Published in the Boston College Law Review, Issue 50:3 (May, 2009

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Abstract:This article paper examines the lawyering in the Schiavo case. It examines not the quality of the arguments made or the procedures used, but the extent to which the lawyering was consistent with the emotional needs of the respective clients. The Schiavo case provides an opportunity to illustrate the therapeutic jurisprudence/preventive law model of lawyering. In many ways, the case was an emotional disaster for all parties. The litigation became the functional equivalent of a train wreck. Could it have been avoided? Could the lawyers have acted differently in the way they counseled their clients? Were there approaches other than high conflict litigation that could have been attempted that would have reduced the level of conflict or even resolved the controversy?

The article explains the therapeutic jurisprudence/preventive law model and conducts a sort of autopsy of the case, rewinding it back to several crucial points at its early stages to examine what the lawyers could have done differently. What techniques or approaches could have been used that were not? How should the lawyers have advised their clients concerning the risks and emotional costs of litigation? To what extent should rules of professional conduct or lawyering practices be changed to ameliorate the problems that this case so vividly illustrates? The article examines these questions, and in the process, analyzes lawyering generally.

Mental health law has had an interesting last 40 years. Born of the reform movements of the 1960s and fueled by a civil rights and critical spirit, it has moved through the policy cycle that begins with great vigor and youthful exuberance and ends in an old age of cynicism and regret. Deinstitutionalization, the primary goal of the youthful period, no longer looks so good as an alternative to the reliance on institutions that was the hallmark of the pre-reform era. Reformers, throughout the life span of this movement, have focused on the commitment process to state hospitals as the key to making change. Mental health legal reformers have continued, over the life span of this policy, to tinker with the commitment process as a way to improve services and at the same time protect the rights of the mentally ill person. Enter Bruce Winick and his new book, CIVIL COMMITMENT: A THERAPEUTIC JURISPRUDENCE MODEL. Winick hopes to provide the Viagra that will energize an old, tired perspective. Whether he convinces readers will depend on the politics and probably the age of the reader, but he surely has written a book that should be read by everyone interested in mental health law.

Winick writes from that old liberal, theoretical perspective: he wants to convince the reader that his therapeutic jurisprudence model is the key to moving beyond the quagmire that currently exists in mental health law. That commitment to commitment is what makes this book an important read. Winick keeps the faith that civil commitment is the key to improved services for the seriously mentally ill. Liberal reformers have been making this argument for 50 years, and for 50 years much reform energy has gone into changing how this process works. He argues for a synthesis of the civil rights perspective with a therapeutic perspective. Winick wants judges, prosecutors and defense attorneys to change how they think about practicing. If these lawyers can keep both the therapeutic and legal interests to the mentally ill person in mind, they can improve the commitment process making it a healing and humane experience. He is resurrecting the “best interest” of the client approach.

The Winick approach rests on a set of liberal assumptions that are, at the very least, now suspect. Winick assumes that professionals can be guided by altruism which will lead to better outcomes for the mentally ill, that the courts provide the levers for improving how institutions operate, that the public will go along with the humane measured approach he suggests, and that the commitment process is still the key to better outcomes even though state hospitals are no longer [*21] the central service they once were. These assumptions may all be correct, or some or all of them may be wrong. But they go untested throughout the book. Surely we should be suspicious of another set of reforms that depend on the motivations and intentions of professional strangers. The national experience with deinstitutionalization should give us pause to continue down the same road that makes the non-system of community care the linchpin of reform. Why should state legislators support this approach? What training should lawyers receive, and who should pay for it? What evidence do we have that the mentally ill will be any better off under these new arrangements? Winick is so sure of his approach and so eager to promote it that these questions are not asked, much less answered. Why would it be in someone’s interest to implement the model he proposes? I was reminded of the moral entrepreneurs of another century, pushing a reform they believed in deeply but not seeing where the reform could go wrong.

