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| | Norwegian legislation on mental health care. The Mental Health Care act of 1999 and its precursors | | 2005-8-29 13:47:45 The Norwegian Supreme Court Ketil Lund, Justice | 1. Introduction
In Norway specialized mental health care is a state responsibility, under the supervision of regional health enterprises. The Mental Health Care Act – MHC – regulates specialized health care, mainly compulsory, but also voluntary, for patients living in health care institutions (in-patients) and other patients (out-patients), and set rules for supervision and control. Economic and administrative regulations are laid down in the act on specialised health services that comprises the whole area of specialised health service. The MHC is supplemented by the general act on patients rights of 1999 that also applies to patients under compulsory care.
In later decades the weight of psychiatric care has shifted from institutional care to policlinical care due to medical, humane and economic reasons. In addition there has been substantially more emphasis on the human rights aspects of compulsory care. By far most persons suffering from mental health problems are treated within the frame of general municipal health services, not by specialized mental health care.
At any given time about 2500 persons are presently detained according to MHC. The number has been substantially reduced in later decades. By comparison the prison population in Norway included pre-trial detainees is presently about 2800 people.
2. History of legislation
The Insanity Act of 1848 was an early and progressive law that, inspired by the Moral Treatment-philosophy, was based on the view of insanity being an illness, curable in principle and in practice if the patient was given a caring and respectful treatment. The law established caring for the insane as a particular state responsibility and laid out the conditions for compulsory admission and detention in public and private asylums and homes, conditions not so very different from those of to day: A basic condition of insanity and additional conditions referring to the patients own interests and the security of the general public. The law also established a supervisory board – The Control Commission – to supervise conditions and to which the patient could complain. The law reflected the so called asylum sovereignty – that the chief physician/Control Commission had the final say on compulsory admission and detention and could not be instructed by other public authorities.
In the second half of the nineteenth century the optimism of the Moral Treatment philosophy yielded to a pessimistic view on mental illnesses, which coincided with the construction of large public asylums. This combined with lack of sufficient alternative social security systems for miserable, poor and otherwise disabled people led to the effect that a considerable number came under compulsory care through the first half of the twentieth century. This created an overpopulation problem in psychiatric institutions that was not substantially reduced before 1970/80. In 1935 there was close to 250 persons per 100 000 people under compulsory care as compared to about half that number in the eighties and less than 70 to day.
All admissions to public asylums were compulsory until 1935, and it took time before voluntary admission became of any dimension. Today voluntary admission is dominant, but the ratio of compulsory admissions is high when compared internationally – 174 per 100 000 people in 1996. Numbers of compulsory admissions have been going up in later years, whereas the institutional population remain grossly the same, which means that average detention time has been going down.
The Mental Health Protection Act of 1961 transferred the responsibility to the regional level and modernised the legislation, but represented no substantial change compared to the 1848 act concerning material conditions for compulsory admission and detention, procedural rules and bodies for supervision and control. The act contained no statutes concerning the medical treatment of patients, notwithstanding such methods as lobotomy, which was in strong decline in the late fifties, and compulsory administration of anti-psychotic medication that was on the rise. The act established compulsory "aftercare", which meant that the patient was physically discharged but remained under the authority of the institution. Compulsory "aftercare" was mainly used as a means of securing the administration of anti-psychotic medication at certain intervals.
"Serious mental illness" was established as the basic condition for compulsory care in the 1961 act. The notion is judicial, not medical, but corresponds approximately to the clinical notion psychosis. Even if quite a number of persons detained were not suffering from a serious mental illness, they could not be discharged as they – many of which had been hospitalized for years – had no means by which to subsist outside. A major problem was the lack of cooperation between the regional psychiatric services and the municipal services. The 1961 act did little to diminish the existing problems concerning overpopulation.
After 1961 the human rights aspects of compulsory care came under increasing criticism. These aspects were mainly the following:
· If requested by the patient decisions of compulsory admission and detention made by the Control Commission should be reviewed by the courts. A law amendment of 1969 established rapid review by the courts, and procured the patient with legal counsel at the states expense.
