Absence of insight as a catch-all extra-legislative factor in Swedish mental health law proceedings

Abstract

Previous research indicates that insight is frequently used but rarely defined in mental health proceedings. This article examines how participants in Swedish administrative court proceedings use the concept of insight when discussing decisions regarding involuntary psychiatric care. Open-ended qualitative interviews were conducted with professional mental health court participants. The results show that lack of insight is used by the informants as an argument for all three legal criteria for involuntary psychiatric care in Sweden, as well as the criterion for release from forensic psychiatric care. It is concluded that there are troublesome legal and ethical implications of courts relying on a poorly defined concept such as insight in their rulings.

Silence and Voice in Oral Hearings: Spatial, Temporal, and Relational Conditions for Communication in Asylum and Compulsory Care Hearings

“…However, since Sweden's entry into EU, the legal protection of civil rights has been strengthened. In the case of compulsory care, this includes “the right to an oral hearing, the right to a cost-free legal representative and the demand on the court to hear a specialist in psychiatry as an expert witness” (Radovic, Eriksson, and Dahlin 2020: 604). According to contemporary legislation, a compulsory care case is initiated either by the patient who rejects a suggested treatment or by the chief psychiatrist at the hospital seeking legal approval for compulsory care longer than four weeks.…”

“…In compulsory care trials in Sweden, the chief psychiatrist wins these proceedings 99% of the time (Zetterberg et al 2014). The major reason for this is that the court-appointed psychiatrists, who are assigned to provide the court with a second opinion on treatments and diagnosis, and the chief psychiatrists almost always agree on treatment, which makes it difficult for the court to reject the psychiatric diagnosis and suggested treatment (Sjöström et al 2002; Radovic et al 2020).…”

“…This strategy has been observed in previous research and is called “revealing repertoires” (Sjöström et al 2002, 102). Radovic et al (2020) found that court-appointed psychiatrist used such repertoires by asking questions that aimed to display to the judges the claimants’ lack of insight into their mental illness. From the claimants’ perspective, this creates a communicative dilemma because it means that “to argue in court that you are not ill is considered to be a strong indication that you are” (Radovic et al 2020: 612–613).…”

Forensic psychiatric patients’ experiences of participating in administrative court proceedings concerning the continuation of forensic psychiatric care

“…This legislation differs from that in most other countries since it does not have a legal insanity defense, but a presumption against sentencing convicted severely mentally disordered offenders to prison. Such offenders are instead held legally accountable for their crimes but are sentenced to forensic psychiatric care, which is a bona fide legal sanction reserved for this specific type of convicted offenders ( 3 ). If it is required that such a person, considering their mental state and personal circumstances, is admitted to a hospital for psychiatric care, the court will transfer this person to such a hospital, where the conditions include deprivation of physical liberty and coercive care interventions ( 4 ).…”

‘Informed consent is a bit of a joke to me’: lived experiences of insight, coercion, and capabilities in mental health care settings

“…Yet, it has been repeatedly suggested that insight is used as an extralegislative criterion for paternalistic interventions in mental health care (e.g. O'Keefe, 2022;Radovic et al, 2020;Gurbai, Fitton and Wayne, 2020;Guidry-Grimes, 2019;Case, 2016;Feckelton, 2010;Dawson and Mullen, 2009;Diesfield and Stojstrom, 2007). In England, the Independent Review of the Mental Health Act 1983Act (2018) concluded that people's experiences, knowledge and reasoning are overlooked by mental health professionals and 'mislabelled as lack of insight or aspect of their disorder', while the study conducted by Owen et al (2009) found that lack of insight is the most significant predictor of incapacity in psychiatric care.…”