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Jan 3, 2008 - Carney, Terry and Ingvarson, Miriam and Tait, David, Experiences of 'Control' in Anorexia Nervosa Treatment: Delayed Coercion, Shadow of ...
Sydney Law School Legal Studies Research Paper No. 08/07 January 2008

Experiences of ‘Control’ in Anorexia Nervosa Treatment: Delayed Coercion, Shadow of Law, or Disseminated Power & Control? Terry Carney, Mim Ingvarson, David Tait

This paper can be downloaded without charge from the Social Science Research Network Electronic Library at: http://ssrn.com/abstract=1080084.

EXPERIENCES OF ‘CONTROL’ IN ANOREXIA NERVOSA TREATMENT: DELAYED COERCION, SHADOW OF LAW, OR DISSEMINATED POWER & CONTROL? TERRY CARNEY, MIM INGVARSON & DAVID TAIT Anorexia nervosa is often chronic, with one of the highest death rates for psychological conditions. Law can compel treatment, but is rarely invoked, at least formally (though the strategic possibilities of orders confers internal authority within the clinical setting). Instead, ‘control’ (or management) is exercised diffusely, through disciplinary practices embedded in everyday clinic life, such as daily routines of eating and washing, behavioural ‘contracts’, regular surveillance and measuring, interactions with staff, visits and activities. The regulatory regime not only touches on such ‘practices’ but also targets ‘identities’ (including self-image, and attitudes to the body) and what Goffman called the ‘moral career’ of the patient (eg learning to play the ‘patient role’, to ‘be’ an ‘anorexic’). We argue that it is not the clumsiness of the law, or the success of less restrictive options which explains why law is so infrequently engaged. Rather, based on an interpretation of Foucault, we concluded that the regulatory regimes that shape treatment of anorexia nervosa, is ‘the law’, in a sense. The regime of governmentality within the clinic is shaped by practices which operationalise ‘duty of care’, or translate medical expertise into medical authority, or show how interactions between ‘experts’, ‘carers’ and patients are mediated through conventions and rules, or which conscript ‘empowerment’ as control. The patient learns to provide consent ‘freely’, to make the ‘correct’ choices, to accept the ‘empowerment’ regime that is made even more convincing by the threat of legal intervention. In time the constraints learned in this way become part of the new role, that of the ‘recovering’ patient. The ‘fiction’ of acting ‘responsibly’, employed so hesitantly at first, becomes part of the new identity. The patient has become an active participant in the governance of self.

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EXPERIENCES OF ‘CONTROL’ IN ANOREXIA NERVOSA TREATMENT: DELAYED COERCION, SHADOW OF LAW, OR DISSEMINATED POWER & CONTROL? 1 TERRY CARNEY, MIM INGVARSON & DAVID TAIT. 2 A. INTRODUCTION. Anorexia nervosa joins other ‘syndromes’ listed in psychiatric manuals like the DSM-lV(R) or the ICD 10. Along with many psychiatric conditions, it is identified by ‘clusters of symptoms and behaviours considered clinically meaningful in terms of course, outcome and response to treatment’, rather than by objective anatomical features (Bruce, 1999: 37; Further: Beumont and Carney, 2003). The literature is divided about whether anorexia is mainly a pathological condition, or may in some contexts be understood as a ‘rational’ form of behaviour (For a review: Dresser, 1984: 302-308). Some writers highlight long historical traditions of ascetism, where fasting is associated with religious merit and definition of the ‘self’. On this view, intense fasting, like selfflagellation, embarking on crusades and other forms of extreme self-discipline, may connote a display of devotion and sacrifice (Tait, 1993). Others focus on the family and relational context in which the anorexic ‘identity’ is constructed (Young, 1998), seeing eating disorders as one of a series of responses to familial traumas. Feminists point to socio-political dimensions of anorexia (patriarchy, disempowerment) to explain the reported loss of self esteem and ‘powerlessness’ (Gilmore, 1994; Bray, 1996). And resistance to assuming an adult female identity may be reflected in attempts to delay the onset of puberty, specifically menstruation (Tomkiewicz, 2003). Culture too may play a part, either in shaping the form in which body image conditions express

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This Chapter reports work funded by an Australian Research Council Discovery Grant, titled Involuntary Treatment of Severely Ill Anorexia Nervosa Patients: A role for law in therapy? (Carney, Tait, Touyz and Beumont). The other key members of the research team are Professor Stephen Touyz, Professor of Clinical Psychology, University of Sydney, and Alison Wakefield, Dietician, RPA, Sydney. The late Pierre Beumont, Professor of Psychological Medicine at Sydney University, was an active contributor to the research and to the design of this study, prior to his untimely death in October 2003. 2 Terry Carney, Professor of Law, the University of Sydney; Mim Ingvarson, Project officer, Mental Health Legal Centre, Melbourne; David Tait, Senior Lecturer, Administrative Studies, University of Canberra. Corresponding address: Terry Carney: 173-175 Phillip St Sydney 2000 Australia; fax: +61 2 9351 0200; email: [email protected]). A version of this paper was delivered at the RIHSS College Symposium ‘Societies of “Control/Accountability”’, Sydney University, May 14, 2004.

