Time to rethink mental health laws for treatment without consent

Each Australian state and territory has a Mental Health Act that enables those with severe mental health problems to be detained and treated without their consent. While the criteria differ, generally it must be shown that the person has a mental illness, is in need of treatment and is likely to either…

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We need to keep questioning the justifications for depriving those with severe mental health problems of their liberty. Shanon Wise

Each Australian state and territory has a Mental Health Act that enables those with severe mental health problems to be detained and treated without their consent. While the criteria differ, generally it must be shown that the person has a mental illness, is in need of treatment and is likely to either self-harm or harm others.

Psychiatrists make the decision about to who should be “committed” and treated, with tribunals reviewing such decisions after a certain period of time. These laws thus set up a structure whereby psychiatrists are required to act as substitute decision-makers, rather than as advisers and service providers.

The criteria and processes for involuntary detention and treatment are currently being reviewed in the Australian Capital Territory, Tasmania, Victoria and Western Australia, with differing views about how these criteria should be framed. And we also need to consider whether separate mental health laws are needed at all.

Risk of harm test

It is difficult to predict when a person is likely to harm him or herself. Back in 1983, Alex Pokorny conducted a large study of the prediction of suicide of 4,800 individuals who were being admitted for psychiatric services in a United States hospital. He was unable to find any combination of clinical or other factors that could be used in practice, concluding that there were no methods to predict particular suicides “before the fact”.

There have been few subsequent studies of predictors of suicide and there is some evidence to suggest that suicides often occur during periods when the risk of self-harm appears to be low.

It is also difficult to predict who will be at risk of harming others because of the low rate of violence among those with severe mental health problems, compared with other groups.

In 2002, the US MacArthur Violence Risk Assessment research suggested that a diagnosis of severe mental illness, in particular a diagnosis of schizophrenia, was associated with a lower rate of violence than a diagnosis of a personality or “adjustment” disorder. Personality disorders are generally distinguished from mental illnesses because they are based on patterns of behaviour rather than on impairments in thought or mood.

More recent research suggests that substance abuse has a stronger correlation with violence than mental health problems alone.

sidknee

The risk-of-harm criterion may be criticised for being discriminatory because it singles out those with mental impairments for preventive detention, when other groups who may be at high-risk of harming others are not. The focus on risk of harm in mental health laws has contributed to significant prejudice and discrimination towards people with mental health problems.

While there have been recent calls to abandon the risk of harm criteria in mental health legislation, none of the governments in the process of reforming current laws have signalled this approach will be taken. Rather, the risk of harm criteria will still exist in conjunction with other criteria.

Decision-making capacity test

Another option for law reform is based on the presumption that those with severe mental impairments cannot make decisions concerning their health because they lack a complete understanding of the nature of their mental impairment.

Sometimes, psychiatrists refer to such a lack of understanding as a lack of “insight”. While this is a rather vague term, insight is generally taken to refer to a person’s self-awareness that there is a problem or an illness and an understanding of its cause or meaning.

From a psychiatric perspective, if a person is unaware, or only partially aware, that he or she has a mental illness, it is in that person’s best interests to go ahead with treatment with the aim of improving “insight”. Many psychiatrists would argue that the ends of involuntary treatment justify the means and therefore they’re justified in substituting their decision to go ahead with treatment for whatever the individual concerned might want to occur.

But since Australia ratified the Convention of the Rights of Persons with Disabilities (CRPD), mental health law reform is moving away from substituted decision-making by clinicians towards putting supports in place to help people make their own treatment decisions. It is also emphasising voluntary treatment wherever possible and recognising a person’s legal capacity on an equal basis with others.

The problem with mental capacity legislation is that it may become too broad in scope in that too many people may be subject to treatment against their will. However, it seems that there may be a move towards including a capacity criterion in mental health laws in some Australian jurisdictions in conjunction with risk of harm criterion.

The focus on risk of harm in mental health laws has contributed to discrimination towards people with mental health problems. Kalexanderson

Best interests test

Psychiatrists sometimes argue that it would be better to have mental health laws that do away with the risk of harm criteria and instead concentrate on treatment in the “best interests” of the person concerned. A recent article by Christopher Ryan and colleagues in Australasian Psychiatry raised this option.

