Welfare and justice

There is an inherent tension within much law concerning mental disorder between the broad public policy objectives of 'welfare' and 'justice'. This is represented classically in the context of mental health care law, where a patient is given mental health (welfare) advantage to their civil liberties (justice) disadvantage. Indeed, the particular challenge to mental health law is to achieve the integration of the twin objectives of mental health welfare and civil rights justice. (9) However, this circumstance represents merely one example within psycho-legal studies of possible tension between welfare and justice and a number of other specific tensions will be evident within other branches of law addressed in the coming pages.

Each example of tension between welfare and justice sets at variance with one another what may loosely be called the champions of 'therapeutic jurisprudence' (those who believe that law should be directed primarily at therapeutic welfare ends) (19 and of civil rights law (who emphasize the objective of justice and who deny the idea of law having primarily a welfare function). For Teubner, of course, a therapeutically jurisprudential or a doctor-lawyer 'co-operationist' agenda is inherently impossible since the law cannot incorporate the objectives, or even the language, of another science. (4) Hence, as already alluded to, even child welfare law, which has been amongst the most flexible of legal fields by virtue of its adoption of 'child welfare sciences' at the expense of strict rules of due legal process, extreme flexibility of expert evidential rules, and even of aspects of the adversarial system itself, may ultimately fail the true welfare test. Even in that apparently 'co-operative' medico/sociolegal arena, King and Piper(5) can therefore argue, from much study and knowledge, that there is still profound dominance of both process and outcome by the (autopoietic) legal discourse. In contrast, what we know of the operation of mental health review tribunals in England and Wales, which review 'investigatively' the legality of detention of individual patients in hospital, tends towards a very different conclusion. The only major empirical study performed in the United Kingdom(H> demonstrated loss of the protection of justice, which is usually afforded by strict procedural legal rules in courts but discarded by tribunals, suffered in the (presumed) pursuit of (the patients' or others') welfare. (Another similar study, currently being conducted by researchers at the University of Liverpool, is close to completion and will demonstrate very similar results (E. Perkins, personal communication, 1999).) Despite this, doctors increasingly complain of their experience of advancing 'adversarial' tribunal process. Indeed, it may be that, with greater involvement of the courts in mental health care law (even when only in contemplation at a tribunal by way of having one eye on the increasing potential for judicial review), the legal discourse may come to dominate even tribunals, perhaps to the detriment of psychiatric reality, and therefore welfare, but to the advantage of justice.

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