This section delves into the historical underpinnings of mental health law, charting its evolution from a medical-centered framework to a legal framework while also considering contemporary trends. It explores key themes in the field, including civil and criminal commitment, patient rights, and issues within the realm of criminal justice. Additionally, it examines the impact of therapeutic jurisprudence, an emerging paradigm that has started to reshape this legal domain.
The inception of mental health law as a distinct legal discipline took place during the late 1960s and early 1970s. Prior to this era, legal regulations did exist on various subjects later encompassed within mental health law. These subjects included legislation related to civil commitment, guardianship, the legal defense of insanity, and competency to stand trial, among others. While common law had addressed some of the legal aspects pertaining to mental illness, and there had been certain statutory developments, it wasn’t until the U.S. Supreme Court began to constitutionalize these issues that these disparate legal doctrines started to be recognized as a distinct legal domain. The civil rights movements of the 1950s and 1960s gave rise to a new generation of lawyers advocating for the rights of marginalized groups, encompassing racial minorities, criminal defendants, prisoners, and individuals with mental health issues. The Supreme Court expanded constitutional rights within the criminal justice system, correctional facilities, and eventually in mental health institutions. The Court overcame its traditional reluctance to intervene in state processes and extended constitutional protections to state-run facilities that were previously exempt from judicial oversight.
Transition from a Medical Model to a Legal Model
The Court’s broadening of the rights of criminal defendants and prisoners prompted civil liberties advocates to argue that individuals involuntarily institutionalized due to mental illness should not be denied any of these rights. Before this shift, the courts had maintained a relatively hands-off stance toward the predicament of mental health patients. In essence, the legal system had employed a medical model when addressing civil commitment and other matters concerning individuals with mental illnesses. These concerns were deemed as falling within the realm of medicine and thus lay beyond the purview of the judicial system.
However, in the aftermath of the 1960s, the prevailing medical model was supplanted by a legal model grounded in constitutional principles aimed at broadening and safeguarding the rights of patients. This legal model has wrought a significant transformation in modern mental health law. For many, this transformation was met with resounding approval. The medical model had bestowed an excessive degree of authority upon physicians, resulting in arbitrary and, at times, unwarranted curtailments of individual liberty. During this period, mental hospitals often functioned more as mere repositories of human beings, with treatment being either minimal or virtually non-existent.
The legal model of mental health law instigated profound reforms. The judiciary placed stringent constraints on the criteria for civil and criminal commitment, expanded the rights to procedural due process hearings, and acknowledged novel constitutional rights for patients engaged in various aspects of the mental health and criminal justice systems.
Limits on Civil and Criminal Commitment
In a pivotal 1972 case, the Supreme Court declared the indefinite commitment of a mentally disabled criminal defendant, who was deemed incompetent to stand trial, to be unconstitutional. The Court ruled that, as a fundamental safeguard, due process necessitates that the confinement of an individual in a mental hospital must, at the very least, serve a reasonable purpose in relation to the objectives of such commitment. If it becomes evident that a criminal defendant committed on the grounds of their incompetence to stand trial will not regain competence in the foreseeable future, their continued commitment on this basis would be impermissible. Furthermore, the Court determined that the defendant had been denied equal protection since he was subjected to a more lenient commitment standard and a more stringent release standard compared to civil patients. Following this decision, the Court progressively extended these rights to individuals committed after being found not guilty by reason of insanity and subsequently to patients subjected to civil commitment. Courts subsequently employed substantive due process to restrict the standards that would justify commitment, as well as procedural due process to mandate more extensive hearing rights, encompassing the right to legal counsel and the state’s obligation to establish its case by clear and convincing evidence.
Rights Following Commitment
Due to chronic issues of understaffing and underfunding in mental hospitals, mental health lawyers initiated challenges against these institutions, asserting that they were in violation of patients’ constitutional rights to treatment. Several lower courts acknowledged the existence of a right to treatment, establishing specific standards and conditions that mental hospitals were required to meet. In contrast, the Supreme Court chose to avoid making a definitive ruling on this issue, but acknowledged that a patient committed without treatment for an extended period was being deprived of their constitutional right to liberty. Subsequently, the Court determined that an individual committed to a mental retardation facility possessed constitutional rights, including the right to safe conditions of confinement, protection from unreasonable physical restraint, and a baseline level of adequate habilitation.
