David B. Wexler

Putting mental health into mental health law: Therapeutic jurisprudence.

This article critiques the traditional doctrinal approach to mental health law and compares the traditional approach with a new, interdisciplinary approach known as therapeutic jurisprudence. Therapeutic jurisprudence views the law itself as a potential therapeutic agent. Examples are given of how legal rules, procedures, and the roles of legal actors may produce therapeutic or antitherapeutic results and of how the law may improve therapeutic outcomes without sacrificing the interests of justice.

Applying the law therapeutically

Therapeutic jurisprudence is the study of the law as a therapeutic agent. Although much of therapeutic jurisprudence focuses on possible changes to the law, one important interdisciplinary dimension of the endeavor involves the therapeutic application of existing law. Examples are provided of therapeutic application of existing law, and this exercise is proposed as a promising path for applied psychology.

Therapeutic jurisprudence in a comparative law context

Therapeutic jurisprudence is the study of the role of the law as a therapeutic agent. Legal rules, legal procedures, and the roles of legal actors are seen as social forces that may produce therapeutic or antitherapeutic consequences. With a focus on legal arrangements and therapeutic outcomes, interest in therapeutic jurisprudence is less tied to domestic legal doctrine than are many other areas of legal scholarship. The present article proposes a comparative law approach to the study of therapeutic jurisprudence, and discusses some of the benefits—and possible cautions—of such an approach.

The structure of civil commitment

The contents and provisions of civil commitment codes are shaped by a number of influences. This article examines those influences and categorizes them as either falling within the civil commitment system itself or as being external to that system. From an analysis of those internal and external influences, it is concluded that the structure of civil commitment is very much dependent upon the environment in which such laws operate and upon the intricate and integral relationship between civil commitment and other important forms of mental health legislation (incompetence to stand trial, the insanity defense, etc.).

Seclusion and restraint: lessons from law, psychiatry, and psychology.

Until recently, rather little attention had been paid to the legal aspects of seclusion and restraint. Fortunately, however, the situation has now changed. For example, three commentators (Dix, in press; Appelbaum, in press; Soloff, in press) have recently addressed the area. Moreover, in June, 1982, subsequent to the preparation of those papers, the United States Supreme Court decided Youngberg v. Romeo, a landmark case involving the right to freedom from bodily restraint of an involuntarily institutionalized mentally disabled person. The present article seeks to analyze Youngberg v. Romeo, to synthesize and discuss the recent writings in light of Romeo, and to draw workable guidelines from those materials. Romeo, a profoundly retarded man, was committed in Pennsylvania to the Pennhurst State School and Hospital. While at Pennhurst, Romeo was injured on numerous occasions, due sometimes to his own violence and due at other times to the reactions of the residents to him. Furthermore, Romeo was often physically restrained while at Pennhurst. Claiming that his constitutional rights had been violated, Romeo sued the institutional administrators for damages. Romeo claimed he had a constitutional right to safety, to freedom of movement, and to training. The Supreme Court ruled that committed patients are entitled constitutionally to personal security and to freedom from bodily restraint, although, as will be demonstrated, the court qualified those rights considerably. The court construed even more narrowly Romeo’s right to training or “habilitation.” Since Romeo was so profoundly retarded that no amount of training would enable him to leave the institution, the case did not raise the question whether a patient has a right to treatment to facilitate his release. Similarly, the case did not present the question whether a patient possesses a general right to habilitation per se. Instead, the case presented only the question whether a patient is entitled to training in order to avoid unconstitutional infringement of his rights to bodily safety and freedom from physical restraint. In that narrow context, the court upheld a right to training. If, for example, training in self-care might reduce a patient’s frustration and therefore seemingly reduce his aggressiveness (and cor-

Criminal Commitment Contingency Structures

Approximately 5 years ago, while conducting an empirical inquiry into the administration of psychiatric justice in Arizona, we learned, from an interview with a superior court judge, of the following interesting incident: A criminal defendent in a rural county had been committed to the Arizona State Hospital as incompetent to stand trial (IST). After the defendant had been confined as IST for a few months, the superior court judge was visited by the County Board of Supervisors, who successfully urged the judge to dismiss the criminal charges and to recommit the patient pursuant to the civil commitment process.

Behavior modification and legal developments.

Recently, various modes of therapy and rehabilitation have come under legal attack. Aside from the Kaimowitz (1973) case in Detroit which dealt with psychosurgery, most of the other challenges have related to some form or other of &dquo;behavioral modification.&dquo; These therapies, rather than psychoanalysis, transactional analysis, group therapy, and the like, have probably been singled out for initial legal scrutiny because of their heightened visibility and because of the widespread belief that they are more coercive and involve less of a cooperative effort between patient and therapist than do the as yet unchallenged psychotherapeutic techniques. In particular, aversive therapies are thought to fit this mold, especially when they resort to frightening, unpleasant, and untested drugs as part and parcel of the conditioning effort.

New approaches to Mental Health Law: Will the UK follow the US lead, again?

Abstract The Mental Health Act 1983, with its greater emphasis upon legal tests and criteria, mirrored developments in the USA. Now, however, distinctively different co-operative and interdisciplinary developments are taking place in the USA. Will the UK again follow the US lead? This article highlights some of the developments and, as examples of the potential of the new approaches, considers a number of topics within the broad framework of mental health law. The article concludes that the question is whether practitioners in the UK are prepared to adopt the different ways of working that are involved with the new approaches

The Administration of Psychiatric Justice

As noted in Chapter 1, my students and I, during the 1970–71 academic year, conducted a case study of the administration of therapeutic justice in Arizona. Since at the time of the study that justice system was very much under the control of physicians and psychiatrists, the study was in essence one of “psychiatric justice,” and will be refered to as such. The year-long effort required extensive field work, which involved observing many commitment hearings in Phoenix (the state capitol, the state’s largest city, and the county seat of Maricopa County) and Tucson (the state’s second largest city and county seat of Pima County), examining court files, visiting the Arizona State Hospital and various county hospitals, and conducting interviews with physicians, lawyers, and judges in every Arizona county.

That’s What Friends Are For: Mentors, Lawyers Assistance Program (LAP) Lawyers, Therapeutic Jurisprudence, and Clients with Mental Illness

This chapter serves first to introduce briefly the concept of therapeutic jurisprudence (TJ)—the study of the impact of the law, legal procedures, and the role of legal actors on the emotional well-being of those affected by the law. It explains how TJ practices of lawyers and judges often find application in special problem-solving or ‘solution-focused’ courts—such as drug treatment courts, mental health courts, domestic violence courts, DWI courts, and most recently veterans courts. Many of those courts also have volunteers—often clients who have themselves successfully completed programs in such courts—who now serve as mentors for clients newly-admitted to those courts.