THE MADNESS OF MENTAL HEALTH ACTS John Ellard
Australian and New Zealand Journal of Psychiatry 1990; 24:167-174 It is said that somewhere on this fair earth there is a most beautiful landscape, the prospect of which is marred by the presence of a large billboard. On the billboard there is a single message: “Stones must not be thrown at this notice”, nothing more. To achieve this end there are two possible courses of action. The first is to hire park rangers, install floodlights, arrange for police supervision by helicopter and place electronic detectors on and near the notice so that stones in flight and those who throw them may be detected. The second is to take the notice away. Throwing stones at notices is not the only human activity which can lead to such a dilemma. For example, alcohol is a dangerous substance: the United States Government decided to proscribe it by legislation and created the catastrophe of Prohibition. The consequences are well known and Prohibition has been taken away. Again, cannabis, a century ago part of the pharmacopoeia, is now proscribed by legislation. The consequences are well known, but the surveillance, the helicopters and the electronic detectors are still with us.
Do we need a Mental Health Act? In considering Mental Health Acts we most not fall into that particular trap: we must ask, do we need such Acts at all? Should we heed the arguments of Professor Szasz, Patron of the Church of Scientology, and regard all such Acts and related concepts surrounding mental illness as - to use his words - “an immoral ideology of intolerance” [l]. Could we do without them? Yes, we The Northside Clinic, 2 Greenwich Road, Greenwich NSW. John Ellard AM, FRACP, FRC Psych, FRANZCP, MAPsS
could: we could adopt the extreme civil libertarian position that the only reason for incarceration should be a breach of the criminal law, provide the Department of Corrective Services with a first class psychiatric service, give judicial officers appropriate discretion about the disposal of those who appear before them, and we have done it. There are, of course, a few problems. Many will need to be convinced that the criminal justice system has the necessary expertise necessary for handling a wide range of psychiatric problems, and others may object to their nearest and dearest being dealt with in the same way as are criminals. The needs of those who do not break the law at all will be neglected. I do not think that such an approach is socially acceptable nor is it politically advisable. It has the appeal of tidiness and nothing more.
Where they came f m It seems that we must have Mental Health Acts. It may help us if we understand how they came about in the first place: therefore let us turn to history. Psychiatric hospitals have been with us since the 6th century; their numbers began to burgeon in Great Britain in the 17th and 18th centuries with the establishment of the private madhouses. With them came abuses; improper incarceration in the first place, illtreatment while confined and continuing incarceration without good cause. I have written in another place of the long struggle to remedy these things [ 2 ] ;suffice it to say that about two hundred years were to pass before the Lunacy Act of 1890 - the one adopted in England and Wales provided some measure of protection from those abuses.
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What such an Act should do What else might we look for in a Mental Health Act? We might expect some provision to deal with the dangerously mad. The criminal justice system is quite useless here: it springs into action after the event, which may satisfy the statistician, but does not do much for the victim. You are entitled to ask, is there really a problem here at all? Whenever a half-way house or some similar institution is set up in the community a predictable confrontation occurs. Those living nearby believe that they will be raped or murdered in their beds - or both - by the patients released from hospital, while the experts are to be seen on television, or heard on talk-back radio, explaining that such fears are quite groundless, no more than outdated prejudices. Where does the truth lie? Most psychotic patients are harmless people, a threat to no-one. But - and it is a significant “but” - there is a small number of patients who are very dangerous, and remain very dangerous. Some figures may help. A study in Kansas City [3] examined 304 adult males admitted to an urban community health centre for short-term emergency care. Forty per cent of them had indicators of violent behaviour or a history of it. It emerged that the patients were passing through not one but two revolving doors: the criminal justice system and the mental health system. For schizophrenic patients there were two hospital admissions for violence for each arrest for violence, for substance abusers there were three arrests for violence for each re-admission for violence. Some sub-groups had very high rates of violent recidivism - the highest had an annual violence rate of more than 600 per 1000. Another study conducted in New York State [4] concerned 225 criminal defendants adjudged not guilty by reason of insanity. After a time 132 of them had been discharged - that is adjudged to be no longer dangerous. We are dealing with a selected population. Within the period of the study 38 of the 132 adjudged safe had been arrested and most of the arrests were for serious crime. In case you believe that result to be atypical, a series from Hawaii, comprising a number of ethnic groups [5], gave similar results. Of 107 people who had been acquitted on the grounds of insanity 72 (67%)were re-arrested, 60 of the 72 for a felony charge. The 107 acquitted persons notched up 362 arrests in the study period. In short, anyone who says psychiatric patients emerging from institutions are no more dangerous than
anyone else has not read the literature, or has chosen to ignore it. Most are not dangerous, but some are. Our Act will need to take notice of that. There is then the necessity of ensuring that when patients are institutionalised they will receive treatment at a proper professional level, it being recognised that for some of them treatment will have little to offer and that they are being locked up for everyone else’s benefit rather than their own. We shall return to that later. Let me summarise where we are now: Mental Health Acts are socially and politically necessary. They must protect patients against certain abuses. They must protect the public against dangerous patients. That seems simple enough. Where are the difficulties?
Definingthe indefinable First there are some serious problems about nomenclature. Let us start there. This is the age of marketing and image making, an age based on insincerity and half-truths. Distortions of this kind are powerful determinants of what we see and what we believe. Years ago we had children’s hospitals; now we have institutes of child health, which are concerned with disease. We used to have Lunacy Acts and mental hospitals; now we have Mental Health Boards, Services and Acts. What are they concerned with? Madness. Changing the words is a technique which can produce great reforms very rapidly. The Italian government decided to stamp out psychiatric hospitals: the University of Milan Psychiatric Hospital became a guest-house. It housed the same people, who required the same attention from the same doctors and nurses. Clearly a millenium was dawning [6]. Let me move a little closer to our central problem. In 1959 J.G. Scadding, a chest physician who became Professor of Medicine at the University of London, wrote the first of a series of papers in which he attempted to define the term “disease”. Eight years later [7] his definition was “a disease is the sum of the abnormal phenomena displayed by a group of living organisms in association with a specified common characteristic or set of characteristics by which they differ from the norm for their species in such a way as to place them at a biological disadvantage”. It was a very good try, but later some wit pointed out that these criteria were met quite precisely by a celibate Catholic priest who rode a motor bike.
