The Spurning of Knowledge at Mental Health Tribunals: Personal Reflections

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I have had several psychiatric admissions to hospital over the last fifteen years, and been given a diagnosis of a bipolar disorder. And I have been both helped and harmed by the mental health system. In this blog I will describe experiences of having my wishes about use of psychiatric drugs considered at Tribunal hearings associated with my hospital admissions.

I have taken, and been grateful for, prescribed drugs when I have been unwell; however, my informed decision to decline ‘prophylactic’ use has, until recently, not been routinely respected, to the detriment of my well-being, both physically and mentally. Over the years I have experienced numerous effects that I perceive as being associated with the drugs, including thoughts of suicide, uncontrollable foot, lip and tongue movements, tremor, breathing irregularities, akathisia, sexual dysfunction, optical nystagmus, lethargy, skin lesions and drooling.

Members of Tribunal panels that I’ve attended have authorised the legal imposition of the drugs on me, contributing to the unwanted physical effects, and causing me to constantly dread any future involvement with one.

Ostensibly, I have had fair opportunity to have my views represented at these Tribunals. However, I would like to present a view of occurrences at them, through the lens of a concept called ‘Epistemic Injustice’, that highlights some serious problematic and systemic issues.

Epistemic Injustice is a term coined by philosopher Miranda Fricker to describe what happens when someone is ‘wronged specifically in (their) capacity as a knower’ (1) This can happen because of who they are – for example, someone with the identity of ‘psychiatric patient’ is likely to be seen as less able to know what interventions are good for them, simply because of their identity status. As a result, their statements may be dismissed without due consideration, and this is described as a particular kind of epistemic injustice, called ‘testimonial injustice’. They may also have less access to essential knowledge, and be less confident in the first place, because they are part of a marginalised group, and this is consistent with what Fricker refers to as ‘hermeneutical injustice.’

A number of authors have written of Epistemic Injustice in relation to practices in health care generally (3), and some specifically in relation to mental health (4) (5). Here, I will illustrate how it has influenced interpretation of evidence supplied by me to Tribunal panels, when The Mental Health Act (6) has been applied.

The term ‘heuristics’ refers to the short cuts that we use to make spontaneous assessments when we engage with a speaker; and particularly during a first, or single, meeting. This use of stereotype may be valid, or it may be misleading. When it is misleading it can contribute to instances of Epistemic Injustice, and I believe it has been a key factor in each of the five Tribunals that I’ve attended.

At all of them, I have been asked to respond to whether I consider that each of five ‘criteria to be met’ for compulsory treatment are applicable to me. If panel members conclude from proceedings that they are, then enforced treatment may be given.

The first criterion is whether I do, in fact, have a mental disorder. There is a binary choice. If I don’t recognise up front that I have recently experienced psychosis, my credibility as a speaker is immediately diminished, given that I have been in hospital, and treated effectively with psychiatric drugs. However, like an athlete who has broken his leg on more than one occasion, and doesn’t consider himself to constantly, and primarily, fit into the category of ‘people who have a broken leg’, most of the time I do not experience what is referred to as ‘mental illness’ in my life, and I have long periods when I am well. How I identify with respect to my diagnosis of illness is more nuanced than the Tribunal structure allows me to represent; and so, I am obliged to identify as someone with a mental disorder, reinforcing the shared collective perception, both of my social type, and of the notion of an illness.

The second criterion addresses whether treatment is available for the ‘disorder’. A number of features apply here. There is a serious deficit in the process, as the law makes no reference to a requirement for panel members to address perceived harms associated with any treatment. There is no formal consideration of testimony about adverse effects, and at Tribunals I have attended, although members will listen politely when the subject is raised, it is not given serious consideration: reported benefits by the psychiatrist have invariably carried more weight. For example, one Tribunal report reframed my report of ‘horrendous’ effects as ‘debilitating’, and considered that more ‘benefit’ would be obtained if I were to be forced to take the medication ‘that is likely to keep him well.’ These instances are consistent with panel members applying a credibility deficit to me, due to my identity as ‘someone with a mental disorder’, and a credibility excess to the views of psychiatrists, due to their status as a doctor, with respect to what conditions might be considered to constitute a state of ‘wellness’. The structural deficit, combined with applied biases, ensures that no meaningful challenges to the psychiatrists’ views can occur.

