What is Therapeutic Jursiprudence?

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.

What is a Mental Health Court?

Introduction

Mental health courts link offenders who would ordinarily be prison-bound to long-term community-based treatment.

They rely on mental health assessments, individualised treatment plans, and ongoing judicial monitoring to address both the mental health needs of offenders and public safety concerns of communities. Like other problem-solving courts such as drug courts, domestic violence courts, and community courts, mental health courts seek to address the underlying problems that contribute to criminal behaviour.

Mental health courts share characteristics with crisis intervention teams, jail diversion programmes, specialised probation and parole caseloads, and a host of other collaborative initiatives intended to address the significant overrepresentation of people with mental illness in the criminal justice system.

Refer to Mental Health Tribunal and Therapeutic Jurisprudence.

Brief History

In the United States in the early 1980s, Judge Evan Dee Goodman helped establish a court exclusively to deal with mental health matters at Wishard Memorial Hospital. The mentally ill were frequently arrested and had charges pending when the treatment providers sought a civil commitment to send their patient for long-term psychiatric treatment. Judge Goodman’s court at Wishard Hospital could serve both purposes. The probate part of the mental health court would handle the civil commitment. The criminal docket of the mental health court could handled the arrest charges. The criminal charges could be put on diversion, or hold, allowing the patient’s release from jail custody. The civil commitment would then become effective and the patient could be sent to a state hospital for treatment. Judge Goodman would schedule periodic hearings to learn of the patient’s progress. If warranted, the criminal charges were dismissed, but the patient still had obligations to the civil commitment.

In addition to arranging inpatient treatment, Judge Goodman often put defendants on diversion, or on an outpatient commitment, and ordered them into outpatient treatment. Judge Goodman would have periodic hearings to determine the patient’s compliance with the treatment plan. Patients who did not follow the treatment plan faced sanctions, a modification of the plan, or if they were on diversion their original charge could be set for trial.

Judge Goodman’s concept and the original mental health court were dissolved in the early 1990s. In 1995, Judge Goodman was reprimanded for nepotism.

In the mid-1990s, many of the professional mental health workers who had worked with Judge Goodman sought to re-establish a mental health court in Indianapolis. Representatives of the county’s mental health service providers and other stake holders began meeting weekly. The group decided to accept the name of the PAIR Programme (PAIR stood for Psychiatric Assertive Identification and Referral). After, a couple years of lobbying the local authorities in Marion County, Indiana, the mental health court began as a formal program in 1996. Many consider this to be the nation’s first mental health court in this second wave of mental health court initiatives. Since the PAIR Programme did not operate with any new funds, there was not much scholarly research and therefore the accomplishments of Judge Goodman and the PAIR Programme are frequently overlooked. The current PAIR Programme is a comprehensive pretrial, post-booking diversion system for mentally ill offenders. A programme launched in Broward County, Florida was the first court, to be recognised and published as a specialised mental health court. Overseen by Judge Ginger Lerner-Wren, the Broward County Mental Health Court was launched in 1997, partially in response to a series of suicides of people with mental illness in the county jail. The Broward court and three other early mental health courts, Anchorage, AK, San Bernardino, CA, and King County, WA, were examined in a 2000 Bureau of Justice Assistance monograph, which was the first major study of this emerging judicial strategy.

Shortly after the establishment of the Broward County Mental Health Court, other mental health courts began to open in jurisdictions around the US, launched by practitioners who believed that standard punishments were ineffective when applied to the mentally ill. In Alaska, for example, the state’s first mental health court (established in Anchorage in 1998) was spearheaded by Judge Stephanie Rhoades, who felt probation alone was inadequate. “I started seeing a lot of people in criminal misdemeanours who were cycling through the system and who simply did not understand their probation conditions or what they were doing in jail. I saw police arresting people in order to get them help. I felt there had to be a better solution,” she explained in an interview. Mental health courts were also inspired by the movement to develop other problem-solving courts, such as drug courts, domestic violence courts, community courts and parole re-entry courts. The overarching motivation behind the development of these courts was rising caseloads and increasing frustration – both among the public and among system players – with the standard approach to case processing and case outcomes in state courts. In February 2001, the first juvenile mental health court opened in Santa Clara, California.

Since 2000, the number of mental health courts has expanded rapidly. There are an estimated 150 courts in the US and dozens more are being planned. An ongoing survey conducted by several organisations identified more than 120 mental health courts across the country as of 2006. The proliferation of courts was spurred in large part by the federal Mental Health Courts Programme administered by the Bureau of Justice Assistance, which provided funding to 37 courts in 2002 and 2003.