3 themselves in different countries (Abusah, 1993), or pre-disposing some young people to greater risk of anorexia. 3 Whatever its true ‘character’, or its social and familial origins, severe anorexia nervosa is experienced by half to 1 percent of women over their lifecourse (Steiger and Séguin, 1999). And even if some fasting originates in a rational decision, its escalation into severe anorexia nervosa is usually accompanied by physiological changes that then limit the person’s awareness of the risks they face. Anorexia nervosa is life-threatening, with one of the highest death and morbidity rates among cognate conditions, 4 complicated by treatment resistance and low rates of success (Ben-Tovim, 2001). Clinicians sometimes turn to law for assistance in compelling hospitalisation of people with treatment resistant or life-threatening severe anorexia nervosa, or to require involuntary nasogastric feeding. Some patients are scheduled/committed under mental health laws while others are covered by adult guardianship legislation (Carney, 2002). When mental health law is used, the head psychiatrist of the service where a person is receiving treatment makes the decisions about treatment. Under guardianship laws the substitute decision-maker can be any person from a statutory guardian to a member of the person’s family. Different laws may be invoked at different times during episodes of hospitalisation or increased management over the course of their treatment (Carney and Saunders, 2003; Carney, Tait, Saunders, Touyz, Wakefield et al., 2003). Previous work (Carney, Tait, Saunders, Touyz, Wakefield et al., 2003) analysed the experience of anorexia patients, revealing the importance of the ‘context’ (or the social/clinical setting) in understanding their perception of ‘institutional’ choices about the type of legal order (and administering tribunal) used to coerce treatment. This Chapter reports our data about the way ‘control’ is conceptualised and experienced during the lifecourse of anorexia, 5 both in formal (legal orders) and ‘informal’ settings where it is 3

One Australian study which examined the family backgrounds of people with anorexia found an over-representation of parents from Asia or Europe, and fewer from the Middle East, leading the authors to suggest that, while it is a myth to believe that some cultures immunise against the condition, those young people from cultures where the condition is rare may experience a heightened risk of the condition (Alexander, Kohn, Feeney and Clarke, 2000). 4 Mortality among people diagnosed with anorexia ranges from a low of 4 percent to a more widely accepted figure of up to one in five (Dresser, 1984: 297; Griffiths, 1996; Draper, 2000: 120). However its low prevalence, peaking at about 0.5% (or 1% in some US studies) of women aged 15-19 age band (Griffiths, 1996), means that aggregate mortality figures⎯of perhaps 1 death annually per million women aged 15-65 (Draper, 2000)⎯pales against the equivalent statistic of 61 female suicides per million Australian women (ABS Year Book 1997). 5 ‘Control’ is an apt term from the sociological perspective, but it has strong pejorative overtones. A more neutral term, like ‘management’ highlights the positive contribution to therapeutic outcomes, but masks the exercise of legal and social power which brings about that result.

4 synonymous with clinical management regimes like ‘assertive treatment’ (Davis, 2002) or ‘close management’ (Drake, Bartels, Teague, Noordsy and Clark, 1993; Noordsy, Mercer and Drake, 2002). We argue that control is mainly extra-legal (a product of family and clinical rather than legal transactions), is very diverse in its deployment (ranging from suasion to coercion), and⎯most crucially⎯often involves transformation of the identity of the patient within the particular social environment in which control finds expression. This arises at a previously neglected intersection between the personal ‘career stage’ of the condition (as expressed by Erving Goffman and others) and the disseminated forms of expression of power as postulated by Michael Foucault. B. DIVERSE CLINICAL CONFIGURATIONS OF MANAGEMENT AND CONTROL: WHERE DOES FORMAL COERCION FIT IN? The first main insight⎯that the instruments of social control are quite diverse⎯is derived from our data on the pattern of deployment of the formal and ‘informal’ measures of social control of anorexia nervosa patients (Carney, Saunders, Tait, Touyz and Ingvarson, 2004). Law is invoked only when other, less restrictive, measures prove inadequate. Moreover in the case of anorexia, those legally sanctioned interventions account for comparatively small proportions (or ‘slices’) of the lifecourse 6 of the condition (Carney and Saunders, 2003). Given the legislative and clinical preference for voluntary treatment, legislatively sanctioned coercion, 7 tends to be a measure of ‘last resort’; informal ‘suasion’ is both much more common and more nuanced in its impact on the young woman (Tait, Ingvarson, Wakefield, Touyz and Carney, 2003). This is unsurprising, since responsibility for assisting with the management of adverse effects of severe anorexia primarily lies with the medical profession, not the legal system, just as in mental health generally. Legal coercion, as Hiday et al observed, ‘does not tell the whole story of coercion’ in mental health (Hiday, Swartz, Swanson, Borum and Wagner, 2002: 122). Individuals are ‘”pushed” into care by friends, relatives and co-workers’ (Pescosolido, Boyer and Lubell, 1999: 449). .

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Our focus is on sociological insights revealed by taking a lifecourse perspective on the life domains of anorexia, and the trajectories and transitions associated with it (See: George, 1999), including notions of illness as ‘career’ (Aneshensel, 1999), coupled with insights derived from the work of Erving Goffman and Michael Foucault. 7 Perceptions of legal coercion do not necessarily coincide with the legal status of being a voluntary or involuntary patient, and coercion may be ‘experienced’ in community as well as in hospital settings, depending among other things on the perceived ‘fairness’ of the process (Hiday, Swartz, Swanson, Borum and Wagner, 2002).

5 1. A Gradient of Forms of Suasion/coercion. The diversity in the forms of social control able to be deployed in mental health by clinicians or the law is illustrated by the range of different expressions it may take, running from: [M]ild persuasive attempts and pleas, through inducements with offers of desired objects or services …. through threats of negative consequences such as involuntary hospitalisation or being put out of the house, to strong application of physical force (Hiday, Swartz, Swanson, Borum and Wagner, 2002: 124).

Even ‘informal persuasion’ takes many forms in the case of anorexia management, ranging from ‘mere invitations’ to ‘verbal brow-beating’ or moral blackmail, as Rathner observed, [T]here are various social pressures that family, friends, relatives, schools and (mental) health care personnel use in an attempt to get the sufferer to accept the idea of seeking help: request, reasoning, persuasion, barter, bargaining, gentle prodding, enticement, selective information, manipulation, deceiving, blackmail, … (Rathner, 1998: 185-86).