We can see the same problem in the educational community where liberal reformers were also convinced that desegregation was the key to improving schools for the poor. Forty years of desegregation practice has only convinced them that we have not tried hard enough to make it work, not that it may not have been the right solution to the problem. Deinstitutionalization and desegregation were born of the same thinking and spirit some 50 years ago. Neither has fared nearly as well as its advocates had hoped; neither garners much support from the public.

Should we still be focusing on the commitment process if we want to improve outcomes for the mentally ill served by public dollars? It is not clear, to put it generously, that the commitment process is the pivotal decision affecting the lives of the mentally ill. Fifty years ago the commitment process was the beginning of a career as a mental patient. It changed people’s lives if they were committed. Often the commitment was a life sentence or, for the old, a death sentence. Often custody passed as treatment. Today, commitments seem more a consequence than a cause of the problems of treating the mentally ill. This, of course, was not true 50 years ago when commitment played a much bigger role in the careers of the mentally ill. Winick maintains his commitment to a set of assumptions that I believe are no longer warranted. Nevertheless, his approach deserves serious consideration for there is a whole generation of mental health advocates who believe as Winick does, and there will continue to be a push from this group to continue down that long road to a commitment process that does a better job of balancing the needs of the patient with the rights of the citizen. There is something to be said for keeping the faith over almost 40 years of trying to improve mental health services through legal action. The problem is that times and policies change, indeed the emphasis on legal challenges through class actions has seen limited success in changing how these systems work. The outrages of the institutional era have been replaced by procedures and processes that seem more the problem than the solution to a more conservative public. Most states have put protections for the mentally ill in place that seem cumbersome and awkward. To keep trying to get it right about civil commitment when it has not [*22] proven the key to improving services, could be leading us in the wrong direction.

The book has an odd tone for the social scientist. Winick is clearly making a normative argument. He wants to argue for what ought to be. He weaves in an empirical dimension using studies that illustrate the effectiveness of therapeutic jurisprudence. But the line between the normative and empirical dimensions is not drawn clearly. The book reads like a brief, pushing a line of argument. I would have liked to see more attention to the current situation in key states so we can see what the reality is and then think through how these reforms would affect that situation. The treatment system is guided today by federal reimbursement policy and the complex interplay between state service providers and the private sector. The notion that legal reform leads to organizational change has clearly been challenged as a flawed conceptual framework not only in mental health but education, foster care, and other human services. Winick and others cling to the notion that a change in law will produce an improvement in services, but the history of reform suggests that things are not that simple. Winick certainly makes the problem of change easy: change the law and keep changing it until those forces of darkness come around. It also keeps the agent of change safely locked up in the legal establishment, looking for just that right turn of a judicial phrase that will bring those judges and prosecutors in line with the goals of the reformers.

Winick joins a long line of reformers, from Dorothea Dix on down who single-mindedly push a way of changing practice. Much of the damage that has been done to the mentally ill has come from those who desire to help. Andrew Scull’s (2005) new book is just the latest reminder that we should be careful in accepting the well-intentioned expert as the friend of the mentally ill. To rely on the kindness or, if you will, therapeutic sensitivity of lawyers to improve the lives of the mentally ill seems a path loaded with trouble.

Winick still believes that changes in law will produce the intended changes in the behavior of those affected by the law. He is so convinced that a good normative framework will win the day that he does not ask about the factors that make it more likely that framework will be adopted and implemented successfully. Where are the pressures to make therapeutic jurisprudence work? In whose interest is it to make therapeutic jurisprudence work? The questions are not asked, much less answered.

Be that as it may, Winick represents a way of thinking that has dominated the conversation about reform in mental health for a very long time. The “therapeutic jurisprudence model” deserves serious consideration, perhaps more as the reason liberal reforms seem so out of touch with current realities and less as a way to make the commitment process work.

REFERENCE:

Scull, Andrew. 2005. A TRAGIC TALE OF MEGALOMANIA AND MODERN MEDICINE. New Haven: Yale University Press.

© Copyright 2006 by the author, Dan A. Lewis.

As a result, the debate regarding civil commitment has reached a conceptual and intellectual impasse, with proponents of more medical or more legalistic approaches rehearsing arguments that vary little from those first raised forty years ago. Bruce Winick, in his excellent new book Civil Commitment: A Therapeutic Jurisprudence Model, offers a potential path away from this impasse.