JOHN ELLARD
Suffice it to say that no one has yet come up with an acceptable definition of disease. Most definitions offered are circular, defining disease as a departure from health, and health as an absence of disease. It is an important issue, for the definitions we accept at the beginning of any endeavour will do much to determine our behaviour while we pursue it. Since mental health acts do not concern themselves with mental health at all, but rather with mental illness, we must look at what has happened there. Mr Justice Kirby, having a clear and enquiring mind, commented in an editorial in the Medical Journal of Australia [8] that we needed one: can we find it? The drafters of the New South Wales Mental Health Act of 1983 gave up. Although the words “mental illness” appear in the Act many times, “mental illness” is nowhere defined. With a subtlety which has passed over the heads of some of the medical profession the Act distinguished between a person who is mentally ill and a mentally ill person: the latter is a person who is mentally ill, and also dangerous to himself or others - and so on. This evasion of definition worked well enough until unfortunately someone asked what the words “mental illness” meant. In the Supreme Court of New South Wales Mr Justice Powell in two judgements explored the concept as it stands in law very carefully and precisely [9]. To be mentally ill meant that one had delusions, hallucinations or that one was paranoid. For all practical purposes we are back in the year 1800 at the trial of Hadsfield, listening to Erskine: “Delusion, therefore, where there is no frenzy or raving madness, is the true character of insanity ...”. The decision meant those so demented as to be quite incapable of avoiding common physical dangers were not mentally ill and therefore of course could not be mentally ill persons and so made subject to the Act. I do not think that I need spell out the problems which arise from such a position especially if one does not have a Guardianship Act or something of the sort. Since we are discussing the general failings of mental health legislation in New South Wales I cannot forbear from quoting from some comments Mr Justice Powell made in one of his judgments [9]. “2. Part VII of the Mental Health Act 1958 has ceased to operate and has been replaced by Part VII of the Mental Health Act 1983. Curiously, though, Part 111 of the Mental Health Act 1983, which deals with the Mental Health Review Tribunal appears not to have been proclaimed despite the functions conferred
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upon the Mental Health Review Tribunal by Part VII of the Mental Health Act 1983; “3. Part VIII of the Mental Health Act 1958 which dealt with Welfare Officers has ceased to operate curiously, though, Division 5 of Part XI of the Mental Health Act 1983 which deals with Welfare Officers appears not to have been proclaimed:” I must confess that as a psychiatrist practicing in New South Wales I am quite unsure of which bits of which Act are law and I get by by using common sense, hoping for the best and keeping my Medical Defence Union subscription up to date. Those who drafted the New South Wales Mental Health (Amendment) Bill 1989 were more resolute [ 111: “Mental illness means a condition which affects, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following: (a) delusions (b) hallucinations (c) thought disorder (d) severe or irrational disturbance of mood state or by sustained or repeated irrational behaviour indicating the presence of one or more of the symptoms referred to in (a) or (b).” Let us try it out: I shall do so by presenting you with a series of patients.
Delusions My first patient believes unshakably that he is Napoleon Bonaparte: I assure that in fact he is not Napoleon Bonaparte. If you accept my assurance, he is deluded. No problem there. My second patient is a young lady of 18 who is extremely emaciated: she will tell you what she believes, that is, she is plump and well rounded - any weight gain would be a catastrophe. There is no doubt at all about her sincerity both of word and action. Is she not deluded? My next is a gentleman in his 40s who had a wild night on the town some years ago, and is convinced that he has AIDS. He has no relevant symptoms, his physical examination is normal and he has had three consecutive AIDS tests at three-monthly intervals all of which are normal. His belief remains fixed. My fourth person is a man who believes firmly that our lives are governed by the movements of pieces of
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rock and frozen gas some thousands of millions of kilometres from Earth - the planets. Finally we have a gentleman who believes that every tree, every bush, every rock, harbours a supernatural being and that they too control his life. Everyone in his village shares the same belief, which is the belief of their ancestors. Somewhere in this procession we have crossed a Rubicon. Napoleon stands on one bank and our tree worshipper on the other. The disposition of the rest might engage us in an argument for a long time. Delusion is more difficult to define than you might think.
Hallucinations Here is someone who hears a loud voice commenting on his actions for most of every day. He has looked everywhere for the loud speakers and cannot find them: he is still looking. There is not much doubt about him. Here is a man whose wife died two months ago. Yesterday he thought that he saw her walk into David Jones’ door half a block away. I shall be next. Many years ago during my Army service I was very tired. I went to sleep standing up in a sort of sentry box: I woke up completely paralysed, unable to move, listening to firm clear footsteps advancing upon me along a path. I managed to rock my body a little which caused my rifle to fall down with a clatter. Then I could move and the footsteps disappeared - they were hallucinatory. I was suffering from sleep paralysis, also known as nightnurse’s paralysis, nightwatchman’s paralysis and so on. It is very common in certain occupations: the hallucinations are true hallucinations. To round it off, it is not rare for people with hysteria to hallucinate.
Thought disorder Perhaps we should try our luck with thought disorder. Although the Bill does not indicate it, thought disorder is a technical term of some antiquity. Let me give you some examples. A patient said to me, “that Italian lady over there is wearing a pink nightdress; I am wearing a pink nightdress, therefore I am that Italian lady over there”. A similar statement is “Red Indians have feathers, and parrots have feathers. Therefore Red Indians are parrots”. I trust that you can see that there is a disorder of
logic there. But the world of advertising is founded on thinking like that. If I see on television a beautiful young lady engaged in washing herself under the shower with a particular brand of soap, presumably to remove dirt, I may be moved to use the same brand of soap for the same purpose. I doubt that the reasons moving me would be completely logical. Similarly for a long time many people were persuaded to buy a particular brand of petrol by being told that it would put a tiger in their tank. If they had believed what they were being told the sales would not have prospered. Thought disorder, by any definition, is a quantitative phenomenon and can be found in the dull, the brain damaged and many of the so-called normal, as well as the psychotic people who might come to the attention of the Act.
The difficulties are perhaps less here, but a lot depends on the point of view. Think of the manifestations of mood displayed at the funeral of the late Ayatollah Khomeini, or read the lives of some of the more pious Saints, who achieved bliss by licking wounds, or having themselves tortured. There is room for debate. Finally, what of “sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to from (a) to (d)”. Reflect upon the behaviour to be witnessed in the New South Wales Parliament on a particularly bad day, the wilder extravagances of the fashion industry and the Stock Exchange generally. I shall rest there. To put it simply, those who draft Mental Health Acts, wise though they may be, cannot be expected to provide definitions which probably do not exist and which no one else has been able to discover. There are many useful words which simplify and abbreviate communication, but which will not stand up to critical examination. In psychiatry such words are often applied to processes and dimensions, and mislead the unwary into believing that they refer to things or categories.
The central problem Can we somehow come to grips with our purpose more directly? Can we avoid the entanglements created by seeking a position which can never be achieved? Can the law be made to work in this way?