Among clinicians, a frequent next step up the compliance ladder is to encourage compliance by employing a legal concept like a ‘contract’ (Harlow, 1998: 51), with its notion of ‘mutual obligations’ of clinician/patient (Dresser, 1984: 323). This may be followed in mental health settings by a ‘shadowland’ where people are encouraged into treatment through ‘foreshadowing’ (or even ‘threatening’) to invoke formal legal measures. Thus 40 percent of ‘voluntary’ patients studied in the MacArthur Coercion Study in the US believed that they would have been involuntarily committed had they not signed themselves in (Pescosolido, Boyer and Lubell, 1999: 450). As discussed further below, stronger again in its impact on the person with anorexia are cases of ‘strategic’ use of law. This entails strategic lodgement of legal action to compel treatment (such as adult guardianship), only to be later followed by its subsequent withdrawal once this ‘leverage’ has achieved the desired goal of ‘voluntary’ acceptance of treatment. Of these, the least popular choice among anorexia clinicians is to obtain a formal legal order to compel treatment (Carney and Saunders, 2003; Carney, Tait, Saunders, Touyz and Beumont, 2003). As revealed in the next section, if both adult guardianship and mental health laws are available, guardianship tends to be favoured over mental health, with committal retained as the last port of call. 2. Use of Formal ‘Control’ in a Typical Specialist Anorexia Unit. A clearer picture of the relationship between formal and informal measures of clinical management of anorexia is provided by data collected from a specialist Australian anorexia in-patient facility. 8 The facility utilised a

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Data was extracted for all 119 admissions to the specialist anorexia program of the Royal Prince Alfred hospital (RPA, a major public teaching hospital in Sydney), over a period of four and a half years, mapping various factors such as case flows, characteristics of

6 ‘progressive’ regime that minimised the level of coercion (Carney, Wakefield, Tait and Touyz, 2004), 9 within a jurisdiction where adult guardianship options were available, and reportedly used mainly to ‘initiate’ rather than coerce treatment (Newman, Russell and Beumont, 1995). On entry to the program clinicians implicitly assessed required patient ‘status’, deciding if legal coercion was needed, and whether to go ahead with obtaining legal backing, and what form of order to seek (Saunders, 2001; Carney, 2002). This provided a particularly useful case study of how power is exercised within a relatively low-coercion environment. a. Legally-backed coercion is the exception.

As more fully reported elsewhere (Carney, Saunders, Tait, Touyz and Ingvarson, 2004), the study found low rates of resort to formal (legally mandated) coercion. Almost two thirds of admissions (63 of 96) took place without any indication of clinical consideration of a possible need for coercion, even though 15 of these cases (28% of the sub-sample), were second admissions, and in another three cases (5%) it was their third admission. 10 b. Coercion is most likely to be considered for chronic cases.

Formal coercion is understandably considered in more chronic, treatmentresistant cases, 11 but it was sometimes utilised for a first admission to a specialist unit as well (accounting for one in five cases of formal coercion). As revealed in the table below, 16 of the formally coerced cases involved patients on their 3rd or subsequent admission (72% of this sub-sample). Of those where formal coercion was not considered or used, 40 cases (62%) were patients on their first or second admission.

patients, duration of treatment stays and use of legally mandated coercion. Twenty five cases with another eating disorder or co-morbid diagnosis were discarded, leaving 96 admissions relating to 75 individuals. Slightly over a third (36%) were under the age of 20, while 19% were people over the age of 30. Approximately 40% of admissions were for less than three weeks, with a mean stay of 49 days (and a maximum of 344 days). One third of the admissions were isolated events within the sample frame, while for a quarter of the sample there were 4 or more admissions in the period. 9 Even lower proportions of coercion (approximately 16% of the samples) were found in the Iowa (US) and Maudsley (UK) studies (Ramsay, Ward, Treasure and Russell, 1999; Watson, Bowers and Andersen, 2000). 10 Formal coercion might have been mentioned by treating doctors, or foreshadowed strategically (Carney, Saunders, Tait, Touyz and Ingvarson, 2004). 11 If age is a proxy for ‘maturity’ (or insight) it would appear that this is not a factor in deciding to obtain a legal order. The mean age at admission was almost identical for the coerced (24.5 yrs) and the non-coerced group (24.2 yrs). By contrast, those for whom coercion was considered but not invoked were older (average age 29.6 yrs).

7 Number and coercion status of admissions. Status

Not coerced

Number of Admissions (%age of total by coercion status) 1

2

3

4+

UNKNOWN

TOTAL

25 (40)

15 (24)

3 (5)

11 (17)

9

63

1 (14)

0 (0)

1 (14)

3

7

Considered 2 (29) coercion Coerced

5 (19)

1 (4)

4 (15)

12 (46)

4

26

Total

32 (33)

17 (18)

7 (7)

24 (25)

16

96

c. Guardianship is seldom used on its own, but mental health committal is popular.

When formal coercion was canvassed by clinicians, as it was in 27 percent of cases, it usually led to an application for an order. But adult guardianship, on its own, was the exception: only 3 admissions (11.5% of 26 admissions backed by a legal order) solely involved adult guardianship. Mental health committal orders were much more popular with clinicians as a ‘stand-alone’ order, accounting for 44% of all such admissions. Slightly more than half of these were based on the medical complications of anorexia itself (6 of 11 cases), while the others were grounded in supervening factors such as depression, delusional behaviour or threats to the health and safety of the person. d. Mental health committal is also commonly used in conjunction with/after guardianship.

The study data revealed that mental health committal is also quite commonly used in conjunction with guardianship, or subsequent to an earlier order for adult guardianship. Forty two percent of legally coerced admissions were of this character. 12 3. Tracing ‘Strategic’ (or Shadow of Law) Uses of Formal Coercion The normative character of transactions taking place in the ‘shadow’ of the law has long intrigued researchers (Eg Mnookin and Kornhauser, 1979 on divorce bargaining), with recent examples including the strategic influence of law on negotiation of child custody disputes (Jacob, 1992), the management of alleged promiscuous sexual ‘delinquency’ of young women (Ajzenstadt and

12

Guardianship allows appointment of a third party to provide consent to medical treatment (one third of the ‘mixed’ order cases), or to make decisions about proposed behavioural therapies (two thirds of such cases in the study).

