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Compulsory Psychiatric Treatment and the Meaning Of 'Mental Disorder'

July 29, 2013 at 4:08 PM

Published in New Zealand Law Journal July 2006

The writer is the Convenor of the Mental Health Review Tribunal. The views expressed in this article are his personal views and not necessarily those of the Tribunal.

Introduction

The definition of mental disorder is the gatekeeper to both entry to and exit from compulsory psychiatric treatment in New Zealand. It is desirable therefore that it be capable of clear and precise interpretation so that it may be readily ascertained whether individual cases fall within it or outside it. At first blush the definition appears to possess that quality because of its detailed clinical content.

It is contended in this article however that the application of the definition to some cases reveals a surprising level of uncertainty as to its scope and meaning. That is in part due to a number of crucial terms within the definition being themselves undefined. It is also due to the definition being a dynamic one in which its various parts are in interplay, influencing the meaning of each other. But perhaps most importantly, it is because policy and value judgements underlie its interpretation. The latter reason relates to the need for decision makers to have regard to the justification for compulsory treatment when deciding whether it should commence, continue or end. Rights issues therefore play a part in the interpretive process.

Rights and Interests

Section 11 of the New Zealand Bill of Rights Act 1990 states that everyone has the right to refuse to undergo any medical treatment.

Most would agree that such a right should be enshrined in our law. It would ordinarily be a gross violation of individual privacy and personal integrity to force any person to have medical treatment over their opposition to it. By nature some medical treatment is invasive, painful, of uncertain efficacy and fraught with risk. The patient who is being involuntarily treated loses the comfort of knowing that at any time he may bring that treatment to an end.

And yet despite the foregoing, our law permits the enforced psychiatric treatment of some patients. Such patients may be forcibly administered medication with side effects such as drowsiness, nausea, weight gain and involuntary movement. Some side effects are irreversible. Compulsory treatment may result in patients being forcibly hospitalised for years on end, sometimes in locked wards. What they eat, who they see and what exercise they enjoy may all be regulated.

There is however good reason why our law provides for compulsory psychiatric treatment in some circumstances. Certain mental illnesses and conditions damage the capacity to think clearly, and thereby damage the requisite ability to exercise sound judgement as to whether or not to undertake treatment for those illnesses and conditions.

Not to compulsorily treat persons in such circumstances may fairly be regarded as a breach of their right to be appropriately cared for by the community. It may also fairly be regarded as a breach of the rights of the wider community. Unless properly treated, some patients may pose a serious danger to the health and safety of others. The right of the citizenry to security of person and property may overwhelm the right of persons not to be compulsorily treated.

'Mental Disorder'

The decision as to whether a person may or should be compulsorily treated crucially hinges upon the definition of 'mental disorder' in the Mental Health (Compulsory Assessment and Treatment) Act 1992. ection 27(3) of the Act permits the District Court to make a compulsory treatment order if it "...considers that the patient is mentally disordered...[and]...it is necessary to make a compulsory treatment order". When deciding to extend a compulsory treatment order the Court must again be satisfied that the patient is mentally disordered .

Similarly, s34(3) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 requires a court to be satisfied that an offender is 'mentally disordered' before ordering compulsory treatment in lieu of sentence .

A finding of mental disorder is therefore a precondition to a person being made the subject of a compulsory treatment order, or that order being extended. [The position of special patients and restricted patients is outside the scope of this article.]

Having been made the subject of a compulsory treatment order, a patient ceases to be the subject of that order in one of three principal ways :

  • Upon the expiry of the order, if it is of finite term (but most long term compulsory patients are subject to indefinite orders);
  • By decision of the responsible clinician that the patient is 'fit to be released from compulsory status' ;
  • By decision of the Mental Health Review Tribunal ("the Tribunal") that the patient is 'fit to be released from compulsory status" .

The term 'fit to be released from compulsory status' is defined in s2 of the Act in the following terms:

"fit to be released from compulsory status, in relation to a patient, means no longer mentally disordered and fit to be released from the requirement of assessment or treatment under this Act"

This definition was considered by a full bench of the Court of Appeal in Waitemata Health v Attorney General and Mental Health Review Tribunal and H [2001] NZFLR 1122 and [2001] 21 FRNZ 216.

