Commentary on "Who Should be Committable?"

Michael Lavin's eloquently argued plea for United States commitment criteria securely grounded on incompetency and treatability will strike a chord with the British reader. Interestingly a somewhat similar case for reform of mental health law on this side of the Atlantic has been recently summed up by a medical lawyer, Price (1994). Price argues, however, not for outright abolition of commitment on grounds of dangerousness, but for a clear dichotomy between parens patriae powers to confine a person in her own interests and police powers to confine those who pose a risk to society. The convergence and divergence in the current state of the law in the U.S. and the U.K., and between Lavin and Price in their respective calls for law reform, raise questions of interest to psychiatrists, ethicists, and lawyers alike.

Central to Lavin's case for his preferable commitment criteria is the anomaly that albeit a competent patient may be involuntarily committed to hospital in the U.S. on the O'Connor criteria, he still may refuse treatment for the condition deemed to warrant his detention. He is in effect imprisoned. Section 63 of the Mental Health Act 1983 seeks to avoid in part such a result where detention in hospital becomes no more than confinement. It provides that the consent of a patient detained under the act may be dispensed with in respect of psychiatric treatment for the mental disorder responsible for his detention. Certain forms of treatment—such as psychosurgery, electroconvulsive therapy, and long-term medication—are subject to special safeguards outlined in sections 57 and 58 of the act. The principle, however, is clear. If an individual's mental disorder justifies depriving her of her liberty, it justifies too any treatment available to ameliorate the disorder and enhance the prospect of restoring the patient's liberty.

The link between treatability and detention is clearly more central to the current British commitment criteria. In the case of psychopathic disorder and mental impairment that is not severe, treatability is a condition for detention. Dangerousness alone is not enough whether the danger is posed to self or others. Nonetheless in England, as in the U.S., patients who are untreatable may be committed. Section 3 of the 1983 Act allows for the compulsory detention of a patient suffering from mental illness or severe mental impairment even though no effective treatment is available. Mental illness remains both the most common ground for detention under the act and lacks any statutory definition. The broad discretion to determine who is "mad" is much criticized by Price and Hoggett (1990). Patients in the U.K. as in the U.S. may be locked up, yet receive no effective medical care. Lavin and Price would restrict civil commitment criteria to embrace only the incompetent, treatable patient.

The patient who is treatable and competent, both authors argue, should retain the same freedom to choose whether to opt for treatment available to the patient suffering from physical illness. The mentally ill should not be discriminated against in terms of restrictions on autonomy. Price endorses Campbell and Heginbotham's (1991) condemnation of selective paternalism. The potential class of patients at risk of civil commitment for mental illness shrinks dramatically, or does it?

The ultimate effect of Lavin's proposals depends very much on his definition of competency. The threshold for competency in relation to treatment for physical ills in the United Kingdom today is low. It is enough that the patient understands in broad terms what it is proposed to do for him and why, and comprehends something of the consequences of refusing treatment. A rather higher and more demanding standard is set in the Mental Health Act Code of Practice itself. Lavin endorses Buchanan and Brock's (1989) analysis of competency. Their criteria add to the basic threshold of comprehension powers of deliberation and possession of a stable set of authentic values. His cogent examination of the impact of mental illness on rationality and values enables Lavin to conclude that many patients with mental illnesses thus will fail to meet the required level of competency. Might several of us at...