8 Steinberg, 1995), or procedural rules impacting on pre-trial civil settlements (Main and Park, 2000; 2002), and even law/power influencing World Trade Organisation bargaining (Steinberg, 2002). This phenomenon was detected by members of the NSW adult guardianship tribunal in anorexia cases, who observed that guardianship applications were being lodged strategically to persuade patients reluctant to consent to proposed treatment regimes, and were then allowed to lapse once cooperation was forthcoming. 13 This was confirmed by initial data showing that nearly a third (four of 13 people, 2 then to be heard) of applications and reviews dealt with in the 2000-2001 period were withdrawn prior to hearing. 14 It was further refined by a more detailed review, tracking the history of guardianship applications in respect of anorexia nervosa patients. a. Guardianship is lightly used.

Data for the ten year period 1994-2003, 15 indicated that the tribunal has been lightly used for anorexia cases over much of its history. As shown in the next table, applications are patchy at best.

13

Personal communication with NSW Guardianship Board members, Thurday 11 October 2001. 14 Statistics supplied by the NSW Guardianship Tribunal. 15 De-identified data extracted by Esther Cho of the Guardianship Tribunal on 8 August 2003.

9 Guardianship (GO) Applications 1994-2003. Year

STATUS OF ‘94

TOTAL

‘95

‘96

‘97

‘98

‘99

‘00

‘01

‘02

‘03

APPLICATIONS 1

1

1

1

1

4

7

4

3

3

26

Withdrawn

1

1

0

0

0

2

0

2

0

0

6

Adjourned

0

0

1

0

0

0

0

0

0

0

1

Dismissed

0

0

0

1

0

0

0

0

0

0

1

GrantedGO

0

0

0

0

1

2

7

2

3

3

18

It can be seen that guardianship was rarely used in the first half of the decade, with only an average of one application a year. Indeed, apart from a peak of seven applications in 2000, only three or four applications were made each year in the latter part of the decade. Seven (27%) of the applications over the decade involved more than one application, however. b. Strategic withdrawals are not always the end of the story.

Fewer applications were withdrawn than was expected: just six of 26 applications (or 23%). Closer study, however, revealed that several withdrawn cases reappeared in later years. Thus the sole case from 1994 (‘Abigail’, not her real name) appeared on three occasions in all. She had a guardianship application lodged and withdrawn in 1994. She reappeared in 1996 when a financial management order was granted (and guardianship adjourned). And in 1997 another guardianship order was sought (but denied by the Tribunal). Likewise ‘Eve’, the sole case in 1995, had her application withdrawn in that year. But she was placed on guardianship when she reappeared six years later in 2001. For her part, ‘Hanna’ saw two applications withdrawn in 1999 and 2001, before finally being placed on an order in 2003. ‘Martha’ (withdrawn 1999, granted 2000) and ‘Rebecca’ (granted 2000, withdrawal in 2001) round out these cases of an apparently ‘strategic’ resort to the Tribunal. The remaining two cases where multiple appearances are recorded⎯Rachel (GO orders in 1998 & 2003) and Leah (orders in 1999 & 2003)⎯were the only ones where all applications are recorded as having proceeded as lodged. Fieldwork reports by ‘Fiona’ (not her real name) of another otherwise unrecorded episode suggests that this may understate such cases, however, with paperwork mobilised to trigger acceptance of admission without leading to a listing of the case for hearing:

10 There was actually an application for an order to appear before a tribunal and all the rest of it….. Yeah, well it’s funny ‘cos it said on the envelope had delivered by bailiff and it was in my mail box. And I thought oh great, and so I thought well I don’t want to go through all that crap and it was at that time that I didn’t really, you know, really my head wasn’t there and I really wasn’t there. The first time I was already in hospital when I got the letter so it was a bit late but this time I got the letter here and that’s when I got my friends who are lawyers and I was saying ‘what can I do? What can I do?’ They were saying ‘that we don’t think you should resist. We just think you should go to the hospital’. I said say ‘I’m not going to; how can I appeal this or whatever’. And they said ‘you’ll have to go to the tribunal’ and yeah …

What we term the ‘strategic context’, then, is pertinent to choice of pathway, including whether to rely on the ‘shadow of law’, as in the case of lodging proceedings which are later withdrawn. 16 Another feature of guardianship applications deserves mention: almost all of these were lodged by (or more usually) on the instigation of the treatment team. 17 Unlike most other types of guardianship application, very few applications appear to have been lodged by friends or family members on their own volition. This suggests that the applications were seen as something that would enable treatment rather than as a challenge to medical authority (also: Newman, Russell and Beumont, 1995: 58). C. DISSEMINATED POWER & CONTROL: TOWARDS SELF-MANAGEMENT/CONTROL? As we have already seen, clinicians, and the services with which they are associated, are key players too. As one commentator observed, [d]ealing with any health problem is a social process that is managed through contacts or social networks that individuals have in the community, the treatment system, and social service agencies, including self-help groups, churches and jails (Pescosolido, Boyer and Lubell, 1999: 455).

So an analysis from the standpoint of managers and regulators alone, without regard to the wider context and web of relationships within which a patient operates⎯is likely to be unduly simplistic. Our second main insight⎯that power and control is a product of interaction between patient identity and the broader social environment⎯is best shown in one of our case studies. ‘Felicity’s’ reaction to one episode is described as follows:

16

As indicated previously, an alternative explanation can be made in terms of regimes such as clinical regimes such as ‘close monitoring’ or ‘assertive treatment’, often adopted with ‘dual disorder’ patients, where such forms of ‘intensive supervision [are] at times provided with the client’s consent and at other times is provided involuntarily’ (Noordsy, Mercer and Drake, 2002). Indeed such regimes may occupy the hinterland between community treatment orders and more ‘voluntary’ programs (Davis, 2002). 17 Clinicians were named as applicants in 14 cases, while family members were the nominal or actual applicants in 8 cases (in 4 withdrawn matters the applicant was ‘to be advised’, implying that clinicians had a hand in initiating the matter): data referred to at n 15 above.