The Court unanimously held that the word "and" in the definition is neither conjunctive nor disjunctive in meaning, but is used in the sense of introducing a consequence. Thus, a patient is fit to be released from compulsory status if he is no longer mentally disordered, and in consequence, fit to be released from the requirement of treatment under the Act.

The practical implication of this is profound. If a patient is no longer mentally disordered, it follows by definition that they are thereby fit to be released from compulsory status. They must therefore be immediately released. Conversely, if the patient remains mentally disordered, then by definition they are thereby not fit to be released from compulsory status. They must not be released for so long as they remain mentally disordered.

As the Chief Justice stated at para 90:

"...it is not evident...that discharge from compulsory status should turn on any consideration other than whether the patient continues to suffer from mental disorder."

Definition of 'Mental Disorder'

The term 'mental disorder' is defined in s2 of the Act in the following terms:

"mental disorder, in relation to any person, means an abnormal state of mind (whether of a continuous or an intermittent nature), characterised by delusion, or by disorders of mood or perception or volition or cognition, of such a degree that it:

  • poses a serious danger to the health or safety of the person or of others; or
  • seriously diminishes the capacity of that person to take care of himself or herself:-

and mentally disordered, in relation to any such person, has a corresponding meaning"

Not Straightforward

It has become commonplace to refer to that part of the definition ending after the word 'cognition' as the first limb, and the remainder of the definition as the second limb. The first limb is descriptive. The second limb refers to consequences. That approach will be adopted in this article.

At one level the mental disorder definition is reasonably straightforward. A person will be mentally disordered if they have an abnormal state of mind (whether of a continuous or intermittent nature) which is characterised by stated features, and the abnormal state of mind is of such a degree that it either poses a serious danger to self or others or alternatively, seriously diminishes capacity of self care.

In the writer's experience the definition is relatively easy to apply to patients who are acutely unwell. For example patients may be floridly psychotic, expressing bizarre ideas and unable to think or communicate clearly to an extent that they are grossly disorganised and completely unable to properly care for themselves.

When however patients are in partial recovery or coping reasonably well in their lives, it is often less than obvious as to whether or not they are mentally disordered as that term is defined. These borderline cases expose the difficulties which lie concealed within the definition.

One might pose by way of illustration, the following questions:

  • where patients are in good day to day health and no longer presents a danger to others because of the effectiveness of medication, but the underlying illness remains, will they always remain mentally disordered in terms of the s2 definition and hence subject to compulsory treatment despite the fact that they would continue taking the medication on a voluntary basis if released from compulsory status?
  • how does one assess the dangerousness of a person who committed one very serious violent offence 5 years ago but has committed no other offences at any time, as opposed to a person who continues to commit a series of minor assaults but has never committed a serious one?
  • when assessing dangerousness, is one entitled only to take account of the dangerousness which results directly from the psychiatric illness, or is one entitled to have regard to the fact for example, that the patient is also a heavy drinker and criminally disposed?
  • if the person who is the sole object of a patient's erotomanic attention dies, does the patient thereby cease to be mentally disordered because there is no longer any person known to be in danger from them? Does the patient remain mentally disordered because of the speculative possibility that they might transfer their attentions to someone else and if so, for how long?

Descriptive and Evaluative

As mentioned, the first limb of the mental disorder definition describes a clinical state and the second limb the consequences thereof.

It might seem therefore, that in order to determine whether or not a person is mentally disordered one should approach the matter in this way:

Is the first limb satisfied?
No Yes
Not mentally disordered Is the second limb satisfied?
Fit to be released No Yes
Not mentally disorderedFit to be released Mentally disorderedNot fit to be released

The nature of the exercise under the above schema is simply to ascertain whether none or one or both of the two limbs are satisfied. A finding of mental disorder necessitates both limbs being satisfied.

In the writer's view the above exercise should have imbued within it, an evaluation of whether or not in all the circumstances a finding of mental disorder is justified. Considerations of justification should inform the determination of mental disorder.

The determination of whether or not a person is mentally disordered involves whether one admits it or not, the application of policy choices which in turn inevitably involve value judgements. The mental disorder determination is not simply a mechanical exercise as outlined above. One reason, as previously mentioned, is that the key terms contained in both limbs are themselves undefined and are of uncertain meaning.