But countries that have had a “best interests” test in their mental health law, such as Ireland, have found that rather than being an objective standard, such tests open the way for subjective interpretations of what the clinician believes is best for the individual, without regard for the person’s will and preferences. For these reasons, Ireland plans to abandon the best interests test in its proposed new Mental Health Act.

Many mental health consumer advocates also see a best interests test as overly paternalistic.

Time to abandon mental health laws?

The Convention of the Rights of Persons with Disabilities is providing the impetus for challenging the justifications for why we have mental health laws at all.

Last year, the United Nations Committee on the Rights of Persons with Disabilities called for the repeal of legislative provisions that allow for the deprivation of liberty on the basis of disability, “including a psychosocial or intellectual disability”. After all, we don’t have diabetes or epilepsy laws compelling people to take medication, so why do we have mental health laws?

The idea that mental health laws should be abolished is not new. Back in 1994, Tom Campbell wrote that mental health legislation “institutionalises the idea that there is something about ‘mental illness’ itself, which invites a system of control and coercion”. He said the very existence of mental health legislation enabling involuntary treatment meant the mental health system became an emergency-driven one with a lack of resources available for access to voluntary treatment.

Burwash Calligrapher

Northern Ireland has signalled it will abolish its mental health legislation and instead enact one capacity law for all those with severe mental and intellectual impairments. A draft bill is in the process of development and, if enacted, will provide an interesting test case for how such law could work in practice.

It seems unlikely, however, that any Australian government will abandon mental health laws, or indeed the risk to self or others criterion, any time soon.

While some individuals clearly benefit from involuntary treatment, others may be left with a sense of trauma and grievance as a result of a process which may involve the police, the use of seclusion and restraint and injections of drugs that can have serious side effects.

It is therefore essential that we keep questioning the justifications for depriving those with severe mental health problems of their liberty and treating them without their consent.

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43 Comments sorted by

  1. Peter Fox

    Peter Fox is a Friend of The Conversation.

    Medical doctor

    Thanks Bernadette, but from your comments it strikes me that you've never been involved in the "scheduling" of a mentally ill patient. It is not a decision made lightly, with various caveats in place to protect the mentally ill from over zealous doctors (must be assessed by at least 2 doctors including 1 psychiatrist; case must be reviewed with a magistrate within a week).

    You seem to assume that physical injury is the worst thing that can happen without involuntary admission. Other types of…

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    1. Shipman Moreton

      Accountant

      In reply to Peter Fox

      If Bernadette has never been involved in the forced drugging and detention without charge or trial of innocent Australians, than she has my respect. For those who have, you've dirtied your hands and you've committed human rights abuses. I would disagree that this is not a decision made lightly in Australia. No Australians are even given the right to a court hearing before their bodies are violated by forced psychiatry, no Australians are given any objective evidence their bodies are diseased before…

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  2. Isabel Storey

    Retired but writing

    I recall a time in the 1970's where diagnosis and admission in Queensland was dependent on the number of vacant beds.

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    1. Shirley Pipitone

      Independent social researcher

      In reply to Isabel Storey

      This happens right now in 2012. I have experience in both the ACT and in Queensland, where discharge from a psychiatric unit depends more on availability of hospital beds (or rather, availability of staff) than on how well the person is.

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    2. Sue Ieraci

      Public hospital clinician

      In reply to Shirley Pipitone

      That may be true for the length of an admission to an inpatient unit, but the decision to use the Mental Health Act to detain a person for treatment depends on the risk of harm to the patient and others, not on the bed numbers. These decisions are audited and reviewed.

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  3. David Healy

    Retired

    It's heartening to read that "mental health law reform is moving away from substituted decision-making by clinicians towards putting supports in place to help people make their own treatment decisions."

    It can be a fine line indeed to judge whether or not a person has the capacity to make such decisions. How that judgment is rendered, and by whom, is not an easy call.