The Right to Refuse Treatment
A frequently disputed issue pertains to the alleged right of mental patients and incarcerated individuals to decline medication and other forms of intrusive mental health treatment. In 1990, the Supreme Court upheld the involuntary administration of antipsychotic medication to a mentally ill prisoner who posed a danger to fellow inmates and staff. The Court acknowledged the prisoner’s substantial liberty interest in refusing coerced medication but determined that the prison’s interest in administering the treatment outweighed this liberty interest. The right to reject intrusive treatment was construed more broadly in situations outside of the prison context. When dealing with cases involving pretrial detainees rather than convicted prisoners, the Court applied a more rigorous standard, mandating that unwanted medication must be medically justified and represent the least restrictive alternative for achieving a compelling governmental interest, such as safeguarding other inmates or staff and the necessity to restore a criminal defendant to competency for trial.
Constitutional Limits in the Criminal Process
The Supreme Court has established that a criminal defendant cannot waive counsel, plead guilty, or be tried when incompetent. Due process mandates the determination of competence, imposing constraints on the nature and duration of incompetency commitment. Moreover, the Eighth Amendment prohibition against cruel and unusual punishment was held to prevent the execution of a capital defendant who becomes incompetent due to mental illness or mental retardation.
The availability of the insanity defense and its definition largely falls under state law. Most jurisdictions acknowledge the defense but restrict it to cases involving cognitive impairment that prevents the defendant from comprehending the wrongfulness of their actions. Defendants acquitted by reason of insanity are typically committed to mental hospitals as long as they remain mentally ill and pose a danger to society. In the specific context of civil commitment for sex offenders, the Court has recognized that pedophilia can justify a special commitment scheme for sexually violent predators, as long as it significantly impairs the individual’s ability to control their behavior.
Other Mental Health Law Issues
These constitutional developments significantly shaped mental health law, necessitating statutory revisions to align with the constitutional constraints governing the treatment of individuals with mental illness in both the civil mental health system and the criminal justice system. Mental health law also encompasses other matters that were previously governed by statutory and common law frameworks. These encompass the oversight of mental health professionals and clinical practices, the use of clinical expert witness testimony, cases of clinical malpractice, the principles of informed consent for treatment, matters of confidentiality, patient privacy, and access to medical records, issues concerning guardianship, housing, and zoning, addressing discrimination in employment and government benefits, as well as aspects related to the education of individuals with mental disabilities.
Benefits and Limits of the Legal Model
The legal model of mental health law, which replaced the earlier medical model, brought about crucial reforms and mitigated numerous abuses that individuals with mental illness had endured within mental hospitals, the criminal justice system, and the broader community. While representing a significant improvement over the medical model, the legal model of mental health law also presented certain challenges. It shifted authority from clinicians, some of whom had previously misused their power, to judges and lawyers who may not always fully grasp the clinical requirements of the patients. By predominantly focusing on legal rights, the legal model occasionally appeared to overlook the therapeutic necessities. Paradoxically, despite its concentration on individuals with mental illness and the clinical practitioners tending to them, the field of mental health law did not exhibit as much interdisciplinary collaboration and scholarship as might have been expected. The legal model, rooted in and centered on constitutional rights, began to show signs of needing a new direction, especially as the Supreme Court adopted a more conservative stance and became less inclined to further expand constitutional rights.
The Emerging Therapeutic Jurisprudence Paradigm
Consequently, a novel model of mental health law has emerged over the last two decades, gradually replacing the legal model with a fresh therapeutic perspective that takes into account not only legal rights but also the well-being of individuals with mental illness. This new approach is known as therapeutic jurisprudence, and it is an explicitly interdisciplinary approach to legal scholarship and legal reform that underscores the influence of the law on the psychological and psychiatric welfare of individuals. Therapeutic jurisprudence incorporates insights from psychology and mental health disciplines into the development and implementation of the law, with the aim of minimizing unintended adverse effects and maximizing the law’s potential for therapeutic benefits.