Consider the term 'abnormal state of mind'. Whilst the mental disorder definition states that an abnormal state of mind must be characterised by delusions and/or certain disorders, that is not to say that when delusions and/or one or more of the stated disorders exist, an abnormal state of mind must therefore exist. The necessary ingredients of an abnormal state of mind are identified in the mental disorder definition but whether those ingredients, when they are present, comprise an abnormal state of mind is another matter. The question is always whether the abnormalities described by clinicians amount to an abnormal state of mind in terms of the mental disorder definition. In what may be an uncomfortably arbitrary manner, the decision maker simply declares that the patient's state of mind is, or is not, abnormal. Whilst the decision may be straightforward in some cases, it is less so in others. The patient with ongoing and active bizarre delusions clearly has an abnormal state of mind. But is the patient who is a high achieving and valuable member of the community who has mild depression (an undoubted disorder of mood) to be regarded as having an abnormal state of mind when in all other respects the patient is psychologically and emotionally healthy and strong? Is that what Parliament intended?

Similarly, the five descriptors contained in the first limb are themselves undefined. These descriptors are delusions and disorders of mood, perception, volition and cognition. Until the Waitemata Health case it was the practice of the Tribunal and clinicians to ascribe a classical psychiatric meaning to these terms. The meanings of these terms was therefore reasonably clear. In Waitemata Health the Court, albeit obiter, appeared to eschew this approach.

The Chief Justice stated:

"The Act avoids reference to mental or psychiatric illness. The words used in the definition of mental disorder are words in ordinary use, although their application is heavily dependent upon the assessment of clinicians."

Modern psychiatry regards a disorder of perception for example, as one characterised by such symptoms as auditory and visual hallucinations. 'Perception' is not understood by psychiatrists to refer to the patient's outlook on the world. In deciding whether or not Mr H, the subject of the Waitemata Health case was mentally disordered the Tribunal had stated:

"In the context of the mental disorder definition, the term perception should not be extended to the likes of 'view of the world' in the sense of attitude, outlook and belief. That would be to attribute a dangerously broad definition to the term."

The Chief Justice stated however, that:

"...the Tribunal...seems to have taken a narrow view of what constitutes disorders of perception...The suggestion that the definition cannot have been intended to apply to a 'view of the world'...is not immediately attractive."

As mentioned, the above were obiter dicta and these matters were not fully argued. Surely however, a meaningful interpretation and understanding of the Act will draw heavily on the constructs and insights of modern psychiatry.

In my opinion whilst decision makers are indeed "heavily dependant on the assessment of clinicians" to reach an opinion as to whether or not a patient has an abnormal state of mind by reference to one or more of the five named descriptors, nonetheless the question goes begging as to whether what the clinicians' opinions accord with the proper meaning of those terms in the s2 definition.

Clinicians might contend for example, that a patient has a disorder of volition because he gambles excessively. When faced with such evidence a Court or Tribunal must nevertheless decide whether as a matter of law the behaviour described constitutes a disorder of cognition in terms of the Act.

Similarly, clinicians provide vital evidence as to dangerousness and capacity of self care. The question remains however as to whether the level of danger or diminished capacity of self care described in that evidence, qualifies as "serious dangerousness" or "seriously diminished capacity of self care" in terms of the Act.

It may be said therefore that the issue is not so much whether a patient is mentally disordered but should they be regarded as such in terms of the law. The answer to that necessitates ascertaining the relevant facts. But beyond that, it involves an evaluation and judgement as to whether or not in all the circumstances compulsory treatment is justified.

Take for example two patients, each with a bipolar illness which is well maintained by medication. Assume the 'same' likelihood of future relapse in each case. Past history has shown that when the first patient relapses he is a mild public irritant. When the other patient relapses he causes mayhem and becomes violent. The Court, responsible clinicians and the Tribunal may well decide that the former is no longer mentally disordered but the latter still is. At a formal level, the decision is that the second limb is no longer satisfied in the former case but remains satisfied in the latter case. But surely, underlying those decisions is the judgment that all things considered, compulsory treatment can no longer be justified in the former case but justified in the latter. And underlying those judgements are value judgements about whether the public should bear the risk of possible future mild public irritation (yes) or bear the risk of possible future mayhem and violence (no).

