`Informed consent is a bit of a joke to me': lived experiences of insight, coercion, and capabilities in mental health care settings

ARTICLE

‘Informed consent is a bit of a joke to me’: lived

experiences of insight, coercion, and capabilities in

mental health care settings

Magdalena Furgalska

York Law School, University of York, York, YO10 5GD

Email: [email protected]

Abstract

The Independent Review of the Mental Health Act 1983 found that people’s experiences and self-

knowledge were mislabelled as a ‘lack of insight’. Insight, a psychiatric concept, is defined as an ability to

recognise one’s mental illness, awareness of one’s symptoms and compliance with treatment. Across

different jurisdictions, legal scholars have raised concerns about the influence of insight on legal provisions

for psychiatric care and mental capacity assessments, given its prevalent use in psychiatry and its absence

from statutory criteria. However, outside of these findings, little is known about people’s lived experiences

of ‘insight’ and the law. This article draws on narrative and photo-elicitation interviews with psychiatric

survivors to argue that insight is an extra-legislative proxy for regulating involuntary detention and other

coercion masked as consent. Finally, this article draws on the capabilities approach to deliver a justice

argument for creating real opportunities to provide informed consent in mental health settings.

Keywords: mental health law; psychiatry; insight; informed consent; narrative and photo-elicitation methods; the capabilities

approach

1. Introduction

The psychiatric concept of insight is a weaselly term that does not map onto statutory criteria in

any obvious manner. Yet, it has been repeatedly suggested that insight is used as an extra-

legislative criterion for paternalistic interventions in mental health care (e.g. O’Keefe, 2022;

Radovic et al., 2020; Gurbai, Fitton and Wayne, 2020; Guidry-Grimes, 2019; Case, 2016;

Feckelton, 2010; Dawson and Mullen, 2009; Diesfield and Stojstrom, 2007). In England, the

Independent Review of the Mental Health Act 1983 (2018, p. 37) concluded that people’s

experiences, knowledge and reasoning are overlooked by mental health professionals and

‘mislabelled as lack of insight or aspect of their disorder’ , while the study conducted by Owen et al.

(2009) found that lack of insight is the most significant predictor of incapacity in psychiatric care.

Recognising the problematic relationship between insight and mental capacity, the Independent

Review of the Mental Health Act (2018) urged for more research on this area.

However, defining insight is a difficult task. Insight has been deemed one of the most important

and troubling concepts in psychiatry since the nineteenth century (Markova, 2005, pp. 3–32) and

‘the absence of a consistent definition of insight and means by which it is assessed’ became a

dominant aspect of its problematic status (Markova, 2005, pp. 66– 67) along with questions

concerning insight’s scientific validity (e.g. Perkins and Moodley, 1993). Case (2016, p. 366)

established that Lewis’s(1934) definition of insight appears particularly influential in its

development and understanding. According to Lewis (1934, p. 333), insight is a ‘correct attitude

Creative Commons Attribution licence (https://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and

reproduction in any medium, provided the original work is properly cited.

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toward a morbid change of self’. The strong emphasis on the ‘correctness’ of psychiatric patients’

perceptions of their illness suggests that ‘disagreement with the psychiatric diagnosis and

treatment would require “correction”’ (Case, 2016, pp. 366–367), giving way to a lazy justification

for coercive and paternalist ic intervention in an individual’s mental health care.

However, Markova (2005, p. 71) contends that it is David’s(1990) definition that has had the

most influence on contemporary psychiatry. It comprises three characteristics indicative of the

presence of insight in a mental health patient, including the recognition of own mental illness,

compliance with treatment and the ability to relabel unusual mental events (like delusions and

hallucinations) as pathological (David, 1990). More recently, David and Ariyo (2021, p. 186) have

encouraged researchers and practitioners to view insight as ‘self-knowledge’ and recognise that

acknowledgement of illness and the need for help is ‘necessary for living an authentic life’.

However, as David (2020) admits, the efforts to refine the meaning of insight in psychiatry have

not impacted the original definition in practice.

Thus far, studies that scrutinise the relationship between insight and the law are restricted

to the analysis of already limited case law where psychiatrists are expert witnesses called for an

assessment of mental capacity, or they are based on the views of psychiatrists. This results in a

noticeable gap whereby the views and lived experiences of ‘insight’ are marginalised or

insufficiently addressed in medico-legal or other socio-legal studies. In an attempt to address

this gap, this article explores the relationship between insight and the relevant law by

grounding it in original empirical data comprising twelve narratives and nine photo-

elicitation interviews with people who have experienced mental health treatment. The analysis

of this data is driven through the lens provided by the capabilities approach (Sen, 2009: 1999;

Nussbaum, 2011; 200 6). This more nuanced analysis suggests that the legal inadequacies

surrounding consent to mental health treatment have allowed the concept of insight to filter

through d ecision-making processes in mental health care. This results in a disparity between

how the law should work and what happens in practice, resulting i n some experiences of

coercion being invisible to the law.

I begin by setting out the capabilities approach, developed by Sen (2009; 1999) and Nussbaum

(2011; 2006), as a theoretical framework for this paper. In line with contemporary socio-legal

scholarship (e.g. Lindsey and Harding, 2021), I argue that the capabilities approach provides a

justice argument for minimising coercion and providing better support for decision-making

processes. I then provide a methodological overview of this paper, utilising narrative, and photo-

elicitation methods, which presents a novel approach to studying mental health law and socio-

legal inquiry more broadly.

Following on from this, I argue that insight is used as an extra-legislative proxy for the legal

regulation of involuntary admission. Drawing on the capabilities approach and the data,

I argue that the processes surrounding the provision of mental health care are just as

important, if not more important, than t he health-related outcomes. I then explore the

relationship between insight as a clinical concept and mental capacity as a legal concept.

I argue that mental capacity might not be helpful in securing capabilities because it cannot

capture the needs of individuals in a mental health crisis. Moreover, I suggest that greater use

of mental capacity assessments in psychiatric contexts could lead to an overreliance on the

concept of insight, which might negatively impact the bodily integrity of psychiatric patients.

Finally, I suggest that the capabilities approach delivers a justice argument for creating real

opportunities to provide informed consent in mental health settings. This approach changes

the emphasis, moving the debate away from paternalistic interventions towards processes that

encourage freedom and thus minimise coercion and, in turn, respect the individual’s bodily

integrity. In conclusion, I point to the limitations of t his study and endeavour to set an agenda

for further debates and research.

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2. Theoretical lens: the capabilities approach

Over the last decade, the capabilities approach founded by Sen (2009; 1999) and Nussbaum (2011;

2006) has gained popularity amongst socio-legal scholars who use it to conceptualise disability

rights, mental health and capacity law and medical law (e.g. Stavert, 2022; Lindsey and Harding,

2021; Thompson, 2021; Harnacke, 2013). It has also been used by psychology and health sciences

researchers who discuss recovery in mental illness (e.g. Hopper, 2007), making it a relevant and

attractive framework for a socio-legal exploration of the relationship between clinical concepts

and the law. Sen’s(1999) work has been particularly influential in the context of international

human rights and development and global mental health initiatives. Vergunst et al., (2014) argued

that the capabilities approach is a practical and culturally appropriate framework for improving

experiences of mental health in the UK population.

