Coercion versus something else?

 

My motivation for writing this post comes from recent activity on Twitter about “coercive care” in psychiatry and an opinion posted there by a psychiatrist suggesting that psychiatrists need to be aware of their role as an agent of the state when they are engaged in involuntary treatment. After seeing this I checked the literature and there were papers published on the subject – so I thought I would write a post about the issue – specifically whether coercion is an appropriate word to use and how it compares to involuntary treatment as a description and a concept.

I don’t consider the issue lightly.  For most of my career I have been in acute care settings that required knowledge and skill in negotiating involuntary care scenarios – specifically emergency holds, probate court holds, civil commitments, conservatorships, and guardianships. That involved hundreds of court appearances in 7 counties and 2 different states.  I also testified as an expert on the issue of prolonged state hospital stays for a patient advocacy organization and testified in both malpractice cases and a criminal responsibility case.  I have personally seen how local politics can affect the civil commitment and conservatorship laws to the point that they are actively ignored for various reasons. In that unstable landscape, the staff responsible for treating the patient needs to be very flexible and innovative to provide the necessary care.  The following graphics show what that care generally looks like.  It is a diagram of how involuntary treatment gets initiated and carried out.

The commonest path is that there is an incident in the community, emergency medical services are activated, and the patient is placed on a hold and transported to the emergency department (ED).  While there an ED physician and mental health clinician (typically a social worker) makes and assessment of the patient and determines if they can be discharged, admitted on a voluntary basis, or admitted on an emergency hold. 

Following the admission, the inpatient staff makes their respective assessments and typically discuss their findings and the plan in team meetings. If the patient was admitted on a timed hold (72 or 96 hours) and a determination is made that the patient cannot be treated on a voluntary basis prepetition screeners are contacted.  They come in and see the patient and collect more collateral information than the inpatient team has access to.  They compile this in a prepetition screening document and in a team meeting separate from the hospital staff (they are typically county employees) make a determination that the hold will be cancelled or they will refer the patient for further court intervention.  If they determine to not support the emergency hold, the patient is typically discharged and it is illegal for a physician to immediately place them on another emergency hold. If they are referred to the court a probable cause hearing is held.  At that point the judge can release the patient or refer for a final hearing.  Before any final hearing, 2 court appointed examiners (typically a psychiatrists or psychologists employed by the county) will see and assess the patient. They will testify in court and give specific treatment recommendations to the court – independent of the hospital staff charged with treating the patient. At the final hearing the patient can again be released with no court intervention based on a judge’s decision. They can also be court ordered to follow treatment recommendations including further hospitalization and medications.  Courts can also accept a stay of commitment – meaning that the patient is not formally ordered to accept treatment for a duration of time but they can accept treatment and follow up and if everything is going well at 6 months any involvement with the court self dismisses.  There is a similar intervention for persons who have been formally committed called a provisional discharge. In that case, the person is discharged with a plan to report back on outpatient progress. The structure of this process highlights the fact that no single person or discipline makes a decision about involuntary treatment. In addition, the statutory requirements for mental illness or substance abuse do not specify any particular diagnosis but depend on whether there is behavior that is self-endangering, harmful to others, or significantly affects the person’s ability to function in their own interest at the most basic level (adequate self-care in terms of food, housing, and addressing significant medical problems).

The question critical to this post is how is this process coercive rather than involuntary?  And is there a difference between those terms?   Just looking at standard definitions coercion is clearly more insidious and it implies malignant intent. The Webster’s definition is “to compel by force or intimidation; to bring about by force; to dominate or control esp. by exploiting fear, anxiety, etc.”  Using the same source, the definition of involuntary is “not voluntary, independent of one’s will.”  At this level, coercion is nothing medical staff are ever trained to do and in fact would constitute a violation of professional ethics.  In psychiatry, the training is focused on helping psychiatrists overcome standard biases that people experience when interacting with others who have clear problems with severe psychiatric disorders.  The entire focus of psychiatric training is developing a cooperative and helpful relationship.

