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History of Psychiatry, 28 (3). Published online on 21 April 2017.

[ACCEPTED VERSION]

Global mental health, autonomy and medical paternalism. Reconstructing the ‘French
ethical tradition’ in psychiatry

Tiago Pires Marques

Centre for Social Studies, University of Coimbra, Portugal

Abstract
In the last few decades, the definition of deontological ethics, a well-identified ethical
territory in psychiatry, has been the object of increasing concerns. This has been the case in
France, where claims of a specific ethical tradition in psychiatry have accompanied the
institutionalization of psychiatric ethics and the perceived globalization of an Anglo-
American model of mental health care. This study traces the history of the ‘French ethical
tradition in psychiatry’ and its relationship with establishing institutional spaces for ethical
decision-making. The ‘ethical tradition’ thus conceived proves to be functional in terms of
preserving the threatened identity of French psychiatry. Nevertheless, this movement also
pinpoints impasses that transcend the French context and may provide valuable resources for
ethical reflections on mental health on a global scale.

Keywords
Autonomy, globalization, medical paternalism, psychiatric ethics, sanitary democracy

In 2002 the French Association of Private Psychiatrists invoked ‘ethics’ to denounce the state
of affairs observed in the field of health care:

Ethics implies not reducing the individual to the fatum of genetic fabrication, to the
automatic process of a progressive disease, nor to a social image, an ensemble of
professional and family features. In the face of the adaptive pressures of social norms,
the psychiatrist defends the dignity of the individual and catalyses the commitment of
the patient as the subject of his/her speech, a site of the unconscious, an agent of change
instead of a passive object of care. (Jeanpierre, Burdet-Dubuc and Roueff, 2002)

This statement signals the major change taking place in psychiatry over the last few decades.
From the 1950s to the 1970s, professionals, service users, politicians and intellectuals
denounced the repressive practices carried out in psychiatric institutions, but in the early
2000s, some psychiatrists defended psychiatry as a barrier against the ‘adaptive pressures’
imposed by the globalization of mental health care practices impacting on both professionals
and patients. In this particular case, psychiatrists referred specifically to the notion of the
individual, and the values and therapeutic approaches attributed to the neurosciences,
themselves viewed as a threat to psychiatry. Additionally, they suggested that the

 
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development of various ‘good professional practice’ concepts threatened the ethical identity
of a field, which until then had been perceived as relatively homogenous.
We may argue that the concerns of these psychiatrists primarily reflect the impact of
globalizing mental health models, and here taking the form of a discourse on ethics. As some
authors have demonstrated, in addition to the diffusion of classification manuals of mental
disorders and therapeutic tools (Demazeux, 2013: 241–52), globalization impacts on the
institutionalization of different scientific paradigms, good practice ideals, and the increasing
division of health sector labour (Castel, 1981/2011: 21; Pols, 2008: 64). In recent normative
accounts of psychiatric ethics, some authors refer to the spreading trend of context and value-
sensitive ethical models, to the detriment of more conventional principles-based approaches
(Bolton, 2008: 214–18; Borry, Schotsmans and Dierickx, 2008: 40–1; Thornton, 2007: 84–5).
In France, a vast literature on psychiatric ethics has flourished as a response to the advocacy
of patient-centred approaches. This literature tackles the existing, perceived or expected
clashes between a legal rationale, institutionalizing the rights of patients on account of the
normative value of individual autonomy, and the psychiatric rationale in which individual
autonomy is often countered in the name of ethics (e.g. Coffin, 2009; Descarpentries, 2007:
55; Horassius and Kress, 2003: 174; Horassius-Jarrie, 2011; Mino, 2002; Moutel, 2003: 16;
Tyrode and Bourcet, 2003). All these accounts of ethics, defining typical models and
providing ethical guidelines to practitioners and other professionals, are simultaneously
descriptive and normative. Nevertheless, they do not problematize historically the
construction of the models they identify as hegemonic, and they also fail to explore the
connections between ethical models and the changing conditions of psychiatric practices. In
order to ascertain historical perspectives on psychiatric ethics, we have to turn to the work of
philosophers and sociologists.

The great narratives on the ethics of mental health care

Several studies have sought to identify the major normative issues, albeit not specifically
ethical, in the contemporary domains of mental health. In 1979, sociologists Françoise Castel,
Robert Castel and anthropologist Anne Lovell reported changes in psychiatric ethics, analysed
as resulting from technical innovations, economic and political constraints, as well as changes
in moral values. These authors then retraced the rise of that which they called ‘medical
positivism’ deemed to portray a strong preventive orientation. Although still underrepresented
in hospitals, they considered such an orientation dominant in universities. Building on a
comparison between the American and French cases, Castel, Castel and Lovell (1979: 78–82)
argued that the fundamental issue of the ‘advanced psychiatric society’ lay in the explosion in
the range of psychotherapies and their respective evaluations by public health authorities.
Critical of the spirit of both the evaluation criteria and the results, they then argued that the
new psychiatric ethos, mostly represented by cognitive-behavioural therapies, served a
pragmatic, normalizing, and individualistic value system. In a similar vein, in his reference
work La Gestion des risques, Robert Castel (1981/2011) viewed the then developing risk
management policies and the interrelated information technologies, contemporary to the
decline of the welfare state, as the principal driving force in the expansion of ‘medical
objectivism’ and the logic of prevention in psychiatry. Castel emphasized how the novel
economic and political-social model – global neoliberalism – incorporated a different concept
of the subject: the new medical ethos thus reflected the injunction to optimize the economic
potential of individuals, the so-called ‘human capital’, by promoting their autonomy and
professional performativity. This ethos called for psychological self-monitoring technologies
that increasingly replaced coercive practices. Hence there emerged a new model of man,
objectified and pragmatic, ignoring ‘the dimension of the unconscious, the thickness of social
life and the weight of history’ (Castel, 1981/2011: 194).

