by Bernadette Dallaire, Michael McCubbin, Paul Morin, and David Cohen
Abstract This article discusses the use of 'dangerousness' as a legal
criterion for civil commitment. The notion of dangerousness is defined
within the perspective of the relationship between judicial and
medical-psychiatric institutions. By reviewing empirical evidence
concerning the possibility of a link between mental illness and
dangerousness, we critically evaluate the main postulate supporting the
inclusion of this notion in the civil laws. We then examine empirical
studies of psychiatric expertise in dangerousness assessment and risk
prediction. By using observational studies of civil commitment
proceedings, we examine how the legal criterion of danger to self or
others is actually operationalised into a series of heuristic criteria.
These criteria are teleological statements: if being mentally ill and
being dangerous are, in this context, interchangeable, so are the
finalities of treating and controlling. We conclude that, at the
psychiatry-justice interface exemplified by civil commitment, treatment
and control have been equated conceptually and in practice, even if the
written law clearly distinguishes the concepts. With respect to civil
commitment, the institutions of mental health and justice are not, as
usually depicted in sociological analysis, two different systems that
meet and compete at this junction. Rather, they join together --
becoming, in effect, one actor -- within a treatment-control system
which has as its function and aim to 'take care of' residual cases
viewed as problematic for society.
Keywords: civil commitment, law, psychiatry, dangerousness, compulsory
psychiatric treatment or hospitalisation, systems of social control of
deviance, risks to safety or health
Introduction
The sociological theory of deviance centres on the notion of a social
response to deviant behaviours through institutions dedicated to
maintaining the social order. This perspective implies that, mirroring
the main dichotomy of 'badness' (motivated criminal or delinquent acts)
and 'illness' (a 'no fault' state), the institutions of justice and
medicine implement specialised responses: punishment/control toward
intentional deviance, and treatment/care toward deviance without
responsibility. Mechanic (1978) provides a good example of this
perspective in his comprehensive analysis of the field of medical
sociology, which attempts to explain institutional, professional and lay
responses to illness. However, this dichotomy is less applicable in the
case of mental illness, first because of the unclear and contested
nature of its definition as an illness and second, because of its
association, for professional and lay actors, with dangerousness. From a
societal point of view, this particular association places mental
illness somewhere between 'badness' and 'illness': something pertaining
to deviant acts as well as to deviant states, and something for which
both control and treatment are needed (Szasz 1991).
Until now, most sociologists have understood the institutional response
to mental illness/dangerousness through the view of an intersection
between medicine/psychiatry and justice (e.g. Allen 1987). This view
implies that, even if the treatment-control function leads to an
institutional overlap, each institution retains its boundaries intact.
It also implies that in some circumstances conflicts could erupt between
the psychiatric and judicial systems of knowledge, orientations,
interests and modes of operation. We argue in this paper that, in the
institutional response as enacted in civil court orders for confinement
of citizens labelled as mentally ill (or presumed to be), this
relationship between psychiatry and justice is different. Given the
particular nature of mental illness/dangerousness, the institutional
response to it generates a specialised cognitive and practical system.
This system, centred on the equation of treatment and control as its
main finalite[ 1], operates at the civil commitment junction of
psychiatry and justice. Although lacking many features of a 'classical'
institution (see Dumont 1985), this system has some quasi-institutional
traits[ 2]: ( 1) a shared body of norms, rules, beliefs and knowledge
(both formal/codified and informal/ uncodified); ( 2) behavioural
patterns allowing for repetition and continuity of practices; ( 3)
shared aims and interests; and ( 4) a central teleological orientation
of treatment and control of deviance attributed to mental illness and
dangerousness. Pursuing Scheff's (1999) thesis on 'systems of social
control', we demonstrate that the treatment-control system enacts sets
of normative expectancies and social representations through the agency
of the psychiatric, judicial and lay actors involved.
Drawing upon a literature relating to various disciplines as well as our
own empirical work on the concept of dangerousness in mental health and
its application in civil commitment procedures, we shall illustrate how
the 'in between' definition of mental illness is operationalised through
the system which embodies and organises the psychiatric and judicial
measures and outcomes with respect to mental illness/dangerousness. We
discuss:
*
between dangerousness and mental illness[ 3];
*
prediction of danger and the relationship of that opinion with the
organisation of modern psychiatry's nosological system;
*
health or safety of self or others (such notions -- despite variations
in wording across jurisdictions -- provide the criteria for civil
commitment); by doing so, we shall see how civil commitment rulings
constitute more than the mere translation of the legal code;
*
the legal and psychiatric institutions within a treatment-control system
handling certain persons identified as both mentally ill and dangerous
to self or others -- 'residual' cases regarded as problematic for
society and not dealt with in another system for managing deviance, such
as the criminal system.