11 I was being seen as an outpatient at [X hospital] by a doctor that I’d … seen at the Children’s Hospital … And I hated the doctor there … hated him with a passion …. So they said, ‘Right. We’re going to tube feed you’. And they got the guardianship order out against me … Because they knew I’d fight it [being tube fed] and pull it out and do whatever. They threatened to send me to a locked ward where I would be physically restrained … They threatened to send me to … to the psychiatric unit [at a nearby hospital]. And that was enough for me … to comply with what they wanted for the time being. (Emphasis added).

There are several factors in play here. First, Felicity is driven by her violent dislike of a particular clinician at an alternative facility. Despite being tube fed, and despite being coerced into acceptance of this course by a legal order (adult guardianship), her ‘hatred’ of that other clinician was apparently the more powerful force motivating her (reluctant) compliance. Second, she was fearful of the loss of control of being placed in a locked ward and then physically ‘restrained’, and of the prospect of the stigma of transfer to a ‘psychiatric’ unit, as foreshadowed by her treatment team. This combination of disciplinary influences⎯the interplay between dislike of a particular clinician, threats to switch service settings, and the foreshadowing of psychiatric committal⎯was sufficient to win her grudging compliance. She decided to ‘comply with what they wanted’; at least ‘for the time being’. As Foucault demonstrated, power is dynamic rather than static, and is often highly disseminated rather than always channelled through particular structures. Institutions not commonly thought of as part of the law, such as the home or the hospital, may become sites for expression of such power⎯often linked in with complex social networks, and shaped by its point in history. His focus is on the ‘techniques’ for the exercise of power, and the dialectic of the dialogue of application and resistance to that power. It is a truism that law is power, but that its power is mediated in many ways. Power is shifting and unstable, and it takes various forms other than the classical ‘disciplinary’ form so sharply expressed in anorexia management in the form of legally compelled detention for treatment, or imposition of nasogastric feeding (Carney, 2002). For Foucault power was not so well captured by such metaphors of ‘command and control’. Instead it was located in the ‘governmentality’ space. A space lying between mere game-playing contestation and the ‘state of domination’ constituted by its expression in legal coercion, or as the ‘sovereignty’ of power (Rabinow, 1997: xvii). In this view, a regulatory regime may be experienced as beneficent, indeed sometimes even pleasurable, and freely chosen (Shearing and Stenning, 1984). Shearing and Stenning show how Disney World is constructed to ensure that consumers are complicit in their own security (347), that self-regulation (assisted when necessary by staff dressed up as Mickey Mouse or other characters from the Walt Disney imaginary) combines freedom and security. The treatment of anorexia nervosa is harder to deliver without coercion than a plunge down Splash Mountain, but the question posed is still relevant: how can governance be exercised in a way that is experienced as freely chosen?

12 1. Power in ‘pastoral’ settings. Power may also take a ‘pastoral’ form of course, as in the carer relationship in nursing: Nurses … are in direct contact with individuals, groups, communities, and populations [constituting] a powerful group of experts …. Working at the junction of the individual and collective body within power relations that promote and recuperate life, nurses are able, through their interventions, to mold, conduct or affect people as well as to construct, with the help of other health care professionals, people's subjectivities. (Holmes and Gastaldo, 2002).

These ‘subjectivities’ (sometimes called ‘bio-power’) principally include the ‘self’ or ‘identity’ of the patient. So self-images are shaped by these exchanges. Exchanges which are never neutral but which may be advantageous or ‘controlling’ in character. As Powers has recently argued, even as superficially attractive a goal as pursuit of ‘empowerment’ in therapy can constitute a technique for the exercise of power. This is because clinicians may subtly ‘privilege’ the preferred option supposedly ‘chosen’ by the patient (Powers, 2003). Nursing too involves deploying techniques ranging from ‘disciplining’ to ‘promoting discourses that construct desirable subjectivities’ (Holmes and Gastaldo, 2002). Of course care must be taken not to oversimplify the application of this analysis (Cheek and Porter, 1997). While therapeutic interventions lend themselves to analysis from this perspective, this does not displace the legitimate role played by the psychodynamics of some conditions (Glass, 2000). Nor does it mean that power and control are inimical to the interests of the patient: processes of socialisation and formation of identities are shaped by power, and such acculturation may facilitate social functioning or the capacity to manage chronic conditions like anorexia (Aneshensel, 1999: 597). Indeed, given that lack of ‘insight’ (denial) is a central ingredient of anorexia, the role of access to ‘normalising’ social interactions and supports may be central to its satisfactory management (White, Bebbington, Pearson, Johnson and Ellis, 2000). In-patient care for psychiatric conditions has altered quite dramatically over the last several decades, however. The hospital setting is no longer the primary ‘place of observation, of diagnosis, of clinical and experimental identification [and] immediate intervention’, that once was the case when the ‘infection’ model of health was dominant (Foucault, 1997: 40-41). Hospitals (and medicine) no longer serve as the primary agents for ‘clarifying and purifying’ the disease entity. That role has been undermined both by the problematic status of ‘disease’ within psychiatry (Dawson, 1996; Beumont and Carney, 2004), and by the relegation of hospitals to brief interludes in the management of conditions like anorexia (Carney, Tait, Saunders, Touyz, Wakefield et al., 2003).

