This editorial appears in the December 2024 issue of the American Journal of Bioethics.
Hempeler et al.’s focus on informal coercion in mental health treatment in this issue’s target article is critically important for multiple reasons, several of which warrant explicit recognition for their particular relevance to the current state of psychiatric practice. First, over time, much of the emphasis on evaluation and assessment of coercion in the context of psychiatric care has focused on formal, legally regulated practices, such as involuntary hospitalization, restraint, seclusion and forcible treatment. Unregulated, and informal coercion, though pervasive, has received much less research and policy attention. These practices, which encompass a diverse and complex array of communicative strategies for promoting treatment adherence, have been harder to characterize, and are often underappreciated. Considerable diversity attends individual appraisals of such practices, and a consistent vocabulary has been elusive.
Second, notwithstanding significant legal attention in the US to the rights and protections afforded to persons subject to civil commitment emanating from the civil rights era, and recent trends in expansion of civil and outpatient commitment laws, the use of formal coercion has become less prominent with declining inpatient bed numbers, and reduced lengths of inpatient stay over the past 50 years. Third, the present landscape of patient rights advocacy often stands in stark contrast not only to the past exercise of power by the medical establishment in civil commitment proceedings, but also more contemporary notions of care. Specifically, The United Nations Committee on the Rights of Persons with Disabilities and the Special Rapporteur on the Rights of Persons with Disabilities in a recent statement restated its position on involuntary psychiatric treatment as a violation of human rights. Other observers have described it as an “an unresolved global crisis”. These appraisals track a shift in societal attitudes from deference to professional authority to the ascendant primacy of individual autonomy as a central moral value structuring the relationship between professionals and service users in liberal societies. In other words, there is a vast middle ground between the potential for harm vis-à-vis eclipsing of individual autonomy as a result of deference to professional judgment on the one hand and for causing harm by eclipsing care in deference to human rights as diametrically opposed to involuntary treatment even in the face of gravely disabling symptoms of serious mental illness on the other.
Against this backdrop, empowerment and autonomy of persons living with mental illness is an imperative requiring elucidation of the contours of care with dignity, and investigation and amelioration of sources of autonomy-reducing conditions such as informal coercion. To explore the dimensions of informal coercion, Hempeler et al. begin with the framework developed by Appelbaum and Szmukler. The Szmukler and Appelbaum account proposes a hierarchy of treatment pressures from rational persuasion, through interpersonal leverage, inducements or offers to threats. On this model, the boundary between non-coercive influence and coercive pressure is exemplified in the distinction between an offer and a threat. The recipient’s moral baseline, the state they were in before the proposal, is the key distinguishing feature between them: a threat renders its recipient worse off than their baseline where an offer does not. Szmuckler and Appelbaum refer to this hierarchy in their analysis of “best interest” and “capacity” based ethical justifications for treatment pressures and conclude that ethical warrants should be commensurate to the amount of pressure applied along the spectrum, with threats requiring the strongest justification.
This account of informal coercion takes valuable cognizance of morally relevant distinctions in commonly deployed communicative pressures in clinical practice. It also, however, elides much complexity. Should the subjective experience of the recipient be foregrounded before an “objective” baseline? Do the coercer’s intention matter? Can coercion occur without explicit threats? Hempeler et al. address these questions by proposing a context-sensitive framework of informal coercion, demonstrating through examples that context does matter and, even more, ought to matter in mental health treatment. Specifically, they expand on the moral baseline analysis to include the additional consideration of whether there are reasonable alternatives to the offerer’s proposal in determining whether a pressure is a threat. By situating their understanding of coercion in the recipient’s experience, Hempeler et al. subjectivize it, aligning it with other non-baseline analyses. Hempeler et al., specifically, use illustrative case vignettes to show how power imbalances in medicine, as manifested in service users’ dependencies on professionals and professionals’ ability to deploy formal coercion may create coercive experiences without explicit threats being made.
