Civil Commitment: A Therapeutic Jurisprudence Model

During the past 50 or so years, several groups, including women, children, and elderly persons, have gained recognition and rights that they had been denied. However, people with mental illness have only a tentative grasp of the basic rights that most people enjoy. Laws and statutes created to protect the rights of individuals with mental disorders often are open to subjective interpretation, thus affording these citizens inconsistent protection. People subject to involuntary psychiatric hospitalization are particularly vulnerable to losing their liberty and rights.

Bruce Winick, JD, Professor of Law and Professor of Psychiatry and Behavioral Sciences at the University of Miami, takes a comprehensive look at civil commitment in Civil Commitment: A Therapeutic Jurisprudence Model. He succinctly describes how mental health care has influenced the development of civil commitment laws. More importantly, perhaps, he gives voice to the perspective of patients and captures the essence of what it is like to be blindsided by systems that are designed to protect individuals with mental illness.

The author's opening chapter on coercion and autonomy provides a detailed examination of the concerns that have influenced the development of a therapeutic jurisprudence model. He leaves no stone unturned in this discussion. He comments briefly on the importance of the therapeutic relationship and the role of mental institutions in civil commitment and explores legal and psychological implications of current civil commitment statutes. He concludes the first chapter with a schema for how mental health care providers can successfully support the rights of clients, which, he asserts, enhances the effectiveness of treatment. The author's plan for empowering people subject to involuntary hospitalization is realistic. He recognizes that coercion will continue to occur and reduces the need for it by counseling mental health and legal professionals to support client participation in every step of the decision-making process.

As in the first chapter, Winick uses the conceptual threads of coercion and autonomy to weave together the remainder of the manuscript. For example, he methodically examines current criteria for civil commitment. He draws on a rich and diverse array of examples—from statutes that do not explicitly identify criteria that support a parens patriae justification for commitment, to vague definitions of terms such as mental illness, disability, and dangerousness—to create a persuasive case for how commitment determinations become subjective due to poorly defined criteria. Despite efforts to develop terminology that captures the truth of mental illness and dangerousness, it has been difficult, says Winick, to vanquish paternalism from the medical and legal perspectives of involuntary hospitalization. He states that best-interests approaches utilized by attorneys and clinicians veil a paternalistic and coercive process that diminishes liberties guaranteed by the U.S. Constitution's Due Process Clause.

Winick does not limit his discussion of commitment laws to legal and clinical concerns; he considers the perspective of the client, too. By doing so, he humanizes the impact of these laws on individuals with mental illness. He says that although clinicians and lawyers routinely make decisions about the freedom of persons with mental illness, professionals give little consideration to the effect of involuntary hospitalization on a person's self-perception, treatment outcome, or place in society.

Although Winick rails against current commitment practices, he also provides a framework for change. He explores controversies involving patients' rights and outpatient commitment. He also makes suggestions regarding how involuntary commitment processes could be better utilized. He is a true advocate for the mentally ill; he successfully advances an argument for change in a manner that will not alienate those who do not support his position.

One flaw in the book is worthy of mention. Therapeutic jurisprudence represents an idealized client-centered model that may be difficult to implement in today's economic climate. Legal and mental health professionals are under increasing pressure to weigh their roles as advocates against time management and productivity expectations. They must balance the best interests of one with the safety and well-being of many. Thus, full implementation of a therapeutic jurisprudence model, in any mental health or legal organization, may be challenging at best. However, if the model is introduced to clinical and legal trainees, they may be more likely to integrate some, if not all, of the recommended approaches into their interactions with clients needing mental health care.

Winick succeeds in presenting complex material in a very captivating and accessible manner. The book provides a foundation for thoughtful discussion and debate on the topic of civil commitment and stimulates readers to consider how changes could be implemented. It should be required reading for professionals who work in or plan to work in any capacity with the mentally ill. It is a good resource for forensic psychiatrists who teach residents and other mental health professionals about involuntary hospitalization.

• American Academy of Psychiatry and the Law