· The legal conditions for compulsory care were unclear and vague and lacked predictability and controllability. This led in time to minor adjustments in the additional conditions for compulsory care.
· The Control Commissions worked in too close collaboration with the chief psychiatrist of the institution and did not function satisfactorily.
· Even if legal conditions for compulsory care were satisfied, such care should only be applied if it was reasonable and appropriate according to an overall assessment. This argument prevailed in a Supreme Court decision in 1981 in which an incurable psychotic patient, obviously in risk of coming in harms way on his own, was discharged after seven years in a psychiatric nursing home.
· The compulsory administration of anti-psychotic medication and the application of coercive means – i.a. belts, straightjackets – should be regulated and limited, not left to the discretion of the chief psychiatrist. Regulations limiting the use of such methods were issued, and the decisions of the medical director subjected to complaint to the regional medical director, but not to the courts.
· An inquiry commission established in 1980 to assess a special institution for particularly dangerous mentally ill males – a state responsibility – disclosed manifold infringements and criticisable practice relating to medical therapy and application of coercive measures, isolation etc. The physical conditions of the institution were not according to reasonable standards. Many of the patients could not be considered dangerous. Some did not satisfy the legal conditions for compulsory detention. The functioning of the Control Commission, the courts and the state supervisory bodies had not been satisfactory.
The findings of the commission, which were a demonstration of what critics of institutional psychiatry had asserted for years, led to public uproar, the closing down of the institution, a somewhat suspicious look on institutional care in general and a greater awareness of the human rights problems connected with compulsory care.
Steps were now taken to revise the mental health legislation. A report and a draft for an act on compulsory mental health care with greater emphasis on patient rights was presented in 1987, but met with considerable opposition and was shelved. The present law on mental health care, enacted in 1999, is by and large modelled on the 1961 act, but regulates more extensively the content of health care, included compulsory medical treatment and restraining means, procedures of decision and control and review. The new law is supplemented by the 1999 act on patients rights.
3. The Act on Mental Health Care of 1999, an overview.
The term "mental health care" means the examination and treatment by specialised health services, and the appropriate nursing and care.
Persons having reached the age of 16 and being able to give informed consent may be taken under mental health care. They may also consent to compulsory mental health care for a period of three weeks. For children under16 consent must be given by persons with parental authority. No one can be transferred to indefinite compulsory care while under health care according to consent.
Compulsory care can be applied on an in-patient basis in approved institutions or, if that is a better alternative for the patient, on an out-patient basis under the responsibility of such an institution. Compulsory care for out-patients consists mainly – as before – in being able to administer compulsory anti-psychotic medication.
Compulsory Care may only be applied when voluntary care has been tried to no avail, or is obviously pointless to try.
3.1. Conditions for compulsory care:
The basic condition for compulsory care is that the person suffers from a serious mental disorder. This notion comprises active psychosis and certain very manifest disorders with the same functional deficiency as a psychosis. In addition it comprises chronic psychosis in periods free of symptoms if lack of symptoms is due to anti-psychotic medication.
Additional conditions are that compulsory care is necessary to prevent the person from:
· having significantly reduced the prospects of his/her health being cured or substantially improved – the improvement criterion – or
· having a highly probable and substantial deterioration of his/her condition in the very near future – the deterioration criterion.
· constituting an obvious and serious risk to the persons own life or health or to the life or health of others – the danger criterion.
I have no statistics on the use of the different criterion, but the ones protecting the persons own interests are by far the most applied.
The improvement criterion does not presuppose an improvement of the basic disorder; it is sufficient that symptoms will be substantially reduced. Even if the law does not state it expressively, the prospect must refer to a reasonable time span. When no further improvement can be expected, the patient can only be detained according to the deterioration criterion.
Application of the deterioration criterion presupposes that a substantial deterioration will happen in the very near future, in practice understood as in about two months, not much more. This development must be highly probable. The deterioration criterion reflects the lawmakers view that detention of a person only to prevent worsening of a medical condition is a drastic measure. It is applied to patients that are known by experience to quit taking anti-psychotic medication shortly after discharge from compulsory care.
