Involuntary Detention and Therapeutic Jurisprudence

International Perspectives on Civil Commitment

Kate Diesfeld, Ian Freckelton

• Publisher: Routledge
• Year: 2018
• Print ISBN: 9780754622666
• eBook ISBN: 9781351926263
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

International developments within the last twenty years have demonstrated controversial shifts in treatment for people with mental illnesses and the care of persons with intellectual disabilities. These shifts have been apparent in an emphasis on deinstitutionalization, increased scrutiny of detention and discharge decisions and, in some countries, in enforced treatment and care in the community. As we become increasingly conscious of the political and moral dimensions of civil commitment, these concerns are reflected in the professional literature, but this does not often enough focus on issues of clinical and legal principle, nor is it in a form which encourages comparative analysis. This collection draws on contributors from the UK, the USA, Australia, the Netherlands, Canada and New Zealand, who share a commitment to evaluating whether the civil detention processes protect the liberty, dignity and justice interests of those with mental illnesses and intellectual disabilities. The book is written from a therapeutic jurisprudence perspective and poses a number of questions with international application, such as: Are more categories of people being detained? Is involuntary detention serving new purposes? Are different forms of detention gaining credence and being more widely utilized? And, are admission decisions and review of detention decisions transparent, consistent, and just?

Part One:
Introduction

1 Introduction

KATE BIESFELD AND IAN FRECKELTON

The Context of the Book

International developments within the past twenty years have demonstrated a fundamental shift in caring for people with mental illnesses and intellectual disabilities. This shift has manifested in an emphasis on deinstitutionalisation, increased scrutiny of detention and discharge decisions, and in some countries in mandated community treatment. As the political and moral dimensions of civil commitment are increasingly articulated, these concerns are reflected in the professional literature, but not often enough in a way that focuses on issues of clinical and legal principle, or in a form which readily enables comparative analysis.

It has become apparent that, regardless of jurisdiction, many legal and mental health professionals, consumers and sociologists are focusing the lens of their research serially and often with limited cross-disciplinarity upon the various aspects of decision-making relating to involuntary detention. They are also inquiring whether the law could be employed in a more positive fashion in the realm of involuntary commitment. However, this valuable, relevant, and related research has not been synthesised in a readily accessible form and has not drawn to any great degree upon evolving, and often consistent, international and inter-disciplinary experience.

This book endeavours to contribute to such understanding by providing related and interwoven research threads relating to involuntary commitment, widely defined. The intention is to provide a critical and constructive forum for inter-disciplinary and international reflection. The contributors come from England, Canada, the United States, the Netherlands, Australia and New Zealand and from legal, psychiatric, and social science backgrounds. Each is a leading figure internationally on the subject upon which they have been asked to write. While perhaps not sharing all of the same views on mental illness, intellectual disability, mental health expertise or law, they have in common a commitment to assiduous evaluation of whether the civil detention process protects the liberty, dignity, and justice interests of a vulnerable component of our community - those with mental illnesses and intellectual disabilities.

The research in this volume constitutes one frame, one snapshot of the state of civil detention across the chosen jurisdictions at this time. It is also intended to provide a fillip for a dynamic which encourages ourselves and our readers to develop research partnerships which further our common purpose. All the contributors are concerned to secure a better construction of those circumstances in which liberty should be curtailed for people with mental illnesses and intellectual disabilities - either in actual custody (such as within a hospital or an institution) or within the community.

Structure of the Book

The book is divided into seven thematically but related distinct "Parts".

Part One provides a conceptual overview of the themes of the book.

Part Two establishes the international dimension through the research of Professors Bruce Winick from the United States (Chap 2), Genevra Richardson from England (Chap 3) and Johan Legemaate from the Netherlands (Chap 4). Each scholar contemplates the dynamics which arise when the philosophy of deinstitutionalisation intersects with the law regarding involuntary detention. Professor Winick considers the potential for therapeutic jurisprudence to guide future developments, while Professor Richardson analyses the recent debates in Britain concerning reciprocal rights for the provision of psychiatric services, including coerced treatment with regard to existing and proposed mental health legislation. Professor Legemaate examines the internal and external legal position of psychiatric patients across a number of European jurisdictions.

