BioJtia New 1'01.11 No.1

Patient's knowledgeand comprehension

Advance directivesand proxies

Demographics

View of planning forcare at endof survey

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Are living wills intended to help dispose of possessions aftera person becomes very sick. (Yes or no)

CPR saves more than 90 percent of people from dying. (trueor false)

Have you ever heard of Paul Brophy, a Massachusettsfirefighter who lost his mental functions and was kept alive byartificial feeding but who had previously stated that he didnot want to be kept alive by advanced medical technology?(yes or no)Have you formally named a person, in a signed document, tomake health care decisions for you, should you be unable todo so yourself! (yes or no)

Would you want to name such a person? (yes or no)

What is the highest year of school you completed?

Has participation in this survey changed either of thefollowing: your desire to have a living will or your inclinationto talk about the issue with your physician? (yes or no)

Do you think you might make out a living will for yourself.(yes or no, undecided)

(ThIs article w~ first published In the New England Journal of Medicine VoL 32,No.l3, and hi reproduced here with the kind permission of the authon and thepublishen).

Flying Over the Cuckoo's Nest

GILES YATES

Giles Yates MA (Counselling), B.A (philJPsych.) is a Ph.D. student at the Centre for Human Bioethics MonashUniversity

The following regulations currently govern the carriage of passengers on allcivilian aircraft in Australian skies, from commercial jets to private light aircraft:

CML AVIATION ORDERS14 - CARRIAGE OF SICK OR INJURED PERSONS

14.3 carriage of Mentally Disturbed Persons.(1) A mentally disturbed person shall not be carried in an aircraft

unless -(a) accompanied by an escort; and

(b) a medical certificate has been issued by a medical practitionercertifying the patient's suitability for carriage by air, and whetherthere is a risk of violence from such a patient.

(2) Where the medical practitioner, approving the carriage of amentally disturbed person, certifies that there is a risk ofviolence from such a person, the following conditions shallapply -(a) only one mentally disturbed person shall be carried on theaircraft;(b) the person shall be under adequate sedation throughout the flight;(c) the person shall be accompanied by a qualified nurse (psychiatrictrained where available) and one other attendant;(d) the person shall be secured to a stretcher in accordance with therequirements of paragraph 14.2 (requirement for safety harness);(e) where the person is not restrained by psychiatric restraintequipment, a barrier, such as a locked door, wire screen or net, shallbe provided between the person and the flight deck/cockpit; and(f) therapeutic oxygen shall be available.

Commonwealth of Autralia, Civil Amtio. Authority,CivilAlJiotiora~.

Sectio.20.16.3.

The problems with these regulations go deeper than the abuse of civil libertiesand human rights. They are a good example of a widespread misunderstanding of thenature of 'mental disturbance'. This misunderstanding can lead to unethical practices.

The first misconception to point out is the definitive use of the term, 'amentally. disturbed person'. To the lay person it may sound like a precise diagnosis.'Mentally disturbed person', 'mentally ill person', 'insane person', 'mad person', 'personwith a mental disorder': these are not technical terms with hard definitions that can beused to reliably distinguish between people. At a theoretical level there is doubt anddisagreement about these concepts; and at a clinical level there is uncertainty aboutpeople who mayor may not be 'mentally disturbed'. Even the term 'mentally ill't,which is the term favoured in mental health legislation in Australia, is not defined inthe statutes. If psychiatrists cannot be certain about whether some people are'mentally ill' or not, then what hope is there for other medical practitionersdetermining who is 'mentally disturbed'.

The issue in these regulations is aviation safety. There is a perfectlyreasonable assumption that any person who is dangerous on the ground, couldpotentially be more dangerous in an airborne aircraft. What, is mistaken is theassumption about the relationship between 'mental disturbance' and violence.Statistically, 'mental illness" is a very poor predictor of violent behaviour:

The factors most closely related to the occurrence of violentbehaviour appear to be: past violence, age, sex, race socioeconomicstatus, and opiate or alcohol abuse. Estimated IQ, residentialmobility, and marital status are also related to violent behaviour.Mental illness, however does not appear to be related to violence inthe absence of a history of violent behaviour... Mental patients who

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do not have a record of violent arrests (sic) are, if anything, lessviolent than the general population'

What this means is that the CAA (Civil Aviation Authority) would be farmore justified in regulating the carriage of passengers with a previous history ofviolence than regulating the carriage of passengers with just a 'mental illness'. Indeed,they would be statistically more justified in regulating the carriage of young malesthan people with just a 'mental illness'.

