COERCIVE TREATMENT IN MENTAL HOSPITALS: LEGAL REGULATIONS AND EXPERIENCES IN THE NETHERLANDS
Elleke Landeweer, Ron Berghmans, Tineke Abma & Guy Widdershoven
(EACME Newsletter, July 2007)
Introduction
After more than 20 years of societal and parliamentary debate, in 1994 the Psychiatric Hospitals Compulsory Admissions Act (Wet Bijzondere Opnemingen in Psychiatrische Ziekenhuizen or Bopz) came into force in the Netherlands. A periodic evaluation of this law is mandatory in order to determine whether it is still adequate in practice.
Are mentally ill patients in the Netherlands protected well enough against unjustified coercive interventions? Do health care professionals in mental hospitals have adequate legal opportunities to provide involuntary treatment when patients suffer from psychiatric disorders? And can they guarantee safety for those who work in mental hospitals and for patients who are being cared for in them?
These were the main questions of the third evaluation of the Act.
The Department of Health, Ethics and Society of the research institute Caphri of Maastricht University investigated these questions in a consortium with two other research institutes to identify the central moral dilemmas and legal problems in Dutch psychiatric practice. Based on the research findings, recommendations were formulated for the government on how to improve the functioning of the legal framework of mental health practice.
The law in development
If, as a result of mental illness, a person is dangerous to himself or others, then the Bopz allows involuntary admission into a mental hospital to avert this danger. Two other conditions ought to be met before the court can sanction such a compulsory admission: the person does not consent to voluntary admission, and the danger cannot be averted outside the mental hospital.
The most important objective of the Bopz is to protect the legal rights of persons suffering from a mental disorder in the event of and during involuntary admission. The aim of the law is not – or at least not primarily – to make treatment possible in cases where such treatment, for one reason or another, is refused by the person concerned.
When this law was introduced in 1994, a strict dangerousness criterion applied. Since then, several adjustments have been made due to the recommendations of the previous evaluations and societal debate. Still the question remains if further adjustments are necessary (or if the law should be replaced altogether by new legislation, which in fact is the point of view of the Dutch Association of Psychiatrists).
Admission and treatment
Contrary to most European countries, the Bopz makes a distinction between compulsory admission procedures on the one hand, and compulsory treatment on the other. In many cases, compulsory admission to a psychiatric institution is sufficient to avert the danger. Treatment of the mental disorder can only take place on the basis of voluntary informed consent of the patient. Only when risks persist after a person already is involuntarily committed, and when danger in the institution cannot otherwise be averted, are health care professionals allowed to act against the patient’s will. But, if at all possible, health care professionals should first try to reach informed consent.
The focus of our research project concerned the legal arrangements with regard to coercive interventions in mental hospitals. Even though until recently, the criterion for involuntary treatment had been ‘to avert serious danger to self or others’, the expression ‘serious danger’ has already been changed – in a first step to reform the law - to ‘danger’. This reform was aimed at broadening opportunities for involuntary treatment.
The central research question was whether the Bopz law could be considered as an adequate framework for the regulation of the care for patients who are involuntarily committed. In order to gain an in-depth insight in the practice of coercive psychiatric care from the perspectives of the various groups of insiders (patients and patient advocates, family, nurses, psychiatrists and managers) a qualitative research project was set up. In-depth interviews were conducted with respectively 12 patients who had been involuntarily committed, 15 mental healthcare professionals (nurses, psychiatrists and managers), 10 family members or ‘significant others’ and two patient advocates (‘patiëntenvertrouwenspersoon’). Three focus groups were organized; two with 8 patients and one with 12 family members. One of the main themes of the interviews was the functioning of the dangerousness criterion in practice. Despite the adjustments that had been made this was still considered to be an important issue.