At the heart of this approach are people’s capabilities. Capabilities are real opportunities,

choices and options that allow individuals to be who they want to be and do what they have a

reason to value. Realising these capabilities requires positive state action and allocation of

appropriate resources. States and societies must then develop capabilities for everyone because this

is the absolute minimum of what respect for human dignity needs (Nussbaum, 2006). The main

concepts of the capabilities approach are ‘functionings’ and ‘ capabilities’. Functionings are actions

or ways of being (Sen, 2002 ), such as being illness-free or being treatment-free. Capabilities are the

real opportunities individuals have to achieve particular functionings (Sen, 200 2). Capabilities

needed to achieve higher-level functioning like agency are dynamically shaped by interactions

between individuals and their environments, including their social relationships (Nussbaum,

2011). The approach encourages an evaluative focus on the extent to which people are free and

able to be and do what they have reason to value being and doing (Nussbaum, 2011; Sen, 1999).

The emphasis on ‘agency freedom’ is significant in the capabilities framework (Sen, 2009;

1999). It is defined as ‘the ability to act in accordance with one’s chosen goals and values’ (Sen,

2009, p. 289). Sen emphasises the need to explore systematic socioeconomic and political barriers

that curtail individuals’ freedom, often referred to as sources of ‘unfreedom’ (Sen, 2009). In

accounts of participants that inform this paper, current laws were often portrayed as a source of

‘unfreedom’. Law was perceived as disabling independent decision-making, preferential towards

using force in psychiatric care and fetishising the freedom of powerf ul groups in this context

(mental health professionals).

Building on the capabilities approach, I argue that ‘lack of insight’ is an example of unfreedom

mapping onto negative experiences of coercion denying agency freedom. The approach recognises

that autonomy co-exists with personal relationships, institutions and societal structures. It is based

on relational and communitarian underpinnings, stating that individuals are only as free as the

environment allows them (Sen, 1999). In applying the capabilities approach, I am sensitive to its

limitations, especially the challenges posed by Nussbaum

’s(2011) support for substituted

decision-making in individuals with severe cognitive disabilities. In this paper, I do not seek to

claim that the capabilities approach can change English mental health law as it exists in statute, but

rather that the potential of this approach lies in its premise to change how the law is implemented

and experienced on the ground. I argue that people with mental ill-health, as a matter of justice,

should be supported and given opportunities to develop capabilities that are attuned to their

circumstances, values, needs and bodily integrity. Here, I understand social justice, through the

lens of capabilities, as a practical alternative to the status quo or any source of unfreedom.

3. Methodology

3.1 Participants

In this article, I draw on original empirical data from a study with twelve psychiatric survivors

(people with prior experiences of receiving mental health treatment) exploring experiences of

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mental health treatment. Psychiatric survivors may be regarded as a closed-off or even hidden

community as their experiences and lives are perpetuated by continuous experiences of stigma

(Kalathil, 2015;Ward,2012). Kalathil (2015) suggests that this poses a difficulty in recruiting

participants outside of those who are ‘active’ within mental health communities, like charities and

local groups of those who engage in any form of self-activism. Taking this into account, this research

followed a mixed recruitment method using self-selecting, strategic, opportunistic and snowball

sampling to account for, at the very least, some diversity of experience (Ward, 2012, p. 192). As a

result, I recruited twelve participants. Demographic information is presented in Table 1.

All twelve participants participated in narrative interviews, and all but Helen, Katie and Millie

took part in the follow-up photo-elicitation interview. The research aimed to explore lived

experiences of mental health treatment to provide evidence on the desirability, benefits, and

disadvantages of creating a legal framework allowing for advance consent making (a form of the

self-binding directive). The issues discussed in this paper form part of incidental findings which

are more relevant to broader mental health law. Narrative in-depth interviewing requires a smaller

number of participants, usually varying between five to nine participants (Czarniawska, 2004).

The goal of this research design is not to generalise from data but to explore lived experiences and

personal stories in detail. Ethical approval was granted by the relevant Research Ethics Committee

and followed appropriate processes for obtaining informed consent to research.

3.2 The rationale for two-stage interviews

Mental health researchers, such as Erdner et al., (2002) and Erdner and Magnusson (2011), have

established that people with experiences of mental health distress struggle to articulate their

encounters with treatment candidly. Experiences of stigma and trauma might mean that

participants are uncertain of new people and may lack confidence in their views. They may also

question their memory when the events they recall could have occurred in a heavily medicated

state (e.g. Sandhu et al., 2013; Erdner et al., 2009; Erdner et al., 2002). In addition, they may

manifest mistrust in the research process (Sandhu et al., 2013). Consequently, participants in

Table 1. Demographic Information

Pseudonym Gender

Ethnicity or

Nationality

Age

Group Diagnosis

Edward Male English 55–64 Post-traumatic stress disorder

Helen Female English 65–74 Schizophrenia

Fred Non-binary Portuguese 25–34 Generalised anxiety disorder and attention-deficit/

hyperactivity disorder

Katie Female English 25–34 Generalised anxiety disorder

Lucy Female English 35–44 Schizoaffective disorder

Millie Female English 25–34 Clinical depression and generalised anxiety disorder

Eliza Female Swedish/German/

English

55–64 Bipolar disorder

Michael Male English 25–34 Clinical depression

Sophie Female English 34–44 Bipolar disorder

Eve Female English 55–64 Bipolar disorder (previously)

Albert Male Turkish 55–64 Depression and bipolar disorder

Robert Male English 45–54 Depression, bipolar disorder and previously anorexia

nervosa

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verbal interviews tend to adopt a ‘wait and see approach’ and passively await guidance or

assistance from the researcher in answering questions (Erdner and Magnusson 2011, p. 145). As a

result, Erdner and Magnusson (2011, p. 147) argue that unstructured, individual (rather than

group) and verbal interviews are the most appropriate research methods in this context.

Additionally, scholars (Cabassa, Nicasio and Whitley, 2013; Sandhu et al., 2013; Erdner and

Magnusson, 2011) encourage plural forms of methods in the context of mental health experiences

and suggest that some form of an unstructured interview with the use of visuals is thought to be of

particular benefit in this context. Studies which have followed this guide for research design,

especially with the use of visuals, have demonstrated an improvement in rapport in the qualitative

interview and help with memory triggering, plus facilitating time for reflection and opportunities

for a greater openness (Sandhu et al., 2013; Erdner et al., 2002). Despite this evidence, photo-

elicitation remains a unique method for mental health research (Erdner and Magnusson, 2011)

and in qualitative paradigms more generally (Close, 2007; Pros ser and Loxley, 2008; Erdner and

Magnusson, 2011 ; Glaw et al., 2017). Despite the emerging use of visual methods in law (e.g.

