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Coercion in caring homes

In 2005, 40.739 people were permanent residents in Norwegian caring homes and/or homes for the elderly.[1] Research shows that the use of coercion in Norwegian caring homes is extensive. The most frequently observed cases are associated with activities of daily living (ADLs), mechanical coercion and coercion in conjunction with medical examination and treatment.[2] Approximately 80 % of the residents in caring homes suffer from dementia.[3] These residents experience, according to research, coercive measures in their daily living more often than other groups in the caring homes. In this paper I will discuss the question: How can the use of coercion towards demented patients in caring homes be justified? In doing that, I will primarily focus on the term “patient autonomy”, which is “the right of patients to make decisions about their medical care without their health care provider trying to influence the decision”.[4] Patient autonomy plays a huge role in Western medicine, especially with regards to the legal conditions under which Western medicine is practiced.[5] A key point in my discussion will be whether patient autonomy can be said to be an equal right for all human beings, including the demented, and if the use of coercive measures in caring homes can be said to be a breach of this right. Furthermore I will propose paternalism as an alternative to autonomy, and discuss coercion in light of this term. In giving these issues a theoretical framework, I shall proceed to consider views propounded by the philosophers John Stuart Mill and Immanuel Kant, whose theories of respectively utilitarianism and deontology (duty-based ethics) I consider highly relevant for these issues.

 

The demented are, as mentioned above, more exposed to coercive measures than other patients in caring homes. In a further discussion of the morality of coercion it is necessary with a clarification as to what this term entails. “To coerce” is by the Compact Oxford English Dictionary for Students defined as to “persuade an unwilling person to do something by using force or threats”.[6] More specifically, one could consider how coercion is used in practice towards demented patients. The Norwegian nurse Øyvind Kirkevold has conducted a series of clinical studies on the use of coercion in Norwegian caring homes. Kirkevold distinguishes between five different types of coercion: mechanical coercion (e.g. the use of a bed guard), non-mechanical coercion (shielding, obtaining or holding back patients), electronic surveillance, use of coercion in doing medical examinations and giving treatments and the use of coercion in ADLs. Also the term chemical coercion (the use of medications, e.g. sedatives, to control a patient’s behaviour) is mentioned in Kirkevold’s studies.[7] Coercion is, in other words, prevalent in many different forms in caring homes. Furthermore, Kirkevold was able to show through his studies that the prevalence of coercive behaviour towards the patients in Norwegian caring homes is extensive, especially towards the demented. 45 % of the patients in shielded units for demented experienced at least one coercive measure throughout a week.

 

Also relevant here is a clarification of what the Norwegian law says about it. This would, as such, reflect society’s official perception of coercion. In law coercion is associated with the patients’ ability of giving consent to treatment. The Norwegian Patients’ Rights Act states in section 4-1 that health care “may only be provided with the patient’s consent, unless legal authority exists or there are other valid legal grounds for providing health care without consent”.[8] These “other valid legal grounds” are further clarified in section 4-3, which states that the competence to give consent “may cease to apply wholly or partly if the patient on account of (…) senile dementia or mental retardation, is clearly incapable of understanding what the consent entails”[9]. This last part is interesting. The law states that senile dementia may make a patient incapable of understanding what the consent entails. This clearly corresponds with what the diagnostic criteria of dementia entail.

 

Dementia is by the American Diagnostic and Statistical Manual of Mental Disorder, DSM-IV, characterized by “multiple cognitive deficits that include impairment in memory”.[10] The cognitive deficits may include receptive aphasia, where a patient’s understanding of written and spoken language is compromised, and expressive aphasia, which alters the patient’s ability of expressing their wants. Because of receptive and expressive aphasia, many demented patients might have difficulties understanding medical information, and expressing wishes about their medical treatment. As such, informed consent might not always be achievable in the case of demented patients, and the law permits in these cases for a health care provider to “make decisions concerning health care that is not of a highly invasive nature (…)”[11]. This may regard coercion in conjunction with ADLs, which is the form of coercion that is most often seen in caring homes. In other words, the law seems to open up for the use of coercion in some cases, amongst these where diseases like dementia causes the patient to not fully comprehend the consequences of decisions made about their medical treatment. Nevertheless, a patient’s right to make decisions about their own health care is stressed in the law, and legally coercion needs to both be justifiable and documented in each case. It is this documentation that often lacks in Norwegian caring homes, according to Kirkevold’s studies.[12] One may wonder if the cause of this is health care providers being slack, or them feeling that the coercion used is necessary, but not morally the right thing to do, and therefore dreading to document it. This leads us to a discussion of coercion from an ethical point of view.