Findings
The main result of the research project was that the perception of the stakeholders of the practical functioning of the Bopz law differed according to the group to which they belonged. Patients thought that the dangerousness criterion was applied too strictly and wanted to distinguish between situations of acute danger and situations of (merely) impending danger. In the latter situation especially, the application of coercive measures was considered unfruitful in building a trustful relationship between health care professional and patient. The opinions of most of the health care professionals and family members were quite the opposite. They felt a need for better legal tools in situations in which the presence of danger as a consequence of the mental illness was unclear, and they considered coercive interventions important for the safety and well-being of the patient or the climate of the institution.
Another problem was that in practice it appeared rather difficult to decide when a situation could be considered “dangerous enough” to intervene, despite the guidance of the law and jurisprudence. In practice it wasn’t even always clear in what cases a patient was not consenting to a treatment, or to what extent ‘not consenting’ amounted to a refusal. Most of the respondents interpreted a refusal of coercive treatment by a person lacking in decision-making capacity differently than a refusal by a person in full possession of such capacity. In the former case they considered it morally acceptable not to respect such refusal, but there was no consensus as to how to decide whether a person has this capacity.
Thus, some stakeholders experienced the Act as not protective enough with regard to the autonomy rights of patients, whereas some stakeholders considered the Act too rigid, and protective of this right. Health care professionals and family members were critical about the underlying perspective of the law. They experienced the law as leading to a ‘care paralysis’ (“zorgverlamming”) inasmuch as it limits the application of coercive measures to cases where there is the presence of danger, thereby neglecting the possibility of a threat to the patient’s wellbeing. They argue for a more paternalistic approach.
Although the different stakeholders did not agree on this subject, they actually did agree on how procedures of coercive care can and should be improved. All respondents agreed that communication between the patient and the health care professional should and can be improved by taking more time to reach informed consent, and by giving clear reasons to patients why coercive measures are considered necessary and by being honest and open about the difficult and tragic character of coercion. So, although different stakeholders did not agree on the conditions under which when coercive interventions need to be applied, they all acknowledge the importance of developing good practices in case of coercion.
Recommendations
Our recommendations for the improvement of the functioning of the Bopz law can be distinguished in three parts. First of all some primary conditions should be met. We claim that in the discussion regarding the nature of the needed adjustments of the legal framework, the different perspectives of the stakeholders should be taken into account equally. Especially the perspective of patients has not been given sufficient attention in the previous adjustments of the Act. The improvement of the legal framework requires a shared view based on the contribution of all the stakeholders involved. Central topics include the importance of good care, the prevention of coercion and the improvement of the quality of coercive care. Secondly, we argue that several adjustments are possible if these are based on a shared understanding of these topics. For example, in the legal framework it should be made clear that good care, prevention and improvement of the quality of coercion are basic starting points. People who are involuntary committed should have the right to receive an adequate treatment and a right to engage in meaningful daily activities. Registration and careful documentation of coercive interventions should be more transparent and include transparency about the motivation of intervention, the proportionality of the intervention, as well as an explanation of why alternative means were not applied or did not succeed, and what the specific aims of the intervention were. Also every coercive procedure should be evaluated with the patients themselves, both during and after the intervention. It should involve a discussion of what went wrong and how an escalation can be prevented in the future. Last but not least, we recommend to develop and promote good practices, by stimulating the search for alternatives to coercion, the improvement of education of health care professionals in mental health care and we propose that more research is needed in the area of decision-making concerning the (in)capacity and consent of patients.
Some final words about our approach
While other evaluations were carried out by legal experts, we have taken on an ethical perspective in our evaluation of the Bopz law. The focus on shared meaning-making, dialogue, communication, social learning and the explication of normative expectations of all relevant stakeholders in our analysis and recommendations is grounded in a hermeneutic and care ethic framework. Though initially our explicit and deliberate attempt to include the voice of patients was not always appreciated by those with vested interests, it created a new dynamics. In hindsight it was good to see that the importance of shared decision-making was reflected in the advice given to the government by the evaluation committee (i.e. the group of experts which supervised the evaluation process).
The authors work at the department of Health, Ethics and Society/ research institute Caphri, Faculty of Health, Medicine and Life Sciences of Maastricht University, the Netherlands
e.landeweer@zw.unimaas.nl
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