Mental health acts (MHAs) provide for the involuntary confinement of the mentally ill. Some argue that mental illness is a myth and hence there should be no mental health institutions or MHAs at all.Footnote 1 Others think there should be MHAs, but only for other-regarding conduct.Footnote 2 Still others – most – agree that there should be MHAs covering self- and other-regarding conduct, but disagree amongst themselves on three main issues: (1) involuntary admission criteria, (2) the right of patients to refuse treatment, and (3) who can authorize treatment. At the heart of these issues is the question of the extent to which society can properly interfere with the liberty of the individual. We may thus reasonably want to know what John Stuart Mill would say about them. Writers on MHAs have not been shy to invoke Mill's authority, but there is no general agreement on what his opinions would be, and his approval has been claimed for views across the whole spectrum of the debate. There is some excuse for this in that while when Mill wrote about mental health issues he wrote passionately, he did not write much. There is also the problem that since there have been so many changes in the mental health field since his day, any view imputed to him must be to some extent speculative. And there is the difficulty that Mill's theory of liberty is not fully responsive to crucial questions. In what follows I try to assemble all that Mill has said relevant to MHAs and answer the three questions in a way that can be more plausibly attributed to him than any other. I do this partly for historical interest, partly for the light it casts on Mill's theory of liberty, and partly because it is useful to look at contemporary problems through the eyes of the world's greatest liberal to see what we can learn about them.
INVOLUNTARY ADMISSION CRITERIA
Mill cannot be enlisted among those who hold that mental illness is a myth and mental health institutions and MHAs therefore should be abolished.Footnote 3 He (as we will see below) talks confidently about ‘lunatics’ and ‘insane persons’, and approvingly of ‘madhouses’ and ‘places of confinement’ for them. He certainly worried about the state of those institutions, but never showed the slightest hesitation about their existence. Nor did he express any scepticism about involuntary admissions to them, for (as we will again see below) while he thought that the law of lunacy that allowed for them was badly in need of reform,Footnote 4 he never questioned the existence of such a law.
Still again, Mill cannot be cited in support of limiting involuntary admissions to those cases in which harm is threatened to others.Footnote 5 The view that Mill would so restrict MHAs is sometimes supported by appeal to his official announcement of the thesis of On Liberty. This tells us that
[T]he only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right.Footnote 6
But reading on we see that this gives no support to the view in question, for Mill immediately proceeds to say that this thesis does not apply to everyone, and identifies two exemptions. The important one for us is ‘children’ or ‘young persons below the age which the law may fix as that of manhood or womanhood’, commenting that: ‘Those who are still in a state to require being taken care of by others, must be protected against their own actions as well as against external injury.’Footnote 7 Mill repeats this qualification (in interestingly different ways) when he later reasserts his opposition to paternalism in On Liberty.Footnote 8 But the plainest of all passages excluding the mentally disordered from his anti-paternalist position (and also embracing their involuntary admission to a mental health institution) occurs in his Principles of Political Economy. There he states his anti-paternalism by saying:
The ground of the practical principle of non-interference must here be, that most persons take a juster and more intelligent view of their own interest, and of the means of promoting it, than can either be prescribed to them by a general enactment of the legislature, or pointed out in the particular case by a public functionary.
Then, after commenting that ‘the maxim is unquestionably sound as a general rule’, Mill goes on to cite ‘some very large and conspicuous exceptions to it’, the first of which is that:
The individual who is presumed to be the best judge of his own interests may be incapable of judging or acting for himself; may be a lunatic, an idiot, an infant: or though not wholly incapable, may be of immature years and judgment. In this case the foundation of the laisser-faire principle breaks down entirely. The person most interested is not the best judge of the matter, nor a competent judge at all. Insane persons are everywhere regarded as proper objects of the care of the state.Footnote 9
But if Mill thought that MHAs should allow for the involuntary admission of the mentally disordered who put themselves or others at risk of harm, the next question is how he would define ‘harm’ in such Acts. In the contemporary debate the choice here is between understanding harm in a narrow way as ‘bodily harm’, or a broad way also to encompass things such as ‘financial, occupational, family, and social harm’. We can make a start on this question by looking at how Mill understood the concept of harm in his theory of liberty.
