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Review of Literature Relating to Mental Health Legislation

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CHAPTER 10: LEAST RESTRICTIVE ALTERNATIVE

INTRODUCTION

10.1 Least restrictive alternative ( LRA) is one of the underlying principles of the Mental Health (Care and Treatment) (Scotland) Act 2003. It has been picked out for special consideration here because of its relationship with two new provisions to the new Act that have generated considerable interest, namely, compulsory treatment in the community and advance statements. It is a concept on which there is little British literature and the review reflects the American bias in the literature.

APPROACHES TO LEAST RESTRICTIVE ALTERNATIVE

10.2 In the USA the concept of LRA has developed from case law since the 1960s and covers both least restrictive treatment and least restrictive setting. It came about to a great extent because of de-institutionalisation (Marty and Chapin 2000, Fields and Ogles 2002) and is based on ' the broad constitutional principle of "less drastic means"' (Marty and Chapin 2000). In mental health legislation this covers involuntary commitment, consent to treatment and the right to refuse treatment. Marty and Chapin (2002) point to the ' right to freedom from harm' upheld in case law, in parts of the USA at least. This might suggest that a balance is required between least restrictive and appropriate protective management or treatment.

10.3 It is the connection with de-institutionalization that has linked the concept almost irrevocably with anything which is not hospital care, to the extent that compulsory community treatment is seen as by definition as less restrictive than compulsory inpatient treatment. This seems to have been the sense of the approach to LRA during the review preceding the introduction of the Mental Health (Care and Treatment) (Scotland) Act 2003. This assumption has been challenged and patient's attitudes to compulsory community treatment have already been discussed, including the very restrictive nature of some community care orders in Scotland (see paragraph 6.69 onwards).

10.4 Another approach to LRA is to see it as an expression of a patient's wishes. Thus the patient's choice of treatment or place to receive treatment is, by definition, the least restrictive for them (Atkinson and Garner 2002). The question then becomes whether LRA is defined for a population or by an individual. One way of assuring that the individual is able to secure their LRA when unwell is through the use of advance directives and advance statements. This requires the individual to consider the alternatives which might then be used if they refuse a particular treatment intervention (notably medication).

Least restrictive alternative in the United States of America

10.5 Reviewing LRA in the USA, Currier (2003) uses the current regulatory language in the States of 'chemical restraint', although making it clear that ' "chemical restraint" and "involuntary treatment" are inter-related but not equivalent concepts'. He suggests that 'chemical restraint' may require a different definition from 'acceptable forced treatment' but even chemical restraint is not uniformly or unambiguously defined. Definitions do, however, suggest the use of medication to control behaviour, probably in an emergency situation, out-with standard treatment for the condition.

10.6 Forced medication to treat an ongoing psychiatric situation has different parameters. Although some may argue that psychotropic medication itself is 'very restrictive' because of its impact on cognition, which is then defined as a loss of personal liberty (Fields and Ogles 2002) others would argue that it can also restore functioning. Individual patient's attitudes to their responses to medication will surely indicate which they experience as least restrictive.

10.7 Discussing the clinical use of medication, including in emergency situations, is out-with the scope of this review although it should be noted the Mental Health (Care and Treatment (Scotland) Act 2003 makes provision for how and when medication can be given in an emergency, or out-with accepted doses.

10.8 The issue here is whether 'chemical restraint' is a less restrictive or less invasive alternative to other alternatives such as physical restraint and seclusion. This also takes the debate back into the inpatient setting. Currier (2003) notes that medication is, in many health care settings ' considered a less invasive alternative to physical restraint' but that this is not the case in federal policy where ' chemical and physical restraint are generally treated in the same way'.

10.9 Concern has been expressed in the USA about the use of physical or mechanical restraints and seclusion in in-patient settings and nursing homes and various programmes have been put in place to reduce their use. Reviewing the literature, Fischer (2003) suggested six elements that contribute to successful reduction in their use. These were: endorsement of the programme by senior administrators; participation of patients/treatment recipients; a general change in the local culture; appropriate staff training, especially in relation to interpersonal respect; the use of data to identify patterns and outliers and then to monitor change; and, an emphasis on individualised treatment, which might include use of medication.

10.11 The impact of such programmes is demonstrated in one psychiatric centre in New York which reduced the use of restraint and seclusion by 67% in about two years (Fisher 2003). It should be noted, however (by those who want to refuse medication) that this was achieved, in large part, by a two-pronged approach to medication.

10.12 The first, general element, was to ' avoid psychopharmacologic complacency' and to try various medication regimes, with various combinations of drugs tried. It was noted that 'the addition of ECT to clozapine also proved helpful for several recipients'. A more specific element was ' the aggressive use of clozapine'. Fisher reports that in 'a few cases' where refusal of clozapine 'remained adamant' and 'highly dangerous behaviour persisted' court orders were obtained to administer clozapine, even if this required ' administering the first dose by nasogastric tube'. At his point the question of what is least restrictive becomes very difficult to ascertain. The observation that in:

' almost all of these court-ordered cases, once the effects of clozapine became evident, recipients were willing to continue its use on a voluntary basis'

does not necessarily mean that patient's did not feel coerced. No evidence is given from the patient's perspective that it was the effect of the medication rather than the method of its administration that led to this change of heart.

10.13 Nonpharmocological interventions were also employed and Dialectic Behaviour Therapy was described as being the 'most powerful'. This was not only because of its impact on giving patients appropriate skills to manage their mental state and associated behaviour but also its ' powerful impact on reducing inappropriate reactions on the part of staff, which could in turn lead to the unnecessary use of restraint or seclusion'.

10.14 When considering LRA in relation to children Fields and Ogles (2002) remind us that this includes the use of the least restrictive educational setting. The views of medication and other interventions are hotly contested however (Fields and Ogles 2002, Schoenwald 2002).

10.15 Supporting the principle of LRA under the Mental Health (Care and Treatment) (Scotland) Act 2003 is unlikely to be straightforward. Any attempt to use this as an outcome measure will require very careful definition and a variety of perspectives.

SUMMARY

· Least restrictive alternative ( LRA) is one of the underlying principles of the Mental Health (Care and Treatment) (Scotland) Act 2003 and has a special relationship with compulsory treatment in the community and advance statements.

· The literature is predominately American.

· There has been a tendency to assume that LRA means treatment out-with an institutional setting, but a different approach would suggest that it means treatment in accord with a patient's wishes.

· Reduction in the use of seclusion and restraint is accompanied by an increase in the use of psychotropic medication.