The danger criterion protects two highly different interests: those of the patient and those of the patients surroundings – society at large. Only danger to life or health is relevant, not – as was the case in earlier legislation – to material values.
Danger to the patient her/himself refers not only to suicide and self mutilation, but also to danger that the patient will be perishing or exhausted or come in harms way and thereby causing danger to the patients life or health.
Danger to other persons health comprises both physical and mental harm, not mere trifles, but of more tangible character.
The danger to self or others must be obvious and serious. The danger must be documented. Mere assumptions are not sufficient. Dangerousness of mentally ill people can be very difficult to predict. Traditionally there has been much prejudice in this respect, as demonstrated by the Norwegian scandal concerning the asylum for mentally ill and dangerous men. As with people in general the least unreliable indicator is clearly demonstrated violent behaviour – that an act of physical harm has been committed. But this is not a necessary criterion in the MHC – to the difference of persons not being criminally responsible which may – according to the general criminal act – be sentenced by the courts to compulsory mental care after having committed a serious act of violence and there is an obvious danger that such an act will be repeated.
Even if the conditions of the MHC are satisfied, compulsory care may only be applied when, after an overall assessment, this clearly appears to be the best solution for the person concerned. When making this assessment, special emphasis shall be placed on how great a strain compulsory intervention will entail for the person, i. a. the character and degree of the patients opposition to compulsory care, how long the patient has remained under compulsory care, the general conditions of the compulsory care situation as compared to extant or probable conditions without such care. The Norwegian Supreme Court has released patients according to such overall-assessments more than once. On one occasion it has postponed the release of a long term detained patient for two months until there could be established some kind of social support to receive him.
Traditionally it has been taken very much for granted that people having a serious mental illness may be taken under compulsory care, but as I shall return to in my closing remarks the conditions of the MHC raises ethical questions of considerable importance.
3.2. Procedural regulations
The MHC also contains procedural regulations, the most important being:
· A physician must personally examine the person to assess if the conditions for compulsory care are satisfied. If the person opposes such examination, it may all the same be executed – if necessary by force – by decision of the chief municipal officer at the request of a public authority or of the persons closest relative. The law describes who is the closest relative, basically the one that the person points out.
· Further examinations in an institution may be decided to ascertain the condition.
· On the basis of the examination, a public authority or the closest relative may request compulsory care.
· The chief psychiatrist of the ward decides in writing, after the person has been personally examined, if he/she should or should not be subjected to further examination or be taken or not taken under compulsory care.
· The patient or the requestor can appeal the decision to the Control Commission.
· Before any decision is taken the patient has a right to be informed and have her/his view heard on i.a. the question of voluntary care, in- or out-patient status and the institution in question. The right to be heard also applies to the closest relative or the public authority involved.
3.3. Execution of health care – what such care may encompass.
An individual plan for the treatment of each patient, describing needs and objectives, relevant mental health services and cooperation with other health- and social services, has to be made by the institution in cooperation with the patient, also – if possible – with patients under compulsory care. Such patients have in principle the same rights as others – laid down in the general act on patients rights – and their personal integrity and self-determination shall be respected as far as compatible with the objectives of the care. The MHC and attached regulations contain detailed rules on compulsory treatment, coercive means and other restrictions.
In-patients that are agitated can be shielded up to three weeks from contact with other patients and personnel. The decision must be taken by the chief psychiatrist of the ward and can be appealed to the control commission by the patient or the closest relative who in general has the same right of appeal as the patient. In principle also voluntary patients can be shielded without consent but this will actualise their demanding to be discharged.
For in-patients under compulsory care communications with the outside world, visits, post, telephone can be restricted for 14 days at a time if necessitated by strong considerations related to the treatment or welfare of the patient or a close relative, in which case the patient must be given all information of outside matters relevant to him. The law also contain rules on control of communications, search of rooms and body – not body cavities – if there is a suspicion of the patient possessing illegal medicaments, drugs, aids of escape or dangerous objects, and, if the suspicion is verified, confiscation of such things. Decisions can be appealed to the control commission.
