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...hospitalization treatment when appropriate, how clinicians, judges, and lawyers should act so as to minimize coercion's potentially anti-therapeutic effects and maximize the therapeutic potential of law in this area. The article considers areas of psychological research involving the relative effectiveness of coercion and voluntary choice in the area of hospitalization and treatment, and on what makes patients feel coerced in these contexts. The article seeks to reshape legal rules and legal and clinical practices relating to involuntary hospitalization and treatment to reflect a therapeutic jurisprudence orientation.
Key words: civil commitment, involuntary treatment, perception of coercion, therapist-patient relationship.
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Therapeutic jurisprudence (TJ) is an interdisciplinary approach to legal scholarship and law reform that sees law itself as a therapeutic agent (Wexler & Winick, 1991, 1996). (Readers interested in more information on TJ should visit the International Network on Therapeutic Jurisprudence website at www.therapeutic jurisprudence.org--a resource containing a comprehensive bibliography and notices of upcoming activities--and may also wish to join the TJ listserv mentioned on the website.) It is based on the insight that legal rules, legal practices, and the way legal actors (such as judges, lawyers, police officers, and expert witnesses testifying in court) play their roles impose consequences on the mental health and emotional well-being of those affected (Winick, 1997a). TJ suggests that scholars study these consequences with the tools of the behavioral sciences so that we can better understand law and how it applies and can reshape it to minimize its anti-therapeutic effects and maximize its therapeutic potential. It is interdisciplinary in that it brings insights from psychology and the social sciences to bear on legal questions, and it is empirical in that it calls for the testing of hypotheses concerning how the law functions and can be improved. Much of the existing TJ literature is conceptual in nature, although some of it contains an empirical component.
TJ suggests that law should value psychological health, should strive to avoid imposing antitherapeutic consequences whenever possible and, when consistent with other values served by law, should attempt to bring about healing and wellness. It does not privilege therapeutic values over others. Rather, it seeks to ascertain whether law's anti-therapeutic effects can be reduced and its therapeutic effects enhanced without subordinating due process and other justice values.
TJ does not contend that therapeutic considerations should trump other considerations. Law often serves other ends that are equally or more important than the therapeutic. TJ seeks convergence between therapeutic and other values, and suggests that such convergence is the path to true law reform (Winick, 1997a,b). When therapeutic and other values served by law conflict, TJ cannot resolve the conflict. Rather, TJ helps to make this conflict more visible and sharpens the issues for further debate. Sometimes therapeutic considerations may strongly outweigh other values, and thus point the way to law reform. Although the weighing of therapeutic against other values may be a task that some might describe as weighing apples and oranges, it is possible to weigh differing values, even those thought of as incommensurable (Kress, 1999). When therapeutic and other normative values do not converge, creative solutions can often be found that permit maximized balancing among such values with a minimization of conflict (Kress, 1999; Winick, 2000).
TJ thus is a scholarly approach for bringing mental health insights into the development and reshaping of law (Petrucci, Winick, & Wexler, 2002). It evolved out of the work of Wexler and Winick in mental health law (Wexler & Winick, 1991; Winick, 1997b), and has produced a considerable body of scholarly analysis and reform proposals in that field (Perlin, 2000; Winick, 1997b,c, 2005). It has since spread across the legal landscape, emerging as a mental health approach to law generally (Wexler & Winick, 1996). TJ has examined issues not only in mental health law, but also in such diverse fields as criminal law, juvenile and family law, health law, disability law, tort law, contracts and commercial law, trusts and estates, evidence law, and constitutional law. Moreover, TJ has become increasingly international and comparative in character, and has been used in examining legal rules and practices in a variety of countries in addition to the United States (Diesfeld & Freckelton, 2003; Goldberg, 2005; Tomkins & Carson, 1999, 2000; Western Australian Country Magistrates Resolution, 2004). TJ thus looks at legal rules, legal practices, and the roles of legal actors to assess their therapeutic impact and to examine how they can be revamped to increase therapeutic outcomes. It involves interdisciplinary examination of the legal system that seeks to reform the way law and social institutions function and, as such, is a form of law and society scholarship.
