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A HIERARCHY OF TREATMENT PRESSURES IN HEALTH CARE:
‘INDUCEMENTS’ AND ‘THREATS’

 

 With Paul Appelbaum, I have presented a possible hierarchy of treatment pressures that are employed in health care, and especially mental health care, where a patient may be reluctant to accept or rejects a treatment and where clinicians believe that there is a strong case for the treatment being necessary for the well-being of the patient. It goes from the least pressure to the most: ‘persuasion’, ‘interpersonal leverage’, ‘inducements’ (or ‘offers)’, ‘threats’, and finally, ‘compulsion’. An account of the general schema is at http://www.tandfonline.com/doi/abs/10.1080/09638230802052203.

In this post, I am not going to look at justifications for such treatment pressures. I favour a decision-making capacity (or capability) plus ‘best interests’ (or ‘will and preferences’) approach. This is elaborated in my post at http://georgeszmukler.org/decision-making-capacity/

 

Inducements or offers

In general, I think most people would agree that an ‘inducement’ is less ‘coercive’ than a threat. We are regularly bombarded with inducements. For example, a bank may offer an interest-free period on a credit card debit as an inducement to move one’s account to them. This would certainly be quite different to a threat aimed at achieving such a change – for example, a threat that if you declined to open an account with the bank, a detailed credit check would be instigated and changes to your credit rating would be imposed if previously unknown problems were to be to be uncovered.

However, inducements in a healthcare context can be problematic. An example is a proposal to offer a payment to non-compliant patients with a psychosis to accept medication. My objections to this can be read at http://www.bmj.com/content/347/bmj.f6837.abstract

In brief, this is an example of “commodification.” Such a transactions involve an exchange between “goods” lying in different domains of value, one high and one low. Aligning their evaluation along a single metric—one appropriate to the lower value (money)—degrades or corrupts the character of the goods lying in the higher domain (a treatment to improve human flourishing). There may be two harms as a consequence: first, the agency or self-government of the patient is undermined by the offer of payment; second, the value of the treatment is degraded – it becomes a commodity rather than something that serves a higher value related to human flourishing.

Sometimes people respond to this argument by saying that in our neo-liberal, market dominated society we are constantly bombarded by financial incentives to do certain things. That’s life today. This may be so, but I think that the context of mental health services makes a huge difference. Patients with mental health problems commonly experience a lack of respect in our society; their values and preferences are often not given recognition, and they are seen as incompetent. Their agency is regularly undermined.  Psychiatric treatments should aim to empower patients and strengthen their sense of agency, not undermine them.

There are other problems of ‘exploitation’ and ‘fairness’ which I won’t go into here (see http://jme.bmj.com/content/35/4/224.short). Then there is a range of problems that are of a practical nature: the patient-doctor relationship might change, with a deeper discussion about the meaning of treatment being short-circuited by a financial inducement; ensuring that treatment adherence actually occurs might require injections rather than tablets, which may exclude a more effective treatment; how possible would it be in practice for payment to be terminated – why would a patient say that now they will be adherent even without the financial incentive; if it becomes known that non-adherent patients will receive financial incentives, why would a patient, even if convinced about the value of the treatment, admit to an intention to take the medication?

Having reflected further on the problematic aspects of inducements in mental health care, I am now inclined to conclude that they have little or no place in treatment..

What about ‘threats’?

 

Threats

I go along with a commonly accepted definition of a ‘threat’ as a proposition, that if not accepted by its recipient, will make that person worse off (according to some baseline, usually a ‘moral’ baseline). Example: ‘If you don’t take the medication, you will be admitted to hospital on an involuntary order’ On the other hand, an ‘inducement’, if rejected, leaves the recipient’s position unchanged. Example: ‘If you take the medication, I will take you to a second-hand furniture store where I know the owner, so you will get a good deal’.

I think that threats represent a stain in the fabric mental healthcare today. They entail a troubling paradox: on the one hand, medical codes of practice generally condemn them as unacceptable; but on the other hand, they are apparently common, at least as perceived by patients. The Code of Practice (2007) accompanying the English Mental Health Act states:

‘the threat of detention must not be used to induce a patient to consent to admission to hospital or to treatment (and is likely to invalidate any apparent consent)’.

Though there are no statistics on the frequency of direct threats of admission to hospital if the patient fails to accept treatment, studies that have asked whether ‘voluntarily’ admitted patients have felt ‘coerced’ into being in hospital find anywhere between 10% and 50% saying they have. An example is a study conducted in London in 2005 in which I was one of the investigators. One-third of voluntary patients (that is, patients not a compulsory treatment order) felt highly coerced, and two-thirds were not certain they were free to leave hospital.

What can be done about this disturbing situation? What is the explanation for the prohibition of threats? I can identify two concerns:

  1. Threats may be made in ‘bad faith’. That is, in fact, involuntary treatment would not be instigated by the clinician, but the threat is made with the intention of pushing the patient to accept treatment ‘voluntarily’;
  2. The treatment though not truly ‘voluntary’ is not subject to any regulation or protections for the patient.

These objections seem to turn on a lack of transparency. I think it is likely that many patients, if it comes down to a bare choice, would see succumbing to a threat as preferable to an involuntary admission. The significant proportion of patients, though officially voluntary, who on direct questioning admit to having felt coerced, points to wish to avoid being legally detained on an involuntary order. Although the subjective experience of being threatened may be disturbing, for many, I guess it is unlikely that this would be worse for the individual than the subjective experience of forced admission and treatment.   A threat, even if complied with, may also offer the patient more remaining freedoms than would a compulsory admission. For example, an admission and the stigma of compulsion may be avoided; improvement may occur unexpectedly quickly – perhaps because of a change in the social environment – prompting the clinician to remove of the threat; it is more likely that the patient’s preferences will be heard and respected if they are not on an involuntary order.