What about legal definitions and statutes pertaining to coercion?  The legal definition of coercion is essentially the same as the dictionary definition:  Verbal and/or physical threats and other forms of intimidation in order to force someone to do something/not do something that they are otherwise legally allowed/not allowed to do.  Laws against coercion in federal statues range from the obvious forms like sex trafficking to threats of retaliation for political activity or exercising rights at work. In all of these cases, the victims of coercion are generally going to be capable of making decisions in their best interest but are unable to make willful decisions due to coercion.

It turns out that an entirely different level of analysis has been applied to the issue of coercion and psychiatric patients. That level of analysis is done by philosophers using thoughts about coercion from previous works on ethics.  For example, Schramme (2) expands arguments from Frankfurt’s work to discuss specific examples of coercion. He begins with the informed consent model.  I consider Gutheil and Appelbaum to be authoritative in this area and they discuss three elements of informed consent: information, voluntariness, and competence (3).  The adequate information is discussed from the perspective of a professional level of disclosure and also a “reasonable person” or the level of information that most people would expect. The expected information varies from state-to-state and in some cases for psychiatry there is a written information standard. For example, in the State of Minnesota, antipsychotic medication consent requires a signed consent form about those potential side effects.  Voluntariness means consent is freely given. It is often assumed that since psychiatric patients are generally considered to be vulnerable adults who may be dependent on institutions that this is a form of situational coercion. Gutheil and Appelbaum point out that this would in effect not recognize the decisions made by large numbers of people in institutions just because of the place they reside. They describe more clearcut and explicit forms of coercion such as threatening the loss of food or clothing if the patient does not follow recommended treatment. Competence means that the patient has mental capacity to understand the information presented and may a make a reasonable decision in order to give informed consent.  Psychiatric disorders can affect all three elements of informed consent.

The philosophical look at coercion is a bit more complex and it is selectively applied to the case of psychiatric care. Just looking at the demographics raises some questions.  There are 1.3 million people in the US under guardianship or conservatorship. At the same time there are 6.96 million people with dementia, 500,000 people with moderate to severe intellectual impairment, 36.25 million with subjective cognitive impairment, and an undetermined number of people with cognitive impairment and impaired capacity secondary to severe psychiatric disorders. Those numbers suggest that there are not nearly enough guardianships in place to provide substituted consent for people during medical emergencies.  In many jurisdictions guardianships and conservatorships have to be pursued by family and that often creates an undue financial burden. In the jurisdictions that actively ignore conservatorships and guardianships – persons needing them often incur unnecessary medical risk because treating physicians realize that they cannot accept their consent to procedures involving risk – like surgeries.

Schramme has analyzed the issue of coercion in the following ways. He breaks coercion down to threats and offers.  For the purpose of his discussion, he states that he is exclusively focused on autonomous choices that are contrary to the will of the patient.  These choices cannot be made under the influence of threats but he outlines 3 scenarios where informed consent is lacking:

1.  A patient is not able to give informed consent – I think he makes a critical mistake here by stating that most psychiatric patients are able to give consent and their capacity is not globally impaired.  It clearly depends on illness severity and the stage of treatment. Most forensic hospitals are charged with the task of restoring competency to mentally ill offenders so that they can proceed to trial.

2.  A patient disagrees with treatment and makes that known but he is forced to accept treatment anyway. The example given is a patient who if forced to take medication because he is potentially dangerous to others. Schramme depicts this as “a conflict between the patient’s will and the opinion of the doctor”.  But where does the dangerousness come in? Why is the patient unable to see that he is at risk from an extremely adverse outcome (aggression and long-term incarceration or injury and possible death due to a confrontation with the police) and not incorporate that into his refusal?