Another of the criteria requires panel members to assess risk to me or others. I have relevant practical expertise in this area, having developed and implemented risk management procedures in medical devices manufacture. At one tribunal I presented evidence about basic models of risk assessment that allow for consideration of the potential frequency of the perceived risk, and the potential severity of the risk. I suggested that the Mental Health Officer’s refusal to work with me on the use of such a model (it was dismissed as ‘too academic’) before the tribunal was a missed opportunity to allow the process of risk evaluation to be improved. There appeared to be little awareness of panel members of the existence of such models, and I was unable to participate to any useful extent in sharing knowledge that I had about a valid means of conducting an assessment. Fricker describes such events as being a common feature of testimonial injustice; being barred from entry to the ‘community of informants’.

Further examples of testimonial injustice occurred in the failure of psychiatrists and Tribunal panel members to adequately consider my written advance statement, prepared when I was well, instead imposing unwanted treatment. My statement was in place prior to three of my Tribunals.

The report from the first acknowledges that ‘The Tribunal had before it …an advance statement by the patient…’, but there is no evidence that the statement was given any consideration in reaching a judgement.

The second report states ‘The patient has an advance statement which was lodged with the Tribunal and parties’. There is a further oblique reference stating that ‘After considering the written and oral evidence…’ but details of how it was considered and the influence on the decision are not provided.

The third report begins more promisingly by acknowledging details of information presented in my advance statement: ‘The patient had made an advance statement. In this he states that he would not wish to receive medication beyond four weeks after treatment of a relapse of his mental illness. Were the Compulsory Treatment Order to be extended, further medical treatment would be authorised in contradiction to the patient’s stated wishes. Fundamentally the patient objects to long term treatment with antipsychotic medication, which he feels has diminished his quality of life through unacceptable side effects. He acknowledges the benefit of, and is willing to accept, short term medical treatment when he experiences a relapse of his mental illness’. I had indicated, both prior to, and during, the Tribunal, the devastating effects of medication on my life. But the report goes on to accept a psychiatrist’s opinion about my quality of life over my own opinion. The psychiatrist’s stated reasons were accepted and there was inadequate interest in what was important to me, as this extract from the Tribunal report shows:

‘The (psychiatrist) had offered to reduce the dosage of (the) medication, in deference to the patient’s complaints about side effects. Initially the patient had refused this, much to the puzzlement of the doctor, but during the hearing today he appeared to agree to such a reduction. The (psychiatrist) acknowledged the patient’s side effects but was clear in his view that without regular medication there was significant risk to the patient which far outweighed the side effects in terms of potential loss of quality of life. His life chances and quality of life had already been severely adversely affected by his illness, his relapses and his hospital admissions. The Tribunal agreed with the doctor in this rounded view. It decided that the extension of the Compulsory Treatment Order and therefore medical treatment in the community held the best and least restrictive prospect for the patient’s continued stable mental health.’

Other instances of psychiatrists being afforded an excess of credibility at Tribunals occurred when, at one, false information that negatively misrepresented my out-patient appointment attendance record was presented and accepted; and at another, an interruption to refute my spoken evidence regarding the presence of dopamine receptors in areas of the body other than the brain, was accepted. Both Tribunal reports stated that ‘the Tribunal accepted the evidence of all the aforesaid professional witnesses as credible and reliable’. The Mental Health Act has no requirement for the Tribunal panel to record their view of the credibility and reliability of my evidence.

