This paper traces the origins of mental health law, discussing its transition from a medical model to a legal model and considering recent trends. It examines several of the major topics in the field, including civil and criminal commitment, patients’ rights, and criminal justice issues. It then discusses how therapeutic jurisprudence, an emerging paradigm, has begun to transform the field.
Mental health law was first conceived as a separate field of law in the late 1960s and early 1970s. Before then, laws certainly existed on various topics later subsumed within mental health law. These included the law governing civil commitment, guardianship, the legal insanity defense, and incompetency to stand trial, among others. The common law had clarified some of the legal issues raised by mental illness, and there had been some statutory developments, but it was not until the U.S. Supreme Court began to constitutionalize the issues that these disparate strands of legal doctrine began to be thought of as a separate area of law. The civil rights struggle of the 1950s and 1960s produced a new breed of lawyers who championed the rights of disadvantaged populations—racial minorities, criminal defendants, prisoners, and those with mental illness as well. The Supreme Court expanded constitutional rights in the criminal justice system, in the prison, and ultimately in the mental hospital. The Court overcame its traditional reluctance to intervene in state processes and brought the Constitution to state institutions that previously had been beyond judicial scrutiny.
Transition from a Medical Model to a Legal Model
The Court’s expansion of the rights of criminal defendants and prisoners led civil liberties lawyers to argue that those involuntarily institutionalized because of mental illness should enjoy no fewer rights. Before this, the courts had taken essentially a hands-off approach to the plight of mental patients. Indeed, the law can be seen as having applied a medical model to civil commitment and other issues involving people with mental illness. These issues were seen as medical in nature and beyond the ken of the courts.
After the 1960s, this medical model was replaced by a constitutionally based legal model that focused on expanding and protecting patients’ rights. Modern mental health law has been transformed by this legal model. For many, this was a welcome change indeed. The medical model granted excessive deference to physicians, which produced arbitrary and sometimes unnecessary deprivations of liberty. Mental hospitals at this time often were little more than human warehouses in which treatment was scant or nonexistent.
The legal model of mental health law ushered in significant reforms. The court severely restricted the standards for civil and criminal commitment, expanded procedural due process hearing rights, and recognized new constitutional rights for patients involved in various aspects of the mental health and criminal justice systems.
Limits on Civil and Criminal Commitment
In a 1972 case, the Court found unconstitutional the indefinite commitment of a mentally retarded criminal defendant who was incompetent to stand trial. The Court held that, at a minimum, due process requires that the nature and duration of an individual’s confinement to a mental hospital must bear a reasonable relation to the purposes of such commitment. When it is clear that a criminal defendant committed on the basis of his incompetence to stand trial will not regain competence in the foreseeable future, his continued commitment on this basis would be impermissible. The Court also found that the defendant was denied equal protection because he was subjected to a more lenient commitment standard and to a more stringent standard of release than civil patients. Soon thereafter, the Court extended these rights to those committed following an adjudication of not guilty by reason of insanity and then to patients subjected to civil commitment. Courts soon used substantive due process to limit the standards that would justify commitment— and procedural due process to require greater hearing rights—including the right to counsel and the requirement that the state bear the burden of proof by clear and convincing evidence.
Rights Following Commitment
Because mental hospitals were chronically understaffed and underfunded, mental health lawyers challenged these institutions as denying patients a constitutional right to treatment. Some lower courts recognized such a right to treatment and specified detailed standards and conditions that hospitals must comply with. The Supreme Court, however, avoided deciding the issue, instead recognizing that a patient committed for many years without treatment was deprived of his constitutional right to liberty. The Court subsequently held that an individual committed to a mental retardation facility has a constitutional right to safe conditions of confinement, freedom from unreasonable physical restraint, and minimally adequate habilitation.
The Right to Refuse Treatment
A frequently litigated issue has been the asserted right of mental patients and prisoners to refuse medication and other forms of intrusive mental health treatment. In 1990, the Supreme Court upheld the involuntary administration of antipsychotic medication to a men-tally ill prisoner who is dangerous to other inmates and staff. The Court recognized that the prisoner had a significant liberty interest in refusing forced medication but recognized that the prison’s interest in its administration outweighed this liberty interest. The right to refuse intrusive treatment was given wider scope in contexts not involving the prison. In cases involving pretrial detainees rather than sentenced prisoners, the Court applied a more stringent standard, requiring that unwanted medication must be justified as medically appropriate and the least restrictive alternative way of achieving a compelling governmental interest, such as the protection of other inmates or staff and the need to restore a criminal defendant to competence for trial.
Constitutional Limits in the Criminal Process
The Supreme Court has determined that a criminal defendant may not waive counsel, plead guilty, or be tried, while incompetent due process requires determination of the competence question and places limits on the nature and duration of incompetency commitment. In addition, the Eighth Amendment ban on cruel and unusual punishment was held to preclude the execution of a capital defendant who becomes incompetent by reason of mental illness or one suffering from mental retardation.
The availability of the insanity defense and how it should be defined is largely a matter of state law. Most jurisdictions recognize the defense but limit it to cognitive impairment that prevents the defendant from understanding the wrongfulness of his or her conduct. Defendants acquitted by reason of insanity typically are committed to mental hospitals as long as they continue to be mentally ill and dangerous. In the special context of sex offender civil commitment, the Court has recognized that pedophilia can justify a special sexually violent predator commitment scheme, as long as it significantly impairs the individual’s ability to control his conduct.