Winick, a professor at the University of Miami School of Law, is one of the nation’s leading mental health law scholars. With David Wexler, he is co-founder of “therapeutic jurisprudence” which Winick defines as “an interdisciplinary approach to legal scholarship and law reform that sees the law itself as a therapeutic agent…Therapeutic jurisprudence calls for the study of [the law’s impact] 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.” (p. 6).

Therapeutic jurisprudence has gained increasing influence over the last decade: For example, it is the philosophic foundation for the hundreds of drug courts and mental health courts that have emerged since the early 1990s. In this book, Winick uses therapeutic jurisprudence in a generally successful effort to determine which aspects of civil commitment law and practice have therapeutic or anti-therapeutic consequences. He does this in eleven concise but thorough chapters, by applying social sciences research into coercion, capacity, and choice to each element of civil commitment law. The result is a balanced, non-ideological reframing of the topic. For example, Winick is respectful of individual liberty, arguing that research shows that treatment adherence is most likely when the individual’s participation is voluntary and informed. He also asserts that the legal process required before a person is committed should be honored in fact (when it is too often simply ignored) because if a person is given voice, “patients will respond more effectively to hospitalization…” (p. 148). At the same time, he proposes relaxing legal standards when their rigid application might impede access to care. For example, he believes that individuals who voluntarily seek care should be considered competent absent very compelling evidence to the contrary; in his view, to apply a competency standard too rigidly could result in people being denied care, or being civilly committed rather than voluntarily admitted to care, with anti-therapeutic consequences.

Anyone involved with civil commitment will find this book useful and thought-provoking, particularly given continuing controversy regarding civil commitment and the use of coercion. It is becoming increasingly apparent that individuals in community care are subject to myriad types of leverage, including coercion, all designed to gain treatment adherence.[FN 1] Winick insists that one of the most important questions we can ask about legal rules and legal processes is whether they have a therapeutic or anti-therapeutic impact. In doing so, he illustrates how the debate about civil commitment and coercion might be reframed in a way that permits proponents of both the legalistic and the medical models of commitment to begin talking to each other rather than past each other.

FN1. John Monahan, Allison D. Redlich, Jeffrey Swanson, Pamela Clark Robbins, Paul S. Appelbaum, John Petrila, Henry J. Steadman, Marvin Swartz, Beth Angell, and Dale E. McNiel. Use of Leverage to Improve Adherence to Psychiatric Treatment in the Community
Psychiatr Serv, Jan 2005; 56: 37 – 44.

• The Consequences of Civil Commitment
• The Medical Model and the Legal Model of Civil Commitment
• A Therapeutic Jurisprudence Model of Civil Commitment
• Organization of the Book
• Conclusion

Chapter 2: Striking the Balance between Coercion and Autonomy: Therapeutic Jurisprudence Insights on Coercion and its Consequences and Application in the Civil Commitment Process

• Legal and Psychological Conceptions of Coercion A Therapeutic Jurisprudence Approach to Coercion
• Does Coercive Treatment Work?: The Relationship Between Treatment Outcome and Patient Perceptions of Coercion and Voluntariness
• The Perception of Coercion: What Makes People Feel Coerced Balancing the Positive and Negative Effects of Coercion
• Applying the Law Therapeutically in Coercive Context: Therapeutic Jurisprudence Prescriptions for Clinicians
• Conclusion

Chapter 3: Civil Commitment Criteria: An Overview

• General Considerations
• The Requirement of Mental Illness or Disability
• Police Power Commitment
• Parens Patriae Commitment
• The Medical Appropriateness Principle
• The Least Restrictive Alternative Principle
• Conclusion

Appendix:

• Table 1 – Current Civil Commitment Statutes for the 50 States and the District of Columbia
• Table 2 – Statutory Definitions of Mental Illness or Mental Disability for Civil Commitment
• Table 3 – Police Power Commitment Criteria
• Table 4 – Parens Patriae Commitment Criteria
• Table 5 – Statutory Language Contemplating that Commitment be Medically Appropriate
• Table 6 – The Least Restrictive Alternative Requirement for Involuntary Hospitalization