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    1. Shipman Moreton

      Accountant

      In reply to David Healy

      If someone cries out NO and screams while they are being forcibly injected, they know what they do not want to happen to them. Every day in forced psychiatry settings psychiatrists and nurses callously igore the state and expressed wishes of those they detain and drug. Such betrayal is not soon forgotten by the survivors of these assaults. If you've been labeled by a shrink, and this by no means your brain has been objectively proven diseased, and you've lost the right to own your brain, and the…

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    2. Seamus Gardiner

      Citizen

      In reply to Shipman Moreton

      I've forcibly injected some-one with a psychotropic drug whilst they are restrained. This happens when someone is scheduled under the Act. The patients I have done this to were either in the grip of psychosis, not your nice gentle psychoses but ones where the patient would go on to do actual harm to themselves and others. I've also administered medications to patients with flagrant and frank mania, who are scheduled because if they weren't they would have been a danger to themselves.

      None…

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    3. Mia Longalai

      logged in via Facebook

      In reply to Sue Ieraci

      Conescending. I think so. Unnessasary and an accurate depiction of the attitudes of so called professionals with paternalistic notions of them knowing whats best for patients. Bring on the consumer movement. The faster consumer representatives are actually on the wards full time, the quicker we can be rid of arrogant attitudes centring on untruths and fallacies perpetuated by health employees, insinuating they know what's best for consumers, rather than informed consumers directing their own recovery and treatment. Seamus has made some excellent points, and as an individual with schizophrenia who has been incarcerated in hospitals, I can see exactly why Seamus writes with such emotion. Don't write us off because of emotive language, and I'll try not to write you off for your icily clinical self serving opinions.

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  4. Sue Ieraci

    Public hospital clinician

    Providers who are tasked with making these decisions are working between a rock and a hard place.

    Admit a person against their will, and be accused of human rights abuse. Allow the person to go, risking a violent or even fatal outcome, and be held accountable for their death.

    Providers are rightly erring on the side of safety. There is no coming back from a completed suicide.

    What would the author do when a family appeals for their sick relative to be held in hospital, fearing their own safety as well as their relative's safety?

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    1. Shipman Moreton

      Accountant

      In reply to Sue Ieraci

      "Admit a person against their will, and be accused of human rights abuse. Allow the person to go, risking a violent or even fatal outcome, and be held accountable for their death."

      Nice to be able to use the word "admit" in a coercive sense and think nothing of it. Imprisoning someone in a building is not to "admit" them if we tear away the pathetic fake doctors and nurses facade. But simply "admitting" someone isn't where the human rights abuse happens, it happens when the rubber hits the road…

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    2. Mia Longalai

      logged in via Facebook

      In reply to Sue Ieraci

      There is a serious omission in this statement. I think "Shipman" is alluding to this point, however passionately, he brings up a worthwhile and significant problem. Secondary Traumatisation is a very serious outcome for a number of individuals who have been scheduled, or have been admitted as involuntary patients. I have personally, and professionally, been privy to the disasterous consequences of such dire actions. As I keep banging on, the article above and thousands more, clearly prove that persons…

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  5. John Holmes

    Agronomist - semi retired consultant

    I wonder at times just how much significance is given to the damage some mentally ill cause others. Having observed a parinod schizophrenic closely and the slow deterioration of that persons condition over time I wonder to whom if the 'feel good' attitude of minimizing any restraints on them is beneficial? (I was using my skills, such as they are, of a mature public servant in explaining documents written in Public Servicese to a person for which English is not a first language, and also taking…

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    1. Sue Ieraci

      Public hospital clinician

      In reply to John Holmes

      People with severe mental illness deserve the same protection that all people with severe illness are entitled to: treatment to restore their capacity to make rational judgments. These are not dependents like the bull in your story - they are adults who have a mental illness, and can almost always benefit from treatment.

      AN elderly person who has acute delirium due to an infection and who wants to refuse treatment and run away isn't just left to their own devices - they are safely restrained until…

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    2. John Holmes

      Agronomist - semi retired consultant

      In reply to Sue Ieraci

      I agree with your comments re care for the mentally ill, sorry if I was not clear enough.