3. A patient passively complies with a treatment recommendation and does not make an overt decision. Schramme states that although this would not typically be considered as coercive treatment – it all depends on whether the consent is given freely or not. The implication is that passive consent is not necessarily informed consent.  Schramme invents the term “interactive coercion” to suggest that psychiatric patients can be coerced by the interpersonal relationship beyond what is typical of medical paternalism. That presupposes that either nonpsychiatric physicians do not have relationships with their patients, psychiatrists are masters at manipulating people, or some combination.

From that point he goes on to provide 3 examples of interactive coercion  

Case 1:  The psychiatrist predicts that “damage or harm” will occur if the patient does not follow certain course of action. This may or may not be coercion. Schramme gives the example of taking away the patient’s cigarettes or writing them a suboptimal report (the damage or harm) unless they comply with the prescribed course of action.  He acknowledges that harm can be predicted due to non-compliance and it may not be a threat but a natural consequence of untreated illness. Prediction of future causal events is a warning and not a threat hence no coercion (p. 360).  On the other hand, he suggests an “unusual” prediction such as electroconvulsive therapy (ECT) if the patient had no previous experience either it would constitute a threat.  The two necessary features for predicted harm to be a threat/coercion would be that it needs to be intentional and unusual.

Case 2: The psychiatrist proposes a “detrimental unusual consequence if the patient does not comply an example of effective threats as coercion. In this case, if the threats are ineffective, they are inconsequential, lead to no coerced decision. Schramme points out that “there is no rigid line between a threat and a warning”. He gives an example of a patient interpreting an action as a threat that may have had more to do with the social roles of patients and nurses on the ward.

Case 3: The psychiatrist offers a beneficial unusual consequence if the patient complies with a specific task. In this case there may be intermediate conditionals. For example, the patient may not be motivated or feel like socializing but forces themselves to do it anyway to get the offer.

Schramme introduces the idea of irresistible threats and offers at this point. An offer becomes irresistible when there is no other real alternative.  In this case even if the choice is voluntary, it can still be against one’s will.  The best example is substance use disorders where the person may not want to take the drug but acts on the drug as an irresistible offer rather than a preferred motivation to remain abstinent. This is an example of an offer that is irresistible and therefore coercive in that it they are against the will of the person.  This is not a hard rule and Schramme emphasizes that all offers are not bad and they depend on the subjective preferences of the patient.  He goes on to develop the idea that “manipulation and coercion – at least in psychiatric hospitals – do not only stem from predicted consequences which bring people to do A, namely that they to prevent bad things from happening.” (p. 367). Instead, he defines it as “an influence on the autonomous will of the patient and not on the welfare of a person”.  He closes by pointing out that institutional and interpersonal dependencies can also result in irresistible offers to psychiatric patients.  He cites some examples that today are irrelevant or exaggerated. For example – giving a patient cigarettes if they take a medication or the offer of a “good report” for group attendance.  I have not observed either of these happening on inpatient units over the course of my career even when smoking was allowed on inpatient units.  Even so, Schramme concludes that these coercive offers are not necessarily morally wrong because “it might be good to sacrifice the freedom of the patient for the sake of his well-being.” (p. 368).  That is more than a trivial distinction and I would argue is the basis of both civil commitment and guardianship or conservatorship.

Szmukler and Appelbaum (4) reviewed the coercion literature to date and described their own approach to the issue of coercion. Their first step was noting that coercion was a loaded term and describing a graduated systems of treatment pressures including:

(1) persuasion

(2) interpersonal leverage

(3) inducements

(4) threats

(5) compulsory treatment (in the community or as an inpatient).