Part Three introduces the issues that arise when detention decisions are made in the absence of consent. It begins with Stevens' narrative (Chap 5) which exemplifies the impact of this process upon herself and many others. Vine (Chap 6) contributes a psychiatrist's perspective by describing the decision-making process for clinicians when determining whether people should be detained as inpatients, released from hospital commitment, encouraged to undertake voluntary treatment, or compelled to receive treatment via an outpatient order. She analyses a range of the decision-making factors taken into account by clinicians in both standard and forensic contexts. Dawson (Chap 7) explains the options for involuntary care and alternatives through protective legislation in the New Zealand context. Gupta (Chap 8) focuses upon the tensions faced between competing clinical, legal and ethical principles in relation to the use of coercive treatment. Drawing particularly upon Canadian experience, she argues that treatment refusal amongst involuntarily hospitalised patients has arisen from a recent separation in law between hospitalisation and treatment. She also explores the complexities of this clinical scenario from a psychiatric perspective and contends that legal provisions which allow the detention of psychiatric patients prior to assessment of patients' treatment decision-making capacity discriminate against those with mental illnesses and undermine health service delivery.

Part Four examines a different form of decision-making: the review by tribunals or judicial bodies regarding involuntary commitment. Freckelton (Chap 9) contextualises modern debates, using the mechanism of a century-old decision of the Saxony Courts in relation to the involuntary detention (under "tutelage") of Daniel Schreber. Du Fresne (Chap 10) considers the therapeutic potential of the review process from a psychiatric perspective and instances ground-breaking initiatives in this regard in New Zealand. Perkins (Chap 11) analyses the English mental health law system in her critique of the legal safeguards afforded by English Mental Health Review Tribunals. Ferencz (Chap 12) provides further analysis based on her research with mental health consumers and tribunal members in England. Scott-Moncrieff (Chap 13) examines the obstacles to discharge of restricted patients from special hospitals in England and Wales.

Part Five deals with specific legal criteria for detention of people with mental illnesses and discharge across selected jurisdictions. From a tribunal member perspective, Freckelton (Chap 14) addresses themes raised by Perkins (Chap 11) and Ferencz (Chap 12) and considers the opportunities for a therapeutic jurisprudence approach to review decision-making. Bartlett (Chap 15) examines the jurisprudential significance of capacity and informal admission in England and Wales. Diesfeld (Chap 16) analyses the significance of extra-legislative factors, such as "insight", upon tribunals' decisions to discharge.

Freckelton (Chap 17) concludes the Part by evaluating how the Victorian judiciary has analysed dangerousness, an important criterion in the long-term involuntary detention of people with mental illnesses. He examines superior court decisions involving forensic patients detained on the basis of being too unwell to stand trial or found not guilty on the ground of insanity and the rationales for whether and how they should be released or re-integrated into the community.

Part Six focuses on the complexity of mandated outpatient treatment. This includes the therapeutic potential for intervention in the community with the patient being required to attend at a local mental health centre and, for instance, to take certain kinds of psychotropic medication. Hiday (Chap 18) analyses the international moves toward outpatient detention, focusing upon research into its advantages and disadvantages from a therapeutic point of view. Monahan (Chap 19) explains the current state of research on violence risk assessment and points to circumstances in which further actuarial information may aid decision-making in relation to the most therapeutic choice among admission, community treatment, or discharge. Simpson (Chap 20) examines the potential benefits, harm, and ethical difficulties that a clinician weighs in making such decisions. Bell (Chap 21) analyses patients' rights to community treatment by assessing the way in which the reality of limited resources has influenced judicial decision-making, thereby mutating those standards which determine whether a patient is afforded the liberty associated with this community option.

Part Seven addresses issues surrounding institutionalisation of people with intellectual disabilities. Johnson and Tait (Chap 22) critique the legal provisions for people who are hospitalised in Australia, raising a variety of issues in relation to criteria for detention of persons with disabilities internationally. Brookbanks (Chap 23) analyses the ethical and legal implications of proposed compulsory care legislation for people with intellectual disabilities who are charged with, or convicted of, offences in New Zealand. Diesfeld (Chap 24) concludes the collection by contrasting the rationales governing admission and discharge of people with intellectual disabilities from three jurisdictions. She particularly identifies reliance upon anti-discrimination legislation in the United States and the principle of "best interests" in England and Nova Scotia.

Several additional themes emerged across the "Parts", which can be seen through the therapeutic jurisprudence analyses of Winick and Wexler (1996) and of Perlin (2000b).

Sanism and Pretextuality

Perlin's research (2000b; Preface) sheds light on recurring themes across jurisdictions and from several professional disciplines. We have found particular relevance in his usage of the terms "sanism" and "pretextuality".

Perlin has described "sanism" as:

an irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry. It infects both our jurisprudence and our lawyering practices. Sanism is largely invisible and largely socially unacceptable. It is based predominantly upon stereotype, myth, superstition and deindividualization, and is sustained and perpetuated by our use of alleged "ordinary common sense" (OCS) and heuristic reasoning in an unconscious response to events both in everyday life and in the legal process (1999: 4; see too Perlin, 2000b: Chap 2).

