Some Reflections on Liberty : Bruce Winick’s ‘Civil Commitment: A Therapeutic Jurisprudence Model’

In the United States, involuntary hospitalisation of the mentally ill through the civil commitment process results in a curtailment of the fundamental liberty interest of freedom from external restraint; part of the constitutional guarantee. Apart from the loss of freedom through physical confinement, the labelling that inevitably accompanies commitment can give rise to significant social stigma and restricted life chances. In the last fifty-years, the power of doctors to commit on a best interests basis has been replaced by a legal process in which the grounds for involuntary hospitalisation have been restricted and the rights of patients prioritised. The problems inherent to both models have led to the development of therapeutic jurisprudence in which the therapeutic possibilities of law and the legal process are studied with the aim of optimising the therapeutic outcomes of commitment. Any model of involuntary hospitalisation necessarily gives rise to basic philosophical and political questions about the nature of individual liberty, of freedom and of the relationship between the individual and the state. As historically contingent concepts, what meaning can be attached to them and the goal of striving for a better balance in the context of the mentally ill between freedom and coercion?