JOHN ELLARD
The answer is that of course it can, if it has to deal with a problem in its own back yard. Let me demonstrate that to you. Imagine that for the fifth time a superior Court is presented with a document of complaint requiring a decision. The document is several hundred pages long, each page being fully occupied by the text - there are no margins - and the text itself is liberally sprinkled with italics, quotation marks, exclamation marks and handwritten additions between the typed lines. The documents quoted within it include the Sermon on the Mount, Magna Carta, the American Constitution and a Judgment made in the Supreme Court of Swaziland in 1884. There are copies of letters written to the Queen, the Archbishop of Canterbury, the Pope, the Prime Minister, all the Attorneys General of this Commonwealth and all the Chief Justices. The syntax is idiosyncratic, the argument illogical, the conclusions unsupported. What does the Court do? Their Honours may dip into psychiatric terminology. Thus Mr Justice Sholl of the State of Victoria described a man as suffering from a “persecution complex” and Mr Justice Yeldham in New South Wales described the actions of two individuals as “paranoid-like”. Nevertheless the Courts do not trouble themselves with niceties of definition, they throw the litigants out, declaring them to be vexatious. The author of an excellent paper on this matter, from whom I have taken these examples [ 111 makes the point that recent developments in the administrative law have moved the burden of dealing with these people from the Courts to such persons and bodies as the Ombudsman and the various Complaints Units. The principle of not complicating thing unnecessarily remains. The central problem is this. Most of us can think clearly enough most of the time and can get along reasonably well in the world. We can do this because our sensory input is added to what we know already, and we have an organ which processes this material so that we can act sensibly. That organ is the brain. Let us now conduct a simple experiment. Take someone and hit his head with a brick such that he remains conscious but is confused. In that confused state his data processing goes wrong and he interprets a sympathetic approach as an attack, knocking down his perceived assailant. Common sense suggests that it would be silly to entangle him in the criminal justice system: we need to put him somewhere where we can assess his injury and wait till his mind clears. Punishment is irrelevant.
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Furthermore, and importantly, we need to make sure he is cared for adequately, that he is let out when his mind clears, and that he is not detained unnecessarily for profit, from administrative inefficiency, or just thoughtlessly. We can do all that without fussing about precise definitions or nuances of neuropathology: we need a simple mechanism of disposal and monitoring.
What is schizophrenia? Most of the people who come into collision with the M e n t a l H e a l t h A c t s h a v e schizophrenia. Schizophrenia is a matter of some importance; for example, it is said that just less than 1% of the whole population will suffer from schizophrenia at one time or another [12] and that in a developed country a significant part of the Gross National Product will be diverted or lost because of it. It was estimated that the cost of schizophrenia - direct and indirect - in 1983 in the United States was US$48.2 billion which would correspond to more than $3 billion here. To look ahead, if there is no substantial medical advance, the annual cost of schizophrenia in the United States in 2007 may well be US$155 billion [ 131. All these things would suggest that schizophrenia is a disease of some significance. It may come as a surprise to you to know that it is almost certain that there is no such disease. Schizophrenia is probably a term like mental retardation - useful, not without meaning and worth retaining until we get something better. Careful examination of schizophrenic patients produces interesting things - thus one family in Iceland has been reported as having schizophrenia in association with an anomalous gene on chromosome 5. That disability has been found nowhere else. Some people with schizophrenia have a clearly discernible structural brain pathology readily seen on CT scanning and others have subtle regional disorders of their cerebral glucose metabolism. Some have neither of these abnormalities. The brain is a complex organ and its functioning is determined not only by biological processes, but by the social and psychological forces which affect the person who owns it. Schizophrenia is a useful label to apply to a whole wide set of behavioural abnormalities, ranging from standing on one leg for a long while (as in catatonia) to having one’s conversation disorganised in a particular way. I have patients with schizophrenia who are so crippled that they need permanent care, others who get by in the community most
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of the time but with reduced efficiency and others who attend universities, do well there and look after their families competently. Let us summarise where we are now. You will recall that I have argued that (a) We cannot do without Mental Health Acts (b) they must protect the patients and the community (c) there will never be a satisfactory definition of mental illness (d) inspecting the illnesses themselves will not help, and more generally and importantly (e) we are in trouble because we are trying to create categories where there are only dimensions, or things when there are only processes. Any Act which tries to set up mental illness as a clearly definable category cannot succeed in that intention. This is not a unique problem. Exactly the same error has been made in the Criminal Law and we are presented with concepts such a s insanity and diminished responsibility as if those words corresponded to something in the real world, which they do not, or worse, as if they had some relationship to psychiatry, which certainly they do not. What we are trying to do is establish some rules for dealing with people whose brains are disordered to such a degree that they make manifestly incorrect judgments. On the basis of that disorder they do things which we will not tolerate, or do things which seriously harm their own interests. Let us now take it step by step.
Things to be done 1. Triage First of all we need to discover those likely to be proper subjects for assessment. This is familiar ground: doctors, the police and relatives are obvious candidates for the role of discovery. There may well be others. Their powers should be limited to getting the person to the place where the next review will be made. Any Order made should fade within a brief period - say 72 hours.
2. The first tribunal Since those nominated are presumed to have a brain disorder they should be conveyed to a hospital. Since their liberty is in jeopardy the Inquiry to be conducted
within 72 hours should be magisterial. I do not have space to go into it here but the Sydney Representation Study [14] made it clear that those under scrutiny should have legal representation. The reason for this is not to turn the Inquiry into a classical adversarial procedure, but to ensure that it is taken seriously. The Sydney Study showed that causing the patient to be represented had a number of effects. For example, the doctors who believed that the patient should be locked up were much more likely to turn up and give their reasons for thinking so and the magistrates took more time and released more people under these circumstances.
3. What should be considered (a) What are the facts? Did the patient walk down Swanston Street with flowers in his hair, naked, handing out $50 notes? (b) Why did he do what he did? Was it to advertise a new play, to make a political point about the Government’s financial policies, or because his brain was disordered and he believed himself to be Queen of the May and his behaviour was a product of that belief? (c)What is the evidence that his brain was disordered? This will be a matter of expert evidence, properly tested. Note that I am using the word “disorder” in its ordinary English meaning, and quite firmly not referring to a definable category. Note particularly that the evidence has to satisfy the judicial officer, and not some questionable criteria. (d) Why does it matter? Will his behaviour harm others, will he harm himself physically or will he harm his reputation or his quality of life to a significant degree? Does that behaviour presage even more aberrant behaviour? Is he suffering, and is he suffering unnecessarily, because his clouded judgment stands in the way of him accepting appropriate treatment? For example, here is another man suffering from a severe depressive illness, biologically based, genetically transmitted. Is he refusing treatment because delusionally he believes that he is unworthy of it? In this case what test should the magistrate apply? I believe that he should apply the so-called “thank you” test - he recognises that the patient’s judgment is distorted by the patient’s illness and he asks himself, if this man’s depression is removed, what will he say? The answer is that he will be very grateful indeed.
JOHN ELLARD
(0 Should he be deprived of his freedom, where should he be placed, for how long, and for what purpose? 4. Continued monitoring Once we have incarcerated our patient we need to monitor what happens from then on. This involves such matters as periodic review, and ensuring that the treatment he receives is of a proper standard: topics too complex to be considered here.
