When it's illegal to ‘first do no harm’
Why do involuntary psychiatric commitment laws regularly make doctors break their Hippocratic Oath? And what could we do instead?
There’s a pretty standard phrase that shows up again and again in different places that have laws around when you can treat someone against their will for a mental health problem. The phrase:
‘Danger to self or others.’
In many public health systems, this phrase creates a bright line. On one side, you are free to go, we can’t compel you to accept any particular treatment, your life is your own and you have all the civil liberties any other free citizen has in your country.
On the other side, you do not belong to yourself; decisions about where you will go, what medications you can take, what rules you must follow and who you can see must be made by someone else, someone with the legal authority to make such decisions on your behalf.
Involuntary civil commitment is the current solution we as a society currently use for a delicate, complex problem–how do you help someone when they might die without help, but refuse to accept it? Taking away someone’s bodily autonomy is a powerful tool that society only uses in a handful of situations:
As punishment for a crime committed
With children, whose autonomy is mostly managed by their parents, or maybe the state if necessary
As part of treating dangerous mental health problems
In the first case, the person’s autonomy is taken in order to protect society from them–and there are fierce debates about when and whether it is justified. In the second case, ideally the parents hold such responsibility lovingly, and slowly delegate it to their children as their children become capable of wielding it; we would all prefer that children stay alive rather than being hit by cars or poisoned by things they eat and it’s understood that if the children really understood the consequences of their actions they would also prefer that.
It is the third case that I want to write about today, because the assumptions that underlie how we use this tool seem–a little confused. And, what’s more, it seems like that underlying confusion is muddying the debates around involuntary commitment much more than they need to.
At the core is the unstated assumption–that when a patient is involuntarily committed to a psych ward, that this is done so ‘for their own good’.
There’s a simple model here–if someone needs treatment, if they will die or be seriously hurt if they don’t get it, and they are refusing it, then the only compassionate thing to do is to force them to accept the treatment. The idea here is that, like in the case with the children, if they ‘really understood the consequences’, then they too would prefer the treatment.
I think that a lot of advocates for increased involuntary psychiatric treatment honestly believe this is true, most if not all of the time. They may see that there is a tradeoff between healing a person and respecting their rights, and consider this an appropriate tradeoff to make. If you believed this, of course you would want involuntary commitment to be easily available! That would be the most compassionate thing society could do.
But this model hinges a lot on trusting ‘the treatment’. If ‘the treatment’ were actually harming people more than helping, then the same stance would be abhorrent, cruel, and unjust.
What if ‘the treatment’ harms some people, and helps some people? Well then, it’s probably a cruel way to treat the first group of people, and a compassionate way to treat the second group. There are people who will tell you that being involuntarily committed was the worst thing that ever happened to them, and others who will tell you that they’re incredibly grateful for it now because it saved their lives. There is quite a lot of variation in how ‘helped’ people feel by such treatment, and also variation in how ‘helped’ they look based on data like relapse, economic outcomes, and changes in medication after being locked up in hospital.
The big problem is that from the perspective of the involuntary commitment laws, none of this individual variation in how helpful treatment is matters–when it comes to the big question of whether to treat them against their will.
If you ever end up on an involuntary psych hold (and I hope you never do) then, if it’s long enough, eventually you and the doctors and maybe your lawyer will get hauled in front of a mental health judge to evaluate whether or not the doctors should continue to treat you involuntarily.
The issue is that the question the judge is asking is not ‘how well is the treatment working?’ but ‘are they a danger to themselves or others?’. Still that same question. If the answer to ‘are they a danger to themselves or others?’ seems, to the judge, to be ‘yes’, then they will approve extending the involuntary hold. If the answer seems to be ‘no’ then they will reject it, and you will be allowed to regain your freedom.
(If you are on a shorter hold, the psychiatrist does this all themselves, with some paperwork, and imagining that they might be called up to a judge like this to justify why they made such-and-such a decision.)
What is missing in this scene? Any acknowledgement that the treatment and ‘are they a danger to themselves or others?’ might have a negative relationship. What if being held against your will, isolated from anyone you might depend on for social support, with no opportunities to exercise and sleep punctuated by wellness checks and hospital announcements, makes you more suicidal, more homicidal, more disorganised or psychotic, or more likely to harm yourself?
This isn’t an idle thought experiment. A lot of research shows that the risk of committing suicide is extremely high amongst people recently discharged from psych wards, and some studies that match people who went into psych wards with others with serious mental health problems who stayed out of the psych ward seem to show that the suicide risk is higher even when controlling for mental health problems, implying the psych ward stay had something to do with it.
