Potential Pitfalls of Applying a Therapeutic Logic in Mental Health Law Proceedings

Abstract

This paper presents an in-depth interview study with individuals who are at the same time patients in forensic psychiatric services, and parties in recurring mental health law proceedings (MHLPs). While previous studies have highlighted issues with the rule of law that can arise when MHLPs prioritize concern for the mental health of the patient over the stringent test of the legal rights of the party, this paper seeks to bring to the fore the potential pitfalls it presents in terms of distress to patients. Drawing on qualitative interview analyses, we untangle the apparent paradox of MHLPs being described in the literature as both guided by concern for patients’/parties’ mental well-being and as distressing. We tentatively raise the question of whether MHLPs might risk being distressing to the patient/party, not despite of but in part because of court actors’ efforts to the contrary.

Keywords:

• mental health review tribunal
• qualitative research
• forensic psychiatry

Introduction

Mental health law proceedings (MHLPs) vary widely across jurisdictions with respect to the professions and expertise represented, the mandate, and the body governing their work (Thom & Nakarada-Kordic, 2014). Consistent across many jurisdictions are, however, a number of features. MHLPs act as independent bodies with the task of reviewing and mandating detention and coercive interventions regarding persons with serious mental illness, either as an administrative measure or as a criminal sanction.¹ As such, they serve to safeguard the rights of the individual, but also to ensure protection of the general public (Carney & Tait, 2011; Diesfeld & McKenna, 2005; Livingston, Crocker, Nicholls, & Seto, 2016). In Sweden, MHLPs are part of the administrative court system and are governed by the Compulsory Psychiatric Care Act (Swedish Code of Statutes 1991:1128) and the Forensic Mental Care Act (Swedish Code of Statutes 1991:1129). Safeguards to ensure the legal security of the patient/party² are mandated by this legislation in that it stipulates that the trial should take the form of an oral hearing before a judge and lay judges, that the patient/party should have legal representation, and that an independent medical expert should be appointed (Compulsory Psychiatric Care Act, Swedish Code of Statutes 1991:1128; Forensic Mental Care Act, Swedish Code of Statutes 1991:1129). Beyond these formal structures, the professional actors have considerable leeway in shaping their roles and tasks (Kindström Dahlin, Radovic, & Eriksson, 2017) and the MHLP process in Sweden is to a certain degree amenable to the individual discretion of professional actors.

Difficulties on the part of MHLPs to safeguard legal and human rights of patients/parties have been described in various jurisdictions (Carney, 2010; Ferris, 2008; Peay, 1981; Peay, 1986; Shah, 2010). Previous research in the Swedish context has indicated that the MHLPs struggle to uphold the basic legal principles of objectivity, legality, and proportionality that ought to underpin adjudication (Kindström Dahlin, Radovic, & Eriksson, 2017). Problems in the Swedish context are purported to derive from an understanding of the patient as a frail yet volatile subject, resulting in a predominantly medical focus and discourse that aims to reduce stress and protect the mental health of the patient/party (Eriksson, Radovic, & Kindström Dahlin, 2017; Eriksson, Radovic, & Kindström Dahlin, 2020; Hollander, Jacobsson, & Sjöström, 2007; Sjöström, Jacobsson, & Hollander, 2017). Jacobsson (2006) discusses a therapeutic logic³ underpinning MHLPs, whereby professionals prioritize mental health considerations, including protecting the patient/party from the stress of undergoing trial and ensuring psychiatric treatment, over considerations of other rights and legal principles. Consistent with this formulation of a therapeutic logic, MHLPs in different jurisdictions display a prioritization of medical priorities over legal (Carney, 2010; Perkins, 2003), prominence of medical expertise and knowledge (Shah, 2010), therapeutically motivated paternalism (Diesfeld & McKenna, 2005; Peay, 1986), and ambitions to make the patient/party feel heard (Tyler, 1992) as well as to enhance cooperation and treatment alliance between clinicians and patients (Diesfeld & McKenna, 2005).