 
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Drawing on the work of Michel Foucault, Nikolas Rose has analysed psychology,
bioethics and neuroethics, within a context of similar problems and a comparable critical aim.
He observed an ‘elective affinity’ between social psychology and liberal democracies
comparable with the relationship between Calvinism and capitalism analysed by Weber
(Rose, 1996: 118). More recently, Rose (2007) addressed the ethics involved in biopolitics,
including research policies in genetics and the neurosciences. According to him, the ‘politics
of life’ correspond to an economic ethos (bioeconomy, biocapital) and new forms of civic
participation (biosocialities, biological citizenship). In this line of thought, the moral cement
of this new social configuration is well conveyed by the idea that ‘all humans are after all
biological beings’ (pp. 254–5). Still more recently, Rose has expanded his analysis on the
‘living biological body as a key site for the government of individuals’ by embracing the
questions raised by the neurosciences on notions of the self and personhood. Alongside the
psychological self, the neurobiological self becomes something one can improve, and
manage, through technique and certain kinds of spirituality (Rose and Abi-Rached, 2013:
223).
In the 2000s, the French sociologist Alain Ehrenberg developed a critical sociology of
mental health according to rather different terms. Distancing himself from the Foucaultian
perspectives, Ehrenberg instead drew inspiration from Louis Dumont’s anthropology of
individualism and Norbert Elias’s historical sociology. On these grounds, he analysed
transformations in the ethics of mental health as resulting from long-term changes in the
Western individualist culture (Ehrenberg, 2008: 207–47; 2010: 346–52). In Ehrenberg’s line
of thought, phenomena such as the decline in the prestige of psychoanalysis and the
evaluation of the results of psychotherapies in terms of gains in autonomy and social
performativity constitute symptoms of an expanding American individualistic culture.
Tacking stock of this review, we can state that historical perspectives on the ethics of
psychiatry and other mental health domains became articulated within great narratives and
were tightly dependent on previously adopted theoretical frameworks. However, the present
article argues that the explicit articulation of an ethical style, or tradition, by French
psychiatrists requires a different approach. As in a few studies on bioethics, especially the one
by Fox and Swazey (2008), sociologist Simone Bateman argues we need to be able to analyse
psychiatric ethics as a ‘social fact’ or, more precisely, as an ensemble of historically changing
social practices (Fox and Swazey, 2008, quoted by Bateman, 2008: 15–16). As Bateman, in
particular, has shown, therapeutic competences and ethical interpretations generate their own
forms of authority and can become normative. In this regard, it thus becomes important to
analyse the standards (legal, ethical, therapeutic) present in the mental health sector, not
solely via a logic of power but also as repositories – in the form of rules, discourses and
practices – allowing for the coordination of different rationalities of action, especially in
critical moments.1
The general aim of this study is thus to recast psychiatric ethics as a historiographical
object. More concretely, this article analyses the ways in which, between the 1980s and the
early 2010s, French psychiatrists mobilized explicitly ethical concepts and the political and
institutional contexts in which they evolved and made sense. Building on documentary
sources ranging from legal texts to ethical declarations, published debates, books, academic
papers and the reports of ethical committees, this essay attempts to trace the responses to the
perceived globalization of Anglo-American psychiatric ethics.
As a barometer of the globalizing tendencies in mental health care, France proves to
be a particularly interesting case. On the one hand, it was a major centre in the production of
psychiatric knowledge until the 1950s, but French psychiatry then lost its momentum to
Anglo-American models. Nevertheless, it has still retained a strong identity, which sometimes
functions in resistance to the perceived globalization of mental health care. On the other hand,

 
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those French psychiatrists involved in ethical debates conceive of their practices as part of a
deontological medical tradition, as opposed to the Anglo-American tradition based on the
ideal of the patient’s autonomy. As discussed in greater detail below, from the 1980s onwards,
moral philosophers and historians of medicine have described French clinical ethics as a
typically deontological, or beneficence, model, in contrast to the Anglo-Saxon autonomy
model, which gave more weight to the expressed will of patients. Considered as part of the
same globalizing movement, the latter often gets viewed as a threat to the ‘French way’ of
doing psychiatry. The final section of this study argues that histories of psychiatric ethics are
necessary to shed light on the values implicit in both local and global models of mental health
care.

Sector-making and the French ethical tradition in psychiatry

In the aftermath of World War II, a new ethical consciousness emerged in French psychiatry.2
New forms of recognizing the rights of patients and the ethical duties of doctors were
reflected in legislation (e.g. Décret no. 53-1001 du 5 octobre 1953 portant codification des
textes législatifs concernant la santé publique; the Public Health Code) and deontological
codes, some of them invested with legal powers, such as the Code of Medical Deontology
(Code de Déontologie Médicale, issued in 1947 and revised in 1955: Décret no. 55-1591 du
28 novembre 1955). Simultaneously, some psychiatrists, later rising to the status of masters
and founders of schools of thought, combined psychiatric and psychoanalytical theory on
mental illness with philosophical reflections on madness, freedom, agency and social
structures, and, as such, articulated an ethical reflection within psychiatric institutions. Henry
Ey, Jean Delay, Lucien Bonnafé and Jacques Lacan, some of this period’s most prominent
actors, were among those involved in the ethical reframing of French psychiatry (Horassius,
1996: 6).
These new attitudes, theories and philosophical reflections permeated the policy of
sectorisation (sector-making), which eventually restructured psychiatric institutions and
practices in France. Drafted in the 1960s and implemented systematically since the 1970s, the
sector-making policy reorganized psychiatric care, traditionally centred in the hospital, into
geographic areas served by a cluster of specialized institutions, such as internment units, open
units and halfway houses. Unlike other cases (e.g. Italy and Greece), the psychiatric hospital
was not questioned and was, instead, inserted into a network of institutions. Although
allowing patients variable degrees of participation in life outside the walls of hospitals, these
institutions retained the authority of psychiatrists over the individuals in their custody (Coffin,
2005).
Until the 1970s, ethical thinking in French psychiatry remained fundamentally
national and deontological. In other words, it took the form of a normative reflection of
professionals on their area of activity. However, from this decade onwards, we observe the
onset of a first significant movement for the internationalization of ethical standards in
psychiatry. While the World Health Organization and the World Medical Association had
issued international ethical codes since the late 1940s, it was only after the 1970s that the
sector of mental health care became an object of specific ethical regulation. The World
Psychiatric Association (WPA), founded in 1950, issued its first chart of ethical guidelines,
the Declaration of Hawaii, in 1977, as a response to the publicizing of political abuses by
psychiatry in some countries. Thereafter, this association has considerably expanded its range
of intervention, addressing issues such as the ethics of psychotherapies, preventive actions in
the mental health domain, discrimination and religious and cultural diversity (WPA, n.d.).
Since the 1980s, the WPA, the United Nations, the Council of Europe, the World Health
Organization and World Medical Association have issued several charters of rights and good