13 2. Power as experienced by anorexia patients. Consequently, the ‘community/family’ space is now much more central. This is the new site where power and control is experienced by sufferers of conditions like anorexia (Hiday, Swartz, Swanson, Borum and Wagner, 2002: 123). Power in the case of anorexia management, we suggest, tends to find its expression in the fluidity of the ‘negotiations’ about the relationships forged both in this societal space, and those within the hospital setting. Moreover the currency used in negotiations within the setting (hospital or community) where the person with anorexia is currently residing, frequently harks back to, or anticipates, life in the other sphere. So conditions of life in the community loom large in the life of hospitalised patients. And in similar vein, prospects of return to hospital shapes the lives of those currently living in the community. One of our qualitative interviews illustrates this interpenetration of the two ‘worlds’, but also brings out the multiple levels of that relationship. It shows that sometimes the legacy of past experience, however unpleasant, can leave a more positive legacy of ‘control’ for the future. Kelly’s opinion of the outcome of a previous period of hospitalisation is a case in point: I think hospital was good in a way, as I wouldn’t want to ever go there again. That’s the only good thing about the hospital experience. I’m terrified of ever going there again. (Emphasis added).

Turning to her ongoing issues with her weight management, she brought out the sense of being caught in a kind of systemic ‘limbo-land’ or twilight zone in terms of her weight, when she said: I know where this is going to end up, in hospital again. That terror of having control taken off me. It’s almost like um, I think a lot of people do it, who have had an eating disorder, or anorexia and have been under weight. You can kind of keep yourself between these safe weights that aren’t perhaps as healthy as they should be but aren’t going to get you put in hospital. It‘s a pretty miserable way to live. Look, you know, it’s hard because I think the system makes it almost like, because of the way you’re treated in hospital you kind of afterwards get stuck. I guess there are times where I feel like that. I get stuck in this: ‘I’m not totally over it or totally well’. Not going to, um way too terrified to [end up in] hospital again. (Emphasis added).

As can be seen from this passage, previous unhappy experiences (in this case of hospitalisation) maintain an element of on-going control or influence over the life course of the patient with anorexia. Kelly’s experience is that this is both empowering and controlling: empowering in the sense of reminding her of the unpleasant consequences of an acute episode, but paradoxically ‘controlling’ as well, in the sense of maintaining its thrall over her life and her management of the condition. So power and control can be very subtle and highly nuanced. The interview with ‘Tess’, the sister of ‘Kate’ (the patient), where she is describing their mother visiting Kate in the hospital, shows the way other more intimate worlds can inter-relate with each other –

14 [E]ven in hindsight again you could probably imagine her sense of failure and everything. And she couldn’t even come to the hospital. And when she did she was hostile. And Kate used to dread her visits. (Emphasis added).

Kate’s mother, then was a powerful part of this woman’s ‘social context’. Blaming herself for ‘failing’ her daughter, she found it a great ordeal to visit her in hospital. When she did so, she projected her ‘hostility’. As a result, Kate ‘dreaded’ visits. As elaborated by Tess when she was asked how she herself came to understand that her sister was suffering from anorexia, she recalls how her mother presented herself as the ‘victim’ of Kate’s vindictive or ‘attention seeking’ behaviour: But Mum was also, Mum didn’t know how to deal with it. She didn’t have the emotional ability or any type of insight to deal with it. Um, and just saw it as, my mother has always been a victim, and she thought Kate was doing something to her and directly punishing her for something. So you know, it was ‘the little bitch is only doing it for attention’. That sort of thing, which exacerbated the problem. Kate bought home a Foundation form saying there’s an information night on anorexia and Mum said ‘what do I want to learn about that shit for’ and she ripped it up in front of her. Which is another kick in the guts.

So in Kate’s case, one of the most powerful set of forces operating in her social environment was the presence of her mother and the negative images and tension stemming from her lack of insight into her daughter’s condition. This was a major complicating or compounding influence⎯a control or constraint standing in the way of a more therapeutic acceptance or resolution of her condition. Likewise in the case of ‘Kelly’, who described the onset of her issues with food in the following way: Mum’s very controlling about food with all of me and my sisters. You weren’t allowed to eat at, like, when you got home from school or like you weren’t – she was just really really controlling. So we would all of us sneak food from the kitchen from between when we got home from school and she got home from work and so we’d all like cut the slice carefully and take it into our room and hide it in the desk draw and hide it for later. It was like a little game with my family so I guess we’d all sort of had… Food was just a big issue. I’ve tried to talk to my mum. I’ve tried to work it out with her why it was such a big issue for her. She had her own problems.

Here the pattern of family ‘culture’ or rules about access to food within the family is identified as a contributing factor in the emergence and continuation of Kelly’s anorexia. Again the ‘family food discipline’ is continuing to operate as a form of control into the present day. 3. Moral career. When a young woman does appear to gain greater insight into the anorexia and become more accepting of treatment interventions and maintenance of minimum weights, there is a tendency to see this as ‘progress’, and a lessening of the web of ‘control’. But is it really that she is 'getting better' or is she becoming more 'managed' and accepting the authority of her doctors?

15 a. The ‘stage’ of the life-course of the illness ‘career’?

‘Time’ is a somewhat neglected variable in the sociology of mental health, the incorporation of which enables a richer understanding to be gained of: [H]ow social factors interact with the risk, expression, course, and outcomes of mental illness, taking into account the longer term context, at least in terms of age of onset, duration of the episode, history of past episodes, time to recovery and so forth (Bruce, 1999: 53).

Given its often chronic, fluctuating pattern, anorexia is one where the ‘stage’ of the condition is significant. Goffman's term 'moral career' is therefore an apt one to apply in studying this aspect of the changing experience reported by patients over the course of treatment (Aneshensel, 1999), just as has proved to be the case with another eating disorder, that of compulsive eating (O'Brien and Bankston, 1984). The concept of career traditionally focuses on the external attributes of the professional ‘position’ a person holds, its legal authority, the associated lifestyle, or the relationship to the ‘significant society’ or institutional complex. But for Goffman it was the personal interior which was significant, such as the ‘image of self and felt identity’. Or as he wrote in the essay on the ‘moral career of the mental patient’: [My] main concerns will be with the moral aspects of career⎯that is, the regular sequence of changes that career entails in the person's self and in his framework of imagery for judging himself and others (Goffman, 1961: 119).

b. The ‘pre-patient’ and the ‘patient’ phases of identity.