The notion of dangerousness
In a general sense, the notion of dangerousness is used to characterise
a situation, a thing or a person presenting a danger for the physical or
human environment, or for oneself. This notion refers to the potential,
possibility or probability of an undesirable, unrealised event; not a
current event but rather a risk and, by extension, to the capacity to
foresee such eventuality (Litwack 1994). In the opinion of several
analysts, dangerousness and its substrate -- danger -- are 'fuzzy'
concepts: beyond the actuarial models designed to identify and measure
it, danger (and risk) is a 'fact' difficult to define, identify and,
especially, to assess in a concrete situation (Slovic and Monahan 1995).
On a psychosocial level, risk and danger are closely related to
unpredictability: as demonstrated by Garfinkel (1967), Goffman (1964),
and Scheff (1999), the performance and organisation of everyday
interactions are highly dependent on a series of normative expectancies.
In situations where such expectancies are not met and in which no
alternative explanation and course of action are available (e.g.
'strange' behaviour or 'crazy talk' from one of the agents), the order
of the socially constructed experiential world is threatened.
In the context of civil commitment, dangerousness is the essential
element of the civil law providing the basis for compulsory psychiatric
examination or hospitalisation (hence the term civil dangerousness). Yet
it is also a clinical concept, which may intervene in psychiatric
diagnosis, prognosis and treatment plans. Finally, because it justifies
and orients the processes of legal and therapeutic decision-making with
respect to the assessed person, the notion of dangerousness mobilises
specific sets of norms, belief systems, discourses and practices. In
this sense, the notion crystalises the relations between the
institutional worlds of justice and psychiatry: at this junction the
domains of action and objectives are, as we shall see further, both
specialised and complementary.
The question of the relationship between mental illness and
dangerousness
The introduction of 'danger to self or others' as a decision criterion
in civil commitment laws reveals the assumption that mental illness and
dangerousness are causally related. For this reason, the critical issue
-- whether from a legal, medical or social point of view -- resides in
the association which might be detected between various manifestations
of mental illness and of dangerousness, the subject of a large number of
clinical and statistical studies since the 1970s. Several studies find
the evidence for such a relationship, but those studies which broke down
the data into characteristics like diagnosis, history, behavioural
characteristics, and indicators of violence have found that the
relationship would appear to hold only in specific circumstances. There
is a consensus regarding statistically significant (if not strong)
relationships between severe mental illness (especially involving marked
psychotic symptoms) and criminality (one possible indicator or subset of
'dangerousness') with respect to quite specific subgroups (Hodgins
1995). Almost all these associations involve individuals who are also
classified as substance abusers (Hiday 1997). Indeed, the conclusions of
the MacArthur Violence Risk Assessment Study (MacArthur Research Network
on Mental Health and the Law 2000) stress that, among people without
symptoms of substance abuse, there is no difference in the prevalence of
violent acts between people discharged from psychiatric hospitals and
'ordinary' members of the community.
However, some analysts emphasise the possible influence of factors which
are not directly related to the patients and their behaviours. For
instance, an increased emphasis upon the dangerousness criterion in
emergency committals could point not only to the incidence of violent
behaviours but also to changes in the application of the law, decreasing
age of patients released from psychiatric institutions, a greater
sensitivity of psychiatrists to the decisional consequences (especially
the risk of being sued for professional error and failure in civil
responsibility), and a change in community attitudes toward recourse to
psychiatric internment (see McNiel and Binder 1986). Similarly, the use
of compulsory detention on the ground of safety (of patients or others)
could be motivated by the fact that such a measure is the only way to
obtain therapeutic services, more than by the actual presence of danger,
as described by Barnes (1996).
Some critics (Monahan 1992, 1998, Shea 1993-4) point on the other hand
to weaknesses in the research designs that find a relationship between
psychological distress and violence, and hence to limits in their
validity and generalisability. These are caused by: the limited number
and questionable choice of independent variables considered; the
questionable choice of diagnostic categories; inadequate criteria for
selection of sites as well as their limited number (several studies are
mono-site); the fact that in several studies only men are included;
limited or questionable generalisability due to the definition and
selection of the considered populations; biases in measurement resulting
from events and environments differentially affecting those who have
been involved with the mental health system as opposed to the general
public (e.g. violent acts are more likely to be detected when committed
by a person in an institution or under treatment and observation in the
community); and too short observational periods.
