Abstract:
People suffering from mental illness are increasingly referred to the domestic violence court. Yet the typical diversion programs available, including batterer’s interventions programs, are inappropriate for those with serious mental illness. As a result, the Miami-Dade Domestic Violence Court has developed a new approach for dealing with this population that applies mental health court techniques in domestic violence court. This session will described and evaluate this pioneering model. A Miami-Dade County Domestic Violence Court Judge will describe the new therapeutic model that she pioneered. A Professor of Law and Professor of Psychiatry and Behavioral Sciences, an expert on therapeutic jurisprudence, will situate this model within the context of other problem-solving courts and discuss how the court uses principles and approaches of therapeutic jurisprudence. Next, a recent graduate of the Forensic Psychiatry Fellowship Program at the University of Miami, will report the results of a retrospective and longitudinal study of 20 cases in the Domestic Violence Mental Health Court followed over a two year period, comparing them to a sample of non-mentally ill perpetrators processed by the court in the same period.
Chair:
Bruce Winick
Discussants:
Debra White-Labora, State of Florida 11th Judicial Circuit the Miami-Dade County Court
Yanira M Olaya, University of Miami

Abstract: Increasingly, lawyers are finding ways to practice law in ways that minimize the antitherapeutic impact on their clients and maximize therapeutic approaches that enhance their clients’ wellbeing. This panel will identify a number of such approaches through the theoretical lens of Therapeutic Jurisprudence and the implementation of such approaches by practicing lawyers.

Prof. Winick will also participate in a Breakout session entitled “Practicing Therapeutic Jurisprudence” based on his chapter, Overcoming Psychological Barriers to Settlement: Challenges for the TJ Lawyer” in The Affective Assistance of Counsel: Practicing Law as a Healing Profession (Marjorie A. Silver, ed.) (2007).

Conference Brochure

Abstract: Therapeutic jurisprudence (“TJ”) is a field of interdisciplinary legal scholarship with a law reform agenda. It sees law, legal processes, and the way legal actors play their roles as imposing psychological consequences for those affected. It seeks to measure these consequences and to minimize law’s antitherapeutic effects and maximize its healing potential. This paper will examine the use of therapeutic jurisprudence in legal education.

The paradigm can be used in substantive law courses to sensitize law students to the psychological dimensions of law and lawyering. It also can be used in legal skills training and clinical legal education. TJ has been combined with preventive law to create a new model of lawyering that has a more humanistic orientation and that seeks to lessen the profession’s adversarialness and to improve clients’ emotional wellbeing. The model moves beyond an exclusive focus on clients’ legal rights or interests, valuing their human needs as well. It represents a broadened conception of the lawyer’s role, calling for an interdisciplinary, psychologically-oriented perspective and enhanced interpersonal skills.

The TJ/preventive lawyer, working in collaboration with a client, seeks to identify the client’s long-term goals and to accomplish them through means that minimize exposure to legal difficulties and related emotional problems. Through creative problem solving, creative drafting, and the use of alternative dispute resolution techniques, the lawyer seeks to accomplish the client’s objectives and to avoid legal problems. The lawyer periodically meets with the client, conducting “legal check-ups” to receive updates on the client’s business and family affairs, to keep the client out of trouble, to reduce conflict, and to increase the client’s opportunities for success in life. This model calls for an attorney-client relationship involving increased psychological sensitivity, an awareness of basic psychological principles and techniques, enhanced interpersonal and interviewing skills, and approaches for dealing with the emotional issues that are likely to arise in the legal encounter.

The author will describe how he uses this model in teaching interviewing, counseling, and attorney/client relational skills. He also will describe how the model has been used in various clinical contexts – juvenile, immigration, criminal, and elder law, etc. He will suggest use of a preventive law technique – the rewind exercise – to acquaint students with the preventive and therapeutic orientation. The implicit message of traditional legal education is that the solution to legal problems lies in litigation. The rewind exercise is designed to allow the law student to analyze the alternative possible approaches that a lawyer can use to prevent a legal problem from occurring and to avoid or minimize the need for litigation. Let us “rewind” the situation back in time to the period prior to the occurrence of the critical acts or omissions that produced the problem. What could the client have done at this point to have avoided the problem? What can he or she do now to avoid its reoccurrence? What could the lawyer have done or suggested that might have prevented the problem or litigation? Cases in any substantive law course can be examined in this way. The professor can ask the student to rewind the controversy back to the time before the seeds of conflict were planted. This rewind technique can be employed throughout the legal curriculum to teach students the TJ/preventive orientation.

Abstract:

This presentation will describe the interdisciplinary scholarly and law reform approach of therapeutic jurisprudence. It will situate mental health courts within the framework of problem-solving courts, such as drug treatment court and domestic violence court. These courts use prinicples and approaches of therapeutic jurisprudence to attempt to rehabilitate offenders. Mental health court is an application of therapeutic jurisprudence in practice inasmuch as it seeks to divert mentally ill offenders who have been arrested from the jail, an especially antitherapeutic setting for those with mental illness, and motivate them to obtain needed treatment and facilitate their obtaining it. Whether in practice these courts achieve the therapeutic jurisprudence objective remains an open empirical question. The presentation also will comment on how judges should use the therapeutic jurisprudence approach in mental health court to better achieve therapeutic outcomes.

More information on the conference is available on the ASA web site.

Abstract: People suffering from dementia, schizophrenia, and other forms of mental disability may not satisfy the usual requirements of competency to consent to participation in research. Aims: This paper will discuss whether standards of competency in this context should be relaxed so as to allow consent to participation in research by the subject’s surrogate or health care proxy. Method: This presentation suggests that the debate has insufficiently taken into account an additional consideration — the therapeutic one. An analysis of the therapeutic jurisprudence considerations that participation in research raises can further clarify the debate. Conclusion: An approach will be proposed for dealing with this issue.

Other abstracts for the two-day TJ sessions can be viewed here.

Professor Winick will also speak at a session titled “Health Law and Prevention: Professionals Working Together.” The title of his talk during this session is “Health Law and Prevention Systems Design: The Therapeutic Value of Apology.”

Abstract: This paper will address the question of whether apologies, either full apologies or partial ones, have therapeutic value for both the maker of the apology and its recipient. Legal disputes, particularly if they end up in highly contested litigation, can be extremely antitherapeutic for both parties. Settlement, either through negotiation or some form of alternative dispute resolution such as mediation, can allow both parties to avoid the stress and continued anger that litigation imposes, and can allow them to get past the dispute and to experience a measure of healing. Yet, clients sometimes are unwilling to apologize for their wrongdoing and victims sometimes are reluctant to accept apologies. This paper will present a therapeutic jurisrudence analysis of the value of apology, and will offer suggestions about counseling clients in the apology context.

More information about the IALMH conference can be found on their web site.

Abstract: In Atkins v. Virginia, the Supreme Court held that the Eighth Amendment prohibits capital punishment for those with mental retardation in view of their reduced culpability. This presentation examines substantive and procedural questions regarding the application of Atkins to offenders who manifest mental illness that reduces their culpability to a similar degree.