ReesFootnote 10 has shown that for Mill harm to others is to be analysed as a negative effect on the interests of others. BrownFootnote 11 has shown that the analysis should end there rather than carry on to explicate interests in terms of the ‘violation of rights’ of others,Footnote 12 or of that and the ‘violation of a distinct and assignable obligation’ to others.Footnote 13 For Mill, rights and obligations are outcomes of his theory of liberty, and therefore cannot be things that must be identified before the theory can be applied. This further analysis also has the oddity that what constitutes harm to others differs from what constitutes harm to self, for Mill rejects the notion of duties to oneself.Footnote 14 If, however, Mill thought that any negative effect on the interests of oneself or others constitutes harm to them, Mill must count as harm all the negative effects encompassed by the broad sense, for all those things can adversely affect their interests.
Nonetheless, it does not immediately follow that Mill would adopt broad involuntary admission criteria, for that opens the door to the possibility of interference that Mill would not want to allow. For example, individuals suffering from mental disorders who buy numerous lottery tickets, express themselves to the police or their employers, or behave in ways that embarrass or distress their families, are exposed to the possibility of involuntary admission. There is also the possibility that persons who act eccentrically but do not suffer from mental disorders may be admitted. In On Liberty, after having celebrated the importance of individuality and experiments in living, Mill goes to write: ‘But the man, and still more the woman, who can be accused either of doing “what nobody does”, or of not doing “what everybody does”, is the subject of as much depreciatory remark as if he or she had committed some grave moral delinquency.’ Indeed, he continues, they ‘incur the risk of something worse than disparaging speeches – they are in peril of a commission de lunatico, and of having their property taken from them and given to their relations’.Footnote 15
Thus while negative financial, occupational, family and social impacts count as genuine harms for Mill, it is possible that he would exclude them from an MHA because of the potential for misuse and abuse. The initial presumption, however, must be that Mill would formulate an MHA in terms of broad criteria. Adopting narrow criteria necessarily puts psychiatrists in the invidious position of either allowing conduct that should not be permitted or cutting corners on the law. But similarly bad consequences do not inevitably flow from broad criteria, as safeguards may be able to be put in place to curb the evils of improper admission. Whether this can be done can only be determined by trying and seeing. There is, however, no reason for Mill to go to a second-best solution until it is clear that a first-best cannot be had. I thus speculate that Mill's initial move would be to adopt broad admission criteria and recommend that safeguards be put in place.
Indeed, Mill made just such a move in the face of a similar problem. In a letter to the editor of the Daily News in 1858 Mill describes the problem:
It has become urgently necessary that public attention should be called to the state of the law on the subject of Lunacy, and the frightful facility with which any persons whom their heirs or connexions desire to put out of the way, may be consigned without trial to a fate more cruel and hopeless than the most rigorous imprisonment. . . . A criminal cannot be sentenced to six months’ imprisonment without the verdict of a jury, preceded by a public investigation and opportunity of defence. But a perfectly innocent person can be fraudulently kidnapped, seized, and carried off to a madhouse on the assertion of any two so-called medical men, who may have scarcely seen the victim whom they dismiss to a condition far worse than the penalty which the law inflicts for proved crime. Convicts are not delivered over to the absolute power of their gaoler; nor can be subjected to the ruffianly treatment revealed by the York inquiry. Convicts can appeal against ill treatment; but to the other unfortunates the ordinary use of speech is virtually denied; their sober statements of fact, still more their passionate protests against injustice, are held to be so many instances of insane delusion. And this fate any two medical men may secretly inflict.