 
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practice recommendations regarding persons with mental disorders (Kingdon, Jones and
Lönnqvist, 2004).
The implementation of psychiatric sectors during the 1970s and 1980s facilitated the
growing involvement of the state in the design of mental health institutions. This process went
hand in hand with a certain degree of legal codification of medical ethics and psychiatric
clinical practice. The setting up of the Comité consultatif national d’éthique pour les sciences
de la vie et de la santé (Consultative National Committee on the Ethics of Life and Health
Sciences) in 1983 formalized the domain of medical ethics and placed it under state
supervision. Loi no. 88-1138 du 20 décembre 1988, the so-called Loi Huriet, sought to protect
persons who were the subjects of medical research. Loi no. 90-527 du 27 juin 1990 defined
the rights of patients confined in psychiatric institutions, and it also implemented regional
commissions to supervise their application (Commissions départementales des
hospitalisations psychiatriques). In the same spirit, a Charte des droits du patient hospitalisé
(Hospitalized Patient Charter of Rights, 1995) had to be displayed in all psychiatric units. In
addition, a set of laws on bioethics impacted on psychiatric care and research; for example,
the 1994 law on bioethics (Loi no. 94-653 du 29 juillet 1994 relative au respect du corps
humain) specifying the obligations of researchers to conform with guaranteeing the principle
of informed consent for patients and their right to receive medical and trial information. To
this list of laws, we must also add a new device, the Commissions de conciliation
(Conciliation Commissions), implemented in some hospitals from 1996 onwards with the
specific aim of settling disputes related to enforced hospitalization.
Overall, this description conveys a picture of increasing complexity in the field of
mental health, now characterized by a diversity of normative sources: clinical, legal and
political. These sources are as much international as regional and national in origin. In
addition, the evolution of psychiatric sectors, based on the principle of proximity between
caregivers and patients, or service users, led to new demands. For instance, in 1996 the
psychiatrist Michel Horassius observed that, despite the growing demand for mental health
care between 1960 and 1996, the number of hospitalizations decreased by half, from 140,000
to 70,000. Nevertheless, even while confinements were becoming shorter, they also had a
tendency to become more frequent. As a result of this trend, possibly combined with a
decrease in the stigma associated with mental disorders, greater demand for psychiatric care
challenged the response capacity of the system (Horassius, 1996: 2).
These legal innovations and new institutions reflected a generalized perception that
constraint in clinical settings had become increasingly difficult to legitimize. This all
constitutes the backdrop against which we must interpret the wave of publications on
psychiatric ethics in France from the 1980s onwards. Psychiatrist and philosopher, Anne
Fagot-Largeault, professor at the prestigious Collège de France, set the benchmarks on
medical ethical thinking that now allow psychiatrists to reframe their discourse in terms of a
‘tradition’ (Fagot-Largeault, 1985: 95). In her pioneering analyses of medical ethics and
consent, she included some thoughts on psychiatry, proposing a movement by which French
psychiatry would evolve from a deontological tradition, characterized by an ethos of ‘medical
paternalism’ and implying the ethics of beneficence, to a ‘moderate paternalism’
(paternalisme tempéré). Fagot-Largeault characterized this new ethical model by its
incorporation of the principle of autonomy – typical of the medical teleological tradition
dominant in the UK and the USA – into French medical culture. This implied, more
concretely, the expansion in France of what Fagot-Largeault (1998: 77–8) labels the
‘contractual atmosphere’ of Anglo-American medicine, with its typical distinctions between
legal capacity and mental ability to consent.
Following in her footsteps, other philosophers and medical ethicists, and a significant
number of psychiatrists, further developed this analysis (e.g. Coffin, 2009; Descarpentries,

 
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2007; Horassius and Kress, 2003; Horassius-Jarrie, 2011; Mino, 2002; Moutel, 2003; Rameix,
1998; Tyrode and Bourcet, 2003). Indeed, by browsing their texts, we can observe the
widespread adoption of the frame opposing the principle of beneficence / paternalism against
the principle of autonomy as well as an insistence on the theme of therapeutic coercion and
consent (e.g. Berthon, 2011; Decker, 2011). However, countering the tendency convergence
of ethical cultures foreseen by Fagot-Largeault, the contrast between the two traditions
became increasingly emphasized as a new organizational development began to take root in
the early 2000s under the aegis of ‘sanitary democracy’.