Many of the same considerations apply also in the context of persons with intellectual disability, whose circumstances are often uncritically aggregated with those of persons with mental illnesses (see Brookbanks, Chap 23).

Perlin has characterised "prextextuality" as acceptance by the courts and tribunals, either implicitly or explicitly, of testimonial dishonesty and preparedness to engage in dishonest decision-making - "specifically where witnesses, especially expert witnesses, show a 'high propensity to purposely distort their testimony in order to achieve desired ends'. This pretextuality is poisonous; it infects all participants in the judicial system, breeds cynicism and disrespect for the law, demeans participants, and reinforces shoddy lawyering, blase judging, and at times, perjurious and/or corrupt testifying. ... I am convinced that sanism and pretextuality reflect a specific kind of corrosive prejudice that is at the roots of so much that is mental disability law" (Perlin, 1999: 4; see too Perlin, 2000b; Chap 3). Ultimately it is the reassertion of paternalism.

Perlin has observed in the United States context that it is impossible to understand mental disability law simply by reading the cases, studying courts' decisions, analysing pronounced doctrines, or taking legislation at face value. He has contended that these sources tell little about the related questions that are, in many ways, of far greater importance: "how is mental disability law applied in 'unknown' cases, and why is it applied that way?" (Perlin, 1999: 14; see too Perlin, 2000b).

Essentially, we are asking that same question - how are decisions regarding discharge made in hospitals, mental health centres, institutions for those with intellectual disabilities and at review tribunals? The answer generally does not reach the light of day because ordinary discharge decisions are not fully recorded, do not typically reach the courts, and are not routinely and robustly explained and formally reported by tribunals. All too rarely are sophisticated legal arguments mounted, or counter-experts called to testify. Representation of clients can be perfunctory or not recognised as a specialist and important area of legal practice.

It is in this context that Perlin has asserted that mental disability law is both sanist and pretextual. He has argued that the apparent contradictions, internal inconsistencies, and dissonances of mental disability law cannot be understood without appreciating the power and pervasiveness of these concepts (Perlin, 1999: 14). This in turn places at risk the legitimacy of the decision-making process because there is a tendency for judges and even tribunal members to experience discomfort with social science and skepticism about new ways of thinking: "This discomfort and skepticism allows them to take deeper refuge in heuristic thinking and flawed, nonreflective 'ordinary common sense', both of which continue the myths and stereotypes of sanism" (Perlin, 1999: 14).

Perlin has argued that clinicians often testify in accordance with their own self-referential concepts of "morality", thereby subtly subverting statutory and case law predicates for commitment. In addition, civil commitment decision-making can become confused with the role of such conditions in other contexts dealt with by the law - such as fitness for and responsibility in criminal proceedings (see eg Schopp, 2001: 270). Recourse to notions such as "lack of insight" (Diesfeld, Chap 16); "noncompliance" (Freckelton, 2003; Chap 14); "need for treatment" (Gupta, Chap 8); ordinary common sense (Perlin, 1999) and "dangerousness" (Monahan, Chap 19) constitute examples.

In some jurisdictions each of these notions has assumed a substantive extra-legislative character as a de facto criterion for retention of patients' involuntary status. Diesfeld (Chap 16) explores this issue in detail in relation to insight. However, the issue is also particularly to the fore in relation to compliance (see Freckelton, 2003). If detainees are described by clinicians, for instance, as "non-compliant" (such as with treatment), this can make their potential release highly problematic. For a start, it is evidence of limitations in therapeutic engagement and rapport. It may be more than that; it may evidence alienation of the clinician from the patient, or betoken that a patient constitutes a "management problem" from the clinician's perspective, or a perception that a patient lacks insight or is likely to relapse, each of these constituting a dynamic that can militate strongly against the prospects of a patient expeditiously recovering deci...

Table of contents

• Cover
• Half Title
• Dedication
• Title
• Copyright
• Contents
• Table of Cases
• Table of Legislation
• Author Information
• Preface
• Acknowledgments
• PART ONE: INTRODUCTION
• PART TWO: INTERNATIONAL APPROACHES
• PART THREE: INVOLUNTARY DETENTION OF THOSE WITH MENTAL ILLNESSES
• PART FOUR: REVIEW OF INVOLUNTARY DETENTION DECISION-MAKING
• PART FIVE: LEGAL CRITERIA FOR INVOLUNTARY DETENTION OF THOSE WITH MENTAL ILLNESSES
• PART SIX: INVOLUNTARY OUTPATIENT DETENTION
• PART SEVEN: INTELLECTUAL DISABILITIES AND INVOLUNTARY DETENTION
• Bibliography
• Index