In England, UK, two pilot mental health courts was launched in 2009 in response to a review of people with mental health problems in the criminal justice system. They were considered a success which met needs that would have otherwise gone unmet; however they required financial support and wider changes to the system, and it is not clear whether they will be more broadly implemented.

Definition

Mental health courts vary from jurisdiction to jurisdiction, but most share a number of characteristics. The Council of State Governments Justice Centre has defined the “essential elements” of mental health courts. The CSG Justice Centre, in a publication detailing the essential elements, notes that the majority of mental health courts share the following characteristics:

  • A specialised court docket, which employs a problem-solving approach to court processing in lieu of more traditional court procedures for certain defendants with mental illness.
  • Judicially supervised, community-based treatment plans for each defendant participating in the court, which a team of court staff and mental health professionals design and implement.
  • Regular status hearings at which treatment plans and other conditions are periodically reviewed for appropriateness, incentives are offered to reward adherence to court conditions, and sanctions are imposed on participants who do not adhere to the conditions of participation.
  • Criteria defining a participant’s completion of (sometimes called graduation from) the programme.

Court Process

Potential participants in a mental health court are usually screened early on in the criminal process, either at the jail or by court staff such as pretrial services officers or social workers in the public defender’s office. Most courts have criteria related to what kind of charges, criminal histories, and diagnoses will be accepted. For example, a court may accept only defendants charged with misdemeanours, who have no history of violent crimes, and who have an Axis I diagnoses as defined by the DSM-IV.

Defendants who fit the criteria based on the initial screening are usually given a more comprehensive assessment to determine their interest in participating and their community treatment needs. Defendants who agree to participate receive a treatment plan and other community supervision conditions. For those who adhere to their treatment plan for the agreed upon time, usually between six months and two years, their cases are either dismissed or the sentence is greatly reduced. If the defendant does not comply with the conditions of the court, or decides to leave the program, their case returns to the original criminal calendar where the prosecution proceeds as normal. As a rule, most mental health courts use a variety of intermediate sanctions in response to noncompliance before ending a defendant’s participation. An essential component of mental health court programs for protection of the public is a dynamic risk management process that involves court supervised case management with interactive court review and assessment.

As in other problem-solving courts, the judge in a mental health court plays a larger role than a judge in a conventional court. Problem-solving courts rely upon the active use of judicial authority to solve problems and to change the behaviour of litigants. For instance, in a problem-solving court, the same judge presides at every hearing. The rationale behind this is not only to ensure that the presiding judge is trained in pertinent concepts, such as mental illness, drug addiction, or domestic violence, but also to foster an ongoing relationship between the judge and participants. Although the judge has final say over a case, mental health courts also take a team approach in which the defence counsel, prosecutor, case managers, treatment professionals, and community supervision personnel (for example, probation) work collaboratively to, for example, craft systems of sanctions and rewards for offenders in drug treatment. Many mental health courts also employ a full-time coordinator who manages the docket and facilitates communication between the different team members.

Criticisms

Some have criticised mental health courts for deepening, as opposed to lessening, the involvement of people with mental illness in the criminal justice system. They argued that this was particularly true in mental health courts that focus on misdemeanour offenders who would have received short jail sentences or probation if not for the mental health court. These critics urged mental health courts to accept defendants charged with felonies, which many of the more recent courts, such as the Brooklyn Mental Health Court, have started to do.

Critics have also raised concerns about the use of mental health courts to coerce people into treatment, the requirement in some courts that defendants enter a guilty plea prior to entering the court, and about infringement on the privacy of treatment information. Furthermore, many have noted that the rise of mental health courts is, in large part, the result of an underfunded and ineffective community mental health system, and without attention to the deficiencies in community treatment resources, mental health courts can only have a limited impact. Finally, it has been noted that when scarce mental health services are redirected to those who have come in contact with the criminal justice system, it creates a perversion in the system were a person’s best bet for obtaining services is to get arrested.

Outcomes

Several studies of the Broward County court were released in 2002 and 2003 and found that participation in the court led to a greater connection to services. A 2004 study of the Santa Barbara County, California, Mental Health Court found that participants had reduced criminal activity during their participation. An evaluation of the Brooklyn Mental Health Court documented improvements in several outcome measures, including substance abuse, psychiatric hospitalisations, homelessness and recidivism. In a 2011 meta-analysis of literature on the effectiveness of mental health courts in the United States, it was found that mental health courts reduced recidivism by an overall effect size of -0.54. In 2012, an Urban Institute evaluation found that participants in two New York City mental health courts were significantly less likely to re-offend than similar offenders whose cases are handled in the traditional court system. A review published in 2019 concerned with drug-using offenders with co-occurring mental health problems found that mental health courts may help people reduce future drug use and criminal activity.

