Same, Same But Different: How the Interplay of Legal Procedures and Structural Factors Can Influence the Use of Coercion.

Abstract

Although clinicians and scientists have made persistent effort to reduce the use of coercive measures such as mechanical restraint, seclusion, and forced medication, it is required in some situations and staff members are thus confronted with a clinical and ethical dilemma: Coercive measures can save lives (e.g., when treating a Delirium Tremens) but can be linked with many negative consequences, ranging from a degradation of the therapeutic relationship to symptoms of posttraumatic stress disorder (1, 2). Moreover, the issue of perceived coercion has become a major concern over the past years. Patients’ feelings of not being respected and involved in decision-making processes can lead to higher levels of perceived coercion (3). Participation and freedom of choice regarding therapy and medication were described as highly relevant to patients (4). Studies on the use of coercive measures indicate vast discrepancies between countries and institutions, therefore raising the question of factors influencing decision-making processes including legislative, institutional, and staff-related aspects (5–7). Authors underline the need to actively address ethical issues regarding the use of coercive measures as a tool to reduce their use to the absolute necessary minimum (8, 9). The ratification of the UN Convention on the Rights of Persons with Disabilities (UN CRPD) has shed a new light on this matter and raised an important debate in the field of mental health (10). The Convention states that the presence of disability does not justify the application of compulsory treatments and that treatment decisions should, under any circumstances, respect the will and preferences of the persons with disabilities. These terms of “will and preferences” have been thoroughly discussed and defined by several authors (11); here, we refer to George Szmukler (12). He stresses that the application of compulsory treatment might only be justified if it aims at respecting a person’s will—defined as the expression of “deeply held, reasonably stable and reasonably coherent personal values”—and restoring the ability to express one’s will, in cases where this differs from the expressed preferences—defined as expressed “desires and inclinations” (12). The convention thus underlines that the patients’ perspective on their situation and treatment should always be actively assessed and integrated in the decision-making process regarding the use of coercive measures. These ethical questions, along with the statements of the CRPD, urge psychiatric institutions to control their structures and treatment concepts in order to create the conditions needed to fulfill the afore-mentioned requirements (13–15). In Germany, the highest court of justice, the Federal Constitutional Court, stated on the case of a forensic patient in 2011 that compulsory treatment can only take place with the intention of restoring the patients’ capacity to consent and only if several requisites are fulfilled. These encompass the impaired capacity of the patient to consent to the treatment after different options have been presented and explained, the necessary character of treatment to avoid acute endangerment of the patient or others, and the use of compulsory treatment as a last resort after all other alternatives have been exhausted. These legally binding statements and the related discussions show that decision-making processes regarding the use of coercion need to be reviewed and revised accordingly. The interpretation of the preconditions for compulsory treatment, notably its “last resort” character, requires in-depth considerations. Two short clinical cases from an acute psychiatric ward aim to highlight some of the core aspects of exemplary decision-making processes and underline the structural factors that these should be based on.