Critical Perspectives on Coercive Interventions

Law, Medicine and Society

Claire Spivakovsky, Kate Seear, Adrian Carter, Claire Spivakovsky, Kate Seear, Adrian Carter, Claire Spivakovsky, Kate Seear, Adrian Carter

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351657334
• Edition: 1
• Topic: Law
• Subtopic: Medical Law
• Index: Law

Coercive medico-legal interventions are often employed to prevent people deemed to be unable to make competent decisions about their health, such as minors, people with mental illness, disability or problematic alcohol or other drug use, from harming themselves or others. These interventions can entail major curtailments of individuals' liberty and bodily integrity, and may cause significant harm and distress. The use of coercive medico-legal interventions can also serve competing social interests that raise profound ethical, legal and clinical questions.

Examining the ethical, social and legal issues involved in coerced care, this book brings together the views and insights of leading researchers from a range of disciplines, including criminology, law, ethics, psychology and public health, as well as legal and medical practitioners, social-service 'consumers' and government officials. Topics addressed in this volume include: compulsory treatment and involuntary detention orders in civil mental health and disability law; mandatory alcohol and drug treatment programs and drug courts; community treatment orders; the use of welfare cards with Indigenous populations; mandated treatment of seriously ill minors; as well as adult guardianship and substituted decision-making regimes. These contributions attempt to shed light on why we use coercive interventions, whether we should, whether they are effective in achieving the benefits that are offered to justify their use, and the impact that they have on some of society's most vulnerable citizens in the names of 'justice' and 'treatment'.

This book is essential reading for clinicians, researchers and legal practitioners involved in the study and application of coerced care, as well as students and scholars in the fields of law, medicine, ethics and criminology. The collection asks important questions about the increasing use of coercive care that demand to be answered, and offers critical insights, guidance and recommendations for those working in the field.

Part I

Examining foundations for coercive interventions in law and medicine

Part I of this book reviews the evidence often used to assess whether coercive treatments are useful, ethical or appropriate responses to people with severe mental illnesses, disability or drug addictions. As we will see in subsequent chapters of the book, questions around the use of coercion in the mental health, disability and alcohol or other drug (AOD) sectors are not simply empirical ones, but need to examine a constellation of moral, social and legal issues. However, an initial requirement for the use of any form of coerced treatment is evidence that it is effective in benefiting the person who is being coerced. The use of coerced ‘treatment’ without evidence of its safety and effectiveness could amount to some form of extrajudicial punishment or harmful discrimination of vulnerable persons. Part I examines the evidence base underpinning the use of coercive medico-legal interventions in mental health and AOD addictions around the world. It considers what evidence exists in relation to the effectiveness of coercive interventions in law and medicine, the strengths and limitations of this evidence base, and the reasons why some coercive interventions persist when their foundations are uncertain. Notably absent from this part of the book is a chapter about the evidence base for coercive interventions in the disability sector and the questions it raises. This absence is not an oversight nor an omission, but rather a reflection on the current state of affairs within this sector.

There is a wide range of evidence that can and is deployed in support, or critique, of coerced forms of medical interventions. The first two chapters of Part I of the book consider key empirical questions regarding the use of coercion in mental health care: first, is the person experiencing a condition that justifies the use of coercion, and second, is the form of coerced treatment being provided effective in improving the wellbeing of the person being coerced into treatment?

The decision-making capacity of people with severe mental illness or drug addictions is often central to debates about the appropriate use of coercion in mental health care. Support for coercive interventions often relies on paternalistic justifications that those with some mental illnesses are unable to make appropriate decisions regarding their health and well-being, and should therefore be treated for their own good. In Chapter 1, Carter and Hall examine evidence that people with drug addictions are so cognitively impaired by their addiction that they are unable to make autonomous decisions about drug use and its treatment. Proponents of coerced addiction treatment increasingly rely on insights from neuroscience research to suggest that the brains of people who are severely addicted to drugs have been ‘hijacked’ by that drug and need to be coerced into treatment for their own good. Carter and Hall examine the evidence in support of this claim, arguing that it is incorrect and misleading to argue that people with addictions have no control over their drug use.

In Chapter 2, Brophy, Ryan and Weller carefully examine whether coerced treatment of people with mental illness is effective. They specifically examine whether the use of community treatment orders (CTOs), also known as assisted outpatient treatment, is effective in improving the health and wellbeing of people with mental illness. These treatment orders came into favour following the demise of large psychiatric institutions and community concerns about relapse and revolving door admissions. Despite their widespread use in many parts of the globe, Brophy and colleagues demonstrate that there is very little evidence that these programs are effective. What limited evidence is available does not employ robust methods or adequate follow-ups to answer the question of whether CTOs actually work. They then consider another form of evidence relevant to debates about whether coerced treatment is ethical: the lived experiences of those who are subject to them. These themes are explored in greater detail in Part II.