However, a more fundamental validity problem could affect almost all the
studies: a possible tautology between the two poles for which
associations are assessed. Not only are 'dangerous' acts more likely to
be detected once a person has entered the mental health system, it is
reasonable to suppose that mental illness is more likely to be diagnosed
among those very individuals who pose problems to their families or
communities (Scheff 1999) than among psychologically distressed persons
who do not. Among such possible problems are of course violent or
threatening acts -- or the perception by others of a threat when it is
more or less contained in the interpersonal situation and dynamics, as
observed by Dallaire and Morin (1999) -- and fears for the safety of the
person who will become a candidate for the diagnostic process. This
issue has not been raised in the dangerousness assessment literature,
except recently by Arboleda-Florez et al. (1998). These authors
characterised the problem as 'confounding by definition', which
'seriously mars any causal inferences that could be made based on
empirical evidence showing a statistical association between mental
illness and violence'. They further argued that the official definitions
of pathology used by psychiatry, as contained in the various versions of
the Diagnostic and Statistical Manual of Mental Disorders (DSM), have
increasingly, with each new revision, incorporated language about
'violence'. Hence, 'Mental disorder and violence may be statistically
related simply because of our overlapping definitions' (1998: S41).
In other words, being dangerous predisposes the likelihood of a label of
mental illness -- which 'explains' the dangerousness. Viewed from a
social construction perspective, then, this causality runs not from
mental illness to dangerousness, but from dangerousness to mental
illness. It has not been recognised in the highly focused research that
characterises the theme of 'mental illness and dangerousness' that
biases possibly inherent in the research designs may simply amplify a
more fundamental social bias to explain as mental illness otherwise
inexplicable and troubling behaviour -- or to capture a person 'falling
through the cracks' of other social control systems. But, also viewed
from a social construction perspective, causality runs from mental
illness to dangerousness: acts or discourse of a person are more likely
to be interpreted as indicating risks to self or others if that person
has a previous psychiatric history (Cohen et al. 1998, Dallaire et al.
2000). Hence, we find that to some extent, at least, the notions of
mental illness and dangerousness are so intimately related on
conceptual, representational, and operational levels, as to raise the
question of their actual specificity as separate notions, if any.
Although the positive associations relating mental illness to
dangerousness have been characterised as at best moderate and limited
(Eronen et al. 1998, Link et al. 1992, Steadman et al. 1998), and at
worst questionable on the grounds of validity and bias as discussed
above, policy debates over whether enhanced control is required over
'the mentally ill in the community' attest to a widespread perception
--among the general public as well as stakeholders more involved in the
mental health system as administrators, practitioners and family members
-- of a relationship between mental illness and violence much more
broadly based than the existing literature indicates (Weitz 2000). The
close association in the public's mind between mental illness and
dangerousness is directly and indirectly manifested in the way that
'mental illness' and 'dangerousness' are constructed and subsequently
operationalised within the mental health system.
Problems of clinical prediction: presumption of danger and presumption
of illness
The scientific justification for a civil commitment system has to be
based, as one of a number of necessary conditions, upon actuarial
-population-level -data relating particular mental illness
characteristics to indicators of dangerousness (e.g. a significant
statistical relationship between a diagnostic category and the incidence
of violent behaviours). Yet decisions to commit an individual must be
individualised, the object here being to determine whether a particular
individual might commit acts dangerous for self or others. The shift
from statistical relationships at the population level -- apart from
questions of their validity and magnitude -- to decisions with respect
to individuals is highly problematic.
Clinical predictions by psychiatrists, presumably based upon diagnosis,
case history, and behavioural signs, are commonly regarded by
professional actors within the system, as well as by the public, as the
prime -- or only -expertise applicable to decisions to commit an
individual (Pfohl 1978). This confidence is strongly contradicted by the
literature however, which has abundantly criticised the applicability of
such expertise, and consequently its accuracy. Clinical predictions have
been found to be extremely poor, holding less acuity than prediction
based purely upon actuarial data (Gardner et al. 1996). In 1976 Cocozza
and Steadman identified a series of weaknesses preventing adequate
evaluation by psychiatrists, mainly the vague character of the concept
of dangerousness itself (What behaviours are classified as dangerous?
Should the concern be with past, present or future acts?), and the fact
that in a group of psychiatric patients, the incidence of violent acts
(the base rate) is so small -- only slightly more than for the general
population, if that -- that the occurrence of erroneous predictions of
violence (false positives) is high. According to the American
Psychiatric Association (APA) [2000], even in cases of patients who had
already committed violent acts in the past, predictions were estimated
to be erroneous two times out of three. On this ground, the APA states
that 'psychiatrists have no special knowledge or ability with which to
predict dangerous behavior' (2000: 1). This is not a new acknowledgement
of the unproved value of psychiatric expertise in this area; similar
conclusions were reached by APA task forces in 1974 and 1978 (described
by Litwack 1994), based on a large number of studies and evaluations
dating back several decades (described by Ennis and Litwack 1974).
Noting the preponderance of studies establishing important limits to the
enterprise of dangerousness prediction with respect to psychiatric
patients, Hughes (1996) concluded that the current state of knowledge
does not permit adequate clinical predictions of violence or suicide.