It will be realised that I have left some thousands of loose ends; permit me to tie up five of them. 1 . A severely depressed patient has been hospitalised involuntarily because he has been refusing all treatment, and there is a risk to his life. The risk is pressing, but not immediate. I would explain the difference between medication and ECT and let him take his pick. He still has a choice, although deprived of his liberty. Another patient is making repeated determined attempts at suicide and is mutilating himself. I would seek an Order to give him ECT on the ground that it would be life-saving. I would anticipate that he would say thank you on his recovery. Yet another involuntary patient bleeds copiously from a duodenal ulcer. He requires urgent transfusion, but his religion forbids it. I would put all the issues to him and should he refuse transfusion, abide by his refusal, for on recovery he would regard himself as betrayed. The point is that taking away a person’s liberty should not take away all his choices: I think that the “thank you” principle is our best guide here. 2. The notion of a register of patients. The chronically psychotic tend to wander, or go to some trouble to get lost. The tidy minded are much disposed to compile registers of patients that they can be tracked down, observed and, if necessary, treated wherever they may be. The USSR had a psychiatric register until recently; they may still have one. To be opposed to the views of the State was enough to get one’s name onto it; once on it one lost one’s passport, and there were other consequences, not all of them therapeutic. Such a register advances the walls of the hospital out into the community so that in time everyone will be contained - you cannot escape from the institution at all.
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You may argue that in a democracy such a thing could never occur; let me remind you that after the Detroit ghetto uprising of 1967 Mark and Irvine suggested that the riots could be attributed to the innate violence of individuals - due to their “episodic dyscontrol syndrome” - and that preventative psychosurgery could prevent further outbursts [ 151. It could also happen that a register of patients would be of interest to police, banks, insurance companies, debt collectors and mail order sales organisations. I do not believe that any register can be kept confidential, and it is my firm view that to create one places our patients’ freedom in jeopardy. One day it might be ours. 3. The regulation of specific treatments. The adversary system is the best way we have of choosing between alternatives, but it is a second rate way of discovering the facts when empirical research will do better. Generally speaking the law should keep its nose out of specific treatments, attending rather to such things as informed consent and negligence. Many legislators have the most primitive notion of what ECT is, how it is given, what it achieves and what the risks may be. In fact it is one of the safest treatments that exists and one of the most effective when given for the correct indication. There are ten thousand other procedures in medicine and surgery more complex, less clearly indicated and more uncertain of outcome. I can only assume that the words electricity and the brain in conjunction evoke some sort of archaic fear, because quite inappropriate restrictions often are laid down on the use of ECT. On the other hand, for example, psychosurgery is rarely indicated (perhaps once or twice a year in New South Wales), irreversible and some of its protagonists used to display more enthusiasm than judgment. The New South Wales Mental Health Act has gone about limiting its use by laying down the highest standards of informed consent, and everyone, except the Church of Scientology, is satisfied with the state of affairs which exists. 4. In the middle we have community treatment orders: ordering patients not in hospital to accept medication. It should be noted that the complications of the medication most likely to be ordered under such an Act are potentially much more serious than the complications of ECT. We can identify a population for whom this may be an acceptable measure: those who remain well or more or less well on medication and who suffer profoundly when they stop it. They do
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this repetitively for reasons which are unclear but which can probably be traced back to an error of judgment consequent upon the brain disorder present. Once more such an Order should be made only by a judicial officer who has heard all the evidence, and when the patient is represented. I would have grave misgivings about any other criteria: where the issue is the protection of others I would prefer incarceration, for it is more difficult to pass it off as altruism. Community treatment orders may be made a condition for release from hospital for certain patients, once more when the matter has been investigated thoroughly by a Tribunal. 5. The courts as administrators. In the United States the courts on occasion have ordered psychiatric services to provide certain facilities. While at first sight it is reasonable enough that a Court should do so, and while there can be no objection to a Court holding that a particular procedure is being done negligently or unnecessarily, to proceed to the next step - to say, for example, that each cell should contain but one prisoner - seems to set a course for catastrophe. Anyone who has administered a Government department knows that there is not enough money to do it as one would wish -there are always comers to be cut or things to be left undone. This is not because the Treasury is hoarding its resources, it is simply because there is not enough money to go around. To have an external body inspect one small facet of the whole enterprise and then expect that it be conducted as that body sees fit, no matter what the cost to the other parts of the enterprise may be, seems crazy to me, and good reason to go back to the Court and invite it to run the whole show.
Conclusion The first Mental Health Act of any note known to me is the British Lunacy Act of 1890. Most Acts in this country since then have been revisions of that Act in spite of the brave words which have heralded them. The number of Acts and the provisions of these Acts are legion, and the results beyond belief. For example, if we have a final look at New South Wales we shall find that in that State the magistrates use the definition of a mentally ill person to be found in Section IV of the Mental Health Act 1958 while the Court of Appeal
uses the definition to be found in Section 139 of the Mental Health Act of 1983. Mr Justice Priestly said of that: “This result is so bizarre when the terms of the legislation in the various Acts are considered I find it hard to believe that the apparent position is the actual position. I cling to the hope that somewhere there exists a proclamation which puts the apparent blunder to rights” [ 161. The steering committee charged with the duty of devising the Act decided that it could remedy that particular situation by defining “mental illness”. We have been there already. There it is. Confusion piled upon confusion, definitions of the undefinable, words without meaning, committees without end. Perhaps you can see why I cannot forebear from throwing a few stones.
References 1. Szasz TS. The manufacture of madness. London: Granada Publishing. 1973: 15. 2. Ellard J. The dangerousness of psychiatrists. Australian and New Zealand Journal of Psychiatry 1989; 23:169-175. 3. Klassen D, O’Connor WA. Crime, inpatient admissions and violence among male mental patients. International Journal of Law and Psychiatry 1988; I1:105-112. 4. Bieber SL, Pasewark RA, Bosten K, Steadman HJ. Predicting criminal recidivism of insanity acquittees. International Journal of Law and Psychiatry 1988; 11:105-112. 5 . Bogenberger RF’,Pasewark RA, Gudeman H, Bieber SL. Follow up of insanity acquitees in Hawaii. International Journal of Law and Psychiatry 1987; 10283-295. 6. Wallis G. Study tour to Italy, 18-22 May 1988. Psychiatric Bulletin 1989; 13:lOl-103. 7. Scadding JG. Diagnosis: the clinician and the computer. The Lancet 1967, October 21:877-882. 8. Kirby MD. Mental health law reform. Medical Journal of Australia 198 I ; 1 :421-423. 9. CCR vs PS and Anor. (No2). S. 88 of 1986. 10. Report to the Minister for Health on the Mental Health Act 1983. No publisher stated:25-32. 11. Freckelton I. Querulent paranoia and the vexatious complainant. International Journal of Law and Psychiatry 1988: 11:127-143. 12. Gelder M, Gath D, Mayou R. Oxford Textbook of Psychiatry. 2nd ed. Oxford: Oxford University Press, 1989:269. 13. Wyatt RJ. Science and psychiatry. In: Kaplan HI, Sadock BJ, eds. Comprehensive Textbook of Psychiatry, 4th ed. Baltimore: Williams and Wilkins, 1985:2026. 14. Edwards GA, Young LJ. A pilot study of representation for involuntary patients at the Rozelle Hospital. 1978; no publisher stated. 15. Brown P. The transfer of care: psychiatric deinstitutionalisation and its aftermath. London: Routledge, 1985: 10. 16. Report to the Minister for Health on the Mental Health Act 1983. loc cit 27.
