Advocacy and Participation in Mental Health Cases: Realisable Rights or Pipe-Dreams?
This article discusses Australian experiences of mental health clients, legal advocates and other stakeholders in the mental health review system. We review forms of advocacy, the reactions to these, and the contribution lawyers make to protecting rights within this field. Based on our fieldwork we suggest a mixed model of advocacy, one that includes legal representation that goes beyond simple 'following instructions', but also self-advocacy, systemic advocacy and mobilisation of support networks. We suggest that Jan Brakel was right to recently call for a re-conceptualisation of mental health advocacy, and indicate ways this might be achieved.
Therapeutic Jurisprudence and the Civil Commitment Hearing
Because civil commitment results in a massive deprivation of liberty, a hearing is required as a matter of due process. Due process contemplates a fairly elaborate adversarial judicial hearing. In practice, however, the civil commitment hearing often is an empty ritual in which the lawyer relaxes her adversarial role and the judge reaches a foregone conclusion after a brief proceeding lasting only minutes. This article uses the approach of therapeutic jurisprudence to criticize this practice and to suggest ways in which the civil commitment hearing can be reformed so as to maximize its therapeutic potential. Judges, lawyers, and testifying clinicians can play their roles differently to provide the individual with a greater sense of voice, validation, dignity, and respect. This will produce greater satisfaction by the individual and increased compliance with the court's ultimate decision, and should enhance the efficacy of any hospitalization that is ordered.
Special section on involuntary outpatient commitment: introduction.
PSYCHIATRIC SERVICES © March 2001 Vol. 52 No. 3 323 In almost every community in the United States, there is a troubling population of severely mentally ill individuals who are ineffectively served by resource-poor community mental health programs. These individuals fre quently relapse and are rehospitalized (1–3), in many cases because their treatment is complicated by nonadherence. They frequently, and often unsuccessfully, interact with many other services and agencies—substance abuse treatment programs, civil and criminal courts, police, jails and prisons, emergency medical facilities, social welfare agencies, and public housing authorities (4–7). Some, while visibly ill, never seek or are engaged in any form of treatment. Public concern about the quality of community-based treatment is unfortunately focused on rare but highly publicized violent acts committed by these hard-to-serve individuals (8). The pressing need to improve community treatment outcomes has led policy makers and clinicians to focus on legal mechanisms to improve treatment adherence, including court-ordered treatment in the community, often called involuntary outpatient commitment (9). Many states have embraced outpatient commitment as a remedy for the most visible failures of community treatment. Outpatient commitment is permitted in virtually all states (10–13); however, its use varies considerably among and within states for a variety of reasons, including poor specification and understanding of commitment criteria, weak mechanisms of enforcement and liability, and other concerns of providers (4,10,14–16). Use of outpatient commitment may also be limited because many consumers, mental health law advocates, and clinicians oppose any form of coercion in treatment, arguing that it infringes on civil liberties, extends social control into the community, and alienates mentally ill persons from seeking treatment (17–20). Proposed as a less restrictive alternative to involuntary inpatient commitment, outpatient commitment has amassed a host of supporters and critics, despite a relative paucity of empirical evidence about its risks or benefits. Proponents of outpatient commitment assert that it works not only by exerting pressure on individuals with mental illness and their families, which motivates adherence to treatment under threat of coercion and greater confinement, but also by putting pressure on the mental health service system and mobilizing supportive services, outreach, and clinical surveillance. This mobilization in turn improves timely access to scarce treatment resources for persons most in need. In the view of those who advocate for it, outpatient commitment provides greater autonomy than would otherwise be expected for mentally ill individuals at risk of relapse and recidivism. Furthermore, if outpatient commitment effectively reduces hospital recidivism, it should conserve resources for reinvestment to extend and improve community-based services (9,10). Nonetheless, as the papers in this special section illustrate, the intensity of the debate about outpatient commitment is considerable. A recent report from the subcommittee on mandatory outpatient treatment of the American Psychiatric Association’s council on psychiatry and law concluded that outpatient commitment could be a “useful tool in an overall program of intensive outpatient services aiming to improve compliance, reduce rehospitalization rates, and decrease violent behavior among a subset of the severely and chronically mentally ill” (21). The subcommittee recommended that outpatient commitment orders be available for preventive use only for patients with a well-documented history of relapse, deterioration, or dangerousness. It also recommended that the orders be available for patients who, as a result of their mental illness, are unlikely to comply with needed treatment. According to the subcommittee, such orders should be used only when adequate resources are available to provide effective treatment, and they should include statutory authority for initial commitment periods of 180 days with extensions as ordered. The subcommittee recommended that patients on outpatient commitment receive a thorough medical examination. It pointed out that clinicians providing the mandated treatment should be involved in the decision-making process to ensure that the proposed treatment is available. Patients’ treatment preferences should be assessed, and patients should be informed of expectations about compliance. Finally, the subcommittee recommended that procedures to be followed in the event of a patient’s noncompliance should be specified. The subcommittee’s resource document does not make a recommendaSpecial Section on Involuntary Outpatient Commitment: Introduction