      With respect, I was outlining some costs to the community which I feel have been under reported from the impact of mental illness on bystanders including supporters, family and carers. I would suggest that we have a problem in our community in providing sufficient resources to care for those who require it, including good respite care. Also the safety of both the patient and bystanders is paramount…

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    3. Shipman Moreton

      Accountant

      In reply to Sue Ieraci

      I am a survivor of forced psychiatric drugging and meddling in my life, and I detest this government violence against innocent people being framed as somehow doing people a favour. I do not consider living fear of being forcibly drugged with toxic life shortening drugs to be a anything other than the human rights abuse that it is. You are not doing me a favour by entering my body against my protests, you are doing nothing but imposing your ridiculous quackery on me.

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    4. Shipman Moreton

      Accountant

      In reply to Sue Ieraci

      Sue Ieraci makes all sorts of nebulous comparisons to elderly people with dementia. The fact is, none of the people detained extrajudicially and targeted for forced drugging have objectively provable brain diseases or "life threatening illness", merely they live in a world full of people will to believe psychiatry's claims, and then hide behind laws to force those views on nonconsenting innocent people. I hope I'm never temporarily owned by someone who holds Sue's beliefs ever again. Last time the…

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    5. Shipman Moreton

      Accountant

      In reply to John Holmes

      Supporters of forced psychiatry always use the extreme stories of people doing things they find strange, such as this 'SAS soldiers' thing. If the man went to the barracks and was turned away, and repeatedly tried to go there, than that sounds like a criminal matter, not a matter that everybody with a psychiatric label should suffer 'guilt by association' from. If you want to control somebody, the pefect cover is to simply label them brain diseased (you don't even have to prove they are brain diseased…

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    6. John Holmes

      Agronomist - semi retired consultant

      In reply to Shipman Moreton

      In this particular case, I have along with several others acted as supporters to ensure that the rights of this person were protected in areas where injustices seemed to have occurred. The observations I originally made have been the need for the community to better measure the damage being done to others by such individuals. If this results in better management of such situations, good. This includes reducing the chances of what your description of have been inappropriately ought up in the system, is also implicit in my suggestions.

      Bizarre anecdotes indicate the pressure being placed on those who are attempting to, or have been caught up in supporting support such a person. However the comes a point at which enabling is not appropriate. Ultimately such persons can walkaway, and so others will become involved.

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    7. Shirley Pipitone

      Independent social researcher

      In reply to Shipman Moreton

      This forum is for intelligent and rational debate by people who are knowledgeable in the field. I find your contributions entirely unhelpful. I suggest you read another recent article published in The Conversation called "No, you're not entitled to your opinion".

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    8. Mia Longalai

      logged in via Facebook

      In reply to John Holmes

      What about the damage done to individuals my non mentally ill persons? Can we incarcerate those individuals too? Schizophrenia is NOT correlated or in any way connected with "ruining lives". Where does this prejudicial and defamatory intolerance derive from? I rest assured that there is absolutely zero documentation of any of relevence supporting this ignorant assumption. As the above article clearly states, person's living with mental illness are statiscally proven to be victims of crime, as opposed…

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    9. John Holmes

      Agronomist - semi retired consultant

      In reply to Mia Longalai

      I suspect that we are talking about the same problem from various angles. What I am suggesting is that there is a need for a greater understanding of the interaction mentally ill with less so afflicted people in the community. My suggestions have been reinforced by close observation of some cases, at considerable expense in time and of some treasure to myself.

      You are asking for better education of and understanding by the community and protection of such persons, I agree.

      I have found…

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  6. Susan Ruthenbeck

    Luftmensch

    This article fails to recognise what it is like for a family to live with someone who is psychotic, ie. having a break with reality. It is can be difficult to get someone committed to a psychiatric institution.

    Please direct your efforts to lobbying for more mental health funding and services!

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    1. John Holmes

      Agronomist - semi retired consultant

      In reply to Susan Ruthenbeck

      Agree completely.

      My comments below relate to the need to properly measure, document and discuss the impact of mental illness on the community. What you refer to is part of this cost, at least I can ask them to go home, yet many hours do slip past.

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    2. Shipman Moreton

      Accountant

      In reply to Susan Ruthenbeck

      This article isn't about the family members who like to have a way to get their "loved one" stripped of their legal and human rights and shot up with drugs. No, this article is a rare mention that people with psychiatric labels deserve rights just like every other Australian. If you're in favour of forced drugging laws, all I can say is I'm disappointed you don't believe in giving all Australians the same human rights.