Goodrich, 1991; Moran, 2009; Mulcahy, 2017), photo-elicitation for socio-legal research into

mental health law is a novel approach.

This research might also be relevant to scholars who engage with legal consciousness

approaches (Halliday, 2019). It should, however, be noted that when referring to ‘everyday lived

experiences’ in this paper, I refer specifically and primarily to the lived experiences of receiving

mental health treatment, and only then do I consider how these experiences inform how mental

health law works in practice and how we could use the subjective experience to develop an agenda

for future law-making. This approach bears similarities with legal consciousness studies (e.g.

Ewick and Sibey, 199 8; Harding, 2011) as it explores and examines the place of law in the

experiences of mental health treatment. Undoubtedly my work remains inspired by the in-depth

understanding of everyday life and law that legal consciousness studies offer (e.g. Ewick and

Silbey, 1998; Harding, 2011; Halliday, Kitzinger and Kitzinger, 2014). In particular, my

methodology might interest those engaging in interpretative approaches to legal consciousness,

which Halliday (2019, p. 865 ) suggests are ‘motivated by the simple desire to understand how

ordinary people’s behaviour responds to their subjective perceptions of law.’ For now, my research

remains grounded in the framework explicitly informed by the capabilities approach and driven

by the interdisciplinary methods used.

3.3 Photo-elicitation interviews: conduct

The primary aim of using photographs was to elicit stories (Tinkler, 2013). Participants were

encouraged to use photographs taken specifically for the interview or ones they already owned.

This was to ensure that any photos chosen or taken by participants acted as stimuli for narrative

data which emerged around images. The potential of participant-generated photographs rests

upon the implication that they will likely be particularly significant for the participants (Walker

and Weidel, 1985, p. 143).

Each photo-elicitation interview began with participants showing their photographs while

telling their narratives. These photographs captured more spontaneous storytelling. People also

told new stories which did not emerge during the previous narrative interview. As a result, they

have expanded their accounts with new details.

The photographs were performative in eliciting important stories rather than serving as

empirical data in their own right (Tinkler, 2013). They were used to build rapport, gain greater

insight into individual and subjective experiences, and complement the narratives told in the first

interview. The vast majority of photographs were incredibly private and depicted important

people in psychiatric survivors’ lives, or they depicted the participants themselves. Some

photographs were of various personal documents. The topics pursued during this stage related to

specific stories told by an individual; positive and negative experiences of treatment; experiences of

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coercion; experiences of loved ones acting as support or hindrance; doctor-patient relationships;

advance decision-making; consent and mental capacity.

3.4 Analysis

All interviews were transcribed verbatim, and thematic coding was used for preliminary data

analysis. The thematic approach has been chosen for a variety of reasons. Firstly, thematic analysis

caters for theoretical freedom, which allowed me to analyse complex, rich and detailed data in a

meaningful and systematic way (Braun and Clark, 2006). The theoretical freedom in analysing the

narrative is characterised by the discovery of both deductive and inductive codes generating

anticipated and unanticipated results. Secondly, using in-depth methods, I have collected large

amounts of data, which meant that thematic analysis provided me with a rigorous way to

summarise findings effectively.

Thematic coding was followed by a narrative analysis informed by the work of Strauss (1959),

Czarniawska (2004), Nussbaum (2011) and Ward (2012). Czarniawska’s(2004) approach suggests

that each narrative is constructed around equilibrium, action, and complication. Equilibrium is

the life or part of the narrative that is undisturbed. Then, a complicating event disturbs the

equilibrium, so action is taken to restore the equilibrium.

However, instead of looking at actions to restore equilibrium, I used Strauss’s(1959) notion of

turning points, with the overall approach being influenced by Ward (2009; 2012). Turning points

are critical events/situations in people’s stories which lead to a period of reflection and re-

evaluation of an individual’s life, values, beliefs and attitudes. I adopted this approach to include

looking at the central list of capabilities (Nussbaum, 2011 ). I was, therefore, able to evaluate the

reasons behind actions and complications and the development of the disruption of capabilities

that support crucial functionings. This approach was critical to identifying which capabilities

psychiatric survivors value and have a reason to value and identifying sources of unfreedom in

peoples’ lives. I focused on the micro, meso and macro structures, relationships, institutions, and

laws that shaped various mental health treatment experiences. Each of those experiences was then

evaluated regarding how it enabled or hampered a specific capability/capabilities and what it

meant about justice (including agency). There, I included a thick description analysis to describe

the realities and complexities of mental health lived experiences through the lens of capabilities.

A thick description is considered a mode of capabilities analysis (Robeyns 2017, p. 134) and has

been successfully used by scholars to analyse narrative data (e.g. Conradie, 2013;

Unterhalter, 2003).

4. Formal legal coercion and the role of Insight

4.1 Involuntary detention – the law

For a person to come within the remit of the Mental Health Act 1983, they must be suffering from

a mental disorder, defined in the Act as ‘any disability or disorder of the mind’ (s 1.2. Mental

Health Act 1982). The length of each detention is determined by the clinician’s reliance on specific

provisions of the Mental Health Act 1983. For instance, patients detained under section 2 are

detained for 28 days for assessment and six months for treatment, with a possibility of this being

renewed under section 3 of the Act. Detaining patients under sections 2 and 3 allows doctors to

treat them without their consent under section 63 of the Act.

There are two justifications for formal legal coercion in the psychiatric context. The first is the

notion of ‘dangerousness’ whereby a patient poses a danger to themselves or others (s 2(a) Mental

Health Act 1983). This ground has survived the test of time despite overwhelming and growing

evidence that mental illness is a poor predictor of violence towards others and may be no greater

than among the general population; the risk of violence is much greater towards oneself than

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others, and the risk towards others is unlikely to be a result of mental illness and is more

commonly a result of substance abuse (e.g. Monahan, 1988; Peay, 2007 ). Nonetheless, the

consequence of this justification is that, impliedly, the role of coercion validated through the

prevention of violence includes some form of social control, and so this ground has been met with

scepticism among mental health professionals (Eldergill, 2002; Bartlett and Sandland, 2014). The

second legal justification for legitimate coercion is the need for care and treatment due to the

degree of mental disorder that an individual is suffering (s 2(a)) and that appropriate medical

treatment is available to that patient (s 3(2)(d) as amended by the Mental Health Act 2007).

Contrary to the first ground, this notion of the need for care and treatment suggests that formal

legal coercion is there for the alleviation of suffering and the provision of treatment rather than for

social control. However, the notion of ‘appropriate treatment’ introduced by the Mental Health

Act 2007 is problematic. Appropriate treatment does not need to be a treatment that is successful,

but only that is considered by clinicians as appropriate, ‘which is for the purpose of alleviating or

preventing a worsening of the patient’s mental disorder or its symptoms or manifestations’

(Mental Health Act Code of Practice 2015, para.6.8).