Australian and New Zealand Journal of Psychiatry 1990; 24:167-174 It is said that somewhere on this fair earth there is a most beautiful landscape, the prospect of which is marred by the presence of a large billboard. On the billboard there is a single message: “Stones must not be thrown at this notice”, nothing more. To achieve this end there are two possible courses of action. The first is to hire park rangers, install floodlights, arrange for police supervision by helicopter and place electronic detectors on and near the notice so that stones in flight and those who throw them may be detected. The second is to take the notice away. Throwing stones at notices is not the only human activity which can lead to such a dilemma. For example, alcohol is a dangerous substance: the United States Government decided to proscribe it by legislation and created the catastrophe of Prohibition. The consequences are well known and Prohibition has been taken away. Again, cannabis, a century ago part of the pharmacopoeia, is now proscribed by legislation. The consequences are well known, but the surveillance, the helicopters and the electronic detectors are still with us.
Do we need a Mental Health Act? In considering Mental Health Acts we most not fall into that particular trap: we must ask, do we need such Acts at all? Should we heed the arguments of Professor Szasz, Patron of the Church of Scientology, and regard all such Acts and related concepts surrounding mental illness as - to use his words - “an immoral ideology of intolerance” [l]. Could we do without them? Yes, we The Northside Clinic, 2 Greenwich Road, Greenwich NSW. John Ellard AM, FRACP, FRC Psych, FRANZCP, MAPsS
could: we could adopt the extreme civil libertarian position that the only reason for incarceration should be a breach of the criminal law, provide the Department of Corrective Services with a first class psychiatric service, give judicial officers appropriate discretion about the disposal of those who appear before them, and we have done it. There are, of course, a few problems. Many will need to be convinced that the criminal justice system has the necessary expertise necessary for handling a wide range of psychiatric problems, and others may object to their nearest and dearest being dealt with in the same way as are criminals. The needs of those who do not break the law at all will be neglected. I do not think that such an approach is socially acceptable nor is it politically advisable. It has the appeal of tidiness and nothing more.
Where they came f m It seems that we must have Mental Health Acts. It may help us if we understand how they came about in the first place: therefore let us turn to history. Psychiatric hospitals have been with us since the 6th century; their numbers began to burgeon in Great Britain in the 17th and 18th centuries with the establishment of the private madhouses. With them came abuses; improper incarceration in the first place, illtreatment while confined and continuing incarceration without good cause. I have written in another place of the long struggle to remedy these things [ 2 ] ;suffice it to say that about two hundred years were to pass before the Lunacy Act of 1890 - the one adopted in England and Wales provided some measure of protection from those abuses.
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What such an Act should do What else might we look for in a Mental Health Act? We might expect some provision to deal with the dangerously mad. The criminal justice system is quite useless here: it springs into action after the event, which may satisfy the statistician, but does not do much for the victim. You are entitled to ask, is there really a problem here at all? Whenever a half-way house or some similar institution is set up in the community a predictable confrontation occurs. Those living nearby believe that they will be raped or murdered in their beds - or both - by the patients released from hospital, while the experts are to be seen on television, or heard on talk-back radio, explaining that such fears are quite groundless, no more than outdated prejudices. Where does the truth lie? Most psychotic patients are harmless people, a threat to no-one. But - and it is a significant “but” - there is a small number of patients who are very dangerous, and remain very dangerous. Some figures may help. A study in Kansas City [3] examined 304 adult males admitted to an urban community health centre for short-term emergency care. Forty per cent of them had indicators of violent behaviour or a history of it. It emerged that the patients were passing through not one but two revolving doors: the criminal justice system and the mental health system. For schizophrenic patients there were two hospital admissions for violence for each arrest for violence, for substance abusers there were three arrests for violence for each re-admission for violence. Some sub-groups had very high rates of violent recidivism - the highest had an annual violence rate of more than 600 per 1000. Another study conducted in New York State [4] concerned 225 criminal defendants adjudged not guilty by reason of insanity. After a time 132 of them had been discharged - that is adjudged to be no longer dangerous. We are dealing with a selected population. Within the period of the study 38 of the 132 adjudged safe had been arrested and most of the arrests were for serious crime. In case you believe that result to be atypical, a series from Hawaii, comprising a number of ethnic groups [5], gave similar results. Of 107 people who had been acquitted on the grounds of insanity 72 (67%)were re-arrested, 60 of the 72 for a felony charge. The 107 acquitted persons notched up 362 arrests in the study period. In short, anyone who says psychiatric patients emerging from institutions are no more dangerous than
anyone else has not read the literature, or has chosen to ignore it. Most are not dangerous, but some are. Our Act will need to take notice of that. There is then the necessity of ensuring that when patients are institutionalised they will receive treatment at a proper professional level, it being recognised that for some of them treatment will have little to offer and that they are being locked up for everyone else’s benefit rather than their own. We shall return to that later. Let me summarise where we are now: Mental Health Acts are socially and politically necessary. They must protect patients against certain abuses. They must protect the public against dangerous patients. That seems simple enough. Where are the difficulties?
Definingthe indefinable First there are some serious problems about nomenclature. Let us start there. This is the age of marketing and image making, an age based on insincerity and half-truths. Distortions of this kind are powerful determinants of what we see and what we believe. Years ago we had children’s hospitals; now we have institutes of child health, which are concerned with disease. We used to have Lunacy Acts and mental hospitals; now we have Mental Health Boards, Services and Acts. What are they concerned with? Madness. Changing the words is a technique which can produce great reforms very rapidly. The Italian government decided to stamp out psychiatric hospitals: the University of Milan Psychiatric Hospital became a guest-house. It housed the same people, who required the same attention from the same doctors and nurses. Clearly a millenium was dawning [6]. Let me move a little closer to our central problem. In 1959 J.G. Scadding, a chest physician who became Professor of Medicine at the University of London, wrote the first of a series of papers in which he attempted to define the term “disease”. Eight years later [7] his definition was “a disease is the sum of the abnormal phenomena displayed by a group of living organisms in association with a specified common characteristic or set of characteristics by which they differ from the norm for their species in such a way as to place them at a biological disadvantage”. It was a very good try, but later some wit pointed out that these criteria were met quite precisely by a celibate Catholic priest who rode a motor bike.