Another recurring theme in MHLP research is the experience of stress and powerlessness on the part of the patient/party (Carney, 2010; Carney & Tait, 2011; Ferencz & McGuire, 2000; Livingston, Crocker, Nicholls, & Seto, 2016; Thom & Nakarada-Kordic, 2014). The discrepancy between research pointing to a therapeutic logic guiding MHPLs and research pointing to MHLPs being experienced as stressful and disempowering raises the question of whether a therapeutic logic really is protective against stress, or whether it may – paradoxically – contribute to experiences of stress and powerlessness. Given the purported negative impact of experienced stress and stressful events on serious mental illness (Beards et al., 2013; Horesh & Iancu, 2010; Kendler, Karkowski, & Prescott, 1999; Monroe & Simons, 1991; Myin-Germeys, Delespaul, & van Os, 2005; Pruessner, Cullen, Aas, & Walker, 2017; Reininghaus, et al., 2016) this appears a pertinent question, especially as MHLPs are tasked with assessing the mental status of the patient/party.

Aims

This study is part of a larger project where the overall aim has been to investigate the roles, actions, and procedures in MHLPs, as understood through different actors’ accounts of their experiences of the court hearings. The specific aim of this paper is to use data from interviews with patients/parties to untangle the apparent paradox found in the literature on MHLPs, in which descriptions of MHLPs as guided by a therapeutic logic and descriptions of them as distressing to patients/parties are present. We describe in depth one of the overarching themes that we identified in our analysis – namely MHLPs as a distressing and disempowering process – and relate those patient/party accounts to the literature that depicts mental health law proceedings as guided by a therapeutic logic centered on providing a benign experience for the patient/party. In doing so, we seek to make a theoretical contribution to the wider transdisciplinary discussion regarding the precarious balance between judicial and medical concerns in forensic psychiatry, by bringing to the fore the complexities of applying therapeutic or medical ideals in a legal context.

Methods and analysis

Settings and participants

The study is part of the interdisciplinary project Expertise, Evidence and Ethics in Decisions on Compulsory care – an Investigation of the Epistemic Borderland between Medicine and Law,⁴ which encompasses philosophy, theory of science, psychology, and legal studies. The larger project includes in-depth interviews with representatives of all functions in Swedish MHLPs. The overall point of departure in the project is that analyses are developed inductively and by drawing on a variety of data sources; chiefly interviews with different sets of actors in court, but also texts such as government white papers and official reports, as well as other documents that serve to guide and shape MHLPs.

For the study outlined here, informants were recruited from a forensic psychiatric clinic in Sweden. Conducting research both on and in an involuntary care setting presents some difficulties with regard to data sampling. In this instance, prospective informants were all patients within forensic psychiatric care with first-hand knowledge of MHLPs. Recruitment was done by way of notices posted on message boards at clinics, oral presentations directed at patients at treatment units, as well as oral presentations and written information provided to clinicians, asking them to forward the information to patients. The criteria for inclusion were for the individual to have experienced at least one MHLP during forensic psychiatric care and to be sufficiently proficient in Swedish to be able to participate in the interview. All volunteers met these criteria. A purposive sample of seventeen individuals was recruited, of whom four withdrew before being interviewed leaving thirteen interviewees. As a consequence of the overall study design, which is symmetrical in its analytical approach (see Theoretical framework, below), we regard this as a form of lay expert sampling, in line with the study’s exploratory approach and view of informants as individuals with a high degree of knowledge about the study area. Following from this perspective, demographic representativeness was not sought and therefore specific demographic data for participants was not registered. Incidental information from interviews indicated that the participants included persons of different ages, genders, countries of origin, psychiatric diagnoses, criminal histories, lengths of stay in forensic psychiatric care, and current level of institutional control.

Data collection

Interviews were carried out at the unit of care among those under inpatient care, and at a location chosen by the participant among those under outpatient care. The interviews were framed as an open inquiry regarding interviewees’ understanding of and experiences from mental health law proceedings. The initial questions in each interview were variations of “could you tell me about the last court hearing you attended?” This was intended to prompt a free recollection of events and experiences of one hearing that could serve as a starting point and reference, and to produce a fuller description of such hearings than would be expected from premature generalizations. Most questions beyond this initial prompt intended to develop the account or reasoning of the participant. A few subject areas were included in a loosely held checklist to ensure they were covered at some point during the interview – the roles of the participating actors in court, procedural aspects, the aims and focal points of the hearings, relational experiences, and agency.