What is a Mental Health Tribunal?

Introduction

A mental health tribunal is a specialist tribunal (hearing) empowered by law to adjudicate disputes about mental health treatment, primarily by conducting independent reviews of patients diagnosed with mental disorders who are detained in psychiatric hospitals, or under outpatient commitment, and who may be subject to involuntary treatment.

The usual composition of the panel varies by jurisdiction but may consist of a legal member, a medical member and a community/specialist member. The legal member may be a senior lawyer or judge (often senior counsel) and acts as the chair; the medical member may be a senior (e.g. consultant) psychiatrist and has often held clinical responsibility for detained patients before; and the community/specialist/’non-legal’ member is neither a lawyer or medical doctor but has relevant qualifications (often at postgraduate level) and/or specialist experience in mental health, either as a mental health professional or a specialist layperson.

Attendees may include the patient, a patient advocate, legal representatives (lawyers), any family (especially next of kin), and mental health professionals involved in the person’s care (typically including the clinician with primary responsibility for the patient) or brought in for an independent view. The hearings may be held privately or may be open to the public, depending on the jurisdiction and individual circumstances.

Many Western developed nations use a tribunal model (they may be termed review boards) for mental health. There is usually provision to appeal decisions to a court (judicial review). By contrast some countries use an entirely judicial (courts) model, while some have no oversight or review body at all.

Refer to Mental Health Court and Therapeutic Jurisprudence.

International Legal Context

The World Health Organisation (WHO) observes that most countries around the world use some type of ‘independent authority such as a review body, tribunal or a court to confirm involuntary admission based on medical/psychiatric/professional expertise.’ Such authorities generally also adjudicate findings of incapacity to consent to or refuse medical treatment, and the issuing of community treatment orders (outpatient commitment) in countries that have them.

In countries that use the courts, although they have the advantage of unambiguous legal status, the court process can become a ‘rubber stamp’ exercise where judges make decisions in the absence of patients, representatives or witnesses, and endorse medical recommendations without independent analysis. Independent tribunals of specially selected members with expertise in the area are said to be more competent bodies if operated properly.

Many countries require that every person recommended for detention or involuntary treatment be reviewed in a legal hearing, with legal representation provided. Some countries with fewer resources may initially only require a paper review in straightforward cases, or may not review very short detentions (e.g. less than 72 hours). However, the WHO states that there must always be a right of appeal in a timely manner as well as “ongoing, automatic, mandatory and regular reviews of status.” The hearing authority should not be influenced by any external instruction at all. A balance is required between avoiding delays in necessary admission/treatment, reviewing as soon as possible, preventing harm, and recognising rights to mental health care as well as to refuse treatment.

International legal agreements which can have a bearing on mental health tribunals include the Convention on the Rights of Persons with Disabilities (Article 13 Access to justice), the Universal Declaration of Human Rights or regional human rights conventions such as Article 5(4) (liberty and security of person) and Article 6 of the European Convention on Human Rights (right to a fair trial). However, tribunals are not necessarily legally enabled to deal with humans rights claims. In particular, claims for rights to mental health care and support still generally remain outside their remit, though they can sometimes make non-binding recommendations regarding care plans or supervisory arrangements.

The Principles for the Protection of Persons with Mental Illness (‘MI Principles’), adopted by the United Nations General Assembly in 1991, has some basic standards concerning the need for a legal hearing for patients who are detained or treated against their will or whose capacity to make decisions is questioned. Principle 17 (Review body) includes 7 points. Point 1 states: “The review body shall be a judicial or other independent and impartial body established by domestic law and functioning in accordance with procedures laid down by domestic law. It shall, in formulating its decisions, have the assistance of one or more qualified and independent mental health practitioners and take their advice into account.” The final point states: “A patient or his personal representative or any interested person shall have the right to appeal to a higher court against a decision that the patient be admitted to, or be retained in, a mental health facility.”

By Country

England & Wales

The Mental Health Tribunal in England is now technically known as the First-tier Tribunal (Mental Health) but in practice is often called the Mental Health Tribunal. The First-tier Tribunal, created by the Tribunals, Courts and Enforcement Act 2007 (TCEA 2007) in 2008, is subdivided into chambers: Mental Health Tribunals come within the Health, Education and Social Care Chamber.