 

I have discussed coercion in light of patient consent. The right to giving consent to a treatment is related to the right to individual autonomy. Individual autonomy is “(…) the capacity to be one’s own person, to live one’s life according to reasons and motives that are taken as one’s own and not the product of manipulative or distorting external forces”.[13] Autonomy is a central value in the philosophical theories of both the utilitarian John Stuart Mill (1806–1873) and the deontologist Immanuel Kant (1724–1804)[14], although they present two different means of justification.

 

Kant’s idea of autonomy is directly related to his fundamental principle of morality – the Categorical Imperative (CI). Kant formulated the CI in four different versions that, of his own claiming, are “basically only so many formulations of precisely the same law”. It is the autonomy formula I will focus on. It proposes “the Idea of the will of every rational being as a will that legislates universal law[15]. But before further examination of this version of the CI, I will consider Kant’s view on human beings.

 

Kant thinks that human beings are citizens of two “worlds”, one in which we are governed by our lusts and drives, and one which in which we are governed by reason.[16] When presented to a moral dilemma, the reason will be able to eye out the alternative that is in accordance with our duties. A further elaboration of the concept of duty in Kant’s philosophy will not, though, be given here. The main point is that a capacity for rationality is a prerequisite for the ability of acting autonomously. Only rational humans can opt out lusts and drives, and rationally act in accordance with a set of universal duties. Hence an autonomous will is “a will that legislates universal law”, as stated in the autonomy version of the CI.

 

What needs to be specified is that Kant does not review autonomy on an individual basis. In his moral philosophy, Kant does not try to defend every individual’s right to autonomy in the form of liberty. Kant’s autonomy term is more of a characteristic of morality (an autonomous will is a prerequisite for moral actions) than it is a fundamental right for the individual. Still one could claim that autonomy is valuable for the individual, as it is so closely linked to morality. In a way Kant gives worth to individual freedom in the way of equalling it to moral status. What makes this more complicated in the case of demented patients, is the uncertainty as to whether they have a realistic possibility of being autonomous. This will be further elaborated later on.

 

A philosopher who reviews autonomy in a more individually based matter is John Stuart Mill. He is known for his theory of utilitarianism, which claims that only the action that produces the best end results is a moral action. The intentions in themselves are not given importance, but rather what consequences the acts will produce in the end. Given this, one might think that autonomy, as a principle, could not be defended from a utilitarian point of view. Each situation needs to be considered separately, depending on all the consequences of an event. But Mill actually says the opposite about autonomy. In his most famous work On Liberty (1859)[17] he claims that

 

the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. (…) Over himself, over his own body and mind, the individual is sovereign.[18]

 

This seems not to be on the same page as his assertion that what gives the best consequences, is what is the morally right thing to do. How could this be? Given a different perspective of Mill’s utilitarianism, one could defend autonomy. In the book On Liberty Mill claims that “(…) the free development of individuality is one of the leading essentials of well-being”.[19] If achieving free development of individuality is a goal in itself, then our actions should always aspire to produce individual autonomy as a consequence. Considering the two approaches to Mill’s philosophy, what seems to most correctly summarize his thoughts is to say that Mill is a defender of individual autonomy, and a strong in that.

 

The antagonist to autonomy is paternalism; ”the interference of a state or an individual with another person, against their will, and defended or motivated by a claim that the person interfered with will be better off or protected from harm.”[20] This definition correlates well with a certain type of paternalism: welfare paternalism, which focuses on the personal interests (physical and psychological) of the object of interference. Coercion towards the demented can be defended from a paternalistic point of view, if the coercion is thought to be in the best interest of the patients. One must also take into consideration the aim of the interference of someone’s actions. When someone acts by certain means, they usually attempt to achieve some willed ends. A paternalist can interfere with someone’s means if the paternalist thinks it is likely the means will defeat the willed ends. This type of paternalism is called weak paternalism[21], and will justify coercion in the cases where the demented don’t understand the consequences of their actions.

 

Coercion can hardly be justified based on individual autonomy as a principle, as the act of forcing someone to do or accept something they are against so clearly is not in accordance with the definition of individual autonomy previously given. Paternalism, on the other hand can, as I have shown, justify coercion if it is in the best interest of the object of this act. In caring homes today the autonomy principle seems to be set-aside in the extensive use of coercion that has been shown through research. Also the law opens up for welfare paternalism, when depriving certain patient groups of their right to giving medical consent. Even though patient autonomy seems to be an important principle in the Western health care system, with the focus on consent in The Patient’s Rights Act[22], the demented have their patient autonomy infringed on several occasions when exposed to coercive measures. The question that follows from this is whether demented patients should have the right to patient autonomy.