Whatever the ground, involuntary detention under sections 2 and 3 has two main distinct

effects. Firstly, an individual cannot leave the psychiatric hospital without permission, and

patients can now be treated without their consent under section 63 of the 1983 Act. There is an

important safeguard under section 58, which limits the non-consensual treatment with

medication for three months after the initial detention. After this time has elapsed, the patient

can only be treated with medication on their valid consent (s 58(3)(a)) or if a Second Opinion

Appointed Doctor (SOAD) confirms that the patient lacks capacity under the Mental Capacity

Act 2005, or, if the patient has refused treatment, then the treatment can be given if the SOAD

deems it to be appropriate (s 58(3)). Thus, despite its safeguards, section 58 still allows for Second

Opinion Appointed Doctors to override capacitous refusals of treatment with medication.

Notwithstanding these rules, treatment may always be provided without consent in cases of

emergency, as the doctrine of necessity applies to mental health treatment. It is worth noting that

the SOAD system is generally regarded to be the most important procedural safeguard under the

MHA 1983 for those patients who are involuntary, but scholars have questioned its efficacy for a

long time (e.g. Fennell, 1998) as well as following the MHA 2007 (Bartlett, 2011).

This is only a brief overview of the law relating to involuntary detention, but it demonstrates

that the law is incredibly technical and complex. This law is being implemented by medical or

other relevant professionals with little legal oversight. At the same time, the statute itself is

designed in a manner which affords significant legal agency and authority to mental healthcare

professionals who may not necessarily have legal training to grasp the complexities of the statute.

All this translates to practice that is largely invisible to the law.

4.2 Insight as an extra-legislative proxy for the legal regulation of involuntary care and

capabilities

The way in which the mental health law in England and Wales is designed means that clinicians or

approved mental health professionals are the gatekeepers of legal regulation. Worryingly, stories

told by participants in this research reveal that insight may be used in practice instead of available

legal justifications for formal coercion. In the subjective experiences of my participants, insight

also matches David’s(1990 ) definition:

‘The psychiatrist said “It’s like this. Either you think you are ill, so that means you aren’t too

ill really.” ::: So, he said “if you take this medic ation, you will show me insight, and this

means you are getting better”.’

(Eliza, narrative interview)

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‘They want you to say, “I’m mentally ill, that was a hallucination and oh I suddenly realised

that was a delusion, I’ve been mentally ill, and I have to take medication.” They have a very

fixed definition of what insight is and insight is agreeing with them, with their belief systems.’

(Eve, narrative interview)

The excerpt from Eliza embodies two elements of David’s(1990) definition. Firstly, by

acknowledging her own illness, Eliza would show that she has an ability to recognise her own

condition, which would be indicative of insight being present. Eliza also recalls being told directly

that compliance with medication is not just a sign that her mental health is improving but that she

has insight. Eve’s understanding of what she refers to as ‘a fixed definition of insight’–

acknowledging the illness, complying with medication and showing an ability to recognise

unusual mental events like delusions and hallucinations as pathological – meets all three

characteristics of David’s(1990) definition.

Eliza was involuntarily detained seventeen times, each time for a period no longer than twenty-eight

days, which would suggest she was most likely sectioned for assessment under section 2 of the Mental

Health Act 1983. However, she did not appear able to justify why each of her hospitalisations lasted

precisely twenty-eight days but thought that this was because the psychiatrist who was seeing her

would only be able to see each patient once a month. Even though section 132 of the Mental Health

Act 1983 requires that a patient be informed of their section, Eliza’s experience suggests that she was

not informed of her legal rights nor of the legalities surrounding her section. The two legal

justifications which would trigger detention under section 2 – dangerousness or need for treatment –

are not obvious decisive factors for deciding whether Eliza should have been sectioned or become an

informal patient. Instead, the perceived lack of insight acted as the reason for involuntary detention. In

recalling the first time she was sectioned, Eliza stated the following:

‘The psychiatrist came following the police and she said “it ’s like this. Either you think you

are ill, so that means you aren’t too ill really. You think you’re ill and you need to be in the

hospital, that means you’re not too ill and you don’t need to be in the hospital but we will take

you there, to be on the safe side, or you think you’re just ill and don’ t need the hospital which

means you are ill and we need to take you to the hospital”. So, it was a complete Catch 22.

I explained I knew I was ill and wanted help but did not want to go to the hospital because

I had two small children. So, I got sectioned.’

(Eliza, narrative interview)

Applying the capabilities approach to Eliza’s experience requires an evaluation of the extent to

which she was able to be and do what she values. What Eliza describes as a ‘Catch 22’ was

essentially a choice given by a psychiatrist between voluntary and involuntary admission. This

choice was dependent on the presence of insight and Eliza’s unwillingness to show it by not

agreeing to hospital admission effectively resulted in involuntary detention. Scholars have already

likened the use of insight to the novel Catch-22 (see O’Keefe, 2022) to emphasise the power this

concept denotes. In her story, Eliza contends that her reason for not wanting to go to the hospital –

because of her worry about her two small children – was disregarde d and her non-compliance was

seen as a lack of insight. Insight, in the current case, meant that Eliza was not able to act in

accordance with her chosen goals and values, namely looking after her children, meaning that her

agency freedom was severely limited. A capabilities-informed approach to such a situation would

place a legal requirement on the clinician to consider the personal values and circumstances of an

individual who meets the requirements for involuntary commitment.

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Ultimately, in Eliza’s story, it appears that insight was also used as an extra-legislative proxy for

involuntary detention. The finding is consistent with the wider literature on insight and the law

across many jurisdictions. Radovic et al. (2020) found that insight is frequently used in Swedish

mental health proceedings but remains legally undefined. In addition, it exists in Swedish law as an

‘extra-legislative catch-all argument’ used to justify involuntary detention. Dawson and Mullen

(2009) derived a legal definition of insight based on the case law in New Zealand to be understood

as compliance with treatment. Similar to Radovic et al.’s(2020) findings, the lack of insight was

the most significant factor in justifying involuntary treatment decisions.

Eliza’s experience can be readily contrasted with Sophie’s whose concern for her young child

meant that she avoided involuntary detention. In the midst of a psychotic episode, a psychiatrist

informed Sophie that the best course of action would be involuntary detention. Petrified by that

option, Sophie explained that this did not align with her responsibilities as a single mother. The

psychiatrist asked Sophie to explain how she was taking care of her daughter despite an intense

psychotic episode. It became clear that looking after her child meant that Sophie had a sense of

purpose and a structure to her day that she managed to maintain. Considering Sophie’s personal

circumstances, the psychiatrist decided not to detain Sophie but to offer a cocktail of medications

to control her symptoms, warning Sophie that it was necessary for her to comply with treatment in

order to avoid hospitalisation. Similarly to Eliza’s psychiatrist, Sophie’s psychiatrist used the lack

of insight, understood as non-compliance with treatment, as an extra-legislative criterion for

involuntary detention, of which Sophie was directly informed.

