This chapter provides an overview of the legal basis for compulsory psychiatric treatment, considering broad principles used in a range of jurisdictions but also considering the Mental Health Act 1983 in England and Wales as a specific example of mental health legislation. Legal compulsion forms part of a spectrum of coercive pressures exerted upon patients to take treatment against their will, and the role of the law is placed in the context of coercion more generally.
The ethical justifications for compulsory treatment are then considered. These are not always explicitly considered in legislation. The Mental Health Act 1983, for example, allows wide scope for paternalistic clinical judgements about the necessity for treatment against the patient'swill. However, other ethical approaches to such judgements may be of value to the clinician when faced with difficult clinical decisions. Indeed, even in England and Wales it may be essential. For example, although proposals to introduce a clear ethical framework, based on assessment of mental capacity, into a new mental health act for England and Wales have not been accepted, the Mental Capacity Act 2005 does require doctors to apply a test of decision-making capacity in a range of circumstances, as does recent legislation in Scotland (the Mental Health (Care and Treatment) (Scotland) Act 2003). Accordingly, an ethical framework for compulsion based on the consideration of capacity is outlined. When an explicitly ethical approach is taken to compulsion, various forms of advance decision-making, such as advance directives, become important in those mental disorders which result in fluctuating capacity, and these are therefore described.
General principles of compulsory treatment
The use of the law to compel treatment is only one aspect of a more general issue, coercion. It has been suggested that coercion can helpfully be understood as forming part of a spectrum of ‘treatment pressures’. For example, Szmukler & Applebaum (2001) conceptualise a hierarchy of ‘treatment pressures’ (Box 7.1) which may assist in understanding and making decisions to treat involuntarily.
Persuasion, leverage and inducement
These may be described as ‘positive pressures’ to take treatment – the ‘carrots’ rather than the ‘sticks’. The lowest level of treatment pressure is persuasion, in which the professional sets out the benefits for the client of a particular course of action and attempts to counter objections. The patient is free to reject advice.