1.3.3 Power and Coercion in Mental Health
Other areas of law around the world overtly discriminate against people with lived experience and psychosocial disability, which adds to the sensitivity of data concerning mental health. Discrimination in law could include preventing a person with a mental health diagnosis from holding public office, migrating into particular countries, and working in particular professions.79 Indeed, some countries continue to criminalise suicide attempts. For example, Section 226 of Kenya’s penal code states that ‘any person who attempts to kill himself [sic] is guilty of a misdemeanour’.80 Around 20 countries still criminalise suicide attempts, according to a 2021 report by the International Association for Suicide Prevention and United for Global Mental Health.81 Automated suicide alert programs must therefore be applied with extreme caution (see section on Non-Discrimination and Equity below)
There are also well-established examples where people with psychosocial disabilities and mental health diagnoses are occasionally subject to political scapegoating and public scare campaigns that attract intrusive and discriminatory proposals for state intervention.
CASE STUDY: ‘SAFEHOME for Stopping Aberrant Fatal Events by Helping Overcome Mental Extremes’ – Proposed Behavioural Monitoring and Preventive Policing
In 2019, the Washington Post reported that a prominent US businessman briefed top officials of the Trump administration, including the then president and vice president, on a proposal ‘to create a new research arm called the Health Advanced Research Projects Agency’.82 The advisor promoted a program titled, ‘SAFEHOME for Stopping Aberrant Fatal Events by Helping Overcome Mental Extremes’ that called for experimentation to explore whether ‘technology including phones and smartwatches can be used to detect when mentally ill people are about to turn violent’.83 The proposal was not pursued by the time Donald Trump left office in 2020
One category of biometric monitoring technology more broadly, known as ‘anomaly detection’, may have repercussions for people with psychosocial disabilities and lived experience if used in public surveillance. According to one report, automated surveillance systems are designed undertake ‘automatic detection and tracking of unusual objects and people’.84 The literature on anomaly detection, according to a report for the ACLU, is ‘full of discussion of algorithms that can detect people or behaviours that are “unusual,” “abnormal,” “deviant,” or “atypical”’.85 (See above the discussion about the politics of terminology in the mental health context, including characterisations of ‘deviance’ and ‘abnormality’, page 13).86 The authors warn that identifying statistical deviance is not a negative thing per se but when it ‘shades into finding deviant people it should raise alarms’,87 and given the historical and current exclusion of, and social hostility against, people with lived experience and psychosocial disability, and other disabilities, such as intellectual and cognitive disabilities, this is particularly troubling
A less experimental form of electronic monitoring at the intersection of mental health and criminal justice is the use of monitoring of people in forensic mental health services using global positioning system (GPS). Electronic monitoring devices record and regularly transmit data on a person’s location via devices fixed to his or her body. Some GPS devices, such as devices affixed to a person’s wrist or ankle, can be linked to blood-alcohol monitors.88
CASE STUDY: GPS Surveillance of Forensic Psychiatric Patients in Three Jurisdictions
Two jurisdictions in Australia authorise health services to impose involuntary ‘monitoring conditions’ on people detained in forensic psychiatric settings using electronic GPS devices, typically in the form of electronic ankle bracelets.89 In one jurisdiction, the program was advanced by government against the submissions and evidence of medical practitioners.90 In an appeal brought by a man subject to the surveillance regime,91 a treating psychiatrist submitted that ‘[n]ot only did [the] device add nothing to his clinical management or risk reduction, it had the effect of hindering his rehabilitation’.92
In England and Wales, GPS surveillance of people in forensic mental health settings is only possible if they consent to it.93 In Nova Scotia, Canada, legislators have prohibited GPS surveillance of forensic mental health patients in any form, with lawmakers citing concerns that it violates human rights.94 The province commissioned three reports into the clinical and legal issues, and each study indicated that ‘there was no support or even speculative support that electronic monitoring would enhance public safety.'95
More issues concerning involuntary psychiatric interventions and computer technology will emerge in coming years, raising pressing questions. Will monitoring devices be imposed in involuntary psychiatric interventions in the civil context, such as ‘community treatment orders’? Should algorithmic technologies be used at all in coercive crisis responses? How might these concerns relate to broader efforts in recent years to reduce and eliminate coercion in mental health settings, and to debates about ‘abolishing versus reforming’ involuntary psychiatric interventions?96
The future of algorithmic and data-driven technologies in coercive state interventions remains uncertain—but imagined futures are guiding activity today. As one industry publication that promoted technology in healthcare stated
- In the future, patients might go to the hospital with a broken arm and leave the facility with a cast and a note with a compulsory psychiatry session due to flagged suicide risk. That’s what some scientists aim for with their A.I. system developed to catch depressive behavior early on and help reduce the emergence of severe mental illnesses.97>
This imagined future is one possibility. Others will reject this vision of expanded risk predictions and technology-facilitated coercion, and instead promote the development of open and co-operative crisis support relationships that are enhanced by selective use of digital technology. These contested futures suggest that the power dynamic caused by coercion in mental health services must be a part of the discussion concerning ‘digital mental health’ measures today
- 79 Pūras and Gooding (n 27).