Nonetheless, Sophie’s story serves as a potential example of what capabilities-informed

decision-making regarding treatment might look like if the reliance of insight is taken out of the

equation. It requires an appreciation of extra-medical aspects of the individual’s life and a more

nuanced understanding of their values and pursuits. This example reiterates the importance

associated with the facilitation of treatment. The different processes that were used to achieve the

same outcome are significant when viewed through the capabilities lens. Sen (2002) highlights that

the process through which an outcome is obtained is more important than the outcome itself. This

means that an individual who is forced into detention to receive treatment, which they would have

accepted under different, less coercive circumstances, is no longer a free agent because of the

‘violation of the process aspect of [their freedom], since an action is being forced on [them] even

though it is an action they would have chosen freely’ (Sen, 2002, p. 331) under different

circumstances. The process is deemed more important than the outcome because, if the process

does not allow an individual to act in accordance with their values and choices, the ‘good’ outcome

could be offset entirely by the negative experiences of force, which is apparent in Eliza’s example.

Eliza’s choice would be to undergo treatment which would not prevent her from looking after her

children. Despite the fact that Eliza was coerced into detention, it was the lack of insight that

appears to be the main, or final, reason for coercion, meaning that her supposed lack of insight was

experienced as a major source of unfreedom.

It appears that, in this account, the psychiatrist believed that Eliza probably had a serious need

for care or treatment, but it was the insight or lack thereof that would be the ultimate determiner

as to whether that need could be fulfilled with formal coercion or voluntary detention, which

makes insight an extra-legislative justification for coercion. Ostensibly, the need for treatment and

care was sufficient to involuntarily detain Eliza. Insight added an extra layer of gatekeeping where

its presence would result in ‘the least restrictive’ form of detention being used. Arguably, Eliza did

show insight by admitting she needed help and that she was not well. It was her lack of compliance

with the suggested treatment (detention) that ultimately meant she lacked insight in the opinion of

her psychiatrist. This might suggest that compliance with treatment is the strongest predictor of

the presence of insight which is consistent with the clinical literature (e.g. Kemp and David, 1996)

as well as with the legal literature examining how the concept of insight features in law (e.g. Case,

2016;O’

Keeffe 2022).

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Clearly, how compulsory measures are implemented in practice remains largely invisible to the

law. Psychiatrists may rely on familiar concepts like insight rather than legal criteria for

involuntary detention because this agrees with their clinical opinion. Capabilities-informed

mental health law might require the removal of involuntary detention and replacing it with

capabilities-enhancing alternatives wherever possible – but these alternatives cannot be imposed

on individuals, they must be freely chosen. However, the capabilities approach might be more

helpful in facilitating change in the law as it occurs in everyday life rather than in statute by

bridging the gap between the law and practice. This is because it encourages professionals to step

away from the assessment of insight and consider the possibility of other, more everyday reasons

why an individual might not wish to be detained but still wish to be treated. The decision-making

processes around treatment would instead be encouraged to focus not simply on medical

outcomes but also on the consequences of treatment decisions on personal circumstances, values

and bodily integrity. The capabilities lens, therefore, encourages the use of processes that are the

least restrictive on an individual’s ability to pursue their capabilities while also enhancing agency

freedom.

4.3 Performing insight as a matter of bodily integrity

Another caveat is that participants talked about ‘performing insight’ in order to preserve their

bodily integrity. Bodily integrity forms part of Nussbaum’s(2011, p. 33) list of central capabilities,

and its definition includes the following non-exhaustive (Nussbaum 2011 , p. 35) components:

‘being able to move freely from place to place; to be secure against violent assault ::: having

opportunities for sexual satisfaction and for choice in matters of reproduction’. Many participants

adopted an attitude well expressed by Lucy in her narrative interview with the slogan, ‘if you can’t

fight them, join them’. This assumes that the only way for a person’s voice to be taken into

consideration is for them to ‘perform insight’. For instance, when Eliza was released from the

hospital, she lied to her mental health team about taking prescribed medications that she did not

want to take because of their disabling side effects. After two weeks of daily check-ins, the team

reduced their contact, stating that Eliza was showing very good insight because she was complying

with the medication and therefore becoming visibly well. Thus, by performing insight, Eliza

managed to avoid forced treatment. Furthermore, Robert claims to have performed insight on

every occasion when seeing a community treatment team. Robert said he used to prepare for those

appointments by ensuring he was dressed well, presented well and always appeared compliant,

knowing that this would prevent him from being sectioned. In reality, Robert’s symptoms were

poorly managed, resulting in rapid devastation to his family and work life. Reflecting on those

situations, Robert expressed disbelief in how easy it was to mislead healthcare professionals when,

in hindsight, he had thought he would meet the crit eria for detention. By performing insight, my

participants highlight the futility of this concept, which in their hands becomes both a tool and a

barrier to bodily integrity.

This is because, by complying with medications, people were able to preserve parts of their

bodily integrity in the sense that treatments were not physically forced upon them. Having insight

or performing insight meant that Eve was able to ‘move freely’ again by avoiding prolonged

detention and the same tactic also allowed Eliza to avoid yet another section, which she had

previously experienced as abusive and coercive. In Eliza’s case, insight was used as a tool for the

preservation of bodily integrity, but because it is experienced as a source of unfreedom, it cannot

actually become one of the components of bodily integrity. Accordingly, by performing insight,

psychiatric survivors compromised their bodily integrity by complying with medications or

treatment they did not agree with. Sources of unfreedom are human constructions and designed to

control the level of agency and opportunities, namely the capabilities available to an individual. In

a subtle way, insight masks experiences of coercion, making those experiences invisible to the law.

However, the law here is as much to blame for the negative experiences of insight as is psychiatry.

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This is because experiences of insight remain largely unexamined in and by the law, and gaps

between how the law is intended to work and how it is applied in practice effectively mean that the

law allows the concept of insight to permeate mental health law in practice. Thus, the influence of

law deserves to be scrutinised as much as that of psychiatry.

5. Insight and capabilities: informed consent and the relevance of mental capacity

In this section, I will argue that the law has failed psychiatric patients by not developing the

capability to provide meaningful consent, compromising the achievement of bodily integrity. This

is because the law provides mechanisms to override capacitous non-compliance with treatment. In

this way, the law has created a situation in which treatment refusals and non-compliance – lack of

insight – are pathologized, leading to lived experiences of force and coercion.

5.1 The relationship between the lack of insight, incapacity and capabilities: inadequacies of

the law

As lack of insight has been found to be the strongest predictor for incapacity (Owen et al., 2009), it

is likely to find its way into mental capacity assessments and consent-making in psychiatric care.