Goffman distinguished between the ‘pre-patient’ and the ‘patient’ phases of a sociological transition which he argues can serve to construct one’s ‘self identity’ (Goffman, 1961; 1968). Our data does not directly capture the early stages of the management of the pre-patient phase, but the resistance to acceptance of anorexia which characterised the state of mind of patients admitted to the RPA unit offered rich data on the possible transitions from prepatient to patient and ‘managed patient’ phases (Pescosolido, Boyer and Lubell, 1999: 458). Goffman shows that the reaction of others to a person’s condition, once this reaction is internalised, can displace a person’s previous identity and see that identity reconceived (and processed) according to the expectations and requirements of more powerful players, such as clinicians and other networks (Aneshensel, 1999: 596) . For instance a former mental patient residing in supported boarding accommodation may develop ‘classifications’ of those who can, and who cannot, readily take the next step back into fully independent living (Shaw, 1991). Part of that process for a person with anorexia entails convergence towards a new image of the ‘self’, including the constraints of the role and expectations about how to act as a group of fellow sufferers, and in relationships to staff (whose transition from general to say psychiatric nursing may exemplify a 'moral career': Caygill, 1993).

16 One aspect of the pre-patient stage that Goffman identifies is the formation of an alliance, or even conspiracy, between the medical staff and the family. The latter are persuaded to take on the view of the person presented to them by medical authorities. This could lead to the person feeling further isolated and betrayed, as those who were believed to be supporters become revealed to be allies of psychiatrists (1961, 129). Families were torn between their desire to ‘support’ the family member or to ally themselves with the doctors. Guardianship can offer one way of addressing this dilemma, by appointing a person, independent of both family and treatment team, who can participate in treatment and lifestyle decisions. In his book on Stigma, Goffman wrote of the duality of self-images which emerge, one representing the viewpoint and values of so-called ‘normal’ society, the other the subjective experience of the person with the condition (Goffman, 1968: 45), and the four common ‘patterns’ of response to that dissonance: (i)

dual acquisition of both perspectives;

(ii)

family insulation from outside perspectives serving to delay appreciation of societal attitudes;

(iii)

late-in-lifecourse discovery of a devalued identity (either prospectively, leaving the past intact; or retrospectively, involving reconstruction of past identities; and

(iv)

those socialised in the ‘alien’ community and who make the transition to values shared by the community at large (id, 45-49).

Likewise Talcott Parsons’ work on the ‘illness career’, starting with perceptions of undifferentiated ‘symptoms’ (such as lack of good health), leading on into possible adoption of a social condition or ‘sick role’, and development of (medical practitioner-validated’) ‘patient’ roles. A trajectory culminating⎯at its most optimistic⎯in ‘recovery’ following treatment (Pescosolido, Boyer and Lubell, 1999: 443). But one where the network of family, friends and significant ‘others’ may mediate the choice of pathways taken (or resisted) at any one time (Pescosolido, 1991). c. Fieldwork illustrations of compromised identity.

These frameworks provide a useful lens for understanding the way some anorexia patients ‘mould’ their behaviour to accommodate preservation of relationships with significant others, such as family, partners or therapists. Thus ‘Kate’, when discussing her relationship with her previous therapist, said: And so I was always used to keeping things to myself because ‘Mary’ said I was being provocative by voicing how I was feeling or just voicing how I felt about something, my perception of things, so that in the end I just had to tell her what she wanted to hear to keep her happy. (Emphasis added).

It is clear that Kate managed the way she presented her ‘public’ self in order not to unduly offend her therapist. Rather than fully express her feelings and

17 thoughts, she kept certain things to herself. Obviously this avoided the tension and trauma of what she described as her more ‘provocative’ behaviour. But it also entailed a moulding of her relationship with the therapist, so that⎯on a superficial level at least⎯it was a ‘happier’ interaction. And, as a result of this internalisation of more negative thoughts, perhaps also a more ‘therapeutic’ relationship as well, in that there was more chance for mutual respect to build? Sometimes there is an intersection with the ‘suasive/coercive’ narrative as well however. Thus Kate also talked about conforming to clinicians expectations to avoid transfer into the public system: So I’ll just never forget that, of having to prove, and then that whole admission was one I think I mentioned where I was constantly, I was putting all my effort into trying to be such a good patient. I had to make sure that um, you know, that my reputation somehow had to be salvaged, even just a little bit. And that, um, went against me further down the track big time in myself. In my own, on my way to recovery really, set me back in my own way. It was just that if they didn’t accept me then they would transfer me to Royal Melbourne. I felt desperate, I didn’t want to be in there, but I knew I couldn’t leave. So, and I remember trying to leave once, and they put in a psychiatrist in front of me, she was Chinese, and she said she’d make me involuntary. So it was like I have to do this, be the good patient. (Emphasis added).

