THERAPEUTIC JURISPRUDENCE: MYTH, MAGIC AND MISINTERPRETATIONS Ian Freckelton

The Concept of Winick and Wexler

: The analysis of the law as a social force that can produce therapeutic and anti-therapeutic effects Wexler and Winick,

Judging in a Therapeutic Key

(2003: p7) It explores the ways in which, consistent with principles of justice, the knowledge, theories and insights of the mental health and related disciplines can constructively shape the development of the law.

Wexler & Winick,

Law in a Therapeutic Key

(1996)

Therapeutic jurisprudence is the use of social science to study the extent to which a legal rule of practice promotes or acts against the psychological or physical wellbeing of the people it affects Chistopher Slobogin

The Lens Theory

Enabling clearer awareness of the dynamics and repercussions of decisions, processes and legislative provisions Wexler and Winick

Therapeutic Jurisprudence

Places maximising pro-therapeutic outcomes and minimising counter-therapeutic outcomes on the agenda.

It incorporates health sequelae as a relevant factor (no more) in decision-making, statutory interpretation and court and tribunal processes.

It sensitises to extra-legal resonances and consequences.

It encourages reflectiveness.

Criticisms

Petrila (1996): cloaked in the language of autonomy and choice, TJ can simply reinforces the existing distribution of power in the relationship between treater and treated. In some critical areas it will result in even more power accruing to professional interests” Who decides what represents a therapeutic outcome?

Nolan (1998): Will therapeutic jurisprudence extend medical authority under the guise of benevolent, therapeutic intervention with consequent violations of individual liberties?

Arrigo (2004) TJ can be distract from the need For thoroughgoing critique of law and laws Freckelton (2005) TJ can be easily distorted & misused - an excuse for “best interests” decision-making or incompetent therapy Diesfeld (2006): TJ has provided an excuse for unassertive, lazy advocacy

Therapeutic Jurisprudence has a relevance

to: • The content of legislative provisions; •Interpretation of legislative provisions; •Conduct of cases for clients by their lawyers; •Health of decision-makers; •Procedures and processes applied by decision-makers in courts and tribunals

Qualities of Hearings informed by TJ Principles

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Procedures are more flexible & reflective;

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Awareness of broader repercussions of legal disputes;

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Participants will receive more of a voice;

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Consciousness of the positive features of expression of emotions by witnesses - less of a fear of the affective;

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Awareness of the role of law and lawyers upon clients;

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Consciousness of the capacity to produce positive outcomes as a result of the way hearings are conducted & legislative provisions and authorities interpreted.

The Fallacy of Biodegradability You can throw anything out of a car window if at the time you declaim “Biodegradable”

Wot TJ isn’t

1. It’s not a cult 2. It’s not a panacea 3. It’s not an end in itself 4. It isn’t just an incantation 5. It isn’t just a bandwagon 6. It isn’t apple pie or motherhood – deservedly, it has its critics 7. There is no such thing as “therapeutic justice” 8. It does not mean all aspects of traditional procedure are jettisoned

9. It doesn’t convert lawyers into 10. lay therapists It’s not an excuse for woolly thinking 11. It doesn’t provide an alternative to 12. 13. 14. 15. 16.

rigorous analysis of facts & law It isn’t a licence for abandoning precedent It’s not an opportunity for just being a “nice”, “sensitive”, “flexible” or “new age” decision-maker It does not qualify the principles of natural justice or procedural fairness It’s not a form of judicial/quasi-judicial therapy It doesn’t legitimise paternalism

Beware decision-makers … who

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Claim they are “doing TJ” or dispensing therapeutic justice

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Speak knowingly of “TJ”, as though it is their lover

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Evangelise TJ without having read Wexler and Winick’s major works

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Assert that something someone else has done is “not therapeutic jurisprudence”

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Maintain authoritatively that something is “inconsistent with therapeutic jurisprudence”

Risks of Uninformed Therapeutic Jurisprudence

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Trendiness

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Misconceived provision of inexpert therapy

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Absence of content

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Self-indulgence

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Abandonment of legal rigour

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Deciding in a party’s best interests

Example of Therapeutic Jurisprudence Awareness

1. Disciplinary Board Hearings

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Awareness of stresses on complainants;

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Understanding of experience of professional victimisation;

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Awareness of stresses on practitioners;

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Provision of support persons;

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Utilisation of examination-in-chief to relax witnesses;

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Non-leading questioning by panels;

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Imposition of controls on cross-examination;

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Decision provision orally in order to mentor –seizing the “therapeutic opportunity” to facilitate insight and motivation to good practice;

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Writing of decisions with multiple audiences in mind;

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Sensitivity about privacy and personal issues.

2. Mental Health Review Tribunal Hearings

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Consciousness of power disparities;

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Awareness of vulnerabilities and stigmas;

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Knowledge of mental illness;

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Treating patients with respect & dignity;

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Flexibility about process;

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Explaining concepts as necessary;

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Making clinicians’ assertions accountable;

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Emphasising positive features of patient’s recovery:

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Empowering, encouraging & giving voice;

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Avoiding condescension;

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Distinguishing between past and present;

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Avoiding paternalism