking that dealing with non-medical conditions might be merit the label ‘compulsory treatment’). Thus there is no a priori direct connection between mental illness and compulsory treatment.

Second, he considered what independent justification of compulsory treatment could be offered given that. Starting with Bill Fulford’s observation that mental illness is unique in that it is an area of medicine where fully conscious adult patients of normal intelligence can be treated against their will, McMillan asked what of the other cases implied by that. Fulford’s comment suggests a disjunction of conditions might justify compulsory treatment including: being an unconscious adult, being a child as well as suffering a (kind of) mental illness. So, what, McMillan asked, do these have in common? Is there an underlying condition that explains the disjunction?

His idea was that compulsory treatment is justified by a balance of non-intentionality and harm. If one’s actions fail, sufficiently, to be intentional (whether unintentional or non-intentional) and risk sufficient harm, then that justifies paternalistic intervention. One example given was a sufficient irrational fear causing sufficient harm. If the fear – he suggested – weren’t cognitively penetrable (that is, being persuaded of its lack of justification did nothing to ease it), that might justify intervention.

One virtue of this approach is that there is a plausible overlap with the mental illness defence: the latter causes a lack of intentionality. Further, this promises some possibility of borrowing some of what Bill Fulford plausibly says about how specific cases of mental illness justify treatment (in his Moral Theory and Medical Practice). Still, I’m not sure what to make of the one example McMillan offered.

I should say, I’ve never been entirely convinced by Bill Fulford’s explanation of the mental illness justification either. It has always left me with an Open Question style response. I agree that mental illness (often) causes a breakdown at the heart of deliberate action but why does that justify compulsory treatment? What exactly is the link?

Still in McMillan’s case, I am not sure whether I agree that if someone has an irrational and resistant fear that is life threatening, realises that fact but, because of the fear, resists treatment he or she should be overpowered. The presence of something like insight in the case seems to make such intervention an act of unjustified violence.

In an earlier paper, Demian Whiting asked whether having decision making capacity required an absence of ‘pathological values’. Taking this phrase, preliminarily, to refer to values held because of having a mental illness, he pointed out that such values could undermine capacity because they undermined some component ability in the capacity test (see below). But could that test be passed and then independently trumped by the presence of pathological values? The stalking horse was anorexia. If someone’s values concerning food and risk to life were held because of their illness, does this undermine their capacity?

The key part of the paper was a dilemma and, I’m sad to say, I lost concentration at just that point. So my summary is based on extrapolation from the handout (a more accurate summary of the paper is now here). Whiting suggested that there were only two ways of unpacking ‘pathological values’.

Either, they are not actually held by subjects. Here I can imagine arguing that they look to be held: they shape behaviour, guide judgements and may be quite long term.
Or, subjects are not responsible for holding them. But, as Whiting did argue, it is far from clear that we are the self-determining source of many of our values. So this cannot be what makes some values pathological.

Given that neither horn of the dilemma looks to provide a satisfactory definition of pathological value, there is no account to trump the starting assumption that if one passes the capacity test, the values that shape one’s decisions just are one’s values and thus do not – by virtue merely of being ‘pathological’ – undermine that.

The tenor of Whiting’s conclusions thus ran counter to McMillan’s (of course, being a good philosopher, he didn’t take himself to have ruled out other ways in which values might impact on capacity; just not via pathological values). Whatever an anorexia sufferer’s unfortunate values, providing they pass the capacity test, then their decisions about treatment – or its lack – should stand (unless there are additional reasons in play). McMillan would probably argue that providing there were some way in which their actions were not intentional, the risk of harm could justify compulsory treatment.

But, at the risk of relying on merely my inattentive failure to hear the full force of the paper, it looks to me that Whiting's dilemma was rather briskly outlined and dealt with. So one might think of values as held by a subject but nevertheless being pathological because of their inconsistency with other values also held. The pathology would be a surface feature of the holism of the subject’s beliefs and values. Held versus not held does not seem a very helpful way of unpacking what might seem pathological in the case of anorexia, to return to the example.

The alternative again seems too crude a distinction. Whilst no one is as self-creative as the French existentialists wanted, still one might think of values as being determined not by a culture or tradition, for example, but by an illness. If a symptom of having a particular illness is holding otherwise uncharacteristic values, then it might be useful to describe those as ‘pathological’. Perhaps a subject, on recovering from the illness, does not merely announce that she has changed her values: she expresses horror and surprise at what she had been saying whilst ill. The idea of pathology would stem from the underlying illness, whether or not the resulting values were synchronically reconcilable with the subject’s other (synchronic) values.

Of course, for either of these sorts of cases to be a counter-instance to Whiting, they would have also not to block capacity by blocking one of the component tests ie

1 understand the information relevant to that decision
2 retain that information
3 use or weigh that information as part of the process of making the decision
4 communicate their decision (whether by talking, using sign language or any other means).

And it is difficult to know whether the third test can be passed by someone who has radically surd values which resist revision in the light of holistic considerations. That I think is a problem with thinking that capacity could ever be assessed independently of the content of decisions and thus independent of their wisdom. So I am not sure whether I disagree with Whiting's overall views or not.

PS: Demian emailed to explain that I'd not got his position right. A correction is thus here. But I have left this version up because the differences are - a little - interesting.

PPS: capacity has come up again: here and here.