Category: Mental Health

What is Capacity (in Scots Law)?

Published on by Andrew Marshall1 Comment

Introduction

Legal capacity is the ability of an individual to transact with others.

It should be distinguished from consent, where the individual with capacity, agrees for another to commit an act involving the consenter, such as consent to sexual relations under the Sexual Offences (Scotland) Act 2009.

Refer to Chronology of UK Mental Health Legislation and Mental Health Law.

Rights Capacity

All persons, human and juristic, have rights capacity, i.e. the ability to hold a right. This derives from the classification of the law of persons found in Roman law.

The word ‘person’ is usually taken to mean humans. However, in Scots law and in many other jurisdictions, the term is also used to describe corporate entities such as companies, or partnerships, Scottish Charitable Incorporate Organisation (SCIO) or other bodies corporate established by law (such as a government agency or local authority).

Organisations and associations must have the rights capacity to own property in their own right in order to act as a transferor (the person transferring ownership) or transferee (the person receiving ownership) in a voluntary transfer of land. It is necessary to check their respective articles of association, constitutions or founding legislation in order to ascertain whether the transferor and/or transferee has rights capacity in order to legally own land in Scotland.

If the transferee in a voluntary transfer is an unincorporated association, which there is no definition in Scots law but is generally interpreted as “a group of persons bound together by agreement for a particular purpose.” Without a corporate body, the association has no legal person status in Scots law and as such when unincorporated associations transact to obtain ownership of the land, all the members of the association instead will own the property jointly in trust rather than ownership of the land vesting in solely in the association itself.

Transactional Capacity (Capacity to Contract)

Children

Children under the age of 16 years old do not have capacity to enter into a transaction. Instead the law provides that those with parental rights and responsibilities under the Children (Scotland) Act 1995, Part I can act on a child’s behalf. This means that parents or a legal guardian appointed by the courts can transact on a child’s behalf. However children are still granted a range of exceptions under section 2 of the Age of Legal Capacity (Scotland) Act 1991 including:

  • A person under the age of 16 years shall have legal capacity to enter into a transaction of a kind commonly entered into by persons of his age and circumstances, an on not unreasonable terms.
  • A child over 12 years may make a will or testamentary writing.
  • A child over 12 can consent to the making of an adoption order in relation to them.
  • A child under 16 can consent to any surgical, medical or dental procedure or treatment where, in the opinion of a qualified medical practitioner attending him, he is capable of understanding the nature and possible consequences of the procedure or treatment. This also includes the storage of gametes and the donation of cells for research.
  • A child under 16 shall have legal capacity to instruct a solicitor, in connection with any civil matter, where that person has a general understanding of what it means to do so. A child over 12 shall be presumed to be of sufficient age and maturity to have such understanding. A child who has capacity to instruct a solicitor also has the right to sue or be sued in the Scottish courts.

Any other transaction a child enters into is void, this means that contract is void ab initio (Latin: from the beginning) from the moment the child enters into the contract. Where a parent or guardian enters into a prejudicial transaction.

Prejudicial Transactions Remedy for Young Adults (16-18 Years Old)

A person under the age of 21 may apply to the Sheriff court or Court of Session to have any previous prejudicial transactions set aside where the transaction was made by the applicant between the ages of 16 to 18. A prejudicial transaction is that:

“(a)an adult, exercising reasonable prudence, would not have entered into in the circumstances of the applicant at the time of entering into the transaction, and (b) has caused or is likely to cause substantial prejudice to the applicant”

An example of an application can be seen in X v British Broadcasting Corporation, where the applicant was successful in obtaining an interim interdict (in other jurisdiction this is termed an interim injunction) based on her “real prospect of success” in her action against the BBC that, among other things, that the agreement she had reached with the BBC to participate in a courtroom-documentary was a prejudicial transaction because she had been 17 at the time she had consented (transacted) while suffering from dyslexia, substance abuse and did not consult a solicitor prior to entering into the agreement to participate.