Mill's response is to say that:
The obvious remedy is to require the same guarantees before depriving a fellow-creature of liberty on one pretext as on another. The inquiry by a jury, which is now the exception, ought to be the rule; it should be an imperative preliminary to the putting an alleged lunatic in a place of confinement. A jury could be as speedily impanelled in a case of sudden madness as of sudden death; and if any restraint be necessary in the short interval, let it be in the patient's home. Juries, in such cases, are foolish and credulous enough, and only too willing to treat any conduct as madness which is ever so little out of the common way; but at least the publicity of the inquiry is some protection, and tends to fix attention on any unavowed motive which may actuate the promoters of the proceeding. It would also apprise others of the existence of the alleged lunatic, and the place where he, or she, is confined; and would thus render somewhat more difficult the evasion which it is so easy to practise on the vigilance of the Commissioners at their annual visitation of lunatic asylums.Footnote 16
But if this is reason to think that Mill would first look to safeguards against the perils of broad criteria rather than adopt narrow admission criteria, there is no reason to think that he would insist that a jury trial must be part of those. Jury trials used to be common in cases of involuntary commitment, but are no longer.Footnote 17 In their place are either court hearings or (more typically) quasi-legal reviews which specify that the appropriateness of the original committal must be confirmed by an independent examination by a second physician; that upon admission (or shortly thereafter) patients must be informed of their rights under the MHA; that this information be also sent to someone outside the hospital (typically a family or legal organization) who can exercise the rights on behalf of the patient; that these rights include the right to know the reasons for the detention, the right to a lawyer, the right to apply to the court for discharge (habeas corpus), the right to request a hearing of the review board for discharge, and the right to appeal the review board decision to the courts.Footnote 18
In Representative Government Mill speaks positively about juries as instruments for inculcating in the public ‘the practical discipline which the character obtains from the occasional demand made upon the citizens to exercise, for a time and in their turn, some social function’.Footnote 19 But, as is apparent from the above, he was sceptical about their ability to decide cases of insanity, and he dilates on this scepticism in a footnote to the passage from On Liberty quoted above about the dangers of expressing one's individuality:
There is something both contemptible and frightful in the sort of evidence on which, of late years, any person can be judicially declared unfit for the management of his affairs. . . . All the minute details of his daily life are pried into, and whatever is found which, seen through the medium of the perceiving and describing faculties of the lowest of the low, bears an appearance unlike absolute commonplace, is laid before the jury as evidence of insanity, and often with success; the jurors being little, if at all, less vulgar and ignorant than the witnesses; while the judges, with that extraordinary want of knowledge of human nature and life which continually astonishes us in English lawyers, often help to mislead them. These trials speak volumes as to the state of feeling and opinion among the vulgar with regard to human liberty. So far from setting any value on individuality – so far from respecting the right of each individual to act, in things indifferent, as seems good to his own judgment and inclinations, judges and juries cannot even conceive that a person in a state of sanity can desire such freedom.Footnote 20
We find Mill expressing similar scorn in a footnote in his Principles of Political Economy:
At the instance of the persons who would profit by their being declared insane, a jury may be impanelled and an investigation held at the expense of the property, in which all their personal peculiarities, with all the additions made by the lying gossip of low servants, are poured into the credulous ears of twelve petty shopkeepers, ignorant of all ways of life except those of their own class, and regarding every trait of individuality in character or taste as eccentricity, and all eccentricity as either insanity or wickedness.Footnote 21
Given this view of juries at work in the field of mental health, Mill could be expected to welcome the now-common alternatives to them. It is thus reasonable to suppose that he would begin the construction of the necessary safeguards with quasi-legal hearings, and then move to stronger protections if the need arises. Such further protections may also be needed. Second opinions and hearings are not always taken seriously in the mental health field. Notifying families or third parties, and telling patients or them about the right to a lawyer, may be of little avail for the population most prone to such admissions. It may even prove impossible to strengthen the safeguards to prevent substantial evils. This conceivably could move Mill to adopt narrow involuntary admission criteria, but that would also appear to be a move of last resort.
THE RIGHT TO REFUSE TREATMENT
The question here is whether involuntary patients whom psychiatrists think can be effectively treated can refuse treatment. Some jurisdictions say no, holding that involuntary admission includes involuntary treatment, and thus that mental health institutions should as much as possible function as short-term treatment centres. Others hold that while incapable patients cannot refuse treatment those who are capable can, and thus that mental health institutions have a legitimate function as asylums – places of refuge where capable patients can be protected from themselves and the outside world but otherwise be as mad as they wish. Of all the issues at dispute in MHAs this is perhaps the one that raises emotional temperatures quickest and highest, and has proven most divisive. In considering this issue two sets of interests have to be taken into account. The first is that of patients, the second, of others.
