Vol. 16 No.1 (January 2006), pp.20-22

 

CIVIL COMMITMENT: A THERAPEUTIC JURISPRUDENCE MODEL, by Bruce J. Winick  Durham, NC: Carolina Academic Press, 2005.  362pp.  Cloth.  $48.00.  ISBN: 159460021X.

 

Reviewed by Dan A. Lewis, Department of Human Development and Social Policy, Northwestern University.  Email: dlewis [at] northwestern.edu

 

Mental health law has had an interesting last 40 years.  Born of the reform movements of the 1960s and fueled by a civil rights and critical spirit, it has moved through the policy cycle that begins with great vigor and youthful exuberance and ends in an old age of cynicism and regret.  Deinstitutionalization, the primary goal of the youthful period, no longer looks so good as an alternative to the reliance on institutions that was the hallmark of the pre-reform era.  Reformers, throughout the life span of this movement, have focused on the commitment process to state hospitals as the key to making change.  Mental health legal reformers have continued, over the life span of this policy, to tinker with the commitment process as a way to improve services and at the same time protect the rights of the mentally ill person.  Enter Bruce Winick and his new book, CIVIL COMMITMENT: A THERAPEUTIC JURISPRUDENCE MODEL.  Winick hopes to provide the Viagra that will energize an old, tired perspective.  Whether he convinces readers will depend on the politics and probably the age of the reader, but he surely has written a book that should be read by everyone interested in mental health law.

           

Winick writes from that old liberal, theoretical perspective:  he wants to convince the reader that his therapeutic jurisprudence model is the key to moving beyond the quagmire that currently exists in mental health law. That commitment to commitment is what makes this book an important read.  Winick keeps the faith that civil commitment is the key to improved services for the seriously mentally ill.  Liberal reformers have been making this argument for 50 years, and for 50 years much reform energy has gone into changing how this process works.  He argues for a synthesis of the civil rights perspective with a therapeutic perspective.  Winick wants judges, prosecutors and defense attorneys to change how they think about practicing. If these lawyers can keep both the therapeutic and legal interests to the mentally ill person in mind, they can improve the commitment process making it a healing and humane experience.  He is resurrecting the “best interest” of the client approach.

           

The Winick approach rests on a set of liberal assumptions that are, at the very least, now suspect.  Winick assumes that professionals can be guided by altruism which will lead to better outcomes for the mentally ill, that the courts provide the levers for improving how institutions operate, that the public will go along with the humane measured approach he suggests, and that the commitment process is still the key to better outcomes even though state hospitals are no longer [*21] the central service they once were.  These assumptions may all be correct, or some or all of them may be wrong. But they go untested throughout the book.  Surely we should be suspicious of another set of reforms that depend on the motivations and intentions of professional strangers.   The national experience with deinstitutionalization should give us pause to continue down the same road that makes the non-system of community care the linchpin of reform.  Why should state legislators support this approach? What training should lawyers receive, and who should pay for it?  What evidence do we have that the mentally ill will be any better off under these new arrangements? Winick is so sure of his approach and so eager to promote it that these questions are not asked, much less answered. Why would it be in someone’s interest to implement the model he proposes?  I was reminded of the moral entrepreneurs of another century, pushing a reform they believed in deeply but not seeing where the reform could go wrong.

 

We can see the same problem in the educational community where liberal reformers were also convinced that desegregation was the key to improving schools for the poor. Forty years of desegregation practice has only convinced them that we have not tried hard enough to make it work, not that it may not have been the right solution to the problem.  Deinstitutionalization and desegregation were born of the same thinking and spirit some 50 years ago.  Neither has fared nearly as well as its advocates had hoped; neither garners much support from the public.

 

Should we still be focusing on the commitment process if we want to improve outcomes for the mentally ill served by public dollars?  It is not clear, to put it generously, that the commitment process is the pivotal decision affecting the lives of the mentally ill. Fifty years ago the commitment process was the beginning of a career as a mental patient.  It changed people’s lives if they were committed.  Often the commitment was a life sentence or, for the old, a death sentence.  Often custody passed as treatment.  Today, commitments seem more a consequence than a cause of the problems of treating the mentally ill.  This, of course, was not true 50 years ago when commitment played a much bigger role in the careers of the mentally ill.   Winick maintains his commitment to a set of assumptions that I believe are no longer warranted.  Nevertheless, his approach deserves serious consideration for there is a whole generation of mental health advocates who believe as Winick does, and there will continue to be a push from this group to continue down that long road to a commitment process that does a better job of balancing the needs of the patient with the rights of the citizen.  There is something to be said for keeping the faith over almost 40 years of trying to improve mental health services through legal action.  The problem is that times and policies change, indeed the emphasis on legal challenges through class actions has seen limited success in changing how these systems work.  The outrages of the institutional era have been replaced by procedures and processes that seem more the problem than the solution to a more conservative public.  Most states have put protections for the mentally ill in place that seem cumbersome and awkward. To keep trying to get it right about civil commitment when it has not [*22] proven the key to improving services, could be leading us in the wrong direction. 

 

The book has an odd tone for the social scientist.  Winick is clearly making a normative argument.  He wants to argue for what ought to be.  He weaves in an empirical dimension using studies that illustrate the effectiveness of therapeutic jurisprudence. But the line between the normative and empirical dimensions is not drawn clearly.  The book reads like a brief, pushing a line of argument. I would have liked to see more attention to the current situation in key states so we can see what the reality is and then think through how these reforms would affect that situation.  The treatment system is guided today by federal reimbursement policy and the complex interplay between state service providers and the private sector.  The notion that legal reform leads to organizational change has clearly been challenged as a flawed conceptual framework not only in mental health but education, foster care, and other human services.  Winick and others cling to the notion that a change in law will produce an improvement in services, but the history of reform suggests that things are not that simple. Winick certainly makes the problem of change easy:  change the law and keep changing it until those forces of darkness come around.  It also keeps the agent of change safely locked up in the legal establishment, looking for just that right turn of a judicial phrase that will bring those judges and prosecutors in line with the goals of the reformers.

 

Winick joins a long line of reformers, from Dorothea Dix on down who single-mindedly push a way of changing practice. Much of the damage that has been done to the mentally ill has come from those who desire to help. Andrew Scull’s (2005) new book is just the latest reminder that we should be careful in accepting the well-intentioned expert as the friend of the mentally ill. To rely on the kindness or, if you will, therapeutic sensitivity of lawyers to improve the lives of the mentally ill seems a path loaded with trouble.

 

Winick still believes that changes in law will produce the intended changes in the behavior of those affected by the law.  He is so convinced that a good normative framework will win the day that he does not ask about the factors that make it more likely that framework will be adopted and implemented successfully.  Where are the pressures to make therapeutic jurisprudence work?  In whose interest is it to make therapeutic jurisprudence work?  The questions are not asked, much less answered.

 

Be that as it may, Winick represents a way of thinking that has dominated the conversation about reform in mental health for a very long time.  The “therapeutic jurisprudence model” deserves serious consideration, perhaps more as the reason liberal reforms seem so out of touch with current realities and less as a way to make the commitment process work.

 

REFERENCE:

Scull, Andrew.  2005. A TRAGIC TALE OF MEGALOMANIA AND MODERN MEDICINE.  New Haven:  Yale University Press.

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© Copyright 2006 by the author, Dan A. Lewis.