Ethical challenges in mental health care: moving beyond aspirations
The paper by Galderisi et al1 raises an array of ethical challenges, each of which would warrant an extended response. Here I will focus on a few overarching issues.
First, it is extremely heartening to see the paper's engagement with the Convention on the Rights of Persons with Disabilities (CRPD). This has not always been the case: engagement from psychiatrists has in the past been frosty at best. The emphasis on autonomy, dignity and involvement of people with lived experience (PWLE) of psychiatric systems in care, treatment and decision-making about them is of a type that would have been uncommon twenty years ago in this sort of paper. The acknowledgement that compulsion has been and continues to be significantly over-used in psychiatry internationally, buttressed by the establishment of a working group at the WPA on developing alternatives to compulsion, suggests a significant shift in attitudes. As the paper notes, the 2020 revisions to the WPA Code of Ethics continue the movement of previous Codes towards a world where PWLE are not psychiatric objects but citizens warranting respect and dignity – a core value of the CRPD. The discussion in the paper puts some flesh on those bones from a psychiatric perspective.
As the authors acknowledge, this engagement will not satisfy those adopting a strong view of the CRPD. However, the paper does provide the hope for a productive dialogue among the diverse array of CRPD commentators about how services and support should be provided. If this takes place with a view to the values that the parties share, there is real potential for change in peoples’ lives. That would be potentially significant.
The challenge is how to get these newer attitudes into effect on the ground. History is not promising in this regard. Much of the encouraging language of the 2020 WPA Code of Ethics had its roots in the earlier Declaration of Madrid, originally passed by the WPA in 1996, and even the Declaration of Hawaii passed in 1983. Those documents also spoke of therapeutic relationships founded on “mutual agreement” and trust. The Declaration of Madrid expressly enjoined psychiatrists to “devise therapeutic interventions that are least restrictive to the freedom of the patient”. The patient was to be “accepted as a partner by right in the therapeutic process”, and the psychiatrist was to “empower the patient to come to a rational decision according to his or her personal values and preferences”. Even when the patient lacked capacity, the document enjoined that “no treatment should be provided against the patient's will, unless withholding treatment would endanger the life of the patient and/or those who surround him or her”.
All too frequently, twenty-eight years after the Declaration was adopted, this continues not to be the experience of PWLE. That is reflected in their writings. Numerous reports of international inspectorates – the Council of Europe Committee for the Prevention of Torture2 and the United Nations Subcommittee on Prevention of Torture3 being the most obvious examples – and national non-governmental organizations make this clear. Too frequently, the principles of ethical documents have little impact on the lives of those affected. Galderisi et al acknowledge this when they say that “many mental health professionals are unaware of [the WPA Code's] principles”. It is fair to ask how far changing the language of a Code which has no or little traction will actually change things.
Galderisi et al go on to state that “everyone in theory agrees” with a transition away from paternalist care and towards the new vision of patient involvement and autonomous decision-making, but “in practice there is resistance”. Given the persistence of the old approaches, it is fair to ask whether in fact “everyone in theory agrees” with the new ones. Some of the inspectorate reports and the experience of law and policy reformers would suggest that sometimes the resistance comes from the majority of professionals in some countries. How do we engage professionals who really do not want to get with the programme?
Certainly, nudging towards good practice is an appropriate strategy, but a certain scepticism is appropriate. Good practice statements, manuals and guidance have been around for decades. As noted, it is not obvious that they have had an adequate impact. Certainly, the WPA initiative with the World Health Organization on implementing alternatives to coercion4 is a positive step; but will it really be taken up by the practitioners who have thus far seemed resistant to change? It is at best doubtful.
As Galderisi's paper notes, legal reforms may help. We have seen that in the provision of research ethics committees in the countries that have introduced them (by no means all, internationally). While one can certainly debate the appropriateness of the processes that these bodies use, and the merits of individual decisions, they do have their effects. In some circumstances, law can work.
I am a lawyer, so I am obviously not going to argue against the provision of good laws governing mental health provision; and yes, new laws can provide a marker of change that gives good practice more space to flourish. Equally, though, as someone who has done a good deal of international work and read a lot of mental health law, I think I have never seen a statute so rigidly drafted that it can preclude bad practice if practitioners want to exercise undue control.
This suggests that individual accountability is the key issue. How is that to be enforced? Law may be of little help here. Often, domestic courts look at overall standards within a country and, if a doctor's practice is broadly consistent with a significant minority of his/her colleagues, the court will decline to be involved.
Medicine is generally a self-governing profession. Will national professional bodies provide sticks with the carrots, both leading from the top in terms of the promotion of ethics, and also censuring practitioners who do not meet the international standards? This seems doubtful. Even in countries with quite developed complaints systems, it is hard to imagine a governing body censuring a practitioner for lacking respect for the views and preferences of a PWLE, or being too quick to exercise compulsion. Galderisi's paper notes that only 15 out of the 143 Member Societies of the WPA have formal ethical documents. This does not inspire confidence that the standards envisaged in the 2020 WPA Code will be given priority in most of the world.
How should we deal with failure to engage at the level of national organizations? In principle, human rights bodies such as the European Court of Human Rights could insist on standards of medical ethics that are consistent with the developments in the field of human rights, but thus far they have been remarkably reluctant to do so. Would the WPA or similar international organizations be prepared to exert political pressures, such as naming and shaming? This seems also doubtful, and is a high-risk strategy since it destroys goodwill between the organization and the national body.
That said, failure to intervene means that nothing will actually change on the ground. And it is on the ground that the changes need to happen.