In so far as the question is cast in terms of the interests of patients, Mill can be confidently put on the side of the right to refuse treatment. We can usefully begin by distinguishing between having a mental disorder and having decision-making capability. For purposes of involuntary admission, whether persons are mentally disordered depends on whether they fall under a psychiatric classification specified in that jurisdiction's MHA. Whether they are capable depends on something different. In legal terms, this is generally whether they can understand and appreciate the nature and consequences of their decisions. In Mill's terms, it depends on whether they have an ‘ordinary amount of understanding’Footnote 22 and are not ‘delirious, or in some state of excitement or absorption incompatible with the full use of the reflecting faculty’.Footnote 23 Since Mill famously held that capable individuals should be able to make decisions in their own interest, it is clear that he would hold that involuntary patients who have such decision-making capacity should be able to refuse treatment. It is not proper to argue (as Isaac and Armat and do) that since the mentally disordered have a disease of the reflecting faculty, Mill would not allow them to refuse treatment.Footnote 24 This is because capability is domain specific. Patients who are not capable of making decisions about self-care, relationships, finances, and so on, can sometimes be perfectly capable of understanding and appreciating the nature and consequences of refusing treatment, and so of making such decisions. To be sure, Mill did not discriminate between different mental capabilities and make interference specific to these, but there is nothing that prevents him from doing so. Such distinctions are common in mental health legislation, and acknowledging them is fully in keeping with Mill's view that no more interference should be used than is absolutely necessary.
I now turn to the second reason for linking involuntary admission and treatment, namely the interests of others. There are two ways in which it can be claimed that the right to refuse treatment can adversely affect these interests, corresponding to Mill's distinction between harm by action and by inaction. The first locates this in the harm that one can do to near connections by refusing treatment, the second, in lost opportunity costs.
Taking these in order, Mill has no difficulty with involuntarily admitting mentally disordered persons who put others at risk of such things as assault or theft, or even with also involuntarily treating them if they are incapable of refusing treatment. It is likewise clear (setting aside lost opportunity costs for the moment) that Mill would not support involuntary treatment for individuals if they refused it, were capable of refusing it, and the harm could be removed or prevented by other measures, e.g. policing, seclusion, restraints or sedation. The only cases in this area which raise a question about what Mill would think are those in which the harm capable involuntary patients do to others cannot be removed without treating them. These are those terrible cases in which someone watches a loved one's life disappear into madness, as Mr Wilkinson did when (to put it in the words of the court) he watched his son become more and more dysfunctional and alienated, indifferent to personal hygiene and nutrition and beset by psychotic delusions.Footnote 25 Watching (or even knowing about) this can be as devastating as assault or theft, and thus Mill must either sanction involuntary treatment or explain why not. This was a familiar kind of problem for Mill, and he formulates it forthrightly:
How (it may be asked) can any part of the conduct of a member of society be a matter of indifference to the other members? No person is an entirely isolated being; it is impossible for a person to do anything seriously or permanently hurtful to himself, without mischief reaching at least to his near connections, and often far beyond them. If he injures his property, he does harm to those who directly or indirectly derived support from it, and usually diminishes, by a greater or less amount, the general resources of the community. If he deteriorates his bodily or mental faculties, he not only brings evil upon all who depended on him for any portion of their happiness, but disqualifies himself for rendering the services which he owes to his fellow-creatures generally; perhaps becomes a burthen on their affection or benevolence; and if such conduct were very frequent, hardly any offence that is committed would detract more from the general sum of good.Footnote 26
In chapter 1 of On Liberty Mill anticipates and responds to this problem by excluding indirect harm from that which his principle of liberty brings within social control. After having said that ‘conduct which affects only himself’ is conduct in which society can take ‘if any, only an indirect interest’, Mill goes on to explain: ‘When I say only himself, I mean directly, and in the first instance; for whatever affects himself, may affect others through himself.’Footnote 27 He then refers the reader to chapter 4, promising a fuller discussion. There he allows that sometimes indirectly caused harm can be ‘deservedly reprobated, and might be justly punished’, giving the examples of a man thereby becoming unable to pay his debts or carry out responsibilities that he has undertaken. He then adds further circumstances in which indirect harm can meet with reproach, specifically, when a man ‘causes grief to his family by addiction to bad habits’, and also ‘for cultivating habits not in themselves vicious, if they are painful to those with whom he passes his life, or who from personal ties are dependent on him for their comfort’. However, Mill goes on to say that absent ‘the consideration generally due to the interests and feelings of others’, indirect harm is permissible when it is ‘compelled by some more imperative duty, or justified by allowable self-preference’Footnote 28 or (as he earlier puts it) ‘his own rights’.Footnote 29 Mill then sums up by writing:
Whenever, in short, there is a definite damage, or a definite risk of damage, either to an individual or to the public, the case is taken out of the province of liberty, and placed in that of morality or law.