In addition to involuntary treatment, patients may also be voluntarily detained, known as

‘informal detention’ under section 131(1) of the Mental Health Act 1983. This means that, under

the law, the patients may leave the hospital whenever they wish to do so, and they may refuse any

treatment. This is because informal patients, under section 131 of the Mental Health Act 1983, can

only be treated with their valid consent. In order to be able to consent to treatment or to refuse to

consent to treatment, a patient needs to have mental capacity. Both at common law (Re MB

(Medical Treatment) [1997] 2 F.L.R 426, at 437) and under the Mental Capacity Act 2005 (MCA),

anyone is presumed to have capacity until the contrary is shown. The MCA 2005 opens with a

statement of principles (s.1) designed to guide the interpretation of the remainde r of the Act. The

MCA 2005 then defines what it means to lack capacity. Section 2(1) of the Act imposes a

diagnostic threshold stating that incapacity must stem from ‘an impairment of, or a disturbance in

the functioning of the mind or brain’ and that impairment might be permanent or temporary

(s.2(2) MCA 2005). Section 3(1) of the MCA 2005 adopts a functional approach to capacity stating

that an individual would be unable to make a decision for themselves if they are unable to

understand the information relevant to that decision, retain that information (even if only for a

short period of time: s.3(3)), to use or weigh the information and to communicate that decision.

The capacity test is decision specific, which means that the law recognises that an individual may

have the capacity to make some decisions but not others at the same point in time.

Hale (2017, p. 15) suggests that voluntary patients exist in theory only and, in reality, there are

two types of voluntary patients that can be distinguished in practice . First, some are regarded as

‘truly voluntary’. These patients agree with doctors’ advice and comply with all treatments. The

second type of voluntary patient is a pati ent who refuses treatment or wishes to leave the hospital.

In those situations, patients may be ‘persuaded’ to stay or to take medication because otherwise,

they will be sectioned under sections 2 or 3 of the Act so that the treatment in question can be

provided without consent (Hale 2017, p. 15). In addition to preventing patients from leaving the

hospital, section 5 may be applied, which allows voluntary patients to be sectioned for up to

seventy-two hours. However, section 63 (non-consensual treatment) would not apply in this

situation.

Following Hale (2017), it appears that whether a patient has the rights and privileges of

informal detention depends on whether they show insight – i.e. compliance – rather than whether

they have the relevant mental capacity. Owen et al., (2008) found that 97 percent of psychiatric

patients admitted to a psychiatric hospital in England had the mental capacity to make treatment-

related decisions even when the majority of patients were detained involuntarily. Hale (2017) also

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notes that the majority of psychiatric patients have the relevant mental capacity providing that the

test is applied accurately and its provisions are not abused. In line with those arguments, the

narratives from some of my participants suggest that the absence of formal legal coercion in

informal detention does not necessarily mean that admission is voluntary ‘in the sense of being

freely chosen’ (Hale, 2017, p. 15) and mental capacity assessments appear to be replaced or

conflated with the assessment of one’s insight.

Similarly, to Eliza, Lucy had been given a choice between a section or voluntary detention for

treatment. Lucy had chosen to become an informal patient, unlike Eliza, and although she felt this

was truly her choice, the treatment that was administered during an informal stay was still

experienced as coercion because it was not consensual:

‘I didn’t refuse treatment in the hospital, but I saw people who did, and it terrified me. And

so, I was very much like “‘no, thank you very much, I will take my tablets even though they

made me feel awful”. So, I was never restrained in the hospital which I am very grateful for.

My treatment wasn’t consensual, I feel ::: I can remember the docto r sort of saying “you

need this, you need this right now” and me being like “oh okay” and then not remembering

anything until the next day. I don’t remember ever being asked if I would like a medication.

That was never asked of me. It was never a question, it wasn’t like “we can give you some

antipsychotics, or you can choose not to have them, this is what they do and this is what they

are” they would just go “we are going to start you on clozapine”.

It felt very invasive and abusive ::: I felt like my choice was to take the medication and not

question it or die.’

(Lucy, photo-elicitation interview)

Lucy’s excerpt demonstrates that the experiences of informal patients might be more complex

than previously discussed in Hale’s(2017) typology of voluntary patients. Lucy’s hospital stay was

truly voluntary, as she emphasised on a number of occasions throughout her narrative and photo-

elicitation interviews. However, despite ‘agreeing’ to treatment, her consent was an illusion. To

preserve her bodily integrity by avoiding physical force and restraint, Lucy obeyed all treatment

that was given to her. Additionally, Lucy’s treatment did not just lack consent but lacked any

participation by Lucy herself in the decision-making process about the treatment, thus blurring

the lines between formal legal coercion and what was supposed to be a voluntary treatment plan.

5.2 Insufficient information and insight

In the accounts of my participants, insufficient information about their treatment led to

experiences of treatment which, although compliant, was experienced as non-consensual and thus

forced. After five years of effective mental health treatment, Lucy decided that she would like to

have a child but became worried about possible side effects that the medications she was taking

would have on her potential pregnancy and so decided to discuss this with her psychiatrist but the

reaction of her psychiatrist shocked Lucy:

‘She said to me “you probably won’ t get pregnant because you’ve been on medical castration

medication for so long and on such high dose that you’re probably infertile. Anyway, being

pregnant whilst suffering with schizoaffective disorder would not be good for your mental

health. You might find it all very hard”.’

(Lucy, narrative interview)

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Lucy pinpointed this memory as a stark realisation that she had been on a potentially life-altering

treatment without her consent. The psychiatrist explained that certain side effects had not been

disclosed to her because they could have severely impacted her ‘insight’, and it had been more

important at that time to alleviate the severity of her symptoms and reduce the possibility of

relapse through the use of that particular medication. Clinical research has shown that adherence

to psychiatric medications, especially antipsychotic medication, is poor outside of hospital settings

where the treatment can be administered with force if needed (Corrigan et al., 2008). It has been

suggested that compliance with medication and the associated presence of insight is closely related

to the information that the patient has about the perceived risks and benefits (i.e. presence of

insight) of any given treatment (Corrigan et al., 2008). Thus, current psychiatric practice

encourages practitioners only to disclose important side effects proportionately to the risk that the

patient presents (Weiden, 2007; Corrigan et al., 2008). Kane, Kishimoto and Corell (2013, p. 221)

also found that psychiatric patients suffer from ‘the lack of information as to what to expect from

treatment in terms of side effects and the risk of specific side effects’ and suggest, in line with other

studies (e.g. Lacro et al., 2002), that adherence to medication should be achieved through

meaningful trusting relationships between the psychiatrist and the patient where there is a mutual

discussion about side effects and perceived benefits. Lack of disclosure or the provision of

insufficient information have been associated with concerns over insight, not just in the stories

told here but also acknowledged in other research (Owen et al. , 2009; Tessier et al., 2017).

Here, it might be worth considering how the misguided focus on insight, in the guise of

compliance with medication, and the need for greater information disclosure could be remedied

by the law. The aforementioned clinical studies do not discuss the need for doctors to adhere to

relevant legal provisions on the disclosure of relevant information. Some studies report that in

many jurisdictions psychiatrists’ knowledge of mental health legislation and associated relevant

laws may be patchy and poor, emphasising the lack of sufficient legal training in psychiatry (e.g.