In the concluding chapter of Part I, Batey provides another kind of evidence. Batey is a drug and alcohol clinician, and he writes his chapter from the perspective of a drug and alcohol clinician desperately trying to save the lives of his patients who are acutely threatened by their continued use of alcohol. In Chapter 3, Batey describes several clear examples of the immediate threats to a person’s health and wellbeing that compulsory alcohol treatment seeks to address. These case studies provide a compelling picture of the good that coerced treatment orders aim to achieve, when they are operated by sympathetic individuals whose primary motivation is the health and wellbeing of their patient.

A common theme running throughout these chapters is the considerable lack of adequate evidence with which to assess the effectiveness of coerced treatment. Studies are poorly designed, with insufficient follow-up of participants. Often policies are widely employed on the basis of little evidence. While the authors of these chapters may interpret this lack of adequate evidence differently, they all recognise and call for the need for better evidence and evaluation of coerced treatment programs, and a move away from the current situation which sees coerced treatment policies implemented in response to public concern, political expediency or well-meaning assumptions about their impact on the people treated under various coerced treatment orders. Conflicting aims of coerced treatment to both assist and treat unwell individuals and protect society from real or perceived harms can undermine both the type and quality of treatment that people receive. All of the authors provide a clear way forward for obtaining the necessary evidence for establishing whether coerced treatment is ethical, whether it works and how it may be done in a way that maximises both.

Chapter 1

From coerced to compulsory treatment of addiction in the patient’s best interests

Is it supported by the evidence?

Adrian Carter and Wayne Hall

There is good evidence that those who enter treatment for drug addictions¹ or problematic drug use will benefit from the treatment (Gerstein & Harwood, 1990). However, a persistent problem in treating addiction is attracting people with serious drug use disorders into treatment and keeping them there long enough for them to benefit from the encounter (see Chapter 3, this volume). The reluctance of many drug-dependent persons to enter treatment has led governments at various times to legally coerce people with addictions into treatment by offering it as an alternative to imprisonment for those who have committed criminal offences. Proponents of this approach argue that coerced addiction treatment is justified because it reduces the harm to people with addictions and the harmful effects of their addiction on their families and friends, and their social and economic impacts on society (Chandler et al., 2009; Sullivan et al., 2008). Others have argued for the use of compulsory treatment rather than coercion into treatment, asserting that individuals with serious forms of addiction are so overwhelmed by their condition that the community is morally obliged to compel them to enter addiction treatment for their own good (Caplan, 2008).

Critics of coerced treatment oppose it for various reasons. For some it is unethical because they believe that people who use drugs make free and fully informed choices to use drugs and should not be prevented from doing so. If drug users commit criminal offences, they should be treated in the same way as other offenders (Foddy & Savulescu, 2006a; Szasz, 1975). Some argue that coerced treatment does not work or can cause more harm than benefit (Wild, 2006).

In this chapter we address the following questions: can legal coercion be used ethically and effectively to treat drug addiction? If so, under what conditions is it ethical to do so? We begin by briefly reviewing the various ways in which coercion or compulsion may be used, and examine the ethical arguments offered in favour of the use of coerced treatment. We examine the plausibility of neurobiological explanations of addiction that have been used in recent years to justify forced addiction treatment. We then suggest some guidelines for the ethical use of coercion in the treatment of addiction, including compulsory treatment.

A taxonomy of coerced addiction treatment

A distinction is often drawn between voluntary (freely chosen) and involuntary (compelled) treatment of addiction. In reality, addicted persons rarely decide to enter treatment entirely freely. Internal forces (such as withdrawal symptoms) and external pressures from family and friends or workmates may prompt a decision to seek treatment. Coerced addiction treatment may vary in the amount of force used to encourage treatment entry and, therefore, the degree to which an individual’s liberty, freedom and autonomy is affected.²

Informal mild coercion includes social pressure from friends and family to enter treatment (Maddux, 1988). Social coercion can be an effective motivation to enter treatment (Wild et al., 1998). Addiction can place an enormous emotional and financial burden on families and friends so it is not surprising that loved ones motivate treatment seeking by highlighting the destructive impact of the person’s behaviour on the family. People with problematic drug use may not fully appreciate the impact that they are having on themselves or others. Social pressure from family and friends to cease drug use often provides the first external indication that drug use is problematic.

