Depressive psychosis, involuntary ECT and human rights

Dr Brendan Kelly writes that removing the possibility of involuntary electro-convulsive therapy for patients with severe mental illness may be a violation of their rights to medical care — and even their right to life

Mental illness is a growing global challenge. The World Health Organization reports that depression, alcohol disorders, schizophrenia and bipolar affective disorder (manic depression) are among the top ten causes of years lived with disability amongst adults.
For adults under the age of 44 years, these four disorders are in the top five. In Europe, suicide is the second most common cause of death among 15-to-34-year-olds, and in China it is the leading cause.
The human suffering caused by mental illnesses, such as depression, is enormous and includes not only the distress felt by individuals themselves, but also the distress of their families and friends, societal concern at rates of suicide and the individual’s unfulfilled potential as a result of untreated mental illness and psychological distress.
Level of distress
The effects of social stigma and self stigma frequently compound this suffering even further, resulting in a level of distress that is as far-reaching as it is difficult to measure.
In some ways, it is easier to measure the economic impact of mental illness: one study estimates that the annual cost of mental health problems in Ireland exceeds €3 billion, including just over €1 billion for the cost of healthcare, social care and other forms of direct care, and over €2 billion attributable to lost economic output (E. O’Shea and B. Kennelly, NUI Galway/Mental Health Commission).
This is an enormous loss to the Irish economy – a loss that is exceeded only by the incalculable personal suffering of individuals with mental illness and their families.
Mental health services
In order to address this prob-lem, Ireland clearly requires mental health services that are effective, efficient, equitable and acceptable to those who need them. A detailed blueprint for such services was outlined by the Government twice in the past three decades, in Planning for the Future (1984) and A Vision for Change (2006).
Regrettably, the priority accorded to mental health appears to have dropped steadily over this period: in 1966, 23 per cent of Ireland’s health budget was devoted to mental health; by 1984, this had fallen to 14 per cent and in 2009, it was to fall to less than 7 per cent.
Notwithstanding these statistics, there was a significant positive indicator for mental health services in the recent Budget speech by the Minister for Finance, Brian Lenihan, who singled out mental health for particular mention:
“I want to draw particular attention to an initiative in the health sector. I’m providing for a multi-annual investment programme in important mental health projects that are in line with the strategy set out in A Vision for Change.
“This investment programme will be funded from the sale of surplus HSE assets and I’m allocating an additional amount of €43 million for this purpose in 2010. Further funding for mental health will be provided as asset sales allow.”
This needs to happen. The irony is that mental healthcare is not only effective in reducing individual suffering, but is also cost-effective: in the United Kingdom, Richard Layard points out that a course of psychological treatment for anxiety or depression costs approximately €874 and, as well as reducing the individual’s troubling symptoms, such treatment greatly increases the possibility of a return to work, resulting in an average increased economic output of €2,190 per person, within two years (BMJ 2006; 332: 1030).
On this basis, this particular form of mental healthcare will reduce the individual’s symptoms, pay for itself within two years and increase economic output for society as a whole.
The primary reason for focusing on mental health is, of course, to alleviate the psychological distress of individuals with mental illness and their families.
Economic difficulties
However, given Ireland’s current economic difficulties, there is also a clear economic argument that we can no longer afford to ignore the problems associated with mental ill health.
Another reason why the area of mental health requires particular attention on an ongoing basis stems from the need for effective and just legislation to govern involuntary treatment processes and continuously improve standards of care.
The most significant development in this area in the past 50 years has been the implementation of the Mental Health Act 2001, which established the Mental Health Commission to oversee standards of care (www.mhcirl.ie) and revised the process of involuntary admission.
While the legislation is undoubtedly imperfect in a number of ways, the Mental Health Act 2001 has brought Irish mental health legislation into much greater accordance with the European Convention on Human Rights and Fundamental Freedoms (ECHR) and the United Nations’ Principles for the Protection of Persons with Mental Illness.