Adults Generally

All adults over 16 years old have legal capacity under the Age of Legal Capacity (Scotland) Act 1991. However a human person’s capacity to contract may be affected by the following:

Adults Without Capacity

In situations where an adult is infirm, elderly or has other learning/social difficulties, the adult’s capacity to transact may be affected as a consequence and they may be considered incapax, now termed an adult with incapacity under the Adults with Incapacity (Scotland) Act 2000. The 2000 Act, one of the first Acts of the new Scottish Parliament, followed on from the Scottish Law Commissions report critical of the contemporary law in 1990. The test for capacity is found in Section 1(6) of the 2000 Act:

  • “Section 1(6) of the Adults With Incapacity (Scotland) Act 2000:
  • “adult” means a person who has attained the age of 16 years;
  • “incapable” means incapable of—
  • (a) acting; or
  • (b) making decisions; or
  • (c) communicating decisions; or
  • (d) understanding decisions; or
  • (e) retaining the memory of decisions, as mentioned in any provision of this Act, by reason of mental disorder or of inability to communicate because of physical disability; but a person shall not fall within this definition by reason only of a lack or deficiency in a faculty of communication if that lack or deficiency can be made good by human or mechanical aid (whether of an interpretative nature or otherwise);
  • and “incapacity” shall be construed accordingly.”

If an adult without capacity enters into a contract, the contract is void irrespective of whether the other party knew of the lack of capacity. Under the In its place, a person can act for another individual by means of three legal routes:

  • Power of Attorneys;
  • Intervention Orders; and/or
  • Guardianship Orders.

Companies

Rights Capacity

Organisations and associations must have the rights capacity to own property in their own right in order to act as a transferor (the person transferring ownership) or transferee (the person receiving ownership) in a voluntary transfer of land. It is necessary to check their respective articles of association, constitutions or founding legislation in order to ascertain whether the transferor and/or transferee has rights capacity in order to legally own land in Scotland. Companies and partnerships, and other corporate bodies will usually have rights capacity based on the statute enabling their creation. However, it is a matter of academic debate whether partnerships are capable of owning corporeal heritable property (land) in its own right, or whether the partners hold the property jointly in trust on behalf the partnership.

If the transferee in a voluntary transfer is an unincorporated association, which there is no definition in Scots law but is generally interpreted as “a group of persons bound together by agreement for a particular purpose.” Without a corporate body, the association has no legal person status in Scots law and as such when unincorporated associations transact to obtain ownership of the land, all the members of the association instead will own the property jointly in trust rather than ownership of the property vesting in solely in the association itself.

Transactional Capacity

Organisations and associations must have the transactional capacity to enter into contracts and transfer property in their own right in order to act as a transferor (the person transferring ownership) or transferee (the person receiving ownership) in a voluntary transfer of land. It is necessary to check their respective articles of association, constitutions or founding legislation in order to ascertain whether the transferor and/or transferee has rights capacity in order to legally own land in Scotland. Companies and partnerships, and other corporate bodies will usually have rights capacity based on the statute enabling their creation. However, it is a matter of academic debate whether partnerships are capable of owning corporeal heritable property (land) in its own right, or whether the partners hold the property jointly in trust on behalf the partnership. With transfers of land, an authorised officer of the company or other corporate organisation can act as an agent of the body corporate and sign any formal contracts under the Requirements of Writings (Scotland) Act 1995.

What is a Non-Departmental Public Body (UK)?

Published on by Andrew Marshall2 Comments

Introduction

In the United Kingdom, non-departmental public body (NDPB) is a classification applied by the Cabinet Office, Treasury, the Scottish Government and the Northern Ireland Executive to public sector organisations that have a role in the process of national government but are not part of a government department.

NDPBs carry out their work largely independently from ministers and are accountable to the public through the Parliament; however, ministers are responsible for the independence, effectiveness and efficiency of non-departmental public bodies in their portfolio.