The emergence of sanitary democracy

Although already developing in the 1990s, the concept of ‘sanitary democracy’ became
institutionalized in 2002 with the Law of 4 March. Its second section used the concept as a
means of emphasizing the juridical and ethical centrality of patients, now referred to as
‘service users’, in the health system. More precisely, this implied that patients became the
principal source of authority in medical and administrative practices related to their care.
Accordingly, this bill further specified the rights of patients, namely the right to be informed
about their health, implying access to the medical files collected by doctors and the nursing
staff during hospitalization. The Charter of Rights of the Hospitalized Patient also provides
for the active inclusion of the patient in medical decision-making, with the doctor obliged to
respect the will of the person after informing her/him about the consequences of her/his
choice. Thus, no medical procedure or treatment can be carried out without the free and
informed consent of the individual, and the consent can be withdrawn at any time (Charte de
la personne hospitalisée, 2006).
The new rules extend across several legal fields, entering the Public Health Code, the
Civil Code, the Code of Social Security, the Penal Code, and the Code of Criminal Procedure,
among others. Although impacting on the entire public health system, their effect on public
psychiatry, by the very nature of this medical specialty, is particularly important insofar as
they seem to establish a new ethical regime. According to some psychiatrists,who are highly
critical of the new system, instead of the traditional model based on the principle of
beneficence and the exercise of medical competence – achieved with difficulty and validated
by their peers – this health policy aims at implementing an ethics structure closely following
the Anglo-Saxon model. In their view, this model introduced an individualistic political
culture, characteristic of the paradigm of ‘mental health’ (e.g. Descarpentries, 2007; Horassius
and Kress, 2003; Horassius-Jarrie, 2011).
This provided the context within which psychiatrists mobilized the notion of a French
specificity in psychiatric ethics through framing the tension between autonomy and
subjectivity. On 14 January 2003, the Society of Psychiatrists of Paris Sector Hospitals
published a ‘White Book’ denouncing an overall degradation of public psychiatry and
working conditions (Le Livre Blanc de la Fédération Française de Psychiatrie). Following
this line of thought, psychiatric ethics became a crucial reference in both the diagnosis of the
state of affairs and in the process of ascertaining the actual identity, if not the survival, of
psychiatry: ‘Thus the interest of psychiatry in ethical questions does not consider only the
implications of knowledge and actions on those for whom it is responsible, but also its own
centring on its purpose and functions’ (Horassius and Kress, 2003: 174).
[typesetter: Please insert Table 1 near here]

 
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Historical and societal determinants Mission and identity of Psychiatrists’ views on Problems arising from psychiatric practice
psychiatry uniqueness of their
field

Table 1. Psychiatric ethics in France, according to Le Livre Blanc ; see Horassius and Kress (2003)

 
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Historical ruptures affecting Core values of ethics in Differentiation of Patient access to medical records:
psychiatry: psychiatry: ethical models: - Patient's ability to understand the diagnosis
- World War II; - Respect for the - Teleological ethics, - Anxiety effect added to that of the disorder, etc.
- Corruption of psychiatry by the Nazi autonomy and dignity centred on individual
Capacity to consent:
and Soviet regimes of persons autonomy: the Anglo-
- Care benefits for the Saxon model - Legal rationality applicable in cases of mental
Societal trends: patient - Deontological ethics, illness
- Decline of authoritarian paternalism, - Transmission of centred on the principle
the rise of individualism, personal Treatment without consent:
clinical information to of beneficence: the - Hospitalization without consent involves the
autonomy needs patients French model patient's rights as a citizen
Transnational mental health networks - Free and informed
consent of patients Geographical Training of psychiatrists:
and organizations, and public health implications of the two
policies: - Psychiatric training now includes ethical
Diversity of theoretical models: disciplines; to what effect?
- World Health Organization fields in mental health - Anglo-Saxon and
- Ethical statements issued by the and their ideological Nordic areas vs. Issues in child/ adolescent psychiatry:
International Association of assumptions: France and Southern - Interference of psychiatry in the family
Psychiatry - Psychoanalysis Europe - Impact of diagnosis on the construction of identity
- Initiatives by the European Council, - Neurobiology
etc. Recent trends Genetics and psychiatry:
- Cognitive psychology, - Genetics requires the definition of phenotypes;
etc. favouring the Anglo-
Ethics within the context of the Saxon model: tension with ‘subjective singularity’ centred ethics
mental health concept since the
Tensions between the - French criticism of thePsychiatric research:
1970s: therapeutic mandate Anglo-Saxon model
- Influence of bioethics and demands - The care contract is complicated by the research
and the mandate of (individualism and loss contract: how does the patient benefit from
for psychiatric specificity social protection: of sight of the principleresearch?
Economic, technological and - Ethics of collectives of patient subjectivity) - Possibility of negative impacts of research
utilitarian pressures: vs. ethics of subjective procedures on patients
- The paradigm of quantifiable singularities
therapeutic effectiveness, budgetary
restrictions, etc.

The new focus on ethics was based on a well-developed approach, which may be
presented schematically as in Table 1. The model grounding psychiatrist reflections on their
ethical identity and specificity was thus based on the distinction, mentioned above, between a
teleological moral tradition (characteristic of the Anglo-Saxon world) and a deontological
moral tradition (typical of continental Europe). These psychiatrists emphasized how the
teleological tradition enhanced patient abilities to make decisions and institutionalized a
contractual notion of the therapeutic relationship between doctor and patient. In turn, the
deontological tradition, originating in another interpretation of the Enlightenment principle of
autonomy – one tempered by paternalism and the notion of scientific competence – embodied
a therapeutic relationship in which the doctor ‘has a moral obligation to protect the patient
rendered physically, psychologically and intellectually vulnerable as a result of her or his
condition’ (Rameix, 1998; quoted by Horassius and Kress, 2003: 175).