The Mental Health Act 2001 requires that, if an individual is to become an involuntary patient, they must fulfill a precise set of legal and clinical criteria; an application for involuntary admission must be made (e.g. by a family member); a clinical recommendation made by an independent doctor (e.g. general practitioner); and an admission order made by a consultant psychiatrist. The patient is examined by an independent consultant psychiatrist assigned by the Mental Health Commission, which also organises a mental health tribunal, to affirm or revoke the admission order.
Mental health tribunals are independent bodies that make their decisions by majority voting; the majority of individuals on each tribunal are not doctors or psychiatrists.
This procedure is consistent with the ECHR, which states that ‘no one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law’, including ‘the lawful detention…of persons of unsound mind’ (article 5).
Moreover, ‘everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful’.
Mental Health Act
The Mental Health Act 2001 permits such detention for individuals with mental illness under specific circumstances; independent mental health tribunals are held to determine the lawfulness of detentions; and, after multiple High and Supreme Court cases, the Mental Health Act 2001 has not been declared incompatible with the ECHR.
Involuntary treatment with electro-convulsive therapy (ECT) is very rarely required but can be a potentially life-saving treatment of last resort; e.g. for an individual with depressive psychosis who is unable to accept any form of treatment whatsoever, unable to speak, neither eating nor drinking, experiencing multi-organ failure, incontinent of urine and faeces, in serious and immediate danger of death, and whose distraught family is imploring the treating team not to let him or her die.
Such individuals would almost certainly have benefitted from other forms of treatment (e.g. psychotherapy) at an earlier stage, but some only present at more advanced stages, such as depressive psychosis.
If it is proposed that such a gravely ill, incapacitated patient would benefit from involuntary ECT, the patient must not only have gone through the involuntary admission process, but also needs to fulfill a further set of criteria for ECT and undergo another independent medical examination by another independent psychiatrist.
Life-threatening
The vast majority of cases of depressive psychosis do not reach a level of severity that results in incapacity and a need for involuntary ECT, but for the tiny minority that does, the situation is life-threatening.
Their lack of capacity makes this group especially vulnerable: this is currently addressed through the clear articulation of a legal framework for their treatment under the Mental Health Act 2001, which also requires that the State appoint an independent legal advisor to represent each patient. If the patient lacks capacity to instruct, the legal representative is obliged to act in the best interests of the patient, not the State.
This tiny, voiceless, vulnerable group of individuals who are incapacitated by life-threatening mental illness is possibly the most misunderstood, stigmatised, neglected and forgotten minority in our entire society. Their lack of capacity places their interests and wellbeing in the hands of the State, on a temporary basis.
The desperate plight and the very existence of this minority of patients is commonly forgotten by those who are unfamiliar with the full range of psychiatric presentations in general hospitals, those who work solely with out-patient populations and those who provide treatments only to patients who fulfill certain criteria (e.g. possess capacity, or ability to pay).
It is generic psychiatry services that invariably treat this minority of patients, as they present in various states of extremis and incapacity, through the emergency departments or medical wards of general hospitals, with myriad life-threatening physical complications of mental illness.
Right to life
There are currently proposals to remove the possibility of involuntary ECT for this group. This would mean that individuals who lack capacity as a result of severe mental illness would be denied access to a specific treatment procedure solely on the grounds that they are temporarily incapacitated; if they had retained capacity, the treatment would be available to them.
This appears to be simple discrimination on the basis of capacity, and may also represent a violation of article 25 of the Universal Declaration of Human Rights: the right to medical care.
Even more seriously, denying potentially life-saving treatment of last resort to certain incapacitated, gravely ill patients may also represent a violation of article 2 of the ECHR: the right to life.
Dr Brendan Kelly is a Consultant Psychiatrist at the Mater Misericordiae University Hospital and Senior Lecturer in Psychiatry at UCD