The term includes the four types of NDPB (executive, advisory, tribunal and independent monitoring boards) but excludes public corporations and public broadcasters (BBC, Channel 4 and S4C).

Types of Body

The UK Government classifies bodies into four main types, whilst the Scottish Government has five:

  • Advisory NDPBs:
    • These bodies consist of boards which advise ministers on particular policy areas.
    • They are often supported by a small secretariat from the parent department and any expenditure is paid for by that department.
  • Executive NDPBs:
    • These bodies usually deliver a particular public service and are overseen by a board rather than ministers.
    • Appointments are made by ministers following the Code of Practice of the Commissioner for Public Appointments.
    • They employ their own staff and are allocated their own budgets.
  • Tribunal NDPBs:
    • These bodies have jurisdiction in an area of the law.
    • They are co-ordinated by Her Majesty’s Courts and Tribunals Service, an executive agency of the Ministry of Justice, and supervised by the Administrative Justice and Tribunals Council, itself a NDPB sponsored by the Ministry of Justice.
  • Independent Monitoring Boards:
    • These bodies were formerly known as “boards of visitors” and are responsible for the state of prisons, their administration and the treatment of prisoners.
    • The Home Office is responsible for their costs, and has to note all expenses.
  • NHS Bodies:
    • Scotland only.

Examples include the Mental Welfare Commission for Scotland and Mental Health Tribunals.

Contrast with Executive Agencies, Non-Ministerial Departments and Quangos

NDPB differ from executive agencies as they are not created to carry out ministerial orders or policy, instead they are more or less self-determining and enjoy greater independence. They are also not directly part of government like a non-ministerial government department being at a remove from both ministers and any elected assembly or parliament. Typically an NDPB would be established under statute and be accountable to Parliament rather than to Her Majesty’s Government. This arrangement allows more financial independence since the government is obliged to provide funding to meet statutory obligations.

NDPBs are sometimes referred to as quangos. However, this term originally referred to quasi-NGOs bodies that are, at least ostensibly, non-government organisations, but nonetheless perform governmental functions. The backronym “quasi-autonomous national government organisation” is used in this usage which is normally pejorative.

Brief History

In March 2009 there were nearly 800 public bodies that were sponsored by the UK Government including:

  • 198 executive NDPBs;
  • 410 advisory bodies;
  • 33 tribunals;
  • 21 public corporations;
  • The Bank of England;
  • 2 public broadcasting authorities; and
  • 23 NHS bodies.

However, the classification is conservative and does not include bodies that are the responsibility of devolved government, various lower tier boards (including a considerable number within the NHS), and also other boards operating in the public sector (e.g. school governors and police authorities).

These appointed bodies performed a large variety of tasks, for example health trusts, or the Welsh Development Agency, and by 1992 were responsible for some 25% of all government expenditure in the UK. According to the Cabinet Office their total expenditure for the financial year 2005-2006 was £167 billion.

Criticism

Critics argued that the system was open to abuse as most NDPBs had their members directly appointed by government ministers without an election or consultation with the people. The press, critical of what was perceived as the Conservatives’ complacency in power in the 1990s, presented much material interpreted as evidence of questionable government practices.

This concern led to the formation of a Committee on Standards in Public Life (the Nolan Committee) which first reported in 1995 and recommended the creation of a “public appointments commissioner” to make sure that appropriate standards were met in the appointment of members of NDPBs. The Government accepted the recommendation, and the Office of the Commissioner for Public Appointments was established in November 1995.

While in opposition, the Labour Party promised to reduce the number and power of NDPBs. The use of NDPBs continued under the Labour government in office from 1997 to 2010, though the political controversy associated with NDPBs in the mid-1990s for the most part died away.

In 2010 the UK’s Conservative-Liberal coalition published a review of NDPBs recommending closure or merger of nearly two hundred bodies, and the transfer of others to the private sector. This process was colloquially termed the “bonfire of the quangos”.