According to Bjorkly (1995), even those tests based on highly elaborate
instruments (with scales classifying several levels of probability,
drawing upon a variety of predictors and criteria) have weak predictive
validity. Indeed, Faust and Ziskin (1988) found that the predictive
accuracy of psychiatrists -- even the most experienced- is no better
than that of ordinary citizens, and that the majority of decisions would
be wrong in both cases. This may seem surprising, since such an error
rate is worse than chance, and worse than if predictions were based only
upon the general incidence of violence in the population without any
additional information about the individual case. One reason for the
exceptionally high failure rate of clinical predictions may lie in the
strong tendency to over-predict violence or danger (Hughes 1996).
Besides the tautological problem raised earlier, whereby the
understanding of mental illness incorporates dangerousness as an
inherent part of the meaning of that term (and hence a clinical
predisposition to expect dangerousness from individuals presumed
mentally ill), over-prediction might also reflect a decision rule that
makes a failed prediction of danger less grave than a wrong assessment
of non-danger ('better safe than sorry'). This decision rule is
reinforced in many ways (Ryan 1998): by public outcries when an
allegedly mentally ill person commits a particularly gruesome or
'random' violent act (with mental illness frequently assumed due to the
inexplicable nature of the crime) [Holloway 1996]; by authorities
responding to public perceptions and demands for protection (Baker
1997); and, particularly in the United States, by litigation by family
members or victims when violence or suicide follows the release of a
patient into the community (Appelbaum 1988). Noticeably, Scheff (1999)
attributes this kind of collective reaction to a 'surplus emotional
response to deviance'.
Some writers have placed the problem of over-prediction of danger within
a larger disposition of presumption of illness (Pfohl 1978, Scheff 1978,
Sjostrom 1997) intimately related to contemporary clinical practice. It
is partly on this ground that authors also question the value of
psychiatric diagnosis itself (Kirk and Kutchins 1992). The process for
current psychiatric nosology, as officialised in the DSM (under its
different revisions) of the American Psychiatric Association, and in the
International Classification of Psychological Distress and Behaviour of
the World Health Organisation, has been severely criticised for
weaknesses bearing both on validity and reliability: non-exclusive
pathology categories, low inter-rater agreement for several syndromes,
lack of fit between empirically-derived symptom clusters and traditional
diagnostic categories, inconsistency of diagnoses made at different
times for the same case (Kirk 1994, Mirowski 1990). The process of
inclusion and exclusion of diagnostic categories in the DSM has also
been criticised for its intrinsically political nature (Caplan 1995,
Kutchins and Kirk 1998).
The revisions in the symptomatology attributed to the categories can
generate profound, though 'artificial' changes in the number and types
of diagnosed pathologies, even severe ones (Stoll et at. 1993). Along
with previously noted criticisms, this has led some critics, even within
the psychiatric profession, also to characterise as inherently
artificial virtually the entire current enterprise of psychiatric
nosology (Tucker 1997). In this scenario, even if the diagnostic system
is completely reliable (achieving consensus among clinicians), the
validity of the diagnostic categories themselves is not strengthened:
'Anyone can achieve interrater reliability by teaching all people the
"wrong" material, and getting them to all agree on it' (Brown 1990:
393).[ 4]
On this basis, the critique of the recourse to psychiatric expertise in
criminal and civil courts and administrative tribunals has broadened to
incorporate legal and ethical considerations. Whether the probity of a
proof be 'beyond a reasonable doubt' (criminal cases) or the 'balance of
probabilities' (civil cases), psychiatric evaluations would not meet the
standard (Cohn 1998). However, some writers have taken the view that
even a risk of violence less than 50 per cent can justify deprivation of
liberty; that it is the responsibility of legally-mandated professionals
to determine the threshold of risk or error ethically and socially
acceptable (Litwack 1993). In this sense, the psychiatric experts would
only have to 'do their job'. This argument presupposes, however, that
courts and tribunals would explicitly assess both the actual level of
risk and the minimum threshold it should attain to justify deprivation
of liberty -- in a process accountable to society. There is little
evidence or research asking whether this is indeed the case. We have
argued elsewhere (McCubbin et al. 1999) that researchers independent of
this risk-evaluation process have been systematically impeded in efforts
to cast light upon it. Such barriers could be interpreted as a sign of a
reticence, on the part of those exercising state responsibility and
powers with respect to civil commitment, at being observed in the course
of their actual practices.
Evaluation of dangerousness in civil commitment procedures
The introduction of civil dangerousness as a decision criterion for
involuntary commitment reflects a dual preoccupation in most states
using it[ 5]. On the one hand, by specifying additional criteria for
commitment, legislators aimed to protect the rights of individuals to
liberty and dignity. The sole diagnosis of mental illness -- or mental
illness combined with need for treatment -- could no longer justify
commitment. On the other hand, the dangerousness criterion also
fulfilled a role in protection of both the public and the committed
individual -- a role which must fall to the state. Hence a judge
endeavouring to apply the spirit as well as the letter of the law would,
in legal theory, aim to satisfy and balance these two sets of
objectives, those of individual rights and the public interest (McCubbin
and Cohen 2000).