Unfortunately, for some people with long-term drug problems, important social ties have often been severed or no longer influence their lives. More formal types of coercion that do not involve the criminal justice system may come from employers who make it a condition of continued employment that an employee with a substance use disorder undergoes treatment. Formal non-criminal coercion by employers and other nongovernmental agencies, such as Employment Assistance Programs in the US, are negotiated between agencies or employers and the individual. The ethical guidelines for how these programs operate are codified in the appropriate laws (e.g., industrial relations, professional codes of conduct). Physicians may be required to undergo treatment for an addiction in order to retain their license to practice (McLellan et al., 2008).

While informal social coercion and formal non-criminal coercion represent very important drivers for entering treatment, they arguably raise fewer ethical issues in the treatment of dependence than legally mandated treatment. In both cases, the dependent person can either agree to treatment or suffer the threatened consequences, such as the loss of employment or relationship. The form of coercion that raises the ethical concerns that will be the topic for the remainder of this chapter is legal coercion, in which a person is either encouraged to enter treatment under the threat of imprisonment, or legal force is used to mandate the treatment of their addiction (Klag et al., 2005).

The form of legal coercion that has become increasingly popular within the criminal justice system is the use of diversionary programs that offer drug addicted offenders treatment as an alternative to imprisonment. This can occur at various stages in the criminal justice process (Pritchard et al., 2007). In the first instance, treatment may be offered before being charged by police; this is not an ideal method of coercion, because it falls outside judicial oversight. It is possible that relying on the discretion of police opens the way to individuals being coerced into treatment for reasons other than criminal behaviour, such as behaving in an unconventional way or being a member of a social minority (Hall, 1997).

Legally coerced treatment is most often advocated for persons either charged with, or convicted of, an offence to which their drug dependence has contributed. It is generally offered as an alternative to imprisonment in order to have legal sanctions deferred, reduced or lifted, or as a condition of parole (Klag et al., 2005; Rotgers, 1992). Suspension of legal sanctions is usually made conditional upon successful completion of a treatment program, with the penalty of imprisonment if the person fails to comply (Hall, 1997). Each of these forms of legally coerced treatment have different legal and social consequences for the offenders subjected to them, and they require varying degrees of deprivation of liberty, restraint and hardship.

The ethics of legally coerced treatment

A major justification for legally coerced addiction treatment is that treating addicted offenders will reduce the likelihood of reoffending (Chandler et al., 2009). The strongest evidence comes from the treatment of opioid dependence, where studies have shown that treatment of heroin addiction significantly reduces criminal behaviour while participants remain in treatment (Gerstein & Harwood, 1990). Similar (although less compelling) results are seen in people treated for alcohol and amphetamine dependence (Chandler et al., 2009). The use of drug treatment programs as an alternative to incarceration has also been motivated by the failure of prison terms to reduce drug use and drug-related crime, and by the over-representation of drug-dependent people in prisons (Hall, 1997).

The advent of HIV/AIDS provided an additional argument for treating drug addiction (Dolan et al., 1996). Keeping people who inject drugs out of prison reduces the transmission of infectious diseases such as HIV and the hepatitis C virus (HCV) while in detention and following release from prison. People who inject drugs in prison are at significantly increased risk of contracting bloodborne viruses – and potentially spreading the viruses to the wider population upon release – because of a lack of access to sterile injecting equipment in most prisons (Small et al., 2005; Wood et al., 2005). The incidence of HIV and HCV is also significantly higher in prison populations than the wider public (Dolan et al., 2006). The ethical, correctional and public health arguments for drug treatment under coercion are reinforced by the economic argument that it is less costly to treat drug-dependent offenders in the community than to imprison them (Gerstein & Harwood, 1990).

The public health and personal benefits of coerced treatment, however, are not sufficient to justify its use. Coerced treatment overrides an individual’s autonomous decision-making and this requires a strong ethical justification. Coerced treatment of addiction is often justified on the grounds that people with a drug addiction are unable to make a free decision about their drug use, by virtue of being addicted, and hence may be coerced into treatment because it is in their best interests, or for their ‘own good’. The use of paternalistically coerced treatment could be seen as justified if addicted individuals suffered from a condition that robbed them of their autonomy and impaired their capacity to choose not to use drugs. Developments in neuroscience research of addiction have been used to provide a neurobiological rationale for this view (Caplan, 2008; Charland, 2002; Cohen, 2002). We examine the impact of addiction on an individual’s auto...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of boxes
• List of contributors
• Coercive interventions in law and medicine: Setting the scene
• PART I: Examining foundations for coercive interventions in law and medicine
• PART II: Lives, bodies and voices - The material impacts and lived effects of coercion
• PART III: Regulating the production of ‘good’, ‘healthy’ and ‘meaningful’ lives
• PART IV: Paternalistic logics and their alternatives: interventions in ‘vulnerability’ and ‘risk’
• Index