Chapter 4: The Limits of Parens Patriae Commitment: How Incompetency Should Be Defined and Applied

• The Constitutional Problem of Defining Parens Patriae Commitment Too Broadly
• The MacArthur Treatment Competent Study
• Therapeutic Jurisprudence Considerations
• How Incompetency Should Be Defined and Applied: A Proposed Presumption in Favor of Competency
• Conclusion

Chapter 5: The Outer Limits of Police Power Commitment: The Civil Commitment of Sex Offenders

• The Civil Commitment of Sex Offenders
• Supreme Court Consideration of Sexually Violent Predator Laws
• The Diminished Volitional Ability Requirement for Police Power Commitment
• The Mental Illness Requirement for Civil Commitment
• The Medical Appropriateness of Sex Offender Civil Commitment
• Conclusion

Chapter 6: Application of Civil Commitment Criteria: The Civil Commitment Hearing
Procedural Due Process and the Civil Commitment Hearing

• The Gap between Theory and Practice
• The Psychology of Procedural Justice and the Commitment Hearing
• The Psychological Effects of Coercion and Voluntary Choice
• Restructuring the Role of the Actors in the Commitment Process: How Lawyers, Judges, and Expert Witnesses Should Play Their Roles
• Conclusion

Appendix:

• Table 1 – Statutory Procedures for Civil Commitment Hearings of the 50 States and the District of Columbia

Chapter 7: Voluntary Hospitalization

• The Benefits of Voluntary Hospitalization
• Competence to Consent to Voluntary Admission and How It Should Be Defined and Ascertained
• How Voluntary Admission Should Work
• The “Voluntariness” Requirement for Voluntary Hospitalization and How Its Satisfaction Should be Assured
• Conclusion

Appendix:

• Table 1 – Statutory Criteria and Procedures for Voluntary Admission
• Table 2 – Informal and Non-protesting Admission
• Table 3 – Requests for Release and Possible Conversion to Involuntary Status
• Table 4 – Duration of Voluntary Hospitalization

Chapter 8: Rights Within the Institution and the Standards Governing Their Exercise or Waiver

• The Right to Treatment
• The Right to Refuse Treatment
• Rights to Communication and Visitation
• Rights Concerning Seclusion and Restraint
• The Right of Institutionalized Patients To Engage in Future Decision-Making Through Advance Directive Instruments
• Waiver of Rights within the Institution
• Conclusion

Appendix:

• Table 1 – Statutory Provisions Regarding the Right to Treatment
• Table 2 – Statutory Provisions Regarding the Right to Refuse Treatment
• Table 3 – Statutory Provisions Regarding Seclusion and Restraint

Chapter 9: Outpatient Commitment

• Two Pre-existing Models of Outpatient Commitment: Conditional Release and Least Restrictive Alternative (LRA) Outpatient Treatment
• Preventive Outpatient Commitment
• Balancing the Therapeutic and Antitherapeutic Consequences of Preventive Outpatient Commitment
• Alternatives to Preventive Outpatient Commitment: Enhanced Services and Outreach, Assertive Community Treatment, Mental Health Courts, and the Use of Advance Directive Instruments
• Applying the Law Therapeutically in Outpatient Commitment Cases
• Conclusion

Appendix:

• Table 1 – Statutory Provisions for Conditional Release
• Table 2 – Statutory Provisions for Preventive Outpatient Commitment

Chapter 10: International Human Rights Law Limitations on Civil Commitment

• Abuses in the Mental Health System in Eastern Europe
• Construing International Human Rights Law through the Lens of Therapeutic Jurisprudence: Resolving Vagueness in the European Convention for the Protection of Human Rights and Fundamental Freedoms
• The Factual Background of Winterwerp v. The Netherlands
• The Meaning of “Unsound Mind” as a Justifying Condition for Civil Commitment
• Procedural Requirements for Civil Commitment
• The Right to Appropriate Treatment
• Automatic Divestiture of Right to Administer Property upon Civil Commitment
• Conclusion: Applying International Human Rights Law Therapeutically to Remedy Abuses in the Mental Health System of Eastern Europe