- 80 Laws of Kenya, The Penal Code, Chapter 63, Revised Edition 2009 (2008) s 226.
- 81 United for Global Mental Health, Decriminalising Suicide: SAVING LIVES, REDUCING STIGMA (International Association for Suicide Prevention, 2021) https://unitedgmh.org/sites/default/files/2021-09/UNITEDGMH%20Suicide%20Report%202021%C6%92.pdf.
- 82 William Wan, ‘White House Weighs Controversial Plan on Mental Illness and Mass Shootings’, Washington Post (9 September 2019) https://www.washingtonpost.com/health/white-house-considers-controversial-plan-on-mental-illness-and-mass-shooting/2019/09/09/eb58b6f6- ce72-11e9-87fa-8501a456c003_story.html.
- 83 Ibid.
- 84 Wallace Lawson, Laura Hiatt and Keith Sullivan, ‘Detecting Anomalous Objects on Mobile Platforms’ in 2016 IEEE Conference on Computer Vision and Pattern Recognition Workshops (CVPRW) (IEEE, 2016) 1426 https://ieeexplore.ieee.org/document/7789669
- 85 Jay Stanley, The Dawn of Robot Surveillance: AI, Video Analytics, and Privacy (American Civil Liberties Union, 2019).
- 86 One research group, for example, proposed that ‘computer vision’ designed to detect violence could be ‘extremely useful in some video surveillance scenarios like in prisons, psychiatric or elderly centers’. Enrique Bermejo Nievas et al, ‘Violence Detection in Video Using Computer Vision Techniques’ in Pedro Real et al (eds), Computer Analysis of Images and Patterns (Springer Berlin Heidelberg, 2011) 332 http://link.springer.com/10.1007/978-3-642-23678-5_39.
- 87 Stanley (n 87).
- 88 A Board-Certified Physician, ‘SCRAM Ankle Bracelet Measures Alcohol Consumption’, Verywell Mind https://www.verywellmind.com/scram-ankle-bracelet-measures-blood-alcohol-247-67122.
- 89 Stephanie Miller, ‘The Use of Monitoring Conditions (GPS Tracking Devices) Re CMX [2014] QMHC 4’ (2015) 22(3) Psychiatry, Psychology and Law 321.
- 89 Stephanie Miller, ‘The Use of Monitoring Conditions (GPS Tracking Devices) Re CMX [2014] QMHC 4’ (2015) 22(3) Psychiatry, Psychology and Law 321.
- 91 Re CMX [2014] QMHC 4 (Australia).
- 92 Ibid [42]-[43].
- 93 John Tully et al, ‘Service Evaluation of Electronic Monitoring (GPS Tracking) in a Medium Secure Forensic Psychiatry Setting’ (2016) 27(2) The Journal of Forensic Psychiatry & Psychology 169. Informed consent, it should be noted, is profoundly impacted by the power asymmetry inherent in forensic mental health services but nevertheless, the contrasting approaches between Queensland and England and Wales is significant. Regarding empirical evidence in support of the schemes ‘efficacy’ in reducing adverse events, one John Tully and his group of UK researchers reported a major reduction in ‘[e]pisodes of leave violation… which suggest potential benefits for speed of patient recovery, reduced length of stay, reduced costs and public safety’. Ibid p.169.
- 94 Donalee Moulton, ‘Nova Scotia Sets Direction on GPS Monitoring of Patients’ (2015) 187(8) Canadian Medical Association Journal E232.
- 95 Ibid.
- 96 Committee on the Rights of Persons with Disabilities, ‘General Comment No 1: Article 12 – Equal Recognition before the Law, 11th Sess, UN Doc CRPD/C/GC/1’; Tina Minkowitz, ‘The United Nations Convention of the Rights of Persons with Disabilities and the Right to Be Free from Nonconsensual Psychiatric Interventions’ (2007) 34(2) Syracuse Journal of International Law and Commerce 505; Kay Wilson, Mental Health Law: Abolish or Reform? (Oxford University Press, 2021)