The ethical governance of psychiatry: new devices, new impasses

In this section, I argue that some aspects of this framework determined the formulation of
major ethical questions arising from clinical practice. Issues such as patients’ access to their
medical records, the capacity for consent in hospitalization, treatment without consent, and
other questions were interpreted in terms of a conflict between the two ethical traditions.
The Law of 4 March 2002 considered that the Conciliation Commissions – which, as
we saw, tackled the problems surrounding forced hospitalization – were insufficient to face
the wide range of ethical questions in psychiatry. In the spirit of ‘sanitary democracy’, this
law replaced them with Commissions Régionales de Conciliation et de l’Indemnisation

 
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(Regional Commissions for Conciliation and Compensation). The law also provided a much
wider definition of the scope of psychiatric ethics: public and private health institutions were
defined by their ‘reflection on the ethical questions raised by their hospitality and medical
care functions’ (Loi no. 2002-303 du 4 mars 2002, §5). To implement this motto, the
Conférence Nationale de Santé (National Health Conference), an advisory body set up in
1996, was charged with organizing ‘public debates allowing for citizens to express themselves
on health and medical ethical issues’ (§34). Finally, this law stipulated the founding of
regional health organizations with the specific mission of organizing public debates on
medical ethics (§35).
It was in this spirit that the so-called ‘committees of clinical ethics’ emerged in some
psychiatric hospitals in the mid-2000s. Conceived as a specific ethical governance device,
these constituted the practical response to the call for new spaces of debate and decision-
making, in view of the growing normative complexity of the field.3 These committees
included psychiatrists and other mental health sector professionals, such as nurses and social
workers, as well as representatives from associations of relatives of patients and users. Little
is known about the activities of these committees. However, some published reports provide
us with a glimpse of their objectives and the topics addressed. We thus find records detailing
the constitution of clinical ethics committees in psychiatry dating from 2005. In that year, the
Parisian Esquirol Hospital established and regulated a clinical committee, and has published
reports on its activities ever since (see Établissment Publique de Santé: E.P.S. Esquirol,
2005). In April 2008, for example, this committee discussed professional secrecy (E.P.S.
Esquirol, 2008); in 2009, it debated the use of restraints for therapeutic purposes in situations
of ‘vital urgency’ for non-compliant patients (E.P.S. Esquirol, 2009); and, in April 2010, it
examined the question of familiarity in the way staff spoke to patients (E.P.S. Esquirol, 2010).
On each of these topics, the committee issued recommendations, preceded by theoretical
reflection and references to national and international legal and ethical codes.
Sometimes the intended scope of committee interventions was also the object of
clarification. In 2009 the ethics committee at the Esquirol Hospital defined itself as follows:

… a place where professionals of the establishment, faced with specific situations

raise questions about their practice … [It] is not oriented towards the development of
protocols and procedures … [It] does not issue a ‘ready to use’ protocol but rather
produces food for thought. (E.P.S. Esquirol, 2009)

In the same year, the ethics committee of the Hospital of Tréguier reflected on its mission in
similar terms:

Ethics deals with singular, concrete situations, informed by history and meaning at
some point in a specific context. That is why in ethics there are no predetermined
responses; to each situation, its own answer: what is best for that person right now?
(Comité d’Ethique du Centre Hospitalier de Tréguier, 2009: 7)

The ethics committees are thus to ‘make recommendations in areas where ethical issues are
present, educate staff on ethical issues, discuss situations to guide clinicians in their decisions
to their request’ (p. 9).
These ethical governance devices thus seem oriented towards the resolution of
problems arising from the daily life of institutions and clinical practice. Pursuing what we
may call a micro-ethics of institutional governance, they differ quite starkly from comparable
experiences in the recent past, namely those observed since World War II. Indeed, reformist
psychiatrists in the post-war years discussed issues such as the singularity of the relationship

 
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between doctor and patient, freedom and madness from philosophical perspectives such as
existentialism and phenomenology, and the conditions for sector-making (Henckes, 2011:
165–81). Also, the movements of antipsychiatry and democratic psychiatry of the 1970s were
discussing deinstitutionalization, the right to madness, and forms of decision-making in the
community experiences emerging from these movements (Coffin, 2007). In contrast, the
ethical governance observed in the ethics committees looks fundamentally defensive, a
reaction to the injunction of taking into account the rights of patients in a context
characterized by new political, legal and administrative demands.
Although defining problems that had hitherto been poorly expressed, or simply taken
for granted as part of the normal functioning of institutions, ethics committees seemed unfit to
tackle the more general ethical issues involved in the exercise of psychiatry. Indeed, in order
to follow reflections on the major questions of psychiatric ethics and to analyse the rationales
implied in decision-making, we must turn to other types of sources, specifically official
reports and ethical research undertaken by actors in the field. These sources allow us to
identify three major problems faced by psychiatry in the age of sanitary democracy: (1)
coercion and autonomy; (2) cultural identity and therapeutic adaptation; (3) neuropsychiatric
research.

Coercion and autonomy

Documents issued by psychiatric hospitals and public administration offices highlight a
phenomenon emerging at the core of theoretical reflections on ethics. As an example, in 2000,
the Cours des Comptes (Court of Auditors) provided astonishing figures for coercive
confinement: in that year, hospitalization at the request of a third party (hospitalisation sur
demande d’un tiers) totalled c.44,000, to which we should add c.8000 cases of police
hospitalizations (hospitalisation d’office). According to Derivery and Bernardet (2002: 15),
the annual figures provided by the Court des Comptes showed that between 1988 and 1995,
hospitalizations at the request of a third party increased by 45%, while police hospitalization
returned no significant variations.
Based on these numbers, in 2003 the director of a psychiatric hospital in Marseille,
Jean-Pierre Vidal, presented a study attempting to explain the phenomenon. According to
him, this increase in hospitalization at the request of a third party was, at least partially, an
unintended effect of the application of the law of 27 June 1990 (Vidal, 2003). Reinforcing the
legal protection of those subject to police hospitalization, this law made hospitalization at the
request of a third party a crucial tool for nursing staff. Indeed, this type of procedure was
particularly useful in cases where emergency psychiatric patients posed an imminent danger
to themselves, were not able to consent and had no relatives who could act in their interest.
This study observed that many cases of mental disorders occur in people without family ties
or other types of close relationships. In this situation, a psychiatric staff team member could,
as a third party, demand confinement on the basis of therapeutic interest, on the grounds of
beneficence ethics and related civic solidarity. Vidal argued that on other occasions,
especially when the patient was opposed to confinement, this procedure prevented family
members from being viewed as persecutors by patients. Nevertheless, this practice was
gradually challenged by a competing ethical stand, deployed by the legal authorities. In court
cases initiated by patients seeking the cancellation of their confinement, judicial authorities
repeatedly handed down judgments favourable to patients’ requests, and thereby emphasizing
the right to personal liberty. The judges’ interpretation of the law thus limited the scope for
third party internment requests to partners, family members or persons with close
relationships with the patient. Vidal (2003: 50) highlighted that one of the most commonly
used and useful procedures to the proper functioning of the system was thus curtailed by
jurisprudence.