Classification in National Accounts

NDPBs are classified under code S.13112 of the European System of Accounts (ESA.95). However, Statistics UK does not break out the detail for these bodies and they are consolidated into General Government (S.1311).

What is the Mental Welfare Commission for Scotland?

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Introduction

The Mental Welfare Commission for Scotland is a non-departmental public body, responsible for safeguarding the rights and welfare of people in Scotland with a learning disability, mental illness or other mental disorder.

The Commission was original established by the Mental Health (Scotland) Act 1960.

It enquires into cases of alleged ill treatment or deficiency of care or treatment, with investigations that include visits to alleged victims in hospitals and community settings.

The Commission is accountable to the Scottish Government Health and Social Care Directorates for its statutory duties and how its public money is spent. It is required to follow NHS customary accounting rules and to meet NHS financial targets.

Refer to Chronology of UK Mental Health Legislation.

Legal Framework

It has statutory duties to safeguard the interests of people considered to be mentally disordered or incapacitated under the Mental Health (Care and Treatment) (Scotland) Act 2003 or the Adults with Incapacity (Scotland) Act 2000.

The Scottish Executive’s introduction to the Act specifies:

“Part 2 of the 2003 Act sets out provisions relating to the continued existence of the Mental Welfare Commission for Scotland. The Commission will have:

  • new duties to monitor the operation of the Act and to promote best practice;
  • specific powers and duties in relation to carrying out visits to patients, investigations, interviews and medical examinations, and to inspect records; and
  • powers and duties to publish information and guidance, and to give advice or bring matters to the attention of others in the mental health law system.

These powers and duties should enable the Commission to maintain and develop its vital role in protecting the rights of service users, and in promoting the effective operation of mental health law. Schedule 1 of the Act sets out more detail on the membership, organisation and general powers of the Commission and makes provision for regulations to specify some matters in more detail, if necessary.”

The same act also set up the Mental Health Tribunal for Scotland, which hears appeals against detentions and applications for compulsory treatment orders under the 2003 act.

Working with Other Organisations

The Commission also works closely with several other organisations including the Office of the Public Guardian, Scottish Public Services Ombudsman (SPSO), Scottish Social Services Council (SSSC), Healthcare Improvement Scotland and the Care Inspectorate.

Location

The offices of the Commission are based in Edinburgh. In 2005 the Scottish Executive had wanted the Commission to relocate to Falkirk as part of a Scotland-wide approach to the location of government jobs. However, the Commission did not need to comply with the policy on the location of government jobs because it is an independent body.

What is the Mental Health (Discrimination) Act 2013?

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Introduction

The Mental Health (Discrimination) Act 2013 (introduced into Parliament as the Mental Health (Discrimination) (No. 2) Bill) is an Act of Parliament of the United Kingdom introduced to the House of Commons by Gavin Barwell, the Conservative Member of Parliament (MP) for Croydon Central.

An Act to make further provision about discrimination against people on the grounds of their mental health.

Refer to Chronology of UK Mental Health Legislation.

Relates to the Mental Health Act 1983 and the Juries Act 1974.

Background

The Bill passed its House of Commons second reading on 14 September 2012.

There are four sections of the Act.

  • Section 1 (“Members of Parliament etc”) removes from the Mental Health Act 1983 the provision that disqualifies from the House of Commons a member sectioned for over six months under that Act.
  • Section 2 (“Jurors”) qualifies the restrictions of jury members who are receiving mental health treatment.
  • Section 3 (“Company directors”) modifies Regulations in relation to the employment of director’s appointments.
  • Section 4 gives the Secretary of State power to determine when the section relating to juries take effect; the other provisions came into force with Royal Assent.

The then Leader of the Opposition, Ed Miliband, said the Bill would bring public understanding of mental health “into the 21st century”.

What is the Mental Health (Care and Treatment) (Scotland) Act 2003?