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    3. John Holmes

      Agronomist - semi retired consultant

      In reply to Shipman Moreton

      Fair crack of the whip! If the actions of an individual are such that it greatly interferes with the rights of others in a detrimental personal way what are you proposing?

      I have merely suggested based on a number of observations made over some time, that when the community cost of the cost of mental illness to include and appropriate amount for the damages cause to others by some mentally ill individuals. That I used an extreme example, yes I agree.

      I would agree with you re the rights of such persons, yet how to manage the obligations of those persons to live in reasonable harmony with those about them is also a part of this problem.

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    4. Shirley Pipitone

      Independent social researcher

      In reply to Susan Ruthenbeck

      Yes, Susan it is very difficult when a member of your family is clearly psychotic and you are struggling for them to get treatment. A person with schizophrenia can often put on a show of relative "normality" for up to half an hour so they can successfully convince medicos that they are OK. Sadly it often takes a crisis before treatment is forthcoming. Hang in there, look after yourself, try not to create a crisis but if a crisis happens, don't try to prevent it.

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    5. Sue Ieraci

      Public hospital clinician

      In reply to Shipman Moreton

      Giving people who are suffering a life-threatening episode of their (psychiatric) illness IS respecting their human rights. Should we, instead, leave them on the streets, to harm themselves, homeless, agitated and in danger? We wouldn't do that to someone with a life-threatening infection - why would we do that to someone who needs urgent psychiatric care?

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    6. Mia Longalai

      logged in via Facebook

      In reply to Shirley Pipitone

      Unbelievable utter ignorant crap! This article is about the rights of a individual who is clinically unwell, to be free of incarceration or arbitrary abuses of their freedom. Schizophrenia psychosis does not abate for 30 minute periods to impede ignorant relatives of their desires to restrain the patient with medications for ease of "handling". This is mean- spirited and blatantly untrue, and lying for a condescending moment of recognition, is the manipulative way to comiserate with a fellow carer…

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    7. Mia Longalai

      logged in via Facebook

      In reply to Susan Ruthenbeck

      This article doesn't mention the families experience because the family is not imprisoned, isolated, secluded, restrained, abused or traumatised for living with a mental illness. That's the point of the article. If you require respite of sympathy, I suggest you avail yourself of another article, or the numerous supports and organisations, that will undoubtedly be insufficient, but will at least be a little respectful and understanding. Condemn the unwell if you desire, but this is a serious and life or death violation of human rights, and is not relevant to your prejudices and self righteous hand wringing mator acts.

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    8. Susan Ruthenbeck

      Luftmensch

      In reply to Mia Longalai

      No, Mia...the families can be imprisoned, isolated, secluded, restrianed, abused and traumatised by their mentally unwell family member.

      I would ask you to have some respect and undestanding for that.

      I do not condemn the unwell, but when family members are unable to assist them, the families look for support from health professionals.

      I'm not prejudiced, I am the adult child of someone who struggled with severe mental health issues involving violence, abuse and pshychosis for 12 years which ended in suicide.

      So some restraint may be necessary sometimes to save a life. It is not done lightly.

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  7. Shipman Moreton

    Accountant

    "After all, we don’t have diabetes or epilepsy laws compelling people to take medication, so why do we have mental health laws?"

    I disagree with the comparison between two real diseases, epilepsy and diabetes, and the labels that are put on distressed people in a psychiatric sense. If someone has diabetes, they have a demonstrable biological disease. If someone has a breakdown and is labeled by psychiatric with one of its DSM labels, and given tranquilizer drugs to get them stop thinking what…

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  8. Shirley Pipitone

    Independent social researcher

    There are many ways a person with a mental illness might harm themselves or others - physical harm is only one. I thoroughly support the idea that people with a mental illness should have the same human rights as the rest of us but there is a reality here which the theory overlooks completely.

    Our society maintains the pretence that a person with a severe mental illness can make decisions about their life even if they are clearly unable to make sensible decisions, and even if their right to make…

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    1. Sue Ieraci

      Public hospital clinician

      In reply to Shirley Pipitone

      Shirley - I support the majority of your comments, but it's important to realise that, to enable long-term programmes to be successful, the acutely ill sometimes need "short-term forcible actions". IN other words, if a person is amidst an acute psychosis, the may not be able to benefit from long-term help until stabililised.

