Atkinson, J.M.

Garner, H.C.

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J. M. Atkinson

H. C. Garner

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Least restrictive alternative – advance statements and the new mental health legislation

Atkinson

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      Atkinson, J.M. and Garner, H.C. (2002) Least restrictive alternative — advance statements and the new mental health legislation. Psychiatric Bulletin 26:pp. 246-247.       http://eprints.gla.ac.uk/4175/  13th May 2008   Glasgow ePrints Service https://eprints.gla.ac.uk J . M . AT K I N S ON AND H . C . G A RN ERLeast restrictive alternative - advance statements andthe new mental health legislationProposals for new mental health legislation make the casefor using the ‘least restrictive alternative’ (ScottishExecutive, 2001) and the ‘least restrictive environment’(Department of Health & Home Office, 2000) as guidingprinciples in deciding the management and treatment ofthe patient. This appears to be the case made for intro-ducing compulsory treatment in the community. Thepatient living in the community, while maintained onmedication, rather than the hospital would appear to bedefined as on the ‘least restrictive alternative’. This,however, takes only a limited approach to what is‘restrictive’, which should be interpreted more widely,including the patient’s view as well as that of cliniciansand policy makers. Thus, a patient may see it as lessrestrictive during an acute phase to be in hospital and noton medication, than in the community but on medication.It is likely, given our knowledge of patients’attitudes tomedication (Eastwood & Pugh,1997), that many patientswill prefer to be on oral medication rather than depot,which they see as less restrictive.If the least restrictive alternative is to be a formativeprinciple in providing ongoing care under new mentalhealth legislation, then consideration has to be given asto how it is to be incorporated. There appears to be nointention to enshrine a hierarchy of restrictiveness inlegislation, although this has happened in some Americanstates; in Michigan seclusion is considered less restrictivethan physical restraint, which is less restrictive thanenforced medication (Slovenko, 1989). The pro forma formaking an advance directive, offered by the AmericanBazelon Center for Mental Health Law (see http//www.bazelon.org/adudir.html), invites people to selecttheir personal hierarchy of these same options. This needsto be seen in the context of the individual’s right in someAmerican states to refuse medication in certain circum-stances, even when detained (Atkinson & Patterson,2001).Guidelines might, however, be given in any Code ofPractice that accompanies the new Acts and could indi-cate whether the least restrictive alternative is an indivi-dual or policy formulation. Although it is unlikely thatmany practitioners or patients in the UK would share thehierarchy of restraint formalised in Michigan, it doeshighlight the subjective dimension of ‘restrictive’.A formulation of the least restrictive alternative for aparticular patient requires knowledge of that patient’sindividual perspective. The time of detention may not bemost appropriate to determine this, given that both thepatient’s mental state and the detention itself may beexperienced as coercive, restrictive and forcing thepatient into choices he/she did not want to make in thefirst place. This may be particularly true if in-patienttreatment issues are to be included in the ‘leastrestrictive’, as well as treatment plans devised at the timeof discharge. If detained patients are not to be able torefuse medication then any commitment to the leastrestrictive alternative on an individual rather than policylevel is already limited.Ideally, patients’ views would be known beforedetention and since advance statements/agreements arebeing proposed in the new legislation (Scottish Executive,2001; Department of Health & Home Office, 2000), itmay prove useful to see these two proposals in combi-nation. Thus, the concept of restrictive practice could bediscussed with patients in a context away from the actualdetention, written into an advance statement and incor-porated into management plans from the outset. Clearlythis will only apply to patients already in contact withpsychiatric services. This, no doubt, already happens inmany consultations when agreeing a treatment ormanagement plan with a patient, even if not couched inthese terms. In the same way, it is likely that wishesexpressed in advance statements might be reinterpretedas the least restrictive alternative. Indeed, it could beargued that if a patient makes an advance statement, bydefinition, this has to be ‘least restrictive’ because it iswhat the patient has chosen.As well as considering the length and location ofconfinement, Gostin (2000) argues that the HumanRights Act requires determination of what constitutesdetention to consider ‘the use of force or deception, theperson’s resistance to or displeasure with, restraint andtreatment [and] the person’s mental capacity’. Challengeunder the Human Rights Act to the use of restrictions,including in the community, may rest on the issue ofproportionality.Although the use of advance statements/agree-ments will be influenced by ethics, resources (Halpern &Szmukler, 1997) and legal implications (Dawson et al,2001), there does appear, however, to be a growingcommitment to them, as evidenced by the mental healthlaw reviews in the UK. A recent New York State initiative,which is spending US$1million on an education campaignadvising how to complete a mental health advancedirective (Monahan et al, 2001), demonstrates a commit-ment to them in a country from which, for better orworse, many social policy initiatives are imported into theUK.It is probably a mistake to assume that the leastrestrictive alternative will be a static concept for patientsand it should be expected that it might