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Introduction

The Mental Health (Care and Treatment) (Scotland) Act 2003, which came into effect on 05 October 2005, is an Act of the Scottish Parliament which enables medical professionals to detain and treat people against their will on grounds of mental disorder, with the Mental Health Tribunal for Scotland and the Mental Welfare Commission for Scotland providing safeguards against mistreatment.

An Act of the Scottish Parliament to restate and amend the law relating to mentally disordered persons; and for connected purposes.

It largely replaces the Mental Health (Scotland) Act 1984.

Refer to Chronology of UK Mental Health Legislation and the Mental Health (Public Safety and Appeals) (Scotland) Act 1999.

Detention Certificates

The act provides for short-term detention certificates and emergency detention certificates.

Short-term certificates are referred to by the act as the ‘preferred gateway’ to detention, and lead, notionally, to up to 28 days’ detention during which treatment may be administered against the will of the detainee, and can also lead to compulsory treatment orders, which have longer term implications for the detainee’s liberty.

Detainees can apply to the Mental Health Tribunal for revocation of short-term certificates.

Emergency certificates lead, notionally, to up to 72 hours’ detention, and can also lead to detentions under short-term certificates.

Emergency certificates do not enable treatment against the will of detainees, except for urgent treatment, and there is no formal process of appeal against them.

Unless a certificate is completed for someone who is already in a mental health hospital, both forms of detention are preceded by detention of up to 72 hours in what are called ‘places of safety’, while transport to hospital is arranged.

Also, short-term detentions may be extended for periods of up to three ‘working days’, to facilitate applications to the Mental Health Tribunal for compulsory treatment orders.

Saturdays, Sundays and Scottish bank holidays are not counted as working days.

Principles

The law is based on a set of principles. These principles should be taken into account by anyone involved in a person’s care and treatment.

Past and Present Wishes

Patients should be given the information and support they need to take part in decisions about their care and treatment. To help service users get their views across, the Act puts in place the right to access independent advocacy services. It also puts in place advance statements as a way to help service users say what care and treatment they would and would not want to have. The Mental Health Commission in Scotland examines cases where a person’s advance statement has been overridden.

The Views of any Carer, Guardian or Welfare Attorney

Carers should be involved in decision-making and should be given information they need to help them in their role. We will be developing guidance this year to help service providers and carers with the problem of patient confidentiality and sharing information.

Options

A patient’s care plan should reflect their needs as an individual. A Mental Health Tribunal reviews care that looks for a compulsory treatment order that lasts longer than 2 years or the service users can request this if they wish to appeal a compulsory treatment order after 3 months.

The Care and Treatment that will be of Most Benefit

This should be reflected in a care plan. In addition the Act puts in place safeguards when consent to treatment has not been given.

On many occasions a patient’s care and treatment becomes much to the opinion of any one person, with a psychiatric disorder (mentalis confusio), latest labels that of chemical imbalance or chemical disorder, perplex and confuse not only the patient, but those whom may be designated decision makers on a patient’s behalf. Family members all too often are not given any information, nor the correct questions to ask.

All too often the system fails to accept a lack of science behind these labels. “where is that chemical test for this chemical imbalance?” Truth is that like the word illness: no such disease exists, nor any chemical as where is this chemical test; well paid professionals or populus of institutions together, with no clear facts and no willingness to discuss any way except that of psychiatry & adding of substance of those many same category as Class substances.

Individual Abilities and Background

Important things about a person such as their age, gender, sexual orientation, religion, racial origin or membership of any ethnic group should be taken into account by people providing care and treatment.

People providing care should also make sure that:

  1. Any restrictions on a person’s freedom are the least necessary.
  2. The person being treated under the act shouldn’t be treated any less favourably than anyone else being treated for a mental illness, or other mental disorder.
  3. Carer’s needs are taken into account.
  4. The person being treated is getting services that are right for them.
  5. When a person is no longer receiving compulsory treatment, he or she should still continue to get care and treatment if it is needed.
  6. If the person being treated is under 18, his or her welfare is of the highest priority.