An important development in TJ has been its emphasis on how law is applied by various legal actors, such as lawyers, judges, administrators, police officers, and expert witnesses. In regard to lawyering, TJ has been integrated with preventive law to develop a new model of lawyering that values the psychological well-being of the client, that seeks to avoid legal problems through creative problem-solving approaches, legal drafting, and the use of alternative dispute resolution mechanisms, and that takes into consideration lawyers who practice with an ethic of care, emotional intelligence, and increased interpersonal skills (Stolle, Wexler, & Winick, 2000; Wexler & Winick, 2003; Winick, Wexler, & Dauer, 1999). TJ also has had an important impact on legal education, particularly in the area of clinical legal education and skills training (St Thomas University Law Review, 2005).
Not only is the lawyer a therapeutic agent, in how they function in the law office and in other aspects of professional life, but so is the judge, in how they function in the courtroom. The past 15 years have witnessed the emergence of exciting new developments in the courts that include a range of specialized, treatment-oriented courts, applying principles of TJ to help people appearing before them to solve a variety of psychosocial problems that precipitate court involvement, many of which are of a reoccurring nature (Winick, 2003; Winick & Wexler, 2003). These include drug treatment court, domestic violence court, mental health court, teen court or youth court, community court, and re-entry court. Judges in these specialized courts, as well as judges generally, are increasingly using the approaches of TJ in a new effort to assist litigants to achieve rehabilitation and otherwise solve a variety of social and emotional problems that contribute to their court involvement.
TJ thus looks at legal rules, practices, and the roles of legal actors to assess their therapeutic impact and to see how they can be reshaped to increase therapeutic outcomes. This article illustrates the TJ approach by applying it to a central issue raised by involuntary psychiatric hospitalization and treatment: the use of coercion. (For comprehensive TJ analyses of civil commitment and involuntary mental health treatment, see Winick, 1997c, 2005.) TJ would raise a variety of questions concerning civil commitment and involuntary treatment and how they are administered. A central question is how the conflict between the important value that Anglo-American traditions place on individual autonomy can be reconciled with the legal coercion that characterizes civil commitment and involuntary treatment, and what role therapeutic considerations should play in resolving this conflict. A related question is whether coercion or its perception diminishes the potential efficacy of civil commitment and involuntary treatment, and if so, how civil commitment and involuntary treatment can be structured so as to reduce patient perceptions of coercion.
TJ would suggest that these questions be analyzed by examining in detail various strands of psychological research that bear on their resolution. As a result, research on the psychology of choice and on the effects of coercion, will be explored for their implications for civil commitment and involuntary treatment. The literature on the psychology of procedural justice and important research conducted under the auspices of the MacArthur Research Network on Mental Health and the Law on patient perceptions of coercion also will be examined. These and other bodies of psychological research are important to our understanding of how the law governing involuntary hospitalization and treatment actually works, and to our thinking about how law and practice in this area can be improved so as to diminish unintended anti-therapeutic consequences and increase their therapeutic potential. The TJ approach is interdisciplinary in nature, examining these issues with an interdisciplinary orientation that attempts to honor both legal rights and clinical needs and to seek creatively to accommodate both in an enlightened reconceptualization of the law in this area that is just, as well as therapeutic.
Therapeutic Jurisprudence Insights on Coercion and its Consequences and Application in the Civil Commitment Process
Civil commitment and involuntary treatment are basically inconsistent with Anglo-American traditions respecting principles of individual autonomy and self-determination. Individual autonomy is deeply rooted in our shared history and legal traditions (Winick, 1992). But those subjected to involuntary hospitalization and treatment are denied the right to make these decisions for themselves. Individual decisionmaking about personal health, moreover, is supported not only by deeply embedded constitutional and political values, but also by psychological considerations. In general, people function more...
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