Analysis

All interviews were audio-recorded, transcribed verbatim, and imported into nVivo 11, software developed for qualitative research. Analyses were carried out using a constant comparisons method: an open, iterative process whereby the raw material in the form of transcribed interviews was coded and the codes thematized (Strauss & Corbin, 1990). The transcripts were read and reread, codes were derived from the data and preliminary themes continuously checked against the material and subsequent codes and revised. Memos were written to summarize and reflect upon cases and themes. After an initial exploratory analysis, codes, text-segments, and memos relating to the theme MHLPs as a distressing and disempowering process were reanalyzed separately and related to literature detailing therapeutic considerations in MHLPs.

While recognizing the unavoidable limitations of the sample, data saturation (Saunders et al. 2018) was deemed to be attained with a reasonable degree of certainty when the final three interviews did not change the thematic structure or significantly alter the analysis. Analyses were primarily performed by the first author. Two of the interviews were coded in full by the first and last author separately and analytic interpretations were discussed and adjusted. The final thematic structure was developed in collaboration between the first and last authors.

Ethics approval

The study protocol was reviewed and approved by the regional ethical review board in Gothenburg, Sweden (Dnr: 247-15). Informants were provided with oral and written information about the study and written consent was collected.

Theoretical framework

In this paper, we assume the involvement of discursive and social practices in the shaping of MHLPs, emanating from legislators’ and policy makers’ influence on the formulation and creation of the core tasks of MHLPs. Based on the individual discretion granted the professional actors in court, we also take there to be an ongoing construction of the proceedings through the actions of the participants.

The overarching project employs a symmetrical perspective on informants’ accounts, which does not privilege the epistemological status of professional actors over that of – in this instance – patients/parties, and which assumes that local knowledge and informal reflection over social relationships holds similar value to that of formally credentialed expert testimony (Bloor, 1976; Bauer & Gaskell, 2000, Wynne 1992). Pursuant to this, the role of the patient/party-informant is one of an individual with knowledge and expertise regarding the mental health courts and not one with more subjectivity of perspective than professional actors (DeVault & McCoy, 2006). This analytic framework was stressed in the introductory information to the informants, in the formulation of questions, and in the analysis of the material.

Results

In the following sections, 6 analytical themes are presented. Together they comprise the overarching theme of MHLPs as a distressing and disempowering process. Taken together, these themes illustrate a process whereby the patient is kept from influence through a manifest hierarchy based on authority more than on evidence or argumentation; through the objectification and devaluation of the patient; through the lack of potent professional support; and through the need to abstain from challenging the authorities in order not to disrupt their benevolence. The six themes are structured linearly, in accordance with the process described above.

Some experiences of positive or neutral valence are included in the analysis described below, situations where the individual patient/party was engaged in dialogue or was able to influence the proceedings or the other actors. Some informants used such instances, noting them as exceptions, to highlight the picture described below by way of contrast. Others described successful adaptation to the MHLP process and positive experiences resulting from such adaptation. All but one of the interviews contributed to the overarching theme MHLPs as a distressing and disempowering process.

Theme 1: A manifest hierarchy with the patient at the bottom

This theme brings together descriptions of the structures, forms, and rules of the court hearings, as well as the practices of the professional actors in court, that comprise the field of play. This field sets the boundaries for action and interaction by and between the actors in the courtroom. On the part of the patient/party, this field is described as highly restrictive and one that positions the patient in the periphery or at the bottom. One aspect of the limiting structure is described by Informant 7, in comparison to a uniquely positive, recent experience. In this excerpt, the informant describes how the process by which the patients/parties share their perspective with the respective professional actors, who then gives a rendition of that perspective in court, serves to limit her role in the courtroom. Her role is to comment, at the end of the proceedings, on the inserts made by the other actors, as opposed to being one that contributes in an ongoing discussion:

Informant 7: No, but it’s that they only talk to the public defender, the court appointed psychiatrist and the doctor. They don’t even look at me. I mean, they just look at them and ask them things and when we were about to finish they said: “Is there anything you want to say?” And then it becomes like automatically you feel wei… it feels like an awkward situation [italics were in English in original quote], like, you… you feel that: “No, I don’t even dare, like.” I mean, you feel so lost, I mean that they don’t see you before that.⁵

Another informant notes that being the last to speak puts you in the position of arguing against previous statements by actors hierarchically above them.

The experience of not being an active agent in the court hearings or in the process surrounding them is highlighted by an ever present separation between the patient and the professionals. This disconnection contributes to the difficulties in taking an active role as a participant in the courtroom. Informants talk of not being included in the interactions in court and being disregarded as a person that could have anything useful to contribute to the ongoing discussions.

