limits on the nature and duration of incompetency
commitment. In addition, the Eighth Amendment ban
on cruel and unusual punishment was held to preclude
the execution of a capital defendant who becomes
incompetent by reason of mental illness or one suffer-
ing from mental retardation.
The availability of the insanity defense and how it
should be defined is largely a matter of state law. Most
jurisdictions recognize the defense but limit it to cog-
nitive impairment that prevents the defendant from
understanding the wrongfulness of his or her conduct.
Defendants acquitted by reason of insanity typically
are committed to mental hospitals as long as they con-
tinue to be mentally ill and dangerous. In the special
context of sex offender civil commitment, the Court
has recognized that pedophilia can justify a special
sexually violent predator commitment scheme, as
long as it significantly impairs the individual’s ability
to control his conduct.Other Mental Health Law Issues
These constitutional developments drove much of men-
tal health law, requiring statutory changes to reflect
constitutional limits on how people with mental illness
could be dealt with in both the civil mental health sys-
tem and the criminal justice process. Mental health law,
of course, deals with other issues that had been subject
to statutory and common law developments. These
include the regulation of mental health professionals
and clinical practice; clinical expert witness testimony;
clinical malpractice; informed consent for treatment;
confidentiality and patient privacy and access to
records; guardianship, housing, and zoning issues; dis-
crimination in employment and in governmental bene-
fits; and education of the mentally handicapped.Benefits and Limits
of the Legal Model
The legal model of mental health law that supplanted
the previous medical model brought needed reforms
and curtailed many abuses to which those with mental
illness had been subjected in the mental hospital,
the criminal justice process, and the community.
Although a significant improvement over the medical
model, the legal model of mental health law itself pro-
duced problems. It removed power from clinicians
who may have abused it but entrusted it to judges and
lawyers who often fail to understand the clinical needs
of the patient. By placing primary emphasis on legalrights, the legal model may sometimes have neglected
therapeutic needs. Ironically, despite its focus on
those with mental illness and the clinical profession-
als who deal with them, the field of mental health law
was not as interdisciplinary in its orientation and
scholarship as one might suppose. The legal model,
with its origins in and emphasis on constitutional
rights, thus seemed in need of a new direction. This
became particularly evident as the Supreme Court
became more conservative and less inclined to extend
constitutional rights further.The Emerging Therapeutic
Jurisprudence Paradigm
As a result, a new model of mental health law has
been emerging in the past 20 years, supplanting the
legal model with a new therapeutic orientation that
focuses not only on legal rights but also on the well-
being of those with mental illness. Therapeutic
jurisprudence is an explicitly interdisciplinary approach
to legal scholarship and law reform that emphasizes
law’s impact on psychiatric and psychological well-
being. This approach brings insights from psychology
and the mental health disciplines into the formulation
and application of law in an effort to reduce unin-
tended antitherapeutic effects and maximize law’s
therapeutic potential.
The therapeutic jurisprudence paradigm suggests
that the law itself can be seen to function as a thera-
peutic agent. Legal rules, legal practices, and the way
various legal actors (such as judges, lawyers, expert
witnesses, and therapists) play their roles all are social
forces that often produce therapeutic or antitherapeu-
tic consequences. The therapeutic jurisprudence ori-
entation focuses attention on these consequences and
seeks creatively to reshape law and legal practices so
as to increase mental health consistent with legal
rights and values. The therapeutic jurisprudence
approach also identifies issues for empirical explo-
ration, generating research on the mental health sys-
tem that can significantly enhance our understanding
of how law functions in this area and how it can be
recast to better achieve its therapeutic aims.
Therapeutic jurisprudence is thus an approach to
mental health law that goes beyond the legal model
that prevailed since the 1960s and that seeks to apply
legal rights and legal roles in ways that are more con-
sonant with the therapeutic needs of those suffering
from mental illness. It brings interdisciplinary insights
to the field and seeks to more effectively balance legal492 ———Mental Health LawM-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 492