Despite the key role of medical practitioners in these regulations it is hard toimagine that the medical profession could have been consulted about their role duringthe drafting process. Most medical practitioners would be unwilling to issue therequired medical certificates because they understand the inherent inaccuracies inpredicting violent behaviour. Even psychologists and psychiatrists who are experts inthe field, acknowledge the unreliability of such predictions. The American PsychiatricAssociation reported:

the state of the art regarding predictions of violence is veryunsatisfactory. The ability of psychiatrists or any other professionalsto reliably predict future violence is unproved.4

The facts contradict the popular mythology. The picture of 'disturbed persons'conjured up by these regulations conforms to the popular, alarmist image of 'mentallyill killers'. In the USA in 1978, The President's Commission on Mental Health foundthat

The sporadic violence of so-called 'mentally ill killers' as depicted instories and dramas is more a device of fiction than a fact of life.Patients with serious psychological disorders are more 'likely to bewithdrawn, apathetic, and fearful. We do not deny that somementally ill people are violent, but the image of the mentally illperson as essentially a violent person is erroneous.'

The image is part of the age-old prejudice agaist people who get labelled'mad'. Like other forms of discrimination, it relies on a mixture of myth and ignoranceto exaggerate differences between 'them and us'. When we believe a group of peopleare fundamentally different from ourselves they become de-humanised: it thenbecomes possible to ignore human rights abuses that would not otherwise beacceptable. However, the Civil Aviation Authority is by no means alone in itsanachronistic attitude: this is just a particularly clear example of a pervasive prejudiceagainst people who get called 'mentally disturbed'.

The phrase "Suitable for carriage by air" is ambiguous. In what sense can'suitable' be meant, given that 'risk of violence' is separately covered? It cannot be'suitable' in any sense of physical health since that would be a general healthrequirement affecting all passengers. These regulations seem to invite us to use ourimagination to fantasise about the ways in which a 'mentally disturbed' person mightbe unsuitable for carriage by air. The remaining possibilities for the sense in which'unsuitable' could likely be meant seem to be limited to 'causing'offence'. However,there is no justification for aviation having special regulations which impinge on a

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person's civil liberties simply to limit possible offence. In fact, Section 14.1 of theregulations quite properly limits the purpose of the regulations to prevention ofhazards. Thus, the ambiguous phrase 'suitable for carriage by air' seems to be anunwarranted addition.

There is further ambiguity in the phrase "risk of violence from such a person".It seems that the medical practitioner is not being asked to assess the risk of violencefrom the actual person being examined, but from a person of that type. Thestereotype of the violent mental patient is so shamelessly entrenched it is presented asfact.

Apart from the conceptual problems underlying these regulations, there arefurther ethical, legal and practical problems,

The problem of confidentiality is raised when we consider who are the personsentitled to read the medical certificates? There appears to be no guarantee at all thata 'disturbed person's' privacy will be protected?

The regulations violate the common law principle of natural justice. There isno mention of any type of hearing at which a 'disturbed -person' might raise anobjection nor any review or appeal mechanism.

There would be serious practical problems in any attempt to implement theseregulations. In practice probably not a single person who has a 'mental disturbance'would provide the medical certificate unless coerced by authorities. 'Mentallydisturbed' people will not voluntarily identify themselves... .given these regulations onewould have to admit they would be crazy to do so! If the CAA were really seriousabout their current regulations then the logical way to go about achieving their endswould be to make every passenger get a 'mental health certificate' so that no 'risky-person' could slip on board.

Not only are these regulations unworkable in practice, but we are apparentlydoing quite nicely ignoring them... and they do nothing to prevent a 'mentallydisturbed' person who intends violence from posing as a 'normal' person and boardinga flight.

The regulations invite individual comment:-(2) (a) Only one mentally disturbedperson shall be carriedon the aircraft.

Statistics relating to the incidence of current mental illness are quoted as highas 18.5% of the Australian population," In 1987, 1.4% of the population wasundergoing intensive treatment for mental illness," This means there is an average ofsixty-five 'mentally ill' persons being carried on full jumbo jets, of whom an average of4.9 persons are under intensive treatment. The sheer numbers involved makecompliance with "one-per-flight' practically impossible. But consider how we are beingasked to think about these people. Why should not more than one 'mentally disturbed'person be carried on an aircraft? Are we to compare them to dogs in the same street?One starts barking and they all start!

(b) The person shall be under adequate sedation throughout the flight.If the sedation is used for prevention of certain behaviour rather than for

therapeutic benefit, and if the sedation is against the will of the person receiving it,then it is very doubtful whether this regulation is ethical. The use of mind-alteringdrugs for the purpose of social control is ethically very dubious. Even if the 'mentallydisturbed' person 'agrees' to take the medication in order to be allowed on the flight,it is still probable that this degree of coercion morally invalidates that consent. This

37

regime of routine sedation is morally different to the treatment of involuntary patientsin psychiatric hospitals, and may put health professionals in breach of theirprofessional codes of ethics.

(c) The person shaH be accompanied by a qualified nurse (psychiatric trainedwhere available) and one other attendant.

