Mental health articles

OF mental health care and mentally ill

Legal versus medical control of madness

During the early nineteenth century, in Britain as well as other emerging capitalist economies in Europe and North America, the systematic control of madness began. The system involved the State setting out laws and prompting, or prescribing, public spending on asylums. The building of county and borough asylums was encouraged by the County Asylums Act of 1808. These suggestions were made mandatory by the Lunacy Act of 1845, which led to a rapid enlargement of the State asylum system. This system came to displace a very varied picture of control. Prior to 1845, lunatics were dispersed in a range of places – small private madhouses, bridewells, poor houses and workhouses. This dispersal was unregulated and cases were not systematically recorded (Donelly 1983).

The Lunacy Act 1890 prescribed that admissions to hospitals and treatment would be governed by statute. It also ensured that the control and supervision of inmates would be overseen by government bodies. At first during the twentieth century, such safeguards and powers increasingly involved the legal profession. But later, diagnosis and admission were seen primarily as the concern of the medical profession. This is the viewpoint underlying both the Mental Health Act 1959 and, in a softened form, the current British legislation, the Mental Health Act 1983. Historically, legalism has been used to counter what have been viewed as the deficits of medical management. Similarly, the assertion of a medical view of mental disorder has been resorted to at times when legalism was considered to have failed. The tension between legalism and medical control permeates the implementation of mental health legislation. This is true of both civil compulsory admissions of non-offender patients and mentally disordered offenders. It is not only the psychiatric profession that has resisted the intrusion of law into its work.

The use of the law in the mental health area has also been criticized by some social scientists. For example, Jones (1960), a prominent social policy analyst, argued that there are severe limits to what the law can achieve in mental health services. Jones considered that good practice is likely to be fostered through adequate resource allocation and the development of professional norms and values. She believed that the latter would enhance the appropriate attitudes, skills and treatments needed for the compassionate management of mentally disordered people and inter-professional cooperation. A strict legal framework might inhibit this process. Thus, the use of the law in her view should only be as a last resort.

From a different standpoint, Rose (1986) has argued that legalism is just another form of control that does not ultimately benefit the patient. Instead, he argues that not only does legalism not constrain psychiatric discretion but it also disguises the wider political context of the delivery of mental health services and thereby depoliticizes the debate over how psychiatry is organized and operates: ‘legality is merely one mode of regulation and body of professional expertise amongst others, neither conceptually more rigorous, nor necessarily more effective in bringing power to account’ (p. 209). Rose’s criticism centres on the tendency of legal measures to individualize problems. Legalism has had a chequered history with regard to fostering positive values about mental abnormality. The Lunacy Act 1890, for example, led to wide-scale stigma around madness and ‘certification’, because it allowed only for the forced admission of people to mental asylums via the courts.

The Mental Treatment Act 1930 attempted to rectify this by introducing the possibility of voluntary admission to hospital, which, it is argued, fostered a more sympathetic attitude to emotional deviance. Bean (1980) found that, under the Mental Health Act 1959, which represented a swing back from a legal to a medical control, there was an absence of adequate checks and control mechanisms. Over-zealous psychiatrists sometimes placed patients in a vulnerable position by permitting them to be deprived of their liberty for considerable periods of time. Bean related this to the nature of therapeutic law with its open-ended clauses and standards, which leads to a tendency towards ad hoc rule enforcement and the playing down of the importance of general rules. In other words, where there is a clash between the views of medicine and legal requirements, medical demands tend to be privileged.

Over the last two decades there has been a global trend towards balancing the medical dominance of therapeutic law with a greater legal presence with a view to giving greater weight to the individual rights of patients. A recent ethnographic study carried out in Sweden examining such arrangements seems to suggest that nothing much changes when the legal role is formally extended. Psychiatric norms and values still dominate patient–professional inter-action and the outcome of assessments. Even in a legally dominated context those with mental health problems are treated as patients rather than adverse parties and there is an inbuilt bias to the proceedings – it is assumed from the beginning that they are mentally ill. There is a tendency for their credibility to be viewed as suspect and expressions of ‘sane’ behaviour are seen as a temporary effort at self-composure. Where mental health is concerned, an informal atmosphere is often adopted which is atypical of other legal proceedings. This further militates against a view of the patient as a valid legal party.

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