Few would dispute the gains arising for the individual, family and wider society of helping long-term unemployed people back to work. The links between unemployment and poor mental health including suicide are just about the strongest links known to psychiatry.
Details emerged on Wednesday of the review to be carried out by Dame Carol Black into how best to support those with long-term health conditions who are unemployed, yet could be helped to rejoin the world of work.
So far so good, but there is a sting in the tail, and it is a pretty big one. All this started in February when David Cameron announced that he had asked Black “to consider whether people should face the threat of a reduction in benefits if they refuse to engage with a recommended treatment plan”.
This is where things get tricky. Threatening to remove benefits if people do not agree to treatment puts doctors (and indeed all health professionals) in conflict with core principles of the law and medical ethics. Furthermore, it could have serious unintended consequences.
Linking benefits to treatment sounds suspiciously like a coercive measure to “incentivise” people who would not otherwise have had treatment to accept it. And if so, it is legally problematic. The people affected by this policy may turn up to receive the treatment in question and therefore seem to be consenting to it. But consent to treatment must be free from undue influence, otherwise it is legally meaningless.
The case of Re T is the clear legal authority for this.
A woman was injured in a car accident. Although she had not brought the subject up before, after spending time with her mother (a Jehovah’s Witness) she unexpectedly said that she did not want to receive a blood transfusion. The court held that the mother had put pressure on her daughter to refuse it, to the extent that the daughter had departed from her own wishes. As Lord Donaldson observed: “In some cases, doctors will not only have to consider the capacity of the patient to refuse treatment but also whether the refusal has been vitiated because it resulted not from the patient’s will, but from the will of others.”
The case also made clear that this principle of undue influence vitiating consent would equally apply to the acceptance of treatment.
Treating an unemployed patient for obesity or drug/alcohol addiction on the basis of them only undertaking treatment to avoid a review of their benefits could put any health professional at serious risk of litigation; if a person has the mental capacity to make a decision not to consent to treatment, as nearly all will, which is then not respected, this is likely to be an unlawful trespass to the person involved.
And if that were not enough, it is likely that the same health professional would also be in trouble with their regulatory body. For example, a doctor would be in breach of the General Medical Council (GMC) guidance on good medical practice and consent. Doctors are told clearly they must have consent or other valid authority before carrying out any examination, investigation or treatment.
The GMC also tells doctors that they have a duty to ensure decisions are voluntary and warns that “patients may be put under pressure by employers, insurers, relatives or others, to accept a particular investigation or treatment. You should be aware of this and of other situations in which patients may be vulnerable.” There cannot be much doubt that this applies to anyone with a mental disorder or addiction problem facing the threat of losing their benefits.
But even if this was completely legal and ethical, this policy could have perverse practical consequences. The vital trust that exists between the patient and the health professional will surely diminish if the public starts to perceive the latter as the agents of state employment/welfare policy. This could be particularly damaging in relation to mental health, where already three-quarters of people with common mental disorders such as anxiety and depression do not receive treatment for their illness.
And will it work? Probably not. The evidence suggests that, in general, positive incentives encourage positive behaviours and negative ones don’t. Far from reducing costs and freeing up resources (a perfectly legitimate goal) this is much more likely to waste resources by forcing people into treatments that they don’t want.
Overall, we fully support the goal of getting people with mental health or addictions problems back to work, and we wish Black’s review well. But coercing people in this fashion is probably illegal, unethical, impractical and won’t save money. As Talleyrand said, “it is worse than a crime, it’s a blunder”.