What is the Adults with Incapacity (Scotland) Act 2000?

Published on by Andrew Marshall2 Comments

Introduction

The Adults with Incapacity (Scotland) Act 2000 (2000 asp 4) is an Act of the Scottish Parliament.

An Act of the Scottish Parliament to make provision as to the property, financial affairs and personal welfare of adults who are incapable by reason of mental disorder or inability to communicate; and for connected purposes.

Refer to Chronology of UK Mental Health Legislation and Mental Capacity Act 2005.

Background

It was passed on 29 March 2000, receiving royal assent on 09 May 2000.

It concerns the welfare of adults (the age of legal capacity in Scotland being 16) who are unable to make decisions for themselves because they have a mental disorder or are not able to communicate. It provides the framework for other people (such as carers) to act on the behalf of people with incapacity.

The Act was one of the first pieces of legislation passed by the Scottish Parliament upon it being reconvened in 1999.

Content

  • Part 2 of the act concerns power of attorney and provides the framework for an individual (whilst they have capacity) to appoint someone to act as their continuing (financial) or welfare attorney.
  • Part 3 of the act concerns the accounts and funds of the adult with incapacity. It enables access to the bank or building society account of the adult with incapacity, in order to pay their costs of living.
  • Part 4 of the act concerns the management of finances of adults with incapacity who are residents of registered establishments including health service or private hospitals, psychiatric hospitals, state hospitals and care home services.
  • Part 5 of the act concerns medical research and treatment of adults with incapacity. It allows, under certain circumstances, medical research to be carried out on adults unable to give consent.
  • Part 6 of the act concerns intervention orders and guardianship orders. An intervention order can be applied for by, or on behalf of, an adult with incapacity and granted by the sheriff court. It may cover welfare or financial matters. An application for a guardianship order may be made by individuals or by a local authority regarding an adult with incapacity who may have long-term needs.
  • Part 7 of the act (“Miscellaneous”) makes it an offence for an individual to wilfully neglect and adult with incapacity.

Mental Health Awareness Week (UK)

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Mental Health Awareness Week takes place on 10-16 May 2021 and this year’s theme is nature.

What is Mental Health Awareness Week and why does it matter?

Mental Health Awareness Week is an annual event when there is an opportunity for the whole of the UK to focus on achieving good mental health.

The Mental Health Foundation started the event 21 years ago, and each year the Foundation continues to set the theme, organise and host the Week. The event has grown to become one of the biggest awareness weeks across the UK and globally.

Mental Health Awareness Week is open to everyone. It is all about starting conversations about mental health and the things in our daily lives that can affect it. This year we want as many people as possible - individuals, communities and governments - to think about connecting with nature and how nature can improve our mental health.

However, the Week is also a chance to talk about any aspect of mental health that people want to – regardless of the theme.

Read more here.

What is the Need for Positive Mental Health?

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In an age where society is continually bombarded with information about mental health, individuals are learning that the benefits of positive mental health are hard to overestimate.

This is because they can help individuals in all aspects of their life to live in a way that is meaningful, and which better enables them to have a high quality of life for as long as possible.

What are the Components of Good Mental Well-Being?

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Outline

The components of good mental well-being include:

  • Connecting with Others.
  • Remaining Active.
  • Continuing to Learn.
  • Giving to Others.
  • Being Mindful.
  • Being Able to Express Emotions.
  • Being Able to Cope with Stress.
  • Being Adaptable in Times of Change.
  • Being Confident and Having Good Self-Esteem.
  • Being Productive.

Connecting with Others

It is argued that this is the most important aspect of good mental well-being, as it enables individuals to feel part of their community or their own support group, knowing that they have somewhere to turn in times of need and that they are able to help others as well.

Making new friends into adulthood helps individuals to feel wanted and liked and this is beneficial for their confidence and self-esteem.

Remaining Active

Stating both mentally and physically active helps individuals to remain well in both of these areas, with the link between good mental and good physical health being clearly established.

