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74 Denv. U. L. Rev. 1145 (1996-1997)
Coercion and Mental Health Health Treatment

handle is hein.journals/denlr74 and id is 1163 raw text is: COERCION AND MENTAL HEALTH TREATMENT
BRUCE J. WINICKt
I. INTRODUCTION: UNDERSTANDING COERCION
Any discussion of coerced mental health treatment must begin with a def-
inition of the term coercion. In its most basic meaning, the term coercion
connotes force or duress, or at least the threat of force. In the context under
consideration, civil commitment and court-ordered treatment are the paradigm
cases. But coercion extends beyond the use of overt legal compulsion. Coer-
cion may occur when individuals experience a loss of control over decisions
that they would like to make for themselves through threats, pressure, persua-
sion, manipulation, or deception on the part of another Much coercion oc-
curs in the shadow of the law. People impaired by mental illness may be
especially vulnerable to suggestiveness and to official and familial pressures
that those without such impairment would be better able to resist? Clinicians
and family members often pressure patients with mental illness to accept vol-
untary admission to the hospital or needed treatment, sometimes threatening to
invoke civil commitment, court-mandated treatment, and even criminal arrest
if they decline.' In addition, in the mental health context, as in other legal
contexts--contract law and plea bargaining, for example-proposals or offers
may sometimes be regarded as coercive.'
* Copyright © 1997 by Bruce J. Winick. This article was prepared for a Symposium on
Coercion and Exploitation at the University of Denver College of Law held on March 14-15,
1997, and presented to the Bioethics and Health Law Working Group at the University of Miami
School of Law in April of 1997. I appreciate the helpful comments of colleagues at the
presentations, and the research assistance of Alina Perez, Alphus Harris, and Tricia Shackelford.
t Professor of Law, University of Miami School of Law, Coral Gables, Florida. A.B.,
Brooklyn College, 1965; J.D., New York University, 1968.
2. See John S. Carroll, Consent to Mental Health Treatment: A Theoretical Analysis of Co-
ercion, Freedom, and Control, 9 BEHAv. Sc. & L. 129, 131-36 (1991) (analyzing types of coer-
cion applied in the mental health process).
3. BRUCE J. WiNICK, THERAPEUTIC JURISPRUDENCE APPLIED: ESSAYS ON MENTAL HEALTH
LAW 401 (1997).
4. See, e.g., SAMUEL J. BRAKEL ET AL., THE MENTALLY DISABLED AND THE LAW 179-80
(3d ed. 1985); RALPH SLOvENKO, PSYCHIATRY AND THE LAW 202-04 (1973); John Monahan et
al., Coercion to Inpatient Treatment: Initial Results and Implications for Assertive Treatment in
the Community, in COERCION AND AGGRESSIVE COMMUNITY TREATMENT: A NEW FRONTIER IN
MENTAL HEALTH LAW 251 (Deborah L. Dennis & John Monahan eds., 1996) [hereinafter A NEW
FRONTIER]; WINICK, supra note 3, at 395-96 n.108; Janet A. Gilboy & John R. Schmidt, Volun-
tary Hospitalization of the Mentally Ill, 66 Nw. U. L. REv. 429, 433 (1971); David B. Wexler,
The Structure of Civil Commitment: Patterns, Pressures, and Interactions in Mental Health Legis-
lation, 7 LAw & HUM. BEHAv. 1, 5 (1983); Bruce J. Winick, Competency to Consent to Voluntary
Hospitalization: A Therapeutic Jurisprudence Analysis of Zinermon v. Burch, 14 INT'L J.L. &
PSYCHIATRY 169, 209-10 (1991).
5. See ALAN WERTHEIMER, COERCION 202-41 (1987); Alan Wertheimer, A Philosophic
Examination of Coercion for Mental Health Issues, I 1 BEHAV. Sci. & L. 239, 244-46 (1993);
1145

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