But with regard to the merely contingent, or, as it may be called, constructive injury which a person causes to society, by conduct which neither violates any specific duty to the public, nor occasions perceptible hurt to any assignable individual except himself; the inconvenience is one which society can afford to bear, for the sake of the greater good of human freedom.Footnote 30
It is, however, not satisfactory for Mill to exclude indirect harm from social control by putting it in the second class. It may be that most indirect harms do not occasion ‘perceptible hurt to any assignable individual’ other than the agent, but some certainly do. Thus if Mill puts all indirect harms in the second group he misestimates their potential severity, and so does not face the full force of the objection he is officially addressing. On the other hand, if he puts some indirect harms in the first class he cannot exclude all indirect harms from social control in the way he wants to. Nor can Mill solve the problem by saying that indirect harm is not aimed at harming others, and then invoking the claim that for capable individuals to be interfered with their conduct ‘must be calculated (my italics) to produce evil to some one else’.Footnote 31 This would indeed provide the absolute protection of indirect harms that Mill wants, but there is no reason to think that the calculated/not calculated distinction coincides with the interference/no interference distinction that utility recommends. It would not, for instance, allow prohibiting drinking and driving.
A more fruitful approach would be for Mill to take what is arguably the common-sense view that (absent special obligations) individuals have a right even seriously to harm others in the pursuit of their own good. He cannot, to be sure, mean by ‘right’ something independent of utility. But he could hold (as he often does) that utility tracks common-sense views, and that it would be best on the whole, for both the individual and society, to exclude indirect harm from social control. This would enable Mill to draw the direct/indirect line where he wants to, and on the right ground. It is also what we would expect from the author who wrote that if the felt indifference to individuality as an end to be pursued were overcome, ‘there would be no danger that liberty should be undervalued, and the adjustment of the boundaries between it and social control would present no extraordinary difficulty’.Footnote 32
The puzzle remains as to why Mill did not say this, rather than limiting his defence of indirect harm to conduct which does not occasion ‘perceptible hurt to any assignable individual except himself’. But however that is sorted out, it is plain that permitting indirect harm is crucial for Mill. In his Autobiography Mill describes his On Liberty as ‘a kind of philosophic text-book of a single truth . . .: the importance, to man and society, of a large variety in types of character, and of giving full freedom to human nature to expand itself in innumerable and conflicting directions’.Footnote 33 This entails that (absent special considerations) individuals must be free to pursue their own good in their own way, and that means that (again absent those considerations) individuals must be free to choose a marriage partner, religion, occupation, lifestyle and so on, whatever the consequences to others. But if so, it is hard to see how the refusal of treatment can be debated on different principles.
The second possible reason for denying capable involuntary mental patients the right to refuse treatment because of harm to others rests on lost opportunity costs. The money and space used to confine and keep safe patients who can be treated and discharged could be used to treat others who would otherwise be without care, or receive diminished care. This is undeniably a driving force behind those jurisdictions in our day that do not allow involuntary patients to refuse treatment. It is also an argument that Mill must take seriously, since he held that harm may be done by inaction as well as by action. He writes:
There are also many positive acts for the benefit of others, which he may rightfully be compelled to perform; such as to give evidence in a court of justice; to bear his fair share in the common defence, or in any other joint work necessary to the interest of the society of which he enjoys the protection; and to perform certain acts of individual beneficence, such as saving a fellow-creature's life, or interposing to protect the defenceless against ill-usage, things which whenever it is obviously a man's duty to do, he may rightfully be made responsible to society for not doing. A person may cause evil to others not only by his actions but by his inaction, and in either case he is justly accountable to them for the injury. The latter case, it is true, requires a much more cautious exercise of compulsion than the former. To make any one answerable for doing evil to others is the rule; to make him answerable for not preventing evil is, comparatively speaking, the exception. Yet there are many cases clear enough and grave enough to justify that exception.Footnote 34
In taking failing to prevent evil as an instance of doing evil (or – what is plainly the same for Mill – failing to prevent harm as an instance of doing harm), Mill arguably deviates from ordinary language. Nonetheless, Mill cannot avoid extending the concept of harm in this way without major shipwreck. Unless Mill counts certain inactions as harms he could not justify the compulsions he endorses in the passage above by appeal to his theory of liberty, and so would have to abandon either those common-sense judgements or his theory of liberty. Nor is there any reason to suppose Mill could (or would want to) restrict the view that harm can be caused by actions or inactions to the actions of individuals, and exclude the effects of policies. If harm is harm for individual actions, regardless of causation by action or inaction, it must also be so for policies. Once actions and inactions are so assimilated, however, the lost opportunity costs of admitting but not treating individuals suffering from mental disorders must count as harms, and thus the policy of treating capable patients against their will becomes open for consideration.