Several analysts have investigated the actual factors which influence
civil commitment decisions. Some have argued that the content of the
laws -- the legal criteria additional to diagnosis of mental illness,
such as need for treatment plus danger (England and Wales) or
dangerousness only (as in the United States and Quebec), as well as the
setting of the established terms and restrictions -- would have an
important impact, not only in terms of the number of commitment orders,
but also in terms of the characteristics of the persons subjected to
these orders (Riecher-Rossler and Rossler 1993). The weight of the
evidence, however, suggests a marked gap between, on the one hand, the
intention (or spirit) and often the letter of the law, and, on the
other, its actual implementation. This is why Appelbaum emphasises the
distinction between the law as written and the law as practised. From a
perspective which is justificatory rather than critical, he writes:
... laws are not self-enforcing. Indeed, implementation of involuntary
hospitalisation is delegated to a variety of participants in the
commitment process, all of whom have the potential to affect how the law
is applied. When the results of a law narrowly applied will be contrary
to the moral intuitions of these parties, they will act at the margins
to modify the law in practice to achieve what seem to them to be more
reasonable outcomes (1997: 142).
For example, in their study of the effects of changes brought about in
1976 by the Mental Health Commitment Act of the State of Nebraska,
Luckey and Berman (1979) observed a reduction in the number of
involuntary admissions, but which was followed by a return to levels
similar to those of the period preceding the changes. The authors
explained this by evoking an 'adjustment period' during which the
commitment boards familiarised themselves with the changes in content
and procedure brought by the new law; the return to previous admission
levels marked the end of this adaptation process. The authors hence
concluded that the new legal dispositions were not in fact applied in
accordance with the initial expectations. To provide another example, in
a time-series analysis between 1977 and 1980, Marx and Levinson (1988)
found increasing proportions of normally less assaultive populations
being committed under the previous law which required assaultive
behaviour, but when that requirement was changed to a health
deterioration criterion, the numbers in these populations characterised
as assaultive fell sharply. Roughly the same numbers of people in those
populations and overall were committed before and after the change in
the law. Those researchers suggested that the change in the law removed
the incentive to exaggerate assaultiveness in order to justify
commitment. In a wide-ranging international analysis of the different
empirical tests of this phenomenon, Appelbaum (1997) observed the same
evolution: the reductions in committals observed in the period
immediately following legal changes were not maintained in subsequent
years. He concluded that despite the introduction of 'stricter'
committal criteria (based on danger to self or others), the policy
changes contained in the law brought no durable changes in practice.
Such phenomena led some analysts to assert that the weight of the law is
necessarily mediated, not only by the concrete interpretations that are
made of them, but also by different sets of pre-existing social
representations. While Hiday (1983) suggested that the 'facts' (i.e. the
apparent signs and reports of mental illness and/or dangerousness) and
the psychiatric recommendations had more impact than the attitude of
judges on civil commitment outcomes, Warren (1982) emphasised that in
civil commitment hearings, systems of meanings -- legal, psychiatric and
from common sense -defining mental illness are translated into practice.
This view of a coexistence of professional and lay interpretations in
systems of representations is also exposed in the analysis by Dallaire
(1997) about representations of health and illness among medical and
para-medical professionals: along with meanings originating from
disciplinary training and knowledge and from workplace experiences, she
argued, the interviewees also expressed lay-oriented interpretations
about the nature, causes and consequences of health and illness.
Similarly, the study by Holstein (1993) in different American states
depicted the observed hearings as processes of interpretation, where
various cultural norms and 'theories of common sense' bearing on mental
illness were actualised. Holstein took into account interactional and
contextual aspects (the context structured by procedural rules). But,
above all, he showed that the witnesses, the presentation of
information, the arguments advanced and the judgment itself were part of
a dynamic in which laws are used as resources: for argumentation, for
the interpretation of situations, for the taking of a decision and for
the justification of that decision. Such a dynamic could be
characterised as rule use as opposed to rule following. In this regard
Holstein emphasised that the criterion for a committal decision was not
the presence of mental illness -- that was taken for granted -- but
rather a series of preoccupations in which psychiatric opinion was
primordial. They concern the nature of the madness itself, what would
culturally be considered as acceptable and normal and, finally, the
representations bearing on autonomy, care, supervision and compassion.