Other Mental Health Law Issues
These constitutional developments drove much of mental health law, requiring statutory changes to reflect constitutional limits on how people with mental illness could be dealt with in both the civil mental health system and the criminal justice process. Mental health law, of course, deals with other issues that had been subject to statutory and common law developments. These include the regulation of mental health professionals and clinical practice; clinical expert witness testimony; clinical malpractice; informed consent for treatment; confidentiality and patient privacy and access to records; guardianship, housing, and zoning issues; discrimination in employment and in governmental benefits; and education of the mentally handicapped.
Benefits and Limits of the Legal Model
The legal model of mental health law that supplanted the previous medical model brought needed reforms and curtailed many abuses to which those with mental illness had been subjected in the mental hospital, the criminal justice process, and the community. Although a significant improvement over the medical model, the legal model of mental health law itself produced problems. It removed power from clinicians who may have abused it but entrusted it to judges and lawyers who often fail to understand the clinical needs of the patient. By placing primary emphasis on legal rights, the legal model may sometimes have neglected therapeutic needs. Ironically, despite its focus on those with mental illness and the clinical professionals who deal with them, the field of mental health law was not as interdisciplinary in its orientation and scholarship as one might suppose. The legal model, with its origins in and emphasis on constitutional rights, thus seemed in need of a new direction. This became particularly evident as the Supreme Court became more conservative and less inclined to extend constitutional rights further.
The Emerging Therapeutic Jurisprudence Paradigm
As a result, a new model of mental health law has been emerging in the past 20 years, supplanting the legal model with a new therapeutic orientation that focuses not only on legal rights but also on the well-being of those with mental illness. Therapeutic jurisprudence is an explicitly interdisciplinary approach to legal scholarship and law reform that emphasizes law’s impact on psychiatric and psychological well-being. This approach brings insights from psychology and the mental health disciplines into the formulation and application of law in an effort to reduce unintended antitherapeutic effects and maximize law’s therapeutic potential.
The therapeutic jurisprudence paradigm suggests that the law itself can be seen to function as a therapeutic agent. Legal rules, legal practices, and the way various legal actors (such as judges, lawyers, expert witnesses, and therapists) play their roles all are social forces that often produce therapeutic or antitherapeutic consequences. The therapeutic jurisprudence orientation focuses attention on these consequences and seeks creatively to reshape law and legal practices so as to increase mental health consistent with legal rights and values. The therapeutic jurisprudence approach also identifies issues for empirical exploration, generating research on the mental health system that can significantly enhance our understanding of how law functions in this area and how it can be recast to better achieve its therapeutic aims.
Therapeutic jurisprudence is thus an approach to mental health law that goes beyond the legal model that prevailed since the 1960s and that seeks to apply legal rights and legal roles in ways that are more consonant with the therapeutic needs of those suffering from mental illness. It brings interdisciplinary insights to the field and seeks to more effectively balance legal and therapeutic considerations. Unlike the medical model of mental health law that prevailed in an earlier time, it does not privilege therapeutic values over others. Instead, it seeks to determine whether law’s antitherapeutic effects can be reduced and its potential to bring about mental health can be enhanced without subordinating due process and other justice values.
Therapeutic jurisprudence scholarship and law reform have had an important impact on mental health law, particularly in the areas of civil commitment, outpatient commitment, the right to refuse treatment, incompetency to stand trial and be executed, the legal insanity defense, the psychotherapist-patient privilege and its exceptions, guardianship, hearing rights, discrimination, the avoidance of stigmatization, and sex offender law. It has functioned to reinforce patient rights by identifying the therapeutic value of their recognition and to pioneer new rights, such as the right of people with mental illness to engage in future planning through the use of advance directive instruments. It has enlarged the dialogue and debate within mental health law, making it more interdisciplinary, and refocusing its attention on achieving therapeutic ends as well as protecting legal rights. In short, it has put mental health back into mental health law.
Moreover, it has expanded the field of mental health law, addressing issues in other areas of law that have a significant impact on the mental health of those affected. It has spread across the legal landscape, emerging as a mental health approach to law generally. It thus has had a transformative effect not only on the core areas of mental health law but also on related fields such as health law, juvenile law, family law, correctional law, discrimination law, tort law, and others.
It also has had an important impact on reconceptualizing the role of judges and the courts. Modern courts often deal with a variety of psychosocial problems involving individuals in need of treatment and rehabilitation. Thus, problems of substance abuse, domestic violence, child abuse and neglect, juvenile delinquency, and family disintegration increasingly have come to the attention of the courts. The approach of therapeutic jurisprudence has helped to pioneer new judicial models for dealing with these issues, including specialized treatment or problem-solving courts such as drug treatment court, domestic violence court, mental health court, and unified family court. These new judicial models, inspired by and applying principles of therapeutic jurisprudence, represent an expansion of traditional mental health law to additional contexts in which the law seeks to improve the mental health and psychological functioning of the individual and the society.
- 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.
- Civil Commitment
- Competency to Stand Trial
- Forcible Medication
- Involuntary Outpatient Commitment
- Patient’s Rights
- Psychiatric Advance Directives
- Therapeutic Jurisprudence