Bruce Winick kicks Therapeutuc Jurisprudence up several notches in this remarkable new book. With uncommon erudition and in precise, elegant prose, he demonstrates how coercion to mental health treatment — in both its institutional and community forms — can be seen more clearly through the lens of a theory that takes seriously the therapeutic potential of law.” John Monahan , Ph.D., Doherty Professor of Law, University of Virginia

Bruce Winick ’s work on therapeutic jurisprudence has long been a beacon for anyone involved or interested in mental health law. This newest effort on his part will be another crucial reference point for mental health professionals, scholars, lawyers, judges and consumers of psychiatric treatment. Winick masterfully weaves together legal doctrine and empirical research into a practical guide for dealing with a wide range of issues concerning civil commitment, including the use of coercion by the state, the doctor-patient relationship, the definition of competency to make treatment decisions, and outpatient interventions. Winick deftly demonstrates that, through the prism of therapeutic jurisprudence, civil commitment can be viewed as a cooperative health-enhancing process, rather than a zero-sum battle between autonomy principles and treatment goals. — Christopher Slobogin, Stephen C. O’Connell Professor of Law, University of Florida Fredric G. Levin College of Law

Bruce Winick ‘s new volume on civil commitment is the most important book-length work on that topic that has been published in my 35 years as a lawyer. It examines virtually every question raised by the commitment process, and rigorously analyzes each issue through the lens of therapeutic jurisprudence. By way of one example, his chapter on international human rights law will immediately restructure how we think about the relationship between that body of law and all of mental disability law. This book is, to be concise, superb. — Michael L. Perlin, Professor of Law, New York Law School

Bruce Winick has done it again. ‘Civil Commitment: A Therapeutic Jurisprudence Model’ uses TJ comprehensively to challenge and provoke those who wish to do mental health law business as usual. It is required reading for mental health lawyers, advocates, and anyone interested in the intersection of mental health, law and social policy. — Stephen J. Morse, J.D., Ph.D., Ferdinand Wakeman Hubbell Professor of Law & Professor of Psychology and Law in Psychiatry, University of Pennsylvania

Why be concerned about involuntary civil commitment in an era when it is difficult to get approval to admit even very disturbed psychiatric patients? In the first few pages of this important book, Winick makes the point that many patients continue to confront the reality of involuntary commitment. Then, using clear and graceful prose, he launches into an encyclopedic analysis of the historical, legal, clinical, and ethical issues surrounding involuntary commitment. Combining legal scholarship with clinical insights, Winick establishes a roster of challenging questions that provides a valuable guide for the theoretical and empirical work of those interested in mental health law and the treatment of the mentally ill. — J. Richard Ciccone, M.D., Professor of Psychiatry, Director, Psychiatry and Law Program, University of Rochester School of Medicine

Table of Contents

Part I. Sexually Violent Predator Laws: Problems and Solutions

Chapter 1. The New Generation of Sex Offender Committment Laws: Which States Have Them and How Do They Work? W. Lawrence Fitch & Debra A. Hammen

Chapter 2. State Policy Perspectives on Sexual Predator Laws. Roxanne Lieb

Part II. Sex Offenders and Dangerousness

Chapter 3. Who Is Dangerous and When Are They Safe? Risk Assessment With Sexual Offenders. R. Karl Hansen

Chapter 4. Evaluating Offenders Under a Sexually Violent Predator Law: The Practical Practice. Roy B. Lacoursiere

Part III. Sex Offenders and Treatment

Chapter 5. What We Know and Don’t Know About Treating Adult Sex Offenders. Marnie E. Rice and Grant T. Harris

Chapter 6. Treatment and the Civil Commitment of Sex Offenders. Eric S. Janus

Chapter 7. In the Wake of Hendricks: The Treatment and Restraint of Sexually Dangerous Offenders Viewed From the Perspective of American Psychiatry. Howard V. Zonana, Richard J. Bonnie, and Steven K. Hoge