      In much the same way, the law expects the health system to protect people with other types of illness who lack "capacity" (ability, in the legal sense, to make judgments in…

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    2. Mia Longalai

      logged in via Facebook

      In reply to Sue Ieraci

      One more comment Sue. As an individual living with Schizophrenia, I have experienced the acute, florid, psychosis you refer to a couple of times. I do not agree though, that this is an immediate indicator for inpatient admission. There are consumers in the community with personality disorders, OCD, GAD, MDD, who pose a far higher risk to themselves, and perhaps in a minute minority, to others, than acute psychosis. The major debilitating factor in psychosis, is part of the negative symptoms whereby self care becomes extremely difficult. This is not indicative of hospitalisation. Community teams should be far more available for people with Schizophrenia Psychosis, and should always be the first and preferred option.

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    3. Sue Ieraci

      Public hospital clinician

      In reply to Mia Longalai

      Ms Longalai - I agree that hospitalisation should be avoided when it is not the best solution, and that community teams should be more avaialable.

      When the community team, however, makes the judgment that someone is in danger out of hospital, then hospitalisation may be the best strategy at the time.

      People with personality disorders, OCD and other conditions are swept up in the same process too - the hospital provides the backstop when people fear for another's safety, and health care providers are required both ethically and by the law to act with prudence and safety.

      I can fully understand why people would not want an acute hospital admission, but sometimes it is the least of the available evils.

      Again, I don't think it is ethical for people in the midst of an acute exacerabation of their psychiatric illness to be abandoned to their own devices, any more than a person having a heart attack.

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  9. Ian Kennedy

    Medical Student

    Sounds like Shipman Moreton has a 'lack of insight' into his condition....Just kidding buddy. Firstly I would like to say that I enjoyed this article and it made some valid points. Involuntary admission is not something to be taken lightly and can be a scary experience for the patient.

    However, I am currently on placement in a mental health ward and I can tell you now that the reason patients are admitted is because they cannot make informed decisions regarding their care. Over the last few weeks…

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  10. Sue Ieraci

    Public hospital clinician

    Since the comments here are a mixture of opinions from defending the rights of the patient by not imposing care against their will, to defending the need to impose care for the protection of the person and others - perhaps we have the balance about right. What does the author think?

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  11. Kenneth Macaulay

    Student/Designer

    Some of the concerns that I would have not touched on in this article relate to the Pharmaceutical Industry, the rather elastic nature of psychiatric diagnoses, & the increasing level of privatisation of government support services.

    Once an individual has been committed, most of them will remain on some form of medication for much of the rest of their lives. They are now part of a bureaucratic process where the automatic response to many problems they may bring up or run into will be to medicate…

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    1. Sue Ieraci

      Public hospital clinician

      In reply to Kenneth Macaulay

      Kenneth - it is common for it to take some time to make a firm diagnosis in a new psychiatric illness, because it depends on the manifestations of the illness rather than some sort of test like the diagnosis of a fracture on XRay.

      As you have seen with your friend, severe psychotic illness can be very disabling and certainly can shorten a life-span - we should compare the severity with severe forms of cancer or heart disease - not everyone can get a satisfactory long-term cure.

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    2. Robert Peers

      General Practitioner

      In reply to Sue Ieraci

      Hi Sue,

      On the other hand, drug-based chronic treatment of bipolar and schizophrenia may itself shorten life span, as the drugs promote food cravings, obesity, diabetes and fatal vascular disease. These unfortunates are lucky to make 60. Oddly, Robert Whitaker, in his revealing book Mad In America, claims to have found evidence that BEFORE modern drug treatment started, about 1953, a large minority [40%?] of untreated schiz cases eventually improved on their own, and seem to have got back to work…

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  12. RealHousehagofNZ

    logged in via Twitter

    what are the laws with mental health? say you had a crisis team out, then you went and seen a doctor at the suburb mental health team place. You organize to take medication get Councillor? is that a community order can you leave at anytime? can they make you take medication, put in hospital?. Your bad patch is over so to speak well not over but no risk of harm, using the services does that come with a certain control they have.

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