Once again, this is another requirement which conjures up an image of apsychopathic monster requiring two white-coated attendants to keep the 'disturbedperson' under control. One suspects that the thinking behind the requirement for asecond attendant is that the 'disturbed person' should be positioned between the twoof them, in order that no poor, unsuspecting member of the public might findthemselves sitting next to a 'mentally disturbed' person. The fact is, we frequently havedealings with people with 'mental illness' when we go out in public, We have peoplewith 'mental illness' cook our food for us, drive taxis for us; even build aeroplanes andpilot them for us. Hundreds of people ever day in Australia sit next to a person with a'mental illness' on their scheduled commercial flights. Is there evidence that the neartotal non-compliance with the regulations is endangering Australian aviation? Indeed,we might wonder if these regulations were created in response to a string of disasters?Perhaps a spate of 'nutters' grabbing control columns and forcing planes down intothe ground? Are similar measures being taken by other authorities to protect buses,trains and ferries? Or, are these fantasies based on uninformed, exaggerated fears?

(d) The person shall be secured to a stretcher in accordance with therequirements ofparagraph 14.2 (requirementfor safety harness).

"Secured to a stretcher" This completes 'The Silence of the Lambs' image of a'disturbed person'. It is hard to imagine what the possible need for this regulation is:perhaps it is a misguided attempt to provide for the needs of a 'sick' person, orperhaps it is just a thinly disguised excuse to keep the person physically bound.

(e) JWJere the person is not restrained by psychiatric restraint equipment, abarrier, such as a locked door, wire screen or net, shall be provided between the personand the flight deck/cockpit.

It is tempting to re-phrase the regulations: 'put'em in a straight-jacket or acage'. This regulation in particular displays an exaggerated, almost desperate fear of'madness' that overwhelms even the obsession with safety. The presence of restraints,locked doors, wire screens or nets would of course represent a significant safety hazardin the case of an emergency which required a quick evacuation of the aircraft.

(f) Therapeutic oxygen shall be available.Does the Civil Aviation Authority know something about the therapeutic

effects of oxygen on mental disturbance that psychiatry does not know? Shouldpsychiatric institutions be installing an oxygen supply in every room? Could we allbenefit from a whiff? Is it possible to overdose? Perhaps this is why the mandatorynurse is needed: to administer just the right amount of this therapeutic wonder!

If these regulations are as deplorable as I have suggested, the questionremains: How should pilots and airline operators make decisions about the carriage of'mentally disturbed' passengers? The answer is that they should continue to do as theydo now and treat each person as a valued passenger, whilst having contingency plansto deal with any violent passenger. There already exists mental healttl legislation ineach state governing involuntary treatment of people who are 'mentally ill' and adanger to others, and the mental health professionals who are responsible are quite

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capable of ensuring the safe transport of those patients. Psychiatrists in the publicmental health service should remain the only ones faced with the difficult job ofadministering such legislation because they are the ones expected to find an ethicalbalance between the wishes of the patient, the best interests of the patient, and thebest interests of the community. It is important that these difficult decisions, whichprofoundly affect people's civil liberties, should remain centralised where the expertiseexists, where the decision-makers are accountable, and where review mechanisms canoperate to prevent abuse.

In conclusion, these regulations are based on mistaken assumptions about ourability to define 'mental disturbance' and our ability to predict violent behaviour. Theyare further confused by prejudice and ambiguity; they are unethical and unworkableand constitute an abuse of civil liberties and human rights.

NOTES1.

2

3.

4.

5.

6.

7.

When discussing any concept like 'mental illness' or 'mental disturbance', aproblem arises from the choice of term. There is no agreed neutral term: anyterm we use introduces hidden assumptions, and it is precisely theassumptions being made that need to be discussed. So I find it necessary toplace all such terms in inverted commas wherever they are used, to point outthat assumptions may not be agreed assumptions.Medico-legal literature tends to use the term 'mental illness' rather than theterm 'mental disturbance' which is even less clearly defined. The Concept of'mental illness' and the prediction of dangerousness is currently the topic ofpublic debate in the Eastern states of Australia. There are technical objectionspossible to my conflation of the two terms but in the context of this paper Ibelieve the conflation is justified. See: The Law Reform Commission ofVictoria, The Concept of Mental Illness in the Mental Health Act 1986. Report31. April 1990.Monahan J. Predicting Violent Behavior. Beverley Hills/London, SagePublications: 1981. (p, 127)American Psychiatric Association. Report of the Task Force on the Role ofPsychology in the Criminal Justice System. American Psychologist, Vol.33,pp.1099-1113, 1978, (p.30).President's Commission on Mental Health, Report to the President.Washington, D.C.: Supt. of Docs., U.S. Government Printing Office, 1978.Burrows G. Press Release Community Awareness Program. The AustralianNational Association for Mental Health. Camberwell, Vic. 27th August 1987.Ibid.

As a result 01 this paper the Civil Aviation Authority reviewed paragraph 14.301the Civil Aviation Orders 20.16.3 and has now repealed it. Gazetted on 21 August1991.