change as apatient experiences different forms of management andcontrol. As with advance statements, patients’ choicesare influenced by what they have experienced. Patientsmay find a choice more restrictive or upsetting thanexpected; for example, if refusing medication were toFor Evaluation Only.Copyright (c) by Foxit Software Company, 2004 - 2007Edited by Foxit PDF Editorlead to physical restraint. Staying in the community maybring unexpected restrictions. Some of the conditionsplaced on patients on a community care order are highlyrestrictive, to the point where institutional living may givemore day-to-day freedom (Atkinson et al, 2002).Community care orders were introduced in Scotland inthe Mental Health (Patients in the Community) Act 1995.Following the restriction of leave of absence to 12months, it allowed conditions to be put on patients livingin the community, but did not allow enforced medication.The committee set up to review the 1984 Mental HealthAct in Scotland, under the chairmanship of the formerSecretary of State for Scotland, Rt Hon. Bruce Millan(Scottish Executive, 2001), recommended the abolition ofthe community care order in favour of a community order,thus replacing a less restrictive order with a potentiallymore restrictive one.As with advance statements, we might expect thatresources will have an influence on least restrictivechoice. Refusing medication may result in increasedhospital stay, as described in relation to advance direc-tives (Halpern & Szmukler, 1997). How far, however, is itappropriate to impose restrictive choices on a patientbecause of lack of resources or political inability to deliverchoices? The Mental Health Acts already state thatpatients should be detained at the minimum level ofsecurity necessary. Nevertheless, there is a substantialnumber of patients detained in the State Hospital atCarstairs whom everyone agrees does not requiremaximum security, yet there is nowhere to which thesepatients can be discharged (Mental Welfare Commissionfor Scotland, 1999). Despite Scottish Parliament plans todevelop medium secure units, local politicians in Scotlandhave supported local objections to having such unitswithin their constituencies. Lack of a less restrictivefacility would almost certainly not lead to someone beingfully discharged from a more restrictive one (R. v.Camden and Islington Health Authority ex parte K, 2001)but still requires consideration as a breach of the princi-ples enshrined in the new legislation.Lack of resources to implement one of the principlessuggested for the new Scottish Act would run counter toanother of the recommended fundamental principles,namely reciprocity, which balances taking away a person’sfreedom with the provision of good care. Concern hasbeen expressed, however, that if the ‘best’ care isprovided for patients who are detained then this providesa perverse incentive to detain people who might other-wise have been treated as voluntary patients. This, ofcourse, would then be in direct contradiction to theprinciple of a least restrictive alternative. One of thefundamental principles articulated by the MillanCommittee (Scottish Executive, 2001) as underpinningthe new Act is patient autonomy and it is here that leastrestrictive alternative and advance statements could beenvisaged as coming together to support this principle.Declaration of interestJ.M.A. is a grant holder for funds from the NuffieldFoundation to research advance directives in mentalhealth care. She is an unpaid director of the NationalSchizophrenia Fellowship (Scotland). H.G. is a researchassistant, working for J.M.A. on a project funded by theNuffield Foundation.ReferencesATKINSON, J. M., GARNER, H. C.,GILMOUR,W. H., et al (2002) Theintroduction and evaluation ofCommunity Care Orders. Journal ofMental Health,11, in press.P& PATTERSON, L. E. (2001) Review ofLiterature Relating to Mental HealthLegislation. Edinburgh: ScottishExecutive.DAWSON, J., KING, M.,PAPAGEORGIOU, A., et al (2001) Legalpitfalls of psychiatric research. BritishJournal of Psychiatry,178, 67^70.DEPARTMENT OF HEALTH & HOMEOFFICE (2000) Reforming the MentalHealth Act. London: Department ofHealth & Home Office.EASTWOOD, N. & PUGH, R. (1997)Long-termmedication in depot clinicsand patients’rights: an issue forassertive outreach. Psychiatric Bulletin,21, 273^275.GOSTIN, L. O. (2000) Human rights ofpersons withmental disabilities; theEuropeanConvention of Human Rights.International Journal of Law andPsychiatry, 23,125^159.HALPERN, A. & SZMUKLER, G. (1997)Psychiatric advance directives:reconciling autonomy and non-consensual treatment. PsychiatricBulletin, 21, 323^327.MENTALWELFARE COMMISSION FORSCOTLAND (1999) Annual Report.Edinburgh: MentalWelfareCommission for Scotland.MONAHAN, J., BONNIE, R. J.,APPELBAUM, P. S., et al (2001)Mandated community treatment:beyond outpatient commitment.Psychiatric Services, 52,1198^1205.SCOTTISH EXECUTIVE (2001) NewDirections: Report on the Review of theMental Health (Scotland) Act1984 (SE/2001/56).SLOVENKO, R. (1989) Misadventures ofpsychiatry with the law. Journal ofPsychiatry and the Law,17,115^156.R. v. Camden and Islington Health Authority ex parte K (2001) Commentary:mental health: health and social services authorities’duties to provide after careneeded to implement tribunal discharge decision.Medical Law Review, 9,180^184.*Jacqueline M. Atkinson Senior Lecturer Helen C. Garner ResearchAssistant, Department of Public Health, University of Glasgow,1Lilybank Gardens,Glasgow G12 8RZFor Evaluation Only.Copyright (c) by Foxit Software Company, 2004 - 2007Edited by Foxit PDF Editor

Camdenand Islington Health Authority exparte K

Copyright (c) by Foxit Software Company,

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Least restrictive alternative - advance statements and the new mental health legislation

Least restrictive alternative - advance statements and the new mental health legislation

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