The Mental Health Review Tribunal for Wales was created by the Mental Health Act 1983 and has separate, but similar, procedural rules.

A new Upper Tribunal was also created by the TCEA 2007. It hears appeals (and sometimes judicial reviews) relating to decisions of the First-tier Tribunal and MHRT for Wales. Appeals from the Upper Tribunal are heard by the Court of Appeal.

A tribunal panel has three members: the legal, medical and specialist lay member. Some patients held in the mental health system after facing criminal charges are termed ‘restricted’ patients and are subject to additional controls via the Secretary of State for Justice’s Mental Health Casework Section, but are still reviewed by the Mental Health Tribunal (often led by a Circuit Judge). Three patients in the early 2010s were allowed to have their hearings in public, with the media in attendance.

Scotland

The Mental Health Tribunal for Scotland was created on 05 October 2005 by virtue of section 21 of the Mental Health (Care and Treatment) (Scotland) Act 2003.

Northern Ireland

The Mental Health Review Tribunal for Northern Ireland was set up under the Mental Health (Northern Ireland) Order 1986.

Ireland

Mental Health Tribunals in Ireland are administered by the Mental Health Tribunals Division of the Mental Health Commission. The related law is the Mental Health Act 2001. The Tribunal panel consists of a psychiatrist, a lawyer (either a solicitor or a barrister) and a lay member.

Other European Countries

In many other jurisdictions, where mental health reviews are stipulated they tend to be carried out by a judge rather than by specialist tribunals. Turkey does not yet have a single coherent mental health law and there is no established system of review or appeal of detentions.

Australia

As it has a federal system of government, the tribunals vary by state in Australia. Examples include the Mental Health Review Tribunal of New South Wales and the Mental Health Review Tribunal (NT) (Northern Territories).

New Zealand

In New Zealand there is a right to apply for a review in a family court prior to applying for a Mental Health Review Tribunal. Rarely a hearing at the High Court is possible. The related legislation is the Mental Health (Compulsory Assessment & Treatment) Act 1992 (and Amendment Act 1999 of the same name).

Canada

As Canada has a federal system of government, Mental Health Review Boards are specific to each province or territory in Canada. For example, British Columbia’s operates under its Mental Health Act. Ontario has instead a Consent and Capacity Board which operates under the Mental Health Act as well as the Health Care Consent Act, the Substitute Decisions Act and other legislation. The tribunals are also subject to the constitutional rights of Section 7 of the Canadian Charter of Rights and Freedoms. Appeals may rarely reach the Supreme Court of Canada. In addition, each province and territory has a separate Review Board (Criminal Code), established under the Criminal Code, which adjudicates mentally disordered offenders found unfit to stand trial or not criminally responsible by reason of mental disorder.

Republic of South Africa

South Africa has Mental Health Review Boards in each province, as mandated by the country’s Mental Health Care Act 2002. Although the Act has been noted for improving aspects of the mental health system, the review boards “contend with limited resources, administrative challenges and limited political support.”

Japan

Japan has regional Psychiatric Review Boards, but their independence is questioned. The members are appointed by the governor of each region, who is the same person who orders involuntary detentions. Half or over half of each panel is made up of psychiatrists, who are often owners of the hospitals, and only one legal member. Furthermore, there is no right of appeal to a higher judicial court or to legal representation.

United States

The United States uses a purely judicial model, rather than mental health tribunals (‘mental health boards’ in the US are regional government groups that monitor or advise on policy etc.). Civil commitment hearings are generally held before a judge, and operate under the laws of that state.

India

India has traditionally had no oversight body, even since the 1987 Mental Health Act. However a Draft Mental Health Care Bill (2012) looks to set up a national Mental Health Review Commission and state Mental Health Review Boards.

China

Mental health in China has traditionally had no oversight body or national mental health law. The new Mental Health Care Act 2012 creates some rights for detained patients to request a second opinion from another state psychiatrist and then an independent psychiatrist; however there is no right to a legal hearing and no guarantee of legal representation.

Mental Health Conditions: Medication & Standing Trial

In this article (below), Laura Spinney weaves through the ethical grey area of forcing people with mental health conditions to take medication so they can stand trial.

It is an interesting that attempts to look at both sides of the argument.

Read the article:

Reference

Spinney, L. (2019) Comment: Trial by Medication. New Scientist. 28 September 2019, pp.24.