JOHN ELLARD
Suffice it to say that no one has yet come up with an acceptable definition of disease. Most definitions offered are circular, defining disease as a departure from health, and health as an absence of disease. It is an important issue, for the definitions we accept at the beginning of any endeavour will do much to determine our behaviour while we pursue it. Since mental health acts do not concern themselves with mental health at all, but rather with mental illness, we must look at what has happened there. Mr Justice Kirby, having a clear and enquiring mind, commented in an editorial in the Medical Journal of Australia [8] that we needed one: can we find it? The drafters of the New South Wales Mental Health Act of 1983 gave up. Although the words “mental illness” appear in the Act many times, “mental illness” is nowhere defined. With a subtlety which has passed over the heads of some of the medical profession the Act distinguished between a person who is mentally ill and a mentally ill person: the latter is a person who is mentally ill, and also dangerous to himself or others - and so on. This evasion of definition worked well enough until unfortunately someone asked what the words “mental illness” meant. In the Supreme Court of New South Wales Mr Justice Powell in two judgements explored the concept as it stands in law very carefully and precisely [9]. To be mentally ill meant that one had delusions, hallucinations or that one was paranoid. For all practical purposes we are back in the year 1800 at the trial of Hadsfield, listening to Erskine: “Delusion, therefore, where there is no frenzy or raving madness, is the true character of insanity ...”. The decision meant those so demented as to be quite incapable of avoiding common physical dangers were not mentally ill and therefore of course could not be mentally ill persons and so made subject to the Act. I do not think that I need spell out the problems which arise from such a position especially if one does not have a Guardianship Act or something of the sort. Since we are discussing the general failings of mental health legislation in New South Wales I cannot forbear from quoting from some comments Mr Justice Powell made in one of his judgments [9]. “2. Part VII of the Mental Health Act 1958 has ceased to operate and has been replaced by Part VII of the Mental Health Act 1983. Curiously, though, Part 111 of the Mental Health Act 1983, which deals with the Mental Health Review Tribunal appears not to have been proclaimed despite the functions conferred
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upon the Mental Health Review Tribunal by Part VII of the Mental Health Act 1983; “3. Part VIII of the Mental Health Act 1958 which dealt with Welfare Officers has ceased to operate curiously, though, Division 5 of Part XI of the Mental Health Act 1983 which deals with Welfare Officers appears not to have been proclaimed:” I must confess that as a psychiatrist practicing in New South Wales I am quite unsure of which bits of which Act are law and I get by by using common sense, hoping for the best and keeping my Medical Defence Union subscription up to date. Those who drafted the New South Wales Mental Health (Amendment) Bill 1989 were more resolute [ 111: “Mental illness means a condition which affects, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following: (a) delusions (b) hallucinations (c) thought disorder (d) severe or irrational disturbance of mood state or by sustained or repeated irrational behaviour indicating the presence of one or more of the symptoms referred to in (a) or (b).” Let us try it out: I shall do so by presenting you with a series of patients.
Delusions My first patient believes unshakably that he is Napoleon Bonaparte: I assure that in fact he is not Napoleon Bonaparte. If you accept my assurance, he is deluded. No problem there. My second patient is a young lady of 18 who is extremely emaciated: she will tell you what she believes, that is, she is plump and well rounded - any weight gain would be a catastrophe. There is no doubt at all about her sincerity both of word and action. Is she not deluded? My next is a gentleman in his 40s who had a wild night on the town some years ago, and is convinced that he has AIDS. He has no relevant symptoms, his physical examination is normal and he has had three consecutive AIDS tests at three-monthly intervals all of which are normal. His belief remains fixed. My fourth person is a man who believes firmly that our lives are governed by the movements of pieces of
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rock and frozen gas some thousands of millions of kilometres from Earth - the planets. Finally we have a gentleman who believes that every tree, every bush, every rock, harbours a supernatural being and that they too control his life. Everyone in his village shares the same belief, which is the belief of their ancestors. Somewhere in this procession we have crossed a Rubicon. Napoleon stands on one bank and our tree worshipper on the other. The disposition of the rest might engage us in an argument for a long time. Delusion is more difficult to define than you might think.
Hallucinations Here is someone who hears a loud voice commenting on his actions for most of every day. He has looked everywhere for the loud speakers and cannot find them: he is still looking. There is not much doubt about him. Here is a man whose wife died two months ago. Yesterday he thought that he saw her walk into David Jones’ door half a block away. I shall be next. Many years ago during my Army service I was very tired. I went to sleep standing up in a sort of sentry box: I woke up completely paralysed, unable to move, listening to firm clear footsteps advancing upon me along a path. I managed to rock my body a little which caused my rifle to fall down with a clatter. Then I could move and the footsteps disappeared - they were hallucinatory. I was suffering from sleep paralysis, also known as nightnurse’s paralysis, nightwatchman’s paralysis and so on. It is very common in certain occupations: the hallucinations are true hallucinations. To round it off, it is not rare for people with hysteria to hallucinate.
Thought disorder Perhaps we should try our luck with thought disorder. Although the Bill does not indicate it, thought disorder is a technical term of some antiquity. Let me give you some examples. A patient said to me, “that Italian lady over there is wearing a pink nightdress; I am wearing a pink nightdress, therefore I am that Italian lady over there”. A similar statement is “Red Indians have feathers, and parrots have feathers. Therefore Red Indians are parrots”. I trust that you can see that there is a disorder of
logic there. But the world of advertising is founded on thinking like that. If I see on television a beautiful young lady engaged in washing herself under the shower with a particular brand of soap, presumably to remove dirt, I may be moved to use the same brand of soap for the same purpose. I doubt that the reasons moving me would be completely logical. Similarly for a long time many people were persuaded to buy a particular brand of petrol by being told that it would put a tiger in their tank. If they had believed what they were being told the sales would not have prospered. Thought disorder, by any definition, is a quantitative phenomenon and can be found in the dull, the brain damaged and many of the so-called normal, as well as the psychotic people who might come to the attention of the Act.
The difficulties are perhaps less here, but a lot depends on the point of view. Think of the manifestations of mood displayed at the funeral of the late Ayatollah Khomeini, or read the lives of some of the more pious Saints, who achieved bliss by licking wounds, or having themselves tortured. There is room for debate. Finally, what of “sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to from (a) to (d)”. Reflect upon the behaviour to be witnessed in the New South Wales Parliament on a particularly bad day, the wilder extravagances of the fashion industry and the Stock Exchange generally. I shall rest there. To put it simply, those who draft Mental Health Acts, wise though they may be, cannot be expected to provide definitions which probably do not exist and which no one else has been able to discover. There are many useful words which simplify and abbreviate communication, but which will not stand up to critical examination. In psychiatry such words are often applied to processes and dimensions, and mislead the unwary into believing that they refer to things or categories.
The central problem Can we somehow come to grips with our purpose more directly? Can we avoid the entanglements created by seeking a position which can never be achieved? Can the law be made to work in this way?