Informant 17: Because what I say in a hearing they didn’t give a shit about, almost felt as though they… When I talked, the laymen and the judge were looking at the doctor. You didn’t have like that connect [italics were in English in original quote], you felt as though you didn’t notice them, you know. They sat… you didn’t get… you felt that they didn’t listen to you.

Another aspect of this disconnection is the use of technical jargon, which is described as being excluding and an obstacle that is difficult to scale in order to convey one’s thoughts and views.

Informants describe how a clear hierarchy is manifest in the courtroom, one that renders them – the supposed central figure in the hearing – peripheral and restricted. The hierarchy is expressed both through the order of speaking – with the patient/party going last – and the fact that the other actors have interactions with each other about the informants, sometimes without acknowledging even through body language that the latter are in the room with them. Furthermore, the use of technical jargon fortifies the drawn up barrier between the patient/party and the professional actors.

Theme 2: Patient contributions as irrational and unwelcome

In the material, informants describe aspects of the court hearings that impede the prospect of a patient/party influencing the decision of the court. This theme gathers depictions of the struggle toward a fair discussion – about criteria for release, goals of treatment, how the patient/party ought to behave, and more – where rationality of argument takes precedence over the authority of the professionals. Some informants argue that, just by virtue of being the patient/party, one’s perspective and reasoning is considered invalid. Attempts to challenge the application by the treating psychiatrist are described as futile, even when the challenge concerns seemingly trivial details in the application, such as where one has lived or what occupation one has had.

The absence of objective findings to substantiate claims regarding psychiatric evaluations makes it difficult for patients to challenge the authority of the treating psychiatrist. Lacking hard facts to put forward, the patient is left with their own authority, rational argument and the support of professional actors, none of which are available to them (see also themes 1 and 5).

Informant 3: And if your doctor says that you are not well. It’s like if you’ve broken your leg and you say that: “No, but there’s probably, hell there’s nothing wrong with my leg!” If the doctor says that it is, then it is. Because they don’t have to show any X-rays here. That’s how it is. You have nothing to put forward.

Another issue that is brought up in the interviews is the nature of the criteria for release and how aspects of these criteria make them difficult for the patient to attain. One such aspect is the lack of transparency or clear definition regarding the criteria. Informant 16 struggles with having the goals set up for him better defined, in this case regarding the timespan of the objectives.

Informant 16: I have in my papers that I need to take care of work, that I need to avoid drugs, that I shouldn’t… I need to take care of the outpatient care and I need to take care of the medication and I need to take care of the home. Rent, cleaning, everything. Everything I have done, that, ask about that, everything, I have done that so perfectly all these years. Nothing happens, still nothing happens. Everything, I have done good all, not once, I haven’t been positive [on a drug screening] in seven, eight years with drugs or with alcohol or with anything. […] So I feel completely lost in this whole situation.

Objectives that satisfy criteria for release can also be difficult to attain due to their realization being beyond the patient’s control. For instance, informants describe how release from inpatient care can be delayed by several months because the psychiatric institution is slow to initiate the process that leads to the establishment of supported housing, a prerequisite for release. Others talk of the lack of outpatient treatment and support, which makes managing life outside of the institution more difficult. Because of this, the MHLP is left with a choice between full control and insufficient support, making prioritization of the patient’s/party’s autonomy impossible.

In sum, engaging in dialogue and contributing in court is made difficult by the lack of credibility afforded patients’/parties’ accounts, but also by the opaqueness of the assessments and the criteria for release.

Theme 3: the patient as evidence, not a person

Informants describe a role in the proceedings that is inherently object-like, as opposed to being a participating actor. They are primarily there for the benefit of the professionals, for the latter to view, assess and judge. Furthermore, informants talk of being reduced to a category, defined by their clinical diagnosis. In that process, the patient/party loses their individuality and personhood, as described by informant 2:

Interviewer: But I would like to ask you a question a little bit about how you experience that you, that others view your role and how you experience being treated as a person in this administrative court context?

Informant 2: Not as a person.

Interviewer: Not as a person?

Informant 2: Barely an individual. Object.

Interviewer: Can you elaborate?

Informant 2: Not person. Individual, no. A collective. Like group. [Informant names diagnosis under which he is sanctioned and treated]. I am not an individual, I am a group.

Interviewer: And that group is?

