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46 S.M.U. L. Rev. 409 (1992-1993)
Therapeutic Jurisprudence and Tort Law: A Limited Subjective Standard of Care

handle is hein.journals/smulr46 and id is 423 raw text is: THERAPEUTIC JURISPRUDENCE AND TORT LAW: A LIMITED SUBJECTIVE STANDARD OF CARE Daniel W. Shuman* I. INTRODUCTION HERAPEUTIC jurisprudence is a mode of legal analysis that focuses on the law's potential as a therapeutic agent.I Its premise is that legal rules should encourage therapeutic outcomes when it is possible to do so without offending other important normative values.2 Therapeutic jurisprudence simply seeks to focus attention on an often neglected ingredi- ent in the calculus necessary for performing a sensible policy analysis of mental health law and practice - the therapeutic dimension - and to call for a systematic empirical examination of this dimension.'3 If, for example, empirical examination reveals that voluntary treatment for mental illness is more effective than involuntary treatment,4 the law should encourage volun- tary treatment and permit involuntary treatment, if at all, only after efforts * Professor of Law, Southern Methodist University School of Law, Dallas, Texas. An earlier version of this article was presented at the Law and Mental Disability Section Program at the Association of American Law School's Annual Meeting in San Antonio, Texas, January 5, 1992. The author gratefully acknowledges a grant from the M.D. Anderson Foundation to support the preparation of this article. Laura Cushman, Grant Morris, Victoria Palacios, Michael Perlin, Robert Schopp, Ellen Solender, and David Wexler provided helpful comments on an earlier draft of this article. Fritz Harding provided invaluable research assistance in the preparation of this article. 1. DAVID B. WEXLER & BRUCE J. WINICK, ESSAYS IN THERAPEUTIC JURISPRUDENCE (1991); DAVID B. WEXLER, THERAPEUTIC JURISPRUDENCE: THE LAW AS A THERAPEUTIC AGENT ix (1990). 2. WEXLER & WINICK, supra note 1, at xi. 3. Id. This inquiry into the therapeutic dimension of law can be analyzed from four perspectives. First, the law may play a role in producing psychological dysfunction through discouragement of necessary treatment, encouragement of unnecessary treatment, and encour- agement of sick behavior or absence of responsibility. Id. at 19-24. Second, legal rules may explicitly seek to promote therapeutic consequences as in the case of a right to treatment. Id. at 24-30. Third, legal procedures may play a therapeutic role in the parties psychological response to the legal process, as contrasted with the outcome. Id. at 30-33. Fourth, the roles played by attorneys and judges may have therapeutic consequences for the other actors in the legal process. Id. at 33-37. This proposal falls within the second perspective. 4. See Mary L. Durham & John Q. LaFond, A Search for the Missing Premise of Invol- untary Therapeutic Commitment: Effective Treatment of the Mentally I11, 40 RUTGERS L. REV. 303, 310 (1988); Leonard I. Stein & Mary Ann Test, Alternative to Mental Hospital Treatment: I. Conceptual Model, Treatment Program, and Clinical Evaluation, 37 ARCHIVES GEN. PSYCHIATRY 392 (1980); Bruce J. Winick, Competency to Consent to Voluntary Hospital- ization: A Therapeutic Jurisprudence Analysis of Zinermon v. Burch, 14 INT'L J.L. & PSYCHIA- TRY 169 (1991), cited in WEXLER & WINICK, supra note 1, at 83.

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