Harnessing the power of fusion? A valiant but flawed effort to obviate the need for a distinct mental health law

When it comes to involuntary interventions, the notion that people with mental disorders should be treated identically to persons with general medical disorders has an undoubted appeal. As Dawson and Szmukler have argued previously, principles of fairness and non-discrimination would appear to be well served by basing involuntary hospitalization and treatment in both contexts on incapacity to provide consent. In this commentary, I take note of some of the intellectual forebears of the Szmukler, Daw, and Dawson proposal, and ask why – despite the formidable intellects that have lined up behind similar approaches in the past – they have not been adopted. I also consider some aspects of the current proposal itself, including the unresolved tensions between equal and differential treatment of persons with mental disorders, and the potential practical consequences, especially for persons with general medical disorders. I conclude that the rationale for fusing two disparate bodies of law may itself be irremediably flawed, and the undesirable consequences significant. 

Balancing autonomy and beneficence at the time of psychiatric discharge

As in much of the world, mental health law in Israel has evolved over the past half-century toward greater protection of patients’ liberty and an increased emphasis on due process. Part of that process in Israel involved taking decisions about prolonged involuntary hospitalization out of the hands of treating psychiatrists and turning them over to independent review panels. Argo and colleagues examined outcomes of discharge decisions made by these panels compared with treating psychiatrists. In this brief commentary, we describe related trends in mental health law in other countries, especially the U.S., consider countervailing perspectives on the role of review panels, and suggest how the Argo et al. study might be followed up with additional research

The Capacity to Vote of Persons With Alzheimer’s Disease

OBJECTIVE: The right to vote can be abrogated when persons become incompetent to cast a ballot. This applies particularly to people with Alzheimer’s disease, who at some point will lose capacity. A 2001 federal court decision offered the first clear criteria (“Doe voting capacity standard”) for determining voting competence, focused on understanding the nature and effect of voting and on the ability to choose. This article explores how persons with Alzheimer’s disease perform on these criteria. METHOD: The Doe standard was operationalized in a brief questionnaire, along with measures of appreciation and reasoning about voting choices. Performance was assessed in 33 patients attending an Alzheimer’s disease clinic and was related to dementia severity and demographic characteristics. RESULTS: The interview questions were scored with high reliability. Performance on the Doe questions, along with appreciation and reasoning, correlated strongly with Mini-Mental State Examination (MMSE) scores. Patients with very mild to mild Alzheimer’s disease generally retained adequate ability to vote, and most persons with severe Alzheimer’s disease did not. Performance was highly variable among persons with moderate Alzheimer’s disease. The desire to vote was a poor predictor of voting capacity. CONCLUSIONS: The capacity to vote, as embodied in the Doe voting capacity standard, can be measured simply and reliably. Structured assessment is particularly likely to be useful for people with moderate Alzheimer’s disease, whose performance cannot be predicted from MMSE scores alone. This approach can ensure retention of voting rights by capable persons and exclusion of clearly impaired persons from the voting booth

Consensual vs. coercive treatment: new manifestations of an old dilemma

The 1960s and 1970s were a time of substantial changes in approaches to involuntary hospitalization and treatment in the United States, a process that was also reflected elsewhere in the world. Objections to the use of coercion in psychiatry became widespread, rooted in concerns about the reality of mental illnesses, the effects of institutional treatment, financial considerations, and growing attention to patients' rights. This movement led to narrowed criteria for civil commitment (from criteria based on need for treatment to dangerousness-based criteria), along with increased procedural protections. Committed patients were given unprecedented rights to refuse treatment in many jurisdictions. Advocates envisioned steady progress towards a community-based, essentially consensual system of care. In the early 21st century, however, it has become apparent that, even as coercive treatment in institutions has diminished, new forms of coercion have developed to enforce treatment in the community. These include mental health courts, probation and parole requirements, outpatient commitment, and use of informal leverage over patients' money, housing, parenting rights, and the like. Coercive treatment in psychiatry has not disappeared, and may not even have diminished. Rather it has moved from the institution to the community. This presentation will describe this evolution and consider the lessons that may be drawn regarding the future of psychiatric treatment and systems of care

Ethical and Practical Issues in Video Surveillance of Psychiatric Units

Objectives: Video surveillance is used in inpatient psychiatry in many countries and institutions. However, its use varies considerably because of a lack of research, discussion, and agreement on best practice. This review provides an overview of current issues in the use of video surveillance in psychiatry, with a focus on ethical questions and their practical implications. Methods: A narrative review of literature on video surveillance in psychiatry was conducted. References were identified through searches of PubMed, CINAHL, MEDLINE, PsycINFO, and Google Scholar for articles published before December 2018. Sixteen articles in English and German were reviewed. Results: The ethical challenges and practical implications differ between surveillance of public spaces versus private areas, such as bedrooms or seclusion rooms. The most common reason for video surveillance was to increase security and safety. However, empirical evidence suggests that it is not useful in increasing security of shared spaces on psychiatric wards. Some evidence exists for clinical benefits of video surveillance in private spaces (e.g., allowing patients to sleep undisturbed). Video surveillance can increase patients’ choices regarding monitoring options. The main ethical conflict lies in balancing patients’ autonomy and privacy versus patient and staff security and safety. Conclusions: Whether video monitoring is used in the most effective and ethical manner needs to be reconsidered. Available evidence does not support its use as a security measure. More research is needed to evaluate the benefits, risks, and best practices of using video monitoring for patient observation, with consideration given to increasing the role of patient consent

Toward a Jurisprudence of Psychiatric Evidence: Examining the Challenges of Reasoning from Group Data in Psychiatry to Individual Decisions in the Law

Psychiatry is an applied science. It thus shares a characteristic of all applied science in that it is ultimately applied at two levels—general and specific. Scientific research inevitably focuses on aggregate data and seeks to generalize findings across persons, places, or things. However, in the courtroom, as is true in other applied settings, the focus is usually on an individual case. Thus, psychiatry presents the challenge inherent in all scientific evidence of reasoning from group data to an individual case, which is termed the “G2i problem.” Psychiatry, unlike many scientific fields that come to court, also confronts the G2i problem in its daily practice since mental health professionals routinely diagnose and treat individuals based on aggregate data. Yet approaches to the G2i problem in clinical psychiatry do not necessarily comport with the ways in which aggregate data is applied to an individual case in the courtroom. In this Article, we employ the G2i lens to examine the admissibility of psychiatric expert testimony in regards to both general research findings, or “framework evidence,” and application of those general findings to specific cases, or “diagnostic evidence.” Although the rules of evidence that apply to “G” and to “i” are the same, the scientific and professional considerations with which each must be evaluated are fundamentally different. G2i inferences provide a useful lens by which the interactions of psychiatry and law can be better understood and managed