Outpatient commitment: A therapeutic jurisprudence analysis

The legal oversight of community treatment orders: A qualitative analysis of tribunal decision-making

Community treatment orders (CTOs) have been in place in various jurisdictions for over three decades, and yet are still a controversial aspect of mental health provision. One of the ethical concerns CTOs may engender is how difficult it can be to secure discharge from them, which in some jurisdictions can result in service users being subject to compulsion in the community indefinitely. Given the questions that can therefore be raised about the discharge process, it is important to understand the role of the mental health tribunal as a key safeguard in the management of CTOs. However, whilst a substantial body of literature exists on CTOs and on various aspects of tribunal practice in inpatient settings respectively, relatively little has been written about the role of the tribunal in the oversight of CTO discharge decisions. This article presents the results of an eight month ethnographic investigation into CTO use in England, focusing on the factors which contribute to tribunal decisions. A total of 62 participants were involved in the study, including 18 service users on CTOs, 36 mental health practitioners and 8 tribunal chairs. A combination of interviews, observations and documentary analysis are drawn upon to illustrate tribunal decision-making practice on CTOs. The key themes reported on are: the mediating influence of participant presentation and interaction in tribunals; tribunal framing and interpretation of insight and risk; and the importance of timing to tribunals, both in terms of the perceived stability of a service user's social circumstances, and the length of the CTO. The findings highlight the cumulative and interrelated effect of such factors on tribunal decision-making, and point to how tribunal judgements are heavily weighted towards upholding CTOs, with the implications that holds for individual rights.

Commitment without confinement. Outpatient compulsory care for substance abuse, and severe mental disorder in Sweden

In Sweden, a person with severe substance abuse or a severe mental disorder may be committed to compulsory care according to two different legislations. Both acts include an option of providing involuntary care outside the premises of an institution - care in other forms (COF) and compulsory community care (CCC), respectively. As co-occurring disorders are commonplace many individuals will be subject to both types of compulsory care. The structures of both legislations and their provisions for compulsory care in the community are therefore scrutinized and compared. Based on a distinction between "least restrictive" or "preventative" schemes the article compares COF and CCC in order to determine whether they serve different purposes. The analysis shows that COF and CCC both share the same avowed aims of reducing time spent in confinement and facilitating transition to voluntary care and the community. But they also serve different purposes, something which is reflected in disparate scopes, eligibility criteria, rules, and practices. Overall, COF was found to be a more "least restrictive" and CCC a more "preventative" scheme. The distinction is associated with COF being an established part of legislation on compulsory care for substance abuse with a universal scope and CCC being a recent addition to compulsory psychiatric care legislation with a selective character.

The compliant court--procedural fairness and social control in compulsory community care

Compulsory community care (CCC) was introduced in Sweden in 2008. This article investigates all written court decisions regarding CCC over a 6 month period in 2009 (N=541). The purpose is to examine how the legal rights of patients are protected and what forms of social control patients are subjected to. 51% of CCC patients are women and 84% are being treated for a psychosis-related disorder. In the court decisions, only 9% of patients are described as dangerous to themselves, while 18% are regarded a danger to others. The most common special provisions that patients are subjected to are medication (79%) and a requirement that they must maintain contact with either community mental health services (51%) or social services (27%). In the decisions, both the courts and court-appointed psychiatrists agree with treating psychiatrists in 99% of cases. Decisions lack transparency and clarity, and it is often impossible to understand the conclusions of the courts. There is considerable variation between regional courts as regards the provisions to which patients are subjected and the delegation of decision-making to psychiatrists. This means that decisions fail to demonstrate clarity, transparency, consistency and impartiality, and thus fail to meet established standards of procedural fairness. Surveillance techniques of social control are more common than techniques based on therapy or sanctions. Because of the unique role of medication, social control is primarily imposed on a physical dimension, as opposed to temporal and spatial forms. The article concludes that patients are at risk of being subjected to new forms of social control of an unclear nature without proper legal protection.

Psychosocial functioning of drug treatment court clients: a study of the prosecutor's files in Ghent, Belgium

Purpose

– Problem solving courts are a result of the therapeutic jurisprudence movement. Drug treatment courts (DTCs), for instance, aim to divert substance using offenders away from the criminal justice system (CJS) to (drug) treatment services. DTCs are associated with reduced criminal offending and substance use. Psychosocial outcomes of DTCs, such as employment, health and family relations, received only little attention. The paper aims to discuss these issues.

Design/methodology/approach

– This paper focuses on the outcomes regarding substance use and psychosocial variables of a Belgian DTC situated in the Ghent region, which were investigated by a naturalistic evaluation study with a pre- post-design using judicial files.

Findings

– The results show that Ghent DTC clients were diverted to drug treatment and financial counselling services. Next the Ghent DTC produced beneficial outcomes regarding employment. Contrary to criminal offending (De Keulenaer and Thomaes, 2013), substance use was not significantly reduced in the Ghent DTC sample. Yet more compliance with opioid maintenance treatment was observed. Information on more client centred outcomes such as health and social relations was lacking, precluding a full outcome measurement of psychosocial variables.

