The moral issues concerning compulsory psychiatric care has been a topic
of debate for decades. Over time, legislatures all over the world have
struggled to strike a balance between values both vital and conflicting: on the
one hade the integrity and autonomy of people with mental illness and on the
other hand, society’s obligation to help those in need in combination with its
interest to protect itself from persons perceived to be dangerous. Most of the
academics engaged in this discussion have a background in sociology, law,
philosophy or psychiatry. As a scholar of political science, Judith Lynn Failer
provides a fresh perspective by expanding issues about patient rights into the
broader context of liberal rights in general. In an original approach, she
investigates legal discourse about civil commitment to backtrack underlying assumptions
about “regular”, “full” rights associated with citizenship. The aim then
becomes to sort out who qualifies for rights.

Drawing on liberal theory of rights, Failer starts out establishing that
any restriction to a person’s rights must be motivated by an inability to fulfill
the duties that are tied to the right at stake. For example, it would be unjust
to deprive a person of her right to vote only because she is economically
deficient, even though it would be reasonable to deprive the same person of her
right to enter into a contract. Going through mental health legislation as well
as legal cases in the U.S. history, Failer finds a strong pattern of continuity
in legal reasoning. Although commitment standards have been constructed in
various manners, she finds six “legal images” that are continuously invoked
regardless of time and place: four of those images relate to the state’s duty
to enforce coercion to help people in need (parens patrie power), while
two images highlight the necessity to protect society from dangerous persons
(police power):

Failer then evaluates if these legal images can justify the
comprehensive infringement of rights that civil commitment constitutes. Here,
she rules out four of these images as insufficient grounds for instigating
detention. This should be seen as a major critique of current practice – some
mentally ill citizens are unfairly incarcerated. The only legal images that
could justify civil commitment are “the nonsurvivor” and “the imminent danger”.
In the first case, she argues that if a person cannot survive in freedom, then
the freedom that his rights seek to protect becomes meaningless. In the second
case, preventive detention is justified on the grounds that a person – who has
recently engaged in violent acts – has a responsibility to avoid situations
where she might cause further harm. This is a productive attempt to avoid some
of the ethical pitfalls in connection with the issue of preventive detention,
e.g. the notorious difficulty to make reliable predictions of dangerousness.
However, it seems that there remains a problem regarding how to draw the line
between “the danger waiting to happen” and “the imminent danger”. Moreover, it
is not perfectly clear why these categories should be treated differently: one
could argue that persons who have manifested angry outbursts, violent ideations
or carry diagnoses that correlate with violent behavior (“dangers waiting to
happen” in Failer’s terms), are under the same duty to avoid situations where
they might harm others.

As indicated in the title of the book, part of the stated purpose is to
frame the discussion about rights theory in the particular context of the
homeless mentally ill. Accordingly, the backbone of the empirical analysis of
modern legal practice is a minute and illuminating discussion of a single
example: a high profile case concerning the commitment of Joyce Brown, a woman
who lived on the streets of New York. Although the analytical commitment to a
single case is quite rewarding, it seems to me that the particular situation of
the homeless is of minor relevance when Failer completes her theoretical
arguments. There is no discussion as to why this particular case was chosen,
and how the analytical devotion to it may affect her conclusions. To put this
critique positively, it appears that Failer’s conclusions deserve to be generalized
further than to the homeless mentally ill.

In general, one would like to see more description of sampling and
reflection over methodological choices. The text leaves little room for the
reader to make a critical evaluation of methodology. Even if it is not
explicitly stated, the book appears to be oriented towards a U.S. audience. In
my opinion, Failer’s analysis would have profited from expanding the scope: her
arguments are applicable to more than one nation. At the same time, the task of
developing rights theory would surely gain if international comparisons had
been made – if not from using primary data from other countries, at least by
drawing on knowledge from the international literature. For example, it appears
highly probable that the six legal images identified by Failer should prove
meaningful in an international context as well. From this reviewer’s domestic
Swedish viewpoint, it is fascinating to meet the continuous referral to human
rights in concrete legal arguments. In Swedish court hearings concerning
compulsory psychiatric care, the notion of rights is referred to only as a rare
exception. Hence, it might be fruitful to pay more attention to the particular
cultural context that accounts for the devotion to the notion of rights in
legal rhetorics in the United States.

As an overall impression, Failer manages to make a well-structured,
original and persuasive contribution to an important political/moral
discussion. The critical implications of her work invites further exploration
and development of the arguments. For example: if detention is too strong an
infringement of rights for a suffering person, are alternative coercive
measures conceivable? And is it possible to separate matters of individual
rights from the social contexts in which the suffering persons may or may not
acquire the sufficient support to manage their lives? Coercive measures are
frequently thought of as a last resort – but perhaps a focus on paternal rights
securing that the mentally ill acquire more resourceful support from society
would help avoid the very situation where detention is called for?

© 2003 Stefan Sjöström

Stefan
Sjöström, PhD, is Research Fellow at the Department of Social Work, Umeå
University, Sweden. His research focuses on communication and coercive
interventions in the Swedish welfare system.  He is author of the book Party or patient? Discursive practices
relating to coercion in psychiatric and legal settings (Boréa, 1997).

Categories: Ethics