Canons four and five of the Florida Rules of Judicial Conduct encourage Judges to comment on matters impacting the administration of justice. My comments are directed as to current legislation being proposed, "Helping Families in Mental Health Crisis" (H.R. 2646) pertaining to mental health reform in the U.S. from a Therapeutic Jurisprudence (TJ) perspective. I am applying a TJ lens, as it is important to consider what the outcome of the proposed legislation will have on those who are directly subject to the provisions being proposed. This includes mandatory outpatient treatment, elimination of certain Protection and Advocacy protections, access to specialized trained disability rights attorneys, and other related provisions.
More precisely, TJ was pioneered by two mental health law professors, the late Professor Bruce J. Winick, University of Miami School of Law and Professor David B. Wexler, College of Law, University of Arizona. TJ began in the late 1980's as an interdisciplinary scholarly approach to the field of mental health law. The law professors realized that various aspects of mental health law produced anti-therapeutic or negative consequences for the people, the law was designed to help.
TJ is the legal philosophy and science adopted by America's problem solving courts. For instance, TJ is the law reform model for drug courts, mental health courts, behavioral health courts and juvenile treatment courts. The application of TJ therefore is relevant, not simply because it was initially designed to improve mental health outcomes, but also for its fundamental principles and the problems TJ attempts to solve. TJ essentially asks the question: can courts, and in this case rule-makers or policy-makers become agents of healing? When the sphere is mental health, I perceive the consensus would agree, the objectives are to seek goals of early intervention, psychiatric stability, and accountable, safe and evidenced based systems of care, choices, recovery, and an end to social stigma and discrimination.
It is no coincidence that the first drug court was established in the late 1980's. TJ offered judges an alternative as how to respond to those arrested for substance use disorders and provided a new form of court process, one that was science based and offered treatment over punishment.
In our mental health court, TJ provided a procedural justice framework to respond to the criminalization of people with mental illness, through specialized training and community collaboration. The court based upon providing voice, validation and voluntariness to coordinate the use of scarce community mental health resources.
The humanistic qualities of TJ are the core of this philosophy. It has transformed the landscape of American Jurisprudence. TJ is applied across all law disciplines, including commercial litigation, environmental law, and family law. Essentially, TJ stands for the proposition that no matter the social forces which precipitate the establishment of law, if these procedures are not perceived as fair, it impacts behavior of the court participant. Therefore, TJ is about strengthening the rule of law, not weakening it to bend to certain social forces.
For example, as a member of the President's New Freedom Commission on Mental Health, the commission understood its responsibilities under the Executive Order. This includes the urgency of the needs for reform for individuals with behavioral health disorders and their families. In its interim report, the commission chair delivered a sobering message to the President and the nation, that America's mental health care system is in shambles, and no system reform, other than total transformation would achieve the objectives and vision of the President's mandate. Specifically, the mission for social inclusion and that American's with mental health disorders are entitled to live, work, have the opportunity for education and to be actively engaged in the community.
Through the commission's work, recovery became the national standard, together with identifying a wide range of best practices, to support its six primary transformational categories. The overarching findings of the commission entailed key areas of barriers to overcome, including financial structures. The main focus remained on access to care and evidence-based integrated treatment and services in the community. The leveraging of peer life experiences, through legal advocacy and engagement, peer services and recovery training, is a key facet of the commission's work.
In essence, the vision of TJ provides a theoretical logic model; if justice, hope and recovery are not prioritized, any reform proposals will not be perceived as fair and anti-therapeutic. TJ in theory and practice understands the marginalization and historic civil rights struggle related to mental illness. TJ works to mitigate the historical trauma, and to restore personhood, deliver dignity, hope and the vision of recovery.
America cannot go back to the social segregation of asylums. Nor can and our nation support the criminalization of persons with mental illness. This is the legal foundation of The Americans with Disabilities Act and the related Olmstead decision.