Informant 2: Like [informant names diagnosis under which he is sanctioned and treated], diagnosis.

Interviewer: So in this context you are your diagnosis, is that how you mean?

Informant 2: Yes sure, yes. I am not an individual even. I am a group.

In contrast to the picture drawn in the previous theme, the voice of the patient/party can appear highly relevant to the proceedings. However, it appears highly relevant only in so much as it provides evidence of the properties of the patient and their illness and not by virtue of being the voice of a party with something to contribute to a legal dispute. What a patient/party says may even be taken as the exact opposite of what they try to convey. One informant discusses the paradox inherent in the weight granted to insight into one’s illness. If you claim to be well, then you lack insight. If you claim to be ill, then you need treatment. Informant 8, on his part, discusses how questions posed to him are used to assess his abilities.

Informant 8: When I was feeling bad I had threatened some people. Then I got the question: “What were you thinking then?” and then I said: “Well, I don’t think I was thinking too much right then, it was just anger.” And a bit like that, so you get that kind of question that shows that you can consider things, you can understand why or why not you did things, and such. That’s sort of the level it’s on, I could say.

[…]

Interviewer: Mm. And what do you think was the point in asking that question, or like, what did one want to…?

Informant 8: No, but I guess they wanted to see if you had any self-awareness, perhaps.

The role of the patient/party is not symmetrical to that of the other actors in the courtroom; the professionals speak and argue from their respective positions and have their statements taken at face value, while patients’ utterances are afforded with a different type of significance. According to the informants, the voice of the patient/party represents something other than simply their point of view. Instead, any answers they give will be examined and taken as illustrations of their illness.

Theme 4: the devaluating effect of not being heard or being treated as something bad

This theme touches on aspects of the court hearings and behaviors of other actors that have been described under other themes. In addition to limiting the patients’/parties’ agency and defining their role, some of these behaviors and features may also more directly signal a devaluation of them as persons. In particular, behaviors of other actors that signal the insignificance of the patient’s/party’s contribution elicit experiences of devaluation and inferiority. Likewise, the formalities of the court proceedings are described as restricting the agency of the patient/party. When the enforcement of formalities is coupled with behaviors that signal the unimportance of the patient’s/party’s contribution it can be devaluing as well. Informant 16 describes his experience:

Informant 16: Well, for example I said to them: “I would like to say a few words” and so. And they said: “It’s too late now, and so we have to finish up.” So I didn’t get to say what I… Any words either. So I thought, that’s the worst could have happened me. Then I dropped it, so I don’t see any more of… Well, I don’t go to the administrative court hearings any more. I haven’t been for two years to the administrative court hearings. I’ve lost my will, yes.

In a similar vein, instances when the patient/party is not granted the opportunity to meet with the independent actors before the court hearings impede their ability to participate effectively in the proceedings. When, added to this, the oversight is treated as insignificant, the experience can be one of devaluation.

How challenges are met is also highly relevant to the experience of devaluation. Informant 5 talks of having challenges met as though they do not merit any real consideration, even when backed by other professionals’ judgment. Instead, they are dismissed using the authority of the psychiatrist over the patient.

Informant 5: My psychologist, for example, says that I don’t suffer from any mental illness, and the others say so too.

Interviewer: Okay.

Informant 5: But the court appointed psychiatrist says it just because it’s a label.

Interviewer: I don’t think I quite understand. Why would the court appointed psychiatrist say that?

Informant 5: No, but that’s what they do. He just says: “It’s a label, so that’s why we use that term.” I just: “But it’s the wrong kind of label to use.” “Yes, but that’s just how it’s done.” It… Yeah, hell if I know.

Not being listened to and having this treated as an insignificant oversight, signals the insignificance of the patient’s/party’s perspectives and values. Informants also discuss structures and patterns that they mean signal a construction of them as bad or awful. The secrecy surrounding the hearings is described as separating the patient/party from the outside world, not for the good of the patient/party but for the good of the outside world. Others describe how professional actors appear to consider them being bad persons or even monsters. However, instead of sparking conflict or confrontation, discussions and challenges are dismissed or ignored.