Hempeler et. al’s account helpfully frames and corrects for a neglect of the powerful structural and contextual features inherent in psychiatric treatment settings in Szmukler and Appelbaum’s model. By including consideration of power differentials in professional – service user interactions, the authors direct our attention to systemic and structural features affecting persons living with mental illness in treatment settings. They invite consideration of what Iris Marion Young refers to as disempowering tendencies “embedded in unquestioned norms, habits and symbols, in the assumptions underlying institutional rules and the consequences of following those rules”. For example, persons living with and exhibiting signs and symptoms of mental illness may be civilly preventively detained by mental health professionals on the basis of risk of harm to self or others with more limited due process and/or legal/regulatory oversight than persons in police or other legal custody. In many jurisdictions, even admissions termed voluntary have significant limitations on the ability of patients to secure discharge upon request. The relative positionalities of professionals and service users, and their differential privileges in exercising autonomy, control and choice extend beyond individual intentions, and instead enact or reproduce, sometimes through unintending local actors, a more pervasive logic of social and institutional power upon marginalized and vulnerable subjects. This framing sensitizes us to a reflective vigilance against seemingly well-intentioned liberal paternalisms that may nevertheless promote disproportionate uses of power, for instance, if implicit unexamined biases against minoritized groups are realized in overestimations of risk, and related coercive excess. It also protects against a compounding of existing structural harms, when systemic disadvantages such as disparities in access to care causally contribute to situations in which coercive practices are enacted upon members of marginalized groups.
With its focus on recipient experience, this model also mitigates against epistemic and hermeneutic neglect, error, or frank injustice in the exercise of treatment pressures. By foregrounding service user experience, it validates users as articulate knowers and testifiers of their experience. Hempeler et al. refer mainly to a cognitive episteme here, evaluable by rational observers, but affective knowledge and perspectives may be just as relevant, if not more so. By engaging the positionality of the recipient of a treatment pressure, rather than the offerer, Hempeler et al. further acknowledge the reality of the treatment landscape as it is rather than engaging a fictional, objective ideal in which individuals have full autonomy vis-à-vis treaters and institutions free from implicit (and/or explicit) limitations or repercussions.
Although Hempeler et al, identify their project as limited to the “analytical” question of what counts as informal coercion, and not what justifies it, but in extending their model to prescriptive clinical recommendations, they inevitably invoke normative considerations of justification, at least in part, we posit, because coercion is an inherently value-laden, moralized construct. In other words, if their account of coercion is to be action-guiding, it must draw upon a framework of practical morality which can discriminate between normative judgments motivating one course of action over another. The authors explicitly seek to limit the scope of consideration of service-user experience by engaging a reasonableness standard, i.e., that a recipient’s beliefs about being coerced by a proposal are justified if, on disinterested examination, and considering the objective facts of their situation, it can reasonably be concluded that they are unduly constrained in exercising free choice and accepting the proposal makes them worse off from their moral baseline. In taking this position, Hempeler et al. invoke “everyday judgments” and by implication, everyday judges, as the arbiters of this reasonableness standard, and assume an intuitive consensus on such arbitration.
Unpacking this standard for its implicit assumptions, can also shed light on the values that inform this account. On our reading, Hempeler et al.’s model accommodates both liberal-rationalist, and structuralist conceptions of autonomy. In according primacy to service users’ subjective experiences, it relies on their capacity for rationally appraising motivations, incentives, deterrents and consequences, even as both vignettes feature deferential, self-abnegating subjects whose autonomous preferences were deformed by external pressure. Then, in invoking a normative standard of justification that adjudicates the rationality or otherwise of service users’ beliefs, it presupposes both a baseline commonality of perception between service users and mental health professionals as well as a normative competence among professionals who in turn can track service users’ moral situation objectively, including relevant contextual factors. These implied notions of autonomy, ostensibly carefully circumscribed to support a justiciable rational-objective standard and to avoid critiques of reductio ad mere subjectivity, however, are not only conceptually limiting for Hempeler et al’s model in important ways, but also, we argue, needlessly constrain its practical utility.