 

Considering this from a Kantian perspective requires some debate about the status of demented patients in Kant’s philosophy. Kant debates autonomy with the assumption that all human beings have the capacity of a rational will. But is this entirely true? As mentioned earlier the symptoms of dementia include multiple cognitive deficits. These deficits may in the cases of severe dementia alter the patient’s capability of rational thinking. Kant was aware that people exhibit rationality to a different extent, a topic he elaborated in his work Anthropology from a Pragmatic Point of View.[23] The fact that severely demented don’t have a fully rational mind, changes what Kant says about morality. If demented patients don’t have the capacity of being autonomous, could we then claim coercion to be morally wrong? Coercion is morally wrong, in that it infringes someone’s autonomy, but how can one infringe something that isn’t there? Albeit, it is necessary to specify that coercion can be discussed without taking patient autonomy into account. As mentioned a central value for Kant is duty. In his opinion we have the duty to act, or restrain from acting, in certain ways. It is a duty not to lie, not to kill etc. Refraining from coercion could be considered a duty.

 

I mentioned earlier that Mill defends the autonomy of all human beings, despite it not always being in their best interest. But this assertion is quickly followed up by the specification: “[we] are not speaking of children (…). 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.” [24] Legally one might compare the demented to children today. The Patients’ Rights Act section 4-4 states that the parents of children under the age of 16 are entitled to consent to health care for them. Similarly, health care personnel and the next of kin are allowed to make decisions regarding health care on behalf of a patient who is not competent to give consent, such as a demented patient.[25] Not only is it relevant to compare demented patients to children, at least legally, but the severely demented also fall into Mill’s category of those who cannot take care of themselves. Hence, also Mill’s defence for the individual’s autonomy falls short in the case of demented patients, and paternalism seems here to be acceptable. Thereby coercion can morally be justified in the cases where the demented need protection against themselves, for their own good. An example of this is coercing a patient into receiving medical treatment, as is highly prevalent in Norwegian caring homes. Moreover Mill only defends individual autonomy when it does not harm others. Coercion is then morally justifiable when it is used to stop the demented patients from in any way “harming” the other patients in the caring homes. One imaginable situation is a demented patient disturbing the other patients with night walks. The use of a bed guard, a form of mechanical coercion, is then justifiable.

 

What complicates this form of paternalism is that it is hard to determine what is in other peoples’ best interest. In the case of demented patients, one could claim that coercing the patients into doing what the health care providers think is in their best interest, might not make the patients happier at all, because of the distress of being coerced into doing something unwillingly. Determining whether more good than harm is done depends on our understanding of the good of persons; whether it means living a longer, healthier life, being less depressed etc., or being respected as an independent, autonomous person with the right to make decisions for oneself. This may vary between the health care personnel in caring homes.

 

It is also important to take into consideration that there are several degrees of dementia. Dementia in its early stages does not fully deprive the patients of their capacity for rational thinking. This capacity probably does not decline severely until the last stages of the disease. Furthermore in the early onsets of dementia patients are quite often capable to some extent of taking care of themselves. Therefore the question of autonomy for the demented from Kant and Mill’s perspectives only applies to the severely demented patients.

 

Having a more practical view on the topic, one could take into account the thoughts of Onora O’Neill. O’Neill argues that the form of patient consent that has developed has nothing to do with patient autonomy. Today, she claims, doctors and hospitals require a very explicit and specialized form of consent, that often involves documents, witnesses etc. But people don’t always understand everything to which they give consent. Consent is legally effective, but nothing more. “And to call all this patient autonomy is at the very least inflationary, and I think misleading,” O’Neill says.[26] Furthermore she compares today’s consent to the more implicit consent that was given before the 1970s. It was based on a mutual understanding between patient and doctor. This is not irrelevant to consider in the case of demented patients. One might question whether the huge focus on the legal properties of coercion (i.e. getting legal consent to perform coercion) really serves any function for the demented. It could certainly protect the demented from unnecessary coercive measures, because of the health care providers’ constant demand to justify their actions. But could it also be useful to emphasize the relationship between the patients and the health care providers in caring homes, and the understanding of the needs of demented patients? At least, a fully legal focus on coercion would be insufficient.