JOHN ELLARD
The answer is that of course it can, if it has to deal with a problem in its own back yard. Let me demonstrate that to you. Imagine that for the fifth time a superior Court is presented with a document of complaint requiring a decision. The document is several hundred pages long, each page being fully occupied by the text - there are no margins - and the text itself is liberally sprinkled with italics, quotation marks, exclamation marks and handwritten additions between the typed lines. The documents quoted within it include the Sermon on the Mount, Magna Carta, the American Constitution and a Judgment made in the Supreme Court of Swaziland in 1884. There are copies of letters written to the Queen, the Archbishop of Canterbury, the Pope, the Prime Minister, all the Attorneys General of this Commonwealth and all the Chief Justices. The syntax is idiosyncratic, the argument illogical, the conclusions unsupported. What does the Court do? Their Honours may dip into psychiatric terminology. Thus Mr Justice Sholl of the State of Victoria described a man as suffering from a “persecution complex” and Mr Justice Yeldham in New South Wales described the actions of two individuals as “paranoid-like”. Nevertheless the Courts do not trouble themselves with niceties of definition, they throw the litigants out, declaring them to be vexatious. The author of an excellent paper on this matter, from whom I have taken these examples [ 111 makes the point that recent developments in the administrative law have moved the burden of dealing with these people from the Courts to such persons and bodies as the Ombudsman and the various Complaints Units. The principle of not complicating thing unnecessarily remains. The central problem is this. Most of us can think clearly enough most of the time and can get along reasonably well in the world. We can do this because our sensory input is added to what we know already, and we have an organ which processes this material so that we can act sensibly. That organ is the brain. Let us now conduct a simple experiment. Take someone and hit his head with a brick such that he remains conscious but is confused. In that confused state his data processing goes wrong and he interprets a sympathetic approach as an attack, knocking down his perceived assailant. Common sense suggests that it would be silly to entangle him in the criminal justice system: we need to put him somewhere where we can assess his injury and wait till his mind clears. Punishment is irrelevant.
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Furthermore, and importantly, we need to make sure he is cared for adequately, that he is let out when his mind clears, and that he is not detained unnecessarily for profit, from administrative inefficiency, or just thoughtlessly. We can do all that without fussing about precise definitions or nuances of neuropathology: we need a simple mechanism of disposal and monitoring.
What is schizophrenia? Most of the people who come into collision with the M e n t a l H e a l t h A c t s h a v e schizophrenia. Schizophrenia is a matter of some importance; for example, it is said that just less than 1% of the whole population will suffer from schizophrenia at one time or another [12] and that in a developed country a significant part of the Gross National Product will be diverted or lost because of it. It was estimated that the cost of schizophrenia - direct and indirect - in 1983 in the United States was US$48.2 billion which would correspond to more than $3 billion here. To look ahead, if there is no substantial medical advance, the annual cost of schizophrenia in the United States in 2007 may well be US$155 billion [ 131. All these things would suggest that schizophrenia is a disease of some significance. It may come as a surprise to you to know that it is almost certain that there is no such disease. Schizophrenia is probably a term like mental retardation - useful, not without meaning and worth retaining until we get something better. Careful examination of schizophrenic patients produces interesting things - thus one family in Iceland has been reported as having schizophrenia in association with an anomalous gene on chromosome 5. That disability has been found nowhere else. Some people with schizophrenia have a clearly discernible structural brain pathology readily seen on CT scanning and others have subtle regional disorders of their cerebral glucose metabolism. Some have neither of these abnormalities. The brain is a complex organ and its functioning is determined not only by biological processes, but by the social and psychological forces which affect the person who owns it. Schizophrenia is a useful label to apply to a whole wide set of behavioural abnormalities, ranging from standing on one leg for a long while (as in catatonia) to having one’s conversation disorganised in a particular way. I have patients with schizophrenia who are so crippled that they need permanent care, others who get by in the community most
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of the time but with reduced efficiency and others who attend universities, do well there and look after their families competently. Let us summarise where we are now. You will recall that I have argued that (a) We cannot do without Mental Health Acts (b) they must protect the patients and the community (c) there will never be a satisfactory definition of mental illness (d) inspecting the illnesses themselves will not help, and more generally and importantly (e) we are in trouble because we are trying to create categories where there are only dimensions, or things when there are only processes. Any Act which tries to set up mental illness as a clearly definable category cannot succeed in that intention. This is not a unique problem. Exactly the same error has been made in the Criminal Law and we are presented with concepts such a s insanity and diminished responsibility as if those words corresponded to something in the real world, which they do not, or worse, as if they had some relationship to psychiatry, which certainly they do not. What we are trying to do is establish some rules for dealing with people whose brains are disordered to such a degree that they make manifestly incorrect judgments. On the basis of that disorder they do things which we will not tolerate, or do things which seriously harm their own interests. Let us now take it step by step.
Things to be done 1. Triage First of all we need to discover those likely to be proper subjects for assessment. This is familiar ground: doctors, the police and relatives are obvious candidates for the role of discovery. There may well be others. Their powers should be limited to getting the person to the place where the next review will be made. Any Order made should fade within a brief period - say 72 hours.
2. The first tribunal Since those nominated are presumed to have a brain disorder they should be conveyed to a hospital. Since their liberty is in jeopardy the Inquiry to be conducted
within 72 hours should be magisterial. I do not have space to go into it here but the Sydney Representation Study [14] made it clear that those under scrutiny should have legal representation. The reason for this is not to turn the Inquiry into a classical adversarial procedure, but to ensure that it is taken seriously. The Sydney Study showed that causing the patient to be represented had a number of effects. For example, the doctors who believed that the patient should be locked up were much more likely to turn up and give their reasons for thinking so and the magistrates took more time and released more people under these circumstances.
3. What should be considered (a) What are the facts? Did the patient walk down Swanston Street with flowers in his hair, naked, handing out $50 notes? (b) Why did he do what he did? Was it to advertise a new play, to make a political point about the Government’s financial policies, or because his brain was disordered and he believed himself to be Queen of the May and his behaviour was a product of that belief? (c)What is the evidence that his brain was disordered? This will be a matter of expert evidence, properly tested. Note that I am using the word “disorder” in its ordinary English meaning, and quite firmly not referring to a definable category. Note particularly that the evidence has to satisfy the judicial officer, and not some questionable criteria. (d) Why does it matter? Will his behaviour harm others, will he harm himself physically or will he harm his reputation or his quality of life to a significant degree? Does that behaviour presage even more aberrant behaviour? Is he suffering, and is he suffering unnecessarily, because his clouded judgment stands in the way of him accepting appropriate treatment? For example, here is another man suffering from a severe depressive illness, biologically based, genetically transmitted. Is he refusing treatment because delusionally he believes that he is unworthy of it? In this case what test should the magistrate apply? I believe that he should apply the so-called “thank you” test - he recognises that the patient’s judgment is distorted by the patient’s illness and he asks himself, if this man’s depression is removed, what will he say? The answer is that he will be very grateful indeed.
JOHN ELLARD
(0 Should he be deprived of his freedom, where should he be placed, for how long, and for what purpose? 4. Continued monitoring Once we have incarcerated our patient we need to monitor what happens from then on. This involves such matters as periodic review, and ensuring that the treatment he receives is of a proper standard: topics too complex to be considered here.