If this hypothesis has any chance of being true, even for some people, it means that using a blanket ‘are they a danger to themselves or others?’ rule of thumb to decide whether to involuntarily commit people to psych wards might be dooming some of those people to worse situations than if nothing had been done and they’d stayed home.
This also lines up with what I’ve learned from interviewing people who have gone through mental health crises and survived; many of them felt the psych ward was actively harmful in their experience and made a lot of effort to avoid going there even in the worst of circumstances.
This isn’t the case for everyone, obviously, but when it comes to a blanket-applied law, it doesn’t have to be.
If the law says ‘you can treat someone against their will’ if they are ‘a danger to themselves or others’ and for some people that treatment makes them more likely to be ‘a danger to themselves or others’ then that law is creating harm.
There’s a concept in medicine called ‘iatrogenic harm’; harm caused by a medical practitioner in their attempts to help someone.
The most common image people have of iatrogenic harm is a surgeon accidentally amputating the wrong leg, or leaving their surgical tools sewn inside the patient. Most medical doctors go to great lengths to avoid such events, and we have medical malpractice lawsuits for when they don’t.
I think in the situation with involuntary-commitment-gone-bad we have what you could call ‘legal iatrogenic harm’--harm that is caused by doctors complying with a law that itself has harmful consequences. If the doctor were to break the law, they would be fired, stripped of their licence, and maybe imprisoned if things were bad enough. The law was not designed to harm, but it does, in some cases, have harm as a consequence.
There is an alternative to this. It requires a public acknowledgement of humility, that doctors aren’t always right, that people are different and that treatment is not one-size-fits-all (a few statements that I think many policymakers would already agree with).
The trick is to unbundle ‘handling the acute risk’ from ‘treating the mental health problem’.
To me, it makes sense that if a doctor is going to ask for the right to treat a patient against their will (say, give them a medication they do not want, or a medical procedure) then they should be held to a higher standard than simply ‘the patient will be in a bad state if I don’t’. You also need to make the case that they will be in a better state if you do–that is, that your treatment is likely to help them.
Imagine, for example, a young woman with a history of self-harm and who is seemingly threatening suicide. How would it change your decision to involuntarily commit her to a psych ward if you knew that she had been hospitalised against her will six times previously and that each time she planned a suicide attempt on the day she got out, but that she had had other suicidal urges with no hospitalisation, and that she had had no subsequent suicide attempts in those situations? It would be hard to conclude that those previous involuntary hospitalisations had been ‘helpful’; at best, you would have to imagine counterfactual realities where she successfully completed a suicide attempt when not hospitalised, and imagine that the post-discharge attempts were ‘less risky’ or something.
I think in this case it makes sense to consider ‘keeping her alive’ and ‘helping her feel less inclined to kill herself’ as two separate objectives, and I’d consider her previous psych wards to have unabashedly failed at that second objective, and only weakly succeeded (or perhaps had good luck) at the first.
What if an involuntary hold only meant that–that an authority could literally hold you and stop you from doing something dangerous? What if it made no pretenses that it was ‘helping’ you other than literally keeping you alive? What if, in order to do more than that against your will (say, inject you with medications or force you to take pills, or participate in group therapy) the authority had to make an additional case that those things had a meaningful chance of helping, based on the clinician’s track record and your history with such treatments?
For many disillusioned people who have been involuntarily committed, one of the things they found the most dehumanising was the constant narrative that what the hospital was doing to them was ‘for their own good’. Even if it obviously harmed them (as in cases where a medication they were forcibly given had horrible side effects, like permanent uncontrollable tics), the narrative would continue, in a sort of gaslighty way. Given people are in psych wards because they’re having problems with their sense-making (ability to make sense of the world), the weird gaslighting is really unhelpful and can be harmful in and of itself.
If involuntary commitment was framed more like temporary imprisonment or monitoring, and involuntary treatment held to a higher standard, the decision about whether to do such things to a person against their will could be more clearly judged in light of ‘what will help in this specific case?’ as opposed to ‘is the situation bad enough to warrant the standardised response?’. It gives patients more honesty, and clinicians more flexibility and more tools to actually help people.
I wanted to write this in part because I’ve only ever seen the debate around involuntary commitment framed in fairly black and white terms, about whether it is ‘good or bad’, and never about whether it is simply too standardised to guarantee that it isn’t harming some people, given how different people are.
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