First, these accounts of autonomy may be too atomistic, failing to see service users as encumbered beings, constituted by their embeddedness within communities, social relations, traditions, and shared histories and subordinate to the values that ground them. Service users’ autonomy, on this view is realized in part within claims of community and through obligations of solidarity that extend beyond their person. On this reading, service users may view treatment pressures from family members, and professionals with whom they have enduring relationships along a spectrum that does not map neatly onto their model (or Szmukler and Appelbaum’s either). Context, in this sense would be inclusive of more than impersonal structural determinants and architectures, or alienating power dynamics, and instead account also for service users’ social relations and community values. For example, in situations in which a service user’s autonomy is impaired by illness, treatment pressures—even those that may be informally coercive—could in fact ultimately promote autonomy when they result in acceptance of treatments that improve symptoms of mental illness and promote not just cognitive capacity, but also relationality and connection to what matters most in the individuals’ life.
Second, in proposing a prescriptive standard for justified beliefs on coercion among service users, the authors implicitly nominate autonomous professionals as arbiters of this standard. In so doing, they take insufficient account of autonomy diminishing pressures on professionals themselves, such as third party influences in users’ family, threats of litigation, worries about being held responsible for negative consequences of service users’ non adherence to treatment, and constraints imposed upon their relationship with services users by imperfect practice settings, staffing shortages, overwork, and time limitations associated with healthcare delivery systems such as managed care. Context, in this sense would extend beyond user specific factors, to include professional related factors as they bear on the interpersonal transactions being assessed for coercion.
Finally, Hempeler et al. need not constrain themselves to an appeal to objectivity leading to these positions. While it is critical that they take into account the practical applicability, utility, and administrability of any standard they propose regarding the evaluation of coercion, the concern for an objective, impartial reference point is misguided and unnecessary. Instead, we contend that the evaluation of autonomy in the context of treatment decision ought and can rest on an explicit engagement of particularity and materiality as a baseline. Our claim is supported by the administrability of a particularity standard for informed consent as opposed to reasonable physician or reasonable patient standards. Specifically, both ethics and law already recognize the importance of the agent’s understanding and situatedness and employ standards based on it. This standard would not require professionals to be arbiters of whether patient perceptions are reasonable or unreasonable but rather to fulfill their fiduciary responsibility to persons in their care by considering the patient’s positionality and perspective in assessing how their treatment-promoting interventions are likely to be perceived. This standard acknowledges both a care and attention to the thoughts, behaviors, attitudes, and feelings of the service user and a humility that what a mental health professional can do in reality is their best to meet the patient where they are rather than to uncover or determine a particular objective assessment. Assessing the professional’s assessment, then, takes on a different dimension, i.e., whether what the mental health professional did to assess the patient’s likely perceptions and the conclusions they reached met the materiality standard, or what the particular patient, as situated, would or could have reasonably understood or perceived. This standard, e.g., would account for patient symptoms, such as delusions, that the treater knew or should have known about, regardless of the fact that these beliefs are false. This standard furthermore embraces and delivers on the practice recommendations and professional responsibilities highlighted in Hempeler et al.’s account aimed at respecting—if not promoting—the dignity of those living with mental illness and seeking treatment and creates space for the possibility of less coercive but still effective treatment promoting actions by mental health professionals.
In the end, Hempeler et al.’s context sensitive account of informal coercion meaningfully advances the literature on this underexamined but pervasive clinical reality. It promotes epistemic regard for the experiences of persons with mental illness seeking treatment and informs analyses on coercion with relevant structural considerations. While as presently conceptualized it must contend more rigorously with its assumptions about autonomy, objectivity, reasonableness, and contextual relevance, we have proposed the sketch of an alternative view based in positionality and epistemic humility that could embrace the important ethical considerations inherent in the authors’ desire to lessen coercion in mental health treatment while also being practically applicable. If nothing else, anyone involved in the care of persons living with mental illness cannot ignore the central claim of this important manuscript: context matters.