More recently, we have also demonstrated this gap between practice and
the prescriptive function of law (Cohen et al. 1998). Analysing
documents generated during 1975-93 in civil commitment appeal hearings
by the Quebec Social Affairs Commission (an administrative tribunal), we
observed that the pertinent legal provisions appeared less as rules
uniformly applied than as rhetorical instruments where the actual
citation of the entire article of the law served as sole argument for
the law to be applied. Furthermore, the notion of danger and the
criteria for its evaluation, evoked but not formally defined in the law,
were not defined by the tribunal. Indeed, in several hundred cases
analysed, less than a handful of predictions of dangerousness were
found. The issues raised in the hearing reports were, rather,
considerations concerning need for treatment, the compliance of the
patient with that treatment -- especially with the medication regimen
--and whether the patient's attitude ('insight') was positively
accepting of the diagnosis and of the necessity for following the
treatment recommended by the treating psychiatrists.
Despite the fact that it concerns a different institutional locus, our
study of civil commitment procedures in Montreal and Monteregie regions
(Quebec, Canada) arrives at similar conclusions (Morin et al. 1999).
First, on a quantitative level, we observed a great uniformity in the
procedural characteristics and in the results of the cases. For
instance, among the 1219 confinement hearings in 1996 in the civil
district of Montreal, 92 per cent of the petitions were granted by the
judges; the responding parties were present and questioned in only six
per cent of the hearings; they were represented by an attorney in only
six per cent of the cases; in comparison, the petitioning parties (i.e.
hospitals) were represented in 99 per cent of the hearings. In sum, few
of the hearings were carried out in the adversarial mode one expects
from any procedure held in the formal setting of the civil court
(compared to a more 'procedurally soft' setting like an administrative
tribunal).
Second, our content analysis of the integral transcripts of a subsample
of 20 hearings (Dallaire and Morin 1999)[ 6] showed that the object of
the court exchanges and of the rulings was not strictly the evaluation
of danger to self or others. Indeed, this analysis showed the importance
of discussions concerning private and everyday life considerations (i.e.
the person's private and social identity, situation and living
conditions as male/female, old/ young, husband/wife, parent, family
member, community member, worker, consumer, etc.), concurrently with and
inside considerations about danger. On this ground, we concluded that in
the sampled cases, the assessment of dangerousness appears to be an
inquiry into the zone of confluence between the concerned individual and
his/her material and social environment. Danger was not depicted by the
hearing participants as an exclusively internal characteristic of the
individuals. Interestingly, this conclusion accords with the contextual
model depicted by Hiday (1997), for whom both the social and material
context and the larger social environment are linked to severe mental
illness and violence.
In sum, several observational studies of civil commitment procedures
highlight a discrepancy between the written law and the law in practice,
and conclude that the actors' socially embedded agency -- their
perspectives, motivations and interests, as influenced by broader social
representations -is the most determinant factor in civil commitment
decisions. This kind of interpretation is mirrored in previous
qualitative analyses concerning criminal court settings, which also
point out the enacted nature of the laws. The seminal work by Sudnow
(1965), followed by Atkinson and Drew (1979) equally emphasised that the
application of a given law is less the product of 'rule following' than
the outcome of processes of subjective evaluations based on pre-existing
social representations. Furthermore, they argue, this outcome is
negotiated by the actors in the course of their adversarial or
non-adversarial (co-operative) formalised interactions in court.
However, criminal cases are far more visible to the public and to higher
judicial authorities, than are court hearings dealing with civil
commitment and, of course, even more so than cases where the decision is
made by administrative tribunals or authorised individuals (e.g. the
'approved social worker' in the U.K.). If the professionals' roles and
representations are reinforced by their exposure to other actors and the
public, and by their awareness of this exposure (e.g. 'doing advocacy'
or 'doing doctoring' according to expectations about how an attorney or
a physician is supposed to act), then one could expect that in the
secluded area of civil commitment, such expectancies would be less
influential; that is, the agents' performance would be less oriented by
their profession's norms and representations, and thus more 'polluted'
by society-wide shared representations of the 'dangerous mental
patient'.
To treat or to control? False contradiction and systemic finalite
If preoccupations touching on individual rights, public security and
therapeutic need remain in relative competition in the spirit of laws
concerning psychologically distressed or troubling persons (Appelbaum
1997), this competition between several aims also occurs inside the
systems concerned. The double function of treatment and social control
of deviance has been frequently underlined with respect to the medical
institution as a whole (Conrad 1992, Freidson 1970, Zola 1972) as well
as within psychiatry notably expressed as the 'therapeutic
contradiction' (Castel 1980). Concrete examples reveal the presence of
this duality in clinical practice and forensic psychiatry (Bennett et
al. 1993, Rogers 1993). The place, application, effects and, most
notably, perception of coercion in psychiatric practice currently form a
major research theme (Lidz and Hoge 1993). However, what has also been
illustrated is the counterpart of this contradiction at the heart of the
other institution involved: justice, itself also confronted with
therapeutic considerations concurrently with its coercive imperatives
(Wexler 1992). This 'mirror effect' has been highlighted in studies
depicting the criminalisation of psychologically distressed persons
(Laberge and Morin 1995, Solomon et al. 1995).