Individuals who are physically well may be less likely to develop mental health issues related to long-term illness, and the benefits of exercise helps boost the release of ‘happy hormones’ such as serotonin, which enhance mood and make individuals feel good.

Continuing to Learn

It is recommended that people never stop learning, and this should continue even into late adulthood.

Learning a new skill or information about a new subject is not only useful for ongoing cognitive functioning but it can help people to remain social as well, such as by attending a college course or a book club where there are lots of opportunities to connect with other people.

Giving to Others

Any form of giving to other people is mutually beneficial; that is to say that the person giving to others feels good about themselves and the person receiving what is given fells good as well.

Giving to others may mean being active in the community, such as doing volunteer work, or it can mean doing charity events, such as sponsored walks or collecting items for a local food bank.

Being Mindful

mindfulness means that a person is able to live in the present moment without worrying about what is coming in the future or what has happened in the past.

It enables people to focus solely on what is happening in their current surroundings and is thought to be an excellent way of reducing stress and anxiety, which can be the foundation of some forms of mental ill health.

Being Able to Express Emotions

Most people will have heard the saying that it is better to speak up about something than to keep things ‘bottled up’.

When people are unable to express their emotions effectively, this can mean that they eventually become overwhelmed by their feelings, and this can lead to stress, anxiety, depression and other difficulties that may prevent them from going about their daily activities.

Being Able to Cope with Stress

The concept of resilience is closely linked to being able to cope with stress.

Resilience enables individuals to react positively in the face of adversity and to find a way of moving forwards that is not detrimental to their mental health.

Being Adaptable in Times of Change

Resilience is also linked to being able to cope successfully when there are changes in life.

This can be a minor change such as having to move to a different office at work, or a major change like moving house, losing a loved one, or being diagnosed with a serious illness.

Being Confident and Having Good Self-Esteem

Being confident and having a high level of self-esteem helps individuals to feel good about themselves. which enables them to connect with others, make positive decisions, and be resilient when times become challenging.

Being Productive

Being productive within a community, family, or workplace helps individuals to feel good about themselves, increases their self-esteem, and can help them to connect with others as well.

It also gives individuals a sense of achievement. which helps increase confidence and gives individuals a positive outlook for the future.

What is Therapeutic Jursiprudence?

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Introduction

Therapeutic jurisprudence (TJ) studies law as a social force (or agent) which inevitably gives rise to unintended consequences, which may be either beneficial (therapeutic) or harmful (anti-therapeutic).

These consequences flow from the operation of legal rules or legal procedures – or from the behaviour of legal actors (such as lawyers and judges). TJ researchers and practitioners typically make use of social science methods and data to study the extent to which a legal rule or practice affects the psychological well-being of the people it affects, and then explore ways in which anti-therapeutic consequences can be reduced, and therapeutic consequences enhanced, without breaching due process requirements.

Refer to Mental Health Tribunal and Mental Health Court.

Early Development

The term was first used by Professor David Wexler, of the University of Arizona Rogers College of Law and University of Puerto Rico School of Law, in a paper delivered to the National Institute of Mental Health in 1987. Constance Backhouse, a leading legal historian from Canada, has published a biography of Wexler and his work. Along with Professor Bruce Winick of the University of Miami School of Law, who developed the area with Wexler, these law professors suggested the need for a new perspective, TJ, to study the extent to which substantive rules, legal procedures, and the role of legal actors (lawyers and judges primarily) produce therapeutic or antitherapeutic consequences for individuals involved in the legal process. In the early 1990s, legal scholars began to use the term when discussing mental health law, including Wexler in his 1990 book Therapeutic Jurisprudence: The Law as a Therapeutic Agent, and Wexler and Winick in their 1991 book, Essays in Therapeutic Jurisprudence. The TJ Approach soon spread beyond mental health law to include TJ work in criminal law, family and juvenile law, health law, tort law, contracts and commercial law, trusts and estates law, disability law, constitutional law, evidence law, and legal profession. In short, TJ became a mental health approach to law generally.