Humphreys, 1998). Prior to 2015, consent did not have to be as informed in terms of its risks and

benefits. However, in Montgomery v Lanarkshire Health Board (General Medical Council

intervening), [2015] UKSC 11, 87 (Lord Kerr and Lord Reed) the Supreme Court held that:

‘an adult person of sound mind is entitled to decide, which if any, of the available forms of

treatment to undergo, and her consent must be obtained before treatment interfering with

her bodily integrity is undertaken. The doctor, therefore, has a duty to take reasonable care to

ensure that patient is aware of any material risks involved in any recommended treatment,

and of any reasonable alternative or variant treatment. The test of materiality is whether, in

the circumstances of the particular case, a reasonable person in the patient’s position would

be likely to attach significance to the risk, or the doctor is or should be aware that the

particular patient would be likely to attach significance to it.’

Hale (2017, p. 211) states that ‘by sound of mind the Supreme Court meant a patient with the

capacity to decide their own medical treatment’. This is problematic because it is not clearly

inferred from the judgment that this is what the Supreme Court did actually mean. Therefore, it

does not necessarily follow that this is how Montgomery is or will be applied in practice. Instead, it

is possible that by ‘sound of mind’ psychiatrists might infer someone who does not suffer a mental

illness and that those who do might not be afforded the privilege of sufficient information given

about their treatment, as promised by this landmark case law.

Looking back on Lucy ’s story, it is unlikely that she lacked the capacity to decide whether or not

to undergo the treatment because it was given to her during a routine appointment following a

weight gain from her previous medication. Lucy also appeared to have a good understanding of

the mental capacity assessment and stated that she did not think she had ever lost her functional

capacity to make decisions. It is, ther efore, difficult to imagine a situation in which a doctor

prescribing treatment for a young woman knowing that it carries the risk of chemical sterilisation,

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does not consider this to be relevant information and a material risk pertinent to disclosure. Lucy’s

story, however, is one of the shattering symptoms that caused serious danger to her life and health

and the lives of others.

The standard created by the Supreme Court in Montgomery also requires that the doctor

informs the patient of suitable alternatives. It is also unclear whether there was an alternative

medication that Lucy could have been given, and it is also entirely possible that Lucy’s story is a

prime example of bad practice. Another participant, Sophie, specifically recalls being asked if she

was planning to have any more children in the future because the psychiatrist needed to know

whether a medication that can cause fertility issues should be avoided. Nonetheless, the outcome

of Lucy’s experience was that she considered informed consent in psychiatry to be ‘a bit of a joke’–

a sentiment which was shared by all twelve participants.

In the view of psychiatric survivors, it is insufficient information that is strongly interfering

with their capability for bodily integrity. The interference with the capability for bodily integrity is

especially striking in Lucy’s story. Nussbaum (2011, p. 33) considers reprod uctive health and

choice within that to be central to this capability, and in Lucy’s story that part of bodily integrity

was hampered not directly by the medication but by the lack of information. Here, impeding on

bodily integrity means impeding on agency freedom too. The capabilities approach is concerned

with providing people with the minimum threshold of capabilities, but the minimum threshold

remains undefined in the approach. It is, however, suggested that the threshold should be enough

to accomm odate people’ s opportunity for developing relevant capabilities like bodily integrity that

support associated functionings like agency freedom. The psychiatric survivors highlighted that

side effects should be disclosed in accordance with individuals’ needs, and therefore the standard

created by Montgomery appears to be compatible with the development of capability for bodily

integrity in the psychiatric context. However, for this capability to be supported it would need to

be sufficiently applied in clinical practice. This again highlights the difficulty of requiring

psychiatric professionals to apply new and quite complex laws in their psychiatric practice.

Consequently, psychiatrists rely on clinical concepts like insight to aid adherence and consent to

treatment by patients.

5.3 Mental capacity and insight

Everyday experiences of psychiatric care reveal little reliance on the concept of mental capacity. In

general, they had some awareness of the mental capacity test and expressed opinions on its

application in the psychiatric context. As Lucy had experienced several informal hospital stays,

I asked her directly if her capacity was ever assessed. When asked about her experiences of mental

capacity assessments, Lucy said she did not realise they were relevant to mental health settings and

that she does not think her capacity was ever assessed. She stated that she had read all her medical

notes, and she had not come across any information about her capacity status. However, as an

informal pati ent, Lucy could only have been treated on her valid consent, which means that her

capacity should have been assessed, at least in theory. Instead, Lucy said that her medical notes

presented plentiful information about the presence or absence of insight when notes were made

about her adherence to rather than her consent to medication. Similarly, other participants stated

that they did not remember having had their mental capacity assessed and that decision-making

appeared always to have been dependent on the presence of insight.

Brown et al. (2013), found that only 9.8 percent of capacity assessments were documented in

almost 18,000 admissions to a psychiatric hospital in England. Within those, only 14.7 percent

relied on the Mental Capacity Act criteria for assessing capacity and other criteria used were

described as arbitrary (Brown et al., 2013, p. 122). Yet, assessments based on insight appear

common. If, as suggested by this data and other research, psychiatrists conduct capacity

assessments arbitrarily or rely on the concept of insight in capacity assessments, it is worrying to

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note that psychiatrists make up over 50 percent of mental capacity expert witnesses in the Court of

Protection (Case, 2016). It is not clear why psychiatrists are so often called for their perceived

expertise in capacity assessments, but Case (2016) suggests this is linked to the perception that, as

psychiatrists cure minds, there might be an impression that they are also well placed to assess

capacity. Also, this might or might not be related to the history of the development of mental

capacity law. In Re C (Refusal of Medical Treatment) [1994] 1 F.L.R. 31 (at 295), Thorpe J found

helpful a forensic psychiatrist’s analysis of the decision-making process broken down into three

stages: comprehending and retaining treatment information; believing it; and, finally, weighing it

in the balance to arrive at a choice. This suggests that mental capacity is not purely a legal concept,

and its legal development has been influenced by the discipline of psychiatry (Ruck-Keene et al.,

2015). This interrelatedness between mental capacity and insight provides an explanation as to

why insight so easily seeps into capacity assessments conducted by psychiatrists. This further

explains why, for instance, expert witnesses in the Court of Protection commonly use medicalised

approaches to assess capacity (Ruck Keene et al., 2015: Lindsey 2020), as Lindsey and Harding

(2021, p. 19) point out:

‘this is arguably because capacity is often considered to be a clinical question, which can be

assessed through cognitive tests or other quasi-objective measurements used by psychiatrists

to aid diagnosis.’

However, other studies suggest simply that mental capacity is a complex legal concept and

professionals require more training to fully understand it (Jayes, Palmer and Enderby, 2017). In

2018, the National Institute of Health and Care Excellence (NICE 2018, para 1.4.24.) released

guidelines on assessing mental capacity in practice, stating that:

‘Practitioners should be aware that a person may have decision-making capacity even if they

are described as lacking ‘insight’ into their condition. Capacity and insight are 2 distinct

concepts. If a practitioner believes a person’s insight/lack of insight is relevant to their

assessment of the person’s capacity, they must clearly record what they mean by insight/lack

of insight in this context and how they believe it affects/does not affect the person’s capacity.’