Not a Test

The justification evaluation which is part of the mental disorder determination is not the equivalent of a necessity test. A necessity test is contained in s27(3) of the Act already referred to :- the Court may only make a compulsory treatment order if the patient is mentally disordered and 'it is necessary' to make the order. Thus a Court might for example decide that a patient is mentally disordered, but decline to order compulsory treatment on the grounds it is not necessary because the patient will voluntarily comply with recommended treatment. Whilst necessity is part of the 'entry' test to compulsory treatment it does not form part of the 'exit' test from compulsory treatment. As already discussed, it was made clear in Waitemata Health, that the latter test is synonymous with whether or not the patient remains mentally disordered.

In the writer's view however, the absence of a statutory necessity test does not preclude responsible clinicians and the Tribunal having regard to the necessity for the order as part of the factual matrix which it will evaluate. It would defy both human nature and commonsense to suggest that when deciding whether or not a patient is fit to be released from compulsory status, responsible clinicians and Tribunals may not take into account for example, whether or not the patient is compliant with treatment and hence whether the order is necessary. It may be so taken into account, not as a discrete test as must be applied by the District Court, but as relevant to the determination of whether or not the second limb is satisfied. It can properly be said for example, that a patient's abnormal state of mind no longer presents as a serious danger because the patient has demonstrated over time that they are willing and able to comply with treatment. In that example, the factual finding that the order is no longer necessary results in a legal finding that the second limb is no longer satisfied, and hence the patient is no longer mentally disordered.

Nor does the evaluation of whether an order is justified constitute a separate test. Rather, the evaluation is an aid to correctly applying the mental disorder definition to particular cases. It simply informs the process of determining whether the first and second limbs are satisfied.

In Waitemata Health the Court ruled that once a finding of mental disorder is made by responsible clinicians or the Tribunal, no discretion remains to find the patient concerned fit to be released from compulsory status. Conversely, no discretion remains after a finding that a patient is not mentally disordered to find the patient not fit to be released from compulsory status. As the Chief Justice stated:

"The test for mental disorder achieves a balance between the rights of the individual and the public interest. There is no reason to assume that those who have the responsibility for discharge (principally the responsible clinicians) are given a power to achieve a re-balance in the individual case beyond application of the test for mental disorder. No standards against which such additional judgments are to be made are identified...

A third way (discharge from compulsory status where the patient remains mentally disordered but the clinician is of the view that the danger inherent in the mental disorder can be contained by a voluntary rather than compulsory regime) has not been provided explicitly in the statute. It would be overstepping legitimate interpretation to imply any such option from the language of the definition of "fit to be released from compulsory status."

Responsible clinicians and the Tribunal do not adopt a 'third way' when they have regard to the justification for compulsory treatment as part of the process of determining whether or not patients are mentally disordered. Consideration of justification assists the mental disorder determination. Once that determination is made, justification is of no further relevance to the formal decision as to whether or not the patient is fit to be released.

It is of interest that in paragraph 92 of Waitemata Health the Chief Justice cites two examples given in argument, of a patient willing to take medication voluntarily, and an anorexic patient for whom hospital treatment was not appropriate. The Court referred to the need for the second limb to be satisfied in order that there be compulsory treatment. There is a hint here of justification in the Court's reasoning. The Court implies there might be a connection between issues such as the need and appropriateness of treatment on the one hand and a finding of whether or not the second limb is satisfied on the other. The Court seemed to accept that a patient might not pose a serious danger or have a seriously diminished capacity of self care because the patient is willing to take medication voluntarily or hospital treatment is not appropriate. Thus, when deciding whether or not the second limb is satisfied the Court appeared to accept responsible clinicians and the Tribunal can look beyond the patient's clinical state as described in the first limb; they can bring to bear considerations of need and appropriateness. These issues are in the writer's view, issues of justification.

Dynamic Interplay

It is the writer's contention that the first and second limbs of the definition are in dynamic interplay. That interplay, together with justification, aids interpretation of the definition.

Whilst it is well understood that there must be a causal connection between the first and second limbs in order that a finding of mental disorder be made, it is the writer's contention that second limb considerations can also assist in the determination of whether the first limb is satisfied.