Mill would not endorse mandatory treatment for this reason as long as the risk to others is small or only theoretical. On the other hand, the risk to others from lost opportunity costs may result in a significant negative impact on individuals to whom the state owes an obligation of care. If so, there would be a conflict of obligations – to care for the mentally disordered and to respect the choices of the capable – which Mill would have to choose between. It is reasonable to suppose that Mill's first impulse, like that of anyone else, would be to try to find some way of fulfilling both obligations. But if this is not possible, it is not hard to say how Mill would proceed. In chapter 2 of Utilitarianism, speaking of what to do when moral obligations conflict, he says: ‘If utility is the ultimate source of moral obligations, utility may be invoked to decide between them when their demands are incompatible.’Footnote 35 But if the remedy is to balance the utilities, it is not at all clear what the outcome of that weighing would be. Part of the difficulty here comes from not knowing what exactly the utilities in question are. For example, what effect would forcing treatment on unwilling mental patients have on the patients themselves? What precedent will that set for mental health practices or the value society attaches to individual autonomy generally? How much suffering could be excluded by treating the treatable and redistributing resources? Another part of the difficulty comes from how to balance these incommensurables. The upshot is that there is no single identifiable ‘utilitarian answer’ to the question. Different utilitarians could recommend anything from treating all who are admitted, to allowing the capable to refuse treatment and remain in the institution, to any nuanced alternative in between.
Our question, however, is not what utilitarians generally, but what the utilitarian Mill, would say, and here we can have some confidence that he would be on the ‘allow to refuse and remain’ side. First, Mill is wary of using interference on the basis of harm caused by inaction, saying that it requires a ‘cautious exercise’ of compulsion and that to hold one responsible for not preventing evil is ‘the exception’ rather than the rule. Second, there is a big jump from Mill's examples of interference with inaction to the case at hand of forcing treatment because of lost opportunity costs. The examples Mill offers differ amongst themselves. Saving a life and intervening to protect the defenceless are different from performing jury duty or military service and failing to bear one's fair share in any joint work necessary to the interest of one's society, in point of both the immediacy of harm threatened and the identifiability of the person in jeopardy. But this difference is small compared to that between all these cases and that of forcing treatment on a capable person in order to save money and resources that could be better spent elsewhere. It is thus not clear that Mill would extend the sequence of interfering with harm by inaction to encompass that case. Finally, it would seem inconsistent for Mill to allow the indirect harms he does and endorse interference to prevent harms resulting from lost opportunity costs. If Mill is prepared to say that one can harm others by harming oneself even if, were such actions commonly performed, ‘hardly any offence that is committed would detract more from the general sum of good’, it will be hard for him in any realistic case to endorse forcing treatment because of lost opportunity costs. Both are underwritten by the enormous importance Mill attaches to allowing individuals to pursue their own good in their own way.