Can anything be done to deal with the objections? A philosopher colleague at King’s, Tania Gergel, who has an interest in the philosophy of psychiatry and coercion, and I have discussed this at some length.   We have concluded that there are some possibilities. How acceptable they might be we don’t know. To our knowledge such ideas have not been proposed before. We offer them as a basis for further discussion. The term ‘conditional treatment’ may be a better descriptor than the use of the word ‘threat’. There exists a range of existing conditional frameworks – a community treatment order is an example: the person can remain in the community if they comply with the treatment terms; if they don’t, they may be recalled to hospital.

A distinction needs to be drawn between threats that result in a patient accepting treatment in the community as opposed to threats that result in a ‘voluntary’ admission to hospital. As we shall see the former is less complex from a legal point of view. First then, let us examine the situation where a person is threatened with an involuntary admission to hospital if they do not accept treatment which can nevertheless be given in the community. An example would be where a patient has discontinued their medication and has relapsed to the point where an involuntary order would be justified, but where a prompt recommencement of medication is likely to avoid the need for admission. We suggest the following as conditions that might make such in intervention acceptable:

  • The clinician records that a threat has been made, the content of the threat, and states that the threat has been made in good faith (i.e. if the patient does not opt for the ‘conditional treatment’ alternative to a mental health act assessment, such an assessment will certainly be instigated; and that if such an assessment has been made and the assessors conclude that an involuntary admission is warranted, that this will proceed). The fact that the patient has the capacity to agree to ‘conditional’ treatment will also be recorded.
  • The clinician notifies the local relevant authority (e.g. Mental Health Trust) that conditional treatment has been initiated, and the authority registers that this has occurred.
  • A care plan must be recorded in the patient’s notes which must be discussed with the patient and the patient’s representative, nominee (or carer).
  • The patient must have access to an independent advocate who is available to discuss the conditional treatment and its justifications with the clinician.
  • These conditions will need to be revisited after a month, and if Conditional Treatment is to be continued, monthly thereafter
  • When a point is reached where the option of involuntary treatment can no longer be justified, conditional treatment must be terminated. This follows from condition 1 above.

The patient can at any time refuse to go along with the conditional treatment, at which point the clinician must initiate a mental health act assessment. The patient can then appeal under the terms of the (mental) health act under which involuntary treatment has been authorised.

Confounding the problem of making threats transparent and adequately regulated is the wish of patients not to be treated under a formal legal order, on the one hand, and ensuring that the necessary procedures are adopted by clinicians, on the other. Guidelines or a Code of Practice may suffice for conditional treatment in the community. Whether this is so needs discussion. The view of service users would be of the essence here.

‘Voluntary’ (conditional) admission v ‘involuntary’ admission

However, such measures would probably not prove adequate in many countries, certainly in Europe, when the choice offered to the patient is a voluntary admission as against an involuntary admission. A ‘voluntary’ admission under threat or conditions would probably be seen as a ‘deprivation of liberty’. If the patient is considered as ‘not able to leave’ and ‘under continuous supervision and control’, in the UK at least, a conditional voluntary admission would probably constitute a ‘deprivation of liberty’. If a conditional admission does constitute a deprivation of liberty, the procedures must be prescribed in law. The conditions might be the same as 1 to 6 above, but would also require a second opinion after, say, two weeks as an inpatient, and there would need to be an appeals process. It could be argued that an appeal against the conditional treatment is redundant as the clinician is bound by the necessary conditions to initiate the process for an involuntary order if the patient does not accept a ‘voluntary’ admission. An appeal against ‘conditional treatment’, in its own right, would in fact amount to an appeal against the doctor’s opinion that involuntary treatment is justified. Whatever the precise conditions might be, if judged to be a ‘deprivation of liberty’, a conditional admission would need to be covered by legal statute. The patient would then be, in some sense, ‘sectioned’ under a (mental) health act.

As it is engendered by the understandable stigma associated with a legal treatment order, the conundrum could be resolved if the stigma of such an order were neutralised. The Fusion Law proposal (see     ), by being generic and by widening involuntary treatment to include people with complications arising from ‘physical disorders’ and who do not have ‘mental disorders’, would be expected to reduce the stigma.

However, it might be possible to argue that an admission under the constrained circumstances of a threat of an involuntary admission does not amount to a ‘deprivation of liberty’. If a person with the capacity to make a decision about admission consents to admission, and if the consent is valid, such an admission perhaps would not amount to a deprivation of liberty. A deprivation of liberty only applies to people who lack decision-making capacity in a placement where their liberty is constrained. Could a consent under the threat of an involuntary admission be classed as an ‘informed consent’. A necessary condition for an informed consent is that the consent is voluntary, not coerced. In one respect the consent in the situation we are considering is ‘coerced’. But in another sense it might not be. A ‘voluntary’ admission might in fact be seen as an ‘offer’. Remember that the difference between a ‘threat’ and an ‘offer’ depends on the ‘moral baseline’. The moral baseline in this case is an involuntary admission. That is what will happen (assuming it is made in good faith) if no alternative is offered. The offer is an alternative – a ‘voluntary’ admission. If the person says ‘no’ to the offer, they are no worse off than if the offer had not been made – the result will be an involuntary admission. I don’t know whether this argument would have legs under the law, or in ethics. If it were accepted, then the conditions 1- 6 listed earlier for the community alternative might suffice as safeguards in the case of an admission as well.

Like some of the complex issues I mentioned in relation to inducements, whether a place exists for threats in healthcare, especially mental healthcare, needs discussion. In any discussions, special regard should be paid to the views of people who are most likely to be subject to these forms of treatment pressure.