Tensions between policy and practice: A qualitative analysis of decisions regarding compulsory admission to psychiatric hospital

Abstract

The use of detention for psychiatric treatment is widespread and sometimes necessary. International human rights law requires a legal framework to safeguard the rights to liberty and personal integrity by preventing arbitrary detention. However, research suggests that extra-legal factors may influence decisions to detain. This article presents observational and interview data to describe how decisions to detain are made in practice in one jurisdiction (England and Wales) where a tension between policy and practice has been described. The analysis shows that practitioners mould the law into ‘practical criteria’ that appear to form a set of operational criteria for identifying cases to which the principle of soft paternalism may be applied. Most practitioners also appear willing, albeit often reluctantly, to depart from their usual reliance on the principle of soft paternalism and authorise detention of people with the capacity to refuse treatment, in order to prevent serious harm. We propose a potential resolution for the tension between policy and practice: two separate legal frameworks to authorise detention, one with a suitable test of capacity, used to enact soft paternalism, and the other to provide legal justification for detention for psychiatric treatment of the small number of people who retain decision-making capacity but nonetheless choose to place others at risk by refusing treatment. This separation of detention powers into two systems, according to the principle that justifies the use of detention would be intellectually coherent, consistent with human rights instruments and, being consistent with the apparent moral sentiments of practitioners, less prone to idiosyncratic interpretations in practice.

An examination of organisational policies for healthcare and lifestyle decision‐making among Australian aged care providers

“…12 Following Bowen, we understood the process of textual analysis as a qualitative method, with documents taken as static and "non-reactive" data sources. 13 Acknowledging the potential for gaps between written policies and actual practice, 14 we conducted supplementary interviews with staff…”

“…Are rights-based or functionalist criteria applied for capacity assessment, as opposed to "status" criteria (ie based on the presence of a diagnosis) or "outcome" criteria (ie based on a judgement about the perceived wisdom of the person's decision)? a 6 (86) N/A 1 (14) 1C. Are time-and decision-specific criteria applied for capacity assessment?…”

Compulsory Admission in Hong Kong: Balance between Paternalism and Patient Liberty

“…The decision to detain involves a constellation of factors. 4,[14][15][16] In a study in Canada, significant factors were legal commutability (ie, dangerousness to self and/ or others, inability to care for self), clinical treatability, alternative resources, and psychotic symptoms. 14 In England and Wales, decisions to detain are based on five key themes: (1) diagnosis, (2) availability of alternatives to detention, (3) likelihood of response to treatment, (4) risk assessment, and (5) the patient's capacity to make decisions about treatment.…”

Current appeal system for those detained in England and Wales under the Mental Health Act needs reform

“…Of course, a psychiatrist is likely to argue that they would not detain someone if they did not think it was necessary. However, some doctors may simply be adopting a ‘soft paternalism’17 that does not adequately take into account the rights of patients or the value that society places on patient’s autonomy. This is particularly troubling because the existence of this paternalistic approach or unsound professional judgement is hard to identify or challenge in a tribunal.…”