AUTHORIZATION OF TREATMENT
The choice of who can authorize treatment is between the so-called state model and private model. On the state model treatment is authorized by an independent appointee of the state (e.g. physician, director of a psychiatric facility, quasi-judicial tribunal or court). In accordance with good medical practice, consultation with the patient or family is expected, and some jurisdictions write this into the legislation. But all state models are united in holding that the views of these parties need not be followed. The most distinctive feature of the state model is that the appointee of the state makes treatment decisions, and that these must be based on a ‘best interest’ standard where this is understood as a ‘professional judgement standard’ according to which treatment is to be provided ‘in conformity with competent professional judgement’.Footnote 36
By contrast, on the private model treatment is authorized by the patient if capable or substitute decision-maker if not. Private models vary on how substitute decision-makers must make the decisions. Some jurisdictions require that they be made on the basis of the best interests of the patient, others on what the patient if capable would have wanted, and still others on what the patient would have wanted unless that conflicts with what is in the patient's best interest. But all private models hold that the patient or substitute decision-maker makes the decision wherever possible. A state official or court is appealed to only when the patient is incapable and a substitute decision-maker cannot be found, or the substitute decision-maker fails to make the decision in accordance with the standard of the jurisdiction. Thus if the patient's psychiatrist thinks the substitute decision-maker is not acting in the patient's best interest as defined in the jurisdiction's MHA, or not doing what the patient would want, the psychiatrist can appeal to a review board or other tribunal to have the substitute decision-maker's decision set aside. Thereafter, if the patient, substitute decision-maker, psychiatrist, or any other party is dissatisfied with the decision, they may appeal to a court, and continue to appeal through the system of courts to the supreme court of the land.Footnote 37
We can begin to uncover Mill's view on the debate by taking note that he had a healthy fear of institutions which held individuals in involuntary confinement.
In all places where people are detained in the power of others, and which they are either not permitted or not able to quit whenever they please – in all prisons, madhouses, hospitals, barracks, ships, schools, apprenticeships, and of course therefore in all workhouses – if brutality, or dishonesty, or total neglect of those who have no power of helping themselves, can exist without detection and condign punishment, we ought to know that in a very large proportion of cases they will exist. . . . There is, therefore, no kind of abuse, capable of existing in any of these establishments, which may not exist, and that in the utmost excess, in the management of the parish poor. The case (in particular) of pauper lunatics, whether kept in the workhouse itself or turned over to some private establishment, has claims on the legislator's care exceeding almost all others in strength. There cannot be conceived any human creatures more utterly helpless. They can be compared to nothing but the dumb animals whose treatment reflects such disgrace on humanity. Like those, they cannot even tell of their wrongs; they have no relations capable of giving them the smallest protection. . . . We may be sure, without being told, that there is and always has been a greater amount of brutal indifference, hardened want of feeling, and wanton and capricious tyranny practised towards insane paupers, than towards any other class of unfortunates whatever, in countries where personal slavery is not permitted.Footnote 38
Even if we set aside the fear of brutality and total neglect he speaks of as no longer realistic dangers, Mill (like anyone else) may still worry about the quality of care in state model institutions. Psychiatrists notoriously vary on whether any treatment is possible or advisable, whether to start treatment right away or observe the natural course of the disorder further, which of a variety of medications (sometimes with dramatically different risks and benefits) to use, and what the appropriate dosages are. Consultations with patients and families, and second (and third, fourth, etc.) independent opinions will thus be very valuable. Such consultations are perfectly consistent with the state model. Nonetheless, there is reason to fear they may not be carried out as vigorously as they would on the private model. On the private model, patients and substitute decision-makers have to be provided with all the information necessary to give informed consent. Psychiatrists have to tell them about alternative treatments, the nature of those treatments (i.e. whether they are medication, surgery, electro-shock, etc.), the risks and benefits of each, which one they recommend, and why they recommend it. By contrast, since the state model does not require consent from involuntary patients or their families there is less incentive to carry out consultations with the same rigour. Thus Mill may well worry that if psychiatrists can cut corners on them they sometimes will, to the cost of the quality of patient care. In evidence he gave before the Royal Commission of 1870, on the Administration and Operation of the Contagious Diseases Acts of 1866 and 1869, Mill comments:
When power is given which may be easily abused, we ought always to presume that it will be abused, and although it is possible that great precautions will be taken at first, those precautions are likely to be relaxed in time. We ought not to give powers liable to very great abuse, and easily abused, and then presume that those powers will not be abused.Footnote 39
Mill, however, has a more fundamental objection to make to the state model. This is that, on that model, a state official makes the final decision on the basis of a professional standard of best interests. This presupposes that decisions made in this way are most likely to be in the best interests of patients, and that runs afoul of his views on paternalism. According to Mill, capable individuals generally know their own interests best. As he puts it,
with respect to his own feelings and circumstances, the most ordinary man or woman has means of knowledge immeasurably surpassing those that can be possessed by any one else. The interference of society to overrule his judgment and purposes in what only regards himself must be grounded on general presumptions; which may be altogether wrong, and even if right, are as likely as not to be misapplied to individual cases, by persons no better acquainted with the circumstances of such cases than those are who look at them merely from without.