 

I started by asking the question: How can the use of coercion towards demented patients in caring homes be justified? When considering the views of the philosophers John Stuart Mill and Immanuel Kant, I found that coercion in general couldn’t be defended, as it is on a collision course with individual autonomy, which is an important principle for both of them. Nevertheless, individual autonomy is merely defended for fully rational, grown up people who know how to take care of themselves. In other words, individual autonomy couldn’t be defended for the demented, and hence paternalism could in many cases be justified. As paternalism makes it morally acceptable to interfere with other people’s lives, coercion is morally justifiable based on this. Albeit, one must take into consideration that Kant also emphasizes our duties to act or restrain from acting in certain ways, and that coercion could be considered as non-coherent with our duties. With a less theoretical approach to coercion, one might question the function of always demanding the patients to understand what is being done, if they are not fully capable of doing so. Some think that doing what is in the best interest for the patient is more important than whether coercion in itself is morally acceptable or not. This conclusion seems to be coherent with what the Norwegian law says about coercion. It allows coercion when the patients don’t understand what is in their best interest, and from a philosophical point of view this seems from some perspectives to be morally acceptable. Maybe the reason for the lacking documentation of coercion in Norwegian caring homes has more to do with a lack of resources and time than it being considered morally unacceptable by health care personnel.

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American Psychiatric Association, 1995. Diagnostic and Statistical Manual of Mental Disorders DSM-IV. Fourth Edition. Washington, DC: the American Psychiatric Association.

 

Christman, John, 11.08.09. Autonomy in Moral and Political Philosophy. Available through Stanford Encyclopedia of Philosophy <http://plato.stanford.edu/entries/autonomy-moral/> [Accessed 14 November 2012]

 

Dworkin, Gerald, 01.06.10. Paternalism. Available through Stanford Encyclopedia of Philosophy <http://plato.stanford.edu/cgi-bin/encyclopedia/archinfo.cgi?entry=paternalism> [Accessed 14 November 2012]

 

Encyclopædia Britannica Online, 2012. liberalism. Available through <http://www.britannica.com/EBchecked/topic/339173/liberalism#toc281892> [Accessed 15 November 2012]

 

Haugstad, M.; Deisz, Ø., 2012. Færre piller til seniorene. Available through Bergens Tidende <http://www.bt.no/nyheter/lokalt/Farre-piller-til-seniorene-2771975.html> [Accessed 28 September 2012]

 

Hookway, Christopher, 16.08.08. Pragmatism. Available through Stanford Encyclopedia of Philosophy <http://plato.stanford.edu/entries/pragmatism/> [Accessed 14 November 2012]

 

Johnson, Robert, 06.04.09. Kant’s Moral Philosophy. Available through Stanford Encyclopedia pf Philosophy <http://plato.stanford.edu/entries/kant-moral/#ForUniLawNat> [Accessed 14 November 2012]

 

Kirkevold, Øyvind, 19.05.05. Bruk av tvang i sykehjem. Available through Tidsskrift for Den norske legeforening <http://tidsskriftet.no/article/1192223> [Accessed 28 September 2012]

 

Lovdata, 22.06.12. LOV 1999-07-02 nr 63: Lov om pasient- og brukerrettigheter (pasient- og brukerrettighetsloven) [pasientrettighetsloven]. Available through <http://www.lovdata.no/all/hl-19990702-063.html> [Accessed 14 November 2012]

 

Medicine Net, 14.06.12. Definition of Patient Autonomy. Available through <http://www.medterms.com/script/main/art.asp?articlekey=13551> [Accessed 3 November 2012]

 

Mill, John Stuart, 1850/1978. Anthropology from a Pragmatic Point of View. Illinois: The Board of Trustees, Southern Illinois University. Available through <http://books.google.no/books?id=TbkVBMKz418C&printsec=frontcover&hl=no&source=gbs_ge_summary_r&cad=0#v=onepage&q&f=false> [Accessed 14 November 2012]

 

Mill, John Stuart, 1859/2010. On Liberty. London: Penguin Books.

 

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[1] Statistics Norway (2009)

[2] Kirkevold, Ø. (2005)

[3] Haugstad, M.; Deisz, Ø. (2012)

[4] Medicine Net (14.06.12)

[5] O’Neill, O. (21.10.07)

[6] Oxford University Press (2006)

[7] Kirkevold, Ø. (2005)

[8] Lovdata (22.06.12)

[9] Ibid.

[10] American Psychiatric Association (1995), p. 127

[11] Lovdata (22.06.12)

[12] Kirkevold, Ø. (2005)

[13] Christman, J. (11.08.09)

[14] Ibid.

[15] Johnson, R. (06.04.08)

[16] Svendsen, L. Fr. H. (01.11.12)

[17] Wilson, Fred (10.07.07)

[18] Alzheimer Europe (09.10.09)

[19] Mill, J. S. (1859/2010), p. 83

[20] Dworkin, G. (01.06.10)

[21] Ibid.

[22] Lovdata (22.06.12)

[23] Mill, J. S. (1850/1978)

[24] Mill, J. S. (1859/2010), p. 17-18

[25] Lovdata (22.06.12)

[26] O’Neill, O. (27.05.12)