The therapeutic jurisprudence paradigm suggests that the law itself can function as a therapeutic tool. Legal regulations, practices, and the roles played by various legal actors, including judges, lawyers, expert witnesses, and therapists, all represent social forces that can lead to therapeutic or antitherapeutic outcomes. The therapeutic jurisprudence orientation places significant emphasis on identifying these outcomes and endeavors to reshape the law and legal practices in innovative ways that promote mental health while upholding legal rights and values. Additionally, this approach identifies areas for empirical investigation, generating research on the mental health system that can greatly enhance our comprehension of how the law operates in this context and how it can be restructured to more effectively fulfill its therapeutic objectives.
Therapeutic jurisprudence, therefore, stands as an approach to mental health law that moves beyond the legal model that has predominated since the 1960s. It seeks to apply legal rights and legal roles in manners that better align with the therapeutic requirements of individuals living with mental illness. This approach draws on interdisciplinary insights to provide a more balanced consideration of legal and therapeutic factors. Unlike the earlier medical model of mental health law, it does not prioritize therapeutic values above all others. Instead, it aims to assess whether the law’s antitherapeutic consequences can be mitigated and its potential to promote mental health can be enhanced, all while upholding principles of due process and other justice-related values.
Therapeutic jurisprudence has significantly impacted the landscape of mental health law, particularly in key areas such as civil commitment, outpatient commitment, the right to refuse treatment, incompetency to stand trial and face execution, the legal insanity defense, psychotherapist-patient privilege and its exceptions, guardianship, hearing rights, discrimination, the prevention of stigmatization, and sex offender law. It has served to strengthen patient rights by highlighting the therapeutic benefits of recognizing these rights and has paved the way for the establishment of new rights, such as the right of individuals with mental illness to engage in future planning through advance directive instruments. This approach has broadened the discourse and debate within mental health law, making it more interdisciplinary and reorienting its focus toward achieving therapeutic outcomes while safeguarding legal rights. In essence, it has placed the focus on mental health back into mental health law.
Furthermore, it has expanded the realm of mental health law, addressing issues in other legal domains that have a profound impact on the mental health of those involved. It has permeated the legal landscape, evolving into an overarching approach to law generally, with repercussions not only on core aspects of mental health law but also on associated fields like health law, juvenile law, family law, correctional law, discrimination law, tort law, and more.
Moreover, it has played a significant role in reimagining the roles of judges and the courts. Modern courts frequently grapple with a range of psychosocial problems affecting individuals in need of treatment and rehabilitation. As a result, issues such as substance abuse, domestic violence, child abuse and neglect, juvenile delinquency, and family disintegration have increasingly come under the purview of the courts. The principles of therapeutic jurisprudence have contributed to the development of fresh judicial models for addressing these challenges, including specialized treatment or problem-solving courts such as drug treatment court, domestic violence court, mental health court, and unified family court. These innovative judicial models, inspired by and grounded in therapeutic jurisprudence, signify an expansion of conventional mental health law into additional contexts in which the legal system endeavors to enhance the mental health and psychological well-being of individuals and society at large.
References:
- Perlin, M. L. (2003). Mental disability law: Civil and criminal. Albany, NY: LexisNexis.
- Wexler, D. B., & Winick, B. J. (1991). Essays in therapeutic jurisprudence. Durham, NC: Carolina Academic Press.
- Winick, B. J. (1997). Therapeutic jurisprudence applied: Essays on mental health law. Durham, NC: Carolina Academic Press.
- Winick, B. J. (1997). The right to refuse mental health treatment. Washington, DC: American Psychological Association.
- Winick, B. J. (2005). Civil commitment: A therapeutic jurisprudence model. Durham, NC: Carolina Academic Press.