Therapeutic jurisprudence provides a bridge between the law and the health and social sciences… In this blog Priscilla Ferrazzi, a lawyer and Assistant Professor at the University of Alberta in Canada comments on the importance of Mental Health Rehabilitation (MHR) science in therapeutic jurisprudence thinking…
Most of us in criminal law know that among the most stark, enduring consequences of efforts to move people with mental illness out of institutions and into communities beginning in the 1950s and 60s is the increasing number of these people caught in the justice system: Our courts see them every day; at night, they fill our prisons.
What’s less well-known in legal circles, however, is that the same de-institutionalization movement of a half century ago also fueled an important new field of inquiry that arose to better understand how people with mental illness can live better lives in their new, complex and community surroundings.
This field is called mental health rehabilitation, or MHR, and it is associated with the discipline of rehabilitation science as well as other disciplines.
An understanding of what MHR offers could be essential to improving how criminal courts respond to people with mental illness and to the therapeutic jurisprudence ideas that guide these efforts.
MHR is usually considered a speciality within rehabilitation science. Its approach, according to the United States Psychiatric Rehabilitation Association, is to promote “recovery, full community integration, and improved quality of life for persons who have been diagnosed with any mental health condition that seriously impairs their ability to lead meaningful lives.”
Through more than five decades of ground-breaking scholarship, MHR researchers have transformed the notion of “rehabilitation” in the context of mental illness from narrow ideas of improved biomedical psychiatric health (fewer symptoms, fewer hospital visits, less substance abuse, etc.) to a psychosocial approach that puts subjective perceptions of quality-of-life first. MHR ideas emphasize values of self-determination, independence and empowerment—values that link not just how individuals respond to their surroundings but also how those social, physical and economic surroundings respond to them.
The central tenet of this thinking since the 1990s is a concept known as “recovery.” Instead of solely physician-assessed measures of improved health, recovery focuses on deeply personal considerations of self-esteem, adjustment to disability, self-determination and social interactions for people with mental illness. The transformative vision has been widely embraced throughout the world and it’s officially recognized by Canada, the United States, Australia, England, Israel and others as the guiding principle behind their mental health services and rehabilitation.
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Yet, while the impact of recovery and other MHR concepts has been growing steadily in the world of mental health rehabilitation generally, their influence has been paradoxically little evident in criminal court efforts to better respond to people with mental illness.
Mental health diversion, mental health courts and even the therapeutic jurisprudence ideas that animate these initiatives seem to have largely overlooked MHR’s contributions and remain focused instead on biomedical notions of rehabilitation, its measures from medicine (e.g., improved symptoms) and other metrics from criminal justice (e.g., less recidivism). While some recent examples exist, they are few.
It’s easy to understand how this happened. While therapeutic jurisprudence has always been considered an interdisciplinary or multidisciplinary approach, its scholarship and practice has been largely developed by legal thinkers, practicing judges and lawyers. MHR, in its quiet corner of rehabilitation science, is perhaps little-known in that mainly legal world.
We argue that it should be.
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Recently at the University of Alberta in Edmonton, Canada, my research team has begun exploring how MHR can—when moved across discipline boundaries—provide essential insight into therapeutic jurisprudence and the problem-solving-court-styled efforts to keep people with mental illness out of the justice system (where treatment, accommodation or even comprehension are often in short supply).
It is, we suggest, a potentially important piece of the puzzle. In terms described by David Wexler, if disciplinary insights are the “vineyards” that produce the “wine”—that is, the TJ practices used by judges and others, then MHR would be an essential “vineyard” analogy.
What MHR is not, however, is an easy fit: The justice system, for instance, in responding to the need for community safety and related concerns, exercises varying degrees of control and supervision of people who break and flaunt the law, while the recovery model urges autonomy, choice, and self-determination. Meanwhile, those in the forensic system who are perceived as anti-social are a challenge to recovery’s focus on shared social values, and where the law relies on social exclusion as a sanction this makes recovery’s emphasis on community integration secondary.
But therapeutic jurisprudence, the idea, was intended as an approach that would and could look at dilemmas like these. The concept’s co-founder, the late Bruce Winick, says its central aim is to understand legal rules and the way they are applied as social forces that will pave the way for effectively reshaping or redesigning the law to minimize its anti-therapeutic effects.
What’s most important, we argue, is that MHR and its ideas of recovery can fortify the robustness of the therapeutic jurisprudence concept itself. This argument is developed in detail in a recent issue of the International Journal of Law and Psychiatry. In particular, we suggest a greater consideration of MHR can improve the theoretical validity of therapeutic jurisprudence by:
- helping define what “therapeutic” means;
- by establishing a normative framework; and
- by broadening the scope of therapeutic jurisprudence as an interdisciplinary approach.
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As readers of this blog will know, questions regarding the significance and distinctiveness of therapeutic jurisprudence have often focused around the importance (or not) of a clear meaning of the term “therapeutic.” A narrow definition could hamstring the concept. And deciding who defines “therapeutic” and under what circumstances raises risks of paternalism. The MHR concept of recovery, on the other hand, provides meaning to the term that, by emphasizing the quality of life of the person with mental illness involved, offers both definitional certainty while preserving the necessarily broad scope that therapeutic jurisprudence aims for.
The problem of defining “therapeutic” is also related to the question of whether or not therapeutic jurisprudence should be (at least to some degree) prescriptive: Some argue the concept’s essential “values” should describe “how things ought to be.” That is, therapeutic jurisprudence should operate as a normative framework if it wants to operate at all. Again, MHR rehabilitation and its emphasis on recovery offers a solution to the dilemma. Its generalized normative perspective is broad enough to allow latitude for specific normative considerations, but it offers room enough to accommodate specific circumstances in particular cases.
Finally, concerns about whether therapeutic jurisprudence—and the criminal court mental health initiatives it inspires—can be considered genuinely interdisciplinary also find some resolution through MHR. Interdisciplinarity is an essential feature of rehabilitation science and related research, incorporating approaches from not only medicine, psychiatry, and psychology, but also other disciplines such as nursing, occupational therapy, and physiotherapy. MHR blends these disciplines in the development of its recovery approach, simultaneously relying on all of these disparate avenues of knowledge to help articulate the lived experiences of individuals with mental illness.
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Many in the justice community may be unfamiliar with MHR, but its lessons for courts trying to respond to people with mental illness are likely both numerous and invaluable.
Our research team’s work is about understanding this potential in a variety of contexts—and cultures. Much of our current research, for example, is in the Canadian Arctic where most communities remain predominantly Inuit. One recent study exploring problem-solving court approaches for people with mental illness in Nunavut suggested the critical importance of informing therapeutic jurisprudence initiatives with Indigenous perceptions of mental illness and wrong-doing.
Yet, how best to incorporate MHR in therapeutic jurisprudence and criminal court mental health initiatives demands more research, particularly given that its psychosocial orientation challenges many traditional, more biomedical-focused assumptions about rehabilitation that often dominate discussions in criminal justice circles. The recovery model for improving the lives of people with mental illness offers one compelling line of inquiry in therapeutic jurisprudence scholarship. The influence and importance of culture—especially Indigenous culture—is another.
These things need further study. MHR may prove to be a new frontier for therapeutic jurisprudence scholarship.
Read the full article: Ferrazzi, P. & Krupa, T. (2016). Mental health rehabilitation in therapeutic jurisprudence: Theoretical improvements. International Journal of Law and Psychiatry, 46, 42-49
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