ETHICAL AND LEGAL ASPECTS OF TREATMENTS IN PSYCHIATRY

IS THERE AN OPTIMAL ETHICAL APPROACH FOR TREATING PATIENTS IN PSYCHIATRY ?

S. Bloch

Department of Psychiatry and Centre for the Study of Health and Society, University of Melbourne, Australia

Ethical concerns about the psychiatrist’s role and functions have dogged the profession for at least three centuries. Moral harms have emerged from the abuse of the asylum as a custodial « warehouse », misunderstanding of the transference relationship, the gruesome effects of physical treatments like leucotomy and insulin coma, the misuse of psychiatry for political purpose (as occurred in the former Soviet Union) and systems of healthcare that jeopardize the needs of the individual purportedly to benefit the many. Psychiatrists have no choice in the face of these profound ethical difficulties but to respond as moral agents. The task, however, is complicated by the lack of a coherent framework for ethical decision-making, a conclusion buttressed by two observations. Firstly, rationales and methods used to resolve ethical questions differ radically. Indeed, competing ethical theories may so contradict one another as to generate irreconcilable tensions for the clinician. Attempts to compromise may take the form of a checklist approach that filters the details of a case through various algorithms in an attempt to discern the best match. However, this process often leads to conflicting remedies. For example, one psychiatrist may conclude that the features of a case support respect for the patient’s autonomy, whereas his or her colleague reasons they justify a paternalistic role. Secondly, in the wake of contradictory ethical theories, a nihilistic or cynical response may be the unfortunate result. Frustrated by conflicting claims, practitioners may dispense with any attempt to bring reasoning to the situation and resort to personal, ill-founded preferences. As a profession, we need to prevent these unsatisfactory outcomes. As a contribution to the process, I shall present an actual case (appropriately disguised) to illustrate the complex ethical decision-making required of the psychiatrist and then offer ideas for an ethical framework that may fulfil the intricate requirements of the psychiatric encounter.

THE ADEQUACY OF RECENT DEFINITIONS OF DECISION-MAKING CAPACITY

K.WM. Fulford

University of Warwick, UK

The concept of capacity is at the heart of current debates about the divide between medical uses and political abuses of compulsory treatment in psychiatry. In this paper I examine the adequacy of recent definitions of decision-making capacity, developed mainly with bodily disorders in mind, for mental disorders. Working within the methodological framework of linguistic-analytic philosophy, I consider the concept of capacity, and some of its mental-disorder cognates (e.g. ‘soundness of mind’), from the perspectives of three key disciplines : law, clinical practice, and empirical social science research. This ‘triangulation’ suggests a negative and a positive conclusion. The negative conclusion is that recent legal definitions of capacity, based on essentially cognitive criteria, are incomplete. Such definitions, while indeed helpful up to a point in cases of mental disorder involving disturbances of cognitive functioning (e.g. dementia and confusional states), fail to capture the elements of capacity relevant in disorders involving other areas of mental functioning, such as emotion, desire, volition, belief, motivation and identity (e.g. the functional psychoses, such as schizophrenia and manic-depressive disorder, the addictions, anorexia nervosa and personality disorder). The positive conclusion from our triangulation is that an understanding of capacity, if it is to be relevant equally to all kinds of mental disorder, must be developed within an agentic rather than merely cognitive model, i.e. a model which recognises that capacity may be impaired through a defect in any part of what J.L. Austin called the « machinery of action », that is, in emotion, desire, volition, belief, motivation and identity, as well as in cognitive functioning. A clear consequence of this broader agentic (rather than narrowly cognitive) model is that assessments of capacity, notwithstanding their supposedly objective basis, necessarily involve value judgements as well as assessments of fact. Value judgements, I argue, while involved in prmciple in the assessment of capacity in all disorders, bodily as well as mental, are important also in practice in the assessment of capacity in mental disorders involving the non-cognitive elements of emotion, desire, volition, belief, motivation and identity, essentially because the values involved in these areas of mental functioning are particularly diverse, and, hence, contestable. in the final section of the paper I indicate the importance of values-based (as well as evidence-based) assessments of capacity in negotiating the boundary between political abuses and medical uses of compulsory treatment in psychiatry. I also outline recent initiatives in the UK – in policy, training and research designed to support the development of values-based, alongside evidence-based, mental health services.

HOW ABSOLUTE IS CONFIDENTIALITY IN PSYCHIATRY ?

A. Carmi

University of Haifa, Israel

The doctor’s obligation to suppress information confided to him by his patients is a basic condition of doctor-patient relationship and applies to personnel in every branch of medicine. It is securely guaranteed by every type of medical code and requires the mutual trust of both parties. The principles of medical ethics embrace the obligation of confidentiality, whose purpose is threefold. it improves a patient’s welfare ; it prevents additional harm to a sick person ; it respects a patient’s autonomy. Medical confidentiality is intended to protect the patient in his place of employment, to preserve his reputation and to prevent breaches in his personal relationships. The paper will refer to three different approaches to the question of defense for a patient’s entitlement to privacy. The « desert island » approach assures him a complete measure of anonymity and privacy, The « big brother » approach favors society with the right to know. The third approach combines the conflict of interests between the other two by creating a compromise between the individual’s right of privacy and society’s entitlement to be informed. The last part of the paper will present the division of opinions with respect to the period of confidentiality required after the death of a patient.

MEDICAL RESEARCH ON VULNERABLE POPULATIONS

J. Arboleda-Florezt

Department of Psychiatry, Queen’s University, Kingston, Canada

Medical research depends substantially on the use of human subjects, either healthy ones, or those afflicted by conditions of interest to particular studies. Often, some research populations are afflicted not only by the condition of interest but, by virtue of demographic factors, effects and impacts of institutionalization, or impacts of the condition on mental competence can be considered vulnerable and in need of further and more specialized ethical safeguards. This presentation will review the nature of these populations, the ethical bases for their vulnerability, and the nature of the ethical safeguards.