Committed: Is it time we stopped ‘sectioning’ people?

Arguably the most important ethical principle in medicine is autonomy – the right of patients to decide for themselves what treatment they want.

However, we also recognise that being very ill sometimes makes it hard for patients to make sound decisions about their own care. Therefore, we have laws that allow doctors to make decisions on behalf of patients who are unwell.

The laws that psychiatry uses in this respect are quite different to the laws the rest of medicine uses – and I’m becoming firmer in my belief that this may be a bad thing.

Mental Capacity Act (2005)

Before 2005, if you developed a ‘physical health’ problem which interfered with your ability to make sound decisions, doctors would have decided whether to treat you against your will using common law – the accumulated results of past legal cases.

People sometimes seem to think psychiatrists are the only doctors who treat people against their will, but many types of doctor do this fairly frequently. Hospitals are packed with semi-conscious and delirious patients who object to crucial treatment in a state of confusion.

In the modern climate of accountability, the uncertainty of common law gradually became unsustainable. The Bournewood case illustrated the difficulties well – it brought to light the case of a young man with autism who was admitted to hospital and not allowed to leave or have visitors for months without any legal recourse.

We needed a more solid framework with which to decide if we could treat someone against their will. In 2005, we found that framework in the Mental Capacity Act.

This Act states that doctors can treat someone against their will if they lack capacity. Everyone is assumed to have capacity to make decisions until you test them.

To lack capacity, a patient has to have “an impairment of, or a disturbance in the functioning of, the mind or brain” and to be unable to do one of the following:

• to understand the information relevant to the decision

• to retain that information

• to use or weigh that information as part of the process of making the decision

• to communicate his decision (whether by talking, using sign language or any other means)

If a patient is found to lack capacity to make a decision, doctors can treat them in their best interests, by weighing up opinions from different sources (including, of course, the patient).

Capacity is also seen as dynamic. Just because a patient lacks the capacity to make a decision about one thing (i.e. do I want to go into hospital?) it doesn’t mean they don’t have the capacity to make decisions for themselves about other, smaller issues (i.e. do I want to take my tablets?).

An addition to the MCA was made in 2009 to allow patients to be deprived of their liberty (for example, moved into a locked nursing home) for long periods if they lack the capacity to make that decision, if the deprivation is in their best interests. This is called a Deprivation of Liberty Safeguard (DOLS).

Most people see the Mental Capacity Act as a huge forward step in patient-led care.

Mental Health Act (1983)

However, if you have a mental health problem and don’t want treatment, something entirely different may happen. Psychiatrists use the Mental Health Act (1983) to treat people who don’t want to be treated. This is the Act under which we can ‘section’ people.

There are lots of different types of shorter sections, but the most important ones are Section 2 and Section 3. These give the legal power to detain a patient for 28 days and 6 months respectively.

This Act states that to be treated against their will, a patient must have ‘any disorder or disability of the mind’ that is ‘of a nature or degree which warrants the detention of the patient in a hospital’ and detaining him must be in the interests of:

• The patient’s health or
• The patient’s safety or
• The protection of others

A patient’s ability to make a decision about treatment for themselves is not taken into account. If two doctors and a social worker agree that detaining a patient is the best thing for their health or safety, or for the protection of other people, they can detain the patient. That’s all there is to it.

The patient will have the right to appeal and state his case to a tribunal, but even at that point, their ability to make up their own mind isn’t taken into account.

Is using a different legal framework a bad thing for psychiatry?

The question of whether using the Mental Health Act, instead of thinking like the rest of medicine, could be counterproductive for psychiatry has been debated for decades.

There are certainly some good things about the Mental Health Act – it demands documentation in black and white about why the decision to treat a patient against their will was made, and gives the patient a legal right to appeal by tribunal – whereas with the Mental Capacity Act, assessments can be less formal.

The Mental Health Act also demands that three people assess a patient to make a decision, whereas with the Mental Capacity Act it may only be one person making a judgement call.

But in my opinion, these benefits aren’t enough. The use of a different system is harmful.

By using a different framework, I feel psychiatry is stigmatising its own patients. Though people with mental disorders caused by a ‘physical health’ problem can be ‘sectioned’, the vast majority have purely mental health problems. Subjecting them to a law that doesn’t take into account the possiblity that they could make their own decisions, when patients with other types of illness are listened to and facilitated to make their own decisions, is dehumanising.

‘Sectioning’ people with mental health problems also does nothing to further the drive for parity between mental and physical health. Philosophically, the mind is the product of the brain – there is no real difference between mental and physical, except the divide we create in procedures like sections. We need to be more similar to the rest of medicine to promote our cause, not more different.

By using the Mental Health Act, psychiatrists are led to focus on the wrong question when they see a patient. Instead of thinking about what this patient wants and if I can help them get it, they’re thinking is this patient sectionable? This damages potentially therapeutic relationships.

Facilitating the choices of patients who do agree to come into hospital without being ‘sectioned’, but who still lack the capacity to make big decisions about their care, may be forgotten in this atmosphere of paternalism.

Using the Mental Health Act also perpetuates the general myth that psychiatric patients are dangerous, and sometimes need to be removed from the streets at all cost.

Would change be so hard?

If psychiatrists started to use the Mental Capacity Act instead, it wouldn’t actually change the group of patients we admit to hospital against their will all that much. A 2008 study published in the BMJ reported that of 150 patients sectioned to a psychiatric hospital, 86% didn’t have the capacity to make a decision about being in hospital anyway.

In another related study published in the BJPsych in 2009, only 6% of 200 psychiatric inpatients were found to be both under a section and to have the capacity to decide whether to be in hospital or not for themselves. Most of this small group had either been too unwell to decide for themselves at the time of their admission, or had deliberately faked being unwell to get admitted – so they would’ve come into hospital anyway.

This tallies with my own experience. Most of the time, if we think someone needs to come into hospital but they don’t agree, they’re almost always too unwell to make that decision for themselves anyway. By helping patients make choices for themselves, and only making choices for those who can’t, instead of forcing treatment on people we think need it, we wouldn’t be treating different people – but we’d be treating them differently!

Some may say that psychiatrists have a duty to protect the public – that we should be able to remove ‘dangerous’ patients from the streets whether they can decide for themselves or not. Mostly, again, the vast majority of patients who pose a risk to the public are so unwell that they lack the capacity to decide for themselves about admission. They’d still have to come into hospital.

As for the few patients who are a risk to themselves or others, but do retain the capacity to decide for themselves about hospital care – we should allow them to make their own mistakes. We couldn’t section a mentally healthy but dangerous person, like a careless pilot. We couldn’t section a person with ‘physical health’ problems who poses a risk to themselves but can make up their own mind (i.e. a diabetic patient who sometimes drops his blood sugar through erratic insulin use and becomes aggressive). So we shouldn’t be able to do it to mental health patients.

Ability to weigh up the risks of harm befalling yourself or other people if you relapse should form part of the assessment of capacity. Just like it does in the rest of medicine.

The way forward

Adaptations to the Mental Capacity Act might have to be made to make use in psychiatry possible. We don’t have the manpower to check the capacity of every patient who wants to leave every single day, so we’d need a law that says we only have to check it every week, for instance, to make sure the patient hasn’t regained the ability to decide rationally that discharge would be best. The provisions made for DOLS inform us that this kind of legislation is entirely possible.

If we ever want to be seen as truly equal with other branches of medicine, we should start valuing and empowering the choices of our patients as highly as they do.

After publication of this blog I was alerted to a lecture given by Professor George Szmukler, which summarises these issues extremely well. A video of the lecture can be found here.

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