Compare, for example, a man who has an irresistible impulse to suck on paper clips, with a man who has an irresistible impulse to insert them into his urethra (an actual case considered by the Tribunal). The determination of whether the two types of behaviour constitute an abnormal state of mind characterised by a disorder of volition, may turn on the issue of dangerousness to health. The writer suggests that in the former case a finding of mental disorder will not be made, but in the latter case it will be. Someone who indulges in harmless behaviour, is unlikely to be regarded as disturbed. On the other hand someone who persists in painful and self harming behaviour, may readily be regarded as disturbed for that very reason. And so in this example, a two way (some would say circular) argument is established. The man has an abnormal state of mind because he is behaving in a self harming manner, and he is behaving in a self harming manner because he has an abnormal state of mind. This reasoning is perfectly legitimate.

Thus in the writer's view, applying the mental disorder definition to the individual case may necessitate consideration not only of how the first limb impacts on the second limb, but how the second limb impacts on the first limb, and these considerations furthermore involve the consideration of justification. And so the finding that the man who inserts paper clips into his urethra has an abnormal state of mind characterised by a disorder of volition is underpinned by the realisation that compulsory treatment of him is justified. The converse is the case with the man who merely sucks on paper clips: enforced treatment would surely not be justified even although his behaviour is pathologically driven.

Human Rights

Let me end this article where I began it: in the rights arena. As the Chief Justice stated in Waitemata Health:

"[The Act]...is not a vehicle for compulsory detention of those who are socially deviant or inadequate but not mentally disordered. Although it balances therapeutic and ethical concerns against public safety concerns, that is only in the case of those who are mentally disordered within its definition. It is not necessary to have recourse to the legislative history, but the debates in parliament underscore that the Act is a humane and careful response to the need to provide for compulsory treatment for those suffering from mental illness."

The Act thus balances the rights of the individual with the rights of the public. The correct balance of rights however, must necessarily be drawn from the interpretation of the mental disorder definition. There is no other way in the Act for that to be achieved.

At first blush the requirement that a patient not be released from compulsory status for so long as they remain mentally disordered, is a prescription for never ending compulsory treatment in many cases. That is because some mental illnesses or conditions are life-long. Does the law really envisage that such persons remain subject to compulsory treatment for the remainder of their lives regard less of how their personal and social circumstances might change? Surely the answer is no.

The error many fall into is to equate 'mental disorder' as defined in s2, with mental illness. The latter may in some cases be life-long. The issue is however whether those with extended illnesses and conditions remain mentally disordered in terms of the statutory definition.

The mental disorder definition is not a clinical one. To say of someone that he is mentally disordered or not mentally disordered, says very little about his present clinical state. What it does speak to, is whether or not in all the circumstances compulsory treatment is justified in respect of that person.

The notion of justification combines notions of practicality, pragmatism and expediency with notions of reasonableness, appropriateness and fairness. The application of these notions is necessary to achieve the correct balance between individual and public rights which in the writer's view may be regarded as the underlying purpose of the Act. A purposive approach to ascertaining the meaning of the Act is mandated by section 5(1) of the Interpretation Act 1989 which states that "The meaning of an enactment must be ascertained from its text and in the light of its purpose".

In the final analysis, it is a policy question as to whether or not any individual is mentally disordered in terms of the Act. Human rights considerations, both individual and public, underlie that policy.

Whilst in some cases it will be plain as to whether the rights of the individual should prevail over those of the public or vice versa, in other cases the Court, responsible clinicians and the Tribunal might helpfully be reminded of the applicability of rights issues. It may be relevant and helpful to refer decision-makers to treaties conventions, judicial pronouncements and the like. Such submissions or evidence would form part of the overall matrix of information out of which the mental disorder determination will be made. The weight given to this information will depend upon its strength and its relevance to the case at hand.

The writer disagrees with the argument sometimes heard that individual or public rights should not be explicitly considered by Courts, responsible clinicians or Tribunals when making mental disorder determinations, because the correct balance of rights has already been achieved and embodied in the Act itself. As already outlined, at the centre of the Act is the mental disorder definition, and yet its meaning is far from self-evident.

The mental disorder definition must be given a meaning that has regard to the right contained in section 11 of the New Zealand Bill of Rights Act to refuse to undergo medical treatment referred to at the commencement of this article. As section 5 of that Act states:

"...the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". [Writer's emphasis]

The writer's thesis is that justification is the guiding light in interpreting the Mental Health (Compulsory Assessment and Treatment) Act and in enabling the reasonable limits of compulsory psychiatric treatment to be identified.



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