Double Standard on Capacity and Consent?

To the Editor: In the editorial by William T. Carpenter, Jr., M.D. (1), his juxtaposition of involuntary treatment on one hand and the requirement for consent to participate in research on the other exposes a double standard on decision-making capacity that goes to the heart of the stigmatization of the mentally ill and, by association, of those who care for them.

Dr. Carpenter expresses clearly the need for mentally ill patients to have the capacity to consent to research and describes supporting guidelines adopted by the Maryland Psychiatric Research Center. These aim to enhance capacity (the ability to “understand, appreciate, reason”) by providing information in an educational context and to help clarify the consequences of participation by including significant others or advocates in the decision-making process. This approach is excellent.

But why should this not apply equally to a more pressing question for most patients with mental disorders: what justifies treatment against their will? Mental health legislation almost always ignores capacity. This is in sharp contrast to treatment for “physical” disorders, in which capacity and consent are central; a patient who has capacity cannot be treated nonconsensually, no matter how drastic the health consequences. The report by Gardner et al. (2), addressed in the editorial, involved patients involuntarily committed to the hospital according to common criteria—the presence of mental illness and dangerousness to either themselves or others. There was no consideration of the capacity to make treatment decisions and, if capacity is impaired, whether nonconsensual treatment is in the patient’s “best interests”—a question in which values loom large.

The standards for nonconsensual treatment for physical disorders should apply equally to those suffering from mental disorders (3, 4). An expert committee to review the Mental Health Act (1983) in England and Wales has supported a capacity and best interests criterion (5), but this is too much for a government preoccupied with dangerousness and public safety (6). Dr. Carpenter sees the recommendations of the National Bioethics Advisory Commission as “another expression of society stigmatizing the mentally ill and those who serve them.” This is hardly surprising when we have legislation restricted to a single class of patients (the mentally ill) that, by ignoring questions of capacity and best interests, carries a built-in assumption of incompetence or not-quite-whole personhood. Such legislation fosters stigmatizing stereotypes of mental illness.