 
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In 2011, this practice became law: the Act of 5 July 2011 established that institutional
directors may rule on confinement decisions ‘when s/he receives a request from a family
member of the patient or by a person who proves the existence of a relationship with the
patient prior to the demand of care and giving that person the quality of standing in the
interest thereof, excluding carers working in the institution hosting the patient’ (Loi no. 2011-
803 du 5 juillet 2011, §2).
By explicitly excluding care professionals, this article significantly changed the
preceding legal order. The spirit of the law was in line with the philosophy of ensuring
additional guarantees to the persons confined coercively. The curtailment of individual
autonomy thus demanded a legitimacy other than that provided under the deontological ethics,
and the interrelated logic of beneficence, implicit in French psychiatric institutions. In line
with this advance in the logic of autonomy, a related change in the practices of coercion
became salient. Indeed, using the logic of beneficence, forced hospitalization implied forced
treatment, so the encroachment of legal and governance rationales was thought to be leading
to a clearer distinction between these two levels of coercion in psychiatry (Descarpentries,
2007: 105). The previously mentioned discussion by a clinical ethical committee on the use of
constraints for therapeutic purposes significantly reflects this tendency. In accordance with a
phenomenon observed in countries in which autonomy has occupied the centre of ethical
procedures in psychiatric care, consent becomes analysed from the perspective of particular
competences and different degrees of ability to make decisions (Hope, 2004: 84–5). These
abilities may be differently attributed to the same patient/ service user according to the
specific stage of her/his mental disorder and be the object of a contractual arrangement.4

Cultural identities and the inclusive role of psychiatry

Faced with increasing cultural diversity among users of psychiatric services, French
professionals have long discussed whether or not therapy needs to be adapted to varying
cultural identities. This topic proves particularly problematic in a country in which the
secularity of the state and public institutions holds the status of a founding political principle.
Positing the notion of a universal subject, the French Republic prohibits distinctions based on
race and religion. As a consequence, public institutions, including medical facilities, are never
permitted to explicitly recognize the cultural specificities of citizens. Well-rooted in hospitals,
and in French bioethics, these principles collide with the call to adapt psychotherapeutic and
psychiatric responses to the cultural identity of patients (Orfali, 2010). The topic has been at
the centre of heated and divisive debates in France in the last few decades. Yet the problem of
cultural identity in psychiatric facilities has still gained in momentum and has acquired new
shades of meaning with the onset of the logic of sanitary democracy.
While the ways in which psychiatry should take into account the cultural
idiosyncrasies of patients has generally remained unclear, a few psychologists and
psychiatrists have supported the creation of specific responses to mental distress among
cultural ‘others’, namely immigrants. This is specifically the case with Tobie Nathan’s school
of ethnopsychiatry (Stengers, 2001). Inspired by George Devereux’s works and
psychoanalytical theory, and backed by eminent scholars such as Bruno Latour and Isabelle
Stengers, Nathan’s school of ethnopsychiatry both organizes seminars to train professionals in
mental health services and provides clinical support services to immigrants (Latour, 2009).
The impact of ethnopsychiatry in the French public system remains rather marginal.
Nevertheless, the clashes between the different schools of thought have fed the debate on
aspects of psychiatric ethics. Richard Rechtman, psychiatrist and anthropologist, has raised
this question repeatedly, denouncing contemporary trends towards the ‘ethnicization of
mental illness’ (Rechtman, 2000, 2003; Fassin and Rechtman, 2011). In some cases, these
discussions have taken place in hospitals. For example, in 2002 an issue of the journal

 
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Pluriels assembled papers by psychiatrists working on the theme of ‘cultural and
ethnic sensibilities in mental health’ articulated this question in portraying an opposition
between the French republican, secular and universal tradition, and the Anglo-Saxon, mainly
American, tradition, deemed more favourable to recognizing cultural representations of
identity and their therapeutic use (Sommaire, 2002). Twelve years later, the problem was
expressed in similar terms, when a Parisian psychiatric service with a psychoanalytic
perspective promoted discussion on the question of knowing whether or not it is justified to
raise the issue of the cultural specificity of the patient as a migrant in psychiatric care. Overtly
criticizing psychotherapies intended for immigrants, the promoters of the debate signalled the
risk of locking the patient into a static notion of culture by accepting the inclusion of cultural
variables in therapeutic devices. Within this line of thought, the alienation caused by mental
illness risked being replaced by, or combined with, cultural alienation (Ecole de Ville Evrard,
2014).
The underlying, and sometimes explicit, issues of this debate thus concern competing
notions of the subject and culture. However, these define themselves more by what they reject
than by any explicit political philosophy or cultural theory. While advocates of culturally
oriented therapies imply the rejection of the notion of a universal subject, their critics point
out their danger of reifying culture, generally interlinked with criticisms of political
multicultural models. Culture thus tends to be approached more from the vantage point of
problems rather than that of solutions. This reflects a view on therapeutic care at odds with the
notion of cultural empowerment fostered by the logic of autonomy.
Recently, this last question acquired new boundaries, expanding from the issue of the
adaptation of therapeutic care for the cultural idiosyncrasies of the patient, to more
fundamental questions involving citizenship rights. This point is reflected in the reports on an
assembly organized in March 2010 by the Association Réseau Ville Hôpital 35, regarding the
psychiatric care of migrants in the Brittany region. Indeed, the proceedings of this conference
convey how psychiatrists and other professional caregivers face the specific problem posed by
asylum-seekers claiming psychic trauma, and whose fate depends on a psychiatric certificate.
These professionals report considerable therapeutic and ethical difficulties: the double role of
the psychiatrist (expert and therapist) is, in these cases, considered difficult to reconcile. As an
expert in the state service, ‘this confusion of roles exposes the psychiatrist to the danger of an
anti-therapeutic extortion of a confession’ (Le Ferrand, 2011: 27); as a therapist,

the refusal to grant a certificate condemns the asylum-seeker to the denial of the claimed
status, which can be understood as a negation of her or his own story; the granting of the
certificate participates in the recognition of the victim but the interrogatory questioning
it implies contradicts the therapeutic approach. (p. 27)

Thus, marked from its onset by the tension between a medical mandate to treat the individual
and a public mandate to protect society, psychiatry today faces yet another fundamental issue:
that of being a mediator in the recognition of citizenship.