Theme 5: Lack of useful allies willing to challenge the status quo

Apart from having their own ability to influence circumscribed by hierarchy, formalities, jargon, dismissal, and unattainable goals, informants also talk of the lack of useful allies in pursuing release or other goals. The court appointed psychiatrist and the legal counsel are both potential allies that are discussed in the material. Even the court itself is cast as a potential ally in some interviews. However, none of them are described as useful aids in challenging the power of the psychiatric institution, for different reasons. The members of the court are discussed against the backdrop of them being the ultimate decision makers. However, their roles are described as limited as a result of their lack of medical expertise and the centrality of the medical perspective in court.

Informant 3: I mean it’s not like they, like, are on your side or anything and it’s, as I said, how could they? They don’t have the expertise. And if the expertise then says that you, like, should remain because you’re dangerous, or whatever the hell, then of course they listen to them. And I can understand that. What would I have done? I mean, it’s sort of like you go to the car mechanic and he says there’s something wrong with the car, this needs to be done. And you don’t know shit about cars, how can you… Then that’s how it is.

The public defender is described as essentially toothless and not necessarily allied with the patient. Again, the focus on medical questions makes the role of the legal counsel difficult, as they do not have the appropriate medical expertise.

Interviewer: Okay. But the medical assessment is what the verdict is based on, isn’t it?

Informant 2: But my public defender doesn’t question that. Instead it’s if I question something, if I say that this isn’t right, then the public defender begins. It needs to go through the public defender. And then we need to set that up beforehand. But I, he doesn’t have access to the hospital files.

Interviewer: Well this sounds tricky. So the public defender, based on their competence, doesn’t question medical issues.

Informant 2: No, but the legal.

Interviewer: Mm, it’s legal stuff. You can question, but no one listens.

Informant 2: No. I don’t have any authority on the subject.

Interviewer: But if someone wants to question the medical assessment, how do you do that?

Informant 2: It’s not possible.

Other informants discuss the case of a well-known patient/party in Swedish forensic psychiatry in comparison to their own experience. They argue that the presence of external pressure and media attention pushes the process into a more adversarial state and a more diligent consideration of the patient’s/party’s rights, whereby the legal counsel is granted or takes on a more potent role than under normal circumstances. Still others suggest that the legal counsel is primarily concerned with keeping matters congenial and non-adversarial.

Informant 1: It’s no good if there are conflicts because you still have to go along with the doctor there. And then last time the public defender said, means that “Yes, yes, but you know that you just have to follow that path that the doctor says this and that, and get along with the doctor then get some way along the path” he says.

Regarding the court appointed psychiatrist, informants discuss barriers to them acting as legitimate counter balances to the treating psychiatrists. One such barrier is the amount of information about the patient/party that is collected by the court appointed psychiatrist, often entailing only a short meeting and a brief review of existing files. Lack of clarity concerning the task of the court appointed psychiatrist is another one.

The interchangeability of the professional actors also makes alliances more difficult to form and adequate knowledge of the patient/party and case at hand difficult for the professionals to obtain.

The need for psychiatric expertise in the settlement of the questions at hand, unclear roles and mandates for the legal counsel and the court appointed psychiatrist, and a “let’s all get along”-ambiance contribute to a non-adversarial process where the dissenting patient/party is faced with a group of professionals that are unwilling or unable to side with them if it means challenging the status quo, as defined by the treating psychiatrist’s application.

Theme 6: the need for compliance and loyalty

Informants describe a pressure to adhere to the wishes of the professional actors. This can take the form of differing attitudes toward the patient/party depending on their level of compliance. It can also manifest itself in the form of loyalty toward the treating psychiatrist and concern for the alliance with the treating psychiatrist, outside of the courtroom. Informant 8 describes a kind of dose-response relationship between the level of hostility or strength of the challenge on the part of the patient/party on the one hand, and the chances of having your challenge taken seriously on the other:

Interviewer: Yes. Does it matter how you take the fight?

Informant 8: I’m sure it does, like some people get super pissed at their doctors and yell and scream and that, lose their temper. But if you have… or say… If you keep your temper and say that “I don’t really agree with this” and this and that, can argue for your case then it wouldn’t have been as bad.

Interviewer: No, okay. You say: “not as bad.” Would it still have been problematic somehow?

Informant 8: Yes I’m sure it would have been. Because… It’s still the doctor’s decision to make and if you go against that decision then that could cause a gap in the cooperation. So you should be a bit careful about that.

Informant 15 expresses concern that speaking freely in court could entail negative consequences for her, through damaging the relationship to the treating psychiatrist:

Informant 15: It would feel like a… an… not betrayal, but what’s a gentler word for betrayal?

