Civil Commitment: A Therapeutic Jurisprudence Model

Few topics in mental health are more controversial than involuntary civil commitment. Forty years ago, most state commitment laws relied on a medical model. However, litigation arguing that such statutes were too sweeping in their reach resulted in the eventual adoption of more legalistic commitment laws. As community care lagged behind need, civil commitment statutes were decried as overly legalistic, and states again began adopting more medically oriented commitment criteria, extending the reach of commitment laws to outpatient settings.

As a result, the debate regarding civil commitment has reached a conceptual and intellectual impasse, with proponents of more medical or more legalistic approaches rehearsing arguments that vary little from those first raised 40 years ago. Bruce Winick, in his excellent new book Civil Commitment , offers a potential path away from this impasse.

Winick, a professor at the University of Miami's School of Law, is one of the nation's leading mental health law scholars. With David Wexler, he is the cofounder of "therapeutic jurisprudence," which Winick defines as "an interdisciplinary approach to legal scholarship and law reform that sees the law itself as a therapeutic agent. … Therapeutic jurisprudence calls for the study of [the law's impact] with the tools of the behavioral sciences so that we can better understand law and how it applies and can reshape it to minimize its anti-therapeutic effects and maximize its therapeutic potential."

Therapeutic jurisprudence has gained increasing influence over the last decade. For example, it is the philosophic foundation for the hundreds of drug courts and mental health courts that have emerged since the early 1990s. In this book, Winick uses therapeutic jurisprudence in a generally successful effort to determine which aspects of civil commitment law and practice have therapeutic or antitherapeutic consequences. He does this in 11 concise but thorough chapters by applying social sciences research on coercion, capacity, and choice to each element of civil commitment law. The result is a balanced, nonideological reframing of the topic. For example, Winick is respectful of individual liberty, arguing that research shows that treatment adherence is most likely when the individual's participation is voluntary and informed. He also asserts that the legal process required before a person is committed should be honored, because if a person is given a voice, "patients will respond more effectively to hospitalization."

At the same time, he proposes relaxing legal standards when their rigid application might impede access to care. For example, he believes that individuals who voluntarily seek care should be considered competent in the absence of very compelling evidence to the contrary. In his view, to apply a competency standard too rigidly could result in denial of care or in civil commitment rather than voluntary admission to care, with antitherapeutic consequences.

Anyone involved with civil commitment will find this book useful and thought provoking, particularly given continuing controversy regarding civil commitment and the use of coercion. It is becoming increasingly apparent that individuals in community care are subject to myriad types of leverage, including coercion, that are all designed to gain treatment adherence ( 1 ). Winick insists that one of the most important questions we can ask about legal rules and legal processes is whether they have a therapeutic or antitherapeutic impact. In doing so, he illustrates how the debate about civil commitment and coercion might be reframed in a way that permits proponents of both the legalistic and the medical models of commitment to begin talking to each other rather than past each other.