Neuropsychiatric research
It is widely accepted that psychiatric research poses particularly difficult problems. An article
of the Public Health Code states that ‘no biomedical research can be performed on a person
without their free and informed consent, collected after he or she was issued the information
foreseen by the Article’ (Loi no. 2004-806 du 9 août 2004, § L-01.01.112). On this principle,
the law establishes procedures adapted to the cases of minors and those ‘unable to consent’.
This article also demands that information be adapted to the person’s ability to understand, in
order to obtain their personal commitment to biomedical research. Additional safeguards are

 
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provided for persons under guardianship, in which case the consent process should engage
with the legal representative or guardian of the person, as well as consulting with
representation committees of these persons. In the case of coercion involving serious risk to
the privacy or integrity of the human body, consent must still also be approved by a ‘family
council’ or, if there is none, the guardianship judge. Obtaining consent from a psychiatric
patient to participate in research thus becomes a highly complex legal process, involving a
plurality of institutions and actors.
This problem is particularly prevalent today in the neurosciences, the only field of
research actually deserving special attention from the legislator. Article 45 of the Loi no.
2011-814 du 7 juillet 2011 relative à la bioéthique establishes the following standard:

Brain imaging techniques may be used only for medical purposes or scientific research,
or in the context of legal expertise. The expressed consent of the person must be
obtained in writing prior to the completion of the exam, after she or he has been duly
informed of its nature and purpose. Consent refers to the purpose of the exam. It is
revocable with no formal requirement at any time.

The neurosciences are thus held accountable for tightening the links between psychiatry and
bioethics, thereby paving the ground for the construction of a neuroethics.5 Again,
psychiatrists have reacted to this trend, sometimes by means of vehement criticism of an
emerging neuroscience-based ethics. For example, an article on ‘care relationships in
psychiatry’, which was addressed to Jean-Pierre Changeux, a much renowned neurologist and
former professor at the Collège de France, was published in an issue of the Bulletin de
Psychiatrie in 2003. It says:

Changeux proposes a positivist morality, which is of course highly questionable. What

does he say? ‘The trend in disciplinary divisions overwhelms our institutions. A
universal morality – he thinks – can naturally arise from a knowledge of man and his
brain, and this knowledge should enable us to better orient ourselves – I am perhaps
optimistic – about what we want from man, on the model we should have in mind of
man in society and in the world to come’. (Fineltain, 2013)

Against this brain-based ‘positivist morality’, the author presents the philosophical works of
Paul Ricoeur and Emmanuel Lévinas as good ethical references for psychiatry. Placing the
concept of the interacting ‘person’, instead of ‘man and his brain’, at the centre of their ethical
thinking, the evocation of these philosophers allows for the renewing of the links with the
programmatic concept of the universal subject as the building block of psychiatric practice.

Conclusions
Let us now systematize the main points resulting from our historical approach to psychiatric
ethics. First of all, it is important to emphasize the two main components of the methodology
employed. First, instead of taking for granted the dichotomy which sets a deontological
against a teleological tradition in psychiatric ethics, we analysed the construction of this
opposition as part of a historical process, specifically the globalization of models of mental
health care, the legal codification of bioethics and the onset of sanitary democracy. This
methodology distinguishes this study from the retrospective historical overviews carried out
by ethical thinkers, and enabled us to shed light on issues articulated outside these models.
Second, we took into account the great narratives regarding the onset of the paradigm of
mental health – those emphasizing new power and economic configurations (Robert Castel
and Nikolas Rose), as well as those focusing on structuring cultural transformations (Alain