They provide an example of a community psychiatric nurse following a patient in the community and how each of these pressures may work. They develop models based on paternalism and capacity/best interests.  Their definition of paternalism based on previous research is given as:

“…a person is acting paternalistically towards another if his action benefits the other; his action involves violating a moral rule with regard to the other; his action does not have the other's past, present, or immediately forthcoming consent, and the person believes he or she can make his or her own decision on the matter. A paternalistic act requires justification because it involves the violation of a moral rule but with the intention of preventing a harm to the person.” (p. 240)

A series of questions is provided to answer whether or not a paternalistic intervention is indicted.  Answering those questions for a typical emergency admission to an inpatient setting is typically balancing the deprivation of personal liberty against death and disability.  More subtle tradeoffs don’t end up as admissions to inpatient units.

A capacity/best interest analysis is just the way it sounds.  The patient has impaired decision making and is not able to make decisions in their best interest. Best interest has a degree of subjectivity but the authors describe some general guidelines based on previous work. The authors suggest that clinicians need a consistent ethical framework for approaching these problems that is as rigorous as the typical technical frameworks they use in practice.  

“Protection of others” is described as a more difficult problem for Szmukler and Appelbaum largely because of the subjectivity involved. They discuss for example the low percentages of patients with mental illness who are aggressive and the impossibility of prediction. They do not mention that a number of features (acute care settings, acute threats, history of violence/aggression, psychosis, pooling of cases, access to weapons) may greatly increase risk but they are writing from the perspective of community rather than inpatient care. They make an interesting comment: “Mental health professionals may accept an obligation to notify appropriate authorities if there is a serious risk of harm to others, but what is serious and who should instigate or implement coercive responses is a matter for debate.”  (p. 242). My understanding is that there is a duty to warn in every state and the clinician not only needs to make a good faith effort to contact the potential victim and take what other steps may be necessary (eg. calling the police) to protect that person.

With that review, what assures that the term coercion is not just another term used to inappropriately criticize monolithic psychiatry?  The standard dictionary definitions implying malignant intent is certainly consistent with inappropriate criticism.  Schramme acknowledges that there are situations where informed consent cannot occur due to a lack of capacity but goes on to elaborate on treatment refusal where there is probably lack of capacity and consent where the patient interactively coerced by institutional or interpersonal scenarios.  There is a high degree of subjectivity involved in the interactive coercion scenarios.  Schramme seems to approach the problem hypothetically rather than interactively. For example, as a clinical psychiatrist why would I ask if the patient was perceiving a warning or a threat – I would just ask them. In many cases agitated and paranoid patients are spontaneously accusing staff of threats and malignant intent before any assessment or conversation has occurred.

The best way I can think of how to proceed is to post a vignette – in the standard way that they are posted these days – a composite of features noted over the course of 25 years and not any specific patient:

 

Case Vignette

 28-year-old man with schizophrenia and Diabetes Mellitus Type 1 since age 8. He stopped treatment for schizophrenia a year ago. Since then, he has been hospitalized for recurrent diabetic ketoacidosis (DKA) four times and the consult-liaison (C-L) team has noticed progressive cognitive problems. He is discovered by the police in a park at night. The air temp is -5°F/-20°C and he was not wearing adequate clothing (no jacket, caps or gloves). In the ED he is noted to have a frostbite injury of his feet and hands. He requests immediate discharge and states that he will follow up with medical and surgical care on an outpatient basis. He refuses to consider psychiatric care. He denies any hallucinations or delusions.  He is admitted to the burn unit on a 72 hour hold by the ED physician.  Is this coercion?

He is seen the next day by the C-L team. He has some mild cognitive impairment and memory problems.  He is detached and not saying much about why he was hospitalized. His affect is restricted but he does not appear to be depressed. He is requesting discharge but has no clear plan of what he will do when he leaves.  When asked about the diabetes mellitus diagnosis he replies: “I can’t have it because I don’t have a pancreas.”  The C-L team recommends referral to inpatient psychiatry and proceeding with a probate court referral.  The team speaks to a family member there who talks at length about the family’s concern for the patient’s safety and their relief that he is hospitalized. Is this coercion?