It will be realised that I have left some thousands of loose ends; permit me to tie up five of them. 1 . A severely depressed patient has been hospitalised involuntarily because he has been refusing all treatment, and there is a risk to his life. The risk is pressing, but not immediate. I would explain the difference between medication and ECT and let him take his pick. He still has a choice, although deprived of his liberty. Another patient is making repeated determined attempts at suicide and is mutilating himself. I would seek an Order to give him ECT on the ground that it would be life-saving. I would anticipate that he would say thank you on his recovery. Yet another involuntary patient bleeds copiously from a duodenal ulcer. He requires urgent transfusion, but his religion forbids it. I would put all the issues to him and should he refuse transfusion, abide by his refusal, for on recovery he would regard himself as betrayed. The point is that taking away a person’s liberty should not take away all his choices: I think that the “thank you” principle is our best guide here. 2. The notion of a register of patients. The chronically psychotic tend to wander, or go to some trouble to get lost. The tidy minded are much disposed to compile registers of patients that they can be tracked down, observed and, if necessary, treated wherever they may be. The USSR had a psychiatric register until recently; they may still have one. To be opposed to the views of the State was enough to get one’s name onto it; once on it one lost one’s passport, and there were other consequences, not all of them therapeutic. Such a register advances the walls of the hospital out into the community so that in time everyone will be contained - you cannot escape from the institution at all.
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You may argue that in a democracy such a thing could never occur; let me remind you that after the Detroit ghetto uprising of 1967 Mark and Irvine suggested that the riots could be attributed to the innate violence of individuals - due to their “episodic dyscontrol syndrome” - and that preventative psychosurgery could prevent further outbursts [ 151. It could also happen that a register of patients would be of interest to police, banks, insurance companies, debt collectors and mail order sales organisations. I do not believe that any register can be kept confidential, and it is my firm view that to create one places our patients’ freedom in jeopardy. One day it might be ours. 3. The regulation of specific treatments. The adversary system is the best way we have of choosing between alternatives, but it is a second rate way of discovering the facts when empirical research will do better. Generally speaking the law should keep its nose out of specific treatments, attending rather to such things as informed consent and negligence. Many legislators have the most primitive notion of what ECT is, how it is given, what it achieves and what the risks may be. In fact it is one of the safest treatments that exists and one of the most effective when given for the correct indication. There are ten thousand other procedures in medicine and surgery more complex, less clearly indicated and more uncertain of outcome. I can only assume that the words electricity and the brain in conjunction evoke some sort of archaic fear, because quite inappropriate restrictions often are laid down on the use of ECT. On the other hand, for example, psychosurgery is rarely indicated (perhaps once or twice a year in New South Wales), irreversible and some of its protagonists used to display more enthusiasm than judgment. The New South Wales Mental Health Act has gone about limiting its use by laying down the highest standards of informed consent, and everyone, except the Church of Scientology, is satisfied with the state of affairs which exists. 4. In the middle we have community treatment orders: ordering patients not in hospital to accept medication. It should be noted that the complications of the medication most likely to be ordered under such an Act are potentially much more serious than the complications of ECT. We can identify a population for whom this may be an acceptable measure: those who remain well or more or less well on medication and who suffer profoundly when they stop it. They do
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this repetitively for reasons which are unclear but which can probably be traced back to an error of judgment consequent upon the brain disorder present. Once more such an Order should be made only by a judicial officer who has heard all the evidence, and when the patient is represented. I would have grave misgivings about any other criteria: where the issue is the protection of others I would prefer incarceration, for it is more difficult to pass it off as altruism. Community treatment orders may be made a condition for release from hospital for certain patients, once more when the matter has been investigated thoroughly by a Tribunal. 5. The courts as administrators. In the United States the courts on occasion have ordered psychiatric services to provide certain facilities. While at first sight it is reasonable enough that a Court should do so, and while there can be no objection to a Court holding that a particular procedure is being done negligently or unnecessarily, to proceed to the next step - to say, for example, that each cell should contain but one prisoner - seems to set a course for catastrophe. Anyone who has administered a Government department knows that there is not enough money to do it as one would wish -there are always comers to be cut or things to be left undone. This is not because the Treasury is hoarding its resources, it is simply because there is not enough money to go around. To have an external body inspect one small facet of the whole enterprise and then expect that it be conducted as that body sees fit, no matter what the cost to the other parts of the enterprise may be, seems crazy to me, and good reason to go back to the Court and invite it to run the whole show.
Conclusion The first Mental Health Act of any note known to me is the British Lunacy Act of 1890. Most Acts in this country since then have been revisions of that Act in spite of the brave words which have heralded them. The number of Acts and the provisions of these Acts are legion, and the results beyond belief. For example, if we have a final look at New South Wales we shall find that in that State the magistrates use the definition of a mentally ill person to be found in Section IV of the Mental Health Act 1958 while the Court of Appeal
uses the definition to be found in Section 139 of the Mental Health Act of 1983. Mr Justice Priestly said of that: “This result is so bizarre when the terms of the legislation in the various Acts are considered I find it hard to believe that the apparent position is the actual position. I cling to the hope that somewhere there exists a proclamation which puts the apparent blunder to rights” [ 161. The steering committee charged with the duty of devising the Act decided that it could remedy that particular situation by defining “mental illness”. We have been there already. There it is. Confusion piled upon confusion, definitions of the undefinable, words without meaning, committees without end. Perhaps you can see why I cannot forebear from throwing a few stones.
References 1. Szasz TS. The manufacture of madness. London: Granada Publishing. 1973: 15. 2. Ellard J. The dangerousness of psychiatrists. Australian and New Zealand Journal of Psychiatry 1989; 23:169-175. 3. Klassen D, O’Connor WA. Crime, inpatient admissions and violence among male mental patients. International Journal of Law and Psychiatry 1988; I1:105-112. 4. Bieber SL, Pasewark RA, Bosten K, Steadman HJ. Predicting criminal recidivism of insanity acquittees. International Journal of Law and Psychiatry 1988; 11:105-112. 5 . Bogenberger RF’,Pasewark RA, Gudeman H, Bieber SL. Follow up of insanity acquitees in Hawaii. International Journal of Law and Psychiatry 1987; 10283-295. 6. Wallis G. Study tour to Italy, 18-22 May 1988. Psychiatric Bulletin 1989; 13:lOl-103. 7. Scadding JG. Diagnosis: the clinician and the computer. The Lancet 1967, October 21:877-882. 8. Kirby MD. Mental health law reform. Medical Journal of Australia 198 I ; 1 :421-423. 9. CCR vs PS and Anor. (No2). S. 88 of 1986. 10. Report to the Minister for Health on the Mental Health Act 1983. No publisher stated:25-32. 11. Freckelton I. Querulent paranoia and the vexatious complainant. International Journal of Law and Psychiatry 1988: 11:127-143. 12. Gelder M, Gath D, Mayou R. Oxford Textbook of Psychiatry. 2nd ed. Oxford: Oxford University Press, 1989:269. 13. Wyatt RJ. Science and psychiatry. In: Kaplan HI, Sadock BJ, eds. Comprehensive Textbook of Psychiatry, 4th ed. Baltimore: Williams and Wilkins, 1985:2026. 14. Edwards GA, Young LJ. A pilot study of representation for involuntary patients at the Rozelle Hospital. 1978; no publisher stated. 15. Brown P. The transfer of care: psychiatric deinstitutionalisation and its aftermath. London: Routledge, 1985: 10. 16. Report to the Minister for Health on the Mental Health Act 1983. loc cit 27.