 
 14  
 
Ehrenberg). We also analysed the discourses on psychiatric ethics and the new devices
observed in the domain, such as the committees of clinical ethics within the scope of evolving
institutional configurations.
This approach may ground a periodization of deontological ethics as observed in
French psychiatry. Until the mid-twentieth century, in addition to general legal standards,
psychiatric actions depended on the conscience of psychiatrists, informed by the political
mandate to protect society from madness and the medical injunction to treat the suffering
individual. The only explicit ethics was the Hippocratic tradition. After World War II, the
notion of ethics irrupted into international organizations dedicated to health-related issues and
into some psychiatric circles. Since then, the idea of an ethics in the psychiatric field has
advanced in close combination with the reforms and mutations of psychiatry. In the last two
decades, the mobilization of psychiatrists around the cause of psychiatric ethics has
intensified: we can now observe the emergence of ethical commissions, as well as the
proliferation of conferences and of publications by psychiatrists and specialized ethical
thinkers. In France, the state itself represents one of the major players in this movement, both
as the origin of psychiatric ethics committees and as the purveyor of legislative guidelines and
texts on ethics within the framework of health policies. In addition, ethical questions have
mobilized other social actors: a greater diversity of professionals in the field of mental health,
community representatives, social workers, researchers and mediators in intercultural
dialogue.
While this last point reflects a transnational trend, we can identify French
characteristics, traceable to its fashioning as a deontological ethical tradition. Thus, the period
ranging from the 1980s to the mid-1990s is characterized by the formalization of a French
ethics in psychiatry, defined by its ‘tempered paternalism’ and logic of beneficence. Named
deontological and different from the Anglo-Saxon teleological ethics, the contents of this
‘tradition’ were developed in numerous publications. Simultaneously, the same period saw the
emergence of new normative sources that were destined to guide psychiatric clinical practices.
Yet, as the state remained the major regulator of this movement, this diversification went
hand-in-hand with the legalization of hitherto deontological norms. Bioethics stood at the
centre of this process and constituted the model for the regulation of clinical practices,
including psychiatry.
In the 1990s, the hegemony of bioethics in the medical field, the development of the
neurosciences, and the expansion of legal rationales in medical domains generated a certain
sense of crisis among psychiatrists. This feeling was expressed through the notion that the
value of individual autonomy, which was seen as a sacrosanct pillar both of an increasingly
individualistic society and of pragmatist medicine, threatened the very identity of psychiatry.
In response to this threat, some leading psychiatrists appropriated the conceptualization of a
French deontological ethics and emphasized its contrast with the globalizing ethics of
autonomy. This crisis is well illustrated by the ‘White Book of Psychiatry’ (Le Livre Blanc de
la Psychiatrie; see Horassius and Kress, 2003), published a few months after the legislation
implementing sanitary democracy. Indeed, the book’s section on psychiatric ethics was intent
on affirming the identity of the deontological tradition and defining its agenda. Against the
notion of individuals defined by their neurobiology and culture, French psychiatrists opposed
the concept of the universal subject. Psychiatry was to address the ‘suffering subject’, not the
individual, and to act in her/his good. While viewing the patient solely as an individual, ‘man
and his brain’, reduced her/him to the logic of rights, the concept of subject deferred to a
notion of citizenship, perceived as embracing the singularity of the person, independently of
his/her legal status.
The 2000s and the 2010s have been marked by the expanding legalization of clinical
practices. This context allows us to hypothesize that the committees of clinical ethics

 
 15  
 
constitute a soft device for regulating some of the tensions between legal and medical
rationales. Indeed, they appear oriented towards the resolution of practical and highly focused
dilemmas; and they do not apparently include patients in decision-making. Sanitary
democracy thus seems to develop more as a new governance regime than as a process of
radical democratization of the health system. This tendency is also illustrated by the fact that
the ethical issues understood as the most important – especially those regarding coercion and
consent, the participation of psychiatric patients in research trials, and the policies of
citizenship and cultural inclusion – remain in the shared, and often clashing, competences of
legislators and doctors. Finally, this inquiry into the construction of psychiatric ethics reveals
that ethical matters tend to be considered along a set of dichotomies: the individual interest as
opposed to the collective; the universal subject as opposed to the cultural person; and the logic
of beneficence versus the logic of autonomy.
Nonetheless, the ethical consciousness emerging in the 2000s, and concretely that
analysed in the clinical ethics committees, would suggest that, alongside the conventional
logic of rights, the more inclusive concept of citizenship is advancing as a pattern for ethical
thinking. The pertinence of effective citizenship as a conceptual tool necessary to rethinking
psychiatric clinical practices is today particularly salient when facing the issue of asylum-
seekers claiming psychic trauma. In this line of thought, psychiatry no longer constitutes
solely a therapeutic medical discipline, an institution pursuing the protection of society, or yet
another promoter of social inclusion, but rather a crucial arena for radically questioning
conventional notions of human rights and citizenship.
In this sense, the French reflections on the subject of psychiatry as a subject entitled to
citizenship, as opposed to the individual defined by her/his origin, with a capacity for
autonomy and recognized rights, may be highly significant in the face of globalizing models
of mental health care and their implied values.

Acknowledgments
The author gratefully acknowledges the financial support of the exploratory project ‘The
Fabric of Mental Health. Medical Power, Secularity, and the Psychotherapeutic Field in
Portugal (1940s–1990s)’, funded by the Portuguese Foundation for Science and Technology
(FCT) IF/01589/2013/CP1164/CT0005. The author would like to thank Simone Bateman and
Pierre-Henri Castel, with whom he discussed an early version of this paper.

Notes

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Charte de la personne hospitalisée (2006)Circulaire no.
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All other decrees and laws were accessed at the above website, using the appropriate 12-
figure number in the URL.

 
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l’objet de soins psychiatriques et aux modalités de leur prise en charge; 000024312722
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accessed at: http://www.wpanet.org/detail.php?section_id=5&content_id=28

[NOTES]
                                                                                                               
1
Indeed, building on empirical research on the standards of medical practices, Bateman
(2000, 2006) demonstrated that therapeutic skills constitute the primary source of norms of
action in the health field. In addition, Bateman showed that there is not a single standard
medical rationale applying to any given object, but that medical practices are based on a
plurality of norms: bioethics (which must itself still take into account a variety of
conceptualizations), legal, institutional, therapeutic and experiential norms. From a
sociological perspective, medicine is thus characterized by a complex normativity within
which several reference standards fit together. This hierarchy of norms, alongside the
experience of physicians and interactions between doctors and patients, represent two crucial
facets to consider in any sociological analysis of medicine.
2
In the socio-historical study of the post-World War II generation of psychiatrists in France
by Nicolas Henckes (2007: 217), ‘ethics’ is used as a heuristic tool to uncover the ensemble of
attitudes observed in a given group of psychiatrists towards their patients, clinical practices
and organizational reforms.
3
Orfali (2003) traces the history of clinical ethics back to the early 1990s, first emerging in
the USA.
4
This is the case of the so-called Ulysses arrangements, a practice under development in the
Netherlands. It consists of a protocol passed between a patient suffering from recurring
psychotic episodes and care professionals; the former, while in a phase in which her/his
capacity to decide is considered intact, provides the latter with the right to apply a therapy, by
force if necessary; Gremmen, 2008: 172.
5
Ethicist Stephen J. Morse (2009: 309) defines neuroethics as follows: ‘the principles, rules
and standards that should guide how researchers study the brain and how we apply to human
beings the technologies and knowledge that neuroscience produces’.