This is a realistic description of how patients are admitted to acute care hospitals. The police officers in this case call EMS and the patient is assessed by paramedics. The patient is taken to a local emergency department where he is seen by a physician and a social worker and admitted. In this case an involuntary hold is initiated by the police or by the ED physician. A psychiatric diagnosis per se is not required since the statutory definitions of mental illness are based on impaired judgement that endanger the person or their health.  Independently 6 people (none of whom were psychiatrists) agreed those conditions existed.

He is seen and treated by surgery staff. He passively goes along with treatment but there are obvious concerns about his capacity. Is this a case of “interactive coercion” by surgical staff per Schramme’s formulation? He is non-disclosing with psychiatry staff but the key observation is that he no longer believes he has diabetes because he no longer has a pancreas.  This is not a basis for adequate medical decision making or self-care and that is further documented by his 4 episodes of diabetic ketoacidosis, continued inability to manage this condition and the question of cognitive impairment after episodes of coma. This patient is referred for civil commitment and will be seen by pre-petition screeners (typically one screener but a team of 4-5 people make the decision), a defense attorney, 2 court appointed examiners, and a probate court judge.  A total of about 9 people are involved in a process to determine if the patient meets statutory requirements for civil commitment and whether treatment should be court ordered.

Looking at the formulations of both Schramme and Szmukler and Appelbaum is instructive.  The probate court proceeding that I describe is clearly a safeguarded capacity/best interest scenario. The patient clearly lacks the capacity to make an informed decision and consent on the basis that he no longer recognizes that he has diabetes or that it needs to be treated despite life threatening consequences. It is very clear that he would not get adequate treatment of diabetes or the frostbite injuries if he was not hospitalized, observed, and actively treated. By their formulation they would say that maximum treatment pressure is exerted by compulsory treatment. In the final analysis, the ethical issue is that the patient is being deprived of his right to continue to wander the streets without adequate clothing or medical treatment for the compulsory treatment.  Apart from a magical immediate restoration of capacity is there a better short-term solution that is better designed to protect his rights? I don’t see any.

An additional consideration is the issue of agency on the part of the inpatient psychiatrist.  That psychiatrist has a fiduciary responsibility to the patient. That involves discussing all relevant aspects of diagnosis and treatment with the patient, including the concerns about his ability to care for himself. Is that psychiatrist and agent of the state or as some philosophers like to put it – the will of the state is being enacted though that psychiatrist? Definitely not and here is why – the will of the state is transacted through the commitment court and all of those personnel.  The treating psychiatrist is unnecessary for the commitment proceeding and the court is focused on what their examiners conclude.  Psychiatrists have no personal stake in whether somebody is detained in a hospital by a court order. In fact, without a court order it is an unlawful detention subject to both criminal and civil penalties.  Over the years I have had to discharge many people because the court did not produce a timely court order or decided to release the patient.  Further, in the actual hearing the opinions of the court examiners are the ones the judges depend on. The only interest of the inpatient psychiatrist is making an accurate assessment, making sure all of the patient’s medical problems are treated, and making the optimal recommendations for medical and psychiatric care. The inpatient psychiatrist is also talking with the patient on a daily basis assessing progress and attempting to establish a good working relationship with the patient whether or not a court hold is in place or not. That working relationship is possible when the patient recognizes that there is no adversarial relationship with the inpatient psychiatrist. In fact, the treatment of patients on court holds should be indistinguishable from voluntary patients.

By Schramme’s formulation that patient is not a competent consenter. As noted about his passive cooperation with the burn surgeons, endocrinology, and the inpatient psychiatrist might be construed as interactive coercion. There is also a chance that it might not be according to these definitions because the psychiatrist is discussing adverse outcome with the patient but the discussion is based on what has happened many times already.  Even with compromised cognitive capacity the patient is able to acknowledge this and the fact that he does not want to end up in a coma in the ICU gain. Another important aspect of these discussions is the psychiatrist is very neutral and not reactive or blaming. They are a sincere expression of concern given everything that is going on an what has happened to the patient.