The approach was soon applied to the way various legal actors – judges, lawyers, police officers, and psychologists and criminal justice professionals – play their roles, suggesting ways of doing so that would diminish unintended antitherapeutic consequences and increase the psychological well-being of those who come into contact with these legal figures. In 1999 in a Notre Dame Law Review article TJ was applied to drug treatment courts (DTC) for the first time and the authors asserted that DTCs were TJ in action and that TJ provided the jurisprudential underpinnings of DTCs. TJ has emerged as the theoretical foundation for the increasing number of “problem-solving courts” that have transformed the role of the judiciary. These include, in addition to DTCs, domestic violence courts, mental health courts, re-entry courts, teen courts, and community courts.

Some countries embraced the TJ movement more than others: particularly the United States where it originated, as well as Canada, Australia and New Zealand, with England slower until recently, while nevertheless developing some problem-solving courts. More recently, TJ concepts have entered into the systems of various other countries, such as Israel, Pakistan, India, and Japan.

Now, the field is fully international and robust, as evidenced by the recent launch of the International Society for Therapeutic Jurisprudence, a society with a comprehensive and authoritative website.

Reframing Roles

Therapeutic Jurisprudence also has been applied in an effort to reframe the role of the lawyer. It envisions lawyers practicing with an ethic of care and heightened interpersonal skills, who value the psychological well being of their clients as well as their legal rights and interests, and to actively seek to prevent legal problems through creative drafting and problem-solving approaches. TJ also has begun to transform legal education, in particular clinical legal education.

Mainstreaming

Traditionally, TJ was closely associated with problem-solving courts, such as drug treatment courts, because such courts were designed to invite the use of TJ practices (such as procedural justice, judge-client personal interaction, demonstration of empathy, active listening, and the like). Many desire the expansion of problem-solving courts, but for a number of reasons, especially economic ones, expansion on a large scale seems unlikely; in fact, in some jurisdictions, economic factors have even led to the elimination of such courts. For these and other reasons, a current interest on the part of many TJ scholars and proponents is to “mainstream” TJ – that is, to try to apply TJ practices and principles in “ordinary” courts, especially in criminal, juvenile, and perhaps family matters.

In order to mainstream TJ, a first analytical step is to see to what extent existing provisions of current codes are “friendly” to TJ – that is, whether their legal structure is sufficient to permit the introduction of TJ practices. If so, educational programs should be instituted to discuss how the law may be implemented in a more therapeutic manner. If not, a discussion would be necessary about the desirability and feasibility of legal reform. The analytical methodology in use here employs the metaphor of “wine” and “bottles”, where the TJ practices and techniques are the wine and the governing legal structures are the bottles. The mainstreaming project is facilitated by a Blog entitled Therapeutic Jurisprudence in the Mainstream.

Related Concepts

TJ has been described as a subset of legal psychology, meaning the scientific study of mind and behaviour as it affects or is affected by the law. As well, the term psychological jurisprudence has been used to describe study of the law as it is affected by and affects mind and behaviour. Another related concept is restorative justice. The fields of forensic psychology and forensic psychiatry also operate at the juncture of law and the mind.

The idea that the law can have a therapeutic role should not be confused with any idea that psychological therapies should be attempted to be used for legal ends (such as coercion) rather than clinically for clinical reasons. TJ theorists have also warned against the legal system uncritically accepting psychological experts and theories, and to not allow legal issues to masquerade as clinical ones if they are not.

Coming from the opposite direction, a related approach now dubbed ‘jurisprudent psychology’ (originally therapy) looks at whether psychological interventions are conducted fairly and consistently with legal concepts of justice.

TJ is also linked to the positive criminology perspective, which is a conceptual approach to criminology that places an emphasis on social inclusion and on forces at individual, group, social and spiritual levels that are associated with the limiting of crime.