This view of justice and psychiatry as representing different logics in
a competitive interface is less and less present in the sociological
literature. Rather, an emerging perspective views this interface as one
of interdependence or symbiosis (Mason and Jennings 1997, Morin 1995,
Rose 1986), or, more consistent with our findings, 'convergence between
the legal mind and the psychiatric concept' (Andreassen 1999: 43).
Especially in this last sense, the contradictions internal to each
system would only be superficial, reflecting rather a common logic:
treatment-control. Our analysis of the treatment role and of the control
role, when manifested in civil commitment, has not been able to separate
them, either conceptually or in practice. The control role has relied
upon the concept of dangerousness which, as our discussion above
highlights, is a fuzzy concept, quite variously defined and
operationalised. The treatment role relies upon the concept of 'mental
illness' which, despite efforts at concrete and meaningful definition
via DSM, is also said by critics to elude consensus as to what this term
signifies and how mental illnesses could be categorised.
Given the failure to objectively and consensually define these two
terms, our finding that the efforts to find a causal relationship
between mental illness and dangerousness are tainted by a wide variety
of scientific problems is not surprising. The most serious of these
problems is that the concepts of 'mental illness' and 'dangerousness'
have to some extent merged and, increasingly so, as reflected in changes
in the DSM. Empirical studies cited here have shown that applying the
criterion of dangerousness leads to the development of a series of
heuristic criteria -- need for help, need for treatment, lack of
compliance, lack of insight, inability to take care of oneself. Some of
these in practice often seem based more upon the necessity to treat than
the necessity to preserve the safety of the patient or others. We
therefore find a circular relationship between the separate treatment
and control roles, which may be a factor in, as well as a consequence
of, the merging of the concepts upon which those roles are based. We
seem to have a system which both treats in order to control and controls
in order to treat[ 7].
This functional and teleological union shapes the everyday practices and
discourses of the actors evolving in psychiatry and justice, and
especially in encounters such as civil commitment hearings where their
points of view meet. Especially in our study of a sample of civil
commitment hearings held in Quebec (Dallaire et al. 2000), we observed
that lawyers and judges, physicians and relatives, were operationalising
the pertinent law in order to find solutions to practical problems posed
by the individuals' state, behaviours and situations. Those subjected to
civil commitment were 'residual cases' in the sense of Scheff (1999),
insofar as solutions to the problems they posed were not sought or could
not be found in incarceration, voluntary use of medical or psychosocial
services, or through help from family, social networks or community.
That study, as well as those of Cohen et al. (1998), Holstein (1993) and
Warren (1982), show that even in jurisdictions where pertinent laws
clearly distinguish between mental illness/need for treatment and
dangerousness/control, court and administrative tribunals rulings are
made mostly following an operational criterion of need for help/ need
for treatment. Appelbaum (1997) interprets this discrepancy in a
cultural (mostly occidental) perspective: reforms focused on the strict
protection of individual rights and liberties, he argues, are inevitably
confronted with resistance from those entrusted with applying them,
because the laws contradict a 'social consensus' grounded in a system of
values where the persons designated as mentally ill are seen as needing
help and care more than freedom.
From a sociological perspective, this consensus can be viewed as a
manifestation of social representations regarding mental illness. These
are strongly and widely held on various levels of lay and professional
representations of mental illness, both postulating an association and
even an equation between 'severe' mental illness and dangerousness; of
societal characterisation, which attributes an intermediate status to
mental disturbance, somewhere between 'badness' deviance and 'illness'
deviance; and of societal response and systemic finalites, through which
treatment and control are also equated. In all these dimensions, where
the institutions of law and psychiatry meet in operationalising civil
commitment, we find one common logic and practice, reflecting the union
of law and psychiatry in one treatment-control system for handling the
residual deviance associated with the 'dangerous mental patient'.
Because the widely shared tendency to equate mental illness with
dangerousness is manifested in the rationale for, and operationalisation
of, civil commitment laws, however they are written, a civil commitment
system which couples mental illness with dangerousness has little or no
effect on restraining committals that would otherwise be made on the
basis of need for treatment. The net result of a dangerousness
criterion, then, may be to manifest, reinforce, and reproduce
stereotypes depicting as threats to public safety persons who experience
severe psychological distress or disturbances.
We may understand the introduction of such social representations into
the civil commitment process as simply a question of shared culture
among the professional actors involved -- as common members of a society
but also of certain social classes. We might also understand the role of
such representations as not inadvertent or marginal, but indeed
intrinsic to the finalites of the civil commitment system, as a whole,
as a 'treatment-control' system for the control of forms of deviance
that are not subsumed under other social control systems.
Address for correspondence: Bernadette Dallaire, GRASP, Universite de
Montreal, CP 6128 succ. Centre-ville, Montreal (Quebec) H3C 3J7, Canada.
e-mail: bernadette.dallaire@sympatico.ca
Acknowledgements
Portions of this paper had been presented to a meeting of the
International Academy of Law and Mental Health (Dallaire et al. 1999).