In- and out-patients under compulsory care can be subjected to compulsory treatment in accordance with professionally recognised psychiatric methods and practice, but – except medication – not treatment entailing a serious intervention. This excludes psychosurgery and ECT – electro choc – methods that were in extensive practice in Norway in the post world war II period and came under heavy criticism in the seventies and eighties. In the early nineties an official inquiry into the use of lobotomy – at the time a recognised method, the inventor of which, the Portuguese neurologist Egas Moniz, was even awarded the Nobel price for medicine – led to compensation being paid to victims of this practice.
Since the mid fifties anti-psychotic medication has become the most important treatment for serious mental health illnesses. Until the eighties compulsory treatment with anti-psychotic medication was not regulated by law, but left to the chief psychiatrists professional assessment. Even if such treatment is a serious intervention, often with substantial negative side effects, and many patients regard it as a worse encroachment than compulsory care in itself, the lawmaker has seen the positive effects as clearly outweighing the negative ones. In the early nineties roughly one third of patients at any given time under compulsory care received compulsory treatment with anti-psychotic medication. In principle compulsory treatment also comprises behavioural treatment with elements of punishment and compulsory participation in group- and talk therapy, but such participation is difficult to execute by force, and in reality presupposes the cooperation of the patient.
The law contains detailed rules on compulsory treatment. Main elements are:
· The patients condition shall be thoroughly examined during a period of three days, if not earlier known or if acute intervention is needed to avoid serious metal health damage, and voluntary alternatives must be assessed.
· Before compulsory treatment the institution must have tried to obtain the patients consent, if not obviously pointless. In most cases consent can be obtained if the patient is approached with respect and patience.
· There must be a high probability that the treatment will lead to a substantial amelioration or prevent a substantial deterioration of the condition.
· The decision has to be taken by the chief psychiatrist who personally must have examined the patient, and has a duration of three months. The decision can be executed 48 hours after taken. If the decision is appealed to the regional medical director, the execution has to be staid for 48 hours after the patient was informed of the decision.
Coercive means can be used on in-patients, in principle also voluntary, when this is an absolute necessity to prevent the patient from physically injuring him self or others, or to avert substantial damage to material goods. Coercive means comprise
· Mechanical coercive means which hamper the patients freedom of movement, belts, straps, special clothing.
· Isolation for a short period of time behind locked doors without staff personnel present in the room.
· Single doses of medicine with short time effect for the purpose of calming or anaesthetising the patient.
Patients subjected to coercive means shall be under continuous supervision by nursing staff. If the patient is strapped to a bed or a chair, nursing staff must be present in the room unless the patient objects to this. This presupposes sufficient personnel, and implies that coercive means cannot be used to compensate for lack of personnel. Except for urgency situations the decision is taken by the chief psychiatrist, and can be appealed to the control commission.
In 1994 mechanical coercive means were used on 630 patients for 1140 hours, isolation on 40 patients for 800 hours and pharmacological means 1250 times on 500 patients.
3.4. Review and control
No one can be detained under compulsory care if the conditions of the law are no longer satisfied. The chief psychiatrist shall make an assessment once every third month. The patient and the closest relative can at any time demand that the patient be discharged. The Control Commission shall be notified when someone is taken under compulsory care and control that the conditions of the law are satisfied, and shall regardless of appeal assess this question again after three months. Compulsory care shall be discontinued after one year if the commission does not consent to prolongation – one year at the time. The commission also has the obligation to supervise the general welfare of the patients.
Decisions of the chief psychiatrist about establishing/maintaining/discontinuing compulsory care can be appealed to the Control Commission by the patient, the closest relative and the public authority that requested such care. The commission shall review all aspects of the case.
The functions of the Control Commission are essential in guaranteeing the rights of the patient. The commission is an autonomous body, chaired by a lawyer assisted by a physician and two other members, one of which has special knowledge of the field as earlier patient, closest relative or representative of patients. If the appeal is declined, a new appeal can be made after 6 months.