Mill allows that ‘considerations to aid his judgment’ and ‘exhortations to strengthen his will, may be offered to him, even obtruded on him, by others’. Nonetheless, he cannot be interfered with in his own interest against his will, for ‘all errors which he is likely to commit against advice and warning are far outweighed by the evil of allowing others to constrain him to what they deem his good’.Footnote 40
There is no reason to suppose that Mill would treat capable and informed individuals who suffer from mental disorders on different principles from those who are capable and informed but do not suffer from such disorders. Or that he could do so. The only possible ground for doing this would be that the mentally disordered are prone to irrationality, and even if this were true, Mill cannot sanction paternalistic interference for that reason without abandoning his opposition to paternalism. Thus, for Mill, capable and informed involuntary mental patients should be able make their treatment decisions. They should be able to refuse all treatment, and choose between alternative treatments. It further follows that when involuntary patients are not capable, substitute decision-makers should make decisions for them on the basis of what they would have wanted. Whatever one may think of Mill's anti-paternalistic argument, or the truth of his conclusion, there can be no doubt that he was firmly committed to both, and that these are their logical consequences.
Since all this is incompatible with every form of the state model, Mill would reject that model. For the same reason, he would reject those versions of the private model which require or allow substitute decision-makers to use a best interest standard to override the known preferences of the patient. It thus appears that the only model Mill could accept is the private model according to which substitute decision-makers must make decisions on the basis of a substitute judgement when this is possible and a best interest judgement when it is not. It is also plausible to suppose that Mill would approve of the standard checks and balances that go with this model, namely that treating psychiatrists may challenge the substitute decision-maker's decision by appeal to a review board, and the substitute decision-maker can in turn have recourse to the court system. To give substitute decision-makers less authority (and hence the state more) would not give sufficient weight to the preferences of the patient. To give substitute decision-makers more authority (and hence the state less), and accept willy-nilly whatever treatment plan they propose would expose the patient to the risk of inadequate care. Such a private model is commonly in place in physical medicine, and if the above is right, Mill would extend it to mental medicine as well.
The ubiquity of the private model in physical medicine also puts Mill in a position to reply to a standard objection to adopting that model in an MHA, namely that there will be delays in treatment owing to difficulty in securing the appropriate authorization. This reply is that the same expedients used in physical medicine to handle emergency or urgent situations, or cases where families are not thought to be making appropriate decisions, are available to psychiatrists. Even if these were to prove inadequate in the case of psychiatric patients, it is also possible to expedite treatment further by doing such things as setting time limits on finding substitute decision-makers, providing greater flexibility as to who can decide for patients, and fast-tracking judicial and quasi-judicial reviews. Mill thus need not (at least not without considerable further argumentation from proponents of the state model) abandon the view of treatment authorization recommended by his theory of liberty because of practical considerations.
CONCLUSION
Other issues bedevil the writing of MHAs, and it is not always possible to say how Mill would respond to them. For example, would he favour a ‘deterioration condition’ that allows for the involuntary admission of individuals who are suffering from a mental disorder, are not currently a risk to self or others, but who are expected to become such? How would he define capability, and what mental disorders would he include in an MHA? Would he think that treatment can begin as soon as the appropriateness of the admission has been confirmed by another physician, or that it must wait until all appeals are exhausted? But while what Mill would think about a range of mental health issues is unclear, if the above is right we can say how he would stand on three of the main ones. History of ideas apart, we can also learn from him. The combination of broad involuntary admission criteria, the right to refuse treatment and the private authorization model in a single MHA is as rare as plutonium. No MHA in Canada has it, and (probably because) it puts together ideas from warring ideological perspectives – the so-called ‘human needs perspective’, where the dominant aim is to protect the well-being of individuals, and the so-called ‘civil libertarian perspective’, which puts its emphasis on the freedom of the individual.Footnote 41 It is also I think right, but that is another story.Footnote 42