The guideline highlights that ‘capacity’ and ‘insight’ are distinct and not interchangeable concepts.

Nonetheless, it still permits the use of insight in capacity assessments providing that the reasons

for its relevance are clearly recorded. But using insight in this context is using extra-legislative

criteria which might result in the denial of rights for those who, in fact, have the capacity. It is clear

that the mental capacity test may be severely underused or misused in practice, and when it is

applied, it tends to be invisible to the law. I am, therefore, hesitant to argue that there should be a

greater reliance on the concept of mental capacity in psychiatric practice.

Finally, participants questioned the validity of mental capacity and its wider application in the

psychiatric context:

‘I think mental capacity is hard to think about. I swear differ ent professionals assess it

differently. Isn’t there a unified training? I don’t know it is potentially creating a dangerous

situation ::: I don’t think I ever lost capacity ::: Risk assessments are better because

I genuinely posed a risk to my own life and my mum’s, but I am sure I could appear as

someone who could still have capacity. Risk is real, this capacity test is not. I don’

t think your

capacity is assessed much in mental health settings, maybe they do it and don’t tell us? This

might be another concept that ends up being abused by most professionals.’

(Lucy, photo-elicitation interview)

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‘On the flip side, what if I have capacity, don’t get sectioned because of that, go home and kill

my neighbour? Not that I would but hypothetically speaking.’

(Eliza, photo-elicitation interview)

In the above excerpts Lucy and Eliza share parallel sentiments about the mental capacity test not

being able to take into account the issue of safety. Lucy is the only participant who described

symptoms that drove her into potential danger, recalling visual hallucinations and a persistent

voice telling her she needed to kill her mother. In an attempt to appease the voice, Lucy wanted to

harm herself in order to save her mum but admits that, on a few occasions, if it had not been for

the intervention of the mental health services, she would have hurt her mum. However, she then

backtracks and suggests that she would probably harm herself to avoid harming her mother.

Despite the intensity of her symptoms, Lucy contends she could have shown she had mental

capacity and would have been able to present ‘well’ to others, especially if she had wanted to. Eliza,

who did not exhibit dangerous behaviour towards others, raises an important question that might

arise from a potentially perilous situation created in circumstances where mental health provisions

are replaced with reliance on the MCA 2005. However, participants felt that the legal obligation

attached to mental capacity assessments or the MCA 2005 could mean that there was a greater

potential for creating space in which professionals are not encouraged but required to take

patients’ views into account. Additionally, participants believed it to be unlikely that they had ever

lost their mental capacity and that reliance on the test would mean that doctors could ‘wash their

hands off of [patients]’ (Katie, narrative interview) and that people who needed help would be ‘left

on their own’ (Eve, photo-elicitation interview) or that insight is used in the place of capacity

assessment.

Capacity as a legal concept is not tailored enough to capture the complex experiences of mental

health and needs around treatment and is a poor tool for guaranteeing psychiatric patients’ wishes

be given greater consideration. This is because it is unlikely to triumph over the paternalistic

provisions in the MHA 1983. However, as Lindsey and Harding (2021) note, the capabilities

approach:

‘requires that opportunities are not denied on the basis of a lack of necessary (or combined)

capabilities – in fact, quite the opposite; a person should be given the opportunity to develop

such capabilities on the basis of a human entitlement to having that capability.’

This means that respecting the views and needs of psychiatric survivors could not be denied even

in situations where they lack capacity or insight. Ove rall, my approach would suggest a greater

focus on the views of the patient in relation to their care that is fostered by the capabilities-

informed shift in culture where law meets everyday practice and everyday needs of people who

experience mental ill-health. Adopting a capabilities analysis justifies a provision of support to

achieve the capability to consent and closely associated bodily integrity (Nussbaum, 2011). This,

however, is a matter of justice rather than a legal obligation (Lindsey and Harding, 2021). Even if

the capabilities approach does not dictate how the law should be changed, it highlights areas for

policy considerations and highlights that informed voluntary and competent consent is a matter of

justice.

6. Conclusion

The findings of this empirical research highlight that psychiatric survivors experience formal legal

coercion and extra-legal coercion in mental health settings that can be attributed to the excessive

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reliance on the concept of insight. These experiences of coercion could be minimised by providing

mental health patients with meaningful opportunities to give informed consent and consider the

needs of individuals facing compulsory treatment. Legal inadequacies explored in this paper create

a legal landscape full of gaps through which the concept of insight can find its way. This leads to

experiences of force, coercion and abuse. Rather than discrediting the validity of insight in

psychiatry, I argued that insight masks legal and extra-legal coercion when used to justify legal

interventions and acts as an extra-legislative measure. Mental health laws place major

infringements on individual’s rights; therefore, these deserve as much scrutiny as clinical

concepts. As a matter of justice, there must be a clear definition and guidance concerning clinical

concepts that professionals operationalise in practice to reach a consensus amongst different

actors on the use and appropriateness of those concepts.

Using the capabilities approach as a lens to view these issues highlights that negative

experiences in mental health settings can, in turn, overshadow successful treatments leaving

psychiatric survivors feeling dissatisfied with the care and strong feelings of injustice. For example,

lack of meaningf ul opportunities for providing informed consent is experienced as an abuse of

bodily integrity. The capabilities approach provides a justice argument for resources to be

allocated to improve the experiences of psychiatric survivors through support, research, policy and

law-making. I contend that the capabilities approach can change how professionals apply the law

in everyday settings and how it can benefit those at the heart of relevant debates – people who

experience mental ill-health. The capabilities lens can be a valuable measure for assessing legal

initiatives currently on the law-making agenda, like advance consent/decisions, advance choice

documents and the appropriateness of mental capacity assessments in psychiatric care. In

thinking about the mechanisms for independent decision-making, it is imperative that we do not

create frameworks which allow insight to seep in and add further to experiences of coercion and

paternalism.

Acknowledgements. I want to acknowledge the support of the Economic and Social Research Council (MGS ESRC DTP). In

addition, I would like to thank the anonymous peer reviewers for their thoughtful comments, which allowed me to improve

and sharpen this paper. I would also like to thank Professor Rosie Harding, the Global Legal Studies research group at the

University of Birmingham, the SLSA Mental Health and Mental Capacity Law Stream and the SLS Health Law Section for

comments on the earlier drafts of this paper.

Competing interests. None declared.

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Cite this article: Furgalska M (2023). ‘Informed consent is a bit of a joke to me’: lived experiences of insight, coercion, and

capabilities in mental health care settings. International Journal of Law in Context 19, 456–474. https://doi.org/10.1017/

S1744552323000174

474 Magdalena Furgalska

https://doi.org/10.1017/S1744552323000174 Published online by Cambridge University Press