Interviewer: Mm.

Informant 15: Against the doctor to bring something up in court that I haven’t brought up with her before.

Others talk of how speaking freely in court could result in the information being used to legitimize increased control. As an example of a successful alignment with the expectations of the professional actors, informant 11 describes the changed atmosphere in court after explicitly admitting and apologizing for his crimes:

Informant 11: When I was at the court hearings, from the start I thought that these people sitting there and know who I am even if I have denied that it wasn’t me. They knew that I’m lying. When I confessed then suddenly I saw in their eyes that I won such trust from them. And you can joke with them. But laugh, not laugh that loudly, but… Then I saw that now those people sit there, yes, they believe in me. And the court appointed psychiatrist too tends to joke with me. The doctor too. But in the beginning wasn’t so. They were so hard on me.

The expected position of the patient/party is described as one of subordination and loyalty, particularly with regards to the treating psychiatrist and the institution. It is the task of the patient to align with the professionals, not the other way around. If this task is performed well, the proceedings can be smooth and unproblematic. Not adhering to this position may endanger the path toward lesser restrictions and greater freedom.

Faced with an array of obstacles to active participation and influence, informants describe different strategies aimed at either weathering the storm or overcoming the obstacles to have an influence on the decisions at hand. The strategies tend to involve submitting to the authority of the professionals and gently navigating through an extended period of treatment and control. With the support of the treating psychiatrist, a prominent legal counsel or even a judge willing to question the psychiatric expertise, patients/parties can attempt to advance upon their goals. Among the more subversive strategies are ways of pretending to play along with the expected role or attempting to adjust the process in order for it to better accommodate the patient/party as a subject. It is unclear, however, if this navigation amounts to any concrete gains, a greater sense of agency, or not much at all.

Discussion

The material analyzed in this study points to a process that, in spite of it displaying features of a benevolent and therapeutic culture of legal practice, risks placing the patient/party in a position of subordination, objectification, and entrapment. With a substantial literature indicating a connection between processes that share features of what is described by the informants, such as social defeat and entrapment (Gilbert & Allan, 1998; Jaya & Lincoln, 2016; Selten, van der Ven, Rutten, & Cantor-Graae, 2013; Valmaggia, et al., 2015) and stigmatization (Birchwood et al., 2000; Vass et al., 2015; Wood, Byrne, Burke, Enache & Morrison, 2017), and the exacerbation of psychiatric symptoms, it would appear a therapeutic logic shaping mental health law proceedings could potentially become anti-therapeutic in effect. Reports of paternalistic concerns and a therapeutic logic driving MHLPs (Jacobsson, 2006; Peay, 1986) are further illuminated in this paper through accounts from patient/party-interviewees. The core features of the therapeutic logic – paternalistic concern, prominence of medical over legal considerations, and strategies employed to enhance cooperation and contentment on the part of the patient/party – are echoed in the descriptions provided by the informants. The patient/party-informants approach these features from a different perspective, and in doing so they highlight different aspects of them.

Paternalism in MHLP settings has been discussed as an infringement of autonomy to further the best interests of the patient/party through the provision of essential care (Peay, 1986; Perkins, 2003; Shah, 2010). Patient/party informants instead choose to highlight the entrapment and submission that result from these practices. Although professionals being hostile toward patients/parties are rare in the material and most encounters are described as courteous and friendly, the lack of choice or even dialogue entails disempowerment.

The predominant focus on medical considerations (Carney, 2010; Perkins, 2003; Sjöström, 1997) is also prevalent in patients’/parties’ accounts. However, beyond acknowledging the authority of the medical profession, patient/party informants also discuss how this perspective construes them as objects for clinical scrutiny and assessment, as opposed to subjects that take part in a neutral hearing. They become identified with the illness, or construed as irrational, or as something bad. This objectification limits their influence on the court’s decision making, but it is also problematic more broadly, as the court hearings are a context in which the patient/party is a citizen in society and not merely a patient in a care setting (Proposition 1990/91:58).

Patient/party informants also talk of an amiable atmosphere with few heated arguments and a general sense of cooperation. This congeniality has been described elsewhere as something desirable (e.g. Carney & Tait, 2011), but patients’/parties’ descriptions also highlight the limiting potential of such an atmosphere. If the status quo is unsatisfactory, any challenge to this could also disrupt the congeniality of the encounter, or the benevolence of the treating psychiatrist, even if the challenge is measured. Similarly, the cooperation between professionals in the best interest of the patient/party (Yip, 2003) also entails a lack of allies for the patient/party, risking to further entrench their powerlessness.