There are at least two forces at work in Kate’s mind here. First, she was concerned to preserve her ‘reputation’; her reputation as a ‘good patient’. Her identification with herself as a patient reflects an important transition: no longer a person in denial of being ‘ill’, she has been socialised into acceptance of the ‘sick role’. Consistent with the medical model of diagnosis, identification of cause and application of curative treatment’, Kate is at least prepared to talk the language of illness/recovery. Not only did she want to be good at ‘anorexia’ she also wanted to be good at being treated for ‘anorexia’. Good enough at ‘anorexia’ to need intensive inpatient care but good enough to be able to stay at her preferred inpatient care facility and to be considered a ‘good patient’. Yet even this is a qualified acceptance: her identity is partly that of the cooperative patient, but it also has strong connotations of acceptance of her present place and regimen of treatment as an appropriate management of her ‘slightly deviant’ condition. Her language here seems little different to that of a person on probation, who has reconciled themselves to the advantage of being a ‘good’ probationer (just as people who are incarcerated usually become acculturated to being a ‘model’ prisoner). The second force at work is even more consistent with an analysis in terms of power, stigma and social control. For Kate is articulating a coldly rational analysis of the ‘least worst option’. She may not have enjoyed treatment where she was, but she was fearful of a ‘transfer to Royal Melbourne’. The threat of a transfer, playing on what she knew about that facility as well as on her uncertainty about the ‘unknown’, was a subtle but very effective expression of power which helped control her current compliance with her treatment. Because these future scenarios were playing on her mind at the

18 time, Kate decided to be more cooperative. She internalised the disseminated forms of control operating in her clinical environment. This case is a classic illustration of what we mean when we say that power is a product of the intersection between personal identity (the ‘good patient’) and the highly disseminated ways in which power is dispersed in society, outside the formal legal system and authority structures usually the focus of attention by lawyers. D. CONCLUSION. Anorexia nervosa remains one of the difficult and frustrating conditions for medical staff, in part because of the resistance of patients to therapies intended to cure them. This may be experienced as ingratitude not just from patients themselves (who may be presumed to ‘lack insight’), but by feminist groups raising civil liberties objections. Obtaining informed consent is an ongoing concern, and developing compliance strategies becomes a major focus of the intervention. From the perspective of patients, enduring the regulatory regime imposed on them becomes a challenge and can be experienced as harsh and threatening. Issues of power and control are therefore major ongoing issues in the treatment of the condition. And yet, the law is rarely invoked, at least formally. Control is exercised not through the majesty of a court or tribunal order but through the routine practices of the clinic, through disciplinary practices embedded in everyday life. This includes daily routines of eating and washing, informal or written ‘contracts’ and other behavioural measures, regular surveillance and measuring, interactions with staff, visits and activities, and all the other rituals of institutional living. The regulatory regime does not just touch on practices; it is also explicitly targeted at identities. This includes self-image, and the attitudes to the body. It also shapes what Goffman refers to as the ‘moral career’ of the patient. This includes learning to play the ‘patient role’, to ‘be’ an ‘anorexic’, a credible exemplar of a condition. This role may be learned by observing and modeling oneself on peers, or by responding to the reactions of others. But a moral career may also lead to displaying signs of being on the road to recovery, whether through compliance with therapies or screening information suitable for the ears of therapists. The language of ‘cure’ and ‘recovery’ providing a framework for an ongoing re-shaping of identity. If intrusive medical and behavioural intervention to re-shape both practices and identities rarely engages the law, the question must be asked – why not? After all this is precisely the sort of situation where fundamental principles of right to life and right to control over one’s body come most acutely into collision. Is the law so clumsy that it fails to provide a mechanism for handling these issues in a timely and sensitive way? Or is the law being avoided because less restrictive options work most of the time? Our answer to these questions, based on an interpretation of Foucault, is that the regulatory regimes that shape the treatment of conditions such as anorexia nervosa, constitute, and in a sense, are ‘the law’. How ‘duty of care’

19 is operationalised in a hospital environment, how medical expertise has been translated into medical authority, how therapies are developed and tested through a scientific process, how interactions between ‘experts’, ‘carers’ and patients are mediated through conventions and rules, indeed how ‘empowerment’ is conscripted in the service of control―these practices and many more help to shape the regimes of governmentality that operate within the setting of the eating disorder clinic or hospital. Some of the ‘rules’ are based in part on legislation, or codes of ethics grounded in international covenants. But many of them are ‘informal’ in the sense that they operate outside, or ‘in the shadow of’, the formal legal system. What was perhaps most interesting about the use of the law for those included in this study was the way the possibility of legal orders provided a source of authority within the clinical setting. This could include foreshadowing, strategic lodging or withdrawal of applications, or use of guardianship to provide substitute consent rather than the more extensive mental health orders. Rather than ‘the law’ being something external that imposed itself upon patients and clinicians, it became instead a new source of power for medical therapists. Such a role for the law could perhaps be seen as ‘professional capture’ by those supposedly regulated by a legal regime, or an example of how a system set up to protect patient rights had the unintended consequence of strengthening medical authority. However there is another interpretation, based on Goffman’s understanding of the complicity involved in sustaining a role. Taking on the role of the patient involves ‘participating in reciprocally sustained fictions’ (1961, 142). The ‘fiction’ of acting ‘responsibly’ without coercion is an important part of the therapeutic framework in many contemporary treatments, and this fiction can best be sustained when legal coercion is not formally employed. Indeed the availability of legal measures may ironically reduce the need for physical constraints. The patient learns to provide consent ‘freely’, to make the ‘correct’ choices, to accept the ‘empowerment’ regime that is made even more convincing by the threat of legal intervention. In time the constraints learned in this way become part of the new role, that of the ‘recovering’ patient. The fiction employed so hesitantly at first becomes part of the new identity. The patient has become an active participant in the governance of self. The question posed by the therapeutic jurisprudence literature on the work of tribunals and other institutions (McMahon and Wexler, 2002/3; Freckelton, 2003) is whether this somewhat duplicitious alliance between law and medicine really does promote therapeutic outcomes (Wexler and Winick, 1996; Wexler, 2000; Winick, 2003). If tribunals and courts have become an adjunct to medical authority rather than an independent check on it, how can we be sure that this authority is subject to appropriate accountability procedures? ‘Control’ so far as anorexia nervosa patients are concerned, is a highly nuanced, and quite diffuse and diverse concept. It is neither formal legal control, time-delayed imposition of coercion, nor social control achieved under

20 the thrall (or in the ‘shadow’) of law. It is at times all of those things and much more. However the experiences reviewed here might we think best be captured by the label of ‘disseminated power and control’.

21

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