The patient or the closest relative can appeal decisions by the Control Commission about establishing, maintaining or discontinuing compulsory care to the general courts which review all aspects of the case relating to the situation at the time of the proceedings. Patients have since 1980 on some occasions been discharged by the Supreme Court. I am not informed about the practice of the courts of first instance, but it is likely that this practice reflects the general change of critical attitude towards compulsive care. Experience show, by the way, that an appeal to the courts not seldom in itself leads to the patient being discharged by the institution.
As I have indicated persons not being criminally responsible may – according to the general criminal act – be sentenced by ordinary courts to compulsory mental care. The conditions are that they have committed or tried to commit a serious act of violence and there is an obvious danger that such an act will be repeated. Very few people receive such sentence. Once under compulsory care, the statutes of the MHC apply to such patients as well. There are however different statutes in the criminal act concerning control and review, mainly that only the courts have the competence to discharge the patient, and that the patient, the closest relative or the institution must wait one year before a demand for discharge from compulsory care can be made.
4. Closing remarks - some ethical questions
As I have pointed out the basic conditions for compulsory care in the MHC are not so very different from those of earlier legislation. However, the attitude towards compulsory care has changed the last 25 years due to widespread criticism and greater awareness of ethical and human rights aspects. This has led to stricter interpretation of the conditions of the law, and not least to a stricter view as to which patients ought to be subjected to compulsory care after an overall assessment. Traditionally it has been taken more less for granted that that people with a serious mental illness whose condition can be improved, or prevented from deterioration, by medical treatment or who represent a danger to self or others may be subjected to compulsory care. This is, however, not self evident. The ethical problems were discussed in the rapport from 1987 which drafted a new act on compulsory health care. I shall briefly make some closing remarks outlining a few of the questions involved.
The problem is to justify ethically why people with a serious mental health disorder should be singled out for compulsory care legislation different from other people that need and refuse treatment or represent a danger to self or others.
With regard to compulsory care in the interest of others – the danger to others criterion – this interest is extensively protected by the criminal code by ordinary imprisonment, sentencing to compulsory health care of persons not being criminally responsible or to detention of dangerous criminals. Such protection presupposes however that a violent criminal act has been committed or tried to be committed. People can be locked up to prevent them from committing a violent act again, not from committing such an act in the first place. Why should not this principle apply also to people with a serious mental disorder – those of them that are not to stand trial in a criminal case of violence? Contrary to general prejudice people with serious mental illnesses are not as a whole more dangerous than others, and without prior violent behaviour clearly demonstrated, prediction of dangerousness is very difficult. Many dysfunctional, but not seriously mentally ill persons can be considered as dangerous to the physical or mental health of others, but cannot be subjected to compulsory care. Are dangerous people with a serious mental disorder in general susceptible to treatment whereas other dangerous people are not? This is doubtful, but even if they in general should be more susceptible to treatment than others, would this be sufficient as a justification? If so, shouldnt cure or substantial improvement of the person in question be an additional necessary condition for compulsory care?
With regard to co compulsory care in the persons own interest similar questions are relevant. As to persons representing a danger to their own life or health, the situation is that many, not having a serious mental disorder, are self destructive or living under detrimental conditions without seeking necessary help and seemingly not knowing what is best for them. As the 1987 rapport points out, those with a serious mental disorder are hardly as a group significantly more susceptible to treatment than other self destructive people. There is understandable reluctance in our society to accept obvious self destructive behaviour, but the perspective of an act on compulsive care for such persons in general is contrary to our concept of individual freedom and self-determination. Even if some with a serious disorder live in difficult conditions where self destructive behaviour is not obviously irrational, they represent a limited group with a disorder defined by substantial irrational elements. Is this a sufficient justification? If so, for how long?
Compulsory care only to improve or prevent deterioration of the disorder when there is no danger involved is significantly more problematic, the more so when taking into account the existing treatment available which often can do no more than improve symptoms and can have substantial negative side effects. In the rapport from 1987 that I have mentioned the majority of the committee proposed to restrict compulsory care on these grounds to short intervention in order to prevent economical ruinous behaviour, whereas the minority did not accept such intervention at all. Neither view was accepted. In my opinion this reflects the weight of our traditional culture in this field.
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Ministry of Health, (2003) No.013
ICP:No.040657