This paper was developed out of funding primarily provided by the Quebec
Council for Social Research (CQRS). We also want to express our
appreciation for financial support provided to Drs. Dallaire and
McCubbin by the Institute for Public Health Research and Policy,
University of Salford and by the Leverhulme Trust (UK), to Dr. Cohen by
the Quebec Fund in Aid of Research and Researchers (FCAR), and to Dr.
McCubbin by the Canadian Institute for Advanced Research (CIAR). Our
thanks to Ms Helen Busby and Mrs Angela Young, Research Fellows at the
Institute for Public Health Research and Policy, University of Salford,
for many fruitful exchanges during the preparation of this paper.
Notes
1The notion of finalite, a long-standing concept in the francophone
philosophy, sociology, aesthetics and early biology literature, has no
simple counterpart in the English language. We understand the term to
mean the teleological orientation of a system, that is, the general
principle of the direction of a system. The notion of finalite cannot be
reduced to a goal or a function: it refers to the character of something
striving towards an end and implies processes through which the end is
attained (e.g. adaptation of the means to the ends or adaptation of the
parts to the whole). Finalite applies to a system/institution, not to
its individual actors within, hence is not necessarily consistent with
the expressed intent of those actors -- nor with the overt 'objectives'
of the system.
2With respect to the mental health system, these features have been
increasingly emphasised by developing thinking in sociological
institutional theory, from Parsons (1974) to the 'new institutional
theory' school (Scott 1993).
3Here the discussion is limited to severe mental illness, frequently
defined as psychosis, upon which most of the statistical analyses were
centred. However, there remain several open questions concerning the
more general issues regarding the meaning and application of those
findings.
4More fundamentally, a political sociology of knowledge analysis might
place the development of these official classifications in a larger
movement, by which psychiatry as a profession seeks to augment the
scientific and clinical credibility of its uncertain base of knowledge.
The uniformisation of the nosology helps to provide an objective basis
for diagnosis, implicitly objectifying the syndromes as concrete and
pre-existent to their classification. The marked return to the
biological paradigm seen over the past two decades in psychiatry,
involving persistent claims of genetic, neurological and biochemical
etiologies, has provided psychiatry with some of the appearance of
exactitude and 'solidity' associated with the biomedical sciences. This
movement has operated to the detriment of psychological and psychosocial
approaches, severely restricting the nature and results of interventions
-- not only in psychiatry but also, due to the dominant role of
psychiatry in mental health care systems, in other mental health
disciplines (psychology, nursing, social work, etc.) [McCubbin 1994].
5For Europe, see Riecher-Rossler and Rossler 1993; for England and
Wales, see Barnes 1996 and Hatfield et al. 1997; for the United States,
see Freddolino 1990; for Canada, see Weisstub 1980: 326-340. The
legislation of several countries (including England and Wales, Denmark,
Norway, Sweden and Greece) incorporates the criterion of need (or
necessity) for treatment in order to preserve the health or security of
a person, in addition to the criterion of dangerousness with respect to
oneself or others (see Appelbaum 1997). The addition of the criterion of
'need for treatment' implies a legal obligation to furnish adequate care
and treatment, hence introducing the notion of 'right to treatment' for
involuntary psychiatric patients (McCubbin and Weisstub 1998).
6Our sample was atypical, designed to yield maximum information --hence
restricted to cases where the petition was contested by the respondent
and where the respondent was present and questioned. Even these atypical
cases share some traits with the whole: for instance, 16 out of 20 ended
with a granted petition for commitment or compulsory psychiatric
examination.
7Breggin (1997) and Cohen and McCubbin (1990) stress that in the case of
contemporary psychiatry, mainstream treatment practices correspond to
use of control over the patient; this especially because of the
quasi-systematic use of medications, whose clinical 'effectiveness'
comes from the fact that they pacify the patients by altering their
conscience and will. That the actual functions of the system and, hence,
its implicit orientations and goals, are not merely based upon
therapeutic and helping objectives but also upon the interplay of power
and interests has been argued by a few critics, who have suggested that
the mental health system is a profoundly political system (Crossley
1998, McCubbin and Cohen 1999) concerned more with social control than
with health care (see Atkinson 1996, Ingleby 1985, Szasz 1994).
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~~~~~~~~
By Bernadette Dallaire[ 1]; Michael McCubbin[ 2]; Paul Morin[ 3] and
David Cohen[ 4]
1Institute for Public Health Research and Policy, University of Salford
2FCAR Research Centre on Social Aspects of Health and Prevention
(GRASP), University of Montreal 3Monteregie Rights Defense Collective,
Longueuil (Quebec), Canada 4School of Social Work, Florida International
University
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