Research limitations/implications

– Future DTC studies should address more client centreed outcomes by gathering information through DTC clients and treatment services instead of solely relying on judicial data sources. In addition, DTCs should develop a clear and uniform registration system regarding these outcomes.

Originality/value

– Since the therapeutic jurisprudence movement continues to expand, discussion regarding the roles and tasks of the CJS as well as treatment and counselling services is vital. Each actor should maintain its own role and task, regarding monitoring and substantive work, to insure a “problem solving approach” that is in line with the recovery philosophy.

The legal aspects of conditional release in the criminal and civil court system

This article considers the legal implications of conditional release in both the civil and criminal parts of the law. In the criminal context, conditional release takes the form of probation and parole. It also involves persons who are found to be incompetent to stand trial or not guilty by reason of insanity. In the civil context, conditional release exists for persons with mental illness and sex offenders who face mandatory outpatient treatment. The public policy behind conditional release is to allow certain persons the least restrictive alternative with proper oversight that will prevent the person from recidivating or being re-hospitalized. Conditional release is also used as a cost-saving mechanism in response to the overwhelming costs of incarceration and hospitalization. This article explores the issues of professional liability, third party liability, and individual rights in relation to conditional release. This article also addresses public policy concerns with conditional release and examines conditional release from a therapeutic jurisprudence perspective.

Procedural justice in mental health courts: judicial practices, participant perceptions, and outcomes related to mental health recovery

Research on mental health courts (MHCs) to date has been disproportionately focused on the study of recidivism and reincarceration over the potential of these problem solving courts to facilitate the recovery process and affect the slope of recovery. This study attempts to shift the focal point of interest from well-established criminal justice outcomes to the experiences and perceptions of MHC participants. The authors hypothesize that the actions of MHC judges that are consistent with procedural justice theory will engender high perceptions of procedural justice among this sample of divertees with SMI. Defendant perceptions of procedural justice in 4 NYC-area MHCs were also compared to those of uninvolved observers. Results suggest that defendant perceptions are distinct from observer perceptions, which tended to be more sensitive to the differences in judges between the four courts. Overall, participants' perceptions of procedural justice were moderate and increased between baseline and 4-month follow-up. Procedural justice was negatively correlated with symptoms at baseline and was positively correlated with participant's attitudes toward their own recovery. Between baseline and 4-month follow-up, participants in our sample tended to increase in perceptions of procedural justice; interestingly, the increase in procedural justice was associated with a decrease in symptoms but not to an increase in attitudes toward the recovery. Implications and future directions are discussed.

Coercion and procedural justice in psychiatric care: state of the science and implications for nursing

Coercive treatment regimens have increased in variety and intensity over the past decade and include such options as outpatient commitment (OPC) and mental health courts. The intimate involvement of nurses in coerced treatment situations in both inpatient and outpatient settings necessitates a closer examination of its effects. OPC presumably offers greater flexibility and freedom for consumers than lengthy inpatient stays but also extends the state's control over their lives beyond the institution. Although OPC has been shown to decrease rates of rehospitalization and violence, it also is associated with increased levels of perceived coercion. The relationship of the perception of coercion to treatment outcomes is complex and not clearly understood. The goal of OPC is treatment adherence and ultimately increased quality of life, but research has produced conflicting results in those areas. Numerous episodes of OPC may have a cumulative effect on the perception of coercion and contribute to treatment avoidance. However, there is evidence that the perception of coercion can be mitigated by procedural justice that is demonstrated by fairness, patient inclusion in the process, and benevolence on the part of authority figures. Implications for nursing practice and research concerning coercion, procedural justice, and OPC are discussed.

Problem-solving courts in Canada: A review and a call for empirically-based evaluation methods

While problem-solving courts may soon become permanent fixtures within the criminal justice system in Canada, little is actually known of their effectiveness in dealing with crime. The current paper will review the fundamental basis for these court models, with special attention on their arrival in Canada. The focus will be on three particular forms of problem-solving courts - mental health court, drug treatment court and community court - due in large part to the availability of literature. Existing evaluations, both process and outcome, of both the Canadian and American models will be discussed and their inadequacies addressed. It is hoped that this article will serve to dispel myths surrounding the ethical application of random assignment when evaluating these court systems. Through the application of experimental methodology, evaluations may finally be able to address the issue of whether these court systems are effective alternatives to the traditional criminal justice stream.

Involuntary outpatient treatment as "desintitutionalized coercion": the net-widening concerns

In American jurisprudence, two justifications have traditionally been put forth to support the government's social control of persons with mental illness: police power and parens patriae. As public mental hospitals became less available as loci in which to exercise these functions, governments sought alternative means to achieve the same ends. One prominent but quite controversial means is involuntary outpatient treatment (IOT). While the concerns about IOT have been myriad, one often alluded to but never documented is that of "net-widening." That is, once IOT became available, it would be applied to an ever greater number of individuals, progressively expanding the margins of the designated population to whom it is applied, despite the formal standard for its application remaining constant. We tested the net-widening belief in a naturalistic experiment in Massachusetts. We found that net-widening did not occur, despite an environment strongly conducive to that expansion. At this time, whatever the arguments against IOT might be, net-widening should not be one of them.