Part IV. The Rationale, Constitutionality, and Morality of Sexual Predator Commitment Laws

Chapter 8. Matching Legal Policies With Known Offenders. Lenore M. J. Simon

Chapter 9. Bad or Mad?: Sex Offenders and Social Control. Stephen J. Morse

Chapter 10. “Even a Dog…”: Culpability, Condemnation, and Respect for Persons. Robert F. Schopp

Chapter 11. Sex Offenders and the Supreme Court: The Significance and Limits of Kansas v. Hendricks. John Kip Cornwell

Part V. Alternative Strategies for Protecting the Community

Chapter 12. A Therapeutic Jurisprudence Analysis of Sex Offender Registration and Community Notification Laws. Bruce J. Winick

Chapter 13. Investing in the Future of Children: Building Programs for Children or Prisons for Adult Offenders. William D. Pithers, Alison Gray, and Michalle E. Davis

Chapter 14. Chemical Castration of Sex Offenders: Treatment or Punishment? Robert D. Miller

Chapter 15. Community Containment of Sex Offender Risk: A Promising Approach Kim English, Linda Jones, and Diane Patrick

Part VI. Evaluating the Wisdom of Sexually Violent Predator Laws

Chapter 16. The Costs of Enacting a Sexual Pradator Law and Recommendations for Keeping Them From Skyrocketing. John Q. La Fond

Chapter 17. Managing the Monstrous: Sex Offenders and the New Penology. Jonathan Simon

Chapter 18. A Therapeutic Jursiprudence Assessment of Sexually Violent Predator Laws. Bruce J. Winick

This is where Professors’ Bruce Winick and David Wexler’s book “Judging in a Therapeutic Key” proves so helpful. The book is divided into two parts. The first is a compilation of articles, written by judges and other practitioners, describing a variety of problem-solving courts. The book then provides an explanation of the TJ concept and how judges can utilize the principles of TJ, regardless of whether they are presiding in a specialized court. The second part of the book is also a compilation of articles, written by experts in the field and provides a blueprint for utilizing Therapeutic Jurisprudence in the courtroom.

There is much to commend this book to a wide audience. It does far more than provide an academic underpinning for TJ; it provides practical advice for the practitioner. I particularly appreciated the section entitled “Interpersonal Skills and the Psychology of Procedural Justice.” One portion written by Michael Clark M.S.W. gives helpful suggestions to judges who wish to employ TJ techniques in their courtrooms. He discusses four factors that research has shown is responsible for motivating behavioural change and suggests how judges can use these factors to empower the offender.

Equally relevant for judges is a section entitled “Sparking Motivation and Reducing Perceived Coercion.” This section includes a very insightful article by Professor Winick on “The Judge’s Role in Encouraging Motivation for Change.” He explains in detail how judges can act as “change agents” including the dos and don’ts of interacting with offenders. He also unties the tricky knot of whether TJ is coercive and in so doing answers critics who contend that all treatment must be voluntary.

Although judges will find much to interest them, the book is also well worth reading if you are not presiding in court. Addiction counsellors, defence counsel and crown attorneys attached to problem-solving courts will be interested in sections entitled “Facilitating Motivation to Change,” and “Enhancing Compliance.” These and other articles in Part II, provides practitioners with practical suggestions to assist in changing behaviour.

While there is much to applaud in the book, there is one unfortunate shortcoming. This is principally an American book, edited by American academics about U.S. courts. As such it suffers from a lack of international context. There are after all problem-solving courts in many other jurisdictions, including Canada. While these courts are noted in the Reference section of Part I, there is no acknowledgement of their role in the development of therapeutic judging. This is unfortunate because examining differences in approach might have been helpful to the editors in their analysis of problem-solving courts and even be of some interest to their American readers.

On balance however, this book is an important contribution to the jurisprudence on Therapeutic Jurisprudence and problem-solving courts and will appeal to anyone who works in this area.