Thus, beyond pointing to a gap in the rule of law (Kindström Dahlin, Radovic, & Eriksson, 2017; Shah, 2010) as currently practiced – important though it is – the analysis presented here highlights the ways in which the application of a therapeutic logic can contribute to the disempowerment and distress of the patient/party.

Limitations and future directions

The paper at hand uses a sample of in-depth interviews with patient/party informants to elucidate conceptual aspects of MHLPs. The chosen methodology, which entails a limited sample, no comparison group, and a retrospective chronological perspective, limits conclusions regarding generalizability and causality. Generalizability extends only so far as to the level of concepts and theory, in this instance the compatibility between a therapeutic logic and disempowering and stressful processes. The prevalence of therapeutically motivated paternalism and disempowerment has not been assessed in this paper, which would be a prudent future avenue of research. Experimental or prospective investigations into the relations between court practices (among them therapeutic ambitions) and the effects that these have on the mental state or health of the patient/party would serve to address questions of causality. Furthermore, a clearer understanding of the foundations for applying a therapeutic logic to legal processes is needed. Research into other benefits of a therapeutic logic and obstacles to rights-oriented approaches or more strictly legalistic approaches would serve to further clarify the workings of MHLPs.

Conclusions

Patients/parties undergoing MHLPs in the forensic context describe several characteristics related to stress and disempowerment on the part of the patients/parties, which are also consistent with a therapeutic logic of legal proceedings. The findings of this study imply that the application of a therapeutic logic in MHLPs is not only problematic from a patients’ rights perspective⁶, but also insomuch as it may fail to ameliorate or even risks exacerbating the strain on the patient/party. The study at hand indicates that therapeutic logics and norms in legal settings ought to be applied with caution and with due consideration of the evidence of actual therapeutic consequences.

Acknowledgements

The authors would like to acknowledge the contributions of Moa Kindström Dahlin and Susanna Radovic who provided significant insight and feedback on earlier drafts of this paper. We also thank Alessio Degl’Innocenti who provided valuable support and commentary in the design and data collection phases of this study. We would also like to thank the informants for contributing their knowledge and experience.

Conflict of interest

No potential conflict of interest was reported by the author(s).

Additional information

Funding

Swedish Research Council [grant number 421-2013-1349]; Swedish Research Council for Health, Working Life and Welfare [grant number 2018-01409]; The agreement on the training of physicians and research between Region Västra Götaland and the University of Gothenburg, the ALF-agreement [grant number 819681].

Notes

1 Under Swedish law, an offender who suffers from a serious mental illness is criminally responsible and is sanctioned to forensic psychiatric care (Swedish Penal Code, Swedish Code of Statutes 1962:600, chapter 30:6). In such instances, the individual is detained in forensic psychiatric services where after the continuation of compulsory care is tried every six months in MHLPs in accordance with the Forensic Mental Care Act (Swedish Code of Statutes 1991:1129). Commonly, the compulsory care continues in an outpatient setting after inpatient care, with court hearings continuing every six months. A forensic psychiatric care sanction has no definitive time limit.

2 This term is used to highlight the dual role of the individual who is undergoing forensic psychiatric care. In the clinical context they are patients, whilst in the legal context they are parties in a legal dispute. The term is derived from Sjöström (1997), who discusses the balance of these roles in general compulsory psychiatric care.

3 This concept is distinct from that of Therapeutic jurisprudence (Wexler, 1995). Whilst therapeutic jurisprudence is a theoretical and normative framework to guide the study and practice of legal processes and legislation, the concept of therapeutic logic is an empirically identified pattern in MHLPs. Although a connection between the normative aspects of therapeutic jurisprudence and the therapeutic logic is possible, it is not evidently so.

4 This project was led by Lena Eriksson and involved Susanna Radovic, Moa Kindström Dahlin, and Sven Pedersen.

5 All quotes were translated from Swedish to English by the first author. Translator’s comments are given in brackets throughout the Results section.

6 Human rights perspectives on MHLPs, although of great importance, is not within the scope of this paper. For a discussion on human rights and Swedish mental health law, see Kindström Dahlin (2014).