In summary, identity power imbalances have operated, facilitated by the legal structure of the Mental Health Act, to control whose contributions were worthy of consideration. Identity prejudice has worked in advance of the Tribunal to adversely impact any hope of a fair testimonial exchange by undermining my credibility to an extent that even my views on what is important to my own quality of life were effectively not considered. Panel members have made unduly deflated judgements of my credibility, thus missing out on knowledge; and I have been wrongfully and unethically undermined in my capacity as a knower.

I believe that as consequence of experiencing these forms of epistemic injustice, there have been serious consequences for both my physical and emotional wellbeing. I am constantly having to self-appraise my views to defend against coercive health care practices, and have developed a personal identity that is overly, but necessarily, defensive.

To conclude more positively, Fricker describes examples of exceptional testimonial justice being practised by individuals operating in poor hermeneutical environments. And I would like to record a further one here. A year after the last Tribunal, referred to above, authorised enforced treatment by monthly injection, I was assessed by a psychiatrist in his role as Designated Medical Practitioner (7). He wrote the following: ‘I concluded that you do have capacity to make decisions about your treatment. You were able to articulate your views clearly, and they were entirely in keeping with your advance statement. Therefore, I have not authorised any treatment to be administered without your consent. You are no longer required to accept the depot medication. Could I suggest you might arrange to meet with (your psychiatrist) for a discussion of which, if any, treatments you might wish to consent to, and under what circumstances.’ This letter has had a huge impact on my quality of life, for I have not been subject to any compulsory treatment since it was written at the end of 2018.

Such an act of individual exceptional judgement from both a moral and epistemic perspective is probably rare in relation to the numbers of Compulsory Treatment Orders authorised each year. But if the factors that allowed for its development and application can be more widely understood, protected and nurtured, it might help facilitate fairer outcomes at future Tribunals.

A version of this blog, along with other evidence, has been supplied to the Scottish Mental Health Law Review that is ongoing at present. My hope is that consideration of it might help contribute to a future where the mental health system takes better account of testimony relating to the seriousness of harms caused by enforced treatments. If this happens, improved wellbeing outcomes, both physically and mentally, may be realised. Being listened to matters.

References

(1) Fricker, Miranda. 2007. Epistemic Injustice: Power & the Ethics of Knowing. Oxford: Oxford University Press.

(2) Fricker, M. 2007. Epistemic Injustice: Power & the Ethics of Knowing. Oxford: Oxford University Press

(3) Carel, H. and Kidd, I.J. 2017. ‘Epistemic Injustice in Medicine and Healthcare’, In The Routledge Handbook of Epistemic Injustice 336-346.. New York: Routledge.

(4) Sanati, A. and Kyratsous, M. 2015. ‘Epistemic injustice in assessment of delusions’, Journal of Evaluation in Clinical Practice

(5) Scrutton, A. P. 2017. ‘Epistemic Injustice and Mental Illness’ In The Routledge Handbook of Epistemic Injustice. New York: Routledge, 347-355.

(6) Scottish Government. The Mental Health (Care and Treatment) (Scotland) Act, 2003.

(7) Mental Welfare Commission. The Role of The Designated Medical Practitioner.

I would like to acknowledge help in the form of suggestions and copy editing from Jon Jureidini, Professor of Psychiatry and Paediatrics, Critical and Ethical Mental Health Research Institute, University of Adelaide, Australia.

Declaration of Interest: None.

 

 

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Tom is a member of CAPS Advocacy in Edinburgh, and is involved with collective advocacy work, including regular meetings with the ‘Experiences of Psychosis’ group there. He completed a ‘Mad Studies’ course at Queen Margaret University in March 2020, supported by CAPS Advocacy and NHS Lothian. He has an interest in participating in collaborative efforts to improve day to day experiences in mental health care, particularly in regard to factors that influence wellbeing.

1 COMMENT

  1. “basic models of risk assessment that allow for consideration of the potential frequency of the perceived risk, and the potential severity of the risk. ” That’s like common sense, not perticularly academic. We all make such assessments every time we cross the road.