A final consideration here is that both philosophical and legal approaches to involuntary treatment probably do not capture what is really happening. For example the will  or the autonomous will is the focus of both the coercion and the involuntary treatment discussion.  Reading though any paper on the will, illustrates that it is a vague, changeable, and completely subjective concept.  It is also not constant over time. When philosophers like Schramme write about it – the are typically referring to an individual and not a class of people. It makes more sense to talk about a person’s conscious state rather than an isolated will.  Conscious states are complex and multidimensional (6).  Even though they cannot be accurately measured at this point – on a clinical basis it can easily be observed that conscious states can change from being adept at self-care and day to day living to states where inadequate self-care becomes self-endangering. It makes very little sense to think that the will or autonomous will of a person experiencing a major psychiatric illness is constant over time. The goal of treatment ideally is to restore the autonomous will and assist the patient with getting back to their baseline.  I have had that confirmed many times by people who benefitted from that process.

 

George Dawson, MD, DFAPA  

 

References:

1:  Bureau of Labor Statistics. Occupational Employment and Wages, May 2020 29-1223 Psychiatrists https://www.bls.gov/oes/current/oes291223.htm

2:  Schramme T.  Coercive threats and offers in psychiatry. In. Schramme T, Thome J (eds). Philosophy and Psychiatry. Walter de Gruyter; New York; 2004: 357-369.

3:  Gutheil TG, Appelbaum PS.  Clinical Handbook of Psychiatry and the Law, 3^rd edition. Lippincott, Williams, and Wilkins, New York; 2000; p. 153-162.

4:  Szmukler G, Appelbaum PS. Treatment pressures, leverage, coercion, and compulsion in mental health care, Journal of Mental Health. 2000 17:3, 233-244, DOI: 10.1080/09638230802052203

5:  Walter J. Consciousness as a multidimensional phenomenon: implications for the assessment of disorders of consciousness. Neurosci Conscious. 2021 Dec 30;2021(2):niab047. doi: 10.1093/nc/niab047. PMID: 34992792; PMCID: PMC8716840.

 

Supplementary 1:  Workforce exposed to involuntary treatment scenarios:

There are an estimate 30,451 working psychiatrists in the United States. According to the Bureau of Labor Statistics 25,540 are employed and the rest are self-employed.  Since it is very likely that acute care psychiatrists are employed by hospitals 4,160 are in General Medical and Surgical Hospitals and 3,550 are in Psychiatric and Substance Use Hospitals. There are currently 37,400 members in the American Psychiatric Association and that number may reflect researchers and the retired.  The total pool of psychiatrists who might be involved at some level in involuntary treatment is about 7,710 from the acute care setting but that is likely a gross overestimate for several reasons. First, not all acute care settings treat people on an involuntary basis. In any metro area emergency medical services (EMS) generally brings the patients to only those hospitals who can provide the full array of emergency services. Second, even among psychiatrists employed in hospitals only a small percentage of them will provide direct care to patients who are there on an involuntary basis. Third, there are very few free-standing psychiatric hospitals or substance use facilities that accept anyone on an involuntary basis. It is very likely that less than 10% of the psychiatric workforce ever provides treatment to people on an involuntary basis.   

Supplementary 2: Graphic modification to show the emergency hold and probate court hold

Supplementary 3:  Historical note

Although the patient is clearly safeguarded in the above process - some people might ask themselves: "Why don't we just abolish involuntary treatment and let things revert back to the way it was?"  It would certainly make things a lot easier for psychiatrists. The short answer is that it is inhumane to people with severe mental illness and their families.  The families are typically omitted from any discussion of involuntary treatment but historically they were charged with trying to contain a family member with severe problems.  Patients in those situations often had catastrophic outcomes and even if they did not entire generations of family members were adversely affected by single family members with severe mental illness.  That history is out there but it is difficult to find probably because of the stigma associated with those disclosures.